https://archives.blog.parliament.uk/2020/06/25/divorcing-a-queen-a-bill-of-pain-and-penalties/

Divorcing a Queen: A Bill of Pains and Penalties

This blog post is the second in a series on The Queen Caroline Affair to mark its bicentenary. In this post, Dr Katie Carpenter explains what a Bill of Pains and Penalties is, and why it was a last resort to achieve a divorce between George IV and Queen Caroline. For an outline of the full story of the Affair, see this introductory blog post and this video.

In the summer of 1820, Caroline of Brunswick, Queen Consort of George IV, was put on trial with a ‘Bill of Pains and Penalties’. It was intended to finally grant George his long sought-after divorce from his hated wife. The decision to introduce a Bill of Pains and Penalties was a complex political, parliamentary and legal process, which was, in R. A. Melikan’s words ‘cumbersome and unfamiliar’ to those who administered it.[1] Why then, was this particular course of action decided upon?

Caroline and George had married in 1795. They separated within a year of marriage and in 1814 she left Britain to travel abroad. Following her departure from Britain, she was alleged to have had an adulterous relationship with Bartolomeo Pergami, a servant in her household. She returned to Britain in 1820 as Queen Consort after hearing the news that George III had died and her estranged husband was now king.

Cartoon of a woman finding a man in bed with another woman.
'The Jersey smuggler detected; - or - good cause for (separation) discontent' 
       by James Gillray, published by Hannah Humphrey
hand-coloured etching, published 24 May 1796  
NPG D13023
Licence: Creative Commons Attribution-NonCommercial-NoDerivs National Portrait Gallery, London

A divorce in the typical manner was unfeasible in this case. The usual route would be for the husband to be granted a degree of separation in the ecclesiastical courts, and a common law verdict of misconduct. In this case, that would mean establishing that Caroline had committed adultery. However, the degree of separation would not be granted by the ecclesiastical courts if the husband had committed the same offence, and it was widely known that George was a philanderer. The ecclesiastical courts would also not grant a degree of separation if the couple were formally separated at the time the alleged adultery took place.[2] Caroline was known to have lived in a private residence from 1797, [3] and there was the additional complication of the widely-known existence of a letter dated April 1796 which George had written to Caroline stating they should not be ‘answerable to each other’.[4]

Even if the allegations about Caroline’s relationship with Pergami were true, this would not constitute treason. As Melikan has explained, the Treason Act of 1351 put the culpability onto the man who ‘violated’ the wife of the King- her fault lied in consenting to his treason. Since Pergami was Italian and the alleged infidelity took place abroad, he could not be found guilty of treason, and thus neither could Caroline by consent.[5] Thus in legal terms, no crime had been committed. Bills of Pains and Penalties were designed to inflict punishments in such cases where any misconduct could not be prosecuted through the usual route.

Printed document with handwritten annotations
Bill of Pains and Penalties, 1820, Parliamentary Archives, HL/PO/JO/10/8/517

Bills of Pains and Penalties could retrospectively criminalise conduct and inflict penalties.[6] In this case, the misconduct was the alleged relationship between Caroline and Pergami and the penalties would be, as outlined in the title of the Bill ‘to deprive Her Majesty Caroline Amelia Elizabeth of the title, prerogatives, rights, privileges, and exemptions of Queen Consort of this realm; and to dissolve the marriage between His Majesty and the said Caroline Amelia Elizabeth’.[7] While the Bill began its passage through the Houses of Parliament as normal, at its second reading in the House of Lords the proceedings took the form of a trial with witnesses called and cross-examined. The trial, which began on 17th August 1820, was centred around establishing if the preamble of the Bill was accurate- that ‘a most unbecoming and degrading Intimacy commenced between Bartolomeo Pergami and Her said Royal Highness’.[8]

The Bill of Pains and Penalties was by no means the preferred option by any of the parties involved. Negotiations between the Queen and the government to maintain an amiable separation had taken place for years, and the need to reach a compromise was all the more pressing after the Queen’s arrival back in Britain. The government was especially keen to avoid a major public scandal.

