The patriarch at home: The trial of the 2nd Earl of Castlehaven for rape and sodomy

History Workshop Journal

Volumn 41, Issue 1, 1996, Pages 1-18

  Herrup, Cynthia ^a  

^a NONE

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EID: 0010153818     PISSN: 13633554     EISSN: None     Source Type: Journal    
DOI: 10.1093/hwj/1996.41.1     Document Type: Article

References (72)

1. An early version of this paper was written in 1990 for the 8th Berkshire Conference on the History of Women, and I also spoke on this subject several years ago at the Women's History Seminar of the Institute for Historical Research and at the History Department Colloquium at Duke University. I benefited enormously from the responses of the numerous people who heard these presentations, and their reactions convinced me that the trial deserved a still closer look. As a result, virtually all of the subjects mentioned here are discussed and footnoted more thoroughly in my ongoing book-length study, tentatively entitled Sex, Law and Petriarchy in Early Modern England: The Trials of the 2nd Earl of Castlehaven. More recently, I have presented versions of this essay to the Shakespeare Studies Association and to audiences at Princeton University and Sweet Briar College. I would like to thank the following owners and repositories for permission to quote from materials in their custody: The Lamport Hall Trust, whose materials are deposited in the Northamptonshire Record Office; Lady Braye, whose materials are deposited in the Leicestershire Record Office; the Henry E. Huntington Library, the Folger Shakespeare Library and the James Marshall and Marie-Louise Osborn Collection, Beinecke Library, Yale University. Those who have helped me by commenting on this paper are too numerous to mention individually here, but I wish particularly to thank Anna Clark, James Epstein and Alice Kaplan for their early encouragement and Judith Bennett for her ongoing support and patience.
2. Northamptonshire Record Office Isham (Lamport) [hereafter NRO IL] Ms 3339, p. 12. I have modernized spelling and punctuation throughout this essay. Whenever possible, I have relied for details and quotations upon NRO IL Ms 3339, which I currently believe to be the earliest extant version of the trial, compiled probably between the time of Castlehaven's conviction and his execution; when necessary I have supplemented it with other early manuscripts. Most of the printed renditions of the trial date from several decades after its occurrence; they are neither as complete nor as accurate as earlier versions. The assistance of Scott Lucas on the genealogy of both the manuscripts and printed texts has been invaluable.
3. In rape, the distinction between accessories and principals had no legal force, so although his indictment acknowledged him to be accessory, Castlehaven was tried as if he had himself been the rapist.
4. Diary of John Evelyn, ed. E. S. de Beer, 6 vols., Oxford 1955, 2, p. 10; Public Record Office [hereafter PRO] C115/M30#8074 (17 Dec. 1630); British Library [hereafter BL] Harleian MS 390/529 (19 Dec. 1630);
5. The Winthrop Papers, Collections of the Massachusetts Historical Society, 4th ser., 6, Boston 1863, pp. 32a-32b.
6. None of these materials constitutes an official record or a transcript. The official record of early modern trials (including this one) consists solely of administrative certificates, stored in this case in PRO KB8/63m1-20. The authority of the materials printed in Cobbett's Complete Collection of State Trials, London 1809, 3, cols. 401-26 derives from its accessibility, not its reliability.
7. The basic details of the family's history can be found in G. E. Cockayne, The Complete Peerage, London 1913, 3
8. and in the entries for James Touchet, Grey Brydges and Ferdinando Stanley in the Dictionary of National Biography.
9. The original complaint has not survived, but PRO SP16/175/2 is a letter dated 1 November 1630 from Lord Audley to his father justifying the accusation. Caroline Bingham, 'Seventeenth-Century Attitudes toward Deviant Sex' Journal of Interdisciplinary History, 1, 3, Spring 1971, pp. 451-3 mistakenly believed that since James was 'no more than twelve years old' in the late 1620s, the Countess was the Earl's primary accuser, with her son-in-law as an 'ally'. The parish register of Abbotsbury, Dorset, records James' baptism on 26 July 1612, making him nineteen in the fall of 1630; Dorset Record Office Mic/R/79.
