The Patriarch at Home: The Trial of the 2nd Earl of Castlehaven for Rape and Sodomy
Author(s): Cynthia Herrup
Reviewed work(s):
Source: History Workshop Journal, No. 41 (Spring, 1996), pp. 1-18
Published by: Oxford University Press
Stable URL: http://www.jstor.org/stable/4289427 .
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Frontis portrait to 'The arraignment and conviction of Mervin Lord Audley Earl of
Castlehaven .. .' Printed for Thomas Thomas, 1642/3.
The Patriarchat Home: The Trial of the
2nd Earl of Castlehavenfor Rape and
Sodomy'
by CynthiaHerrup
On Saturday the 14th of May, 1631, Mervin Touchet, in England Lord
Audley and in Ireland the 2nd Earl of Castlehaven, affirming his loyalty to
God, the king and the Church of England, and forgiving his accusers and his
executioner, laid his head upon a block prepared for him on Tower Hill, and
died by -a single blow of the executioner's axe. A month earlier, twentyseven peers had convicted Castlehaven of offences so heinous and so
horrible, that, according to the presiding officer, Lord Coventry, 'a
Christianman ought scarce to name [them]. The Earl had been indicted for
rape and sodomy, specifically for helping one servant, Giles Broadway, to
rape the Countess of Castlehaven and for twice having sexual intercourse
with another of his servants, Lawrence Fitzpatrick.3 In addition, the trial
testimony alleged, the Earl was a voyeur, he sodomized other male servants
History WorkshopJournal Issue 41
(? History Workshop Journal 1996
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regularly,he encouragedseveralservantsto have intercoursewith his wife
and one particularfavorite to sleep with his adolescent daughter-in-law
(who was also his step-daughter),he was a sometimeCatholic,and he intended, directlyand indirectly,to enrichhis servantsat the expense of his
son and rightfulheir.
Castlehavenwas the firstEnglishpeer in nearlya centuryto be executed
for a capital offence aside from treason, and not surprisingly,his case
becamean immediatecausecelebre.The diaristJohnEvelynwrotethatthe
Earl'sarraignmentwas 'all the talk,' and letter-writersentrustedto inform
provincialfriendsandpatronsof eventsin Londonconfirmhisopinion.John
Flower, writingto ViscountScudamorein Herefordshire,called the Earl's
offences'foulandhorrible.'FromCambridge,JosephMeadpassedon to Sir
MartinStutevillein Suffolkthe news thatthe crimeswere 'abominableand
neverheardof villainiesin our landbefore.' JohnWinthropheardthe story
in MassachusettsBay.4In additionto the administrativerecordsof the trial,
there are more than forty extant manuscriptrenditions,several rhymed
libels, and four pamphletsdevoted to it. There are also numerousmanuscriptseparatesdescribingthe executionor otherbitsof the proceedings.5
The trialwas clearlywell-knownamongcontemporaries,but in contrast
to the defendantsin the sexualscandalsthat tarnishedthe reignof the first
Stuartking,its principalwas (andis) not. MervinTouchetwasof an ancient,
butundistinguished,family,andbefore1631,it is fairto say, he wasa manof
no particularprominence.His earldom,inheritedfromhis fatherGeorgein
1617,was newly-mintedand IrishratherthanEnglish,but both his firstand
second marriageswere advantageous.His union with ElizabethBarnham,
daughterandco-heirof BenedictBarnham(a prominentLondonalderman)
wedded him to a considerablefortune. His second marriage,to Anne
Brydges, widow of Grey Brydges, Baron Chandos, and daughter of
FerdinandoStanley,fifthEarlof Derby, connectedhimto some of the most
powerfulfamiliesin the Stuartaristocracy.NeitherCastlehavennor his new
wife were regularmembersof the CarolineCourt, but she had substantial
connectionsthere. Her mother, the dowager Countess of Derby, was a
familiar presence, and one of her two brothers-in-law,the Earl of
Bridgewater,was a Privy Councillor.In an arrangementnot uncommon
amongthe aristocracy,the marriageof CastlehavenandAnne Brydgeswas
followed by the marriageof two of their children.Castlehaven'sheir and
eldest son by ElizabethBarnham,JamesTouchet(routinelyknownby the
courtesytitle of Lord Audley), wed the daughterof the new Countessof
Castlehavenand the deceased Baron Chandos,ElizabethBrydges. Since
Elizabethwas young, the new couple did not set up a separatehousehold,
butremainedwiththeirparentsat the family'smajorEnglishestate, Fonthill
Gifford(Wiltshire).6
Less than a year after his marriage,in October, 1630, Lord Audley
lodged the complaintagainsthis fatherthat eventuallyresultedin his trial
and execution.7 By early December, the Earl had been arrested. He
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3
remainedin close custody for nearly five months while the Privy Council
investigated Audley's charges; in early April, 1631, a local grand jury
indicted Castlehavenand his servantsBroadwayand Fitzpatrickfor rape
and sodomy. Withinweeks of the indictment,a speciallyconvenedtribunal
of peerstriedandcondemnedthe Earl. LordAudley (who hadno first-hand
knowledgeof the indictedcrimes) did not testify againsthis father at the
trial, but Castlehaven's wife the Countess, his daughter-in-lawLady
Audley, and six formerservants(includingthe two men indictedwith him)
did serve as witnesses. Castlehaveninsisted upon his innocence, claiming
that his son and wife had workedto overthrowhim, the one eager for his
inheritance,the otherfor youngerlovers.His peersrejectedsuchassertions
and condemnedhim. For three weeks after the trial, Castlehaven'ssisters
andat leastone of theirhusbandsworkedunsuccessfullyto convinceCharles
I that the Earlwas indeed a victimof conspiracy.Theirsupplicationsfailed.
