Two. The Stomping Suffragists
Two
The Stomping Suffragists
IN THE MATTER OF SCOTT v. SCOTT
Lincoln’s Inn, July 17, 1865
Sir Cresswell Cresswell sat alone in his private chamber, mulling over the lengthy divorce petition before him. He had been appointed the first judge of the Court for Divorce and Matrimonial Causes upon its creation in 1857. No longer would the ecclesiastical courts decide such cases; no longer would those seeking to remarry require, in addition to the church’s decree, a private act debated and passed by Parliament. Since 1700, there had been only three hundred divorces in England as a result, sought mostly by men. With the establishment of this new court, petitions for divorce had rocketed from three to three hundred in one year.
Sir Cresswell was tired; he had been contemplating retirement when the divorce court appointment was urged on him. In the past handful of years, he had rapidly disposed of one thousand divorce cases, only one of which was later reversed on appeal, a record unbroken by any of his contemporaries. Now well into his sixties, Sir Cresswell sat ten months of the year and never missed a day due to ill health or otherwise. But on clear sunny mornings like this one, all he wanted was to be out on his horse.
Scott v. Scott was next on the docket, an admittedly fascinating petition for divorce. It had been initiated so quickly following a marriage at sea that Sir Cresswell, himself a creature of speed, had agreed to hear the case out of turn. Already the Fleet Street papers had gotten wind of the suit, given the involvement of one of their own. The public court in the Old Hall—made famous by the Dickens novel Bleak House —was packed to capacity. It seemed all of London was eager to hear the testimony of the petitioner, a newly married and already jilted husband.
Sir Cresswell believed himself to be part of the draw for today’s spectators in court. The papers liked to boast that the five million married women in England were indebted to him— Blackwood’s Magazine had even recently produced a rhyme: “There’s many a wrong we could redress well / If aided by Sir Cresswell Cresswell.” Another draw was the young barrister Dr. Richard Pankhurst, a gold medalist who had been called to the bar at Lincoln’s Inn in 1863 and practiced on the Northern Circuit. He had been brought down especially by the American-born female respondent in that day’s hearing, due to his permissive views on the rights of women.
So permissive, in fact, that Pankhurst was helping to form a national female suffrage society in addition to advocating for property rights for women—the very rights which stood at the heart of the case before the court. With so much at stake, several “manhood suffragists”—as the papers had recently begun calling them—were reportedly in the Old Hall today to witness the proceeding. Women confused Sir Cresswell, a lifelong bachelor, and such presence in his courtroom was slightly jarring. But he prided himself on nerves of steel, a peerless intellect, and a knack for timing his statements to ensure the greatest impact on his audience. A few manhood suffragists were no match for him.
It was rumored that authoress Caroline Lamb Norton might also make an appearance that day in his court. The granddaughter of the great Irish playwright Richard Brinsley Sheridan, Mrs. Norton had decades ago been involved in similar scandal when she had left her own husband, causing her to lose custody of their three young sons. English law at the time considered children the legal property of their father and his wife a part of him . Largely due to Mrs. Norton’s subsequent campaigning, the Custody of Infants Act 1839 was eventually passed, allowing women to sue for custody of their children up to the age of seven. But Mrs. Norton did not stop her boot-stomping there. She fought for the right to speak before Parliament in 1855 as it debated the issue of divorce and women’s loss of personhood upon marriage. Her powerful words were now a matter of permanent parliamentary record:
An English wife may not leave her husband’s house. Not only can he sue her for “restitution of conjugal rights,” but he has a right to enter the house of any friend or relation with whom she may take refuge… and carry her away by force.…
If her husband take proceedings for a divorce, she is not, in the first instance, allowed to defend herself.… She is not represented by attorney, nor permitted to be considered a party to the suit between him and her supposed lover, for “damages.”
[If] an English wife be guilty of infidelity, her husband can divorce her so as to marry again; but she cannot divorce the husband, a vinculum , however profligate he may be.…
[A man once could] take children from the mother at any age, and without any fault or offence on her part.… What I suffered… under the evil law which suffered any man, for vengeance or for interest, to take baby children from their mother, I shall not even try to explain.
