“Will doe all in her power”: the role of women in the contested will of Henry Cavendish

ABSTRACT When the 2nd Duke of Newcastle-upon-Tyne, Henry Cavendish died in 1691, he left behind one of the wealthiest estates in England. Having no male heir, he chose to leave his fortune to his favourite daughter Margaret. This decision was not well received by other family members, leading to a lengthy conflict culminating in court proceedings that attempted to contest the will. Utilising both judicial sources as well as personal correspondence, this paper examines the role and influence of the women within the Cavendish family in this process. It explores the methods by which they were able to participate both in and outside of court, and how they utilised both practical and emotional tactics to achieve their aims. This paper argues that the idealised roles of wife, mother and widow offered women a role of influence, lending credibility to their testimonies as well as enabling them to effectively manage family discord.

leading to familial discord and the contestation of his will by his son-in-law, the Earl of Thanet.Whilst the case was ostensibly fought between Thanet and Margaret's husband, the Earl of Clare, it also provides a unique glimpse into the role of the Cavendish women in legal matters, both within and outside of court proceedings.
Whilst multiple women in the Cavendish family have been examined with regards to their literary pursuits, their role in family affairs such as marriage or inheritance has been sorely under-researched. 4This paper focuses in particular on a figure who has received very little scholarly attention, the wife of the 2 nd duke, Frances Cavendish (nee Pierrepont).Her influence in family matters was well known among those close to her, particularly with regards to the marriages of her children. 5The role the duchess played within the contested will of the 2 nd duke, however, saw this influence exhibited not only in private correspondence but also in official court documentation.Whilst previous scholars have argued for the presence and importance of female testimonies and participation behind the scenes, little research has been undertaken into the reasoning for why such involvement was able to affect outcomes.Building upon work that explores the impact of portraying idealised female roles in Chancery, this paper argues that the duchess was able to exert influence not in spite of, but due to her adherence to the prescriptive roles of wife, mother and subsequently widow. 6Her supposed adherence to these idealised roles placed her in a position of importance which allowed her to participate, as well as lending weight to these actions.

Women and wills
The capacity for women to act independently within the early modern legal system was determined and limited by both the patriarchal rules governing these institutions as well as by the societal expectations regarding the roles of women more generally.Under common law, married women were subsumed or 'covered' under the legal identity of their husbands, becoming 'femes covert'. 7There were, however, alternatives to common law in which women had the potential to wield further influence.The Court of Chancery, a court of equity, has long been recognised for its association with increased legal capabilities for women. 8As such, whilst the case of the late Duke of Newcastle was first raised in the Prerogative Court, this paper focuses in particular on the depositions provided for its hearing in the equity court of Chancery, utilising these documents to examine the extent of female involvement and influence.
With regards to wills in particular, women have been shown to have played a critical role in the process of both will-making and testamentary litigation, with estimates that they constituted nearly one third of all witnesses in the cases examined from the Prerogative Court. 9Their proximity to the deathbed as nurse, wife or servant, in addition to their level of knowledge regarding the particulars of the will-maker made women useful witnesses in contested cases, with their testimonies often influencing outcomes. 10Why these statements made such an impact, however, is not explored in any great detail.As highlighted by Lloyd Bonfield, the Prerogative Courts examined in his study did not provide opinions on specific testimonies. 11For the Duke of Newcastle's contested will, however, the case was also brought to the Court of Chancery, with the Lord Keeper providing a written judgment on what influenced his decision.Utilising these comments in addition to the wealth of evidence gleaned from depositions and personal correspondence, this paper argues that the Cavendish women were deemed of importance as witnesses, due to both their proximity to the duke as well as their perceived adherence to the idealised roles of wives, mothers and widows.
The importance of female involvement outside of the arena of the courts has also been emphasised.Emily Fine, for example, has recently examined the role of Mary Honywood, a Protestant gentry woman, in the legal battles and challenges regarding her late father's estate. 12Arguing that female involvement was often obfuscated by their exclusion in official court documentation, Fine focuses her attention on the extra-legal tasks carried out by Honywood and other women in her family, emphasising the importance of these unofficial actions.Building upon the work of Fine, this article considers the personal correspondence of the key players in the contestation of the late duke's will in conjunction with court documentation such as depositions.In addition to providing information regarding the case itself, these documents also shed light on the complex and fractured relationships between family members during this process, and how they expressed and utilised emotions to achieve their aims.