Castlehavenwas executedin mid-May.8
In June, the servantsBroadwayand Fitzpatrick,each claimingthat they
had been trickedinto offeringtheir earliertestimony,were condemnedin
the Courtof King'sBench. They went to the gallowsin July. Laterin 1631,
the King pardonedthe dowager Countess of Castlehavenfor 'adulteries
fornicationandincontinency';earlyin 1632,he grantedsimilarclemencyto
her daughter.The Irishfamilytitle of Castlehaven,immuneto the English
law of forfeiture,passed to Lord Audley at his father'sexecution, making
him the 3rd Earl of Castlehaven. Two years later, in 1633, the family
rejoinedthe Englishpeeragewhenthe 3rdEarlwas createdLordAudleyof
Hely. Therewasno reunitedCastlehavenhousehold,however:the dowager
Countessleft FonthillGiffordand returnedto her natal family;the young
Countess(amidstconsiderablegossip about her reputation)lived with her
husbandagainonly brieflyand unhappily,apparentlyspendingher remaining yearsin London;the 3rdEarldividedhis timebetweenIreland,London,
andthe EuropeanContinent,dyingwithoutoffspringin 1684.Althoughthe
King returnedsome of the escheated propertiesto the 3rd Earl, Fonthill
Giffordwas grantedin 1632to LordCottington.9
This is quite a story, and it has hardlygone unnoticedin the historiography of seventeenth-century English life. In The Crisis of the Aristocracy,
LawrenceStone linked the prosecutionof the Earl to a general crisis of
confidence in royal judicature; in Milton and the English Revolution,
ChristopherHill arguedthat the trial helped to convincePuritansthat the
court and papists both were mired in 'moral chaos'; in Revel, Riot and
Rebellion,DavidUnderdownsingledout the end of 'the abominableEarlof
Castlehaven'as an example of the limits of popular deference towards
aristocrats. And most recently, in The Personal Rule of Charles I, Kevin
Sharpe used the trial to illustrate the King's particular concern for
'self-controland morality.'10
Yet despite its notoriety,the Castlehavencase has been more alludedto
than studied. As was its principal during his life, the trial has been
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comfortablycategorizedas an object of only marginalimportance.Some
interest has come from a handful of literary scholars, who have used
contemporarydocuments bearing on the case to illuminatethe Stanley
family'spatronageof John Milton, but not specificallyto revisit the trial
itself.11The case has always had a place in the history of homosexuality and it
has drawnrenewedattentionin the recent efflorescenceof scholarshipon
sodomy.'2 But since this scholarship, too, is largely literary and its
referencesto the trialroutinelybrief,therehasbeen littlein the wayof fresh
historicalinterpretation.The standardtreatmenthas remainedCaroline
Bingham's 1971 essay, 'Seventeenth-CenturyAttitudes toward Deviant
Sex', publishedin the inauguralvolumeof the Journalof Interdisciplinary
History.3 Stillthe only sustainedsecondaryanalysisthattakesthe trialas its
central focus, it does much to untangle the documentaryand factual
complexitiesof the tale. Binghamunderstoodthe trialto be primarilyabout
the fear of sodomy, and later authors,while arguingfor a more complex
interpretation,have generallyfollowed Binghamin this regard.I want to
mitigate this view. In this particularcase, sodomy and rape were also
symptomsof a deeper betrayal.What determinedthe prosecutionof the
Earl was not the allegationsof felony alone; it was the way that all of the
accusationsagainsthim, criminaland not, reinforcedone another,and the
waythattogethertheyunderminedthe centralpoliticalunitin earlymodern
life - the household.Thistrialwas a cautionarytale less aboutsexualityand
its dangers,and moreaboutpowerandorderin the household.
Bingham saw the trial as a sordid story in which the Countess of
Castlehaven(no paragonof chastityherselfin thisinterpretation)exploited
the Earl's manifold sexual irregularitiesto engineer his downfall. For
Bingham, 'the strongly prejudicedattitude of the seventeenth century'
towardshomosexualitywas the centralfeatureof the case. That attitude,
groundedin a religiousfundamentalismthat translated'deviance'into sin
andsin into communaldanger,madesodomya crimeworthyof death.What
was strikingaboutthis case, Binghamargued,was how the fear of sodomy
marginalizedevery other consideration.That anxietyallowed the court to
overlooksadismand a varietyof other 'psychosexualproblems'in orderto
punish consensual sexual acts. And it empowered officers of the King
knowingly to exploit the legal ignorance of uneducated servants for
testimonythatwouldlead theminvariablyto theirdeaths.
Bingham'sarticlewas path-breaking.She treatedthe trialseriously,and
she methodicallycollatedseveralof the manuscriptand printedversionsof
the trialavailableto her in the BritishLibrary.But as her title suggests,she
workedfrom a set of assumptionsthat manyscholarsrelyingon her essay
today would reject. Her depictionof sexualitywas well-intentioned,but
essentialist and judgmental.4 Fortunately, the years have rendered
Bingham's explanatory framework almost unrecognizable.The Sexual
OffencesAct of the United Kingdomhad decriminalizedmale homosexuality between consenting adults in private less than five years before
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Bingham'sessay appearedin 1971; the AmericanPsychiatricAssociation
still categorized homosexualityformally as a disease."5To read about
sodomyas 'deviantsex' in an essayexploringprejudiceis a reminderof how
farwe havecome since 1971as well as a reminderof how farwe stillmustgo.
Yet Bingham'sessay is conceptuallyflawedin other ways as well. Her
commendabledesire to understandthe Castlehaventrial in contemporary
terms faltered also on her trust in legal certainties.Bingham'sconfidence
thatthingssaidin courtrevealthe truthof who didwhatto whomis boththe
essay's most appealingand most misleadingcomponent. In her desire to
createa coherentstory, Binghamstuckcloselyto a smallgroupof unofficial
narrativesandblendedtogethermaterialsmoreprofitablyreadagainsteach
other.'6In a verytechnicalstory, she got the skeletalstructuremostlyright,
but she found motive where there was only possibilityand certaintywhere
there was only accusation.Since what newer scholarshiphas found most
usefulin herworkis the interpretationof events, it is unfortunatethatthisis
perhapsthe weakestpartof her analysis.I am not objectingto speculation
and hypothesis here: if historianswant to be more than highly trained
antiquarians,that is exactly what we should be doing. But historical
speculationsare healthiestwith roots exposed to the reader,and withmore
roots in the soil of the societyof the subjectthanof the author.
And so the trialof the 2ndEarlof Castlehaven,althoughwell-knownand
seemingly familiar, has been left unproblematized- unimportantto the
manywho areuninterestedin sexualityandin scandal,andillusorilyclearto
those who are. It is time to asksome new questionsof its evidenceandto try
and cast some new light upon its centralparadoxes.Among these, the one
that has been perhapsleast noticedis not that the Earl was condemnedfor
rape and sodomy (unlikely as his condemnationwas) but that he was
convicted of these crimes in defiance of the power delineationsof early
modernsociety. Castlehavenwas not the only peer to end his life upon a
scaffold,but he may have been the only one ruinedby the allegationsof his
servant,his footmen,his daughter-in-law
andhiswife. How couldanEarlbe
condemned on the testimony of servants and women, both groups of
questionablecredibilitybefore the English law? The simplest answer, of
course, would be to argue as Bingham did, that sodomy was considered
horrificenough to offset the privileges of Castlehaven'sstatus. Yet this
answer is too simple - it not only rests upon several questionable
assumptions,but also elides many of the most interestingquestionsabout
the case.
Firstof all, we must not equate legal convictionwith guilt, an equation
belied by our own experiencesas well as by what we know of trials (and
especiallystate trials) in early modernEngland.Culpabilityis notoriously
difficultto determine, particularlyin sex crimes, and it is impossibleto
ascertain for crimes committed more than three hundred years ago.
Castlehavensurprisedhis contemporariesby maintaininghis innocence,
even to his death. One of his sisters'husbandstold the PrivyCouncilthathe
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could prove that there was a conspiracyagainstthe Earl.'7The servants
accusedwith the Earl later claimed that they had been trickedinto their
testimonies.18Sincehere, as in so manymoderncasesconcerningsex, there
were no disinterestedwitnesses,we must as least recognizethe possibility
that the Earl rather than his accusers told the more accurate story.
Distinguishingthe verdictfromthe truthmakesconclusionsabout the case
more difficult, but it appropriatelyopens up the question of guilt and
innocence.
