TBA Law Blog


Posted by: Russell Fowler on Jul 1, 2015

Journal Issue Date: Jul 2015

Journal Name: July 2015 - Vol. 51, No. 7

Within the confines of the Rules of Professional Conduct, a lawyer’s duty, as a member of “the highest of the professions,”[1] is to “zealously” advance the client’s cause.[2] But what is the lawyer to do when the interest of the client conflicts with the interest of the nation? This question of incompatible roles of attorney and citizen arose in Queen Caroline’s Case (1820),[3] arguably the most famous divorce trial in history and a lawyer’s dream case, for the litigants were none other than the King and Queen of England and the grounds and defense were salacious allegations of adultery.

George IV succeeded to the throne in 1820 upon the death of his father, George III of American Revolution fame. He was very unlike his moral, frugal and popular predecessor. Plump George IV was a self-indulgent, dishonest spendthrift, infamous for gambling, drinking, overeating, womanizing and wild parties with his disreputable friends. As The Times observed, the King was “a hard-drinking, swearing man who at all times would prefer a girl and a bottle to politics and a sermon.”[4] He was detested by most people for his arrogance and extravagance; yet he was witty and known for his stylish, albeit lavish, taste in fashion and furnishings.

While Prince of Wales, George secretly wed a twice-widowed commoner by the name of Maria Fitzherbert, but the union was illegal under British law for two reasons: the King had not approved the marriage and she was Catholic. Nevertheless, the Prince had found an imprisoned clergyman to perform the wedding upon the promise of a bishopric when he inherited the crown. Although apparently loving Fitzherbert, George maintained a string of mistresses, often married women. In 1795, in order to secure payment of his huge debts by Parliament, the Prince agreed to his father’s choice of a suitable wife, his German first cousin whom he had never met: Caroline of Brunswick. As one historian concluded: “Their marriage holds the dubious distinction of being surely the worst match in British history.”[5]

Upon first seeing his fiancée, Prince George gasped and turned to his attendant saying, “I am not well, pray get me a glass of brandy!”[6] Caroline was an obese, loud, foul-mouthed woman. Her face was caked in clownish makeup and she reeked of body odor. The fastidiously clean Prince was repulsed. She also proved to be vain, greedy, spoiled and crude. She reveled in telling vulgar stories, courted publicity, wore an overabundance of long pink feathers, her necklines plunged to her waist, and she rode in a carriage designed to look like a giant seashell. At social events, she painted her cheeks blood red and glued sequins about her face.

The royal couple deeply hated each other from the start. George had to get drunk to get through the ceremony and wedding night. He fell asleep on the bedchamber floor. Although Caroline gave birth nine months later, George disinherited Caroline two days after their daughter was born and the parties soon permanently separated with the Princess settling in Italy. He promised to provide income only if she stayed out of the country, hence keeping her from her child. He did not send her word when their daughter died.

For a time, the Prince hoped to negotiate a divorce, but her financial demands were too great. Upon becoming the King in January of 1820, he delayed the coronation ceremony to once more try for a settlement but to no avail. Then, to his horror, in June she appeared in London with great fanfare demanding her rights as Queen. He responded by pressuring the government into introducing “A Bill to Deprive Her Majesty Caroline Amelia Elizabeth of the Title, Prerogatives, Rights, Privileges, and Pretentions of Queen Consort of this Realm, and to Dissolve the Marriage between his Majesty and the Said Queen.”[7] Every indication was that a majority of the lords favored its passage.

The bill resulted in a bizarre proceeding in the House of Lords that was more akin to a criminal trial than a legislative hearing with the Queen prosecuted for adultery. Looking every bit a victim and garnering wide public support, she sat through the trial dressed in black with a white veil, often falling asleep. This gave rise to the popular rhyme:

Her conduct at present no censure affords,
She sins not with courtiers but sleeps with the Lords.[8]

Queen Caroline was defended by the charismatic Henry Brougham, England’s most famous lawyer of the 19th century, a leading social reformer and opponent of the slave trade, and one of the foremost orators of the age. This would be the greatest case of his long career. In the beginning, he confronted a mound of lurid evidence, dramatically sent by the King in two green velvet bags, indicating that the Queen was guilty of holding obscene parties and had many adulterous liaisons about the Mediterranean with her secretary, a mysterious Italian adventurer named Bartolomeo Bergami, with whom it was alleged she bathed.

This documentary evidence and a parade of Italian witnesses arrived, compliments of a secret commission appointed by the King to gather proof, but through devastating cross-
examinations, Brougham showed that the witnesses had been coached and that their testimony was riddled with hearsay and all too convenient memory lapses. Damaging testimony was often contradicted by prior inconsistent written statements pulled from the King’s green bags. However, it was all sensational gossip for the press.

