A marriage was also held to be void from the beginning if a previous contract existed. Since a pledge to marry in front of witnesses – spousals de praesenti as it was known – could be held to be a valid contract, this technicality might be brought into use. Aphra Behn for example used it to round off her play of 1676, The Town-Fop, or Sir Timothy Tawdrey, with a happy ending. Lady Diana’s uncle Lord Plotwell promised ‘to untie the Knot’, and successfully did so on grounds of a precontract (it was helpful that Lady Diana’s own marriage had not yet been consummated). In real life, it was not so easy. The familiar economic question remained: How was the woman to be supported in the future? At the end of another of Aphra Behn’s plays, Sir Patient Fancy, a young woman who had chosen an old man out of financial necessity (‘’Twas to that end I married you, good Alderman’) succeeded in getting a separation from him, without having to return the money.15 But this ideal – from the female point of view – was seldom realized in real life.
What if no possible grounds for nullity could exist? What, for example, if children had been born of the marriage so that consummation had demonstrably taken place? There was one further expedient which developed in the late seventeenth century, and that was divortium a vinculo matrimonii, literally a divorce from the bond of matrimony. This could only be obtained by a private Act of Parliament. A petition and Bill had to be presented to the House of Lords, which would be debated during its various readings, according to customary parliamentary procedure. It was nearly always preceded by a separation a mensa et thoro in the ecclesiastical court; or an action at common law against the co-respondent for ‘criminal conversation’ with the plaintiff’s spouse, or for assault and battery.16
The expense and difficulty of such proceedings were prodigious. The prolonged tribulations experienced by Henry, seventh Duke of Norfolk in ridding himself of his adulterous wife Lady Mary Mordaunt demonstrate that even the ‘first Duke in England, installed Knight of the Garter, lord high Marshal of England, and one of the lords of his Majesty’s Privy Council’ was not immune from this general rule.17 Only a little over 200 cases were heard before the Matrimonial Causes Act of 1857 made it possible to obtain a divorce in England other than by Act of Parliament; and only six of these were at the suit of the wife. In any case the wife was handicapped because adultery alone was not sufficient grounds for her to get her Bill through (whereas it was for the husband).1 For the vast majority of the population other than the wealthy and privileged few, only the ecclesiastical form of ‘divorce’ was open to them, with no prospect of a happier second union. As The Athenian Oracle wrote in answer to a query in 1701, laying down the established practice of the time: ‘A Divorce is from Bed and Board; and is not void in respect of the Marriage so as that the Injured [Party] may marry again.’18
The property laws made it difficult for women caught in an unhappy marriage to struggle free because there was no guarantee they would not end up poverty-stricken. But where divorce was concerned, men had their burden too. Because a valid marriage was indissoluble except by such an expensive protracted process as an Act of Parliament – which might be condemned by society for a variety of reasons unconnected with the marriage itself – it was not so easy for a man to dispose of a wanton wife. Ironically, the wanton wife had a peculiar advantage at this period which the legalization of divorce in 1857 took from her.
In particular, the offspring of her liaison with another man, if technically born within wedlock, were not so easily denied the inheritance of their legal father. As in the case of Frances Lady Purbeck and her child, unless the husband had been indisputably absent ‘beyond the seas’ for an agreed length of time, the burden of proof remained upon him to establish that the child could not possibly be his. In 1635 the Earl of Essex, prejudiced against womankind in general from the conduct of his first wife Frances, later Countess of Somerset, became convinced by spiteful gossip (in the manner of Othello) that the child his second wife was bearing was not his. He announced that he would not own it unless the baby was born by 5 November. When the baby was in fact born on that very date, neither suspicious husband nor innocent – and insulted – wife were any happier and the marriage collapsed. A deed of separation was arranged; even then Lord Essex tried to insert a clause in the deed saying that his wife would forfeit her jointure if she gave birth to any further children because ‘whosoever got them, yet my Lord must father them by the law’, until the Countess of Essex indignantly refused to countenance it.19
In about 1632 Edward Scott of Scot’s Hall married Catherine, the daughter of the first Baron Goring, but the couple only lived together for about two years. While her husband was serving at the front, Catherine Scott gave birth to children at Oxford and elsewhere. Her husband disowned them and brought an action in the ecclesiastical courts for separation, while she brought an action for alimony in Chancery. Then the husband brought a petition to Parliament in 1656. But a divorce was never obtained. Thomas Scott was thus perforce acknowledged by his ‘father’ as his heir, and succeeded to Scot’s Hall at Edward Scott’s death in 1663.20
The most notorious matrimonial case of the seventeenth century was however that of Lord and Lady Roos.
