by Susan Nagel
The Nisbets and even Robert Ferguson told Elgin that they would do anything they could to avoid a public scandal. At first, the Nisbets were horrified at Robert Ferguson and their own daughter’s behavior, but as Elgin grew more and more intractable, they grew increasingly angry with their son-in-law, who refused to spare them public humiliation. No matter what kind of behavior a monarch maintained himself, and there was ample evidence of very gross conduct on the part of the Prince of Wales, later King George IV, a divorcée would never be invited to Court and would be for all intents and purposes shunned by all as an “untouchable.” Robert, irreverent as usual, had no qualms about marrying a divorcée and believed that in the long run Elgin’s thirst for the disgrace of his wife would affect the children and his own career, making him very unpopular in both Scotland and England. Robert assured Mary that he loved her and would marry her, but Mary protested that if he married a notorious woman, it would ruin his own political career. Robert, who had so long desired a chance to make a difference in Great Britain, nevertheless declared that he was willing to renounce his career—if it came to that—if he could spend the rest of his life with the woman he loved. He wrote of his hopes in his diary.
It will not be very long before … she [is] at last FREE from the Brute & Beast—then she is to become mine … our hearts & souls so much alike … she is yet with her Father & Mother—who love & adore her—& who now feeling the greatest indignation toward his conduct throughout to her & to them—will in a little time rejoice that she is freed from him—& though so miserable with this disgrace, will forgive & forget all, when once the Divorce is procured—& once united with the Being in whom she loves—& who will devote every hour of his existence to her Happiness & Comfort.
Robert also understood that Mary loved being a mother and that no matter how much he loved her, his love could never fill the void created by the loss of her children; he offered up his own son, the motherless Henry Robert Ferguson, whom Mary took to her heart. “She loves him—& will ever be kind to him as if he were our own,” Robert reflected.
All through the summer and fall of 1807, Mary still hoped that Elgin would back down. The legalities of obtaining a divorce were complicated, and as the affair drew on and on, Mr. Nisbet continued to negotiate with Elgin, advising that a public scandal would injure all of them. Elgin ignored all pleas, and just as doggedly as he had stared down challenges in the past, he forged on full speed ahead. He wanted nothing less than an Act of Parliament, which would forever in the annals of the history of Great Britain brand the Countess of Elgin an adulteress.
Chapter 22
SHIPWRECKED
In December 1807, the King’s Bench Court in London assembled a jury of twenty-two men to hear the petition of the Earl of Elgin against Robert Ferguson of Nottingham Place, London, to ask for relief in the amount of £20,000. Elgin accused Robert Ferguson of “criminal conversation,” or “crim. con.” as it was commonly called, with his wife. In a “crim. con.” case, it was not necessary to prove that a wife had responded or had succumbed to an affair. This was one way of maintaining some modicum of chivalry. True to his word, rather than airing the details of his love for Mary in public court, Robert Ferguson allowed the plaintiff, the Earl of Elgin, to present his case, but Ferguson offered no defense, except a statement by his lawyer, Mr. Topping, that simply because Mr. Ferguson, in a frenzy, had written the Countess of Elgin passionate notes, it did not mean that she had committed adultery, and in essence Ferguson defaulted. This default judgment meant that in the eyes of a civil court, Robert Ferguson was guilty of seducing Lady Elgin.
Elgin’s lawyers, led by Mr. Garrow, were serious about collecting monetary damages on behalf of their client. Their strategy was to assert that Mary had, in fact, been a model wife, a Christian girl and a very good mother. It was Robert Ferguson, they argued, tempted by her beauty and charms (and what man wouldn’t be), who had pursued this good woman and had ruined her. Elgin’s lawyers proposed the notion that although Robert Ferguson could not be blamed for falling under Lady Elgin’s spell, he was nonetheless responsible for recompensing the suffering Earl of Elgin for the alienation of his wife’s affections. In order to obtain their requested monetary award, Elgin’s lawyers intended to show that £20,000 was inconsequential to Robert Ferguson.