Moreover, even if we accept Castlehaven'sculpability,we cannot use
that fact alone to explain his fate. Unless every guilty partywas formally
charged and punished (a conflationof law and justice that defies both
early-modernandtwentieth-century
realities),we cannotmove simplyfrom
guiltto convictionor fromconvictionto execution.At eachstagetherewere
choicesto be made and new considerations.In this trial, as in everytrial,it
wasthe socialas well as the legalprioritiesthatmattered.Theprosecutionof
the 2nd Earl of Castlehavenrested upon a series of discretedecisionsby
different groups of individuals. It was not an automatic response to
particularbehaviours,and it did not arise from inexorablemechanismsof
justice. Peers were rarelytried for anythingbut treason, not least of all
becauselocal grandjurorswere unlikelyto be willingto indict them. But
seventeen gentlemen in Wiltshirewere willing to indict the 2nd Earl of
Castlehaven.Peers indictedwere usuallyconvictedin state trials, but the
Earl'sdefence- that his accusationsresultedfromhis son's impatience,his
wife'slasciviousnessandhis servants'greed- playeduponthe stereotypical
fearsfacingevery head of householdand especiallythe heads of largeand
wealthyhouseholds.So Castlehavenmighthaveexpectedhisfellowpeersto
sympathizewith him rather than to convict him, to return an acquittal
regardlessof whetherhe was guiltyor not. But twenty-sixof twenty-seven
jurorswerewillingto convicthim. And a peercondemnedfor anythingelse
but treasoncould have reasonablyexpectedthat the Kingwould spare his
life. But Charles I refused to do so and allowed Castlehavento suffer
execution.If we see the case as a seriesof decisionsratherthanas a foregone
conclusion,it introducesmoreskepticisminto our view of the earlymodern
legal structure and more cynicism into our view of the early modem
aristocracy,but it opens ourinvestigationto the humaninteractionsthatare
criticalin any trial. It allows a space for the contingentas well as for the
categoricalin our explanations.
If we cannot confidentlygroundthe story in either legal culpabilityor
legal integrity,can we groundit in the horrorevoked by idea of the crimes
themselves?Yes, but not necessarilyin the transgressionsthat seem most
obviousto modernreaders.We still know far too little aboutthe incidence
andcircumstancesof eitherrapeor sodomyin early-modernEnglishsociety.
Early-modernwriterscondemnedboth rape andsodomy,but prosecutions
for either crime were rare; convictionseven rarer.20Rape seems to have
shouldered less cultural baggage than sodomy, perhaps because it was
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categorizedas a crimeof force;perhapsbecauseits basisin commonlaw and
in propertylaw freed it from the taint of less savoryassociations;perhaps
because, involvingwomen, it remainedabstractto the men who wrote and
spoke in public.21In contrast, sodomy seems to have been at least as
important as a shorthand for other things as for the acts it actually
encompassed.In the years since CarolineBinghamfirstgrappledwith the
trial, the work of scholars such as Alan Bray and Bruce Smith (among
others)has revealedhow easilysodomiticalactsanddesirescouldco-existin
early-modernEnglishsociety with a forebodingvision of the consequences
of toleratingsodomites. As Alan Brayhas suggested,the Castlehaventrial
showed the willingnessof early-modernEnglishpeople to make sodomya
scapegoat, to separate homosexualityfrom homosexual activity, and to
make the former a code for a satanic doxology of vice.22Sodomy was a
potent symbolof temptation,not necessarilyor only of the desireof manfor
man (or man for beast). More generally, it reminded people of the
continuingtemptationthat vice presentedto those who strove for virtue.
And equally,it was a reminderof humanfrailty,of the ease withwhichthe
modest could become the lustful, and the orderlythe chaotic. Rumorsof
sodomiticalrelationshipswere invariablyaccompaniedby rumorsof other
markers of chaos - Catholic sympathies, undue influence, treasonous
ambitions. Chargesof sodomy often incorporatedcharges of other, less
discernible transgressions,and this case was no exception. Prosecuting
Castlehaven, the Attorney General Sir Robert Heath asked how a
nobleman'of his qualityshouldfall to such abominablesins'. He foundthe
answerin religiousinconstancy.'I shallbe bold to give yourGracea reason
whyhe becameso ill,' the prosecutorargued,'he believednot God, andthen
whatmay not a manfall into.'23
It is hard, in fact, to find much obloquy directed at sodomy per se in
contemporaryresponses to this trial. Contemporarycommentatorswere
ecumenicalaboutwhichof Castlehaven'sallegedcrimesmatteredmost.The
authors of most manuscriptversions of the trial labeled the case as a
prosecution for rape and sodomy, not vice versa. The letters between
Castlehaven and his son complain primarilyof mutual betrayal. The
petitionsfrom the familyto the Secretaryof State for the maintenanceand
later the pardoningof the Countess and her daughter discuss the case
entirely in terms of its heterosexual allegations.24The prosecution's
languagewas apocalypticalin generalterms, not in precise ones. And the
verdicton sodomy was not a strongone. While all but one jurorvoted to
convictthe Earl of rape, only fifteenof twenty-sevenjurorsagreedthat the
prosecutionhadprovenits case on the countsof sodomy.25Recognizingthat
this case was not only about sodomyor rape mightforce us to reassessthe
Earl'splace in the historyof homophobia,but it will also open up a seriesof
new ways to contextualizethe accusations.It will offer us a more nuanced
pictureof why the Earl'sbehaviourseemedto betokenthe disintegrationof
the socialfabric.
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But if we cannot explain the case through reference to its formal
allegations,how, then, arewe to understandit? Confusionwascriticalto the
Castlehaventrial;if we simplifyit into a storyaboutsodomyor rapeor any
one accusation, we obfuscate exactly what contemporariesfound most
frightening.Castlehaven'sbehaviourwas seen as a unity;the case was not
about any one crime, but about a style of living that made believablehis
complicityin a varietyof moralcrimes.The threatthathe exposedwasnot in
isolated actions, but in the way that sin compoundedsin. Our fascination
withthe allegationsof sodomyandrapein the Castlehavenstoryhasblinded
us to what contemporarieswould have taken to be its most salient
characteristic,its allegationsof disorderwithinthe patriarchalhousehold.
Binghamandothershavenoted Heath'sconcernwithCastlehaven'salleged
religiousinconstancy,and the horrorexpressedby the LordStewardat the
Earl'sallegedattemptto corrupthis bloodline,but we have not recognized
the way thatthese statementsmadesense of the other accusations.
The identities of alleged victims and accusers in this case matter
enormously.Castlehavenwas accusednot only of rape, but also of allowing
a residentservantto rape the Countess;not only of sodomy, but also of
havinglong-termdependentrelationshipswithhis servants.The household
wasthe scene of the crimes,the home of bothits prosecutorsandits victims.
It is the threatto the householdembodiedin these accusationsto whichthe
prosecutorsdrew the most attention. The Earl's alleged profligacyand
lewdnessmadehim the enemyratherthanthe protectorof his house andso
by implicationthe enemy of every head of household.If we look closely at
the trial,at the explanationsoffered,andat theirunarticulatedimplications,
it is the violation of the precepts of a properly run household, neither
sodomynor rapenor religionnor favoritismper se thatwas the mostcritical
of the Earl's abominations.Focusingon the householdshows us not the
importanceof anyone crime,butwhatall of the allegationshadin commonthe de-legitimationof conventionalauthority.The casewasa dialogueabout
the responsibilitiesand the vulnerabilitiesof a patriarch.What made the
Earl's apparent behaviour so dangerous were not the formal crimes
themselves,butthe waysin whichthey revealedthe maledictorypotentialof
the precepts of everydayhousehold governance.What made the Earl a
menaceto hispeerswerenot onlythe peculiarities,butalsothe familiarities,
of his situation.
