Loveden v. Loveden The lady and the don, 1794–1811
Loveden v. Loveden The lady and the don, 1794–1811
Abstract and Keywords
From a legal point of view, the importance of the case in this chapter is that it set a series of precedents in canon law of sufficient importance to be publicly reported for future citation. These precedents were set by the sentence of Sir William Scott, in which he redefined the degree of proof necessary in an ecclesiastical court to obtain a verdict of separation for adultery. The passage through Parliament of the Loveden divorce bill also settled once and for all that the husband had to comply with the wishes of the Commons over the settlement of adequate maintenance upon his wife before such a bill could be returned to the Lords. Thus in several ways the Loveden divorce litigation made legal history.
Born in 1750, Edward Loveden Townsend inherited his father's fortune in 1767, which enabled him to complete his studies at Winchester and enter Trinity College, Oxford, as a Gentleman Commoner. In 1772 his maternal uncle Edward Loveden died without children, leaving him his whole estate (see Genealogy of the Loveden family). Edward Loveden Townsend consequently took by royal licence his uncle's name and arms, thus becoming Edward Loveden Loveden, and inherited Buscot Park near Faringdon in Berkshire, where the Lovedens had been seated for three centuries. Later, between 1780 and 1783, he rebuilt and enlarged the old family seat in the latest fashion, making it one of the finest houses in the county.
Edward Loveden Loveden was a man of considerable culture, if not refinement. He was an accomplished classical scholar who built up a fine library at Buscot Park, and he took an amateur interest in a variety of intellectual pursuits. He was given an LLD degree by Oxford University and elected a Fellow of the Royal Society and of the Society of Antiquaries. When young ‘he was remarkably handsome’ and ‘delighted in keeping what is called a good house’ at Buscot Park. He sat for several decades in the House of Commons as a member for the ‘country’ interest, voting in a non-party manner and distinguished only for his somewhat naïve insistence that ‘an unblemished moral character was a sine qua non in a minister’. This emphasis of his on moral integrity was to play its part in the closing stages of his third marriage. Wraxall, who knew him from the early 1780s, observed that ‘his figure, manners and address all bespoke a substantial yeoman rather than a person of education and condition, but he did not lack common sense, nor language in which to clothe his ideas’.1
In 1773 he married Margaret Pryse, a Welsh heiress with property worth over £1,000 a year, a life interest in which came to Edward on her death in 1784. She left one surviving son, Pryse Loveden, who changed his name to (p.249)
When she married Edward in 1794 Anne Lintall was 21 and Edward was 43, so that she was younger than her husband by over twenty years. It may well have been her mother who promoted so socially advantageous a marriage, and in 1807–8 Mrs Lintall came on a lengthy year-long visit to her daughter and son-in-law at Buscot Park, not much to the satisfaction of (p.250) Anne, who found her a bore.4 There was also living in the house the crippled daughter of Edward Loveden by his first wife, who by 1809 was about 25 years old, a shadowy figure who played little part in the unfolding drama. This enlarged family resided for eight to nine months of every year in Buscot Park, and spent the rest of the time in rented housing in London.
We know very little about how Edward and his young wife got along. It was said, without much supporting evidence, that ‘she was to her husband a most affectionate and amiable wife; and in the estimation of the whole circle of her friends, a lady of peculiar domestic habits, accomplished manners, and unspotted virtue. At the dissipated fopperies of fashionable men, Mr Loveden had no cause for alarm.’ What we do know is that Edward was often away from home, performing his official duties as MP, first for Abingdon and later for Shaftesbury, as well as fulfilling his considerable obligations as Colonel of the Berkshire Militia during this period of the Napoleonic Wars, when the county militia was permanently under arms as defence against a French invasion. Attendance at the meetings of the numerous societies of which he was a member must also have taken him away a good deal, and, even when he was at Buscot Park, he spent much of the time out coursing and hunting with his friends. Anne had a stillborn child soon after the marriage, and thereafter was childless.5 Judging by a letter of hers, written in 1808, she felt neglected and lonely in the great house, cut off from the world by its gardens, shrubbery, plantations, and park. She found her daily routine profoundly boring. At that time her mornings were usually spent in attending to the needs and wishes of her husband, and her afternoons and evenings in acting as companion to her elderly mother. But Edward was very hospitable, and the tedium was somewhat relieved by the coming and going of a stream of visitors, including many of his old friends, and by a month-long house party every Christmas.6
One of the more frequent guests from 1804 onwards was a young lay Fellow of Merton College, Oxford, Thomas Raymond Barker.7 He was a younger son in a large landed family of eight or nine children, and therefore (p.251) had to make his own way in the world. His father was a close friend of Edward, and lived at Fairford Park, a big house nine miles away just over the border in Gloucestershire. Buscot Park was a convenient stopping place for the night during Thomas's many trips on horseback between Oxford and Fairford, and it also became something of a second home for him after his father had remarried in the early 1800s. Tom Barker, therefore, was ‘received into the family of Mr Loveden in the most familiar state of hospitality and friendship’. Indeed Edward Loveden supported him financially while he was at Oxford.8
In 1805 family, friends, and servants at Buscot first began to notice and gossip about the growing intimacy between the bored and childless Anne and the young bachelor don. The pair took every opportunity to be alone together, and showed overt signs of falling in love. The housekeeper, Hannah Calcutt, later testified that she already suspected that the couple had ‘conceived a criminal passion for each other’. One old family friend took it upon himself to warn Anne of the gossip, merely to have her snap back at him: ‘Since Mr Barker behaves so well to me, I cannot behave otherwise than I do.’ At this stage the old gentleman only suspected ‘partiality’, and so held his peace. But the love-affair continued through 1806 and 1807, during which time the servants observed how Anne and Thomas often walked arm in arm about the grounds of the house, and how in Edward's absence they would remain shut up for long periods together in Anne's upstairs dressing-room, which she used as her private drawing-room and to which gentlemen were not normally admitted. It was also known that, when Thomas was away, he and Anne contrived secretly to exchange letters. The upper groom testified that: ‘I heard my fellow servants remark on the particular behaviour of Mr Barker and Mrs Loveden to each other, which was frequently the subject of conversation among them.’9
During the year 1806 more and more evidence accumulated that the relationship between Thomas and Anne was more than that of a platonic friendship. Whenever Thomas came to visit, Anne ordered the servants to tell visitors that she was not at home, and in July of that year the butler first saw something to suggest that there was physical intimacy between them. Early one morning, when Edward was away presiding over a meeting of the local Agricultural Society, he noticed first Anne and then Thomas go into her private dressing-room before she had even rung the bell to announce she was awake. They stayed there for some forty minutes before coming down for breakfast. He also noticed that they ate sitting close together, with (p.252) the tablecloth hanging down to conceal whatever was happening underneath. But standing as he was behind Anne's chair, he could see that they ‘were almost constantly mixing their legs or feet together in a very peculiar and indecent fashion’.10
In December 1806 Edward Loveden first began to suspect that something was wrong, when one morning he found Barker and Anne in her dressing-room, with the door partly closed. He asked the advice of an old friend, Francis Knight, the Inspector General of Army Hospitals. Edward was ‘very warm and indignant’ about the episode, and expressed a determination to expel Anne and send her back to her mother. Knight expostulated with him, pointing out that he had no evidence that any sexual impropriety had taken place. Edward admitted that this was true, and commented that the situation ‘arose out of mere vanity in the man, who was flirting with every woman he came near’. Knight strongly advised Edward to carry on with the marriage, at least until he had some solid evidence of Anne's adultery. He also took the precaution of talking to Tom Barker, telling him of Edward's suspicions, and advising him ‘to be as sparing of his visits to Buscot Park as possible’. Barker naturally protested his innocence, and so for a while the affair blew over.
