Tom's Note: I've reproduced this extract because I find these links tend to disappear. I tried to contact the author but got no response - If he has a problem then please mail me.
Cynthia Herrup's book is concerned with a single case which is well-documented because the accused was a peer of the realm. Mervin Touchet, second Earl of Castlehaven, was beheaded in May 1631 for rape and sodomy. On such occasions it was customary for the condemned to confess his guilt, if only in the hope of persuading the authorities to take pity on his widow and children, for the property of a felon belonged to the Crown. Indeed, had Castlehaven been willing in the days before his execution to beg for mercy he would quite likely have been pardoned. But he died bravely (the one report that claims he turned the colour of smoked bacon at the last may prove that he lacked sangfroid, but scarcely proves he was a coward), protesting his innocence to the end. As well he might. A jury of 27 of his peers had convicted him, 26 voting him guilty of rape and 15 finding him guilty of sodomy. But there was no evidence that he had buggered anyone. A male servant, Florence Fitzpatrick, after being given a promise of immunity, had confessed to mutual masturbation. The Law Lords maintained that this was a sexual practice sufficiently unnatural to count as sodomy (a view which later courts were to dismiss as a bad precedent). Fitzpatrick himself was hanged a few weeks later, convicted solely on his own testimony, and despite the jury's desire to classify him as a mere accomplice: according to the law there were no accomplices, only principals, in such a crime.
As for the rape, Castlehaven was convicted of raping his own wife; or rather (in law a husband could not rape his wife) of being an accomplice in the rape of his wife by another: again, the law held accomplices to be indistinguishable from principals. Giles Broadway (executed with Fitzpatrick) had confessed to a sexual assault on Lady Castlehaven, but had claimed that penetration had never taken place because he had ejaculated prematurely. Castlehaven was convicted because of his wife's deposition (although wives could not normally testify against their husbands), despite the fact that his wife did not actually testify at his trial, and despite there being no evidence that she had spoken of being raped until six months after the event.
Castlehaven had thus been convicted of 'sodomy' on the uncorroborated testimony of a servant, and of being an accomplice to rape on the uncorroborated testimony of a woman. There are two problems here. Throughout most of Europe a conviction on the evidence of one witness would have been impossible. Under Roman law and the legal systems derived from it, the correct procedure in such a case would have been to torture the suspect in the hope of obtaining his testimony against himself. No early modern court would have authorised the torture of an earl, so Castlehaven was unlucky in having to face a common law court. And this brings us to the second problem. It was basic to 17th-century legal practice that the testimony of men was more reliable than that of women, and that of gentlemen more reliable than that of servants. Castlehaven was more than a gentleman, he was a peer, and peers were not even required to take an oath in a court of law, for their mere word was assumed to outweigh any commoner's oath. Castlehaven was entitled to feel both that the law had been retrospectively redefined to condemn his behaviour, and that the prosecution had failed to meet the normal standards of proof. Finally, although the accused in 17th-century criminal trials had no right to defence counsel, they did have a right to legal representation when questions of law, not fact, were at issue - and one could hardly deny that such questions had been raised repeatedly in the course of the trial.
Castlehaven's unrepentant behaviour in his last weeks was so impressive that Edward Hyde, who became Earl of Clarendon, was among those who became convinced of his innocence. Later, in the darkest hours of the Civil War, he was to hold up this convicted sodomite and rapist as a model of how to behave in the worst of circumstances.
Cynthia Herrup has written a fine book which seeks to show both how easy it would have been in principle to find Castlehaven not guilty, and how impossible in practice. For the prosecution argued that the whole tenor of his life showed him to be capable of the acts with which he was charged. He had turned impoverished servants who had taken his fancy into wealthy men; and he had induced his eldest son's 15-year-old wife, Lady Audley (who was also Castlehaven's stepdaughter), to commit adultery with one of these minions, in the hope of disinheriting his own descendants by blood.
The original complaint against Castlehaven had come from his son, Lord Audley, who had appealed to the King to prevent his inheritance from being squandered, and the fatal testimony had come from his wife. Here was a man who had betrayed his responsibilities as husband, father and head of a household in so gross a fashion that he was unfit to continue to govern over others. And yet the courtiers who hastened to condemn Castlehaven had stood by as James I turned his own impoverished minions into wealthy men, and, even under Charles, Castlehaven's heir was partially disinherited by his father's execution, the family seat being granted to a courtier. King and courtiers were well aware of the popular delight with which the assassination of the Duke of Buckingham, the favourite of James and Charles in turn, had been greeted only two years before. Herrup fails to bring out the extent to which Buckingham's career, which had ended in impeachment and murder, must have cast a shadow over the proceedings. Castlehaven had to die so that no one would dare claim that his house at Fonthill Gifford was a microcosm of the kingdom.
Herrup argues that the prosecution 'presented the defendant's prior life as the central proof against him. Ultimately, the prosecution implied, the Earl was guilty not because of what he had done with Broadway and Fitzpatrick, but because of what he had once done with Skipwith and Anktill.' (Skipwith and Anktill were his favourites.) The failure to prosecute Skipwith (Lady Audley's 'lover' - though one would prefer a term that acknowledged the possibility of duress - and the first of his servants to be arrested) and Anktill (who had married Castlehaven's eldest daughter) is, after the determination to convict an Earl, the second great puzzle of the trial, and scarcely explicable, I think, except in terms of a desire to avoid executing anyone who, as a favourite, could be said to resemble Buckingham. It may not be entirely a coincidence that within two decades the King was to be condemned and the Lords abolished. Already in 1631 (the recent 'revisionist' histories of Conrad Russell and others notwithstanding) the old order was sufficiently insecure to need a scapegoat, and Castlehaven was convenient for this purpose, being strikingly unsupported by powerful friends and allies.
Herrup has skilfully avoided a number of traps into which most authors would have blithely stepped. She is not interested in speculating about Castlehaven's sexuality (although he seems to have been a voyeur who had his servants call him to watch his stepdaughter having sex with other men). She thus avoids the temptation to treat Castlehaven's trial as an opportunity to learn about Stuart sodomy. And she is not prepared to take at face value either the judges' account of the law or the jury's verdict on the facts. So we never learn who 'really' did what to whom, or what the verdict ought to have been. We never escape from the participants' own narratives. Instead, she identifies herself with the American critical legal studies school: which is to say that she shares many of the preoccupations of Darnton and Davis, even if she shows no interest in Geertz and tells her narrative sparingly, with no set-pieces of 'thick description'.
Instead, in her account Castlehaven becomes the inverted reflection of 17th-century conceptions of good government and masculinity. Through him we learn what others aspired to be. Herrup has a subtle sense of the complex relationship between aspirations and the real world. Those who condemned Castlehaven slept with their male servants (a 17th-century bed was no private place) and imposed themselves on their wives and female servants. Some of them must have had hostile sons and angry wives, of whom it could be said (in the words of a poet claiming to be Castlehaven), 'We once were one but now are double hearted.' Castlehaven's failures were more spectacular than those of his judges, but they were not necessarily without fault themselves: a point made forcibly by another anonymous poet who took his side.
Even the best books have their limitations, and Herrup seems strikingly uninterested in literature, despite the opportunity her case presents to combine the techniques of microhistory and new historicism. She has little to say about the poems the trial inspired, and clearly does not know who Aretino is. She devotes less than a paragraph to the evidence suggesting that Milton's Comus (1634) is about Castlehaven (it was written for his in-laws), which is surely an opportunity missed. For all that, it is Herrup not Cressy who invites us to step outside our comfortable assumptions about love, order and authority and look at the world anew.