It could not be said that the title of Lord Roos was a lucky one. John Manners, who bore the courtesy title of Lord Roos, was the third and surviving son of John, eighth Earl of Rutland, who had succeeded to the title on the death of his cousin without male heirs in 1641. The two sons of Francis, sixth Earl of Rutland, who had earlier borne the courtesy title of Lord Roos, died in youth: as we have seen (on p. 128 ff.), these deaths were ascribed to the malevolent influence of the Flower family, the so-called Belvoir witches, who died themselves as a result.
Even the Roos title had a miasma of doubt attached to it. The ancient barony of Roos or de Ros, the premier barony of England, was, unlike the earldom of Rutland, able to pass through the female line. The sixth Earl’s remaining child, his daughter Catherine, had married James I’s favourite, the first Duke of Buckingham; her only surviving child, George, second Duke of Buckingham, was a prominent if maverick figure at the court of Charles II. The Duke of Buckingham claimed – as a matter of fact perfectly correctly – the ancient Roos barony through his mother. When pressed, the male line of the Rutland family based their use of the Roos title on another creation, that of Roos of Hamlake in 1616. But this new creation had been made specially for Francis the sixth Earl until such time as he should inherit the ancient barony on the death of a female cousin (which occurred in 1618). This new barony of Roos of Hamlake, which could pass to sons of the sixth Earl, had in fact become extinct at his death in 1632.21
This complicated and confusing squabble did not stop John Manners, heir to the eighth Earl of Rutland, bearing the courtesy title of Lord Roos at the time of his marriage to Lady Anne Pierrepont on 21 July 1658; but it was to have some bearing on his matrimonial affairs later.
In advance, the match had the air of being an ideal one. The bride was the daughter and heiress of Henry Pierrepont, Earl of Kingston and later Marquess of Dorchester, a highly eccentric figure as it happened but that was considered less important in 1658 than the fact that the marriage united two families ‘Very noble in themselves, and of great fortunes, and allied to all the great families of the kingdom’. Anne Pierrepont was seventeen and brought with her a dowry of £10,000, £6,500 of it paid by Lord Dorchester on 21 July.22 John Lord Roos was twenty and, as the last male heir of the ancient Rutland family, someone on whose future progeny many family hopes were pinned.
Around the time of the wedding lavish and traditional disbursements were made: £93 was spent on two pearl necklaces for the new Lady Roos, and £50 on crimson velvet for a coach. The famous miniaturist John Hoskins, described in the family accounts as the ‘picture-drawer’, was commissioned. A dozen pairs of ‘gesiment’ (jasmine, i.e. yellow) coloured gloves were ordered for distribution among the guests according to custom, and two dozen gloves for Lady Roos. Five shillings were ‘given the poor at the gate
s the wedding-day’ and six shillings went to the trumpeters.23
In spite of all this, the marriage was a disaster, virtually from the start. A daughter, born early in 1659, must have been conceived very close to the wedding (she did not live). Beyond that, there were few signs that Lord Roos and Lady Anne enjoyed any kind of marital happiness together. The Earl of Clarendon summed up the sexual problem between them with his usual magisterial concision: Lady Anne ‘not finding the satisfaction she expected where she ought to have received it, looked for it abroad where she ought not to find it’. As for Lord Roos, he was indulgent enough, as men ‘conscious of any notable defect’ were wont to be, wrote Clarendon, ‘not strictly inquiring how she behaved herself.’ The picture was completed by the fact that Lady Anne was, at any rate in the opinion of Clarendon, ‘of a humour not very agreeable’ and made little effort to dissemble or conceal the contempt she felt for her husband.24
Not all Lady Anne’s contempt was necessarily based on Lord Roos’s sexual inadequacy. For Lord Roos had another interest – drink; he also gambled and led a life generally felt to be unsatisfactory by his contemporaries. When he related how Lady Anne accused her husband of ‘debauchery’ and ‘being always in drink’, Clarendon added: ‘which was true’. At some point there was a tacit separation and at some point after that, after various ‘acts of passion’ (that is, anger) which gave both ‘mirth and scandal’ to the world at large, what purported to be a reconciliation but was in effect very much on Lady Anne’s terms: ‘the lady having the ascendant over the lord who was very desirous to live quietly upon any conditions, that he might enjoy himself though he could not enjoy her’.25
Once again Lady Anne slipped away from Belvoir to London. But on this latest occasion she overstayed her leave by several months; what was more she returned clearly pregnant, or as Clarendon phrased it, ‘in so gross a manner that it appeared that she had kept company too much’. This at last stung the passive Lord Roos into making some kind of protest. He taxed Lady Anne ‘that she was with child’ and asked her: ‘Who [be]got it?’
