Sex, Law, and the 2nd Earl of Castlehaven

By Cynthia B. Herrup

Oxford. 216 pp. $25

The story that Cynthia Herrup tells in this thoughtful, scrupulously researched book takes place in Tudor and Stuart England in the years 1630 and 1631. Charles I, "the most conventionally familial of monarchs, publicly devoted to his wife and children," was on the throne; the son of the brilliant but "unkempt" James I, he was "determined that his court would be as ceremonious and upright as his father's had been raucous and incorrigible." He ruled "a civilization rife with anxieties," superstitious and pious: "The battle against sin was constant, and the strong in that battle were both obligated to the weak and endangered by them."

No one--save the king and his highest ministers--was stronger than the small band of aristocrats who served as heads of England's genteel households. These consisted of dozens, even hundreds, of people: not merely the lord and his family but also their many servants. "The responsibility of a head of household encompassed the spiritual and civic as well as the economic well-being of every person in his care. Heads of households were expected to instruct their inferiors as well as to protect them. Superiors were to guide and to discipline their charges, but most important, to teach them by example."

Mervin Touchet, Second Earl of Castlehaven, was the head of a smallish household in Wiltshire called Fonthill Gifford, but in almost no respect did his performance satisfy the conventional job description. In the fall of 1630 his 19-year-old son, Lord Audley, claimed before the privy council that his father "intended to disinherit him," that he had encouraged servants to have carnal relations with Audley's 16-year-old wife, and that one of these servants, Henry Skipwith, was "overfamiliar" with Castlehaven's own wife.

The more the councilors looked into the case, the worse it got: "They had heard explicit allegations that suggested a household of gross immorality, orchestrated rather than foiled by its aristocratic head. Castlehaven seemed to dote on his favorites physically and emotionally, as well as financially. He apparently committed sodomy with them, used them to humiliate his wife and daughter-in-law, and schemed to make them permanent members of the family. He allegedly arranged myriad scandalous heterosexual couplings, applauded them, and on his orders insisted that they occur before the eyes of various household servants."

In April 1631 Castlehaven, by then imprisoned in the Tower of London, went on trial before 27 of his aristocratic peers. He was convicted of, and subsequently executed for, two charges of sodomy and one of rape, the latter because he apparently had helped a servant rape his own wife; "no English peer had been executed for a crime apart from treason in close to a century." The case caused a great sensation at the time and echoed for years in story, poem and song, "repeatedly repackaged and reused," serving as an example "in arguments about (among other things) cuckoldry, tyranny, degeneracy, redemption, marital abuse, marital reform, toleration, and homophobia."

In "A House in Gross Disorder," Herrup retells the tale not to titillate (there is nothing titillating about it) but to try to locate its truth and to explore its larger meanings. There is reason to believe, she demonstrates, that Castlehaven may not have been guilty, but he was found guilty "because he had neither the reputation nor the patronage to appear credible" and because his testimony in self-defense "was as frightening as the [testimony] that he refuted." Not merely that, but "the aristocracy considered itself to be the community of honor," and it was deemed necessary to punish Castlehaven severely for so flagrantly mocking received wisdom about heads of households.

There is much more to the tale than that, and Herrup examines it all closely: 17th-century definitions of rape and sodomy, the strategy of the prosecution, the trial as "a test of the custodial obligations of the king as well as a constitutional struggle over the meaning of good paternal governance and good legal practice." Academia being what it is these days (Herrup teaches law and history at Duke), the prose gets a bit muddy at times and "class and gender" predictably rear their heads, but on balance Herrup has written a clearheaded and instructive book.

Jonathan Yardley, whose e-mail address is yardley@twp.com.