CHAPTER FIFTEEN

Divorce from Bed and Board

There was no such thing as divorce in the seventeenth century, at least not in the sense the term is understood today. This does not necessarily imply a starry-eyed view of human nature, still less a higher level of marital happiness: the pragmatic need for the separation of miserable or discordant couples was well appreciated, as it had always been, and such separations took place on a number of different levels of society.

In 1670 the Earl of Lauderdale, later created a Duke, Charles II’s viceroy in Scotland and a member of the acronymic Cabal, was conducting a flagrant liaison with Bess Countess of Dysart. His wife separated from him and went to live in Paris; but Lauderdale paid for her and she was allowed to take with her not only her own jewels but also – to Bess’s disgust – the Lauderdale family heirlooms.¹ After her death, Lauderdale and the flame-haired Bess were able to marry; as Duke and Duchess of Lauderdale they held proud court in Scotland.

A less grandiose form of separation occurred when one spouse absented herself or himself without formality from the other spouse’s side. In the 1650s Tom Oxinden had married a fourteen-year-old heiress whom he brought home under proper supervision. As he wrote to his step-mother: ‘I hope she carries herself civilly and dutifully towards you and lovingly towards my sisters, as I have often desired her to do.’ A few years later the bond was not sufficient to prevent Tom falling in love with Mrs Zutphenia Ower, wife of Robert Ower of Sydal. The pair went off and lived together. In 1662 Elizabeth Oxinden, the deserted wife, heard to her satisfaction that ‘the Lady’ and her husband were not happy together, Tom looking lean and pale. It must have given her less satisfaction when the ne’er-do-well Tom took to being a highwayman, was apprehended and died in prison in 1668. At this point Elizabeth Oxinden was free to marry again, did so, and bore four children by her second husband.²

The Oxindens belonged, roughly speaking, to the middle class and there was no question of Elizabeth Oxinden remarrying before Tom’s death since details of his unfortunate existence filtered through to her. It was however quite possible in a ramified country like England for an errant husband (or wife) of a lower class to disappear altogether. Under such circumstances a second – bigamous – marriage might take place in the lifetime of the previous partner. Before the Hardwicke Act of 1753 which not only necessitated parental consent for minors but also made void those marriages performed without publication of the banns or a licence, such ceremonies were not too difficult to accomplish. In this manner it could be said that the propertyless classes enjoyed a kind of de facto liberty denied to their wealthier contemporaries. (Evidence of this popular ‘divorce’ in defiance of the rules is provided by the case-books of Richard Napier.)³

The sort of marriage which had been preceded by a financial settlement, with negotiations for a dowry then and a jointure to come, presented more of a problem when its component parts began to fall apart. Money was a powerful shackle, particularly for the woman. A wife was unlikely to secure any kind of maintenance if she separated from her husband, and legally had of course no money of her own, all of this having been handed over to her spouse on marriage. When Lady Hatton, mother of Frances Coke, separated from her second husband Sir Edward Coke, part of their violent quarrel over money concerned her wish to preserve that property she had inherited from her first husband, Sir William Hatton.⁴

Influential relations were a help. Lady Isabella Rich, the daughter of the Earl of Holland and the heiress Isabel Cope of Kensington, married Sir James Thynne of Longleat. When Charles I was at Oxford, she acted the part of Egeria to the court (it was her knowledge of statecraft which had prompted Ann Lady Fanshawe’s unfortunate intrusion into her husband’s political affairs – see pp. 68—9). Lodged at Balliol College, Lady Isabella and Ann Fanshawe could cause ‘a flutter’ appearing in Trinity College Chapel ‘half-dressed like Angels’. Dorothy Osborne described Lady Isabella as ‘the loveliest thing that could be looked on’. And her talent for music, combined with her air of nonchalance, inspired Waller to a poem, ‘Of my Lady Isabella playing on the Lute’, beginning:

Aubrey however put his finger on her disadvantage as a wife: ‘most beautiful, most humble, most charitable etc.,’ as she was, Lady Isabella ‘could not subdue one thing’.⁵