Nine months later, however, in September 1807, Knight was urgently summoned by Anne to Buscot Park. When he arrived he found that, during her husband's absence, she and Tom had spent two nights at the Barker family house at Fairford, contrary to Edward's express wishes. Edward was furious with her, but once again Knight told him that, since he had no evidence of any misconduct, there was no justification for a formal separation. So, once again, the marriage was patched up. Edward still believed in his wife's innocence, having made no attempt to find out from the servants what, if anything, they knew.11
The Lovedens spent the first six months of 1807 a rented house in Knightsbridge in London, and the outdoor servants soon noticed that when Anne went out in her carriage she often picked up Tom Barker in the street. One warm and sultry day in May she made the coachman put up the hood of the landau barouche, while they drove around the crowded West End of London for a long time ‘with the sun blinds drawn down’. When they got out, Anne ‘appeared much heated and very red’, with her hair disordered. It was difficult to avoid the conclusion that sexual relations of some kind had taken place in the coach.12 On another occasion the groom saw Barker standing for a long time with his hands on her shoulders, and (p.253) once ‘clap his hand upon her rump’ in an affectionate sexual gesture. All this was suggestive of adultery, but not conclusive, so the servants continued to do nothing but wait and watch.
After the family returned to Buscot Park in the summer of 1807 things became easier for the presumed lovers, since Thomas could stay in the house, even in Edward's absence, without arousing too much suspicion—or so he thought. In November, however, they had a narrow escape from detection. They were together upstairs in Anne's dressing-room when Edward unexpectedly returned. Hearing the front doorbell, Anne rushed out of her room and cried, ‘I am not at home to anybody’, only to be told by Edward's manservant, ‘It's my master.’ She just had time to return to her bedroom, and for Thomas to slip down to the library, while her husband and a friend were still talking in the conservatory.
Other encounters were equally fraught with danger of discovery. One day around Christmas 1807, when all the other guests were out coursing, the cook looked all over the house for Anne to ask her how to cook some fine fish. She searched high and low, but could not find her. Finally Anne emerged from the dining-room, followed shortly after by Tom. The cook noticed that she was ‘very red in the face and extremely confused, and held her riding habit half-way up her legs as if she did not know what she did for the confusion she was in’.13 By now more rumours of an improper liaison began to reach Edward Loveden and his son, Pryse Pryse. The latter reproached Tom Barker with his behaviour, and his father ordered him never to set foot in the house or grounds again.14
Despite these injunctions, during the first half of 1808 the pair were several times seen kissing in the rose garden or in the plantations. One Sunday, while the others were in church, they were almost detected making hurried love in the greenhouse when they thought no one was observing them.15 Each time they managed to get a few minutes together it was a frantic and frightening occasion, and a letter later produced at the trial gives a sense of their predicament. Their sexual passion for each other was now overwhelming, but the dangers surrounding its fulfilment were enormous.
It was frustration at these rare, uncomfortable, brief, and unsatisfactory encounters that led them to risk planning to spend the night together in Anne's bed on 8 August 1808, when Edward was to be away for the night to attend the annual Lord Mayor's feast at Abingdon. Anne made the most careful plans to slip Thomas into the house and up to her bedroom. But (p.254) she had to work alone, since she did not trust her lady's maid to help her. Nor did she realize how much the servants already knew, and how closely they were monitoring all her actions. On 30 July she sent for a carpenter from Faringdon to plane down the top of the billiard-room door ‘to make it go easy’. On 6 August, two days before the event, she asked a servant for some oil. This request immediately aroused the suspicions of the butler, Warren Hastings, who as head of the household felt a particular responsibility. When the footman came to him with the request for oil, he handed it out in a tablespoon, remarking, ‘I know what she wants the oil for. She has some mischief in her head.’ He shared his suspicions with the four other upper servants, the elderly housekeeper, Mrs Calcutt, Anne's personal maid, Elizabeth Haynes, the personal attendant of the crippled Miss Loveden, Anne Strange, and Edward's manservant, Thomas Hooper. He also inspected the locks and hinges in the house and found that all the connecting doors between the conservatory downstairs and Anne's bedroom upstairs had been oiled, presumably while the servants were at dinner. The next day, the 7th, Anne asked for more oil, and on later inspection Hastings found that two more doors had been oiled. At breakfast, Anne also made the odd request for a whole wax candle, explaining vaguely, ‘I want to try an experiment.’