Sources
In examining the contestation of the duke's will and the wider familial conflict this caused, both court documentation and personal correspondence are utilised.Bonfield has emphasised the utility of probate records in uncovering the wider family discords which led to the contestations themselves, suggesting that such records provide a 'unique vantage point' into family relationships that are often lost in the historical record. 13 In his examination of disputed wills brought to the Consistory Courts from 1660 to 1750, John Addy similarly suggests that such cases reveal a great deal about family relationships, arguing that they uncover the sins of greed and envy among those involved. 14This paper suggests that such 'sins' can also be viewed as emotions, building upon recent work which identifies court documentation and the legal arena as useful areas of study for this field.Merridee L. Bailey, for example, in her examination of Chancery Court hearings, observed the use of emotional language in order to secure the favour of the judge. 15hilst excessive emotion was discouraged within court, thought to represent a lack of the reason on which the legal system was based, expressions of emotion, either overt or implied, were indeed present and understood by all involved, and could even benefit a case. 16More recently, Mark Seymour has identified the courtroom itself as an arena where the 'experience and expression' of specific and distinctive emotions can be detected. 17This paper utilises both court documents and personal correspondence to uncover the emotional displays of those involved, as well as exploring the process by which individuals used emotion to secure advantage.
The utility of depositions and statements as historical sources has been widely discussed, particularly with regards to the value in seeking to uncover the truth in such documents.Arguments from scholars such as Natalie Zemon Davies, who emphasises the narrative style of testimonies, to Joanne Bailey's suggestion that 'truth' within these documents was often 'diverse, contradictory and dependent upon the teller', have cast doubt on the validity of these sources in order to build an entirely accurate picture of past events. 18As highlighted by Christine Churches in her examination of Chancery testimonies, the Lord Chancellors presiding over these cases were themselves aware of the danger of constructed narratives, particularly with regards to the practice of coaching witnesses. 19There are also concerns regarding the utility of such documents in retrieving authentic female voices, with Tim Stretton suggesting that due to the male filters of scribes, judges and counsel, such a goal is unlikely to be met. 20Whilst there are indeed difficulties in working with legal documents, the scale of evidence in this case aids in addressing and mitigating these issues, providing a wide sample of testimonies from different individuals.

Choosing an heir
The first indications that the duke did not plan to split his estate equally among his daughters came in October 1686, shortly following the death of his daughter Frances and the son she was carrying.At this time the duke expressed a wish to 'keepe up the memory' of his father and grandfather by keeping the estate they had created between them intact. 21There were also more practical reasons behind this decision.Splitting the estate up would have weakened its strength and made it more difficult to settle debts following the duke's death.The Cavendish family at this point in time were one of the wealthiest in England, with properties and influence in multiple counties.If the duke were to split the estate equally among his surviving children they would still all have held significant portions of land and may have been among the wealthiest families in their respective localities or counties.Keeping the estate intact, however, would ensure importance not merely on a county level, but the continued position of the family on the national stage.
In order to achieve this the duke would need to select a sole heir from among his surviving daughters; Elizabeth, Margaret, Katherine and Arabella, none of whom had given birth to a surviving son and heir at the time of his making the will.The eldest Elizabeth was widowed and already exhibiting signs of mental instability that would plague her in later life.As such, she was an unsuitable choice to inherit with the duke reportedly stating that she 'was not capable of managing any estate'. 22The duke's youngest daughter Arabella, who was only nineteen when her father died, would also not have been deemed a suitable option due to her age and unmarried status at this time.This then left either Margaret or Katherine, both of whom had made good matches before the duke's death to the Earl of Clare and Earl of Thanet respectively. 23t was well known that Margaret was the duke's favourite and he often cited his affection for the daughter who he loved 'the best of any childs I have ever had'. 24It was also made clear that this preference had the potential to translate into monetary gain.During marriage negotiations for Katherine in 1684, the duke offered her suitor, the Earl of Thanet, greater rewards if he chose Margaret as his bride instead, stating that he would 'give her both more in present and much more hereafter' than any of his other children. 