10. Acts of the Privy Council [hereafter APC], 12 December 1630; PRO KB8/63; PRO SP16/189/69, (another copy at SP16/207/37); SP16/190/60; SP16/190/41.
11. PRO C66/2578m6, 13; PRO SO 3/10 May 1633; SO 3/10, September 1632. Pardons did not invariably imply guilt; they could also immunize individuals for violations of the law that were technical rather than intentional.
12. Lawrence Stone, The Crisis of the Aristocracy 1558-1641, Oxford 1965, p. 668;
13. Christopher Hill, Milton and the English Revolution, London 1977, p. 49;
14. David Underdown, Revel, Riot and Rebellion: Popular Politics and Culture in England 1603-1660, Oxford 1985, p. 122;
15. Kevin Sharpe, The Personal Rule of Charles I, London 1992, p. 190.
16. See, for example Barbara Breasted, 'Comus and the Castlehaven Scandal' Milton Studies, 3, 1971, pp. 201-224;
17. Leah Sinanoglou Marcus, 'The Milieu of Milton's Comus: Judicial Reform at Ludlow and the Problem of Sexual Assault' Criticism, 25, Fall 1983, pp. 293-327;
18. John Creaser, 'Milton's Comus: The Irrelevance of the Castlehaven Scandal' Milton Quarterly, 11, 1987, pp. 24-34;
19. Teresa Feroli, 'Sodomy and Female Authority: The Castlehaven Scandal and Eleanor Davies's The Restitution of Prophecy (1651)' Women's Studies, 24, 1994, pp. 1-19;
20. Nancy Wcitz Miller, 'Chastity, Rape and Ideology in the Castlehaven Testimonies and Milton's Ludlow Mask' Milton Studies, 32, forthcoming 1995.
21. The classic work for early modern England remains Alan Bray, Homosexuality in Renaissance England, London 1982,
22. but see also Barry Burg, 'Ho Hum, Another Work of the Devil: Buggery and Sodomy in Early Stuart England,' Journal of Homosexuality, 6, Fall/Winter 1980-81, pp. 69-78;
23. Bruce R. Smith, Homosexual Desire in Shakespeare's England: A Cultural Poetics, Chicago 1991;
24. Jonathan Goldberg, Sodometries, Stanford 1992;
25. Jonathan Goldberg, ed., Queering the Renaissance, Durham 1994;
26. Alan Stewart, Bonds of Sodomy, Princeton forthcoming, and the numerous essays of Randolph Trumbach.
27. Bingham, 'Deviant Sex', pp. 447-468, with an appended comment by Bruce Mazlish on the value of psycho-history in the analysis of the trial, pp. 468-472.
28. See especially the comments on pp. 449, 464-5, 467; cf. Caroline Bingham, James I of England, London 1981.
29. Decriminalization should not be taken for acceptance. Jeffrey Weeks, Sex, Politics & Society: The regulation of sexuality since 1800, 2nd edition, London 1989, c. 12-13 is good on the situation in Great Britain. By a narrow majority, the United States Supreme Court has upheld the constitutionality of state statutes in the U.S. that outlaw sodomy.
30. She relied primarily on only three manuscripts and three pamphlets, produced at various dates in the seventeenth and eighteenth centuries, and although she noted the differences in detail, she used the texts essentially to supplement one another, incorporating few materials generated outside the courtroom; cf. Bray, Homosexuality;
31. Burg, 'Ho Hum';
32. Breasted, 'Comus'.
33. PRO SP16/190/60. The Council's response was to order the brother-in-law imprisoned in the Fleet, APC 11 May 1631. He was released in early June, APC, 12 June 1631.
34. Two early versions of the servants' trials are Bodleian Library Rawlinson Ms D719/343-349 and Yale University Library Osborn Ms.b.125/39-54v.
35. Bingham reported the verdict for rape incorrectly as unanimous, following an error common in several versions of the trial. She resolved a second general error, the discrepancy between twenty-six listed jurors and a verdict with twenty-seven voices, by erroneously giving the presiding officer, Lord Coventry, a vote; Bingham, 'Deviant Sex', pp. 459, 454 n26. PRO KB8/63m10 names twenty-seven peers apart from Coventry and records Dudley, Lord North's vote to acquit the Earl of rape.
36. J. S. Cockburn, ed., Calendar of Assize Records, 11 vols, London 1975-1983.
37. Rape and its prosecution historically are areas still much in need of serious investigation, but for now see Nazife Bashar, 'Rape in England between 1550 and 1700' in London Feminist History Group, eds. The Sexual Dynamics of History, London 1983, pp. 28-42.
38. Bray, Homosexuality, c.1;
39. cf. Burg, 'Ho Hum'.
40. NRO IL Ms 3339, p. 7.
41. PRO SP16/175/2; 16/190/68; 16/175/89; 16/189/70-72; 16/192/11-11i; 16/197/18.
42. In a Lord Steward's Court, unanimity was not necessary for conviction. There was considerable question in this case whether in legal terms, either felony had actually occurred. The doubts, which I will discuss more fully in my book, concerned the definition of carnal knowledge; for now see Burg, 'Ho Hum', p. 73.
