Tuesday, October 25, 2016

Young Love, the Gunpowder Treason and the law of Adulterine Bastardy: The Banbury Case

by Linda Fetterly Root

Fifty years ago I was working as a paralegal assistant in a San Diego law office specializing in personal injury cases and business law. Occasionally a family law case would find its way into the case log, usually as a courtesy to a business client who had wed without the benefit of a prenuptial. Our managing partner undertook the case mentioned in this post as a favor to a Superior Court Judge who had heard about it from a colleague and was outraged. The partners had larger fish to fry and assigned it to an associate, who passed the research off to me. It involved a newly married couple in which the husband sought to adopt his natural child, and to his surprise, his wife’s first husband opposed it. Hence, my introduction to the law of Adulterine Bastardy, a prominent issue in 17th Century English Common law that eventually made its way into  20th century California  Family Law as a landmark precedent known as the Banbury Case.  If you question what this has to do with English history, be patient.

The Banbury Case was first litigated in 1661, revisited in 1816 and again at the end of the 19th century on a collateral issue [1]  ratifying the presumption that a child born during a marriage is deemed legitimate. There was a public policy reason: little bastards running around were a drain on societal resources. Other than in two narrowly applied exceptions, evidence to the contrary was barred. The presumption has migrated to California where it is deemed irrebuttable.

In the case I was researching, the law gave parental rights to a cuckold husband who took his ex-wife’s daughter whom he knew wasn’t his to Balboa Park where he stood her on a soapbox and held her out to passers-by as the poster child for adulterine bastardy
[2].  An appalled judge tried to apply the legal standard used in custody disputes—i.e., the best interests of the child—to terminate his parental rights and ran into the brick wall erected in 1661. In the San Diego case, the matter was resolved when the first husband tired of paying child support and let the child’s father adopt her. Time marched on, and I forgot about Banbury, never expecting to become intimately acquainted with the original litigants during my post-retirement adventures as a historical fiction writer.

When I first encountered Lord Edward Vaux and his fiancée, Lady Elizabeth Howard while researching the Gunpowder Treason, I entertained a suspicion they may have inspired Vaux’s friend Will Shakespeare’s ill-fated adolescent lovers Romeo and Juliet, but I never cast young Elizabeth as the adulterous Countess of Banbury. She was not a child of  lesser members of the Howard dynasty. Her birthright put her closer to the center of the circle of  nobility than either of the Tudor consorts who were Howards-- namely, poor silly Catherine Howard and bold, arrogant Anne Boleyn. Lady Elizabeth Howard, the Juliet in our story, was a granddaughter of the executed Duke of Norfolk, who had been England's highest ranking peer. Her father was Thomas Howard, Earl of Suffolk. Her mother Catherine was Suffolk's second wife, the first ranked lady in waiting to the  Queen. 

Meet the Parents:  The Countess and Earl of Suffolk (PDArt)

Like his father Norfolk, Suffolk had been subtle about his religious bent, but along with the rest of the Howards, he was regarded as a Church Catholic, who tempered compulsory sermons with an occasional illegal mass.

By the time of Elizabeth Tudor's death in 1603, areas of rural England were heavily populated with recusant families, and the aristocrats among them clustered in close-knit groups. The King had been advised by his principal minister Lord Robert Cecil that aristocratic rural Catholics were like an extended family, hunting, grousing and picnicking at functions featuring a priest as guest-of-honor. It is likely that at such an event, Edward Vaux, who had inherited the Harrowden Barony from his grandfather at the age of seven, and  Elizabeth Howard, one of  her parents' sixteen children, had met and fallen desperately and interminably in love. Neither of the young lovers was involved in the Gunpowder Treason, but they certainly suffered its consequences.

An engraving showing the first meeting of Romeo and Juliet
Wikimedia Commons

If there is a female at the crux of the story, it is neither the domineering Countess of Suffolk or her love-struck daughter, but the redoubtable Eliza Roper, Edward’s mother, the self-styled Dowager Lady Vaux. Even the use of her title was over-reaching since her husband had predeceased his father and never became a baron in his own right.  There is no known portrait of her other than a carving on a tomb effigy, but men found her captivating and she was probably a beauty.

John Roper Tomb in Lynstead,
Creative Commons.
Eliza Roper and George Vaux’s marriage had problems at the start. She was the daughter of Kentish aristocrats remotely related to the son-in-law of Thomas More, and George and his father Baron William Vaux were notorious recusants.