She became the mistress of the Royalist leader, the Marquess of Ormonde, finding him ‘too agreeable’, and bore him an illegitimate son (her marriage to Sir James Thynne was childless). Later she became involved in Royalist plotting, her father the Earl of Holland having been executed for his part in the second Civil War. Lady Isabella left England in 1650, finding refuge with Ormonde’s charitable and sensible wife Elizabeth Desmond.⁶

It was hardly surprising under the circumstances that a formal separation was arranged between Sir James Thynne and his wife, the deed being dated 1 November 1653.⁷ The real point of this extremely long and detailed document was not however that husband and wife should ‘freely and voluntarily for ever hereafter permit and suffer each other to live separate and apart the one from the other’; nor even that Lady Isabella should be accounted, so far as her husband was concerned, as ‘feme sole’, that is he should exercise no control over her; since both these states of affairs obtained already. Both sides were actually concerned to establish proper financial arrangements: Lady Isabella abandoned her claim on ‘all her Jointures and title of Dower’ settled on her at her marriage in 1640, in return for proper provision and maintenance.

Yet it was seldom that a woman, even supported by influential relations, secured more than the partial return of what had once been theoretically her own; Lady Isabella’s allowance being a small part of what she had brought with her on marriage.

Not all the matches arranged by Mary Countess of Warwick for her Rich nieces were as happy as that of Lady Essex and Daniel Finch. Lady Essex’s sister, Lady Anne Barrington, was made of flimsier stuff. Like many late seventeenth-century ladies Lady Anne heartily disliked living in the country. In 1658 wilful Betty Verney had written yearningly from the bedside of her sick sister of her London memories: ‘Hyde Park and the cherries there is very pleasant to me.’ It was also taken for granted that more estimable characters would share these sentiments: that admirable woman Lucy Countess of Huntingdon ‘naturally loved London very well’, wrote one of her children in 1664. But as time wore on, the connection between London and adultery (at least for wives) and the country and boredom (at least for wives) did not only exist in the plots of Restoration plays. Husbands punished their wives or alternatively secured the sanctity of their marriage beds in advance by dispatching their wives away from temptation. ‘To send a man’s wife to the Peak’ was a phrase coined when the second Earl of Chesterfield sent his Countess back to his Derbyshire estates in a fit of jealousy.⁸

In 1679 Lady Anne’s husband, Tom Barrington, made a stand after a lengthy period of unhappiness. ‘But for you living in London’, he told her, ‘I shall not, nor ever will consent thereto …’ For fifteen years he had conformed to her humour, and now she must conform to his and live ‘a soberer life in the country’. Furthermore she must settle all her estates on their children. The negotiations were left to Lady Anne’s brother-in-law Daniel Finch. He proceeded carefully: while not defending Lady Anne’s rash conduct in London, he pointed out that she must receive some allowance in return for her estates; otherwise it was ‘as if my Lady had committed so great a fault as that she must pay a thousand pounds a year per annum to repair it’. Lady Anne might have been a bad wife, but she had been a good mother, rising in the middle of the night to care for her child and visiting it while at nurse daily. Fortunately for Lady Anne the situation was resolved when Tom Barrington died; three years later she was able to marry again without hindrance.⁹

Unofficial separations brought their own problems, also financial. Peg Verney never really got on with her husband Sir Thomas Elmes – neither of them was sufficiently even-natured to make a go of it – and after a few years what amounted to a separation was tried. Sir Thomas believed that ‘to part in Love’, that is, amicably, might increase the affection they felt for each other; but he was concerned that it should be ‘done in a way that nobody may know, certainly guess they will, but know they need not’. There was an attempt at a rapprochement which did not really work; for the rest of her life Peg was involved in arguments with Sir Thomas over the kind of money due to her, if any. At her death Sir Thomas angrily took the line that Peg had had no right to make a will leaving away money from him (because she was legally still his wife).¹⁰

When it came to an official arrangement it was possible to secure a form of divorce – divortium a mensa et thoro, divorce from bed and board as it was known – in the ecclesiastical courts. This was the kind of process threatened by the father of Mary Joyce in January 1661, as reported by Pepys, because she and her husband Will led ‘a strange life together, nothing but fighting, etc.’.¹¹

The word ‘divorce’ was generally applied to such cases, but we should in fact find the term judicial separation more accurate, since it was an important aspect of the process in the ecclesiastical courts that the parties concerned, including the injured party, were not free to marry again. This was in accordance with Canon Law. Although at the start of the century some preachers had been suggesting that remarriage might be possible for the innocent, this prohibition was strongly restated at the ecclesiastical conference of 1604.