Elgin’s lawyers provided information about the estate of Raith, which was entailed on Robert Ferguson. In Great Britain, estate laws protected landowners from losing their property, and if an estate was “entailed,” that meant that the estate was exempt from foreclosure through a legally recorded document providing for the estate’s succession. The estate of Raith was unalterably due to pass to Robert Ferguson upon his father’s death. In that regard, Elgin’s lawyers succeeded in showing that Robert Ferguson was a man of valuable property and could therefore sustain a judgment for the amount of £20,000 as punitive damages. To assist in demonstrating Ferguson’s culpability, they offered testimony by William Hamilton, John Morier, and Captain Donnelly to impress upon the jury that the Elgins had enjoyed an affectionate marriage, as they had so witnessed. The jury heard the one-sided evidence and cut the damages requested in half. The Earl of Elgin and Kincardine was awarded £10,000 against his friend and neighbor.
Although the trial ran smoothly for lack of defense, the case was immediately recorded by the London Times, which noted that Lord Elgin was “the representative of one of the most ancient houses of Nobility in the United Kingdom.” In its article, the Times described Mary as an exemplary wife and mother “living a pattern to her sex.” It stated that both Elgins indisputably set “the best example of the best English manners. In the center of a Mahometan Court, services of the Christian religion were daily performed by the Chaplain of the establishment and all the laws of decorum were assiduously regarded.” In Paris, the story continued, “her Ladyship conducted herself in the most meritorious manner … and she thus obtained an absolute promise from M. Talleyrand that her husband should be exchanged for General Boyer.” All of this information, gleaned from the uncontested proceedings, painted Ferguson as a villainous home wrecker and Mary as the model wife despite the fact that Elgin, in reality, had argued bitterly with Mary about her conduct in Paris. This was, once again, a strategy used by Elgin’s lawyers to collect money from Ferguson.
A Fleet Street pamphlet—the equivalent of today’s tabloids, and sold on the street for one shilling—entitled The Trial of R.J. Fergusson, Esquire, for ADULTERY with the COUNTESS OF ELGIN, WIFE OF THE EARL OF ELGIN, reported that no one disputed the revelations that Lady Elgin had refused sexual intercourse with her husband upon his return from France and that Lord Elgin had opened a love letter to his wife from Mr. Ferguson. It seemed that this Lord Elgin could not stay out of the glare of controversy. The pamphlet was immediately snapped up by gentlemen for their libraries, and discussion about the divorce became an immediate topic of conversation around Great Britain and Europe. Sir Walter Scott, in a letter written in Edinburgh and dated January 22, 1808, to Lady Abercorn, mentioned “the celebrated familiar epistles of Mr. Robert Ferguson to Lady Elgin.”1 The widely read gossip column “Domestic Intelligence,” which appeared in the European Magazine and London Review, reported: “This Mr. Ferguson (Lord Elgin being still a prisoner in France) seduced a woman until that time esteemed one of the most virtuous, religious and amiable of her sex.—Lady Elgin’s name was Nisbet, a Scotch family of much respectability.”2
A wider dialogue on the very nature of the civil court divorce proceedings appeared in the very first volume of The Satirist, published in January 1808. The column, penned by a man called “The Loiterer,” was an open letter to the so-called figure Mr. Satirist. The Loiterer, referring to the trial of Robert Ferguson, declared the whole procedure involving a civil divorce for damages distasteful, as it was demeaning to women: “A wife is no longer like an estate in tail, which the possessor cannot dispose of but is as transferable as any other personal chattel; and an action for crim. con. is the establishe
d mode of ascertaining her value.” In England at that time, a wife could not sue her husband for adultery. She could only sue her husband for a separation based on nonconsummation or terrible cruelty before the London Consistory Court, the ecclesiastical court popularly known as “Doctors” Commons, where the court resided. Once a canonical separation was decided, a husband could proceed with the legal equivalent that required adjudication by Parliament. Very few, however, sought this route because of the enormous expense involved in the proceedings.
The Act of Parliament was basically a method for the aristocracy to gain a legally sanctioned divorce that would guarantee that an estate would be passed on to its proper heirs—but it also necessitated civil and ecclesiastic one-sided disclosure of misconduct on the part of the wife, who would inevitably lose her children and endure lifelong shame. Elgin received his Act of Parliament with no contestation from either Robert Ferguson, who resigned from the House of Commons and remained mute in order to deflate the already inflamed public scandal, or Mary, who basically had no legal right to do so under British law.
