“Marriage is No Protection for Crime”: Coverture, Sex, and Marital Rape in Eighteenth-Century England

Abstract If coverture justified patriarchal control and legally erased many aspects of wives’ separate existence, did this mean that husbands in eighteenth-century England also enjoyed absolute authority over their wives’ sexual bodies? This article examines how contemporaries described the sexual boundaries between spouses and what wives could do when they had been violated by their husbands. Wives had few legal protections and limited social and economic resources to escape unwanted marital sex, but the small number who could afford the high costs turned to the ecclesiastical courts to legally separate from their husbands. The five case studies from the ecclesiastical courts explored here are exceptional, first, because sexual problems were at their core, and second, because unusual collateral evidence survives describing attorneys’ and judges’ opinions about spouses’ bodily rights within marriage. Whether they were seeking relief from reproductive toil, venereal infection, threat of sexual violence, or trauma from marital rape, these wives wanted to escape their husbands—but they faced hurdles. Because English ecclesiastical law did not explicitly identify sexual discord as justifying marital separation, the women's attorneys had to demonstrate that unwanted sexual relations were acts of cruelty. By invoking bodily safety, decorum and propriety, and sensibility and sympathy, advocates argued against husbands’ absolute conjugal authority. The author considers how broader transformations in beliefs about gender and sexuality may have resulted in giving wives slightly more room for protection by the second half of the eighteenth century, particularly when they faced the threat of marital rape or venereal infection.

husbands. 1 Serving as more than florid descriptions, these bodily and organic symbols provided the natural rationale for women's legal status in marriage as femes coverts. Coverture gave husbands both control of their wives' property, household decisions, and children and the right to discipline and corporally punish their wives. 2 To be clear, coverture was more debilitating than merely presuming women's inferiority to men. It was designed to be the near-complete absorption of a wife's identity into that of her husband. For example, jurist Sir William Blackstone explained that a husband "cannot grant any thing to his wife . . . for the grant would be to suppose her separate existence." 3 Though there were important exceptions whereby some wives carried on business in their own names and others had their property protected in equity courts, 4 ultimately eighteenth-century English marriage was legally imagined to be an asymmetrical union, a state in which the "husband and wife are one and that one is the husband." 5 If coverture legally erased wives' "separate existence," 6 did this also mean that husbands possessed absolute authority over their wives' sexual bodies? Once wed, did a woman have a right to say no to sex? When a husband forced his wife into intercourse, was it considered rape? 7 These are difficult questions to answer given the nature of surviving sources. Eighteenth-century culture was rich with salacious gossip, novels centered on sexual seduction, innuendo-laden visual satires, and explicit and sometimes violent portrayals of sex in pornography and erotica, but contemporaries could read surprisingly little about spousal sex. 8 Letters and diaries mentioning conjugal relations survive, but rarely elaborate upon sexual dynamics. 9 And while legal resources such as the published proceedings of London's Old Bailey provide detailed evidence about interpersonal relations, it and other courts left little record of sexual conflict within marriage. This was in part because there were no eighteenth-century laws against conjugal sex, except in the rarely prosecuted crimes of bridal abduction, bigamy, incest, and sodomy. There was no common-law remedy for the spouse who wanted to say no or who had been forced into intercourse. Even England's ecclesiastical courts, which oversaw spousal disputes, did not explicitly identify marital rape or nonconsensual sex as a cause for either annulment or separation.
The apparent legal invisibility of marital rape both in common and ecclesiastical law did not mean, however, that the concept itself was entirely unimaginable in the eighteenth century. Manuscript case notes, legal diaries, and published jurisprudence record ecclesiastical practitioners explicitly discussing unwanted marital sex. In the five marital causes examined here, advocates contested whether wives could say no to sex in cases of venereal disease, threats of sexual violence, physical restraint, or sexual assault. With no explicit prohibitions against such sexual behavior, advocates on both sides turned to other branches of law, moral and religious principles, sentimental depictions of marriage, personal innuendos about disputants and one another, and the well-timed sarcastic remark or fresh piece of gossip. Surprisingly, wives' defenders even used words like rape, ravish, and consent to describe sexual conflict. Though husbands often won these legal battles, they did not always. Whether wives prevailed or not, these records register unexpected evidence that husbands' carnal rights and wives' absolute sexual subjugation were debated. London (Chicago, 1998), 301-24; Simon Dickie, "Fielding's Rape Jokes," Review of English Studies n.s. 61, no. 251 (2010): 572-90. 