Our Legal Heritage: Public fascination with royal drama is nothing new

Our Legal Heritage: Public fascination with royal drama is nothing new

Andrew Stevenson

If nothing else is proved, Giuffre v Prince Andrew, Duke of York will at least have shown the public’s fascination with the private lives of royalty, writes Andrew Stevenson.

This is not new. It is 200 years since the death of Queen Caroline. Born in the German principality of Brunswick, Caroline was the wife of King George IV and the last person to be the subject of a peculiar form of Parliamentary measure known as a Bill of Pains and Penalties. The proceedings at times resembled a contentious adultery proof, providing endless scandal for the entertainment of the people through satirical pamphlets, prints and cartoons.

An Act of Pains and Penalties is a similar but milder version of what is known as a Bill of Attainder. The latter tended to be fatal, whereas the former resulted merely in the deprivation of rights. However, these could be substantial. In Caroline’s case, these would have been the status of wife and queen. Both types of bill originate in English law but were deployed by the Parliament of Great Britain and, later, of the United Kingdom; the aftermath of the last Jacobite rebellion saw the Attainder of Earl of Kellie etc Act 1746. Such Acts attainted individuals which, in effect, found them guilty of an offence without there ever having been any trial or any other judicial proceedings. It is easy to see why despots such as Henry VIII favoured them. The last Bill of Attainder was directed at the Irish revolutionary Lord Edward Fitzgerald in 1798, whereby his property was confiscated.

Acts of Attainder are of course a blatant infringement of the separation of powers between courts and legislature. They were often used retrospectively, further tarnishing their legitimacy; Acts of Attainder were used posthumously against alleged traitors and rebels but also rulers such as Richard III and Oliver Cromwell. They are specifically forbidden by the U.S. Constitution and would undoubtedly fall foul of our Human Rights Act. A Bill of Pains and Penalties is equally flawed and oppressive.

The Bill aimed at Caroline of Brunswick led to proceedings known as the Trial of Queen Caroline, although no court was involved. Instead, Parliament itself acted as such. As Prince Regent, George was a ridiculous figure, dissolute and selfish. He amassed huge debt and one need not ask what attracted him to the millionairess Caroline. After their marriage in 1795 his treatment of her was disgraceful. Banished, she took herself to enjoy southern Europe and an Italian named Bartolomeo Pergami. On becoming king in 1820, George wanted rid of his wife. However, divorce in these days was virtually impossible, requiring adultery on the part of the wife followed by an Act of Parliament.

George sought to convince both Lords and Commons to pass an Act dissolving his marriage to Caroline and depriving her of the rank of queen. This necessitated leading evidence relating to Caroline’s supposedly immoral behaviour. The hypocrisy was laughable; George was a notorious philanderer, and already in an unrecognised marriage with Maria Fitzherbert. Furthermore, Caroline was generally popular whereas her husband was regarded as a buffoon. Party politics were involved too. Caroline was a darling of the Whigs whereas the government was Tory.

Caroline was lucky to have as her principal legal advisor the remarkable Henry Brougham. Born in Edinburgh, Brougham was a scientist, philosopher, journalist, advocate, Whig MP, prominent anti-slavery campaigner and a future Lord Chancellor. He still holds the record for the length of a House of Commons speech (a gruelling six hours). Brougham defended Caroline in the House of Lords, threatening to expose George’s affairs and his purported marriage. In respect that the King’s putative wife was a Roman Catholic the constitutional stakes were high. Brougham also exposed the double standards of the consequences of adultery by men and women.

The Bill of Pains and Penalties against Caroline was given its first reading in the House of Lords in 1820. Witnesses were called and questioned. Eventually the Bill was passed, by a narrow margin. However, the government was not confident that it would survive the Commons. The Bill was withdrawn, and never became law. George had Caroline turned away from Westminster Abbey when she tried to attend his coronation in July 1821. Three weeks later she died at the age of 53.

Andrew Stevenson is secretary of the Scottish Law Agents Society. This article first appeared in The Scotsman.

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