Percy Bysshe Shelley, the great English romantic poet, was a litigant in a landmark child custody case. By way of background, he was a prominent radical thinker who wrote pamphlets and essays espousing atheism, non-violence, and the rejection of monarchy and marriage as an institution. None of this made him very popular with the English establishment.

He was no hypocrite in his personal life. In 1811, the 19-year-old Shelley eloped with the 16-year-old Harriet Westbrook. His father, Sir Timothy Shelley, broke off relations with his son and they never reconciled. Unfortunately, the marriage was unhappy, perhaps because poor Harriet was not his intellectual equal, or perhaps because he fell in love with Mary Godwin, daughter of his mentor. (Mary Wollstonecraft Shelley became a novelist and biographer in her own right, still famous as the author of the Gothic novel, Frankenstein). Shelley abandoned Harriet in favor of Mary, now enraging a second father, the philosopher William Godwin. Society was scandalized.

Shelley and Mary ran away to Switzerland, leaving behind Harriet who was pregnant with Shelley's son (they already had a daughter). To make things a little more interesting, Mary's stepsister, Claire, joined them. She promptly had a brief affair with Lord Byron and gave birth to a daughter. Scholars seem to believe, however, that Claire really loved Shelley, who clearly never lacked for female attention.

In December 1816, Harriet committed suicide, allegedly despondent due to her husband's affair. Shelley promptly visited Harriet's parents, the Westbrooks, to retrieve his children. He was told they were not there and, moreover, would not be returned to him. The Westbrooks detested the radical poet and held him responsible for their daughter's death. Still, their refusal must have come as a shock to Shelley. In 19th century Britain, a husband's rights, particularly if he was an aristocrat, knew few limits. For example, married women in England were not allowed to own and control property in their own right until 1882. And it was only in 1928 that women over the age of 21 were given the right to vote. Pynchon Wilmot Longdiu, Shelley's counsel, would have assured him that he could not lose custody unless he was a bankrupt or beat his children. When Westbrook filed for an injunction to prevent Shelley from reclaiming his children, the poet, doubtless on the advice of counsel, swallowed his objections to the institution of marriage and married Mary Godwin. He probably considered that he was in a strong position. Legal precedent was on his side and, through marriage, he had discarded his radical posturings for conventionality. English society was riveted by the case.

Westbrook retained the greatest advocate of his day, Sir Samuel Romilly. Romilly introduced into evidence letters that Shelley had sent to Harriet that reinforced his irregular conduct. He showed that Shelley had never visited his children after he abandoned their mother. He harped upon the poet's many heretical writings portraying him as a mad and dangerous man. Romilly was a seasoned practitioner. He also knew his judge.

Nevertheless, one suspects that Shelley would have felt fairly sanguine about his position. The right of an 18th century father to rear his own children bordered on sacrosanct. And the Westbrooks were hardly blameless. They had concealed his children from him when no one asserted he was a physical danger to them.

The Judge's decision on March 27, 1817 was a bombshell. Lord Eldon denied Shelley custody of his children, awarding them to foster parents. Lord Eldon stated:

“This is a case in which, as the matter appears to me, the father's principles cannot be misunderstood, in which his conduct, which I cannot but consider highly immoral, has been established in proof … .”

It appears Shelley was distinctly unfortunate in the Judge who heard his case. The greatest radical of his day was judged by a man who became infamous for his persecution of Catholics, and who opposed Irish emancipation, abolition of the slave trade and the death penalty. (His last public utterance in July 25, 1834 was against railroads as “dangerous innovations.”) Eldon held that a father's right to control the education of his children did not extend to teaching them what was, in the Judge's view, immorality.

Prior case law excused “immorality” so long as the parent did not directly involve or harm the children. For example, an adulterous father could retain custody of his children provided the children were not exposed to his mistresses. Lord Eldon was expanding judicial interference into a parent's right to educate his children. Now a court was allowed to evaluate a parent's “moral” views. All this was an amazing departure from precedent.

Shelley never saw his children again. He departed England for Italy and would drown a few years later in a sudden storm when his boat, the Ariel, sank off Leghorn. His poetic genius was not recognized during his lifetime. Nevertheless, he left behind a body of work that ultimately made his memory immortal. Other than scholars, however, few now remember the most famous child custody case of its time.

Timothy J. Horgan is a matrimonial attorney with offices in New York City and Garden City.