Их архива Республики Пемберли. Процедура развода в период Регенства
Maria on the grounds of her adultery with Henry Crawford.
In order be free to marry and beget an heir,he had to obtain a parliamentary divorce that could only be granted after the passing of a private act through Parliament.
The procedure was complex and expensive.
Let me explain.
First, before any parliamentary proceedings could begin,Mr Rushworth had to obtain a judicial separation from Maria and a successful case of Criminal conversation against Henry Crawford.
A legal separation was obtained in the Ecclesiastical courts in this case for separation from "Bed and Board".This was usually granted on one of three grounds: adultery, life threatening cruelty or a combination of the two.In these courts both husbands and wives had the standing to begin an action.
Once this was obtained, the husband(or Mr Rushworth in this instance)then would bring a case of Criminal Conversation against his wife's adulterer.
.Despite its name this procedure of Crim.Con. (as it was abbreviated and known) was not a criminal action. It was a part of the civil action for trespass( the husband seeking damages from the seducer of his wife for damage to his “property”.) These cases were often heard in the court of Kings Bench : chosen by litigants precisely because justice there was swift, under the direction of Chief Justice Mansfield, during the late 18th century,early 19th century.
These actions were very rarely contested. Often judgement was entered for the plaintiff in an uncontested action and damages were then assessed by the Sheriff's jury at the assizes local to the plaintiff.
Most plaintiffs who could afford this whole process had a house in town( London) and so the Middlesex jury was used. But the assizes held regularly outside London could be used to assess the damages due to the husband, in the country in which he lived. Where, unsurprisingly he would probably be assured of a sympathetic jury.
In Mr Rushwroth’s case he could have had the damages against Henry Crawford assessed at either Middlesex or in Northampton.
If the case was contested, it was customary for the plaintiff( the husband )and the defendant( the seducer) not to testify in person( a situation that continued until 1869).They made written submissions, and their respective barristers made speeches on their behalf. Testimony from witnesses was allowed, as was the cross examination of these witnesses.
The wife who had committed adultery was not allowed to be represented .At all. She had no separate legal personality at this time( she was still married and therefore her legal personality was subsumed in that of her husbands).She did not therefore play any part in the proceedings at all. She could not call witnesses or testify in her own defence.There were instances of cases where the husband and “ seducer” had connived to bring the case as a precursor to a parliamentary divorce , and the wife had not committed adultery but was forced to go through this procedure unrepresented and her voice unheard. See Elwes v.Harvey (1796).Shudder.
At the end of any contested proceeding the jury was asked to decide of the case was found against the defendant. They were also advised by the judge about the criteria to be taken into consideration when assessing damages against the defendant. The plaintiff had already in his pleadings( court papers) asked for a specific sum to compensate him .The highest award made in these cases was Ј10,000.
The court took into account the following:
1) The status and wealth of the husband. The well born were considered to have more “ tender feelings “ than the vulgar classes and therefore damages should be higher if a high born husband was affected. Westmeath v. Bradshaw ( 1796).
2) Loss of Comfort and society of his wife. The courts took ion account if the marriage was a loveless arranged matter or a love match with mutual affection based on mutual choice. See Howard v. Bingham (17993-4).
3) The moral responsibility of the husband. If the husband had committed prior adultery then this was a factor to be taken into account( note it did not bar him from taking proceedings against his wife’s seducer!)
4) The moral turpitude of the adulterous couple. If the relationship between the two men( the husband and the seducer) was close and friendly then this could seriously affect the size of damages awarded by the jury. If the lover was barely known to the husband then no breach of friendship and hospitality had taken place. However if he as an old family friend, this as regarded as a breach of faith and regarded as very serious. Hmm. Not looking too good for Henry Crawford is it?
4) The status of the defendant. If the defendant was of rank and was wealthy he was usually made to pay heavily for his act of gallantry( or adultery!).In the trial of Augustus Cavendish Bradshaw, Chief Baron Yelverton stated the position juries should take:
The more exalted the culprit, because the less excusable the crime, the higher should be the punishment.
However if a poor man had seduced a wealthy wife e.g. a servant had seduced his mistress, then juries were often advised( and did) award savage damages to compensate not only the breach of trust between master and servant but the hierarchical damage done by a servant having adulterous relations with a woman of higher social status.
5) The capacity of the Defendant to pay the damages was as a rule taken into account. A rich man was likely therefore to have a heavy award made against him. Get that chequebook out Henry. In fact many men who obtained parliamentary divorces used these damages to pay for the next part of the procedure- getting a Bill through both Houses of Parliament.
N.B. If a defendant did not pay he had two options. Run the country and live aboard, or have his personal effects sequestered by the court and if there was still money owing, be put in a debtor’s prison. Land could not be touched by the courts in order to pay the debt.
So having obtained the Crim.con decision what would Mr Rushworth do then? He would ask a parliamentary agent ( usually a lawyer who specialised in parliamentary procedure) to draft a Bill to be presented to Parliament.
These bills were,as I have said started usually in the House of Lords.
Bills for Divorce were usually started in the House of Lords and by late 18th century Standing Orders had been formulated to ensure the procedure was standardised-see Lord Loughborough’s Rules (1798)
The first Standing Order of 1798 (see 3 Hansard 4:921-2) requested that each application be provided with a copy of the proceedings in the Crim.Con Action.The second Standing Order stated that every petitioner must present himself at the bar of the house to be cross examined about possible collusion and prior separation.(see Journal of the House of Lords 41:517).
Printed copies of the bill together with a petition signed by al parties has to be submitted to the House., and to all the parities concerned. Note there were no special regulations as to the time of proceedings on private bills but they were not to take precedence over government legislation.( see Bills and Acts: Legislative Procedures in Eighteenth Century England by Sheila Lambert)
The first reading of the bill took place in the House of Lords.
The Second reading took the from of a full trial before a committee of the House of Lords , which was chaired by the Lord Chancellor.
He was of course the Speaker of the House of Lords and was also the senior Government Law Officer .
Witnesses were called and cross examined., and so was the petitioner. It was know to be a tough court .Poor Mr Rushworth.
If the bill survived the committee stage and a third reading in the House of Lords, the billwas then sent to the House of Commons. It was there examined by a select committee on Divorce Bills( which was made up of 9 members of the House of Commons, that is M.Ps .The majority of the committee would be laymen but it usually included all current and former law officers of the Crown. )
One of them was appointed to be the Lady’s Friend who had a duty to ensure that some suitable but modest financial provision was made for the maintenance of the soon to be divorced wife. N.B.the wife’s portion( dowry) was forfeit and was kept by the husband.
If the bill was then passed by the House of Commons, after some small maintenance money being granted to the wife, the divorce took place, and Mr Rushworth was free.
If you would like to read further on this topic may I recommend The Road to Divorce:England 1530-1987 by Lawrence Stone,and Bills and Acts: Legislative Procedures in the 18th Century by Sheila Lambert.
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http://www.pemberley.com/bin/archives/regarc.pl?read=41274Да... возмещение убытков от поврежения собственности - жены. И то что при желании женьщину можно было подвести под развод без причинно, просто договорившись с "ответчиком". Бедные женьщины.
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