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Mixed marriages in the early British period

Three marital episodes that occurred in Malta during the early part of the British connection are far more emblematic of the significant tensions underlying the new colonial domination than the minor events in themselves would at first suggest.

It was the victim of the offence who determined the extent and severity of the penalty- Giovanni Bonello

The imprisonment for adultery of a Maltese woman said to have cheated on her English husband, the court battles to prevent a Scotsman married to a Maltese lady from taking their children to the UK to turn them Protestant, and the popular riot that followed the marriage of a Maltese Catholic and an English Protestant, tell us more about the attitudes and the mores of the times than any analytical assessment of official sources would.

In 1840 the Codice Municipale published by Grand Master Emanuel de Rohan in 1784 still regulated criminal and civil law. Though not the most illiberal of European codes at the time of its promulgation, the De Rohan code still reflected the pre-French Revolution ethos of privilege, class distinction and paternalism. It was manifestly male-oriented, patrimony-protective, unabashedly class-conscious and conferred unfettered discretion on a despotic, reactionary sovereign.

It would take many years and much pressure from Maltese patriots to convince the British rulers of the imperative necessity to substitute the code of the autocratic Order of St John by laws more in keeping with enlightened post-revolutionary and democratic thought. The British were not at all unhappy with the status quo – the ultimate say in anything rested with the sovereign, and what more could a colonial power dream of?

One of the earliest Maltese discontents, Giorgio Mitrovich, included in the number of recurrent complaints he pestered London with, the British failure to repeal and substitute the Code de Rohan with ‘modern’ codes of law. The British rulers were reluctant to do so – they are on record with praising that code and only damning the ways the Maltese judiciary applied it. Personally, I believe they were wrong on both counts.

By today’s standards parts of that code of laws appear anachronistic and arbitrary. Keeping in mind the sanctity of the family unit as one of the higher values the state had to safeguard, it made adultery a criminal offence, but then immediately went on to distinguish between the adultery of the husband and that of the wife, between that committed by the “lower classes” and that committed by the “upper classes” (the Code’s words). Adultery could not be prosecuted by the state, but only at the insistence of the aggrieved spouse.

The adulterous husband got off pretty lightly, though the penalty varied depending on his social condition: a fine of ten oncie if of low class and of 50 oncie if he belonged to the upper classes. That was for a first conviction. For a second one, the cash penalty doubled.

The punishment only became more threatening if the husband persevered in being found guilty of adultery by the courts, the incorrigible relapser. The court would then, for a third conviction, condemn the serial adulterer to work for free in community work schemes for three years, like joining the gangs that repaired the bastions, etc. No distinction between social classes seems to be applicable to penalties from the third conviction onwards.

The destination of the pecuniary penalties recovered from convicted adulterers also mirrors the social and moral proclivities of the times: five oncie went to the police officer who had come up with the evidence of adultery in flagrante, the rest to be shared equally between the prosecuting office (the fisco) and the casa degli invalidi (the hospice for invalids).

The situation changes drastically when it was the wife who the court found guilty of marital infidelity – though in this case too, criminal prosecution could only start on the husband’s initiative. In these proceedings the wife, if found guilty, suffered indefinite reclusion in a conservatorio, where the errant spouse was to remain incarcerated for as long as the aggrieved husband paid the state for her maintenance – in theory, for life.

To all intents and purposes, in those pre-human rights days, it was the victim of the offence who determined the extent and severity of the penalty, not an independent and impartial court. The conservatorio was a nuns’ convent run and sponsored by the Order of St John, like that of the Magdalene Ripentite at the north end of Merchants Street, Valletta, or the one in Floriana.

This was the criminal punishment. The civil penalties inflicted on the adulterous wife included the loss of the dowry she had brought to the marriage, the forfeiture of her share in the community of acquests and of the dowry. The law also relieved the husband from any liability to pay the costs incurred during her last illness and for her burial. The unfaithful wife’s repudiation pursued the fallen woman to death and then beyond.

The code however exempted the wife from any guilt or penalty if the adultery was committed with the knowledge and consent of her husband, or if the husband, becoming aware of his wife’s infidelity, continued to cohabit with her – a graceful concession not to damage the business interests of the many husbands who then pimped their wives. The bottom line however remains that women risked imprisonment for the crime of adultery, and men did not.