Since the marriage united two prominent Catholic families, it required the permission of Elizabeth, who was not asked. The Queen was known to be forgiving, but not when openly defied. The marriage stood, but to appease an angry,
vindictive Queen, George was passed over as his father’s heir in favor of his younger brother Ambrose who Eliza soon beguiled.  As a daughter-in-law, she was characterized as a domineering bully.  Per her mother-in-law’s brother Thomas Tresham[3], Eliza moved them out of Harrowden Hall into a smaller house and connived to take control of their wealth. Her brother-in-law Ambrose thought Eliza was a goddess but her husband's famous sisters, the recusants Anne Vaux and Eleanore Vaux Brokesby resented her treatment of their father and step-mother.

By 1590, George had reconciled with his father, and Ambrose ceded his rights of heirship back to George. What role Eliza may have played in the maneuvering is not recorded. Ostensibly the Queen had recovered from her earlier snit and posed no objection. There is no question that while he lived, Eliza adored her husband. When he died, she went into deep mourning for the better part of a year and refused to enter the part of the house where he died.  She was devoted to the advancement of her son, but she was equally absorbed in her defense of her religion.  While her sisters-in-law Anne Vaux and Eleanore Brooksby were of equal zeal, they and Eliza were not confederates. Anne and Eleanore lived in  properties they had inherited, primarily at White Webbs, where they often gave haven to the Jesuit Superior Henry Garnet. Eliza, however,was a patron of the Jesuit aristocrat, John Gerard, Garnet's protege.

Harrowden Hall,Public Domain
In 1598, Eliza purchased her seven-year-old son’s wardship, and moved her younger children into the Vaux ancestral home at Harrowden Hall, which she remodeled to include several priest hides. Then she brought the charismatic Gerard into the household as her confessor. He used it as his principal residence for at least six years. She established a Jesuit pre-college on the grounds for Catholic boys who were too young or too poor to be smuggled to the Jesuit College at Douai.

Another of her projects was arranging a suitable marriage for her son.  Eliza was ambitious and in her judgment, there was no better match for Edward than a Howard. In 1605, Eliza’s design for Edward was going smoothly.  The two parties to the prospective marriage cooperated by actually being  in love. In spite of some accusations of recusancy based upon an ambiguous letter which had fallen into the hands of a rival Midlands socialite and passed to Robert Cecil, Lady Vaux and her son were in high favor with the crown. The king stopped at Harrowden to hunt in August, less than three months before the discovery of the Powder Treason, in spite of rumors that the mistress of the house was rumored to harbor priests. In the autumn of 1605, a wedding was on the horizon. Both the prospective bride and groom had come of age. It appeared that nothing could stand in their way.

And then came November 5, 1605.

  The politically astute Howards quickly distanced themselves from their Midland Catholic friends. The nature of the school operated at Harrowden and the presence of priests on the premises were ill-kept secrets. November of 1605 was a poor time to be negotiating a marriage with a son of Eliza Vaux.   Harrowden Hall had been on a Watch List well before November 5th, after her Papist neighbor Lady Anne Markham sold Eliza out to Cecil in hopes of having her own properties released from forfeiture and her husband returned from exile. The lady was engaged as one of Cecil’s spies, and when the Gunpowder Plot erupted, she descended upon  Harrowden with a warrant in her clutches. 

Lord Edward's engagement to Elizabeth had fallen apart in the aftermath of the Powder Plot, and it seemed the love of his life was forever out of reach, formally betrothed and soon to be wed to Sir William Knollys, later to become the Earl of Banbury, a childless widower fifty-nine years her  senior.  Knollys, incidentally, is the man credited with finding the gunpowder in the cellar beneath the House of Lords. Since Cecil had assigned spies within the Queen’s household at Denmark House to watch the Countess of Suffolk and other suspected Catholics, it was a clever match on the part of the Howards, who cleansed themselves of suspicion by marrying their daughter to the hero of the day.

Sir William Knollys, later Earl of Banbury
While the Countess of Suffolk prepared for her unhappy daughter’s hastily arranged wedding to William Knollys, the woman who was to have been the mother of the bridegroom was carted off to London to be interrogated. By then, most of the Gunpowder traitors were either dead or in the Tower awaiting execution, and Cecil’s focus shifted to the Jesuits. Lady Markham had assured him that Eliza could lead him to Gerard. But if Cecil’s henchmen hoped to wring admissions from the lady, they were sadly disappointed.