8 David M. Turner, Fashioning Adultery: Gender, Sex, and Civility in England, 1660-1740(Cambridge, 2002; Karen Harvey, Reading Sex in the Eighteenth Century: Bodies and Gender in English Erotic Culture (Cambridge, 2004); Vic Gattrell, City of Laughter: Sex and Satire in Eighteenth-Century London (New York, 2006); [Edmund Curll], The Cases of Polygamy, Concubinage, Adultery, Divorce &c. (London, 1732); [Samuel Bladon], Trials for Adultery: or, the History of Divorces, 7 vols. (London, 1779-81). 9 Some male diarists chronicled their sexual exploits but did not typically delve into their wives' feelings; see Robert Latham and William Mathews, eds., The Diary of Samuel Pepys, 11 vols. (London, 1971) 1:217, 279;2:75;4:274, 291;5:94, 200;8:588, 594;9:90; twice Pepys describes his wife 's enjoyment, 8:382, 9:363;Craig Horner, ed., The Diary of Edmund Harrold, Wigmaker of Manchester, 1712-15 (London, 2008. For brief remarks about her permanently discontinuing conjugal sexual relations after her fourth delivery, see "Diary of Sarah, Lady Cowper, 1700-16," Hertfordshire Public Record Office, D/EP F29-F35, esp. vol. 1 (1700-1), 3, 20-21, 61. The fifteenth-century mystic Marjory Kempe described her husband's forcing her repeatedly into sexual intercourse; see James Brundage, Law, Sex, and Christian Society in Medieval Europe (Chicago, 1987), 507; "The Book of Margery Kempe" (ca. 1440), British Library, London, Add MS 61823. (Hereafter this repository is abbreviated as BL.) "MARRIAGE IS NO PROTECTION FOR CRIME" ▪ 811

MARITAL RAPE AS BLIND SPOT
Before the late twentieth century, there were no laws that protected legally wed wives from their husbands' compelling them to have heterosexual intercourse. 10 Though customs and courtesies allowed wives to abstain after childbirth, little could be done to redress their husbands' breaching such cultural expectations. 11 Wives could not even criminally prosecute their husbands for violently forcing them into sex: English common law did not recognize marital rape. 12 There are many underlying principles beneath this long-held marital rape exemption. Rape had been a capital felony for centuries, but medieval law had classified it as an act of trespass against a baron, not the victim herself, which would make marital rape culturally and legally illogical. 13 Even with a broader historical transformation in which rape was understood by the eighteenth century as "a breach of the liberty of the woman and a great injury to her," 14 it remained unclear under coverture whether a husband could commit such a crime against his wife. The posthumous 1736 edition of Matthew Hale's Historia Placitorum Coronae explained why: "The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract." 15 Hale's explanation was 10 The statute of 1487, 3 Hen. 7, c. 2, criminalized the bridal abduction of women and girls, but the law may have served the interest of women less than that of their fathers and male relations motivated to protect familial property; wealthy widows abducted or forced into marriage had fewer protections.  , 1945-1994," Women's History Review 26, no. 3 (2017 Caroline Dunn's elegant study cautions against viewing rape in the medieval and early modern world in the same category as understood in later periods; Caroline Dunn, Stolen Women in Medieval England: Rape, Abduction, and Adultery. 1100-1500(Cambridge, 2013. See also Lawes Resolution, 378-402. As a category, rape had a contradictory and complex status in legal history, as eighteenth-century authorities noted; see A Treatise of Feme Coverts: Or the Lady's Law (London, 1732), 39-52; also Blackstone's observations that a man accused of raping a prostitute could be charged in criminal law but not in civil law: Blackstone, Commentaries, 4:213.
14 Adam Smith, Lectures on Jurisprudence, ed. R. L. Meek, D. D. Raphael, and Peter Stein (Oxford, 1978) based on marriage collapsing a woman's identity under her husband's identity and authority. It also was based on centuries of canon law defending what was considered the conjugal debt, in which spouses were expected to owe sexual comfort to each other perpetually. 16 The 1753 Hertfordshire case of Job Wells, who was prosecuted for raping his sixteen-year-old biological daughter, suggests that marital rape was not seen as a similar violation. Tucked into the widely circulated narrative, an aside reveals what Wells did to his wife a year earlier. Because he was "much given to Women, especially when he had been drinking, and then he was a down-right Brute," Job did not restrain himself. "His Wife died about a Year ago, in Child-bed, and there is a Report, that he was the Occasion, by forcibly going to Bed to her the next Day after she was delivered, for she died on the third Day." 17 Though both assaults might now be considered sexual battery, this is not how they were seen in eighteenth-century law. Rape was "an Offence in having unlawful and carnal Knowledge of a Woman by Force, and against her Will." 18 Job's attack on his daughter met those requirements: it was unlawful because it was incestuous, against her will, and forced as he threatened her with a knife and swore that "he would rip [her] up, or cut [her] Throat" if she resisted him. 19 But Job was not charged for a crime against his wife, perhaps because it had occurred a year earlier and he refused to incriminate himself. Unless he had committed what was defined as an unnatural act like sodomy, there were no grounds upon which to prosecute him, even if her death resulted from the sexual attack. Job's assault was technically unrecognizable in common law. But the author's not identifying it as rape may have also been instinctive-a sense that wives truly gave perpetual sexual consent at the altar and that marriage collapsed the bodily boundary between spouses.