In an effort to reinforce what he thought were his own interests in Mary’s eventual inheritance, Elgin next sued for divorce in Edinburgh and this time his lawyers waged an aggressive offense against Lady Elgin. Ironically, the trial took place on March 11, 1808, their ninth wedding anniversary. This time, in Scotland’s civil court, Mary could and did defend herself, and in trying to protect her assets from her former husband, the argument got ugly. As the father of their four surviving children, Elgin wanted to show that left in Mary’s hands, the vast Hamilton, Nisbet, and Manners estates would be placed at risk because she was unfit, unworthy, and immoral. Trying to prove to the world that their client was a cuckold, Elgin’s lawyers needed “infallible criteria” to do so. They produced a letter Mary had written to Robert Ferguson, dated December 18, 1807, which read:
Yesterday the doctor went away so E & I had the evening alone. He was very much agitated indeed, but he said nothing. After tea he got up suddenly and went into his room for a couple of hours. He coughed dreadfully which he always does when he is annoyed. I told him my wish to go and see where my beloved William is laid—and that I wished to go alone. Friend it was you that placed that adored Angel there—He is happier far than us. If he can hear & know what is passing in this world, friend he will intercede for us. There is something sombering with that infant I cannot account for but I feel as if he was our own. I went out early this morning. I have not seen him. I must do him the justice to say he has taken upon himself to keep his promise. But I hardly think it possible he can go on with it. For your sake I hope he will not. You know my fixed position. I need not always repeat it, need I? No power on earth shall ever make me fail you. Friend, this I know, you must feel desperately at the moment yet I am convinced you have entire confidence in me—you know I am as much wrapped up in you as you are in me—love we are united by the tenderest ties of nature. Nothing but death can separate us. We know how happy we can be together. Friend I wish a better fate awaits us. We shall yet be happy. Take care of yourself. I dread your giving way too violently to your feelings, & then you will get those dreadful cramps in your stomach and no Mary to take care of you. A friend in heart and soul, I am never away from you—every instant of the day my thoughts are with you. You can never think of me but at the same instant your Mary is thinking of you. I told S exactly how matters were between E & me.
What a desperately horrible idea that nothing but death can make me free. I shudder when I dare think of it. And too thoroughly I feel I cannot live without you. Friend mind let me know more exactly whether you receive all my numbers safe. No. 1, 2 went to Edin. which you got. No. 3 I sent on y 13th Dec under cover to Mr. Taylor near Ferrybridge—then on the same day I sent without numbers. Sent to Straton under Sir F.N. cover. Two letters I got from my mother which I wished you to read. No. 4 I enclosed to Straton & Chrisn. put it into the Post office at Dunfermline. No. 5 I enclosed to S. & Sir. F.N. and sent from there yesterday morning—Oh beloved friend that my letter could but give you comfort; feel & believe that you are adored by a heart that is forever unalterably yours, that exists in you & never can beat but for you. The whole world besides is blank to me.
I have just got a letter from My Mother wishing to send Gosling into Edin. tomorrow as the Hadington surgeon thinks she has had some hurt. I know poor soul she was hurt when the wheel came off the carriage at Pau: I driving & she holding my beloved William. I am going to write to her & tell her to write immediately to you when it is fixed when she goes to Edinb. I shall tell her to direct to Mr. F—You can then write constantly to her to be left at the Post Office, Edinburgh till called for. Oh friend, I shall thus be able to hear from you—have you a mind to put Mrs. Johnstone on the letters or Gosling. The first of course you will direct to Gosling. Write to herself as well as write to me—
After Dinner—Three of four people are Here, I have not articulated two words, but there is a man whose manner I like. Your Father’s fortune has been the topic. Thank God I never hear but good I know not how I should bear one slighting word. I will tonight direct this under cover to S or Sir F.N.—let me know if it vexes Straton.