Occasionally people did remarry, thus forfeiting the money which they had deposited as a security against doing so. In November 1605 the beautiful Penelope Rich, inspiration of Sir Philip Sidney and long-time mistress of Sir Charles Blount (by whom she had borne several children), obtained this type of divorce a mensa et thoro from Lord Rich in the ecclesiastical courts. It was specifically laid down that neither should remarry in the lifetime of the other. Despite this, six weeks later Penelope Rich was married to Sir Charles Blount. However, since this was a clear violation of Canon Law, her children by Blount were not made legitimate; and ironically enough Penelope Lady Blount, who had been happily received at court throughout her long adulterous liaison, was now debarred from it.¹²

William Whateley was a country vicar in the early seventeenth century, known as the Roaring Boy of Banbury for the power and vitriol of his sermons. In 1619, in a tract called. A Bride-Bush, he stated that adultery and desertion annulled the marriage contract and thus permitted remarriage. He was promptly called before the Court of High Commission and obliged to recant; he withdrew the assertion in print in a second tract of 1624, A Care-Cloth. Only the Commonwealth Marriage Act of 1653 brought in a brief period of greater latitude; the notion of marriage as a purely civil ceremony denied the iron grip of Canon Law. The Act stated that the innocent party should be allowed to marry again according to the recommendations of the Westminster Assembly of Divines. (Milton’s famous proposals on the subject of divorce were obviously framed with the idea of remarriage in mind.)¹³ But although reformers continued to press for this possibility, with the Restoration this sophisticated Puritan interlude came to an end.

If the parties were anxious to remarry, the simplest method was for them to secure a decree of nullity which established that the marriage had been void ab initio, from the beginning. The Ladies Dictionary of 1694, a comprehensive work, referred to divorce ‘in our Courts’ as only being through nullity; grounds including Consanguinity and Affinity (of blood) as well as Precontract and Impotency. To be cynical, a decree of nullity was expensive but not impossible to secure. Of the various grounds, non-consummation, if applicable, was the obvious one to choose; it was a subject however which might produce some strange assertions. When Frances, later Countess of Somerset, had been determined to get rid of her first husband, the Earl of Essex, she did so on the remarkable grounds that, although not impotent towards women in general, Essex was impotent towards her in particular. With the support of King James, Frances secured her decree of nullity and was able to wed Robert Carr, Earl of Somerset, the royal favourite. On the other hand when Lady Desmond sued Lord Desmond in 1635 it was on the more straightforward grounds that her husband had ‘insufficiency to please a reasonable woman’.¹⁴

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 gates 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 to 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 first of a long series of legal proceedings to get rid of Lady Anne Roos was instituted in the House of Lords by the Rutland family. Lord Dorchester was said to be quite exasperated by their attitude, which combined the mercenary and the moral: why should he relinquish any part of his estate, i.e. the money that had constituted her dowry, to make up for ‘the miscarriages of his daughter’?³⁶ Implicitly the Rutland family was fining Lord Dorchester for having sold them a bad bargain in the shape of Lady Anne in the first place.