Conceptualizing marital rape required viewing a wife as possessing a separate existence that remained intact despite marriage. This was difficult for some contemporaries to imagine. Even the women's rights advocate Sarah Chapone, who lamented wives' loss of property under coverture, nonetheless accepted husbands' eighteenth century, the only legal author to state the marital rape exemption was Theodore Barlow in The Justice of the Peace (London, 1745), 453. It was only with David Hume's Commentaries on the Law of Scotland, 2 vols. (Edinburgh, 1797) (which represented Scottish, not English, law and was written by David Hume's nephew, who shared the same name) and Edward Hyde East's Pleas of the Crown (London, 1803) that marital rape was explicitly addressed again. Richard Burn did not incorporate the marital rape exemption in his The Justice of the Peace, and Parish Officer, 2 vols. (London, 1755) but it is mentioned in Richard Burn, Justice of the Peace, 6 vols., 26th ed. ( The Athenian Mercury editor rebuked a disinterested wife in 1694 that it was "not only indiscreet, but also very wicked . . . to refuse [her husband] her bed" because Saint Paul said both spouses owed each other their bodies and warned "defraud ye not one another, except it be with Consent for a time; therefore without he is as well satisfied as she, cannot deny him." "Consent for a time" was not specified, but it was (at least grammatically) a matter of the husband's consent: if he is not "as well satisfied as she" with abstinence, then the wife "cannot deny him." A Pauline passage that articulated a mutual conjugal obligation was expressed asymmetrically here. The husband consented, not the wife. If he wanted her body, she "cannot deny him." 21 Daniel Defoe saw matters quite differently in his 1727 Conjugal Lewdness or Matrimonial Whoredom. Hale, Chapone, and the Athenian Mercury's editor asserted husbands' conjugal authority; Defoe attacked it. He criticized the assumption that marriage allowed either husband or wife to exercise unbounded lust. Both spouses should be modest, civil, and self-governing, but above all else patient with the other's desires and "seasons." Sex during menstruation and pregnancy was unnatural. Good husbands respected their wives' wishes to abstain after years of reproduction. There should be "No Violences upon Nature on one Side or another; no pushing the Constitution to Extremities, no earnest Importunities, no immodest Promptings; let all that Nature dictates be free, spontaneous, voluntary and temperate." 22 Defoe described how women could be sexually abusive, too, but it was largely husbands who coerced or forced their wives into unwanted sex. Defoe cast both spouses as separate, distinct individuals who had the mutual obligation to respect one another's different levels of desire and the mutual right to consent to sexual relations. Unlike Hale, he refuted husbands' absolute conjugal rights over their wives, viewing unwanted marital sex as morally criminal, even if it was legal: "Marriage is no Protection for Crime . . . [T]he Woman may be ravish'd in the Marriage-Bed, and the Man deserve the Gallows for Crimes offer'd to his own Wife." 23 Defoe's explicitly identifying marital rape in print in the 1720s was singular. His argument asserting spouses' separate existence within marriage was radical. It was also little read. Unlike his other works, Conjugal Lewdness was never republished after the 1720s, rarely referenced, and within decades described as "very scarce" when appearing at auction. 24 His text was ignored by reviewers, but probably not because its conceptual framework was entirely sui generis. His argument was fundamentally religious, mindful of sin, and shaped by imagined principles of natural law. In Conjugal Lewdness, Defoe was unusually explicit in discussing routine marital sex for its age, but his Godly injunctions were familiar to Christians. 25 As a Dissenter, Defoe diverged from the Church of England on many points. Nonetheless, he shared with the Anglican Church the view that marriage was more than a civil contract but a religious, spiritual, and moral union. Though secular courts could not prosecute unwanted marital sex or marital rape, England's ecclesiastical courts had spiritual jurisdiction over sacramental and moral matters, including the sort of marital conflict Defoe described. Here, ecclesiastical lawyers-also known as civilians-theoretically could consider whether unwanted or violent conjugal relations might justify a couple's marital separation. 26

MATRIMONIAL CAUSES IN THE ECCLESIASTICAL COURTS
Until the Matrimonial Causes (Divorce) Act of 1857, for centuries, English spouses had been tethered for life, required to cohabit and fulfill their conjugal debts. Most of the miserably married devised ad hoc solutions or awaited death, but those who could afford its high costs turned to England's ecclesiastical courts for a separation "a mensa et thoro." 27 These "bed and board" separations let spouses live apart and cease sexual relations. But the costs were steep: both partners were forbidden from remarriage while the other was alive; wives lost custody of their children; and wives also remained femes coverts in common law but were forced to support themselves on alimony, which was usually set at the lowest amount that women of each station could survive on.