To this Lady Anne replied, with more spirit than tact, that ‘whoever got it, if it proved a boy as she believed it would, he should be Earl of Rutland’.26
Lord Roos’s reaction was to confide all to his mother, Frances Countess of Rutland, daughter of the first Lord Montagu of Boughton and ‘a lady of very great spirit and most exalted passion’ (unlike the Earl of Rutland, a mild-mannered man from whom Lord Roos seemed to have inherited his desire for a quiet life). Already the Countess had noted how little ‘kindness’ Lady Anne showed to her husband at Belvoir and reproved her for it; either for ‘want of wit’ or out of some archetypal resentment at her mother-in-law’s interference, Lady Anne had ignored the warning. Now the Countess took her revenge; grimly she confined the ‘great-bellied lady’ to her chamber, removing Lady Anne’s own attendants and surrounding her with Manners vigilantes, in case Lady Anne tried to fudge the date of the baby’s birth in some way, so as to falsify the date of its probable conception.27
Lady Anne although confined was not silenced. She managed to get a message of protest to her father the Marquess of Dorchester, describing how she was held prisoner, and feared for her life since the Countess was at the very least threatening to make her miscarry, if not to kill her. Nevertheless in the course of time Lady Anne did give birth safely to a living child. It was a boy just as she had predicted. That of course increased the complication of the situation, since this boy was now the eventual male heir to the earldom of Rutland. (A girl would have had no such inconvenient rights.) So the baby was rapidly baptized Ignoto, a name which left the whole subject of his paternity in abeyance. He was taken from his mother’s side by the Countess of Rutland and placed with a poor woman locally to be nursed. Lady Anne herself, after she had recovered from the ordeal of childbirth, was allowed to travel to her father.28
In the Marquess of Dorchester, however, Frances Countess of Rutland had found a worthy adversary; she might be celebrated for her ‘most exalted passion’ but Lord Dorchester was notorious for his fits of irrational bad temper, sometimes accompanied by actual physical violence. In 1638 he had committed an assault within Westminster Abbey itself, and during a service; in 1641 he had been charged for the extremity of his language in the course of a debate in the House of Lords. A servant to Charles I – he had acted as one of his commissioners at the Treaty of Uxbridge – he had eventually come to terms with the Commonwealth regime; but he was back in the Privy Council of Charles II by August 1660.
Lord Dorchester’s other claim to the attention of his contemporaries was that he was an amateur chemist. This brought him more ridicule than respect. When someone observed in 1676 that a man of his age was either a fool or a physician, Lord Dorchester – being one for litigation when physical violence would not serve – promptly brought an action of scandalum magnatum against him.
