Crim. con., or criminal conversation, was once well-known legal jargon. Originally based on the idea that a husband had a proprietary interest in his wife’s sexual activity, the law gave him the right to sue any other man she slept with. By the middle of the 19th century, the theory had been modernized slightly; a man was entitled to be compensated for losing his wife’s services in maintaining the home and raising the children. But unlike a sister tort, “alienation of affection”, it was based solely on whether or not there was extra-marital sex. Since the only valid grounds in 19th century New York for divorce was adultery, both crim. con and divorce trials provided the public with a delicious combination of cheap thrills and self-righteous indignation.
The former Mary Minturn was trapped in marital misery. She was born into rural New York state poverty, but a popular actress, Mrs. Elizabeth Abbott, took her in as a ward, and brought Mary to New York City. As the girl came of age, she fell for a penniless young man. Concerned for Mary’s future financial well-being (and in declining health), Mrs. Abbott engineered her darling ward’s marriage to Andrew Jackson Millspaugh, a successful merchant twice Mary’s age.
The couple had one son, but the marriage was doomed from the get-go. Mary’s friends later testified to Millspaugh’s drinking, moroseness, verbal and possibly physical abuse. Barely out of her teens, Mrs. Millspaugh fell in love with a young attorney who lived in the same boarding house. They exchanged keepsakes, but his sudden death left her heartbroken.
Two couples had befriended Mary, and when a young broker — Seth Adams III — arrived on the scene, they helped concoct an escape plan. Indiana was America’s earliest ‘divorce mill”. Mary and Seth travelled together to Fort Wayne, a romantic two week journey that took them through Niagara Falls and across Lake Erie. They married in Boston and settled down as a married couple in New York City.
Hell hath no fury like a middle-aged dry-goods merchant scorned. Maybe it was the humiliation of repeatedly running into the couple in his own neighborhood. A witness testified that although Mary was hoping for a private settlement, Millspaugh “would have it public, before a jury, and…it would ruin two or three families.”
When the crim con trial opened in late January 1865, the public was unaware of the unfolding spectacle, but a New York Times reporter was on the scene and William S. Fullerton was loaded for big game. Famously methodical, Fullerton carefully dissected Adams’ and Mary’s course of behavior in New York and traced the runaway couple’s two week trip to Indiana, honing in on details like adjoining hotel rooms and Mary’s use of false names. The child’s nurse testified about being dispatched with the boy to a park, so Seth and Mary could be alone in her room, and walking in to find them kissing. There was testimony that before the great escape, Adams had bragged about the plan in his favorite brothel and showed Mary’s picture.
Besides trying to prove that the young couple had been too impatient to wait for the divorce decree, Fullerton had another line of attack. They had clearly not complied with Indiana’s one-year residency requirement for divorces. If the divorce was not valid, then the New York marriage was a sham and ‘Mr. and Mrs. Adams’ life together was a continuing act of adultery.
Seth Adams’ attorney, Henry Lauren Clinton, was no slouch. The lawyers went at each other like blood-thirsty gladiators, incidentally shredding the reputations of anyone in their way. Fullerton portrayed Mary’s close friends, the Babcocks, as running an illegal gambling parlor, while Mrs. Babcock entertained gentlemen alone in her room.
Clinton hurled so many epithets at Millspaugh that Fullerton — ever the risk-taker — sarcastically recited a list of them in his closing argument: “‘base wretch’, ‘beast’, ‘brute’, ‘candidate for the state penitentiary’…’coarse’, ‘vulgar’,’avaricious’…‘grasping’”…
Fullerton explained the demand for money damages was a bulwark protecting everything sacred and good:
Give then liberal damages, and thus show the approbation which you entertain of the holy relation initiated by Heaven for the benefit and happiness of mankind. Strike down the marital relation and you strike a blow at the roots of society. Uphold it, and you defend your hearthsides.
Henry Laurel’s Clinton’s closing argument touched only glancingly on a feminist viewpoint:
Ah, gentlemen, do you wonder that she strove, from the very first of her married life, upon every opportunity to escape from — I had almost said — the legal prostitution of this marriage.
Clinton was an unlikely proponent of human freedom. In 1852, he represented slave owners, in New York’s classic Lemmon case. (Abolitionists had succeeded in freeing 8 slaves whose owner made the mistake of staying overnight in Manhattan while in transit by ship from Virginia to Texas.)
Millspaugh was awarded $ 10,000 in damages. (He had asked for $ 50,000.) Fullerton capped his success by publishing his closing argument.
Some thirty years later, his retired adversary published a popular book of his courtroom experiences called “Celebrated Trials”. Clinton included his Millspaugh closing statement with a short post-script, explaining that the parties had settled the case while appeal was pending. According to Clinton, Mary returned to Indiana, met the residency requirement and obtained a proper divorce, but her relationship with Seth Adams did not survive. Instead, he tells us, Mary remarried Millspaugh and they lived together again as man and wife.
What really happened is unclear. An 1870 Federal census shows A. J. Millspaugh and the couple’s son, Willie, living at the Millspaugh family homestead in Montgomery, New York. Mary is not listed. Andrew Jackson Millspaugh died in 1871. An 1890 census shows Mary Millspaugh, a ‘widow’, living on East 39th Street, not far from the addresses and locations that are peppered throughout the trial testimony.
The couple’s son Willie married and settled down in Providence, Rhode Island. The 1900 Federal census shows two teenage children.
Attorney Fullerton’s special relationship with New York’s newspapers and public would continue for decades.