Now thoroughly suspicious, Hastings and the manservant Hooper stayed on watch all night on the 6th and 7th, but observed nothing. On the 8th Edward duly set off to spend the night near Abingdon, and Anne's maid reported that her mistress had ‘made rather unusual preparations in her bedroom by getting lavender, hyacinth roots, roses and other flowers which Mr Barker was very fond of’. Hastings concluded that this was to be the night on which Tom Barker would be smuggled into the house, and he, the housekeeper, and Anne's personal maid began their vigil in his bedroom at six in the evening. At nine o'clock they heard Anne go into the billiard-room and then come back. When they investigated, they found that she had freed the latch of the door leading from the conservatory into the house. At eleven Anne rang the bell for the supper things to be taken away, and went up to her bedroom.
Hastings kept watch in his pantry to observe Tom Barker enter the house, while the two women stood or sat on the stairs above, where they could see down into the passage leading to Anne's bedroom. There was a full moon and it was a clear night, so that visibility was good. At half-past eleven Anne came out of her bedroom into the stairway. In their eagerness the two women servants leaned over the banister rail above and were seen by Anne, who asked them what they were doing. They said they thought they had seen a man on the staircase—having mistaken Anne for a man (p.255) —and went down to tell Hastings. The latter locked the outside door to prevent Thomas slipping in, and went up to search the house. He passed Anne on the stairs, ‘in her bed-gown and night-cap, and leaning with her face in her hands over the baluster by her sitting-room’.
The search revealed no trace of an intruder, but Hastings did observe the candle half-burned in a room, which he suspected had been used as a signal to Thomas outside. He then told the women servants to lock the door behind him while he searched outside the house. He walked around, found nothing, and returned to report to Anne that ‘it was a false alarm. There's no one here, ma'am.’ Having told the women servants to lock the door behind him, he quietly let himself out of the house again, and tiptoed along the colonnade so that Anne could not hear him go. He took up a position under some elm trees thirty yards from the north front of the house, and waited. Forty-five minutes went by and he saw nothing, although he noticed Anne looking out from a window. After another forty-five minutes he heard the sound of someone jumping down from the roof of the outside privy, having already climbed over the paling into the park. He took a loaded pistol from his pocket and confronted the intruder, who turned out to be Tom Barker. Hastings said, ‘You are the man I am in search of,’ and angrily ordered him off the premises. Thomas asked him not to speak so loudly, and declared that he merely wanted to talk to Mrs Loveden. Realizing that other servants might be watching, he asked to speak to Hastings privately.
The two men went together under the trees, where they spent three-quarters of an hour in conversation, for which we only have Hastings's uncorroborated testimony. He began by reproaching Tom Barker for his ingratitude to Mr Loveden ‘in coming to disturb his peace of mind and the peace of his family, who has always treated you in the most friendly manner’. He warned him that his relations with Mrs Loveden were well known, both inside the house and in the neighbourhood. They had, for instance, been seen kissing in the plantation by the underkeeper, who had spread the story all over the countryside, so much so that Miller the horse-dealer had mentioned it in the public market at Fairford. He reminded Thomas that both Edward Loveden and his own father had ordered him not to visit Buscot Park any more and that Pryse Pryse had reproached him for his ill-conduct, because of the persistent rumours of his liaison with Anne. He told Tom Barker that, so far as he knew, neither Edward Loveden nor Anne's mother, Mrs Lintall, knew the full story about the affair, but that behaviour such as this, attempting to enter the house at night in Edward's absence, would immediately become public knowledge and create a major scandal. He accused Thomas of planning to get into (p.256) Anne's bedroom that night, and pointed out that, if the female servants had not spoilt the plan, he would have been caught red-handed.
Thomas admitted that this was all true, but begged Hastings not to expose him. Hastings finally said that he was willing to give him one more chance. If he would promise never to visit the house again, he would refrain this time from informing anybody, including his master, Edward Loveden, of this attempt at adultery with Anne. Tom gave his promise, they shook hands on it, and went their separate ways. Hastings kept his word and said nothing about his finding Tom in the park, not even to his fellow servants on watch inside the house.
Hastings had not had much sleep for three nights and was still in bed at nine the next morning when Anne summoned him to her dressing-room. When he arrived, she came close, holding out her hands to him and crying: ‘Oh! Hastings, what a miserable night I have passed. I am a ruined woman forever.’ Hastings commented that her behaviour was most imprudent and that he knew all about her aborted plans for the night. She admitted them, but promised never to see Tom again or correspond with him in any way, if Hastings would conceal his knowledge from her husband. He then told her of his conversation with Tom and of his promise, and made her also promise never to see him again. Anne was overcome with joy, and called him ‘the greatest friend I ever had’. Later she pressed into his hand a five-guinea note which he admitted that he accepted, although under protest.16
Alas, however, for promises, and perhaps also for good intentions. After this traumatic crisis in August 1808, Anne was again in secret communication with Tom at least by November and possibly before. On 29 November, as James Hooper, Edward's manservant, was taking the locked bag of out-letters from Buscot Park to the Faringdon Post Office, he was warned by Anne's maid that ‘she knew there were letters therein for Tom Barker’, for Anne had been seen writing for several hours while her husband was out riding a few days before. Moreover, Anne had insisted that the bag be locked and removed before Edward came home. Hooper, therefore, bent open the leather pouch, shook out the letters, found an envelope addressed to Tom, and removed it.17
That night in the privacy of his bedroom Hooper opened the envelope to find that it contained three letters. One was an old one from Tom dating back to May 1804, probably the first he ever wrote to her; another was a passionate love-letter from her, written three days before on 26 November 1808, describing her dreary life with her unloved husband and her boring (p.257) old mother, and lamenting the obstacles to their meeting during the coming winter.
It was the letter of a woman head over heels in love, and consumed by sexual and romantic passion. She described how she kept in a secret place a miniature portrait of him (the work of James Green in London) along with the most recent of his letters. Every morning and every evening, ‘I repair to my little Treasury, where I indulge myself with contemplating your image, caressing it, and telling you how anxiously I covet your presence.’ Anne rhapsodized about the safe receipt of his last letter: ‘Oh, beloved creature! How shall I describe the various emotions of joy which seized my every nerve, and filled me with the most extravagant rapture. Never, never, sure, was mortal half so happy, half so gratified, or half so thankful for such a tribute. It was a masterpiece of perfection.’ Despite the danger of discovery, she wrote that she was determined to keep the letter. She went on to say that ‘what may at present be essential for you to know…the other envelope will speak for itself. I doubt not your caution and prudence in making use of it.’
