Adultery, criminality and the fiction of the king’s body
On June 5, 1820 Lord Liverpool delivered a message to the House of Lords concerning the impending trial of Caroline of Brunswick, wife of the recently ascended King George IV, for divorce on the grounds of adultery. “The King,” the Lord Chancellor read aloud, “has felt the most anxious desire to avert the necessity of disclosures and discussions, which must be as painful to his people as they can be to himself,” but Caroline’s decision to return from self-imposed exile in Italy to claim her place as Queen of England “leaves him no alternative.”1 From both a social and a political standpoint Caroline’s trial was one of the most notorious and divisive episodes in the history of the modern British monarchy; many witnesses testified to her romantic relationship with her Italian steward Bartolomeo Pergami and a bill of divorce passed the House of Lords.2 Nonetheless, due to Caroline’s immense popularity as a figure of reform and George’s reputation as a cruel husband and dissolute monarch, the bill was not submitted to the House of Commons.’’ Beyond its much-discussed political significance, Queen Caroline’s trial was also an important moment of cultural ferment surrounding the nature of adultery as a legal wrong.
The king’s message for Parliament on that first day of the divorce proceedings, alluding to the harm to “the people” arising from disclosure of Caroline’s alleged indiscretions, is clearly a case of political grandstanding. Yet he made the statement in the context of a trial that was, due to the parties involved, at once a private divorce and a proposed public bill. It should therefore also be understood as a particular sort of legal claim, with relevance to the basic classification of a wrong as a tort or a crime. When Blackstone distinguishes between “public” and “private” wrongs at the start of Book Four of his Commentaries, he states that English criminal law is known as “the doctrine of the pleas of the crown” because “the king, in whom centers the majesty of the whole community, is supposed by the law to be the person injured by every' infraction of the public right belonging to that community, and is therefore in all cases the proper prosecutor for every' public offence.”4 In many' cases the public/private wrong model is a useful, if oversimplified, means of distinguishing between a crime and a civil injury such as a tort or a breach of contract, and indemocracies it does not depend upon the physical body of a monarch. Individuals may recoup losses for civil injuries, while the government prosecutes a crime to vindicate the harms it imposes on the polity as a whole. When one commits an intentional assault on another person, for example, he has wronged that person and may owe him compensation under civil law, but he has also done violence to the whole community by violating the collective moral prohibition on assault; he therefore may also be prosecuted by the sovereign.
Yet Blackstone’s turn of phrase suggests something in the English common law imagination that sees a potentially interdependent relationship between tort and crime, centered on the body of the sovereign. John Goldberg and Benjamin Zipursky suggest that one way to distinguish between a tort and a crime is the “relational” component of the tort. As they put it, where “a criminal prohibition states ‘For all x, x shall not A,’ a tort occurs when someone violates the directive ‘For all x and for all y, x shall not do A to y.’” Blackstone’s famous dichotomy is striking in that—counter to this modern understanding— it relies upon the language of relationality to describe criminal liability as well as tort: x shall not do A to the king. In most cases this legal fiction will not matter much in the common law’s disposition of wrongs both public and private. But King George’s invocation of the “people’s” wellbeing in his own divorce proceeding brings to light a very specific legal wrong that has been fluid in nature at common law precisely because of the body of the king: adultery. I argue that in Britain over the course of the eighteenth and nineteenth centuries, the understanding of adultery as a tort is complicated by an accompanying discourse of what I will call “quasi-criminality.” Specifically—while formally trivialized— adultery remains discursively linked to a threat to British kingship. The tension between the weight of relevant monarchical history and the absence of criminal enforcement creates a new cultural discourse of adultery which attempts, itself, to serve an explicitly penal function.
The image of adultery occupied a curious position in English political discourse throughout the Revolution and Restoration and the accompanying ideological struggles as to the sources of royal authority. Stuart apologist Sir Robert Filmer famously analogized the relationship between a subject and his sovereign to the subjection of Eve to Adam, and James I declared to Parliament “What God has conjoined let no man separate. I am the husband and the whole island is my lawful wife.”6 The discourses of marital relations and kingship have been intertwined throughout the development of Anglo-American laws related to adultery'.7 And even after the liberalizing shifts after the Revolution, it remained the case that a woman’s murder of her husband constituted petty treason, punishable by burning; thus, adultery-related murders of husbands by wives were inescapably' reiterations, in the public sphere, of the husband-as-sovereign legal trope.8
Indeed, it was precisely this potential relationship between adultery' and violence that reinforced the cultural narrative of adultery as a public concern. It is therefore perhaps unsurprising that the famous eighteenth-century' cause of action in tort for adultery was known as “criminal conversation.” A form of trespass, the cause of action was first recognized in the latter part of the century, and exploded in popularity immediately. The very name of the action compresses the criminal into the commonplace; “conversation” suggests the highly regulated social interactions of the eighteenth century that so frequently formed the backdrop for instances of adultery'. The cause of action recognized both the quasi-criminality and basic impoliteness of seducing someone’s spouse. Indeed, in the courtroom, lawyers for plaintiffs in these cases expended a lot of effort to play up harm to the public morality' occasioned by an act of adultery', even though such public concerns are traditionally the territory' of the criminal prosecution which, as Blackstone would have it, is concerned with the rights of the king, not the plaintiff.9
The increasing popularity' of the criminal conversation lawsuit resulted in a new’ form of popular literature: the publication of the proceedings of trials for both criminal conversation and divorce. In these cases observers attended the trials and took short hand notes on the attorney's’ arguments and the testimony of each witness. These were then collected into volumes containing the proceedings of multiple trials which were often illustrated like novels, with detailed drawings of the various pairs of lovers at their moment of discovery'.