This manifestly discriminatory regime that treated the husband far more favourably than the wife appears widespread in most, if not all, European codes. Jurists did not justify these inequalities in treatment by resorting to any higher privileges males were allegedly entitled to. No, they relied on the objective differences between the consequences of the infidelity of the wife and that of the husband. The husband’s adultery threatened the stability of the family far less than that of the wife, both from the social and familial standpoint and on the patrimonial plane.

The husband’s adultery did not insert his illegitimate offspring inside the family home, while that of the wife did. A wife’s pregnancy following adultery brought uncertainty and suspicion as to the child’s paternity, and this in turn caused major problems in the partition of the husband’s inheritance. This objective difference, the old legal theorists held, justified treating the wife’s adultery far more seriously than the husband’s.

On April 19, 1829, Margaret Semini, daughter of Giovanna and the late Antonio, of St Paul’s parish, Valletta, still a minor, married George Dalzel, an English bachelor from Whitechapel, London. Being still under age, she needed her parents’ consent, which her widowed mother gave. The marriage was celebrated both in the Catholic and the Anglican Protestant rites – in St Paul’s parish church and in the temporary Protestant chapel on the ground floor of the Governor’s Palace, the former “buttery or scullery of the Palace” (where the Commission against Corruption now sits).

Dalzel, the husband, came from an English family that had settled in Malta some time after the beginning of the British connection. The Dalzels soon established themselves as part of the dominant British commercial community and of the civil administration of the island, two becoming magistrates and another a leading auctioneer, later teaming up with the Gingell dynasty to form the Dalzel & Gingell ship brokerage and public auctioneering firm which seems to have had a thriving business in Malta for a good part of the 19th century.

Of the Seminis very little is known, except that they look like they were among the early anglophile families, who realised the benefits of sucking up to Malta’s new colonial owners. To call a girl Margaret and not Margherita in the 1810s and to “allow” her to marry into an English Protestant family were sure signs they had a good idea which side they hoped their bread would be buttered.

The British connection did not work grandly for this particular marriage, which at some point must have soured tragically. We know next to nothing about the circumstances that led Dalzel to take the extreme step of reporting his wife to the police for infidelity and to request that she be criminally prosecuted for adultery, realising full well that, if found guilty by the court, she could be locked up, even for life, at his discretion – an obvious case of objective justice morphing into private vendetta with the full blessing of the law.

When the trial started, the court (sitting with or without a jury?) ordered the proceedings to be held in camera, and none of the newspapers reported or even mentioned the case or the sentence. The official file of the criminal trial, which might throw some light on the Dalzel tragedy, has still not been traced.

The court delivered judgment on February 24, 1840, found the accused guilty and sentenced her to the mandatory penalty established by the Code de Rohan – to be imprisoned in a conservatorio during her husband’s pleasure. Margaret née Semini, not yet 30, could now look forward to spending the rest of a wretched life behind bars.

Were it not for an eloquent letter in a newspaper after the judgment, this sad case would have disappeared under a shroud of total oblivion. Il Portafoglio Maltese, in its issue of March 9, 1840, published a long appeal, cryptically signed “G.O.” which raised many questions relating to this trial. I will not try to guess who the author was, but very likely a person conversant with the law, quite possibly a friend of the Semini family or of the defence lawyer, and a politically alert citizen.

The author first put in doubt how well established by the prosecution Margaret’s adultery had been – she had faced a criminal charge and it fell on the prosecution to prove the facts beyond a reasonable doubt. In his view, he said, the judges had based their judgment on conjectures, even if strong, deriving from two witnesses who, in such delicate matters, could not be given full credit (the accused person was not then allowed to give evidence in his or her own defence).

Another source suggests that Margaret’s conduct could have been “nothing more than imprudent levity attributable to the inexperience of her age”. G.O. criticised as “very damnable” the judges’ decision to hold the trial behind closed doors – suspicions that the courts were favouring a British complainant with this lack of transparency made the judicial process appear deliberately shielded from proper public scrutiny.