This third letter, in a sealed envelope and folded very small, was the final conclusive evidence of adultery which the servants had been seeking for years. In this extraordinary memorandum Anne provided Thomas, at his request, with full details of her projected menstrual cycle over the coming winter months, so that he would know the days when it was not worth the risk of trying to arrange a meeting. She had been keeping careful note of the dates in previous months and promised, ‘if you wish, I will even for a greater security regularly mark as you direct the period of its appearance, from whence you can always compute without difficulty’. She recommended avoidance of intercourse, and therefore of attempts to arrange a meeting, for six days afterwards. Anne found this disclosure extremely embarrassing and made it only because of the acute danger of discovery every time they met. She concluded: ‘Now, love, you cannot but consider me most indulgent. I flatter myself too, most explicit, but I am so much ashamed of what I have said that I shall instantly seal it up and expect that you as readily and immediately commit it to the flames.’18 Hooper later stated that he did not immediately turn this highly incriminating evidence over to his master, Edward, but kept it for three-and-a-half months, until March 1809. But he took good care not to destroy it.
As 1808 drew to a close, Anne was in despair at ever getting together with Tom. ‘An attempt would be madness,’ she lamented. As the leaves fell, so cover disappeared in the grounds, while workmen were everywhere, (p.258) cutting trees and clearing shrubbery. She concluded gloomily ‘in daytime I see no possibility of escaping detection, and weather and ways are so bad and uncertain that I know not how to invite you to nightly attempts’.19
The correspondence between the two lovers continued throughout the winter, and by March 1809 Anne had decided on the reckless step of again attempting to hide Thomas in the house for a night or two. She chose a week when her husband was away on a visit to his son, Pryse, a trip on which she had declined to accompany him. He left on 8 March and the next day Anne aroused the suspicions of the servants by dressing in ‘much gayer clothes than she had been accustomed to wear at home without she expected company’. She told her maid: ‘I will bedizen myself when I go to dress.’ The servants concluded that she was unlikely to get herself up like that just to have dinner with her lame stepdaughter. Next day, 10 March, she had the bedroom ‘put in nice order’.
All these preparations aroused the suspicions of her maid, Elizabeth Haynes, who warned the housekeeper, Mrs Calcutt and the butler, Warren Hastings, who decided once more to set a trap for Tom Barker. Hastings took it as a personal affront that Barker should be planning to break his solemn promise of the previous August, and was determined this time to catch him. He kept watch from his pantry that evening from six till nine, when he saw Anne come down the vestibule stairs and open a window in the hall. He heard, but did not see, someone jump in through the window and walk through the breakfast-room into what sounded like the study. As he usually did when he went away, Edward Loveden had locked his study, taking the key with him. In order to check his suspicions, Hastings went into his own bedroom, which was in the basement directly underneath the study, and stood on a table the better to hear. There was the sound of someone (presumably Anne) going out of the room and locking the door, and also of someone (presumably Tom) moving about inside it. Hastings immediately went up to the other door to the study and tried to look through the keyhole, only to find it plugged with paper, and the gap below the door blocked by a rug placed against it, so that no light whatever was visible.
Hastings went back downstairs to the housekeeper's room and told his allies, Mrs Calcutt, Elizabeth Haynes, and Anne Strange, ‘I have got Mr Barker safe in my master's study’. But at first they would not believe him, since everyone in the house knew that only Edward Loveden had a key to his study. The idea that Anne had taken the trouble, and been clever enough, to have had a copy of the key made for the purpose of hiding Tom (p.259) was more than they could credit. Hastings also told them that, as often as he opened the mahogany door from the hall to the stairs, someone shut it again, thus preventing anyone from seeing Tom slip out of the study and up the stairs into Anne's bedroom. By 10 p.m., when Anne rang her bell for supper, the mahogany door was open once more and there was no sound to be heard coming from the study, so Hastings concluded that Barker had already moved into Anne's bedroom. At 11 p.m. Anne rang for her maid and went to bed. Hastings sat up on watch till 2 a.m., heard and saw nothing, and finally went to bed.
When Anne rang the bell for her maid the next morning, the latter noticed that one half of the bed was extremely tumbled, but that the feather mattress showed no sign of the usual two depressions made by two bodies instead of one. After Anne had gone down to breakfast, the maid and housekeeper also carefully inspected the sheets, but found no stains upon them, or on Anne's bed-shift, although both were extraordinarily crumpled.20 They were convinced that the ‘tumbling’ of the bedclothes and shift indicated sexual intercourse, but admitted that there were no tell-tale signs of two depressions on the mattress and stains on the sheets.
At quarter to nine the next morning they reported all this to Hastings, who concluded that Tom Barker must still be somewhere in the house. Hastings went to his bedroom to listen, and heard someone moving about overhead in the study. Since it was a cold morning, he went outside to see if there was smoke coming from the study chimney, which indeed there was. Anne Strange further reported that she had seen Anne carrying breakfast into the study. Hastings and the other servants were at last absolutely certain of their facts, and therefore felt free to take drastic action to expose Tom Barker.
Hastings laid his plans carefully. He posted one male servant outside to watch the north front of the house, and another to watch the stairs. Meeting Anne outside the study, the following exchange took place:
Ma'am, I should be glad to have the key of my master's study.
What, the key to your master's study?
Yes, Ma'am, the key.
I have not got the key. You know Mr Loveden never leaves the key.
Ma'am, you must have got the key.
I have no key at all. It is surprising conduct in you, Hastings. What can you think?
Ma'am, there is a fire in the room and a person in the room too.
There is no fire; there is no person; I have no key.
Ma'am, you have the key.
I have no key.