English canon law permitted couples to separate when adultery or cruelty (or both) could be proved. It was comparatively easy to determine infidelity, but cruelty was almost indeterminable because there was no definitive list of unacceptable behaviors. 28 As Judge William Scott (later Baron Stowell) explained in a 1790 case, one could not say what exactly cruelty was, "only what it is not." 29 Whether unwanted sex or sexual violence counted as cruelty depended partly on the view of the judge hearing such a case.
For the most part, unwanted or violent sex was described almost incidentally or simply as one type of wrong among many others. For example, when Anne Buntin sued to nullify her marriage on the grounds of her husband's alleged impotence, she stated that during sex he used "some artificiall Instrument ty'd or fasten'd to his Body with which he had like to have kill'd or ruined this Depont." 30 Sexual abuse peppered countless marital separation suits. Husbands hit, kicked, and pinched their wives while in bed at night and particularly abused them while they were pregnant, lying in, and nursing. 31 Husbands forcibly exposed their wives' private parts to others: John Wallop ordered a servant to give his wife a clyster (enema) against her will; Michael Lister and Isaac Prescott stripped their wives and commanded the servants and others to view their naked genitals. 32 Some men forced their wives to share a bed when they were lying in, or when either spouse had smallpox or other contagious diseases. 33 Some documents alluded to rape. Christopher Clarke warned his wife "that a man might ty his wife to a bedpost & was not accountable to anybody." 34 Sarah Aggate's husband stripped her naked, chained her to a bed in a garret for weeks, and apparently continued to have sexual relations with her until she escaped. 35 Amelia Brazier's husband announced to a judge in 1781 that "'he would beat and pox his wife whenever he thought proper.'" 36 A few men subjected their wives to "unnatural" practices. 37 Jane Prescott stated that her husband took her to bed "and behaved with a Barbarity and Indelicacy which Modesty forbids this Informant to mention." 38 Sometimes wives won their ecclesiastical causes. Sometimes they did not.
Eighteenth-century historians of marriage have fully acknowledged these acts of sexual violence, 39 but they have also tended to "shy away from addressing the issue outright." 40 This is not for lack of concern, but because the nature of the archives does not easily reveal how unwanted marital sex was interpreted legally. Matrimonial causes produced voluminous manuscript records, but these are not fully transparent documents. They were molded by the court's categories and procedures, shaped by contemporary mores and the direction of counsel. 41 This blizzard of formal filed papers has yielded rich social historical stories, but relatively little reveals how legal practitioners addressed sexual conflict because advocates' arguments and judges' jurisprudence were not kept as part of the formal court record. Sometimes it was not even clear which side won the case or if the parties had settled before judgment. 42 Fortunately, some records of court notes and debates survive that illuminate jurists' remarks about sexual conflict. This material includes, beginning in the 1780s, published summaries of important ecclesiastical cases, 43 plus some surviving contemporary manuscript diaries and notebooks kept by practitioners themselves for reference. 44 Despite covering only a few decades across the eighteenth century, these sources record judicial attitudes and arguments where the formal cause papers do not. These notes and diaries cannot be taken as exact transcriptions of oral debate, but they capture much of what must have been said, including practitioners' vibrant and impassioned arguments. 45 Essential details otherwise missing from the filed papers often emerged in judicial conversation. In fact, it is only through these case notes that seemingly routine marital causes can reveal themselves to be 42 Confusion about outcome is compounded by the practice of advocates on each side submitting, or "porrecting," as it was termed, a formulaic sentence that the court might reject, correct, or accept. Each submitted document left empty or blank spots for the judge's proxy to fill in, but this process was neither routine nor rigorous. One Doctor's Commons practitioner described an appeal based on the court accidentally following the wrong porrected copy; see 44 Manuscript notes, casebooks, and diaries were not kept as private mementos but rather shared among practitioners at Doctors' Common to serve as a collection of precedents and principles. For instance, Sir George Lee mentioned asking one of his proctors to research advocates' debates in various earlier cases; see Book of Cases of Sir George Lee, 1737, Lincoln's Inn Library, MS MISC 158, fols. 99, 130. A manuscript titled "Digest of Ecclesiastical Cases" uses an alphabetical code to reference debate and jurisprudence in cases rather than dates, or the like, suggesting the scope of the manuscript collection at

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▪ CODY something else, as is evident in some of the cases discussed below. Individual practitioners represented both husbands and wives and thus could make quite contrary arguments over the course of their judicial careers, but these reported court arguments show that when they represented wives, they argued that husbands' power was limited by natural, moral, and gentlemanly principles. Though no practitioner suggested dismantling coverture entirely, wives' representatives found arguments to curtail husbands' sexual rights when wives were threatened by venereal disease, sexually violent threats, and even the trauma resulting from nonconsensual sex. 46

SAYING NO TO VENEREAL DISEASE
Reproduction ravaged women's bodies, but this wear and tear was not presented as a primary cause for separation in early modern cases because procreation was the very reason for marriage. 47 Sexually transmitted diseases, however, transformed the ordinary burdens of reproduction into family catastrophes. Pox was interwoven in many marriages on the rocks, but the case of Ashe v. Ashe was among the very few in which venereal disease was the only allegation of cruelty. The court faced the question whether a husband's infecting his wife with venereal disease so endangered her life that she had the right to refuse sex to protect her health.