In seventeenth-centuryEngland, all social organizationwas fundamentallypatriarchal- fathershad absoluteauthority,dependents(that is,
wives, childrenand servants)the duty of absoluteobedience. 'Honourthy
fatherandmother'wascommonlyunderstoodto be a political,not a private,
text. Long before the elaborate schemes of theoristssuch as Sir Robert
Filmer were published, the family was understoodto be the model for
politicalauthorityand the fatherto be the authoritarianrulerof the family.
Kingsderivedtheirpowersboth literallyand figurativelyfromthe position
of paternity:their historicalprecursorswere fathers,their analogicalrole
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models were fathers. 'Jus regium comes out of jus patrium, the king's right
from the father's,and both hold by one commandment',the Bishop of Ely
declared in 1610. And the analogy was not one-sided. Fathers not only
legitimatedkingshipby illustratingthe 'naturalness'of centralizedauthority, but also were themselveslike kingsin theirrestrictedkingdoms.The
power of every fatherwas vested in his responsibilityto fashionhis family
into a workingmodel of good citizenshipwhichprovedthe mutualbenefits
of role-centered cooperation. The proper family was well-orderedand
well-disciplined- fathers provided for their childrenand their servants,
husbandsprotectedand nurturedtheir wives. 'As every man'shouse is his
castle,' wrote RichardBrathwaita year before the Castlehavenscandal,'so
is his family a privatecommonwealth,wherein if due governmentbe not
observed, nothingbut confusionis to be expected.' Politicaltreatisesand
domesticmanualson familyrelationsagreed;the key to peace, prosperity
and socialorderlay in the didacticpowerof the head of the family.26
But what if there was no order in the family?The good fatherand the
good king were disciplinariansas well as protectors. So they had to
commandobedience and to subdueresistance- fathersin theirhouseholds
as well as kings in their broader kingdoms.27Disorder in the household
connected with disorder in the kingdom; the household was a public
institutionwith its internalrelationshipsa part of public values. This had
long been true, but it was perhapsparticularlyimportantin the early 1630s,
whenthe kinghimselfgavespecialsignificanceto the didacticismof personal
andpatriarchalorder,whenrecentparliamentsevokedmemoriesof conflict
ratherthanconsensus,andwhenthe less thanfaultlessdisciplineof the court
of James I was still a fairly recent recollection.28Ideals of domestic
governancewere not the monopolyonly of the middlingsort. Indeed, the
nobilityhad a particularobligationto exemplifyproperharmony;whatwas
true for common householdswas truerstill for aristocraticestablishments
such as that of the Earl of Castlehaven.Individualnoblemen or noblewomen mightbe forgivenspecificmorallapses, but a noblemanwho in the
veryorganizationof his householdabusedhis powersas a patriarchexposed
how thin a line separatednot only order from corruption,but also good
stewardshipfrom tyranny.Moralstandardsfor aristocratsand commoners
werenot the sameeitherin preceptor practice,butif a noblemanthreatened
traditional notions of the benefits of obedience, hierarchy, and patriarchalism,he endangerednot only his family,but also his social groupand
therefore (in contemporaryterms) all of society. His actionscould reveal
quitestarklyhow traditionalexpectationsof deferencecouldleave children,
servantsand wives vulnerableto abusivehusbandsand subjectsvulnerable
to abusiverulers.And his actionscould also raisetroublingquestionsabout
the properlimitsof obediencein both the householdand the state.
Whatwere the responsibilitiesof a patriarchas father?The epistleto the
Ephesiansoutlinedan ideal of behaviourthat stood as the standardin early
modernEngland.Its authorcounseled'fathers,provokenot your children
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to wrath:but bring them up in the nurtureand admonitionof the Lord.'
Parentswere to carefor theiroffspringspirituallyandphysically;they were
to educatetheirchildrenin the waysof God, and, throughprovidentliving,
to insure the estates of future generations. Masters also had paternal
obligationstowardstheir servants;masterswere to feed, clothe and train
those in their service, to care willinglyfor their souls and for their bodies.
But masterswereto be fatherly,not fatherstowardstheirservants.Children
were to be permanentlyprovidedfor; servantswere only to be given a start
towardsprovidingfor themselves. The distinctionbetween parentaland
masterlyduty- a criticaldistinctionin the Castlehavencase- wasimportant,
but not always clear. William Gouge took great pains in his immensely
popularhouseholdmanualOf DomesticalDuties'thatI maynot be thought
to laythe careof parentsto masters,andto equalservantswithchildren',yet
he cited with approvalBiblical examples of trusted servants treated as
surrogateheirs,andandchallengedhisreaders,'Whyis the titlefathergiven
to masters(2 Kings5.13) andthe title sons to servants(1 Samuel24.17), but
to show servantsshouldbear a childlikeaffectionto theirmasters,and that
mastersshould bear a fatherlikeaffectionto such servants?'Parent-child
and master-servantdutieswere closely similar,but they were not supposed
to be identical.29
As a father, Castlehavenclearlyfell shortof the standard,althoughas a
master,his actionswere recognizable,if excessive.The indictmentsagainst
him for sodomy named LawrenceFitzpatrick(an Irish Catholicwho was
footmanto the Earl)as his partner.But the witnessesat the trialspentlittle
time on the Earl's relationshipwith Fitzpatrick.The prosecutioninstead
broadenedits attackto the patronageof servantsmoregenerallywithinthe
householdand to the Earl'sexcessive generositytowardsa rangeof other
male servants.Castlehaven'sfondnessfor these low-bornmen, the prosecutorsclaimed,led the Earl to favorthem above his wife, his daughter-inlaw, and his son. The Crownallegedthat the Earlhadmarriedone servant,
JohnAnketill,to his eldestdaughter(a marriagethatwouldhavebeen itself
a breachof propriety)and bestowedupon him a considerableestate. And
the Crownalso allegedthatCastlehavenhadencouragedanotherservant,a
page named Henry Skipwith, to be the young Lady Audley's lover,
showeringhim with gifts that would have set the page above some country
gentlemen in income. Perhaps most ominously, the prosecution also
recountedthe Earl'sallegeddesire that Skipwithratherthan LordAudley
shouldsire a futureEarl. The Lord Stewardfound these acts so offensive
that despite their legality (Castlehavencould, after all, distribute this
propertyas he liked, and howeverunsavoury,he could condone and even
encourage his daughter-in-law in adultery), he explicitly rebuked
Castlehavenfor them. After announcingthe Earl's conviction, Coventry
chided him for his unindictedcrimes, specificallythat 'you abused your
daughter,and havinghonourand fortuneto leave behind,you wouldhave
had the spuriousseed of a valet to inherit both.'30The Earl denied the
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11
accusationsof sodomy, but he never disclaimedprovidingmeansto live for
his favorites.In moderation,suchprovisionwouldhavebeen quitefamiliar,
so the prosecution took care to distance the Earl's excesses from the
conventionsof normativepatriarchalduties and to exploit social anxiety
aboutdistinguishingpatriarchalfromsodomiticalrelationships.