Though the author does not say so expressly, his letter hints that the outcome might have been different had the victim of the alleged offence not been an Englishman. Some Maltese judges and magistrates were notorious for bending over backwards to please the colonial master and to ingratiate themselves with what was then and later known as the Palace clique. They could think of few other ways to advance their career.

Sometimes the judicial lackeys overdid their fawning so badly that they obtained the opposite result. A case in point was that of the seaman Thomas Maxfield, accused of riding his horse at full speed on a public road. The Governor had witnessed the reckless gallop and had personally reported the culprit to the police.

The presiding magistrate, foolishly thinking it would please the Governor, fined Maxfield £5, instead of the usual 2s.6d. Far from earning the applause he was after, the British (Palace-inspired) papers ridiculed the magistrate for his “official toadyism”, and requested the Governor to remit the outrageous penalty.

The husband’s adultery threatened the stability of the family far less- Giovanni Bonello

The letter-writer had several concerns, all relevant. One related to the hotly political grievance that, 40 years into the British connection, criminal law in Malta was still regulated by the Code de Rohan: and when, pray, would the Maltese be rid of it? The law the judges applied “is hard, makes you shudder, we should see it deleted ... a barbarian law”.

The law assumed that a wife found guilty of adultery should be locked up indefinitely in a government-sponsored nunnery (a conservatorio). When De Rohan enacted that law, besides the regular monasteries, there were other pious institutions which served various social and philanthropic purposes and where, if the need arose, convicted women could be placed. But at the time the sentence was passed, none of these conservatori had survived, except for one which depended on the bishop.

In a conservatorio convicted women, though not allowed to leave the precincts, lived in full personal freedom; they received visits at any time of the day from outsiders, held conversations and enjoyed those comforts that helped keep despair away. In these nunneries the regulations and the discipline were laid down by a person in charge of a humane and pious institution, not by a faceless police force.

The last of these conservatori was in Floriana, but the authorities had closed it down before the Dalzel prosecution – so no place of detention as expressly required by law was now available.

While the trial was still on, two tiny narrow cells had been identified in the Floriana Ospizio, and these were prepared to house Margaret. The windows of these cells had then been blocked with iron bars, and as if to embitter the poor victim even further, the woodwork was painted on the very day she was transferred there – with depressing effects on the spirit of quella infelice.

Over and above, the executive police had expressly employed a prison warden, directly under its orders, with instructions to treat the prisoner with the utmost severity, a regime similar to that in force in the criminal prisons. She was not allowed to communicate with anyone, except for her brothers, but even that only rarely and very briefly and always in the presence of the warden.

What the law prescribed should have been mere detention, had turned into solitary confinement. To the innate harshness of the Code de Rohan the authorities had added a greater harshness in its application. “The prisoner cannot survive such suffering nor can she understand it.” In a former case, due to the absence of a conservatorio, the authorities had decided not to detain the convicted adulteress at all.

Why so much cruelty against her? Why, in her case, exceed the limits of a law already recognised by all to be barbarian? Perhaps the gravity of her crime is measured by ... (unsaid: the nationality of the victim?). When the last conservatorio had closed down, the government freed all the women convicts, recognising that, in the absence of the place of detention expressly provided for by law, it could not arbitrarily substitute another place, without first enacting a new law to that effect.

A fortnight later, the conservative and moderately pro-British Portafoglio commented editorially: it had checked the facts independently, and found that G.O. had not exaggerated one bit: the situation had turned out to be exactly as he had described it.

The paper lamented that a sad episode, a matter entirely personal and private, had been turned into a partisan political issue – so what’s new. The execution of a criminal sentence in a way that offends the public good caused the newspaper to condemn the conduct of the government as “an abuse of power” which set a dangerous precedent, and no one should overlook that.

The law made it clear that a convicted adulteress could only be detained in a conservatorio, and in the absence of one, the authorities had seen no option but to set a previous prisoner free. At most, the alternative to a conservatorio would have to be a place in all similar to one. Margaret was, instead, being held in what to all effects amounted to an unofficial jail, whose harshness was even intensified through the orders given to a prison warden employed specifically for that purpose.

Editorially, the paper described this as “a conduct worthy of contempt that might give rise to further abuse”.

To be continued.

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