Was this ground for divorce ever invoked, 1923-1970?

I have long considered the intricacies of English divorce law one of my topics of niche pedantry, and will happily, though perhaps not for my hearers, discourse of the errors made in historical fictions when invoking the dissolution of marriage as a plot-point. Also the sometimes curious lack of interest of biographers in how a wife had managed under a grossly unequal law to get quit of her husband. But I recently discovered a new twist.

I have somewhat belatedly been digging into questions a couple of people raised with me last year about Lord Dawson's contribution to the House of Lords debate on the Matrimonial Causes Bill 1936. This became the 1937 (Herbert) Act, extending the grounds for divorce beyond simple adultery in either party to include cruelty, desertion and insanity. In the course of his speech, Dawson said:

[I]t is an important omission from the Bill. In the case of homosexuality I shall ask that this be made a cause alike for men and women. It is time for equality in that matter.

 Except, I had been under the impression that homosexuality was not grounds for divorce.

However, on doing a little digging, one discovers that, going back to 1923, it appears that in theory at least, there was an anomaly that a wife could petition on the ground that her husband had, since the celebration of the marriage, been 'guilty of rape, sodomy or bestiality': but this would, presumably, mean convicted of a serious sexual crime and sent down for it. These had already been among the causes which, added to simple adultery, had provided women with grounds for divorce under the 1857 Act.

This does, though, rather preclude the kind of equality before the law that Dawson was positing, since lesbianism was not a crime under English law at the period - its depiction in literature (as in the case of The Well of Loneliness) might be deemed obscene but the actual practice was not illegal. The Amendment he suggested: 'has since the celebration of the marriage been guilty of the practice of homo-sexuality' raised considerable questions and was not accepted.

I do have remaining questions as to whether there are divorces on record in which bestiality or sodomy was the ground invoked, or whether, with the possibility of this coming into court, the husband just did not defend the action or did the stock collusive procedure of hotel room + hired co-respondent. I also wonder whether 'gross indecency' under the Criminal Law Amendment Act 1885 counted or whether a strict definition under the Offences Against the Person Act 1861 applied.

International Women's Day 1923: will this centenary be celebrated?

The Matrimonial Causes Act 1923

I am not sure whether this is generally considered a major leap forward in the advancement of women in England, but the writer Clemence Dane certainly believed it was:

[T]his slip of paper is one of the most important scraps of paper in the history of women, in the history, at any rate, of English women.... [it] defined, so long as England and the English idea shall endure, the status of women: it concedes for the first time her absolute right as a human being to the same law and the same justice that man enjoys. (Clemence Dane, The Woman's Side 1926, pp. 106-7)

I.e. it legally recognised a Single Moral Standard between the sexes, rather than having a much higher bar of marital misconduct in the male for authorising the dissolution of marriage. While it did not go anything like as far in establishing the wider grounds for divorce as some bodies had advocated to the Royal Commission on Marriage and Divorce prior to the Great War, nonetheless it was a significant step in making divorce more available.

It is not entirely easy to ascertain how far women took advantage of this new measure. In spite of the difficulties under the previous law a significant number of divorces had been sought and achieved by women. Under the new law (and possibly even before), there was a social convention that, if a couple wished to divorce, and were not on completely hostile terms, they would come to an arrangment whereby, whatever the rights and wrongs of the situation, the husband would let the wife divorce him by providing evidence of adultery. This would obviously somewhat exaggerate the statistics.

Even if he was the guilty party, the man might spare the reputation of the woman he might, after all, intend to marry once his first union was dissolved, by employing the services of a hired co-respondent, who would provide 'evidence' by going with him to a hotel, where the bill would reveal that he had taken a double room. and the pair would be discovered by the maid who brought the morning tea. The actress and nightclub entrepreneur Elsa Lanchester described in her autobiography, Elsa Lanchester Herself how as a penurious young woman she would undertake this masquerade - no actual sex was involved, they would usually play cards to occupy the time. 

An instance of this 'judicial farce' was recently revealed when the papers of the solicitor who handled Wallis Simpson's 1936 divorce from her husband were opened in 2019. The hotel to which Ernest Simpson took his anonymous companion -  'the woman named' - was very proud of its reputation for discretion about its guests and therefore reluctant to disclose any information to the inquiry agent.

It was not until 1937 that AP Herbert's Matrimonial Causes Act finally extended the grounds beyond adultery, and even then the action remained adversarial and based in concepts of 'guilt' and 'innocence'.