No, she’d never met anyone named John Gerard, and if she had, she had no idea he was a priest, and if she had a priest living in her house for the past six years, she had mistaken him for a country squire whose present whereabout she did not know,  but if she did, she wouldn’t tell.

The sympathetic Earl of Northampton cautioned her to  tell them what she knew of the Jesuit, since if she refused, she’d be putting her life at risk.

‘I’d sooner die first,’ she replied.

Her interrogation did not go according to the script.  It was difficult to determine who was the interrogator and who was the accused.  After being held in custody for two tedious days, the prosecution released her to detention in the home of an alderman named Swinnerton, who endured two weeks of playing manservant to his house guest before he declared her utterly reformed.  She was ordered to remain in London, but was released from custody and watched. Cecil hoped she would lead him to Gerard.  She spent her next months in London evading the pursuivants and orchestrating Gerard's escape, which is the topic of my current work in progress.

As for the thwarted lovers Edward and Elizabeth, they went their separate ways, or so it seemed, until twenty years later when William Knollys, Earl of Banbury, died, leaving behind two sons allegedly conceived during his ninth decade after twenty childless years of marriage to his countess, and which he seems to have forgotten when he made his Will. Five months later the still smitten Edward and Elizabeth wed. Vaux became the doting stepfather of two young boys who looked remarkably like him.

In spite of the tumultuous events of the reign of Charles I, the star-crossed, middle-aged couple lived happily ever after, leaving the legal quagmire surrounding the Banbury title to their heirs and generations of students of English Common Law who struggle with the principles of Adulterine Bastardy debated in the Banbury Case.   [4] 

Linda Root is a member of the State Bar of California and the United States Supreme Court, a former major crimes prosecutor and the author of seven historical novels including her work in progress, The Deliverance of the Lamb, featuring the rescue of the Jesuit John Gerard.  She is a member of the Marie Stuart Society, on the board of the M.M. Bennetts Award for Historical Fiction, a regular blogger at EHFA and a frequent reviewer and member of the Admin Team on The Review. She lives in the California hi-desert, on the edge of Joshua Tree National Park. A committed Indie, her books are available on Amazon.

Note:  All art shown is from Wikimedia Commons or other depositories of Creative Commons projects.

[1] The legal proceedings in the 17th century involved the issue of Lord Vaux’s surviving son Nicholas to use the name and title of Lord Vaux, but the subsequent case heard late in the 19th Century had to do with the entitlement to claim the peerage and the Banbury Earldom by the competing heir of William Knollys, the original Earl of Banbury. It is a very complicated litigation, and its synopsis is hundreds of pages long.
[2] The San Diego case was resolved when the legal father tired of paying child support and waging battle with Child Protective Services, the Probation Department and a hostile court, consented to a step-parent adoption of his daughter by her natural father, no doubt having found some other lives to make miserable.  It is to be noted, as in Banbury, there was little question that the child was not his.
[3] Thomas Tresham is the father of Francis Tresham, one of the persons involved in the Gunpowder Treason.  He died pending execution under suspicious circumstances. Many of the barbs directed at Eliza before were fired by Tresham’s bow, so it is hard to know if she was as abusive as he claimed. Even if they rang true he was hardly one to talk. Tresham was considered one of the most hated man in England for his bloodthirsty enforcement of the closures of his lands.  Eliza had sued him for unjust enrichment for taking funds that belonged to her son, so his low opinion of her may have been retaliation.
[4] A treatise on the Law of Adulterine Bastardy as reported in the Banbury Case,  by Sir Harris Nicholas is available as a free Google ebook, courtesy of Standford University School of Law.


  1. Great post, Linda. Really enjoy it.

  2. It took a long time for the courts to agree that the child of a woman living in open adultery wasn't the child of her husband. Really, in one case the wife was living in open adultery with another man but the husband did nothing about it and stopped by every month or quarter to pay her an allowance. Because he was in her presence for at least 5 minutes the child was deemed to be his. In another case the wife admitted to using a sperm donor and AI. The husband and wife had never been intimate. She couldn't be charged with adultery because she hadn't had intercourse with a man but the child was declared the legitimate offspring of the husband.
    Very interesting post.

  3. Very much enjoyed the post, thank you. It's interesting when a person gets out of a serious jam alive via fate or some other arrangement ....do you know what happened to the little girl who was made to stand on a soap box in Balboa Park ?


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