While meant for entertainment, these compendiums also assumed a selfconsciously punitive purpose. In the preface to Trials for Adultery: or, The History of Divorces (1799), the editor laments the de-criminalization of adultery and suggests that his text, itself, might rectify it: “[t]his publication may effect what the law' cannot: the transactions of the adulterer and the adulteress will, by being thus publickly circulated, preserve others from the like crimes, from the fear of shame.”10 Another volume, A New and Complete Collection of the Most Remarkable Trials for Adultery &c (1780), makes its public function even more explicit. While including several of the same famous eighteenth-century society adulteries chronicled in The History of Divorces, this “Complete” collection begins with the 1542 trial and execution of Henry VIII’s fifth queen, Catherine Howard. While The History of Divorces is concerned with presenting the criminal relationship between aristocratic sexual behavior and public morals, this collection takes it a step further. In using an English queen’s trial for treason as the starting point for a project on eighteenth-century' tort cases, the text’s editors reify the relationship between adultery, criminality, and sovereignty.
Consequently, the chapter on Catherine Howard explains:
This trial is put at the head of this Work, not only' on account of its being the earliest in point of time, but on account of the dignity of the party' tried. It is a trial of a most curious and interesting nature; the principal facts proved were committed before marriage; the punishment of the Queen’s relations, who were no way' accessory' to her lewd practices, was contrary to every' rule of law and justice; and the act of Parliament that passed, in order to oblige any lady the King intended to marry, to reveal any former incontinence she had been guilty' of, was considered a most extraordinary effort of tyranny.11
From this introduction, it is clear that Catherine’s trial is significant in part because she is the archetypical adulteress: as she is the queen and therefore “first” in “dignity,” Catherine’s adultery has the most important general effects on the kingdom, its legal order, and its security vis-à-vis the rest of the world. The editors of the compendium emphasize this by including a long extract from a letter sent by the king’s privy council to William Paget, the English Ambassador in France, which states that the King had desired in the first place to marry’ Catherine so that “his Majesty' might have some more store of fruit and succession, to the comfort of his realm.”12 The inclusion of his fifth queen’s adultery' trial at the start of this compendium demonstrates how the criminality' of adultery' had come to function as a form of English legal origins story'. In addition, at least with respect to Catherine Howard’s affairs prior to her marriage to the king, the text notes that investigations “shewed that the Queen had thrown aside all sense of modesty', as well as all fear of discovery'.”13 The concept of “discovery” as the touchstone for legal liability' remained deeply' important to the eighteenth-century discourse on adultery'. When closely' considered under the logic of those who would criminalize adultery', it is in fact the discovery' of the private sin that brings it into the public sphere and thereby' causes the harms complained of.
These same anxieties can be seen in the following century in Tennyson’s epic Arthurian poem Idylls of the King. At the time of its publication Tennyson drew criticism for his emasculation of Malory’s highly masculine Arthur, in part due to his role as a cuckold. Swinburne complained that Tennyson had “lowered the note and deformed the outline of the Arthurian story', by reducing Arthur to the level of a vvittol, Guinevere to the level of a woman of intrigue, and Launcelot to the level of a ‘co-respondent,’” an allusion to the trivial culture of cuckoldry' associated with tort and divorce law.14 Nonetheless, in dedicating the epic to the late Prince Consort Albert, Tennyson designates the poem as a tribute to marital fidelity, idealized as a component of sovereignty'. He compares Albert to Arthur, reimagined as both loyal husband and obedient subject to his conscience. While Arthur (and Albert) “loved one only and ... clave to her,” he also “reverenced his conscience as his king.”15 The dissolution, through death, of the marriage of Victoria and Albert becomes a threat to the cohesion of the former’s empire, over which “commingled with the gloom of imminent war,/The shadow of His loss drew like eclipse,/Darkening the world.”16 Victoria’s sovereignty' appears destabilized by' the loss of a partner who cleaved to her, as if marital completeness were a necessary condition for hegemonic political authority.