Unfortunately Lord Dorchester’s faith in his daughter’s virtue was not justified. Lady Anne, growing bored with a discreet but dull existence under her father’s roof, fled from his protection. Reverting to her former defiant ways, she led a life which became a public scandal. (Given her situation, one has to admire her courage if not her morals; or perhaps it was sheer miscalculation, based on her original contempt for her husband, which induced her to take such risks.) At some point she secured custody of Ignoto and she also gave birth to another child, also a son. These two boys went through life known as John and Charles Manners respectively, the family name of the man who was still in the early 1660s their legal father.³⁷

Lady Anne’s behaviour disgusted and infuriated Lord Dorchester. In one of those sudden volte-faces to which this passionate and peppery man was prone, he abandoned her cause altogether. He flung himself urgently on the side of the Rutland family and was henceforth prominent among his daughter’s attackers. It was certainly bad luck for Lady Anne that as well as having an inadequate husband, she was also saddled with a half-crazy father. Supposing as we must that she had inherited her own share of instability from Lord Dorchester, it was also bad luck that it manifested itself in her reckless sexuality; so much less socially permissible in a woman than violent arguments and ridiculous chemical experiments in a man.

At this point a divorce from bed and board was secured in the ecclesiastical courts, on the grounds of Lady Anne’s adultery, without too much difficulty. The next step was to illegitimate Lady Anne’s sons and any other children she might bear. This needed an Act of Parliament and a Bill was duly prepared relating details of Lady Anne’s ‘foul carriage’ in full. This Bill was given its first reading in October 1666.

By this time Lady Anne herself had retreated to Ireland, When the Bill to illegitimate the children came to have its second reading in the House of Lords in November 1666, Lady Anne was summoned ‘at the last place of her abode that can be discovered’, but failed to appear.’³⁸ The Bill seemed all set to go through when suddenly the ancient quarrel concerning the Roos title blew up again.

The Duke of Buckingham complained that the language of the Bill was prejudicial to his own claim to the Roos title. Lord Dorchester, now a fierce Roos partisan, first insulted Buckingham and then had a physical fight with him in the Painted Chamber (although he was nearly twenty years his senior). In the course of this Lord Dorchester had his periwig pulled off and the Duke had a handful of his hair pulled out. Both the fuming peers were clapped into the Tower to cool off, and only released on petitions of apology. The question of the Roos title was not so easily settled. The committee could not find a way of satisfying both parties, and the Bill as a result got further delayed.³⁹

It was not until 8 February 1667 that the Act making the children of Lord Roos illegitimate finally received the royal assent.⁴⁰ In the meantime, in late January, the active Rutland family had seen to it that no trouble was experienced with the Bill in the House of Commons: no fewer than forty-six Members were entertained at their expense to a dinner at the Dog Tavern, and although Lord Roos himself had a fit of colic and had to rush away (festivities do not seem to have been his strong point), the Members stayed on. Then, ‘as soon as they had dined, we carried them to the House of Commons’, where the Bill was passed without amendments.⁴¹

As for the debated Roos title, that matter was not finally settled for a further 200 years. ² The Duke of Buckingham died in 1687 leaving no children of either sex; as a result the ancient barony of Roos or de Ros (which could pass through the female line) fell into abeyance between the descendants of his aunts; to one of these the barony was allowed in 1806. On the other hand the Earls and later Dukes of Rutland were permitted to bear the Roos title by both Parliament and sovereign until the late nineteenth century when it was quietly dropped.⁴²

Lord Roos was now once more in the happy position as it seemed to him, of being without a legal heir. He was also separated from Lady Anne in the ecclesiastical courts. But the enormous hurdle of the divorce a vinculo matrimonii remained to be cleared. Even assuming that this type of divorce was secured by Act of Parliament, it was still by no means clear at this date that Lord Roos would be able to remarry in such a way that the offspring of such a second marriage would be unquestionably legitimate. And that after all was the whole object of the exercise. What point was there in dragging the family name through Parliament to obtain an expensive and controversial divorce if at the end of the day Lord Roos was simply free from Lady Anne? In most senses he was free from her already and he was certainly free from the presumptuous claims of her cuckoo sons. From the point of view of the Rutland family then, the Roos case in Parliament was entirely about remarriage, not divorce.

