Finding the Bodies

On a Saturday in May 1631 Mervin Touchet, Lord Audley in the English peerage and the second earl of Castlehaven in the Irish peerage, was beheaded on Tower Hill. Three weeks earlier a jury of twenty-seven peers had condemned him on charges of rape and sodomy. The accusations in the case were manifold, but the three indictments alleged two instances of buggery between Castlehaven and Florence Fitzpatrick, his Irish footman, and one instance of rape, in which the earl had encouraged and then assisted a household servant named Giles Broadway in an assault on the countess of Castlehaven. Castlehaven had been under investigation since late 1630; a grand jury indicted him and Broadway in mid-March; a court of the lord high steward tried and convicted the earl in late April. Fitzpatrick and Broadway were tried after Castlehaven’s execution; they died by hanging in July. The case was the most spectacular scandal of the Caroline era; among other things, it vitiated the attempt of Charles I to distance his court from the sexualized reputation of his father’s.

According to the prosecution, the indictable felonies were a small part of the misbehavior condoned by the earl in his household. The evidence presented at the trial described sodomitical relationships between Castlehaven and at least three servants besides Fitzpatrick, as well as adulterous liaisons between various serving men and both the countess and Lady Audley (the pubescent wife of Castlehaven’s heir). Moreover, it impugned the earl for engaging in and orchestrating other sexual improprieties, including whoring, group sex, public sex, and “display and watching.” ¹

Castlehaven was a minor peer, but it was rare for the early modern English state to try, much less to behead, a nobleman for anything but treason. Castlehaven is the only peer of whom I am aware who was executed solely for what on the record were sexual crimes; the trials of the earl and his servants are the only such cases included in the thousands recorded in Cobbett’s Complete Collection of State Trials and Proceedings. ² The events of 1631 are unusual also for the wealth of documentation that they have left us: depositions, public speeches, epistolary comments, libels, and pamphlets make these the most “available” trials we have concerning sexual misbehavior in England before the Restoration. While barely descriptive compared to later reports of sexual encounters, the material associated with Castlehaven is graphic enough to provide rare insights into the physical side of some sorts of early modern sex. ³ Historians and literary scholars have made repeated use of the Castlehaven story, yet they have seldom considered its physicality. Why hasn’t more been made of this abundance?

There are several reasons, all justifiable, but none outweighs the advantages of moving beyond them. For historians interested in the high politics of England’s seventeenth century, Castlehaven’s case has served best as a convenient illustration of the moral challenges facing Charles I in the 1630s. Kevin Sharpe is merely the latest in a series of scholars who have set the trials into this context; he uses the king’s reaction to the earl to exemplify the way that Charles I repeatedly “identified disorder with unbridled passions in the body politic.” ⁴ From this perspective, the broad outline of the earl’s trial—the aristocratic participants, the scandalous allegations, the king’s refusal either to protect or to pardon the defendants—is more important than its details. The trial’s sexual content signifies disorder; the narrative utility of the case would be fundamentally the same as long as the peers convicted the earl of something shocking and the king allowed his execution. For such scholars, especially those who believe that only historians of sex need care about things sexual, no incentive exists to analyze the physical details of these events. Quite the contrary, since looking directly at the sex in the trials would mean engaging with specifics from which many scholars prefer to avert their eyes.

For researchers more interested in the cultural resonance of sex and sexuality, of course, Castlehaven’s trial has an importance of an entirely different order. For us, the what is as important as the who. The status of the parties, the public scandal, and the king’s disapproval help explain the exceptional documentary remains of the trial, but as contributions to the history of sex, the specific acts are every bit as important as the story’s general framework. Most histories of early modern sex and virtually all histories of sodomy in early modern England mention the trials of Castlehaven and his servants; some spend several pages rehearsing them. Yet no discussion of which I am aware makes much of the physical portraits that the evidence allows. ⁵ This is as true of those who consider the earl an early modern homosexual as of those who deny the validity of such a category; true of those who see his trial as a sign of past oppression and of those who see in it past tolerance; true of those writing primarily about sexual acts, of those writing primarily about sexual desires, and of those writing primarily about sex as an expression of broad cultural priorities. In the historiography of rape (most of which has focused on victims without privilege) the case rarely appears at all. ⁶

Why this reluctance? Some of it comes from a paradox of triviality. ⁷ Because mainstream scholars consider histories of sex marginal, it has been difficult not to cast histories of sex as responses to that classification. Because writing history is the act of conversing over time and space with other historians, this makes sense. But the concessions that this engagement demands are problematic. If we attempt to co-opt the status of being peripheral by creating (however temporarily) a discrete subfield, we validate the significance of work on sex, but in a way that makes it difficult to convince or even to address anyone who is not already persuaded of the subject’s importance. Historians of sex, in effect, collude with other historians in the belief that materials containing sexual discussions must be primarily understood in terms of sex.