It is clear that both political order and humanity' depend upon the purity of the union between Arthur and Guinevere. Tennyson suggests that unification of husband and wife into one legal entity is a precondition for the consolidation of warring factions into one political entity. In contemplating Guinevere as a potential queen in the first book of the poem, Arthur recalls that her father King Leodegrance had said of his warring lands that “there between the man and beast they die,” and wonders, “Shall I not lift her from this land of beasts/Up to my throne,/and side by side with me?’”17 In the language of physical motion he describes Guinevere’s transition from the realm of beast to that of man to that of queen. Her personal elevation to the literal and figurative throne next to him turns out to be critical to Arthur’s project of unification and humanization described at the outset:
[FJor saving I be joined
To her that is the fairest under heaven,
I seem as nothing in the mighty world,
And cannot will my will, nor work my work Wholly, nor make myself in mine own realm Victor and lord. But were I joined with her Then might we live together as one life, And reigning with one will in everything Have power on this dark land to lighten it, And power on this dead world to make it live.18
Arthur here establishes the central problem of the poem: much like Victoria’s empire, which is “eclipsed” by the darkness of her consort’s death, the unification of England as a political state depends upon a conjugal “joining” of its king with his wife. His “will”—both as an individual man and as a source of political legitimacy— is impotent without collapse into the will of another, to form “one,” either as a unified legal entity under his direction or as an example of companionate leadership, with both parties working together. The priest who marries the royal couple reiterates this charge: “Reign ye,/and live and love, and make the world/Other, and may thy queen be one with thee,/And all of this Order of thy Table Round/ Fulfill the boundless purpose of their King!”19 Again, Tennyson conflates Arthur’s “purpose” of “making the world other” into being “one” with Guinevere.
In the chapter “The Marriage of Geraint,” Tennyson foregrounds a lesser-known Arthurian figure whose story reinforces the conflict between sovereignty and adultery. In this episode, Guinevere’s betrayal with Lancelot sparks a chain of causation through which the “flyers from Justice” escape punishment and unmake the kingdom, which in turn begins to unmake the union between Geraint and Enid. Unlike most of the other characters in the Idylls, Geraint does not figure in the primary French and English Arthurian texts but is known mostly from the collection of medieval Welsh manuscripts known as the Mabinogion. Tennyson’s Geraint marries the beautiful Enid, a favorite of Guinevere’s who in turn “with true heart,/Adored her, as the stateliest and the best/And the loveliest of all women upon earth.”20 The text’s first direct reference to Guinevere’s affair with Lancelot comes indirectly through Geraint’s observations of his wife’s relationship with the queen:
Long in their common love rejoiced Geraint
But when a rumour rose about the Queen,
Touching her guilty love for Lancelot,
Though yet there lived no proof, nor yet was heard
The world’s loud whisper breaking into storm,
Not less Geraint believed it, and there fell
A horror on him, lest his gentle wife,
Through that great tenderness for Guinevere,
Had suffered or should suffer any taint
In nature ...21
Geraint’s views on the potential effects of the queen’s rumored affair on his own wife’s chastity reflect the same concern, expressed in the eighteenthcentury adultery trial compendiums, of the particular dangers of upper-class adulteresses corrupting through example. Furthermore, the moment the hint of adultery enters the text, the action immediately shifts to the peripheries of the legal order established by Arthur. Geraint makes the excuse that he needs to leave Gamelot because his princedom is “Close on the borders of a territory,/Wherein were bandit earls, and caitiff knights,/Assassins, and all flyers from the hand/Of Justice and whatever loathes a law.”22 Geraint thereby establishes himself as an iteration of Arthur, intending to impose a system of justice on another pre-legal state of nature. Upon arriving in his own lands, however, Geraint instead spends his time on romantic pleasures with Enid, who laments that he is “forgetful of his promise to the King.” Though she describes their situation as an act of infidelity to Arthur, her husband overhears her accusing herself—as the cause of her husband’s lapse—of being “no true wife,” from which he concludes that she, like Guinevere, has committed adultery.23
As punishment for her perceived betrayal, Geraint makes Enid put on her shabbiest gown and ride out with him on an adventure. Numerous altercations with lawless knights ensue and they eventually take shelter at an inn. Lord Limours, a former suitor of Enid’s whom Geraint had defeated many years before, happens to arrive at the inn and, seeing the couple at odds, takes the opportunity to declare to her that losing her had “turned him wild.” His existence at the periphery' of Arthur’s realm, participating in the lawless conduct of the local knights was the direct consequence of failing to achieve matrimony.