Here is the very man Thomas Barker, who shook me by the right hand and gave me his word of honour last August that he would never come here again, now in this room, and I heard you let him in through the hall window at five past nine last night, and if you refuse to give me the key I will force the door open with my shoulders.
At this point, Mrs Calcutt appeared, and suggested that, instead of breaking down the door, they should get the carpenters at work on the house to put up their ladder outside the study, pull down the upper sash window, and open the shutter. Hastings went outside, where he met the under-butler, Robert Major, to whom he said: ‘That rascal Barker is in the house and we will have him out.’ He then ordered the two carpenters to do the work, despite repeated orders from Anne that he should stop. They pulled down the top window and broke open the shutter, but could not see fully into the room since the sash window was too high. So Robert Major got a stool, put it on the window-sill, stood on it to peer in, and saw Thomas pressed flat against the outside wall, trying to hide himself. He reported: ‘Here he is sure enough, and all ready for starting’—meaning that he was in his riding boots and with his horsewhip in his hand. The game was up.
Soon after the discovery, Hastings went into the breakfast-room to remove the things on the table, followed by Anne in floods of tears. ‘You have ruined me forever,’ she sobbed; ‘Oh! Hastings, how could you have employed those men, as by your employing them it will be known all over the country.’ Turning to sarcasm, she continued: ‘I am much obliged to you for your officiousness. You have undone me for the rest of my life.’ To this he replied coldly: ‘You should have delivered up the key, then.’ Fifteen minutes later he was summoned to the library, where he found Anne crying on the sofa and Tom Barker with her. The latter received him truculently, exclaiming: ‘A pretty piece of work you have been making, and do you know the consequences of it?’ Hastings retorted by reminding him of his broken promise of last August. Tom tried to argue that he had only just been let into the house that morning, but Hastings brushed all that aside. Tom said defiantly: ‘Well, you can make nothing of this.’ ‘What?’, replied Hastings indignantly, ‘not when you have been caught in the very sanctuary of my master's house?’—meaning the locked study full of private papers.
At this point Tom gave in, and asked the butler what he proposed to do. Hastings answered that he and the housekeeper had already sent a letter to their master telling him the whole story, and urged Barker to leave the (p.261) house immediately. But Barker still had some fight in him and replied: ‘I did not come into the house like a thief, and I will not go out like one.’ But at three in the afternoon he finally went away, while Anne continued in floods of tears. The next day she asked Hastings not to mention the episode of the previous August, but he explained that it was impossible to conceal it, since it was now known to several of the servants.21
Meanwhile at Woodstock, where Edward Loveden was staying with his son, Pryse Pryse, his manservant Hooper received the letter from Mrs Calcutt telling all. He took the letter, along with the packet of letters he had been keeping ever since he had intercepted them in November, and handed them all over to Pryse, so that he could break the news to his father. His explanation of why he had not passed on the letters sooner was the lame one that, whenever the opportunity had arisen, Pryse had been out hunting, and he had not had a chance to talk to him privately. Next day Pryse told his father, who, he claimed, went into shock and burst into tears. Finally Edward Loveden pulled himself together, sent for his attorney, and instructed Pryse to go straight to Buscot Park and demand that Anne hand over all the keys of the house. Anne meekly surrendered three or four, and when asked for her duplicate key to the study reluctantly pulled open a drawer and handed it over to her stepson. The next day, 13 March, Pryse rode over once again to Buscot Park, and, in the presence of his crippled sister Jane, ordered his stepmother to leave the house forever, which she did two days later.22 The stately eighteenth-century formalities for the expulsion of an adulterous wife from the marital home were thus scrupulously complied with.
The various steps taken by the injured husband in such cases were a civil suit against the wife's lover in King's Bench for damages for crim. con.; a suit in the London Consistory Court for separation from his wife, without alimony, on grounds of adultery; and finally a bill in the House of Lords for full divorce. Despite the very strong circumstantial evidence, no one had actually seen Barker and Anne Loveden committing adultery, so Anne, who had nothing to lose since her husband had to pay most of her legal costs, fought every step of the way.
In her husband's crim. con. suit against Thomas Barker, claiming damages of £10,000, the latter's lawyer, Sergeant Best, argued that the jury should acquit him of charges of adultery. This was a plausible case to argue, since the really incriminating evidence had to be withheld on technical grounds. (p.262) Edward Loveden was unable to introduce into a common-law court his wife's letter about her menstrual cycle, since it had not been delivered to the intended recipient, whoever he was.23 Even so the evidence against Tom Barker was still strong.
The prosecuting counsel pressed for a verdict of guilty and for very large damages to compensate Edward Loveden for the gross betrayal of his friendship and hospitality. If all that was alleged in the preface of the pamphlet about the trial was true, Tom Barker had certainly behaved abominably. It was claimed that Edward Loveden had acted like a father to the young Merton Fellow, paying personally for the furniture for his room at Oxford, and for his clothes. He had also lent him ‘a very valuable horse’, which Tom Barker only returned under threat of a lawsuit. In addition to these gifts, there were unknown sums lavished on Tom Barker by Anne Loveden, to discover and recover which Edward Loveden later launched a somewhat futile suit in Chancery, which Barker did his best to delay.24
But these were minor issues. The key question which faced the jury was whether or not the evidence laid before them about adultery was sufficient to justify a verdict of guilty. The defence lawyer insisted that, although Tom Barker might have been guilty of an attempt at adultery at Buscot Park on 10–11 March, there was no evidence that he had succeeded. He argued that, according to the common law, ‘it is incumbent upon the plaintiff to make out the fact of a carnal connection having taken place, by evidence that can leave no doubt in your mind that it has taken place’. He admitted that this charge might be made out by presumptive evidence. ‘But what is presumptive evidence? It is that which arises out from circumstances instead of ocular demonstration. But they must be circumstances which shew the existence of the fact to be proved as clearly, and satisfactorily, as if it had come under the eye of the witness.’
Given this premiss, the defence lawyer made much of the fact that the two women who inspected the bed could not find either of the two clear signs of sexual activity: the impression of two bodies on the soft feather bed, or stains on the sheets and on the lady's shift. The plaintiff's lawyer argued that, in view of the publicity given to these incriminating pieces of evidence in recent trials for crim. con., it would be only too easy and natural for clever adulterers to take the trouble to cover their tracks.