Catherine and James Ashe of Twickenham were apparently happy for three married years. The two wealthy cousins had wed in 1697, and by 1700 they had three healthy children. 48 After the third delivery, Catherine postponed sex with James possibly to delay another pregnancy. He respected her wishes but turned elsewhere. He was indiscrete, reputedly boasting to servants "that he had picked up a pretty whore and had had her in a hackney coach and he often declared that it was a happy thing for a man to have a whore who would be constant to him." 49 Unfortunately, Sir James's happiness resulted in the pox, which he shared with Catherine. James denied being unfaithful, insisting that he only endured painful "fluxes" of massive doses of mercury "for nowe other reason but for the full satisfaction of the said Catherine." 50 Once his doctors said he was cured, the couple resumed sex. They had three more children over the next five years, but each baby manifested grisly symptoms consistent with congenital syphilis. One infant infected two wet 46 Most of the materials listed above do not purport to transcribe advocates' and judges' speech in dialogue, but the following six manuscript journals do: "Transcript of Counsels' Arguments," Kenneth Spencer Research Library, University of Kansas, Lawrence, MS E181; "Law Reports from Doctors' Commons, 1771-1777," 5 vols., Middle Temple Library Archives, London, LOFT, MS6. (Hereafter this repository is abbreviated as MTLA.) 47 For the assumption that providence had made marital sex pleasurable "for the Preservation and increase of Posterity," see Aristotle's master-piece compleated, in two parts [. . .]  nurses who developed lumpy masses, running sores, and pain so severe that Nurse Eleanor Forman stated that she "was in such a Condition by giving suck to the said Mary that she should never be well again and that if Sir James gave her all his Estate he could not make her amends." 51 Catherine refused to have sex after the sixth birth in 1705, staying away in Bath for months. When she returned in August 1707, James asked when she would let him back to her bed. When she hedged, he threatened to "break a Leg or an Arme" if she would not name the date. 52 From then on, she slept in the servants' quarters, and the two argued through a barricaded door. On 14 August 1707, he ordered her into the drawing room and in front of household staff demanded to know when she would let him renew sexual relations. She said perhaps in the future but not then. He ordered her to his coach, gave her twenty pounds, and sent her to her brother in Richmond. Gossips licked up the story. Isabella Lady Wentworth wrote, "al the world besyde this town is full of nothing but ye Lady Ash. whoe has Left her husband." 53 In another letter she reported, "it seems Sir James transgressed and went astray, which enraged her soe much that ever senc her last childe, which was three quarters old she never beded with him never man humbled himself more than he did to her." 54 As gossip swirled, Catherine sued James in the Archdeaconry of Middlesex Court against him on the grounds of adultery and cruelty. Lady Ashe was on weak ground compared to other wives alleging cruelty. James had never beaten her and only threatened physical violence in their August showdown. She also had a surprisingly weak case against James for adultery. He refused to confess in court and no eyewitnesses came forth, leaving the Middlesex Court judge unsure whom to believe. Even more damaging to her case was her willingness to possibly forgive him in the future. Out of all the depositions describing James's boasts, his extensive medical consultations, and the caustic effects of syphilis on the family, one statement jumped out to the judge. Witnesses reported that as she left the house in August, she told James, "Take notice I don't say I'll never bed with you tho' my hard sufferings once made me think so." 55 These words also undermined her appeal at the Court of Arches where Sir John Cooke ruled against her. When she appealed again to the Court of Delegates, three bishops on the panel agreed that her words "made it appear my lady did not leave Sr. James on account of ye adultery, but only yt she was in danger of her life." Perceiving one's life in danger might seem to be a good reason for a separation, but this is not how Cooke (or the bishops) saw it. Some of them believed that her openness to future relations meant that she "mt. safely bed wth. him" (and thus not be "in danger"). Cooke explained that in his lower court ruling, he had "only consider'd the convenience or inconvenience" of sex and feared that her potential forgiveness was the "Periculum anima 'em together." 56 By "convenience or inconvenience," Cooke did not mean easy or difficult, but safe or harmful. 57 The church viewed marriage as inviolable so long as both partners could fulfill its obligations-even only occasionally when it was "convenien[t]" or safe, which left little ground for separation. Though the bishops agreed with Cooke's reasoning, the other delegates did not. They believed that James's genital cankers, extrajudicial confession, and other evidence adequately demonstrated adultery. They also found evidence of cruelty. Another historian has proposed that James's turning Catherine out was the cruel action and that she had goaded him into expelling her so that she could receive alimony. 