It was also in the nature of a test case, in quite a different respect. By the late 1660s hopes that Catherine of Braganza, the Portuguese wife of Charles II, would bear a living child were fading (she had suffered two miscarriages). The King however already had a large brood of illegitimate children, and was clearly capable of begetting a great many more (in fact several of his bastards were born in the 1670s). One way to solve the problem of the royal succession – his brother James Duke of York, already suspected of Catholic sympathies, was heir presumptive to the throne – would be for the King to divorce Queen Catherine and marry again. There is evidence that Charles II did at least passingly consider this solution; he certainly paid keen attention to the debates over the Roos case in the House of Lords, attending them sedulously, and observing in one of his characteristic asides that the whole thing was as good as a play. Once again, it was the question of the legitimacy of the children of a second marriage which obsessed the monarch: heirs to the throne of dubious legitimacy threatening a national disaster where for the Earls of Rutland it was merely a personal misfortune.

There were other interests at stake. Lords Anglesey and Ashley (the latter soon to be created Earl of Shaftesbury), whose sons had married Lord Roos’s two sisters, ‘drove in on the bill’; it was not in their sons’ best interests that Lord Roos should be allowed to remarry, since if he could not both their wives were potential beneficiaries. Lord Castleton took the opportunity to demand a fourth part of the lands settled on his mother, sister to the Earl of Rutland, but later withdrew the claim.⁴³

Remarriage then was the issue for most of the interested parties – most but not all. For Lady Anne Roos the issue was quite different: it was the uncomfortable issue of money, her money, her very livelihood. In February 1668 Lady Anne brought her own petition to the House of Lords stating that she had not received a penny from Lord Roos for four years and was thus destitute, yet she had brought a great fortune to Lord Roos on her marriage. None of this was now allowed to her, and she could not dispose of her own estate during Lord Roos’s lifetime. Thus she was daily in danger of being arrested for debts, some of which had been contracted while she still lived with her husband. It was this dire state of poverty, she explained, which had caused her to flee to Ireland ‘that her friends and relations might not be eye-witnesses of her misery’. While in Ireland she had been unable to travel to England to vindicate her honour. (Rumour said that Lady Anne had in fact travelled to Ireland with her lover; probably both stories were true.) Lady Anne implored Lord Roos to pay her reasonable debts, to give her yearly maintenance in proportion to the dowry she had brought with her, and enable her to dispose of her own estate so that she could support her children and keep them and her out of gaol.⁴⁴

In the spring of 1670 a Roos Bill – for divorce – was once more before Parliament, and in society provided the main topic of conversation. Much turned on the precise interpretation to be given to various texts in the New Testament. The most favourable were those of St Matthew, in particular that verse where Jesus declared that ‘whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery’ – for this could be held to justify remarriage when fornication had been the cause of separation. (The versions given by St Mark and St Luke were less susceptible of such a favourable interpretation: ‘Whosoever shall put away his wife, and marry another, committeth adultery against her’.) Then the various precedents were discussed, the most often quoted being that of the Marquess of Northampton in the reign of Edward VI. After his first wife had been put away for adultery, he had married ‘the good and virtuous’ Lady Elizabeth, daughter of Lord Cobham; the children of this marriage had been legitimated.⁴⁵

On the second reading of the Bill, Lady Anne was once more called to the House of Lords. This time she did appear and had her petition for maintenance read. At the same time she was asked what she said to ‘the scandals’ laid upon her by Frances Countess of Rutland. Lady Anne’s answer concerned money not morals: her petition she said was no scandal, as she hoped to prove if she had liberty of appeal. She asked to have counsel to speak for her. Lady Anne then left and the House considered the matter. However when Lady Anne was recalled the answer came back that ‘she was gone’.⁴⁶ There is no evidence that she ever did get her portion returned – particularly in view of the hostility of her father – while her peripatetic way of life indicates that her debts continued to plague her. So Lady Anne ended by being penalized financially for her immoral behaviour; a development which was not exactly planned, but not disagreeable to society either.

As for the Marquess of Dorchester, he stood up in the House of Lords and publicly gave his assent to the Bill because of the ‘foul blemish’ done by his daughter to her husband; while the Earl of Rutland spoke eloquently of Lord Roos being the ‘sole heir male’ to the ancient Manners family, with whom the honour must expire if he was not allowed to marry – and procreate – again. Lord Rutland’s appeal fell on receptive ears in the Lords. There was general compassion for his family’s plight and general indignation that an ‘impudent woman’ should have brought it about. Although some peers still queried the important precedent which was being set, and the Duke of Buckingham continued to fuss about the use of his own title in the Bill, finally it passed through Lords and Commons.