Yet if we challenge this assumption by arguing that sex is part and parcel of other sorts of histories, we still pay a considerable price. We reach a wider audience, but, to date, the most successful (least threatening) way to make sex matter has been to disembody it. So we point out echoes of sex where it physically is not and claim to find something more than sex where it physically is. Critical theory helps us do this, and it has made historical scholarship more aware of sex and desire than it has perhaps ever been. But despite the apparently successful imperialism of such a move, the accompanying ideological ground reinscribes the privilege of other histories; sex is important because it gestures toward, rather than simply is, a public matter. So either way we lose: histories of sex are trivial because they are of interest only to specialists, or histories of sex are trivial because their importance lies in the ways they illuminate something that is not “merely” sex.

Trials such as those of Castlehaven, Broadway, and Fitzpatrick have their uses as episodes in a history of sex; so, too, can they contribute to discussions of broad cultural anxieties. But they have something else to offer: a rare set of descriptions of physical sex. However self-serving the representations in a legal matter, however artificial the act of giving testimonies, the evidence produced for legal cases is too intriguing to ignore. The remains here are exceptionally, if not uniquely, elaborate for early-seventeenth-century England. Finding the bodies in the Castlehaven story turns out to be both provocative and productive. It reveals a conundrum about the earl’s juridical status, an insight into how early modern prosecutors constructed their arguments, and several episodes that make clear the value of taking sex out of its “ghetto” and understanding it in the context of a general history of life in early modern households. ⁸

Looking at the physical shifts our perspective about the trials in at least two ways, influencing what we can “hear” in the prosecution’s arguments. A new perspective shows, first, how weak the technical case against the earl and his servants was and, second, the strategy that the prosecution hoped would offset those weaknesses. Both insights rely on our recognizing the importance of sexual penetration. Penetration (in the case of rape, penetration and force) is what legally distinguished felonious sex from other behaviors, and emission was not prima facie evidence of penetration. Neither the physical description of rape nor that of sodomy in these cases unequivocally crossed that threshold.

In the charge of rape, the testimonies of the countess and Broadway contradicted each other: she alleged carnal intercourse; he insisted that, although he had “used some small force,” “he spent seed on her body, but never entered it.” The issue was left unresolved. In the charge of sodomy, no one even alleged penetration: Fitzpatrick testified that Castlehaven had “spent his seed but did not penetrate his body”; Broadway, answering charges that he, too, was a sodomite, said that the earl “used his body as a woman, but never pierced it, only spent his seed between his thighs.” The earl acknowledged no sodomitical activity, but during his defense he asked the court “whether buggery was within the statute without penetration” (e.g., whether the legal definition of sodomy could be met where there was no proof of penetration); when the judges declared that indeed it was, the earl was “much amazed.” ⁹ He was not alone, for the convention in common law was to interpret capital statutes narrowly rather than expansively.

Close attention to the physical details, then, shows that the prosecutors’ challenge was to prove felonious sex not with reference to the evidence but in spite of it. The mismatch was noticed by both the jurors and contemporaries. A guilty verdict necessitated that the prosecutors convince the jury that the alleged crimes justified the judicial enlargement of what legally constituted sodomy; this was later declared applicable “only upon this case and these examinations.” ¹⁰ The prosecutors handled the testimony for rape by diversion: they complemented it with information about a similar (and, to many minds, even graver) charge. Broadway’s engagement with the countess might be in question, but both the earl’s daughter-in-law (Lady Audley) and yet another servant (Henry Skipwith) testified that sexual intercourse between them had been arranged and even physically assisted by Castlehaven. Lady Audley described the affair as virtual, if not technical, rape; Skipwith claimed that it was consensual. They agreed that they had slept together and that, despite Lady Audley’s youth (she was twelve or thirteen when they first slept together), the earl had encouraged the adultery. ¹¹

Even more intriguing than the failings of the evidence is the fact that the rhetorical strategies in the trial parallel the physical descriptions: the themes that framed the prosecution and the sexual acts as described mirror each other too closely to be coincidental. The prosecutors built their case around three contentions: the earl had betrayed the responsibilities of male stewardship; he had lost sovereignty over both himself and his household; and he had brought his family, his class, and his nation into disrepute. The descriptions of sex from both defense and prosecution witnesses followed the same motifs: demarcation, control, and visibility.