58 That could be true, yet Catherine filed an attestation refuting financial motives, which she accused James and his allies of alleging. She explained that she pursued her cause not "for any dislike that she had for his Person" or for an increase in her "Pin money," but because of his infidelity and her suffering from the pox. She entreated the judges simply "to take her miserable Condition into their tender Considerations." 59 Perhaps they agreed with her original proclamation that "Sr. James having broken his Matrimonial Vow and defiled his Marriage bed and thereby. . . contracted the foul disease . . . the moment of her bedding with him might become unhealthy and diseased she thinks that she is not obliged by the Laws of God and Man to live and cohabit with him." 60 They granted her £300 in alimony, a relatively large sum, but as the court later discussed, a small portion of the fortune she had brought to the marriage. 61 The delegates' debate and final rationale seem not to have been recorded, but the case survived as a precedent for cruelty in an anonymous notebook, ca. 1758, without elaboration. 62 James's expelling Catherine from the house was not unusual, but her allegation of cruelty based primarily on contracting venereal disease without any other physical abuse appears to be unique. Even if the delegates recognized Catherine's request to separate on health grounds, this was a sorry story for everybody. As in all separations, James was granted full custody of the surviving three children, and Catherine was officially forbidden from seeing them. Out of six children, only one daughter survived to adulthood, but Catherine predeceased her.

THE THREAT OF MARITAL RAPE
Lady Ashe succeeded in resisting marital sex because of the ongoing extreme physical pain caused by her husband's adultery and venereal disease. The eighteenth-century courts did not explicitly use the phrase "persistent or severe," but this was basically 56 Robert Woods, 2 March 1708/9, LMA, ACC/1362, fol. [140]. 57 Oxford English Dictionary, s.v. "convenience, n.," www.oed.com; Oxford English Dictionary, s.v. "inconvenience, n.," www.oed.com. 58 Junko Akamatsu, "Revisiting Ecclesiastical Adultery Cases in Eighteenth-Century England," Journal of Women's History 28, no. their standard in cruelty causes. Those who had only experienced violence once or who were threatened with forced sexual intercourse had questionable grounds for a separation, as seen in the case of Holmes v. Holmes. Francis Holmes said he was an enterprising ironmonger when he courted Sarah Kingston, a wealthy widow, in 1744. Once wed, he asked her for thousands of pounds to finalize some investments. Sarah's inheritance from her first husband had been put in trust, which limited Francis's ability to absorb her wealth. To grant Francis his request, Sarah was required to ask her guardians, who authorized only loaning him £2,000 from the estate. Soon after he received the loans, she realized he had lied to her, that he was no ironmonger at all, had no profession whatsoever, and had entered the marriage with large debts. He quickly defaulted on the loan, so her guardians obtained a statute of bankruptcy against him, chasing him for years. 63 To avoid debtors' prison, he often left, surfacing only to inveigle money out of her. 64 Though he was the one who repeatedly disappeared, he filed a restitution of conjugal rights cause in 1754, claiming that she had abandoned the marriage. His formulaic documents masked a backstory that, once revealed, shows that his restitution suit was a cunning attempt to access her wealth and force her into sex.
Sarah denied that she had abandoned the marriage and then filed for own papers alleging his cruelty. She reported that in 1753, the long-absent Francis and two unknown confederates came to her door. Once she let them in, Francis scampered throughout the house, then "lockt up all the Doors and took the Keys and then came into the Parlour" and "swore he would lye with her there." The two men stated "that . . . Holmes was her Husband and that he had got them to come and meet him there in order to See him lye with her and that he should lye with her in that Room in their Presence and that they would assist him by holding her for him." One of them grabbed her, trying to force her to the floor. She wrenched away, ran to a window and escaped. She ran next door with Francis and the two men on her heels. Her neighbor Jeffrey Burston admitted her, but Francis and his men forced their way into his house, too. There they attacked her. "Francis Holmes then pulled her down upon the Floor tore off her Cap from her head and got hold of the hair of her head and attempted to drag and would have dragged her back again to [her] house," but Burston intervened and sent for a magistrate. Francis and the men fled. Sarah was bruised and so "affrighted" that she took to bed for weeks. But Francis repeatedly came back, threatening her that "he would get some Lusty Fellow who should be strong enough to . . . do any thing that he wanted to be done." He warned he would lock her up, take all her fortune, and "send her over Sea . . . and . . . No body should ever see her again or know what was become of her." She pleaded that her life was in "manifest Danger." 65 In fact, it was, and Francis's restitution suit was the very device that could allow him to make good on all these threats.