In fact, it was the Earl's alleged profligacywithin his household that
initiallyenragedhis son. The pre-trialexaminationssuggest that the case
began as a complicated complaint about inheritance and dissoluteness
ratherthana specificaccusationabouthomosexualactivities.31In a letterto
his father explainingthe chargesthat he had just presented to the King,
Audley complainedbitterlythat Castlehavenseemed readyto sacrificehis
'ancientfamily' to another. 'Pardonme (my Lord),' he wrote, 'if on this
monstrouschange of a fatherinto an enemy, I stand upon my guard, and
from you appeal unto the father of our country, the king's majesty. That
hope to find him a fatherwhen my own forsakesme is now underGod my
only comfort.'He pleadedwithCastlehavennot to 'strikeout the difference
between a servantand a son' and signedhimself'yourlordship'sdutifulson
if you please so to esteem me.' Castlehavenand his supportersalways
maintainedthat the Earl's trial arose from Audley's impatience for his
inheritance. Whether that was true or not, Audley's fear about the
squanderingof his patrimonyand his angerat the Earl'sputativeendorsement of Lady Audley's adulterywere the most likely sparksof the Earl's
prosecution.LordAudley'stransferof allegiancefromhis naturalfatherto
his political 'father'was an attempt to save what he saw as a threatened
inheritance.The King's response set an example of providentpatriarchy
against an example of dissipatedpatriarchy.It replaced a patriarchwho
commandedneither his servantsnor his daughter-in-lawnor himself, with
one who was demonstrablyin control, thereby distancing the Earl's
behaviourfromits roots in normalpractice.32
Whataboutthe patriarchas husband?Husbandswere to love theirwives
as they loved themselves,to honourthem, and to reprovethem. Wives in
turn were to obey their husbands,to submit to them as to God. 'As the
Churchis subject unto Christ,' the epistle to the Ephesiansreads, 'so let
wives be to their husbandsin every thing.' Husbands were to be mild
commanders;wiveswere to be reverentfollowers.Abuses of spousalpower
were condemned, but they were not taken to abrogatethe wifely duty of
submission.A wife's obedience did not depend upon her husband'sgood
behaviour;breachesof authoritywere not for inferiorsto punish. William
Gouge foundhimselfreviledas a 'woman-hater'whenhe firstarguedfor the
absolutenessof wifely submission,but he insistedthat he had taughtwhat
'must have been taught, except the truthshould have been betrayed.'He
arguedthat a good husbandought not to 'standupon the uttermostof his
authority',but that nothing except consciencepreventedhim from doing
so.33
As a husband, accordingto the prosecution'scase, Castlehavenwas
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reprehensible.The government'sclaim that the Earl of Castlehavenhad
helpedthe servantGiles Broadwayrapethe Countessof Castlehavenstands
outside any notion of reasonablespousalrelations,yet those relationships
were the very frameworkof the prosecution'sarguments.The Countess
testifiedthat the Earl had told her, 'herbody was his . . . and that if she lay
with any manwith his consent,it was not her fault, but his.'34In additionto
proof of intercourse,a charge of rape depended on proof of force, but,
perhapsrecognizingthe literalcorrectnessof the Earl'sclaimto possesshis
wife's body, every spokesmanfor the Crowndiscussedthe chargeof rape
not in termsof force,butin termsof its mockeryof patriarchalrelations.The
king'ssergeantclaimedthat 'it wasin the highestdegreeagainstthe bondof
nature for a husband to consent unto nay to procure, and assist the
ravishmentof hisownwifein hisownbed.' The AttorneyGeneralnotedthat
'Whereasall men thoughnever so lasciviouslygiven themselves,yet desire
theirwivesandchildrenshouldbe chaste,thislordplaysnot only the pander
for both but persuadesprocuresand assiststo the violatingof theirchastity
himselfand delightsto see it done'. And the SolicitorGeneralconcluded
that 'it has been reputedone of the miseriesof war [for] men to see their
wivesanddaughtersravishedanddefloweredbeforetheirfaces;yet he [that
is, Castlehaven]esteems this a hap a pleasure;he desires it, procuresit,
en[joys]it, anddelightsin it.'35And in thisaswell as in the chargeof sodomy,
Castlehaven'sunindictablesins reinforcedthe indictableallegations.The
Earl'sbehaviour(if what the prosecutionsaid was true) had upended the
social hierarchyof the household.Firstby forcingthem to dependupon a
servantfor their spendingmoney, and then by encouragingthem to sleep
withmen of modestmeans,he had humiliatedhis wife anddaughter-in-law
as well as corruptingthem.
It is not surprisingthat no one contestedCastlehaven'sclaim to control
the body of his wife; the claimwas too familiarand the implication(in this
case) too horribleto disputedirectly.The prosecutioncould not say that a
wife's body did not belong to her husband,but only that Castlehavenhad
misunderstoodthe terms of that possession. So prosecutorscontented
themselves with detailing how the alleged actions contravenednot the
husband'sauthorityper se, but ratherthe benevolentexerciseof husbandly
authority.And the Earl himselfturnedfor his protectionto the patriarchal
idealsof spousalpartnershipandof paternalpreeminence.He neverdirectly
answeredthe chargeof rape, but insteadbuilthis defenceon the mistakenbut in this context, reasonable - notion that a wife's testimony was
inadmissibleagainsther husband.36
He believed, it seems, thatnot only his
wife's body but also her wordsbelongedto him. Since in Englishcommon
law, men were expected to take responsibilityfor the behaviourof their
female dependentsboth as complainantsand as defendants,he was not far
wrong.
Castlehaven'sactionsthreatenedthe establishmentso deeplybecausehis
alleged behaviour and his defence followed so closely, if scurrilously,
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ThePatriarchat Home
13
ordinaryexpectationsabout the behaviourand rights of every patriarch
within his home. His was a perversionof a ubiquitousideal, and like any
good caricature,it had the powerto makepeople see the originalwithfresh
eyes.37The fear aroused by the transgressionsfor which he could not be
openly convicted is the background against which to understand his
prosecution.The Earl mayhave committedactsof sodomyandabettedacts
of rape, he mayhavebeen profligatein his estate andunsteadfastin religion,
but whatmadebelief in his guiltpossibleandultimatelyfatalwas the lackof
control suggested by his inversion of the conventions of gender and
hierarchywithinthe household.Innocentor guilty,the Earl'sbehaviourwas
not only opprobrious,but also subversive.If the accusationsweretrue, then
in his household, the world was upside down - servantscontrolledtheir
mastersand mistresses;wives disobeyedtheir husbands;childrenbetrayed
theirfathers.He had neithercontrolof his subordinatesnorof himself.If he
was falsely maligned, then the forces of order were sadly vulnerablepropertyand lineagewere no sufficientmatchfor the quotidiantensionsof
the patriarchalhousehold.