Over the objections of many who urged Brougham not to do so for the good of the country, the barrister invoked the “right of recrimination.” This defense permitted him to present evidence of George’s many affairs and expose the marriage to Maria Fitzherbert. These revelations could cause a constitutional crisis and perhaps bring down the King and government. It would certainly embarrass the nation. To his critics, Brougham replied:

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.[9]

This statement has been praised by defense lawyers and condemned by others ever since. One critic of this view was the late chief Justice Warren Burger who denounced those “cynics who view a lawyer much as the ‘hired gun’ of the Old West.”[10] Lord Brougham’s detractors seem to insist that he was saying that the lawyer’s only duty is to the client. The highly ethical Brougham was not saying that at all. It is a given that lawyers have ethical obligations and duties to the court, such as not presenting known perjury. And as far as a duty as a citizen, Brougham was serving Britain by maintaining the adversarial system, a system where truth is expected to emerge from the clash of devoted champions. Therefore, the duties to the client and to the country were not in conflict.

Furthermore, it would have been unethical for Brougham to follow any perceived higher duty to the state to the detriment of his client. The inability to provide independent legal advice and representation would be a conflict of interest necessitating withdrawal.[11] Nevertheless, a lawyer may present to the client the full ramifications of a legal strategy, including its impact on others and society.[12]

Accordingly, in the best interest of his client, Brougham presented the evidence of the King’s indiscretions. And Queen Caroline, to the delight of the nation, stated “that the only time she committed adultery was when she went to bed with ‘Mrs. Fitzherbert’s husband.’”[13] The majority favoring the bill shrank to nine, and to the King’s rage, the government tabled it in November and Caroline remained Queen.

The “trial of the century” was over and the nation rejoiced with parades, bonfires and street dances. The House of Lords would never again be used as a place of public prosecution. Brougham would go on to be Lord Chancellor of England and would forever be referred to as “Queen Caroline’s Counsel.”[14] The case also established the Rule in Queen Caroline’s Case: a common law rule requiring the proponent of a prior inconsistent statement to confront the declarant witness with the statement on cross-examination before introducing any extrinsic evidence of the prior statement.[15]

Caroline was not triumphant for long. Her reputation was destroyed and her popularity faded fast, for many supported her only out of political opposition to the King and the government. And, as was said, her fleeting esteem was “less a testament to her virtues than an indictment of his vices.”[16] Yet George IV, who came to be tolerated as a likable rogue, survived the ordeal and reigned in sartorial splendor until his death in 1830.

Despite his defeat in the House of Lords, the King went forward with his magnificent coronation ceremony in July of 1821 in Westminster Abbey. The Queen was locked out. As the crowd hissed and booed her, she desperately ran from door to door trying to gain entry. Each time the doors were slammed shut and locked in her face. As she banged, one guard smugly remarked that she did not have a ticket. That night the disgraced and broken woman overindulged in opium and fell ill. A few weeks later she was dead.

At her request, her remains were returned to Germany. On her coffin was inscribed: “Caroline, the injured Queen of England.”[17]

Notes

  1. Calvin Coolidge, The Autobiography of Calvin Coolidge 84 (1929).
  2. See Tenn. Sup. Ct. R. 8[3], Preamble & Scope, RPC.
  3. 2 Br. & B. 284, 129 Eng. Rep. 976.
  4. Antonia Fraser, ed., The Lives of the King’s & Queens of England 287 (1995).
  5. Davis Soud, Kings & Queens of Great Britain 240 (2013).
  6. Brenda Ralph Lewis, Kings & Queens of England: A Dark History 192 (2005).
  7. Darien A. McWhirter, The Legal 100 341 (1998).
  8. Elizabeth Longford, ed., The Oxford Book of Royal Anecdotes 339 (1989).
  9. Gerald F. Uelmen, Lord Brougham’s Bromide: Good Lawyers as Bad Citizens, 30 Loy. L. Rev. 119, 120 (1996).
  10. In Re Griffiths, 413 U.S. 717, 731 (1973) (Burger, C.J., dissenting).
  11. See Gerald F. Uelmen, “Lord Brougham’s Bromide: Good Lawyers as Bad Citizens,” 30 Loy. L. Rev. 119, 121-22 (1996).
  12. See Tenn. Sup. Ct. R. 8, RPC 2.1.
  13. Longford at 340.
  14. See e.g., McWhirter at 340.
  15. “Queen Caroline’s Case,” 2 Br. & B. 284, 129 Eng. Rep. 976 (1820).
  16. Soud at 240.
  17. Charles Phillips, The Illustrated Encyclopedia of Royal Britain 208-09 (2010).

Russell Fowler RUSSELL FOWLER is associate director of Legal Aid of East Tennessee (LAET) and since 1999 has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has more than 50 publications on law and legal history, including several in this Journal.