25espite the financial inducement, Thanet refused this offer and married Katherine as intended.Prior to their match, the duke seemingly had a good opinion of both Thanet and Katherine, writing to the earl stating that, 'I assure you that if I had not from all hands had soe good a caracter of you I should not be so ready as I am to give you my part in a child I love so dearly'. 26The relationship between the two men, however, reportedly soured following accusations that Thanet had misled the duke regarding his financial situation, overstating his wealth considerably. 27ome of the characteristics found lacking in Thanet were the very qualities the duke valued in his favourite daughter.Whilst he had doubts over Thanet's financial situation and by extension his abilities in managing an estate, he seemed certain of Margaret's success in this, especially with the support of her husband, the Earl of Clare, whom he was reported as having great 'esteeme and respect' for. 28Due largely to the sizeable portions provided for his daughters upon marriage, the duke had incurred considerable debts by the time of his death, exceeding £72,000. 29These debts had to be settled, and the duke was anxious that this be done with as little impact on his father's estate as possible.Clare was deemed capable of the task, with the duke reportedly stating, 'I am more beholden to my Lord Clare then to any man.He will pay all that I ow, & he will take my name'. 30As highlighted by Lawrence and Jeanne C. Fawtier Stone, it was not uncommon at this time for families without a male heir to take actions such as these to portray the illusion of an unbroken line. 31The apparent agreement of Clare to give up his own family name in order to maintain a seemingly uninterrupted Cavendish line was clearly a point in his 22  favour.This was not taken simply on trust, however, with the duke's will stipulating that any issue of Margaret and John 'shall take upon him or her the surname of Cavendish', a clause that was similarly put in place for Arabella and her heirs if Margaret and John failed to produce progeny. 32ollowing the death of his only son and heir, the duke was also concerned about the longevity of the Cavendish male line.Curiously, he appeared to have qualms regarding Thanet's potential success in this matter, suggesting that he was 'so diseased a man that his children could not live'. 33Katherine's delivery of a daughter prior to his death, his only surviving grandchild born in his lifetime, was seemingly not enough to change his mind on this matter. 34In fact, the birth of his granddaughter may have actually further tainted the duke's view of Katherine and Thanet.He was reportedly angry at Katherine for sending for the duchess during her lying-in period, drawing her away from his sick bed. 35Despite his wife stating that she had in fact offered to visit and that she was not kept there by either Thanet or Katherine, it was another nail in the coffin with regards to the couple's chances of inheritance.It has been suggested by Bonfield that in cases of parental disinheritance, the reasoning was usually due to the disobedience or distrust of 'undutiful' children. 36In the case of the duke, he was seemingly motivated both by his displeasure with Katherine and Thanet, as well as his adoration and respect for Margaret and Clare.His clear dislike of one couple and public admiration of the other pitted them against each other from the start, making the ensuing conflict almost inevitable.

Efforts to appeal to the duke
Whilst the duke was clear in his intentions to settle the estate upon Margaret, his wife was not in agreement, instead wishing for the estate to be split equally among their daughters, as would have been the outcome by law without his interference by will.Despite her later involvement in campaigning for the wishes of her late husband, the duke's plan was a point of contention between the couple prior to his death.As early as 1686 he expressed his 'Great Greif seeing my wife endeavour to have my great estate divided amongst my daughters'. 37uch was the extent of the conflict between the couple, that the duke did not wish his wife to be the executrix of his will at this time, seemingly not trusting that she would ensure his wishes were honoured. 38Their inability to agree on the matter came to a head in April of 1687, leading to a temporary and informal separation, with the duchess taking up residence at their London home. 39Whilst the duchess did return to the family seat of Welbeck following this disagreement, neither she nor the duke conceded to the other's point of view and it continued to be a point of contention leading up to his death.8 Ibid. 39Reresby, The Memoirs of Sir John Reresby, 366.chamber whenever he spoke of his plans for the will, reportedly stating 'tis not to my likeing because you have not bin soe eaquall amongst your children as I all ways wisht therefore I desire I may go out and not heere that which troubles mee soe much so often repeated'. 40Despite the conflict between them, the duke was also consoled by his wife's presence during his illness, writing of the 'great comfort' that this gave him. 41In spite of their differences, the duchess was named as executrix of the duke's final will just two months prior to his death, mandating upon her a responsibility to ensure his wishes were carried out. 42It was not uncommon for women to act as executrices, with Alexandra Shepard noting that they in fact outnumbered men in this responsibility for most of the early modern period. 43As executrix, the duchess performed a key role in the disposal of her late husband's estate, a duty which, as will be explored, she carried out in earnest.