Both the restitution and cruelty causes were heard at Doctors' Commons in early 1754. The court admitted Sarah's allegations and granted her separation. Francis appealed to the Court of Arches. Sir George Lee, who was quite kind to his own wife, had no patience with Sarah. 66 He sided with Francis and ordered Sarah to reside with him and fulfill her conjugal duties. As for her cruelty suit, Lee denied it, explaining, "In this case she had charged nothing but words, except the single fact of his dragging her by the hair, which happened after she had separated herself from him, and that was not a cruelty sufficient to entitle her to a divorce; and it was not suggested that he had ever beat her or put her in any danger while they lived together." 67 Sarah had to let Francis back in her house if she wished to appeal to the Court of Delegates. As the suit wore on, Francis complained that she provided his "board" but gave him only "five shillings" pocket-money for tobacco. They did not have sex. 68 Within weeks, she had locked him out of the house, leaving him a hungry, homeless, tobacco-less pauper. Then she vanished.
Francis and his proctor doggedly pursued Sarah, demanding alimony, readmittance to her home, and her physical presence in court to answer his questions. But Sarah's attorneys replied that her presence was a mere formality. They were her proxies and could act fully in her name. It did not matter that Francis and his attorneys could not find her. However, Francis, they pointed out, needed to appear. This went on for months. Sarah could afford a long, expensive fight, but Francis could not. He racked up legal fees, which he paid off to his proctor in part by "writing for him at [his] Office . . . from Nine in the Morning till Eight in the Evening (Sunday Excepted)." 69 Sarah lost her appeal at the Court of Delegates in the spring of 1757, but Francis was no better off because she ignored the multiple court orders that were repeatedly affixed to her front door. Her intransigence led the court to excommunicate her in February 1758, but this changed nothing. In exasperation, Francis requested that his attorneys petition the crown to punish her through the secular courts. 70 This maneuver presumably failed, too, but it is unclear where Sarah went in the following years. 65 Holmes v. Holmes, LCC (1754), Allegations Book, LMA, DL/C/0172, at 457v, 458r-v. 66  What stands out in the Holmes case today is Francis's attempt to rape Sarah with the help of two other men. The London Consistory Court judge was seemingly troubled, as he granted the allegation. But upon appeal this event did not particularly impress the Court of Arches dean Sir George Lee. Francis's attempt to have sex may have even seemed justifiable to him, if his manuscript notes are any indication. Eighty years later, jurist Joseph Phillimore published Lee's notes from the mid-1750s. According to Phillimore's transcription, Lee had noted what Francis's confederates had said to Sarah when they trapped her in the parlor: "they said he was her husband, and had a right to do so, and they would hold her for him to lie with her." 71 None of the contemporary depositions or allegations at any of the courts included "a right to do so." Perhaps the phrase was spoken in oral arguments or Lee inadvertently wrote it in his notes. In either case, the transformation emphasized a husband's sexual rights over his wife's body beyond what Francis Holmes's own henchmen had even threatened.
Sir George Lee was a great defender of coverture in this case and others, so much so that his tone was dismissive, almost caustic when ruling against Sarah and other wives. 72 But Lee's was not the final word on Sarah Holmes or husbands' rights. After Sarah died intestate in 1764, Francis returned to Doctors' Commons, arguing that all the wealth and property she had accrued since their marriage belonged to him, not her daughter and son-in-law. Though he petitioned the court presuming that coverture would give him control of Sarah's wealth, he was thwarted. Sarah's first husband had protected his estate carefully so that if she remarried, her future spouse would not absorb the inheritance he left to her and their daughter. When she remarried, her property was in trust, protected from absorption under coverture. She had the power to make gifts and loans, but only with her guardians' permission. After she died without a will, Francis's advocate, Dr. Collier, insisted that her postmarital profits were his, plus he had a natural right to administer Sarah's estate as her husband. Arguing for Sarah's daughter Mary, Dr. Wynne began by challenging Francis's credibility and honor by gesturing toward the backstory: "the private History &c are not proper for me to enter into, but the Man shd be bound by his own solemn Act." Francis had agreed to the terms of his marriage with Sarah as determined by her guardians. He had made a contract and he could not change it. Sarah, however, had had the right to disperse some of her wealth as she pleased. But she had found no reason to grant him anything. This was not her meanness; it was his malfeasance. "[U]nless he shd deserve by his Behavior, that she shd make a Will in his favor" she would have. But "she had made no Will." Wynne transformed the technicalities of contract into a case of moral worthiness, invoking Francis's wretched behavior as Sarah's husband. Though hinting at the Holmes's "private History" probably did not shape Judge George Hay's decision in favor of Mary, Wynne's presentation in court was Sarah's posthumous revenge. Francis would surely have been in the audience at Doctors' Commons. Not only did he find 71 Phillimore, Reports of Cases Argued and Determined in the Arches, 2:117. 72 Lee explained that he rejected another wife's cruelty suit because "I was of opinion a wife was not entitled to a divorce . . . for cruelty, unless it appeared she was a person of good temper, and had always behaved well and dutifully to her husband, which the appellant had not done." See Taylor v. Taylor, Exeter Consistory Court (ca. 1755), cited in Phillimore, Reports of Cases Argued and Determined in the Arches, 2:172-73.