The earliest surviving evidence against the earl complains that, by granting favors to his minions, Castlehaven threatened to erase “the difference between a servant and a son.” According to the prosecution, male servants controlled the earl’s purse as well as his disposition, and he intended to bestow on them social as well as financial respectability. The attorney general explained this behavior by connecting it to religious confusion, in early modern English terms perhaps the most damning disorientation of identity. Castlehaven, he alleged, was inconstant in religion: “In the morning [he] would be a papist and in the afternoon a Protestant.” The sexual descriptions suggest similarly uncertain boundaries. Castlehaven argued with the court about the difference between same-sex play and sodomy; he used a version of his wife’s sexual history (one in which he had the “ill fortune to wear the horns, though I put them in my pocket”) to contest her claim of rape. The testimony also implies other blurrings: the countess said that Castlehaven had encouraged her to bed his favorites by insisting that “her body was his.” By at least some accounts, it was the earl who, when his virginal daughter-in-law proved impenetrable, applied oil “to open her body” for Skipwith. Afterward the earl had allegedly told several people in the household that “he would rather have a boy of his [Skipwith’s] begetting than of any other.” ¹²

A second theme for the king’s counsel was the earl’s loss of self-discipline; his degeneracy, begun with his habituation to ill-doing, ended with a universe in which he had command over neither his servants, his family, nor his body. Again, the physical details address the same issue. Since Castlehaven made no confession, he never spoke about control, but most of the witnesses did. They invoked the body’s disconnection from the will to explain their participation in what the court considered illicit sex. The countess insisted that, although her body had participated in intercourse with Broadway, she had never consented “in her heart”; Lady Audley’s inflexible hymen allowed a similar explanation of her involvement with Skipwith. Broadway claimed that his desires and his body had been at odds: despite his having repeatedly refused to assault the countess, one night, “satisfying my Lord’s desire, he [Broadway] came to bed to them, where (being gratified), nature provoked him to a kind of desire.” According to some witnesses, a similar mismatch was the root of the family’s heterosexual discord; neither Castlehaven nor his son, it was alleged, was “able nor willing to satisfy” his respective wife. ¹³

Last, both prosecution and defense turned repeatedly to issues of publicness. For the prosecutors, one thing that made degeneracy worth prosecuting was its visibility; the entire household allegedly had known about the adultery of Lady Audley and had whispered about the reputation of the countess; the entire parish, including the pastor, allegedly had known of the earl’s relations with his favorites. ¹⁴ To the prosecutors, Castlehaven had betrayed his position in the kingdom not only by his behavior but also by his having allowed the peculiarities of his household to become public. Visibility is also a central trope in the trial’s imagery of physical disarrangement. According to witnesses, Castlehaven took considerable pleasure from sexual display: he had watched his daughter-in-law with Skipwith and had had servants join the audience; he had ordered other servants to lie with a local prostitute “in his sight” and then had returned the favor; he “delighted in calling up his servants to show their privities; and would make her [the countess] look on, and commend those that had the largest.” He insisted, too, on public acknowledgment of his favorites. He had them sit at his table and “caused” Skipwith to be called “Mister.” He had allowed one servant to marry the eldest Touchet daughter and had encouraged at least one other to marry the countess once he himself was dead. ¹⁵

These correspondences necessitate a fundamental shift in our understanding of the trials. According to the testimony on all sides, although Castlehaven and his servants engaged in sexual activity (as did almost everyone in the house in various combinations), they were sodomites because the judges, acting as advisers to the peers, and not the law, made them so. The physical details complicate both the notion of early modern sodomy and the notion of Castlehaven and his servants as sodomites. Given the language of his devotion to Skipwith, Castlehaven may have had more homoerotic desires than some of us have allowed, but as a sodomite he may have been more of a juridical creation than others have believed. The conflict between principal and accuser over the allegations of rape is less surprising than the conflict over sodomy, but here, too, paying close attention to the physical changes our perspective by drawing our attention to the portrayal of the women in this case. The testimony suggests the sustained vulnerability of aristocratic women as well as serving women, of mature women as well as adolescents. The humiliations allegedly visited on the countess, Lady Audley, and local prostitutes cut through the expected privileges of class. The stories here remind us that not all early modern rapes were sudden, physical assaults; the pretrial evidence outlines a sustained verbal and physical campaign by the earl to share all of the women in the household with a variety of favorites. ¹⁶

This perspective also reveals something about how early modern prosecutors built their legal presentations. The physical evidence preceded the speeches in court; it is unclear whether the prosecutors followed its themes or tailored the evidence to their predetermined outline, but the effect was to co-opt defenses into arguments. Castlehaven challenged the court’s definitions, the prosecutors claimed that he was blind to the integrity of categorical distinctions; Castlehaven claimed consensual heterosexual sex, the prosecutors’ depiction of his lapses made those of other witnesses seem pallid; Castlehaven complained that both his wife and his daughter-in-law were notoriously promiscuous, the prosecutors buried such claims under myriad examples that the earl himself thrived on sexual display. Are these parallels only strategically homologous, or do they say something deeper about the intersections of the physical, the political, and the linguistic? Set alongside the fluid definitions of felonious sex, do they imply that talking about the one set of these things was in fact an attempt to stabilize the other?