Just as the first rumors of adultery lead to the unraveling of the Arthurian legal order, however, the reinforcement of fidelity begins to restore it, at least for a time. After Geraint is wounded in a fight with Limours’ men, he is taken—assumed dead—to the hall of the “brute Earl” Doorm, who attempts to force Enid to eat and drink with him. After her many refusals out of loyalty to Geraint, he shouts, “I compel all creatures to my will,”24 and “unknightley with his flat hand” slapped her.2’’ It is only upon hearing Enid’s many professions of loyalty to her fallen husband that Geraint is able to rise, take his sword, and “shore through the swarthy neck” of Earl Doorm, whose “russet-bearded head rolled on the floor.”26 The “brute” lord who rules over “creatures” rather than men has been removed as head of authority by the restoration of a monogamous marriage.
Indeed, after the pair escape Doorm’s castle, they immediately reunite with Arthur, who had taken it upon himself to visit the lawless lands Geraint had mentioned and “cleanse this common sewer” of the realm. As Geraint’s wounds healed physically, Arthur “rooted out the slothful officer/Or guilty, which for bribe had winked at wrong,/And in their chairs set up a stronger race”27 and “cleared the dark places and let in the law,/And broke the bandit holds and cleansed the land.”28 With the threat of adultery' cleared away, the legal order in this part of the kingdom can evolve out of the state of nature, away' from the “darkness” that seems to recur throughout the text whenever a marriage is disrupted. Yet the chapter closes on an ambiguous note: Geraint’s reunion with Arthur occasions Enid’s reunion with Guinevere, and Geraint “could never take again/That comfort from their converse which he took/ Before the Queen’s fair name was breathed upon.”29 Geraint’s discomfort, of course, presaged the inevitable end to the Arthurian saga in future books.
Tennyson’s selection of source material so deeply linked to the English ori-ginaty story’ suggests that this preoccupation with sovereignty traces a particular historical vector. Arthur’s cuckolded identity was—as George IV had suggested of his own—a wrong to the people, as whose head and conscience he was supposed to serve. With the faithful matrimonial bodies of Tennyson’s own sovereign and her late spouse so vividly invoked at the start of the poem, the temporal remove to the Arthurian period necessarily implicates the various historical queens whose alleged adulteries complicated and reconstituted English sovereignty in the centuries between Guinevere and Victoria. Furthermore, the proliferation of adultery throughout the text, with non-royal couples moving in a kind of network with Guinevere and Arthur, suggests the same anxiety over contagion seen in the eighteenth-century' compendiums. Idylls of the King may, therefore, be considered to function as a uniquely English adultery text. Far from avoiding the subject, Tennyson narrates it as inextricably interwoven with—while destructive of—the English legal order.
Notes
- 1 The Important and Eventful Trial of Queen Caroline, Consort of George IV, for “Adulterous Intercourse” with Bartolomo Bergami, ed. George Smeeton (1820), 11.
- 2 Robins Jane, Rebel Queen: How the Trial of Caroline Brought England to the Brink of Revolution (New York: Simon & Schuster, 2006), 192-3.
- 3 Ibid., 200-10.
William Blackstone, Commentaries on the Laws of England, 4 vols. [1765-1769], ed. William Cyrus Sprague (Chicago: Callaghan & Co., 1915), 4:7.
John C.P. Goldberg & Benjamin Zipursky, “Torts as Wrongs,” Texas Law Review 88 (2010), 949.
C.H. McIlwain, The Political Works of King James 1. (Cambridge: Cambridge UP, 1918), 272.
Man' Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (New York: Vintage, 1996), 6.
Blackstone, Commentaries, 4, 88-9.
Ibid., 179.
Trials for Adultery: or, the History of Divorces (7 vols. London: S. Blandon, 1799), iii.
A New and Complete Collection of the Most Remarkable Trials for Adultery &c (London: J. Fleeming. 1780), 14.
Ibid.
Ibid., 15.
Algernon Charles Swinburne, “On the Idylls”, in Tennyson: The Critical Heritage, ed. John D. Jump (London: Routledge and Kegan Paul, 1967), 319.
Alfred, Lord Tennyson, “Idylls of the King,” in The Complete Works of Lord Tennyson, ed. Charles Howard Johnson (1859; repr., New York: Frederick A. Stokes, 1891), 11. 8-10.
Ibid., 11. 12-14.
Ibid., 11. 78-80.
Ibid., 11. 84-93.
Ibid., 11. 471-4.
Ibid., II. 19-21.
Ibid., 11. 22-3.
Ibid., 11. 34-7.
Ibid., 1. 108.
Ibid., 1. 628.
Ibid., 1. 717.
Ibid., 1. 728.
Ibid., 1. 939.
Ibid., 1. 943.
Ibid., 11. 949-50.