One of the fears of the duchess regarding her husband's plan was that of conflict within the family. 44With the duke making no attempts to hide his intentions, this discontent did not come about only after his death, but also plagued the family in his final months.The main aggrieved parties were Katherine and Thanet, who in addition to contesting the will after the duke's death also attempted to change his mind during his last weeks.In May of 1691, just two months before the duke's death, Thanet travelled to Welbeck to convince him to name Katherine in the entail in what he deemed her 'right place'. 45This interference was not taken kindly, however, with the duke responding that he had done his daughter no wrong, and that it was in his power to give his entire estate to a footman if he pleased. 46Before Thanet left he tried one last time to appeal to the duke, reportedly begging on his knees for a pardon for anything he or Katherine might have done to offend him. 47When this attempt also failed, Thanet then turned to the duchess and the duke's youngest daughter Arabella for support.Both women were sympathetic to his cause, particularly Arabella who also stood to be at a disadvantage if Margaret were named the sole heir.Whilst Thanet found the duchess very willing to help, her attempts to change the duke's mind on his behalf were met with similar censure and she later recalled how 'my Lord Duke always took it very ill when I intermedled about his disposeing of his estate'. 48Nevertheless, in her deposition she recounted how she appealed to her husband, begging the duke 'upon my knees and with teares' to remain civil to Thanet. 49Whilst male tears were largely discouraged during this period, for women such displays of emotion were deemed part of their nature, highlighting their compassion and piety. 50By including these descriptions in her deposition, the duchess was emphasising her emotions at this time, portraying herself as a concerned mother who was trying to fight for the best outcome for her children. 51Following the duchess's attempts, Arabella was subsequently sent to reason with the duke, but was similarly rebuffed with her father stating that 'he would not be directed by anybody' in this matter. 52s well as attempting to recruit the duchess and Arabella to his cause, Thanet also curiously endeavoured to find favour with the Dowager Countess of Clare, sister to the duchess, whose own son stood to benefit when his wife Margaret inherited.In her deposition the dowager recounted that Thanet had approached her in May of 1691 requesting a private audience.He reportedly declared his belief in her impartiality despite her connection, expressing his hope that she would use her influence with her sister to 'have justice done'. 53The dowager stated that she offered her assistance, informing Thanet she would speak to her sister, though suggesting that it was not needed 'for it was as much the Dutchesses desire as it could be any bodyes that my Lord Duke should be kind to all his children'. 54Whether she did in fact put Thanet's case forward is unknown, however, it is evident that along with the duchess and Arabella, the dowager was considered a useful ally.Their attendance to the duke in his final weeks made the Cavendish women not only as Bonfield suggests, useful witnesses, but also individuals with the potential to influence outcomes.
Following her husband's attempts, Katherine also appealed to both the duke and duchess in the months leading up to his death.In June of 1691 she wrote to her father outlining her 'great grief' that he was displeased with her, stating that it was 'the greatest affliction' to her that she should have done anything to anger him. 55In an attempt to restore the duke's opinion of her, and by doing so hopefully secure a greater share of his estate, Katherine offered to visit to appeal to him in person, begging the blessings of her father for both herself and the child she was carrying.Evidently, Katherine's letter did not have the desired effect as a month later she wrote to her mother in frustration stating that she understood that she was now 'hardly to be considered as his Child', and hoping to appeal to the duchess's affection for her by asking her to 'endeavour to reconsile all things as they ought to be'. 56Katherine's efforts, however, were also to no avail and despite the attempts of multiple family members, the duke did not alter his wishes.Thus upon his death in 1691, Margaret was named as his sole heir, leading the Earl of Thanet to formally contest his father-in-law's will and embroil the family in a lengthy legal dispute.

A family divided
Perhaps unsurprisingly, the decision to contest the will led to further conflict within the Cavendish family, particularly between the duchess and her daughters.Both Katherine and Arabella were joined with Thanet in the belief that the will was unjust.The duchess, however, did not wish the family to become involved in any legal case.On the day of her father's death Arabella wrote to Thanet stating, 'my mother I am afraid will doe all in her power to doe us what injury she cann'. 57Such a statement emphasises the perceived 52 UNMASC, Pw1/306. 53UNMASC, NeL 537. 54 authority of the duchess in this matter.Indeed, whilst as wife to the duke she was deemed of importance due to her proximity and potential ability to affect his opinion, as a widow and executrix she was in a position of unique authority for women at this time. 58rabella's fears were shown to be quite astute, as despite her vocal disapproval during the duke's lifetime, the duchess had no plans to contest his will and urged her daughters to follow suit and abandon the case.She was particularly concerned by the growing discontent between the sisters, lamenting shortly after the death of her husband that: . ..my hart is full of greefe not only for my ireparable loss which I wonder I have bin able to bare but for the seeds of ill will betweene my 3 good daughters is sowne by the deed and will thare father has left bee hind him. 59 is important to note that the duchess references here only three of her four surviving daughters.As discussed, the eldest daughter Elizabeth was by this point exhibiting signs of mental instability and was thus deemed incapable of managing any estate.As such, although her second husband, the Earl of Montagu does appear to have become tangentially involved in the case after their marriage in 1692, Elizabeth herself is largely absent from both personal correspondence and official court documentation regarding the contested will of the late duke. 60The relationship between Margaret, Katherine and Arabella at this time, however, was evidently the cause of some distress for the duchess.Indeed, she later recalled how the discord between her daughters impacted her grief for her late husband, stating that it 'made mee bare the loss of him better and with more patience then ever I could have dun'. 61In a letter to Arabella she bemoaned the conflict between them, recalling that she had taken care to encourage sisterly affection and 'had that sucksess that I believe never three sisters did more entirely love one another'. 62As highlighted by Bernard Capp in his examination of sibling bonds, the love of one's brothers and sisters was viewed as 'rooted in nature itself' at this time. 63The contestation of the duke's will threatened these supposed natural bonds of affection between the sisters, and was clearly a cause of concern to the duchess.As the executrix of the will, she also had a responsibility to ensure that her late husband's wishes were followed.As such, she focused her attentions on convincing her daughters to drop the case using a variety of different emotional and practical bargaining tactics.