Looking closely at embodiments in the trial should change more than our knowledge of the trial itself, and indeed it does. Understanding how the prosecution built its case against Castlehaven and his servants encourages us to consider sodomy and rape as part of larger categories of sexual behaviors even as they were in other ways exceptional. What impresses anyone who focuses on the physical in these trials is how many different sorts of sexual interaction they contain: heterosexual and homosexual, consensual and violent, coupled and collective, public and private, verbal and palpable, penetrative and masturbatory. To focus primarily on the felonies creates a false hierarchy of sexual subversiveness as well as a false assumption of culpability. It assumes that penetrative sex, once alleged, outdraws any other behavior’s claim on the public’s attention and so not only confuses the historians’ conclusions with historical fact but invites us to consider piecemeal the impact of something that contemporaries experienced as a single entity. What we see in these trials is one of the few seventeenth-century confirmations of the sort of sexual plenitude so aptly described by scholars of the eighteenth century; as they do, we need to recognize nonpenetrative sex not as an absence but as a presence. ¹⁷

The range of sexual behaviors in these trials also shows us how little we know about the ways that contemporaries understood or thought about the law. The good work done on how early modern people conceived of same-sex desire and the behaviors concomitant with it has yet to be integrated with work on the creation and force of legal strictures. Was the earl’s amazement at his fate a product only of his understanding of the law and his social arrogance, or does it imply something broader? The testimony of Castlehaven’s servants suggests a fairly exact knowledge of when unconventional behavior technically became criminal. At the earl’s trial both Broadway and Fitzpatrick insisted that their sexual behaviors did not violate the law; at their own trials each relied on statements about his legal rights. Reiterating his claim that he had not penetrated the countess, Broadway forced her to appear in court personally to contradict him. Fitzpatrick claimed immunity from prosecution based on self-incrimination. ¹⁸ From whom and when had the servants learned the principles behind such defenses? How much did people know about the laws concerning sex and about the conventions of evidence? What, if any, impact might legal categories have had not only on self-presentation but also on actual behavior?

There are also intriguing questions raised here about life in early modern households, particularly large ones. At his execution Broadway admitted that while the countess had not encouraged his advances, he had known that if he had wanted, she would have slept with him, because she slept regularly with other servants. This calumny fits so neatly with the contemporary conviction that women were sexually voracious, and so distressingly with modern countercharges to claims of rape, that it is difficult to take seriously. Yet the countess might have been both raped and promiscuous. When Skipwith told his story of intercourse with Lady Audley, he framed it as a relationship in which marriage was impossible, but “there was love between them before and afterwards.” Again, this evidence is to his benefit, but it is worth serious consideration: could household mistresses sexually entice servants in ways more commonly associated with masters? Castlehaven allegedly had told his men that relationships with the countess might be “their making.” How exactly did class and gender intersect in physical relationships? ¹⁹

It is a truism that in early modern England a great house, even in its chambers, was a public place. Despite the apparent visibility of sexual pairings in the Castlehaven household, however, there was evidently also enough space plausibly to claim sexual secrets. Skipwith said that the countess or her daughter or maybe both had had maids do “away” with bastard children without the men of the house knowing anything about it. Castlehaven said that he had discovered only after the fact that his eldest daughter intended to marry a household servant and that his daughter-in-law had cuckolded his son with Skipwith; Skipwith and the countess allegedly had convinced the earl that they slept together when they did not. ²⁰ How does this testimony mesh with the evidence of open doors and open secrets? How were the tensions around private and public peculiarly revealed in sexual behaviors?

Talking about physical sex opens out our vision of these trials and their utility as social and cultural history. The details make it harder to ignore the sex and (as has routinely happened) harder to muddle the facts of the presented narrative. Finding the bodies cautions us against relying on overly narrow definitions of sexual behavior and against reifying categories built from laws and trials. It raises questions about the vocabularies available for early modern people to discuss sex and enriches our ability to visualize these stories, making them into episodic images that can be set against the sex embodied in more conventional artistic media. Embodying Castlehaven helps us see the relation of felonious sex to other sexual behaviors, to public awareness of the law, to social hierarchies, and to the nuances of the public and the private. Thinking about the corporeal reminds us as well how little we know about the integration of the mental and the physical. “It is far easier,” Lyndal Roper writes, “to insist on the need for a history of early modern culture which will incorporate the subjective, the psychic and the corporeal than it is to show how that history will look.” ²¹ She is surely right, but making sex visible and physical shows the potential of trials such as Castlehaven’s to serve as building blocks for a properly sexualized early modern history.