 

 

 

A ‘gross and barbarous operation’: when Baker Brown featured in the Divorce Court

The phrase ‘hidden from history’ is often very loosely invoked, so it is perhaps testimony to the omertà of the British medical profession that the name and activities of Dr Isaac Baker Brown were concealed from view for nearly a century after his death in 1873. One might have anticipated that his views on the deleterious effects of female masturbation and his proposed remedy of clitoridectomy would have featured in the writings of late nineteenth and early twentieth- century sexologists, but even Iwan Bloch, that tireless and uncritical snapper-up of sexual curiosa, fails to mention the episode. Oddly, Havelock Ellis cited the views of one of Brown’s opponents in his account of Auto-erotism in Studies in the Psychology of Sex (1897) without mentioning the context in which the opinion that female masturbation did not cause insanity was expressed.

The topic was first rediscovered by a Professor of Gynaecology, J. B. Fleming, after encountering a passage in the works of Lawson Tait ‘so full of mystery that it stimulated an investigation to be made into the circumstances which surrounded the fall of Baker Brown’. The results of his investigation were published as ‘Clitoridectomy—The disastrous downfall of Isaac Baker Brown, F.R.C.S. (1867).’ Journal of Obstetrics and Gynaecology of the British Empire 67 (1960): 1017–34.

It took some time for these findings to percolate more generally into knowledge of the period – although Alex Comfort had touched on the matter in The Anxiety Makers: Some Curious Preoccupations of the Medical Profession (1967), Ronald Pearsall, in The Worm in the Bud: The World of Victorian Sexuality (1969) made a reference to ‘a doctor named Baker Brown [who] performed a mysterious operation on her, unknown to her husband’ (p.156). It is not quite clear where Pearsall acquired that information, since the case was very extensively reported and the nature of the operation revealed, along with Baker Brown’s negligence over obtaining her husband’s consent.

The Hancock-Peaty case of early 1867, in fact, if perhaps rather beyond what the sensation novel of the period could contain and still be acceptable to the circulating libraries, strikes one as possibly the basis for a rather noir neo-Victorian novel, or possibly TV drama.

It was not, technically, a divorce case. Mr Peaty wanted to stay married to his wife, the former Miss Hancock, but her relatives were claiming that her mental condition meant that she had been incompetent to consent to matrimony. The fact that she had, subsequent to the marriage, inherited £3000, may have had some bearing on this. Previously, one suspects, the family had been happy for their cousin, who had been wishing to marry her for some while, to take on the responsibility, and after all, medical men had expressed the opinion that marriage might be beneficial for her ‘hysteria’ – a term which hardly encompasses the extreme eccentricity manifested by the lady in question.

At some point during the marriage, the wife’s sisters took her to Baker Brown, who performed what Peaty’s counsel referred to as a ‘gross and barbarous operation’, without seeking Mr Peaty’s consent. He subsequently took her to St Luke’s Hospital, in order to preserve her from further surgical interventions. Dr Ellis, of that establishment, considered that ‘the surgical operation known as clitoridectomy would be a most improper one in her case’, while conceding that it was currently a subject of debate and controversy within the profession. The subject was also discussed by other medical witnesses.

The extent to which this controversial, ‘barbaric’ procedure thus obtained newspaper coverage through reportage of courtroom testimony contrasts remarkably with the very discreet way in which the expulsion of Baker Brown from the Obstetrical Society was dealt with by the mainstream press. While the meeting was covered in all its heated detail in professional journals, only brief paragraphs alluded to the event in newspapers intended for the general public. The case is hardly mentioned at all in the historiography generated around Baker Brown from the late twentieth century onwards

A question which arises is whether – allied to the controversy over Baker Brown’s book On the Curability of Certain Forms of Insanity, Epilepsy, Catalepsy, and Hysteria in Females (1866), the argument with the Lunacy Commission conducted in the pages of The Times over his claiming to treat lunatics in an institution not licensed by the Commissioners for that purpose – appearing by repute in a high-profile case in connection with ‘barbarous operations’ repudiated by the medical witnesses, added further weight to the scales leading to his expulsion from the Obstetrical Society.

Lawson Tait’s obituary of Baker Brown, quoted in extenso in the Fleming article, hinted at developing mental problems. A curious report in Lloyd’s Weekly Newspaper, 15 December 1867, would suggest a certain erraticness of behaviour manifesting. In the course of a case in which Baker Brown was suing a music-hall singer for unpaid charges for professional attendance, the defendant claimed that the surgeon had asked him to make introductions to ‘young ladies’ connected with the music-hall.