On 1 March Lord Roos felt confident enough to spend 1s 10d on ‘Fagotts’ for a bonfire ‘at the good accord of the King and the House of Parliament’. On 11 April 1670 the Bill for a divortium a vinculo matrimonii received the royal assent (although the Duke of Buckingham succeeded in getting the actual title of Roos left out of it).⁴⁷

The decision created a sensation and was much discussed, often with a sense of unease. Although public sympathy lay with the injured and innocent Lord Roos, the words of the New Testament, especially those of St Mark and St Luke, had to be explained away. A pamphlet printed afterwards of a discussion between ‘a clergyman’ and ‘a private gentleman’ stressed St Matthew’s text; of the Early Fathers, St Jerome had supported the view that a man could put away his wife for fornication; certain early councils of the church had allowed remarriage. All of this was less convincing than the robust practical statement at the end of the pamphlet that if a man were not allowed to remarry he were ‘to be put into a kind of Matrimonial Purgatory, and be rendered thereby incapable to enjoy, either the advantages of a married one, or the freedom of a single man.’⁴⁸

It was to free Lord Roos from the ‘Matrimonial Purgatory’ into which the wanton behaviour of Lady Anne had cast him that the whole cumbersome long-drawn-out process of the law, lasting one way and another for nearly ten years, had had to be invoked.

As might have been predicted, it was not long before Lord Roos, freed from his purgatory, essayed again those delights of heaven – would that they might not prove once more the torments of hell – promised by marriage. He had in fact been a target for matchmakers for some years, who laid contingency plans just in case this rich prize became available. In 1671 he married Lady Diana Bruce. The choice, out of all the girls in England, was an unlucky one; the next year she died in childbirth, and the child, a boy, died too. (The payment for embalming the body of the second Lady Roos appears in the family papers shortly after that joyous expenditure of 1s 10d on faggots for a bonfire to celebrate freedom from the first.)⁴⁹

Eighteen months later Lord Roos married again: the new bride was Catherine Noel, daughter of Viscount Campden. A son John was born in 1676, who bore in his turn the controversial title of Lord Roos when his father succeeded to the earldom of Rutland three years later. So the Manners succession was secure; too late however for Lord Roos’s mother – Frances Countess of Rutland had lived to see her son’s divorce pass through Parliament but died a year later.

John, ninth Earl of Rutland, a prominent supporter of William III, was in his later years also famous for his dislike of the town of London; no doubt his early traumatic experiences with Lady Anne had inculcated this loathing. Mainly at Belvoir, he lived till 1711. As for Lady Anne, she was dead before January 1697. She too married again – a Mr Vaughan, about whom little is known except the fact that he was wounded in a duel by the boorish seventh Earl of Pembroke in 1677. John and Charles Manners were still living in 1699, but beyond that vanish from the pages of history.’⁵⁰ The end of their lives is Ignoto – unknown – as once John Manners’s name had been.

Yet the trail of the Roos scandal was not totally obliterated, even in the next generation. If we return to Rachel Lady Russell, that ‘bright example to a brittle age’, we find that one of her primary aims in her dutiful widowed years was the splendid mating of her two daughters, another Rachel, and Katherine, as well as the care of her son Wriothesley. Rachel – little Rachel, she who had sung in bed and talked of Papa at ‘Wobee’ – was just fourteen when she married Lord Cavendish, heir to the Earl of Devonshire. Where Katherine Russell was concerned, the most eligible bridegroom in England in the early 1690s (other than her younger brother Wriothesley) was none other than John Lord Roos, offspring of his father’s third and fortunate marriage to Catherine Noel.