When Lord Dorchester received notification of his daughter’s treatment at the hands of her husband and her family, he rushed into action. First he challenged Lord Roos to a duel, and when this was refused, an exchange of letters took place, subsequently published. Their tone was not temperate. Lord Dorchester referred to Lord Roos’s’ ‘Sottish and Clownish paper’, written no doubt in one of his drunken fits, and charged him with cowardice as well: ‘If I may see miracle, you with a Sword in your hand … but if it was a bottle, none would be more forward.’29
Lord Roos for his part excoriated gleefully on the subject of Lord Dorchester’s chemical experiments: ‘Sir, sure you were among your gallypots and glisterpipes, when you gave your choler so violent a purge, to the fouling of so much innocent paper, and your own reputation (if you had any, which the wise very much doubt)!’ As for his own drunkenness, Lord Roos grandly dismissed it: how harmless were these ‘Tertian fits of mine, which are easily cured with a little sleep’ compared to Lord Dorchester’s evident dottiness. (To this Lord Dorchester replied that they were not Tertian but Quotidian, daily.) In general Lord Roos sneered at his father-in-law for his challenge: ‘If by your threatening to ram your sword down my throat you do not mean your pills, the worst is past and I am safe enough.’30
Lord Dorchester’s next action was to appeal to the King. He wanted to see justice done not only to little Ignoto, still kept from the care of the only parent who was undoubtedly his, but also to his daughter in whose innocence the indignant Lord Dorchester continued to believe. He still believed in it following the hearing in front of Charles II at which some very dubious evidence of Lady Anne’s conduct was produced. As well as Lady Anne, the Countess of Rutland and a host of other ladies appeared at the hearing, but there were ‘so many indecent and uncleanly particulars’ given, that many of the latter had to leave.31
A good deal of the evidence came from servants who sometimes contradicted indiscreet statements they were supposed to have made previously. Had Lord Roos ever said that ‘although he lay not with his wife [at night], he did in the day? Had Lord Roos ever observed that if only Lady Anne had arrived three weeks sooner or stayed three weeks longer ‘then he would have owned the child’? Both these remarks were now denied by the men who were supposed to have passed them on.32
Despite all this washing of dirty linen, at the end of the hearings Charles II ‘left it as he found it’. He refused to pronounce on the guilt of Lady Roos or the parentage of Ignoto. That is to say, although Lady Roos had clearly made some very rash statements to her husband, the King could not be sure that they had not been made out of a desire to provoke his jealousy (and thus perhaps secure that appropriate affectionate response which Lord Roos had hitherto been so laggard in making). ‘He doth not find ground whereon to make judgement to condemn the lady.’ On the other hand Charles II, a worldly man, could see that there was absolutely no question of a further reconciliation. He therefore suggested a separation, and a proper settlement by which the Rooses could live peacefully asunder. As for the child, that ‘might be placed in the hands of some third person t
o be agreed on both sides, to prevent the apprehensions of either parties’. The King’s last word on the subject was that if this tactful solution was not accepted, then there would have to be recourse to the law.33
Lord Dorchester interpreted this decision as a triumph. He carried Lady Anne home with him, convincing himself that her virtuous life in the future would vindicate her in the eyes of the world, and so that the point should not be missed gave instructions to his steward that the King’s document should be read aloud, preferably in churches. As to the child, that should be restored to its mother; or if not to her, at least to someone on whom she could rely. Lady Anne should also be granted an allowance by her husband, and have her portion repaid (although she would relinquish the prospect of a jointure).34
Even if Lady Anne had been prepared to conduct herself discreetly as her father hoped, it is difficult to see how the situation could in fact have been resolved as Lord Dorchester and the King desired. There was the question of the boy Ignoto: either he was the legitimate issue of Lord Roos, in which case he stood in line for the earldom of Rutland, or he was not, in which case Lord Roos lacked a male heir, and needed to provide himself with one. Before he could do that, he needed to get rid of his present wife. At first Lord Roos hung on to custody of the boy, saying that ‘although the child be not of my begetting, so long as the law reputes it mine, I must and shall keep it’. But this, it is clear, was merely a manoeuvre in order to induce from Lady Anne a confession of the truth. The Earl of Rutland told Lord Dorchester that his son ‘knows best that the child is none of his’; once Lady Anne had admitted to the King what she had already confessed to her husband, then she could have the child and do what she liked with it. Money was another matter: the Rutland family certainly did not take the line of Lord Dorchester that Lady Anne’s portion should be restored to her father despite her behaviour. As for an allowance, ‘I will give none but what the law determines’, declared Lord Roos. And then he required the vital confession first.35
The Weaker Vessel: Woman's Lot in Seventeenth-Century England (WOMEN IN HISTORY) Page 41