Even so, the defence lawyer hardly expected to win, and therefore spent a good deal of time producing reasons why, if the verdict were guilty, the damages should be moderate in size in view of Tom Barker's lack of an estate and his inevitable expulsion from his Fellowship. He also observed (p.263) that Edward Loveden was ‘in an advanced period of life’, insinuating that he was perhaps no longer capable of giving his third young wife the sexual satisfaction to which she was entitled. He also made the point that the court had been offered ‘very slight evidence of the degree of felicity in which these parties lived together’.25
In his summing up to the jury, Lord Ellenborough ran through eight different episodes over a period of some three years, which the prosecution had suggested might be regarded as evidence that adultery had taken place. Most of these he dismissed out of hand, including the hot day in May 1808 when Anne Loveden and Tom Barker had shut themselves up in a coach with the blinds drawn, all the way from Bond Street to Fleet Street to Hyde Park Corner, where Anne emerged red-faced and with her hair in disarray. He could not believe that ‘the last act of carnality then took place there, for that would be outraging all sense of decency’. He could only conceive of ‘very great and very indecent personal familiarity’ possibly taking place in a coach. This flat rejection as unthinkable of a happening which appears to have been commonplace at the time is in striking contrast to the definition of proof of adultery offered by his predecessor as Lord Chief Justice. In 1796 Lord Kenyon had instructed a jury that, ‘where the parties have been traced to a place of privacy and closeted for a given time…the parties must have so retired for the indulgence of an illicit passion’.26
Lord Ellenborough found the greenhouse episode suggestive but inconclusive. As for the discovery of Tom Barker in the study at Buscot Park on 11 March 1809, he suggested that even that evidence was not entirely convincing. He interpreted Anne's bitter remark to the butler Hastings: ‘I thank you for that, Hastings, and you have ruined me,’ either as an admission of guilt of adultery, or as pointing out that the publicity given to the episode would destroy her reputation regardless of her criminality. He reminded the jury that the evidence of the state of the bed was ambiguous, lacking as it did the impression of two bodies or stains on the sheets. He took the line that Tom Barker had certainly intended to sleep that night with Anne but that it was uncertain whether or not he actually did so. He ended by recommending that, if the jury found Tom Barker guilty, as he hinted that he expected they would, they should give ‘such temperate but adequate compensation as the party complaining has a right to ask at your hands’.
The special jury consisted of four esquires living at smart addresses in the West End of London, and eight substantial craftsmen and retailers (p.264) (a coal merchant, two victuallers, a stationer, a carpenter, a plumber, a broker, and one ‘gentleman’). They deliberated for the unusually long time of forty minutes, before bringing in a verdict of not guilty.27
The acquittal by the jury took everyone by surprise, including Lord Justice Ellenborough and the defence lawyers, and even Tom Barker himself, who had already resigned his Fellowship in order to anticipate expulsion from the College. One reason behind the acquittal was the abnormally high standards of proof which had been set by Lord Ellenborough. Another possible explanation is that the jury may have interpreted the absence of Edward on a visit to his son as a trap deliberately laid to catch her. After all, the liaison had been going on for over four years, and most of the indoor and outdoor servants and many of the neighbours and even relatives had long known about it.
Stunned by the verdict, the prosecution moved for a retrial, citing previous cases where similar circumstantial evidence had been sufficient to entitle the plaintiff to ‘exemplary damages’. This motion was rejected by Lord Ellenborough and the other judges on two grounds. The first was that, although they themselves might disagree with the verdict, as it appears that they did, it was a question of fact not law, and so a matter to be determined solely by the jury. And, secondly, it was not so blatantly in contradiction with the evidence as to justify overturning it.28
In the London Consistory Court Edward Loveden fared much better. Anne freely admitted ‘an improper attachment’ and ‘indelicate acts’ such as walking arm in arm and kissing, but still firmly denied adultery. She also claimed that she had been ‘living among spies, and that they all seem to have acted with unfavourably conceived impressions’. By thus challenging the evidence, most of which was highly circumstantial but not conclusive, she turned what should have been a routine trial into a lengthy legal battle which became a test case for the rules of evidence in the ecclesiastical courts. It forced the judge of the London Consistory Court, Sir William Scott, to restate at length the standards of proof which were customarily required in canon law in cases of adultery.29
To clear the ground he restated the traditional view that a common-law verdict carried little weight in an ecclesiastical court. The defeat of Mr Loveden's suit in King's Bench ‘is a matter entirely out of the view of this Court’. He described it as ‘not direct proof, but merely a circumstance’. This scepticism about a jury verdict in a crim. con. case was based on the (p.265) inability of the wife to defend herself. As Sir William Scott put it, ‘how can that be evidence against the party, which has passed in a suit to which she was not party?’ Secondly, the jury might have knowledge which had not been presented to the ecclesiastical court.30 In fact, of course, it was professional jealousy between the practitioners of two different systems of law which lay behind this attitude of contempt for a verdict at common law.
Sir William Scott also argued that Lord Ellenborough had set the standards of proof too high: ‘it is a fundamental rule that it is not necessary to prove the direct fact of adultery; because if it were otherwise there is not one case in a hundred in which that proof would be attainable: it is very rarely indeed that the parties are surprised in the direct act of adultery.’ In canon law, all that was demanded for a separation from bed and board on grounds of adultery was ‘that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion’ that adultery had taken place.31
Sir William Scott then went out of his way to stress that this was not a case of entrapment. What
occurred in this case, though certainly in an uncommon degree…happens in many others—that the husband is the last person who entertains a suspicion of his misfortune. There is, I think, no reason whatever to presume any kind of connivance on his part or any other forbearance than what arose from the most profound ignorance of the dishonour that was being practised on him.32
So much for the lurking suspicion that Edward Loveden may have either deliberately turned a blind eye on his wife's adultery or set a trap for her. It was an argument somewhat undermined by the later evidence of Mr Knight before the Court of Arches that Edward Loveden had suspected Anne's fidelity for years, and had actually banned Tom from the house.