Rape and sodomywere the capitaloffences at issue in this case, but it is
worth rememberingthat they were offences that rarelybroughtcriminal
convictionsin earlymodernEngland,in partbecausetheywerefeloniesthat
(as in this instance)routinelyasked jurorsto believe youth insteadof age,
women insteadof men, servantsinsteadof masters.Being a bad patriarch
was not, of course, formallya crime, but a crimein early modernEngland
was merely a subset of a more importantcategory - sin. Castlehaven's
allegedbehaviours,formallycriminalor not, weresinsthatstruckat the very
heartof civilsocietyas those in powerunderstoodit. By corruptingthe ideal
of patriarchy,the Earl revealed too starkly an abusive power that all
patriarchssoughtto cloak over with talk of responsibilityand benevolence.
And in doing so, he also threatenedthe hope that inferiorswould believe
that the establisheddispersionof powerwas actuallyto theiradvantage.
The Attorney Generalsaid that the Earl'soffences 'were aggravatedin
respectof the qualityof the personindictedbeing [a] peer of the realmof a
very noble ancientfamily, who as he is greatin his birthso shouldhe have
been good in his example.'38For the fellow aristocratswho were his judges,
Castlehaven'sconvictionwas an opportunityto makegood thatexample,to
re-legitimatethe notion of an exemplaryhierarchyby disassociatingthe
Earl's excesses from the normal workingsof patriarchy,and to reassure
themselvesthat conspiraciesagainsttheirbenevolentrulewere impossible.
The prosecutionencouragedthisby framingthe case in patriarchalterms,by
makingthe familialidentityof the actorsrepeatedlyapparent,by detailing
familialabusesbeyond the stated charges,and by repeatedlyobscuringthe
close relationshipbetween the ideals of patriarchalgovernanceand their
twisted applicationby the Earl. Prosecutingthe case allowed the government to disavow tyranny without disavowing absolutism;the Earl was
disgracedas a personwithoutany disparagementof the routineexerciseof
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paternal power. In punishing Castlehaven, the peers could affirm the
goodnessof themselvesandthe king,whileobscuringa glaringrevelationof
the fragilityof restraintsbasedonly in humanconscience.
Castlehaven'salleged abuses showed the dark potential of a power
answerableto no humanauthority.However,the intimateanalogybetween
paternalpowerand monarchialpowermeantthatif his condemnationwere
to haveno publicrepercussions,the Earlhad to be not only discredited,but
also completely disassociated from the monarch.39News writers had
reported that the uxorious Charles I wanted Castlehavenkilled 'for his
villainies', neverthelessat the trial the prosecutiontook care to contrast
Castlehaven'scrueltyto those underhis protectionwiththe benevolenceof
his fellow patriarch,the King. His Majesty, said the Attorney General,
wanted a full trial for Castlehaven'that his Throne and people should be
cleared from so grievous sins'40A full trial, but not necessarilya full
punishment.The moment of decision for Charles came after the Earl's
conviction.Officially,Castlehavendeservedto die, yet executinga peer of
the realm was never easy. And a pardoncould favor a king as well as a
convictedfelon. It couldshow the endlesspowerof the monarchto forgive,
his abilityto reknit the tear in the fabricof obedience rent wheneverany
memberof the elite misbehavedin public.
But if the responsibilitiesof a peer for his inferiorshelps us understand
both the prosecutionand the convictionof the Earl of Castlehaven;the
responsibilityhe bore to his superiorshelpsus to understandhis execution.
The criticalact distinguishingthe Earl from the King, and so freeing the
King to grant a pardon, was supposedto come from the Earl. The same
expectation of absolute obedience between dependents and head that
appliedwithina householdappliedwithinthe commonwealth.The dictates
of obediencedemandedsubmissionfromthe Earlonce he wasconvicted(if
not earlier).He was supposedto acceptthe verdictof the court, denounce
the wickednessof his past, and plead for mercy from the King. He was
supposedto repentandaskfor pardon.Yet just as the Earlwasproblematic
as a patriarch,so, too, he was problematicas a subject.Tellingly,the final
scene withinthe court is the one where the extant manuscriptsdiffermost
fromone another,as if some transcriberseithercouldnot acknowledgethe
story'speculiarend or acceptedit, but thoughtits recountingdangerous.
Many of the renditionsof the trial contain no request from the Earl for
mercy, but some suggest that the Earl did ask for pardon, or for pardon
pending exile.4" None contain any hint of a confession. To his death, the Earl
maintainedhisinnocence,allegedlyrefusingeven to askthe Kingto mitigate
the formof his execution(as wascustomaryfor aristocrats)fromhangingto
beheading. He was, a correspondentwrote to the Earl of Newcastle 'no
more ashamed- he says- of hangingin a rope, thanChristwas for his sins
uponthe cross.'42On the scaffold,Castlehavenacknowledgedthe validityof
his trial, but not its results.43Since CharlesI had no sympathyfor what he
saw as moral improprieties,his compassionfor the Earl was probably
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15
minimal,but Castlehaven'srefusaleitherto admithis guiltor the justnessof
his predicamentmadethe sparingof his life not improbable,but impossible.
*
*
*
Every trial contains multiple, discordantvoices; every trial changesin its
retelling. But even when unintentional, the changes are usually not
fortuitous. All trials are about boundaries,but not all boundariesare of
equal and continuingimportance.The changes in the telling of this trial
marka shiftin dominantperceptionsaboutthe most importantboundaries.
Since the late seventeenth century, this has been a story primarilyabout
sodomy- perhapsbecausethe sites of the deepest anxietiesandconflictsfor
those in powerhavebeen homosocialratherthanpatriarchalrelationships."
It is betweenmen as men withina contractualsociety, not betweenheadsof
householdsandtheirdependentswithina familialsociety,thatrelationships
for men have been the most fraughtand the most ambiguous,the most in
need of clear-cutboundaries.
Rape and sodomywere importantelementsof thistrial,but they are best
understoodas opportunitiesfor the prosecutionto uncoverCastlehaven's
more heinousfaultsthanas its centralfocus. Isolatingthe two feloniesfrom
the other allegationsof misbehaviourleadsus into an unrealisticallynarrow
legalismand into an unrealisticallyinsularview of sex. It encouragesus to
inscribe upon early modern life our own categorical uses of the law,
overlooking a world in which legal and social worlds were more tightly
integrated.In a strict sense, this trial was about sex, but sex is never just
aboutsex, in the earlymodernworldanymorethanin ours.It is appealingto
interpretthis case in prescientlymodernterms- those of homophobiaand
maritalrape - but if we are to understandit properly, we must instead
restorethe less familiarcontextthatcontemporarieswouldhaverecognized
- that of inheritance,social statusandpoliticalorder.Doing so reunitesthe
interestsof all who stood againstthe Earl - accusers,jurors, prosecutors,
judges and the King. It allows us to understandthe structureof the
prosecution,and especiallythe time spent discussingthingsthat may strike
us as tangential.It connectsthe formalcrimesallegedandthe prosecution's
language. It allows us to discern the lurking danger that outweighed
established fears about inferiors accusing superiors, about the broad
interpretationof felony, and aboutthe publichumiliationof a peer. Beside
the storyof 'deviantsex', then, is a morepowerfullyexplanatorystory- one
aboutthe fragilityand the continuedpowerof patriarchy.