Not even Sir Cresswell himself could have resisted such a heartfelt plea: although a bachelor through and through, he had a soft spot when it came to the babies. Eventually, Mrs. Norton’s tireless campaigning would also help bring about the Matrimonial Causes Act 1857, the very legislation that had birthed his role as judge. Sir Cresswell might partly owe his judicial existence to Caroline Norton, but she would owe him total obedience in his court—which was always as he liked it.
One final person of note would not be present at the proceeding: the very wife in absentia herself. She had reportedly fled to America within days of the shipboard wedding, the petitioner husband the surprising victim of desertion here. If the respondent wife had remained in England, she would have lost most of her individual rights. She could not sue or be sued by others for any harm or even represent herself in court. Her entire legal existence was deemed to be incorporated into that of her husband for the duration of the marriage.
There was only one exception to a wife’s loss of personhood, but it was a critical one: the ability under the new laws to sue her husband for separation or divorce. She simply required more reasons than him to do so. Otherwise, her person, children, possessions, and earnings all belonged to him. Sir Cresswell Cresswell was abundantly aware that his decision in Scott v. Scott could help turn the tide when it came to legislatively reforming the property rights of women in England. But for now, the law was the law, and, to a point, his hands were firmly tied.
“ Your name.”
“Denham Scott.”
“Your profession?”
“Newspaperman.”
“For which publication?”
“ Reynolds’s Newspaper , Your Lordship.”
Sir Cresswell examined the petitioner before him. A sense of resentment emanated from his entire being, as if he was as surprised by the fact of the proceeding as anyone. He possessed a charming face with strong bones and full lips, locks of brown hair that fell forward across his high but furrowed brow, and the fashionable rounded beard made popular by General Grant in America.
“And your residence?”
The man’s face twitched slightly. “Number fourteen, Hanbury Street, Tower Hamlets.”
“You have lived there how long?”
A cough. “Three weeks and a day, Your Lordship.”
“And a day ,” Sir Cresswell intoned with mock grandeur, then turned to the mild laughter coming from the gallery. “You are a most precise gentleman—as is your petition before this court, a Hydra-like beast of many heads. We will first address the suit for divorce, which requires proof of adultery under the law, before considering your, ah, many other complaints.”
At this, the petitioner’s body slumped even further in his chair.
“You have named a co-respondent.”
The counsellor for the petitioner whispered in the ear of his client, who mumbled something to the court in response.
“Speak up, Mr. Scott.” Sir Cresswell detested this aspect of both the old and new matrimonial laws—the requirement to name the other party to adultery risked the most unsavory revelations before his court. But adultery was the sine qua non for obtaining a divorce, and the standard of proof increasingly low as a result: the mere word of an eavesdropping chambermaid, sharp-eyed coachman, or disgruntled acquaintance was often enough.
“Nicholas Nelson.”
There was a loud collective gasp from the gallery.
“You have evidence of criminal conversation taking place between your wife and this Mr. Nelson?”
The petitioner nodded.
“Speak up, I say.”
“A letter, Your Lordship.”
This document was now passed along until it reached Sir Cresswell. He read silently but quickly as the petitioner’s counsel summarized aloud its contents for the court.
“As you can see from the letter, Your Lordship, the respondent Mrs. Henrietta Scott was in the frequent company of this Mr. Nicholas Nelson whilst on holiday, and the two of them were seen entering her hotel room at the Fountain Hotel in Old Portsmouth on the second night in July of this year. A handkerchief stitched in Mr. Nelson’s initials was retrieved from that room after the fact.”
“But this letter is not signed.” Cresswell frowned. “And you have no idea of the sender?”
“No, My Lord, but it is duly postmarked Portsmouth, as you can see.”
Cresswell folded the letter back up with a sigh. “Counsel for the respondent, does your client refute such charges?”
Dr. Richard Pankhurst stood up. “As this court has been informed by affidavit, I was only able to consult with my client most briefly before her departure from England, making the proceeding of this matter greatly to her prejudice. That said, she would wholeheartedly refute any and all such accusations.”
“If she were here.” Cresswell sat back in his throne-like chair. “I must confess, her fleeing in such manner does not reflect well on her already embattled character.” A strange stomping of feet could be heard from the gallery above; Cresswell’s right eye twitched. “Of course, this entire matter could be swiftly dispensed with by the court, and in your client’s favor, Dr. Pankhurst, should the marriage itself be declared invalid.”