Once again, as with the union of that other Lord Roos and Lady Anne Pierrepont nearly forty years earlier, everything seemed set fair for the match. John Earl of Rutland, as a Whig, was likely to look upon the daughter of the martyred Lord Russell with sympathy, and the Russells were likely to regard him with similar benevolence. There was a family connection: Catherine Countess of Rutland, born a Noel, was related by marriage to Rachel Lady Russell’s ‘sister Noel’. As for Katherine Russell herself, she was said to be ‘of a sweet temper’, had had a suitable education for her position, would be a good manageress, and ‘wanted no wit’:⁵¹ in short, the ideal daughter-in-law. Nothing was known to the discredit of the young Lord Roos (he was the same age as his intended bride) and a great deal to his credit, including those vast Midland possessions he must one day inherit.

All the same Rachel Lady Russell hesitated. Twenty years later the memory of that frightful decade of scandal and divorce centred on the name of Roos had not utterly faded; besides there were those awkward Manners sons to be remembered, barred from the honours and the estates, but still in themselves constituting a reminder of those ugly days.

In the end, wise woman that she was, Lady Russell decided that it was wrong to avoid ‘the best match in England for an imaginary religious scruple’. In characteristic fashion, she managed to sound a note which was both high-minded and worldly. ‘If a divorce is lawful’, she wrote, ‘as agreeing with the word of God, I take a marriage after it certainly to be so. And as for the estate, as we enjoy that by man’s law, and that man can alter, and so may alter again, which is a risk I am willing to run, if there should be enough left.’⁵²

So John Lord Roos and Katherine Russell, both still just under seventeen, were married in August 1693. The wedding took place at Woburn Abbey. Afterwards the bridal pair made a triumphal progress to Belvoir Castle, something more like the journey of young sovereigns through their own country, than that of a bride and groom going to his father’s house. The High Sheriff paid his respects at Harborough. As they approached Belvoir, thousands of people began huzza-ing. At the gates of the Castle were to be found twenty-four fiddlers and twenty-four trumpeters. A magnificent banquet was followed by a visit of the bridal pair to the Great Hall where a vast cistern full of wine had been established. Healths were drunk – first in spoonfuls, then in cupfuls; after an hour the level of the cistern had hardly dropped an inch. After that the healths were drunk in great tankards.⁵³ The celebrations were in short even more magnificent than those which had heralded the arrival of Lady Anne Pierrepont into the Manners fold in 1658.

Rachel Lady Russell herself had to imagine the spectacle of her daughter’s apotheosis since her eyesight was by now very bad; she followed to Belvoir more slowly and in some discomfort. Ultimately however, it was a great source of satisfaction to her that all three titles with which she was associated, Bedford, Devonshire and Rutland, were transformed into dukedoms. Bedford – her father-in-law – and Devonshire – her son-in-law were created dukes in 1695. Transforming the earldom of Rutland into a dukedom took a little more time in view of John, ninth Earl of Rutland’s obstinate dislike of London; despite Rachel’s pleas he refused to attend the coronation of Queen Anne, the perfect opportunity for securing such titular advancement. Finally in 1703 John Manners, formerly the unhappy cuckolded Lord Roos, was made the first Duke of Rutland. His story had ended happily after all.

The story ended happily in another way. It had been written into Katherine Russell’s marriage contract – oh shades of the past! – that she would forfeit her jointure ‘if ever she lived in town without his [her husband’s] consent’.⁵⁴ So amiable, so diligent and so virtuous did this Lady Roos prove herself that eventually her father-in-law relaxed the prohibition. When in 1711 Katherine died giving birth to her sixth child at the age of thirty-five not only Rachel Lady Russell but all her adopted family were cast into despair. It was appropriate that where woman’s reputation was concerned, the ghost of the wanton and ‘impudent’ Lady Anne Roos should be finally laid by the daughter of the noble Rachel Lady Russell; for the one was the classic villainess, the other the classic heroine of the age in which they lived.

1It was not until 1857 that divorce was made generally available in England – to men on grounds of their wives’ adultery alone, and to wives on grounds of their husbands’ adultery, accompanied by cruelty or desertion.

2Today both titles are still represented in the ranks of the peerage: there is a Baroness de Ros (for the ancient barony is currently held by a woman) and Baron Roos of Belvoir is among the titles held by the Duke of Rutland; this new barony being created in 1896.