NOTES
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
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peoplewho heardthesepresentations,andtheirreactionsconvincedme thatthe trialdeserved
a still closer look. As a result,virtuallyall of the subjectsmentionedhere are discussedand
footnotedmorethoroughlyin myongoingbook-lengthstudy,tentativelyentitledSex, Lawand
Patriarchyin Early Modern England: The Trialsof the 2nd Earl of Castlehaven. More recently, I
havepresentedversionsof this essayto the ShakespeareStudiesAssociationandto audiences
at PrincetonUniversityandSweetBriarCollege.I wouldliketo thankthefollowingownersand
repositoriesfor permissionto quotefrommaterialsin theircustody:The LamportHallTrust,
RecordOffice;LadyBraye, whose
whose materialsare depositedin the Northamptonshire
materialsaredepositedin the LeicestershireRecordOffice;the HenryE. HuntingtonLibrary,
the FolgerShakespeareLibraryandthe JamesMarshallandMarie-LouiseOsbornCollection,
BeineckeLibrary,Yale University.Thosewho have helpedme by commentingon this paper
are too numerousto mentionindividuallyhere, but I wishparticularlyto thankAnna Clark,
JamesEpsteinand Alice Kaplanfor their early encouragementand JudithBennett for her
ongoingsupportandpatience.
2 Northamptonshire
RecordOfficeIsham(Lamport)[hereafterNRO IL]Ms3339,p. 12.
I havemodernizedspellingandpunctuationthroughoutthisessay.Wheneverpossible,I have
reliedfor detailsand quotationsuponNRO IL Ms 3339, whichI currentlybelieve to be the
earliest extant version of the trial, compiledprobablybetween the time of Castlehaven's
conviction and his execution; when necessary I have supplementedit with other early
manuscripts.Most of the printedrenditionsof the trial date from severaldecadesafter its
occurrence;they are neitheras completenor as accurateas earlierversions.The assistanceof
ScottLucason the genealogyof boththe manuscripts
andprintedtextshasbeen invaluable.
3 In rape, the distinctionbetween accessoriesand principalshad no legal force, so
althoughhis indictmentacknowledgedhimto be accessory,Castlehavenwastriedas if he had
himselfbeen the rapist.
4 Diaryof John Evelyn,ed. E. S. de Beer, 6 vols., Oxford1955,2, p. 10;PublicRecord
Office [hereafterPRO] Cl 15/M30#8074(17 Dec. 1630); British Library[hereafterBL]
HarleianMS 390/529 (19 Dec. 1630);TheWinthropPapers,Collectionsof the Massachusetts
HistoricalSociety,4th ser., 6, Boston1863,pp. 32a-32b.
5 None of these materialsconstitutesan officialrecordor a transcript.The officialrecord
of earlymoderntrials(includingthisone) consistssolelyof administrative
certificates,storedin
this case in PRO KB8/63ml-20.The authorityof the materialsprintedin Cobbett'sComplete
Collectionof StateTrials,London 1809,3, cols. 401-26 derivesfrom its accessibility,not its
reliability.
6 The basicdetailsof the family'shistorycanbe foundin G. E. Cockayne,TheComplete
Peerage,London1913,3 andin the entriesfor JamesTouchet,GreyBrydgesandFerdinando
Stanley in the Dictionary of National Biography.
7 The originalcomplainthas not survived, but PRO SP16/175/2is a letter dated I
November1630fromLordAudleyto his fatherjustifyingthe accusation.CarolineBingham,
'Seventeenth-Century Attitudes toward Deviant Sex' Journal of InterdisciplinaryHistory, 1, 3,
Spring1971,pp. 451-3 mistakenlybelievedthat since Jameswas 'no morethantwelve years
old' in the late 1620s,the Countesswas the Earl'sprimaryaccuser,withher son-in-lawas an
'ally'. The parishregisterof Abbotsbury,Dorset, recordsJames'baptismon 26 July 1612,
makinghimnineteenin the fallof 1630;DorsetRecordOfficeMic/R/79.
8 Acts of the Privy Council [hereafter APC], 12 December 1630; PRO KB8/63; PRO
SP16/189/69,(anothercopyat SP16/207/37);SP16/190/60;SP16/190/41.
9 PRO C66/2578m6,13;PRO SO 3/10May1633;SO 3/10, September1632.Pardonsdid
not invariablyimplyguilt;they couldalso immunizeindividualsfor violationsof the law that
weretechnicalratherthanintentional.
10 Lawrence Stone, The Crisis of the Aristocracy 1558-1641, Oxford 1965, p.668;
ChristopherHill, Miltonand theEnglishRevolution,London1977,p. 49; DavidUnderdown,
Revel, Riot and Rebellion: Popular Politics and Culture in England 1603-1660, Oxford 1985,
p. 122; Kevin Sharpe, The Personal Rule of Charles I, London 1992, p. 190.
11 See, for example BarbaraBreasted, 'Comus and the CastlehavenScandal'Milton
Studies,3, 1971, pp. 201-224; Leah SinanoglouMarcus,'The Milieu of Milton's Comus:
JudicialReform at Ludlow and the Problemof Sexual Assault' Criticism,25, Fall 1983,
pp. 293-327; John Creaser,'Milton'sComus:The Irrelevanceof the CastlehavenScandal'
MiltonQuarterly,11, 1987, pp. 24-34; Teresa Feroli, 'Sodomyand Female Authority:The
Castlehaven Scandal and Eleanor Davies's The Restitution of Prophecy (1651)' Women's
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The Patriarch at Home
17
Studies, 24, 1994, pp. 1-19; Nancy Weitz Miller, 'Chastity, Rape and Ideology in the
CastlehavenTestimoniesandMilton'sLudlowMask'MiltonStudies,32, forthcoming1995.
12 The classic work for early modern EnglandremainsAlan Bray, Homosexualityin
RenaissanceEngland,London1982,but see also BarryBurg,'Ho Hum, AnotherWorkof the
Devil: Buggery and Sodomy in Early Stuart England,' Journal of Homosexuality,6,
Fall/Winter 1980-81, pp. 69-78; Bruce R. Smith, Homosexual Desire in Shakespeare's
England:A CulturalPoetics,Chicago1991;JonathanGoldberg,Sodometries,Stanford1992;
JonathanGoldberg,ed., Queeringthe Renaissance,Durham1994; Alan Stewart,Bonds of
Sodomy,Princetonforthcoming,andthe numerousessaysof RandolphTrumbach.
13 Bingham,'DeviantSex', pp. 447-468,withan appendedcommentby BruceMazlishon
the valueof psycho-historyin the analysisof the trial,pp. 468-472.
14 See especiallythe commentson pp. 449, 464-5, 467;cf. CarolineBingham,JamesI of
England,London1981.
15 Decriminalizationshouldnot be takenfor acceptance.JeffreyWeeks, Sex, Politics&
Society:Theregulationof sexualitysince1800,2ndedition,London1989,c. 12-13is goodon the
situationin GreatBritain.By a narrowmajority,the UnitedStatesSupremeCourthas upheld
the constitutionality
of statestatutesin the U.S. thatoutlawsodomy.