Claiming to have 'no motive but justice and trewth', the duchess wrote to both Katherine and Arabella entreating them to drop their challenge of the duke's will, the youngest daughter having left Welbeck to stay with her sister following her father's death. 64In an attempt to heal the rift between the sisters, the duchess voiced her belief in Margaret's innocence, stating that she never did anything to prejudice her father against his other daughters. 65She did not, however, object to the checking of the will for legal 58 Mendelson and Crawford, for example, have highlighted how widows could have the best of both worlds, retaining the social status and prestige of their married state, whilst also being legally freer to engage in certain economic activities, see accuracy, insisting that it was 'very reasonable' to show copies of the will to 'as many of the best lawyers' as possible.If it was found not to be 'good law' she maintained that Margaret would not insist on it, once again aiming to convince Katherine and Arabella of their sister's innocence in this case. 66he practical benefits of maintaining bonds with Margaret were also highlighted to both daughters.Margaret and Clare were yet to have children, leaving Arabella and her heirs next in line to inherit. 67As such, the duchess advised her youngest daughter on the importance of remaining in favour with Margaret, writing, 'tis not wise in nether of you to disoblige her by blasting your fathers reputation now hee is dead or being unkind and uneasy with her or her husband'. 68Despite not being included in the final will, both Katherine and Thanet were also encouraged to remain on good terms, with the duchess stating that Margaret had promised to be 'very just and kind' to them and their children. 69Whilst the content of her correspondence to both daughters shared some similarities, the duchess also tailored her approach, particularly with regards to her efforts to steer Arabella away from the contestation of the will.This hinged first and foremost on convincing her youngest daughter to abandon her alliance with Katherine and Thanet.She outlined that Arabella would be unlikely to benefit financially even if they did win the case, writing: . ..tis not reasonable you shoud ruin your selfe for if you trust in your brother in law the Earle of Thanets hands his estate is not soe good as your fathers and is intailed soe cannot be any good security to you. 70e reference to the entail of Thanet's estate as a bargaining tool underlines the knowledge of the duchess on not only the earl's personal financial situation but also on the legalities of inheritance, further emphasising both her capability and willingness to use all avenues available to her in this case. 71urther practical tactics were employed by the duchess through the promise of an advantageous marriage for Arabella. 72She suggested that Katherine and her husband would not be well placed to help her youngest daughter in this, going as far as to say that they would convince her to put the best matches aside. 73This was a shrewd move as Arabella was at this time the only one of her siblings yet to secure an advantageous marriage.The duchess's role as mother, combined with her previous history of facilitating successful matches, would lend weight to her assertions of being best placed to help Arabella in this matter.Whilst often expressing a wish to avoid family conflict, the duchess's attempts to turn Arabella away from Katherine appear at odds with her calls for sisterly affection.The use of such tactics, therefore, suggests that whilst familial harmony was certainly a desired outcome for the duchess, she was also governed by other considerations.