Turning to the evidence, Sir William Scott laid great stress not only on the final episode when Barker was discovered in the house, but also on Anne's letter about her menstrual cycle and the times when intercourse should be avoided—a letter which he would not allow to be read out in open court in the interests of public decency. He observed, reasonably enough, that the letter was the work of ‘a woman who had made a surrender of her body, her mind, and everything which belonged to either the one or the other, to the person to whom this letter was addressed’. Sir William therefore declared himself satisfied that an adulterous connection (p.266) had subsisted between Anne Loveden and Tom Barker for a very considerable length of time, and that ‘Mr Loveden is most unquestionably entitled to the sentence which he prays, of separation’.33
Despite this ringing condemnation in the Consistory Court, Anne appealed the sentence to the Court of Arches, but wisely dropped her suit there before it came to sentence. She had nothing to lose by thus prolonging the case, since, as long as it was not finally settled, her husband was obliged to continue paying her the £800-a-year temporary alimony assigned to her by the Court—a large amount, but one which was equal to the jointure assured her by Edward in their marriage contract. In addition, of course, Edward had to pay for all her taxed legal costs.34
Such was the animosity between the couple that the continued payment of this alimony during the trial was also the subject of litigation, which again became a test case. The sentence in the Consistory Court was issued on the last day of Trinity Term, and Anne's appeal to the Court of Arches was entered on the first day of the following Michaelmas Term, three months later. She asked for the alimony to be renewed from the date of the sentence, he from the date of the appeal. The judge declared that, since she had appealed on the first possible day, she should not be left without alimony for three months merely because the court was not in session.35
The legal set-back in King's Bench was thus no hindrance to a favourable verdict for Edward Loveden in the ecclesiastical courts. Nor did it do anything to hinder his subsequent bill in the House of Lords in 1811, for full divorce from Anne on grounds of adultery, with permission to remarry. But in this respect the bill made legal history, since it was the only occasion for many decades in which the House of Lords was prepared to pass a divorce bill with the support of a sentence by an ecclesiastical court, but against the verdict of a common-law jury.36
But if, after the passage of the bill through the House of Lords, Edward Loveden was counting on total victory, he was in for a rude surprise. The House of Commons, which always took special care to look after the right of a divorced wife for adequate maintenance, awarded Anne an allowance after divorce of £400 a year, the exact income Edward enjoyed from her marriage portion. Enraged at this generosity, Edward asked the House of Lords to drop the bill altogether, rather than pass it in this amended form. He claimed that his wife was now openly living with her lover, Thomas Barker. He argued that the stipulated allowance ‘has a manifest tendency (p.267) to loosen the bonds of conjugal fidelity, by holding out a premium to the wife for the commission of adultery’, and therefore would ‘endanger the best and dearest interests of society’. He described himself as ‘alarmed at the pernicious consequences which might flow from such an example in domestic life, and greatly deprecating the idea that any legislative measure would in the remotest degree cherish a relaxation of public morals’. For these reasons of high principle, for which he was well known, he asked the Lords not to pass the amended bill, a request with which they complied. As a result, the bill made legal history, since, in order to avoid such a fiasco in future, Parliamentary procedure was altered. From now on a husband had to have agreed to provide satisfactorily for the maintenance of his wife before his bill could be introduced.37
Edward Loveden's real motives were probably not as exclusively high-minded as he claimed. He now had little to lose and much to gain by having the amended bill defeated. At his age he presumably had no intention of marrying a fourth time, but by dropping the bill he deprived Anne not only of a substantial maintenance, but also of the freedom to marry her lover, Tom Barker. Instead of having to pay her the £400 a year allowed by the House of Commons, Edward, by abandoning the bill, would now be obliged as long as he lived to pay Anne only her pin-money under the marriage contract, which was probably no more than £100 a year. He had thus almost ruined her financially; he had publicly disgraced her in the eyes of society, especially by the revelation of her letter to her lover describing in detail her menstrual cycle; and he had driven her from his house into rented lodgings in London. On the other hand, Anne was certainly now free to live openly with Tom Barker as his mistress, and she may well have had some private family income of her own after the death of her mother.
As for Tom Barker, he prudently resigned his Fellowship at Merton in order to anticipate inevitable deprivation under the College Statutes, and his academic career was ruined.38 Moreover, his behaviour in deceiving his father's friend and his personal patron, and in breaking his word of honour to the butler, Warren Hastings, was enough to blast his reputation as a gentleman, while it must still further have exacerbated his already strained relations with his father and family. It seems unlikely that the latter would have rallied to his rescue after this betrayal of the (p.268) long-standing family friendship with Edward Loveden. It is not known how long Tom Barker and Anne Loveden continued to live together. Nor is it known whether she married him after the death of her husband, at which time she would have come into her jointure of £800 a year.
As the injured husband, Edward Loveden had been privately wounded and publicly ridiculed by having the world believe that he had been cuckolded in his own bed by a man half his age. His honour was also impugned by the perverse verdict of the King's Bench jury, which laid him open to suspicion of entrapment. Although there is no sign that he was anything more than the rather indifferent and neglectful elderly husband of a young and lonely wife, he presumably also suffered from the loss of his wife's company and the break-up of his household routine.
In human terms, this is a somewhat banal story of a bored, neglected, and childless young wife falling in love with a lively and attractive young man, who had free access to the house. What marks it as peculiar to the first decade of the nineteenth century is the artificial atmosphere of high romanticism with which Anne enveloped what was at bottom an overwhelming sexual passion. To satisfy that passion she and her lover took absurd risks, the result of which was the ruin of them both.
The most interesting feature of this story is the critical role played by the servants, first in concealing from their master their suspicions about the adultery for four long years; then in watching for evidence with such intense curiosity; and finally in revealing all they knew or suspected, thereby precipitating the family crisis. By the early nineteenth century, servants were neither as submissive to their superiors, nor as protective of adulterous wives, as they had once been. Their loyalty now lay primarily in the cash-nexus that bound them to their paymaster, the head of the household. Moreover, the rise of the ideal of family domesticity and the moral force of evangelical religion caused adultery, especially female adultery, to be regarded with greater public disapproval in lower-middle-class circles than it had been in earlier times. As a result, not even a lady's personal maid was now as willing as she had been in the past actively to promote and protect an adulterous connection by her mistress. Unlike the great majority of eighteenth-century adulteresses in high society, Anne was all alone, unable to rely on the loyalty even of her lady's maid. As a result, her two attempts to smuggle Tom Barker into her bedroom were inevitably discovered.