43. The quotations are from J. P. Sommerville, Politics & Ideology in England 1603-1640, London 1986, p. 30
44. and Susan D. Amussen, An Ordered Society: Gender and Class in Early Modern England, Oxford 1988, p. 37.
45. On patriarchalism in early modern England, see also Gordon J. Schochet, 'Patriarchalism, politics and mass attitudes in Stuart England,' The Historical Journal, 12, 3, 1969, pp. 413-41;
46. Lawrence Stone, The Family, Sex and Marriage in England 1500-1800, Oxford 1977, part 3.
47. Amussen, An Ordered Society;
48. Frances E. Dolan, Dangerous Familiars: Representations of Domestic Crimes in England 1550-1700, Ithaca 1994, c. 1-3.
49. On the atmosphere of the 1630s, see particularly Sharpe, Personal Rule;
50. Alastair Bellany, 'The Poisoning of Legitimacy? Court Scandal, News Culture and Politics in England 1603-1660', unpublished dissertation, Princeton University 1995.
51. Ephesians 6.4; Gouge, Of Domestical Duties, 2nd edition, London 1626, pp. 378, 383. On parental and masters' duties generally, see Gouge, treatises V-VIII;
52. Ralph A. Houlbrooke, The English Family 1450-1700, London 1984, c. 6-7.
53. NRO IL Ms 3339, pp. 7-8, 12; The specifics of the Earl's generosity vary widely from text to text, but the broad picture is the same. On the confusion between sodomy and others forms of male bonding, see Alan Bray, 'Homosexuality and the Signs of Male Friendship in Elizabethan England' History Workshop Journal, 29, Spring 1990, pp. 1-19.
54. Leicestershire Record Office (hereafter LROJ DE 3128/171-185. The first dated examination is signed 30 November, but the first unambiguous allegation of sodomy is from Lady Audley on December 9, after the Earl, the servants and Lord Audley had been initially examined.
55. PRO SP16/175/2; NRO IL Ms 3339, p. 12; PRO SP16/189/69; 16/190/60; Lady Eleanor Davies, The word of God to the city of London . . . ., London 1644 for allegations of his greed.
56. Ephesians 5.22-29; Gouge, epistle. On spousal duties generally, see Gouge, epistle and treatises I-IV; 'Of the state of matrimonie' in Certain Sermons or Homilies appointed to be read . . ., London 1623, pp. 239-48;
57. Houlbrooke, English Family, c.5.
58. NRO IL Ms 3339, p. 8. Barbara Donagan reminded me that the one accepted exception to the command that a wife obey her husband was if she was asked to break God's law, but no one seems to have raised this point in relation to Castlehaven's wife or daughter-in-law.
59. Henry E. Huntington Library [hereafter HEH] Ellesmere MS 7976/9v, 11, 11v.
60. In the early seventeenth-century, spousal testimony was disallowed except in the rare criminal cases where the wife was the victim of her husband; HEH Ellesmere MS 7976/12-13; Richard Hutton, Reports, London 1656, p. 116.
61. Fran Dolan first suggested to me the similarity between the Earl's behavior and a literary caricature.
62. HEH Ellesmere MS 7976/5v.
63. For examples of the dangerous parallels available, see M. F. Keeler, et al, Proceedings in Parliament: 1628, 6 vols., New Haven 1977-1983), 2, p. 528;
64. M. F. Keeler, Proceedings in Parliament: 1628, 3, p. 127;
65. M. F. Keeler, Proceedings in Parliament: 1628, 5, pp. 204, 281;
66. Dolan, Dangerous Familiars, c.3;
67. Johann Sommerville, 'Revisionism and political principle: the case of absolutism', Journal of British Studies, forthcoming 1996.
68. BL Harleian MS 390/529; NRO IL Ms 3339, p. 6.
69. Cf. NRO IL Ms 3339, p. 12 and HEH Ellesmere Ms 7976/13v-14, 15.
70. Historical Manuscripts Commission, The Manuscripts of His Grace The Duke of Portland, 10 vols, London 1891-1931, 2, pp. 121-2. King Charles did mitigate the form of the Earl's execution; see PRO E371/818m 7-8.
71. As with the trial itself, there are numerous variants of the execution, but for representative early versions, see Yale University Library Osborn Ms.b. 125/34-38; Bodleian Rawlinson Ms D719/342-3.
72. Since the 1699 pamphlet, The Trial and Condemnation of Mervin, Lord Audley, Earl of Castle-haven seems to me the first to emphasize sodomy over other aspects of the story, I would associate the initial shift with the crackdown on a gay male subculture in London occurring at that time. On that subculture and its repression, see Bray, c.4; Randolph Trumbach, 'The Birth of the Queen: Sodomy and the Emergence of Gender Equality in Modern Culture 1660-1750' in Martin Bauml Duberman, Martha Vicinus and George Chauncey, Jr, eds, Hidden from History: Reclaiming the Gay and Lesbian Past, New York 1989, pp. 129-140.