Indeed, in addition to highlighting practical concerns of marriage prospects and inheritance, the duchess also called upon both Katherine and Arabella to consider how their actions would play out in the court of public opinion.Outlining her anxieties of the impact the case would have on the standing of the family, she urged both daughters not to 'blast' the memory and reputation of their father, and by doing so 'dishonnor him in his grave'. 74Such fears were further highlighted in a final ultimatum issued to Arabella in which she wrote: It will bee soe black both in God and the world and a thing you may spend all your portion upon and bee sure never to get any thing by it but insnare your owne conscience I as a Mother command you never to ofer it any such thing for if either you or your Sister Thanett doe you loose mee for I will never have mor to doe with either of you. 75 ultimatum was likewise issued to Katherine, who was warned that if she did not 'publickly disowne soe wicked a cause' she was 'not to com where either your sister Arabella and I am'. 76The duchess also went on to describe the actions of Thanet as 'againest the light of his owne conscience'. 77The use of the contrast between black and light combined with her references to God and wickedness indicate that the duchess was framing this as not only a familial issue but also a moral one, attempting to convince her daughters by appealing to their sense of right and wrong.It is also evident that the duchess was aware of her influence in this matter, commanding Arabella specifically 'as a mother', a position she clearly felt conferred authority.
The combination of emotional and practical tactics employed by the duchess was successful with Arabella who returned home and wrote to Thanet, expressing her grief that she could not keep her word to him.In the 'sad scrole' sent to her brother-in-law, she attributed her change of heart directly to the commands of her mother. 78Following this, Arabella also wrote to Katherine advising her not to pursue the case.She implored Katherine to consider that if they continued in their actions they 'should be in a sad condition with god almighty', mirroring her mother's previous appeals. 79Thanet and Katherine remained unmoved however, continuing with their plans to contest the will, raising a case firstly through the Prerogative Court of Canterbury, then the Court of Chancery.

Contesting a will
In his study of contested wills, Bonfield found that most were challenged on the grounds of either a lack of testamentary capacity, or undue influence on the testator. 80Such was the case in this instance, with Thanet suggesting that the late duke was not in his right mind when writing and signing his final will.Accusations of this kind, however, were difficult to prove, and such cases were largely dependent on depositions and witness statements.Multiple individuals were called upon during this case to give their account of 74 UNMASC, Pw1/423; UNMASC, Pw1/422. 75UNMASC, Pw1/423. 76Ibid. 77UNMASC, Pw1/421. 78UNMASC, Pw1/310. 79UNMASC, Pw1/308. 80Bonfield, Devising, Dying and Dispute, 81. the duke's mental state whilst making his will, ranging from family members and friends to tenants and servants.All of the major players involved in this conflict provided lengthy depositions, with both Katherine and Margaret appearing in joint statements with their husbands, as opposed to Arabella and the duchess who testified individually. 81Under coverture, women were considered as part of the same legal entity as their husbands, limiting their ability to act independently in the courts.As previously mentioned, however, Chancery courts differed slightly in this regard, with Amy Erickson arguing that in spite of coverture, married women were in fact legally entitled to bring cases to Chancery without their husbands. 82Nevertheless, such instances were rare, and even in Chancery it was usual for wives to be named alongside their husbands, particularly in cases where a husband was suing jure uxoris, or 'by right of (his) wife' as both Thanet and Clare were. 83idows and unmarried women, however, are argued to have generally been afforded greater legal autonomy than their married counterparts. 84As both executrix and widow to the duke, the duchess was a key deponent in the case, remarking on her late husband's understanding at the time of making his will, and providing additional documentation written in his own hand further attesting to his wishes. 85Of particular interest is the evidence of revisions and edits to the duchess's deposition.A draft version of this has survived which includes multiple annotations and changes, presumably made by her lawyer or other legal advisor.Stock legal phrases of the time such as 'or words to that effect' appear as additions to this draft and are seen in the final depositions of not only the duchess but the vast majority of those making statements in this case.Revisions of this kind in order to match the style and formulaic nature of court documentation were common during this period, both for written pleadings as well as the transcriptions of oral statements given in court. 86Noting the commonality of repeated phrases from interrogatories in witness testimonies, Heather Falvey has argued that similar significance should be afforded to the questions posed as to the depositions themselves in terms of narrative reconstruction. 87Many of the depositions examined in this case contain similarities and on some occasions word for word repetition of phrases used within the questions posed by the interrogatories. 88In the case of the duchess, however, these phrases have been added after the initial deposition, either for stylistic reasons or, when examining phrases such as 'or words to that effect', to ensure intentional ambiguity.More specific changes were also made to this document.These ranged from the wording of certain phrases, such as referring to the purpose of Thanet's visit to the duke as 'to make his will for him' being changed to 'to gett him to make some settlement for his benefitt', to the crossing out of entire sections which were evidently deemed superfluous. 89Amendments such as these serve to alter the meaning of the duchess's statements, going beyond mere stylistic changes to meet the legal standard.In Joanne Bailey's work on the interactions between litigants and their legal advisors, she emphasises the benefits of close reading of correspondence between the two parties. 90Whilst there are no such surviving letters between the duchess and her lawyer, the annotated deposition clearly indicates the presence of legal involvement, emphasising both its perceived importance as a key piece of evidence as well as her active participation in the legal process.