On the one hand, the strong sense of shame felt by the servants, and their desire somehow to hold the family together, induced them to conceal what they knew or strongly suspected for the exceptionally long period of four years. On the other hand, they clearly had strong moral feelings, not (p.269) only about wifely adultery, but also about the betrayal of the hospitality and friendship offered to Tom Barker by Edward Loveden, thanks to which he for a long time enjoyed free access to the house whenever he wanted. Even when the butler caught Tom red-handed, as he did on the night of 8 August 1808, he merely made Tom promise upon his word of honour that he would come to the house no more. Like his upper-class betters, he felt that the preferable course of action was to stop the affair and hush the matter up, rather than to destroy the marriage and expose the family's dirty linen in open court; and he was genuinely and rightly angry with both Anne and Tom when he discovered that they had broken their word to him and had continued to plot a second night of love together. Tom Barker also violated the eighteenth-century code of domestic honour in two ways which shocked the upper servants. The first was by allegedly committing adultery in the marital bed, and the second was by gaining entry to the locked study where the master of the house kept all his private papers.
From a legal point of view, the importance of this case is that it set a series of precedents in canon law of sufficient importance to be publicly reported for future citation. These precedents were set by the sentence of Sir William Scott, in which he redefined the degree of proof necessary in an ecclesiastical court to obtain a verdict of separation for adultery. He also reinforced the standard doctine that a jury verdict of acquittal in a crim. con. case was irrelevant as evidence for the defence in a separation suit in an ecclesiastical court. Nor in this exceptional case did it block divorce proceedings in Parliament. The passage through Parliament of the Loveden divorce bill also settled once and for all that the husband had to comply with the wishes of the Commons over the settlement of adequate maintenance upon his wife before such a bill could be returned to the Lords.39 Thus in several ways the Loveden divorce litigation made legal history.
(1) L. B. Namier and J. Brooke, History of Parliament, The House of Commons, 1754–1790 (London, 1964), s.n. Loveden; Gent's Mag. 1 (1822), 88–9; N. W. Wraxall, Memoirs, 1772–84, ed. H. B. Wheatley (London, 1884), v. 251.
(2) Namier and Brooke, s.n. Loveden; Gent's Mag. 1 (1822), 88–9; The Four Visitations of Berkshire, 1532, 1566, 1623, 1666, Harleian Soc., 56 (1908), i. 242; 57 (1908), ii. 172; N. Pevsner, Berkshire (The Buildings of England, 30; London, 1966), s.n. Buscot.
(3) LPCA, D.1312: 395–411.
(4) Ibid. 113; Trial of an Action by Edward Loveden, Esq. against Thomas Raymond Barker, Esq. for criminal conversation (London, 1810), 13; I am greatly indebted to Mr Jordan D. Luttrell of Meyer Boswell Books Inc. for lending me a copy of this very rare trial pamphlet, and drawing my attention to yet another copy.
(5) Trial, x. 114.
(7) Barker had matriculated at Oriel College in 1795 and taken his BA in 1799; he had been elected Fellow of Merton in 1802 and had taken his MA a year later (I owe this information to the kindness of Dr Roger Highfield).
(8) LPCA, D.1312: 21, 114–15; Trial, 6, 77, 80, 114–15.
(9) LPCA, D.1312: 79, 83, 98, 115, 123, 145, 189, 328, 353–4; Trial, 42–3, 288.
(10) LPCA, D.1312: 96, 220–4, 355.
(11) Trial, 211–13.
(12) LPCA, D.1312: 28–9, 102–5, 183, 197–200; Trial, vi. 14–15, 27, 32–4, 119–21.
(13) LPCA, D.1312: 119–21, 240.
(15) Trial, 21–4, 148–50; LPCA, D.1312: 30, 119–211, 141, 144, 150–3, 311–15.
(16) LPCA, D.1312: 243–64, 214, 320–6, 358–67; Trial, 59–63.
(17) LPCA, D.1312: 125–33, 174.
(19) LPCA, D.1312: 59–62; JH Lords, 48 (1810–12), 255.
(20) JH Lords, 48 (1810–12), 332–7; Trial, 67–9, 73–5.
(21) LPCA, D.1312: 110–12, 269–89, 337–40, 373–86; Trial, 52–8, 110, 209, JH Lords, 48 (1810–12), 171a, 171b.
(22) LPCA, D.1312: 88–90, 133, 387.
(23) JH Lords, 48 (1810–12), 155b.
(24) Trial, pp. ix-x.
(26) Stone, Road to Divorce, 279.
(27) Trial, 96–104.
(29) Eng. Rep. 161: 651; The Judgement pronounced by Sir William Scott in the Trial of Loveden v. Loveden (London, 1911) (BM 1509/696 (5)).
(30) Eng. Rep. 161: 556 n.; Shelford, 414.
(31) Eng. Rep. 161: 648–50; Shelford, 406.
(32) Shelford, 652.
(33) Eng. Rep. 161: 665.
(34) LPCA, H. 134/8; for taxed costs, see Stone, Road to Divorce, 187–90.
(35) Eng. Rep. 161: 962–4.
(36) MacQueen, House of Lords, 491–2.
(37) JH Lords, 48 (1810–12), 448A; MacQueen, House of Lords, 147; Thoughts on the dangerous tendency of introducing into Bills of Divorce a Provision for the Adulteress, as mas recently done in the bill for the divorcing of Edward Loveden Loveden Esq., by his wife (London, 1810). This pamphlet is known only by an advertisement of it, inserted in one of the pamphlets about the case. I owe this reference of Mr Jordan D. Luttrell of Meyer Boswell Books, Inc.
(38) Merton College records; I am indebted to Dr Roger Highfield for this information.
(39) MacQueen, House of Lords, 147.