Do not write to Edinb. till you hear from Gosling when she is to be there. I will not write more now because I must write to my Mother and Gosling. I have heard from Pahlen today. Friend I cannot bear the idea that people should imagine I live with E.—But remember you need and receive the world. I would like much to know how & when I may direct to your own name. You know I am an economist & I cannot make you pay for my nonsense now you are M.P.
Friend, I love you more than Ever and for Ever and Ever. I enclose this bit of my mother’s letter. Do you not see that she hates E.?
God in heaven blesses & honours you. Your own own Mary.
ooooooooooooooo
xxx
This letter proved without a doubt that Mary was, indeed, in love with Robert Ferguson, but it still did not prove that she had committed adultery. Elgin’s lawyers called on Constantinople embassy employees who had not been present in Paris when Elgin and his friend had reunited and could not offer evidence to the growing affection between Mary and Robert Ferguson. At most, the staff members conceded one after another that they supposed that once Elgin had lost his nose, his wife must have been repulsed by the sight of him. The lawyers also produced a letter from Robert Ferguson referring in a very nasty way to Elgin’s deformity, stating that Elgin’s “horrible presence must eternally disgust and poison” her. Elgin’s disfigurement immediately became ghoulishly fascinating to the public, as many who had never seen him began to wonder if he were a monster. Further, servant after servant was called to the stand as each detailed the couple’s most personal and most intimate business.
Mary Ruper, a servant at 60 Baker Street, who had also worked at Broomhall, testified: “The next day, I mentioned to Mrs. Gosling that Lady Elgin’s dog had dirtied a green cushion which was on the sopha. Mrs. Gosling shook her head and said it was not the dog who had dirtied the cushion, but that rogue, Mr. Ferguson.” Elgin, after having deposed various servants, wanted to hear from Sarah Gosling. The Nisbets arranged for Miss Gosling to disappear for some time on the excuse that she needed medical care; eventually, she was deposed, but her testimony did not offer the injurious details that Elgin had hoped for. At its worst, Gosling offered her opinion that Lady Elgin had behaved improperly instructing her, instead of the footman, to show Mr. Ferguson out. This was highly irregular, and showed a lack of judgment on the defendant’s part. Miss Gosling did admit that one evening Mary’s mother came by while Mr. Ferguson waited in Mary’s apartment, unbeknownst to Mrs. Nisbet. This event took place very late in the evening, as the countess often went out, the servant explained. Another servant claimed that Miss Gosling was aware of certain signals exchanged between Ferguson and Lady Elgin as if to motion “all clear,” and then he would arrive. As far as she knew, testified Miss Gosling, she did not ever see the Countess of Elgin s
ignal Mr. Ferguson in any way.
Elgin’s team tried to convince the jury that Mary had committed adultery between January and June 1806, when he returned from France. This was highly improbable, because in December 1805, when Robert arrived in London, Mary was very ill, experiencing early and severe contractions, and in January she gave birth to Lucy. By the time she could sit up in bed, Robert Ferguson was gone.
Despite the facts surrounding her difficult pregnancy and long period of recuperation, Elgin’s lawyers continued in their chase. They called Thomas Willey, a former footman of Lady Elgin’s in London who had been discharged for drunkenness, to the stand. Willey stated, “I saw Lady Elgin at full length on the Sopha, and upon my coming in, Mr. Ferguson took hold of a shawl and in great confusion threw it over Lady Elgin’s legs.” “WERE HER LADYSHIP’S PETTICOATS UP?” bellowed Elgin’s attorney, and the feeble response that he couldn’t say for sure because of a writing table that blocked his view was immediately irrelevant. The question posed by Elgin’s lawyers echoed in every newspaper, at every breakfast table, and at every whist party around the globe. The lawyer had accomplished the stunning visual and the very picture of Her Ladyship, the great-granddaughter of the second Duke of Rutland, having sex on the sofa with her lover, which titillated even the most jaded and cynical sophisticates. Intent on finding out every salacious detail, even Sir Walter Scott, in a letter to Lady Abercorn from Edinburgh on June 9, 1808, admitted, “I am endeavoring to get a copy of the Elgin Letters by my interest with little Jeffrey, the Reviewer, who was the fair Lady’s counsel in the case.”3