A further noteworthy deposition in this case is that of the duke's youngest daughter, Arabella.Like her mother, she had been living with the duke through his sickness and was thus well placed to comment on his mental capacity at the time.As would be expected, given her change of heart with regards to pursuing the case, Arabella attested to the sound mind of her father when drawing up his final will.Of particular significance in this deposition is her description of Thanet's visit to Welbeck during the duke's illness.This visit, taken to convince the duke to change his will, would have also provided an opportunity for Thanet to form a judgment on his father-in-law's state of mind.Whilst the case raised by Thanet was predicated on a lack of understanding at the time of writing the will, Arabella recalled in her deposition that her brother-in-law told both herself and the duchess that 'my Lord Duke tho he was weak in his body he had his understanding as perfik & his apprehension as quick as ever he saw him have in all his own life'. 91Such a statement would not have aided Thanet's case, calling into doubt his own belief in his claim of mental incapacity -a potential outcome that Arabella would have been well aware of.Overall, most of the deponents in the case asserted that the duke was indeed of sound mind and memory when making his will. 92t has been shown that disagreements surrounding the will and the subsequent court case led to heightened emotions between the duchess and her daughters.The impact of this case on familial relationships is also seen between the two brothers-in-law, with letters from Clare utilising militant language, referring to those who supported Thanet as 'enemies' and 'adversaries'. 93This conflict appears to have gone beyond mere words, however, with reports of a physical altercation between the pair on the 13 th of May 1692.A letter from Richard Lapthorne to Richard Coffin the following day stated that a duel took place in Lincoln's Inn Fields after 'a hearing in Chancery before the Lords Commissioners of the Great Seale', resulting in both being wounded, but not mortally. 94Curiously, despite being discussed in multiple contemporary sources, this event does not appear in the surviving correspondence of any of the key players in this case at this time.As observed by Bonfield, family conflicts during this period rarely resulted in physical violence, with individuals instead turning to correspondence to air 89 UNMASC, Pw1/311. 90 their grievances. 95The transfer of the anger between Thanet and Clare from the page into a physical altercation emphasises the importance of this case on a personal level to both gentlemen.At a time of growing distaste for duelling, with some contemporaries arguing that such actions represented a lack of restraint over one's passions, this altercation signifies a loss of emotional control in both Thanet and Clare, further emphasising the importance attached to this case for all involved. 96 cause for complaint: the Lord Keeper's judgment Despite Thanet's efforts in both the Prerogative Court and subsequently via appeal through the Chancery, the case was eventually dismissed by the Lord Keeper who stated that he saw 'no colour to make any decree in this cause for ye complaint'. 97Free from the 'rigid procedures' and narrow rules of proof of common law, Chancery courts allowed for a wider range of evidence to be considered, as seen in the scale and variety of depositions relating to this case. 98ithin his judgement, the Lord Keeper noted in particular the greater number of witnesses willing to attest to the duke's mental capacity at the time of making his will, highlighting the specific examples they were able to give in comparison to those who were witnesses for the Complainant. 99He also took issue with the claim raised by Thanet that the duke was 'awed & hectored by the Dutchess, & Countess of Clare' to leave all to Margaret. 100Referring to the evidence put before him of the disagreement between the duke and duchess over this matter prior to his death, the Lord Keeper seemingly found this difficult to merit.Pointing to the lack of any proof regarding unkindness between her and Katherine that may have supported Thanet's claims, he went on to praise the duchess as the 'most respectfull wife in the world'. 101As a court of equity, the decision of the Lord Keeper was based not only on evidentiary proof but also, as Klinck argues, his own conscience. 102ndeed, when summarising his judgement, the Lord Keeper referred in particular to his confidence in the characters of the duke's lawyer, the duchess, and her sister the Dowager Countess of Clare: So that upon the whole matter unless Garland were the worst of man, the Countess dowager forsworne, & my Lady Dutchess of Newcastle was the worst wife & mother in the world, & all the rest of the witnesses perjured of which there is no manner of proofe there is no ground to make a decree in this case. 103o be close to the duke in his final days, as Arabella was also notably present at Welbeck during this time, able to report on visits made to her father in her own deposition.Moreover, such proximity is not mentioned by the Lord Keeper.Instead, the focus is on the morality of all three characters mentioned, with the perceived goodness of the duchess bound inextricably with her idealised roles of wife and mother.As highlighted by Amanda Capern, women and their lawyers were aware of the importance of these prescribed ideals.Focusing on Chancery cases in particular, Capern has outlined how traits of both good and bad mothering could be utilised in order to win favour.104 The roles of both wife and mother at this time were highly idealised, being the main focus of many conduct books concerning marriage and motherhood.Preaching the virtues of love, honour and obedience, these texts impressed upon women the importance of subservience and respect to one's husband, but also of affection.105 This reverence and love was also supposed to continue in widowhood, with The Ladies Dictionary describing a good widow as one who grieved for her husband, cherishing his memory.106 Despite their differences in opinion during his lifetime, the duchess was single-minded in her efforts as executrix to see his wishes carried out.The Lord Keeper's belief in her adherence to the ideals of these roles evidently influenced his decision with regards to the outcome of the case, seemingly putting more trust in her word due to these idealised positions.107 He would have also been guided by a goal to ensure a seemingly valid will was respected and the wishes of the deceased followed.As executrix the duchess had a mandated responsibility to uphold her husband's will, stating herself that she had 'no motive but justice and trewth'.108 As such, her goals were in line with those of the Chancery, further attributing to her trustworthiness as a witness.
