A recent article on history and legal ethics mischaracterizes Henry Lord Brougham’s threat in Queen Caroline’s case as “blackmail.” Actually, Brougham’s threat was graymail, a tactic that is used to this day. A leading practitioner was Edward Bennett Williams, who threatened in one case that if the prosecution of his client, a former head of the CIA, went to trial, evidence would come out that would force the U.S. to close all of its embassies in Central and South America.
Blackmail uses the disclosure of information as a sword, e.g., give me money or I will reveal harmful information about you. Graymail is used defensively, as illustrated above – a threat to use admissible evidence in defense. In Caroline’s case, Brougham (pronounced Broom) had both documentary and witness evidence that the King had secretly married a Catholic, Mrs. Fitzherbert. Under the Act of Settlement, marriage to a Catholic required the King to forfeit the crown “as if he were dead.”
Since the Bill of Pains and Penalties against Caroline sought her divorce from the King on grounds of adultery, Brougham had the right, on her behalf, to prove that Caroline could not have committed adultery because her supposed marriage to the King was bigamous.
The proceeding had its criminal aspect as, in effect, a bill of attainder, but it was essentially a divorce action. And no one, including Brougham, had any doubt that Caroline had committed, as charged, “licentious, disgraceful, and adulterous intercourse” with Bartolomeo Bergami, “a foreigner of low station.”
Although supporters of the King criticized his tactic, Brougham’s defense was acclaimed as “brilliant,” he was “the hero of the hour,” and he subsequently became Lord Chancellor. In his memoirs fifty years later, Brougham reaffirmed the correctness of what he had done.
In a sense, graymail is the flip side of the “national secrets” defense, used (not always justifiably) by government officials to prevent suits for depriving people of their rights in 1983 actions.
Blackmail uses the disclosure of information as a sword, e.g., give me money or I will reveal harmful information about you. Graymail is used defensively, as illustrated above – a threat to use admissible evidence in defense. In Caroline’s case, Brougham (pronounced Broom) had both documentary and witness evidence that the King had secretly married a Catholic, Mrs. Fitzherbert. Under the Act of Settlement, marriage to a Catholic required the King to forfeit the crown “as if he were dead.”
Since the Bill of Pains and Penalties against Caroline sought her divorce from the King on grounds of adultery, Brougham had the right, on her behalf, to prove that Caroline could not have committed adultery because her supposed marriage to the King was bigamous.
The proceeding had its criminal aspect as, in effect, a bill of attainder, but it was essentially a divorce action. And no one, including Brougham, had any doubt that Caroline had committed, as charged, “licentious, disgraceful, and adulterous intercourse” with Bartolomeo Bergami, “a foreigner of low station.”
Although supporters of the King criticized his tactic, Brougham’s defense was acclaimed as “brilliant,” he was “the hero of the hour,” and he subsequently became Lord Chancellor. In his memoirs fifty years later, Brougham reaffirmed the correctness of what he had done.
In a sense, graymail is the flip side of the “national secrets” defense, used (not always justifiably) by government officials to prevent suits for depriving people of their rights in 1983 actions.