“I was instructed against my own advice, Your Lordship, not to challenge the validity of the marriage in any respect.”
“Notwithstanding the interesting dis interest of either party, it would appear, to challenge the marriage itself,” Sir Cresswell announced, “I am bound by duty to ensure its validity under the law. There can be no divorce if the marriage is not valid, and if the marriage is not valid, there can be no right in Mr. Scott to any property of the respondent, as she is also then not his.
“Let us proceed. Firstly, we shall set out for this court the statement of facts behind the petition. Mr. Scott, on the evening of the twenty-fifth of June, you exchanged wedding vows with a Miss Henrietta Alice Stevenson of Boston, from the Commonwealth of Massachusetts in America, correct?”
“Yes, My Lord.”
“And this marriage was conducted at sea by a Captain Valentine Norris of the SS China , a ship built and registered abroad in the coastal state of Maine, in what were international waters at the time?”
An abrupt nod from the petitioner.
“And there were no witnesses? Quite unfortunate, I must say, and sadly illustrative of the rather reckless manner in which this most important of contractual unions was entered into by the respondent and yourself. Captain Norris did log the marriage in the ship’s registry, a copy of which your counsel has entered into court. On this ground, you argue that the marriage is valid and thereby entitles you to all the personal non-leasehold property of your new wife.” Again the stomping of feet could be heard from the gallery above, growing louder; Sir Cresswell made a swatting motion with his right hand, as if at a fly.
“Yes, My Lord.”
“I must first state that such entitlement under English law is not itself in dispute. If the marriage at sea is valid, you are indeed entitled to the object in question.”
A look of pride mixed with relief crossed the petitioner’s face at this pronouncement, while Sir Cresswell finally looked up to determine the source of the stomping above: the many high-heeled booted feet from the line of manhood suffragists who were seated in the upper gallery, glowering down at him.
“ However ,” Sir Cresswell declared with his exquisite sense of timing, as the entire row of suffragists stopped stomping to lean forward in anticipation, “there is a prior issue of law which must first be decided.” A long, dramatic pause. “That is, whether this court has jurisdiction to rule on the validity of the marriage at all.”
There was a gasp from the spectators. To the knowledge of the court, Sir Cresswell Cresswell had never punted a divorce case from his docket on the grounds that another judicial forum elsewhere took priority over his.
“The marriage took place in international waters and as such, under English law, it is subject to the flag and laws of the country where the ship was built and registered—in this case, the coastal shipbuilding state of Maine. The reasoning of Cunard, the ship’s British owner, in moving such work abroad is not of concern to us. It is what it is.”
Another long, dramatic pause as the boot-stomping stayed stopped.
“I therefore find that the validity of the marriage in the first part, and the ownership of the object in question in the second—an object which, as I understand it, may already be on American soil itself—are subject to the flag and laws of that young nation, to whose jurisdiction I now remit the entirety of this matter.”
The petitioner’s counsel jumped up. “Your Lordship, such instances of renvoi, where there is a conflict of laws between nations, are exceedingly rare and accordingly fraught with judicial uncertainty!”
“Are you instructing me on the ramifications of my own decision?” Sir Cresswell raised his voice here for the first and only time.
“But if the American courts should find the marriage invalid under their laws, my client will lose a valuable right to ownership that he would otherwise enjoy under our own!”
Richard Pankhurst, counsel for the respondent in absentia, stood up again. “I should warn my learned friend that even if the American courts find the petitioner’s marriage valid, he would still lose ownership under their much more progressive property laws for married women.”
The face of counsel for the petitioner fell amidst all the jubilant stomping. “I beseech you, My Lord,” he practically cried, “where is the fairness in that ?”
Sir Cresswell tsk ed the barrister. “ That is neither here nor there. The law on forum sits at the heart of justice. Should the petitioner wish to pursue this matter further, he must do so in America. My decision is final and absolute.”
The gallery erupted into applause and much happy stomping. The mysterious gift from the dying Admiral Sir Francis Austen, brother of literary genius Jane Austen, to Henrietta Stevenson Scott of Boston, daughter of a judge herself, was safe for now.