16 Shereliedprimarilyon onlythreemanuscriptsandthreepamphlets,producedat various
dates in the seventeenthand eighteenthcenturies,and althoughshe noted the differencesin
detail, she used the texts essentiallyto supplementone another,incorporatingfew materials
generated outside the courtroom;cf. Bray, Homosexuality;Burg, 'Ho Hum'; Breasted,
'Comus'.
17 PROSP16/190/60.The Council'sresponsewasto orderthe brother-in-law
imprisonedin
the Fleet, APC 11May 1631.He wasreleasedin earlyJune,APC, 12June1631.
18 Two early versions of the servants' trials are Bodleian Library Rawlinson Ms
D719/343-349andYale UniversityLibraryOsbornMs.b.125/39-54v.
19 Binghamreportedthe verdictfor rape incorrectlyas unanimous,followingan error
commonin severalversionsof the trial. She resolveda secondgeneralerror,the discrepancy
betweentwenty-sixlistedjurorsanda verdictwithtwenty-sevenvoices, by erroneouslygiving
the presidingofficer,LordCoventry,a vote; Bingham,'DeviantSex', pp. 459, 454 n26. PRO
KB8/63m10namestwenty-sevenpeersapartfromCoventryandrecordsDudley,LordNorth's
vote to acquitthe Earlof rape.
20 J. S. Cockburn,ed., Calendarof AssizeRecords,11vols, London1975-1983.
21 Rapeandits prosecutionhistoricallyareareasstillmuchin needof seriousinvestigation,
but for now see NazifeBashar,'Rapein Englandbetween1550and 1700'in LondonFeminist
HistoryGroup,eds. TheSexualDynamicsof History,London1983,pp. 28-42.
22 Bray,Homosexuality,c. 1; cf. Burg,'Ho Hum'.
23 NRO IL Ms 3339,p. 7.
24 PRO SP16/175/2;16/190/68;16/175/89;16/189/70-72;16/192/11-11i; 16/197/18.
25 In a Lord Steward'sCourt, unanimitywas not necessaryfor conviction.There was
considerablequestionin this case whetherin legalterms,eitherfelonyhad actuallyoccurred.
The doubts, which I will discussmore fully in my book, concernedthe definitionof carnal
knowledge;for nowsee Burg,'Ho Hum',p. 73.
26 The quotationsare fromJ. P. Sommerville,Politics& Ideologyin England1603-1640,
London 1986,p. 30 and SusanD. Amussen,An OrderedSociety:Genderand Classin Early
ModernEngland,Oxford 1988, p. 37. On patriarchalism
in early modernEngland,see also
Gordon J. Schochet, 'Patriarchalism,politics and mass attitudesin Stuart England,' The
HistoricalJournal,12, 3, 1969,pp. 413-41;LawrenceStone, TheFamily,Sex and Marriagein
England1500-1800,Oxford1977,part3.
27 Amussen, An OrderedSociety;FrancesE. Dolan, DangerousFamiliars:Representationsof DomesticCrimesin England1550-1700,Ithaca1994,c. 1-3.
28 On the atmosphereof the 1630s, see particularlySharpe, PersonalRule; Alastair
Bellany,'ThePoisoningof Legitimacy?CourtScandal,News Cultureand Politicsin England
1603-1660',unpublisheddissertation,PrincetonUniversity1995.
29 Ephesians6.4; Gouge, Of DomesticalDuties,2nd edition, London1626,pp. 378, 383.
Onparentalandmasters'dutiesgenerally,see Gouge,treatisesV-VIII;RalphA. Houlbrooke,
TheEnglishFamily1450-1700,London1984,c. 6-7.
30 NRO ILMs3339,pp. 7-8, 12;Thespecificsof the Earl'sgenerosityvarywidelyfromtext
to text, but the broadpictureis the same. On the confusionbetweensodomyandothersforms
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of male bonding, see Alan Bray, 'Homosexualityand the Signs of Male Friendshipin
ElizabethanEngland'HistoryWorkshopJournal,29, Spring1990,pp. 1-19.
31 LeicestershireRecord Office [hereafterLRO] DE 3128/171-185.The first dated
examinationis signed30 November,but the firstunambiguousallegationof sodomyis from
LadyAudleyon December9, afterthe Earl, the servantsandLordAudleyhadbeen initially
examined.
32 PRO SP16/175/2;NRO IL Ms 3339,p. 12;PRO SP16/189/69;16/190/60;LadyEleanor
Davies, Thewordof Godto thecityof London. .. ., London1644forallegationsof hisgreed.
33 Ephesians5.22-29;Gouge,epistle.On spousaldutiesgenerally,see Gouge,epistleand
treatisesI-IV; 'Of the state of matrimonie'in CertainSermonsor Homiliesappointedto be
read. . ., London1623,pp. 239-48;Houlbrooke,EnglishFamily,c.5.
34 NRO IL Ms3339,p. 8. BarbaraDonaganremindedme thatthe one acceptedexception
to the commandthata wife obey her husbandwasif she was askedto breakGod'slaw, but no
one seemsto haveraisedthispointin relationto Castlehaven'swifeor daughter-in-law.
35 HenryE. HuntingtonLibrary[hereafterHEH]EllesmereMS7976/9v,1,11v.
36 In the earlyseventeenth-century,
spousaltestimonywas disallowedexcept in the rare
criminalcaseswherethe wife wasthe victimof her husband;HEH EllesmereMS7976/12-13;
RichardHutton,Reports,London1656,p. 116.
37 FranDolanfirstsuggestedto me thesimilaritybetweenthe Earl'sbehavioranda literary
caricature.
38 HEH EllesmereMS7976/5v.
39 Forexamplesof the dangerousparallelsavailable,see M. F. Keeler,et al, Proceedingsin
Parliament:1628,6 vols., New Haven 1977-1983),2, p. 528;3, p. 127;5, pp. 204, 281;Dolan,
DangerousFamiliars,c.3; JohannSommerville,'Revisionismandpoliticalprinciple:the case
of absolutism',Journalof BritishStudies,forthcoming1996.
40 BL HarleianMS390/529;NRO IL Ms 3339,p. 6.
41 Cf. NRO IL Ms3339,p. 12andHEH EllesmereMs7976/13v-14,15.
42 HistoricalManuscriptsCommission, The Manuscriptsof His Grace The Duke of
Portland,10 vols, London1891-1931,2, pp. 121-2. KingCharlesdid mitigatethe formof the
Earl'sexecution;see PRO E371/818m7-8.
43 As with the trial itself, there are numerous variants of the execution, but for
representativeearlyversions,see Yale UniversityLibraryOsbornMs.b.125/34-38;Bodleian
RawlinsonMs D719/342-3.
44 Sincethe 1699pamphlet,TheTrialand Condemnation
of Mervin,LordAudley,Earlof
Castle-haven
seemsto me thefirstto emphasizesodomyoverotheraspectsof the story,I would
associatethe initialshiftwiththe crackdownon a gay malesubculturein Londonoccurringat
thattime. Onthatsubcultureanditsrepression,see Bray,c.4; RandolphTrumbach,'TheBirth
of the Queen:Sodomyandthe Emergenceof GenderEqualityin ModernCulture1660-1750'
in MartinBauml Duberman,MarthaVicinusand George Chauncey,Jr, eds, Hiddenfrom
History:ReclaimingtheGayand LesbianPast,New York1989,pp. 129-140.
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