Following the dismissal of the case, the wishes of the late duke were carried out with Margaret and Clare inheriting the vast majority of his estate.The family title had become extinct on his death, but was revived three years later in 1694 with John Holles being created the Marquess of Clare and Duke of Newcastle-upon-Tyne.Under the shrewd management of Clare and Margaret the estate flourished, and the couple were amongst the richest in the country, maintaining the importance of the family on a national stage. 109espite the hopes of the duke, Clare did not take the name of Cavendish for himself.In line with the duke's wishes, however, Clare and Margaret's daughter Henrietta was given the hyphenated surname of Cavendish-Holles.Having no surviving male progeny of her own, Henrietta's daughter Margaret similarly continued this trend, taking the surname of Cavendish-Harley.Thus, whilst not fulfilling the duke's wishes of a seemingly unbroken male line, the estate did retain a connection with the Cavendish name.
she was in a position of influence due to her proximity to him and thus her potential to change his mind.This authority was noted by others within the family with both Thanet and Katherine attempting to utilise her as a channel by which to influence the duke.Whilst the duchess was unable to change her husband's mind during his lifetime, it was following his death that her influence is seen most prominently.As executrix she had a mandated responsibility over legal affairs regarding the will, however, perhaps most notable is the way in which she utilised her roles as mother and widow.The ultimatums given to Arabella and Katherine relied on the authority conferred to her in these roles, whilst the idealised view of her position in society imbued her testimony with greater credibility, helping to cement the Lord Keeper's decision to dismiss the suit.Her focus on the bonds between her daughters as well as the zeal by which she fought for her husband's wishes, despite their disagreement in his lifetime, were reflective of these idealised roles.The duchess also utilised the emotional ideals of the period to her advantage, portraying maternal compassion and wifely love within her deposition as well as emphasising the expectation of affection between siblings to her daughters in order to achieve her aims.
Thus, whilst this case was publicly fought between the earls of Thanet and Clare, the role of women both behind the scenes and in official documentation was integral to the course of events and the eventual outcome.The duchess and her daughters may not have been the sole named participants, but they played a vital role both within and outside of court.As such, this case highlights that women in their positions could wield influence over such proceedings, with their gender and the idealised roles they represented serving to boost their influence rather than hinder it.
26BL Add MS 70500, fol.140. 27MASC, NeL 537.28Ibid. 29UNMASC, Pw1/655. 30UNMASC, Pw1/302. 31Stone and Fawtier Stone, An Open Elite?England 1540-1880, 126-130; More recently, in her article on Elizabeth Montagu's adoption of nephew Matthew Robinson, Sophie Coulombeau has examined the importance attached to Fifth Report of The Royal Commission on HistoricalManuscripts, Part 1: Report and Appendix, 383;This event is also recounted in a letter from Christopher Hatton to Sir Charles Lyttleton, seeThompson, ed., Correspondence of the Family of Hatton, being chiefly letters addressed toChristopher, 1st Viscount Hatton, AD 1601-1704, 178; Contemporary historian Narcissus Lutrell also reported on the event, attributing it directly to their conflict over the late duke's will, see Luttrell, A brief historical relation of state affairs from September 1678 to April 1714: Vol 2, 451. 94