The king had authorised the government to propose an arrangement with Caroline. In the proposal, Caroline would be granted an annuity of £50,000 ‘provided she will engage not to come into any part of the British dominions, and provided she engages to take some other name or title than that of queen, and not to exercise any of the rights or privileges of queen’. This was unacceptable to Caroline, who insisted ‘that the recognition of her rank and privileges as queen, must be the basis of any Arrangement which can be made’.[9]

Cartoon image of a man on a throne, surrounded by other men while a woman speaks to him.
KING HENRY VIII. Act II, Scene IV the divorce of Queen Caroline, Coloured line engraving by J. L. Marks   
© Parliamentary Art Collection, WOA 5183. www.parliament.uk/art

Subsequently, a series of conferences were arranged to negotiate between the King and Queen. The Duke of Wellington and Lord Castlereagh, on behalf of the king, and Henry Brougham and Thomas Denman for the Queen, met for the first time on 15th June. The negotiations were framed as in the public interest, rather than as a private matter within the Royal Family. The first point agreed upon was ‘That the persons named to frame an arrangement, although representing different interests, should consider themselves, in discharge of this duty, not as opposed to each other, but as acting in concert with a view to frame an arrangement in compliance with the understood wish of parliament, which may avert the necessity of a public inquiry into the information laid before the two Houses.’ [10] Ultimately these negotiations were unsuccessful. A main point of contention for Caroline was her exclusion from the Liturgy- since February of 1820 clergymen had been instructed not to mention the Queen in Sunday prayers for the Royal family. The King and government however, refused to move on this point. To Caroline, to concede on this issue would be akin to a public admission of guilt.

Cartoon image of a man standing in front of the sun holding a green bag.
A total Eclipse, or The Moon passing the Sun's disc, Coloured line engraving by John Fairburn                       
© Parliamentary Art Collection, WOA 481. www.parliament.uk/art

The failure of negotiations ultimately led to the first reading of the Bill of Pains and Penalties on 5th July, and the second reading on 17th August which marked the beginning of the trial.

As it was a Bill and not a divorce in the usual sense, Caroline was denied certain rights.

She was not permitted to speak at the trial, no recrimination evidence against George could be presented, and a list of witnesses was not provided. These objections were encapsulated in a petition sent to the Lords from the City of London:

‘Your petitioners believe that a bill of pains and penalties charging offences alleged to have been committed during a period of six whole years without a specification of time or place especially when the party accused is kept in ignorance of the witnesses who are to support the charges is incompatible with fair and impartial investigation and repugnant to British justice, and feeling’.[11]

The trial ended with the second reading of the Bill, which passed by a small majority. This prompted a further parliamentary debate about the appropriateness of using a bill of this nature to obtain a divorce. For peers with more religious inclinations, marriage was a religious contract which could not and should not be dissolved by parliament. Whig Peers, whilst personally being against the Divorce Clause, voted to keep it in, on the grounds that it would make the Bill less likely to pass its third reading.[12] As Lord Anson put it, ‘he would vote for the Divorce clause, in order to give the greatest possible chance of throwing out ​a bill which imputed guile to an innocent Queen’.[13] The divorce clause remained with a majority of 67 to 62.

Ultimately George did not get the divorce he desired, as the bill was abandoned after only narrowly passing its third reading. Caroline died less than a year later, on 7 August 1821. Despite its ultimate abandonment, the Bill of Pains and Penalties was a landmark case in the history of the Royal family and in the history of divorce.

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[1] R.A. Melikan, ‘Pains and Penalties Procedure: How the House of Lords “Tried” Queen Caroline’, Parliamentary History xx (2001): 328.

[2] Ibid., 314.

[3] E. A. Smith, A Queen on Trial: The Affair of Queen Caroline (Dover: Alan Sutton, 1993), 8.

[4] Parliamentary Archives, HL/PO/JO/10/8/512.

[5] Melikan, ‘Pains and Penalties’, 315.

[6] Melikan, ‘Pains and Penalties’, 315.

[7] Parliamentary Archives, HL/PO/JO/10/8/517.

[8] Parliamentary Archives, HL/PO/JO/10/8/517.

[9] HC Hansard, 19 June 1820.

[10] HC Hansard, 19 June 1820.

[11] Petition from City of London, 19 July 1820, Parliamentary Archive, HL/PO/JO/10/8/521, no. 432.

[12] Flora Fraser, The Unruly Queen: The Life of Queen Caroline (Basingstoke: Macmillan, 1997), 443.

[13] HL Hansard, 8 November 1820.

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