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▪ CODY himself disparaged as dishonorable, a breacher of contract and a contemptible husband, but he also found himself barred from Sarah's wealth. Hay granted Mary Fleet the sole administration and acquisition of her mother's entire estate. Francis was left with nothing but the legal bills he would have owed Dr. Collier and his proctor. 73 Thanks to the possibilities in equity, Sarah Holmes's family, first husband, and guardians had been able to establish her financial rights even in remarriage. This protected her property and assets from Francis. But such agreements in Chancery did not grant her the legal right to say no to her husband's sexual demands, as demonstrated by Lee's rulings. His decision against Sarah ultimately served as a precedent, as an example of an unhappy marriage that involved not quite enough cruelty to justify separation. 74 Or, as an 1895 case citing Holmes v. Holmes explained, "There are numerous [cases] in the books in which restitution of conjugal rights has been decreed at the instance of sometimes a husband and sometimes a wife whose conduct was unbearable, though falling short of cruelty in the technical sense of the word." 75 The Holmes case survived for nearly 150 years as precedent not because it was an example of men's cruelty, but because it was not. It specifically demonstrated the edge of acceptable behavior because it showed how wretched a husband's behavior could be without meeting the threshold for a marital separation. But what about when a husband successfully forced his wife into sex against her will?
A "LOVE FIT" OR RAPE?
Lord George Warren was a status-conscious widower absorbed with gaining a peerage. He possessed land and a daughter but little cash and no male heir. Frances Bisshop, a lady-in-waiting to Queen Charlotte, was young, beautiful, and rich. In 1764, the two wed and soon inherited their bad fortune. Frances avoided sex. George was churlish and controlling, preoccupied with locating royal blood in his family tree. 76 Theirs probably resembled many other miserable aristocratic unions, but in 1771 two surprising, violent assaults ruptured the marriage.
One morning in March 1771, Sir George ordered Frances to breakfast before she had completed her toilette. She joined him, but when she rose after the meal, he grabbed her "and shook her by the head and shoulders to a most violent degree, and then with great force shoved her under a Sideboard Table in a Recess." She explained that "shaking her whilst under the Table and clawing at her and tearing off her Lappet from her Head . . . she was much bruised and her Skin scratched and torn by Sir George's Nails till the Blood came and was in several places black and blue with the said Bruises." She "cried and screamed violently so as to be heard by the Servants in another Room but none of them durst come to her Assistance as they afterwards declared for fear of losing their Places." After the attack, she kept a servant at her side around the clock because "the vile Treatment she had received from him" led her to believe "she could not trust her life with him." 77 Two months later in May 1771, Sir George caught her alone one night and locked her in a parlor. His footman and his estate bailiff-"a noted boxer"-were waiting and lifted her by the head and feet, while George "stopped her Mouth" with his gloves. They then dropped her with such force that she lay motionless for minutes. Once she came to, she asked for water and her family, but instead Sir George called two lawyers, including one Robert Kirke, "a most infamous Character . . . employed in carrying people privately away." Water was also brought, but she feared it was poisoned. Frances sat herself on a dining chair, clutching the seat. Nobody could unlock her grip, so George told them to cut the chair apart, which injured her hands. Six hours later, at dawn, "the neighbourhood had been alarmed by her repeated cries." The exasperated George gave up, sending the men and the hired coach away. Frances escaped to her father's house and launched her cruelty cause. 78 Lady Warren's suit was finally heard a year later at Doctors' Commons, with more disturbing details revealed. As he introduced the case in June 1772, Lady Warren's counsel, Dr. Collier, added some color missing from her original libel: Lord George "bruised her, and thrust her under a marble slab . . .The gentlemen on the other side will say, I doubt not, that this was a fit of love in Sir George. But this cannot be allowed." 79 Introducing this allegation by claiming his opponent would deny it was designed to lure his opponent. Dr. Harris took the bait: "it was certainly nothing more than a love fit, and there is no proof of any injury done [to] the Lady than that of clawing her thigh." 80 Agreeing to the words instead of denying them, Harris vocalized what Frances herself had not explicitly stated. She did not use the words "rape" or "ravish" in her papers (or even allege a sexual assault), but advocates spoke these words in court. As the two sides debated what happened at breakfast, George's attorney noted that Lady Germaine had said "the report was that Lady W[arren] was ravished." 81 Lady Warren and her advocates did not directly allege sexual violence, instead allowing such details to emerge in depositions and the oral arguments in court. Once advocates said words like rape and ravish, allegations