Travesties and Transgressions in Tudor and Stuart England 
by David Cressy.
Oxford, 351 pp., £25, November 1999, 0 19 820781 6
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A House in Gross Disorder: Sex, Law, and the Second Earl of Castlehaven 
by Cynthia Herrup.
Oxford, 216 pp., £18.99, December 1999, 0 19 512518 5
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Both David Cressy and Cynthia Herrup believe they are writing microhistory, a word coined by Italians, but used to describe above all the work of Natalie Zemon Davis (The Return of Martin Guerre, 1983) and Robert Darnton (The Great Cat Massacre, 1984). Microhistorians have turned to the verbatim records of interrogations kept in the law courts of early modern Europe (or at least those parts of Europe where Roman law procedures were followed) to reconstruct the detailed stories of individual trials. They have been trying to write ‘history from below’, convinced that the stories peasants or apprentices told about their lives, and the decisions courts reached on the basis of them, were inconsistent, distorted, fractured, but that at the same time there was precious little objective truth to be discovered beyond these accounts. Davis and Darnton both taught at Princeton, where they attended the seminars of Clifford Geertz, who encouraged the belief that the simplest events (his classic account was of a cock-fight in Bali) were invested with the preoccupations and styles of thought of the whole culture; that objects and actions could be interpreted as if they were texts; and that the right sort of description (‘thick description’) would enable readers to ‘see’ what was at issue. Foucault’s Discipline and Punish (which appeared in English in 1977) provided a ready model of how historians might achieve similar effects.

So it was with some sense of shock that I read David Cressy’s claim that ‘the great G.R. Elton . . . pioneered the practice of microhistory’ in his Star Chamber Stories (1958). Elton may have been a great historian; he certainly dominated the study of Tudor history through the 1960s and 1970s. But it would have been hard to find anyone more hostile to the new social sciences, or to French theory, and Cressy knows full well that Elton would have been ‘horrified’ to think he was responsible for Davis and Darnton. For Cressy, microhistory is simply the close study of legal records, not a set of intellectual (not to mention moral or political) commitments. The new microhistorians thought they had found a new way of making sense of the past; Elton and Cressy offer us mere off-cuts that found no place in their larger works – in Elton’s case his studies of Tudor government, in Cressy’s his study of ‘normal’ behaviour in Birth, Marriage and Death (1997). (It seems pointless to try and find microhistory in English before Foucault and Geertz, but anyone who wants to engage in such an enterprise should read Graham Greene’s Lord Rochester’s Monkey, 1974.)

Historians of England have been slow to turn to microhistory because the evidence in English common law courts was spoken not written, trials usually lasted only a few minutes (Castlehaven’s trial, to which I will turn in a minute, was exceptional in lasting the greater part of a day), and all that is usually left behind is the record of a verdict. Star Chamber, a prerogative court, is an important exception (hence James Sharpe’s recent The Bewitching of Anne Gunter), and church court records are sometimes quite full. Thus Cressy can tell us the stories of an excommunicated Catholic, buried illegally by night in the chancel of her parish church; of a young man who dressed as a woman to join in the all-female festivities that followed a birth; of horses and cats being baptised; of abortion and infanticide.

Cressy is not writing history from below, however. He refers to his lower-class female culprits by their first names, while his clergymen retain the respectability of their surnames. And he confuses ‘thick description’ with what he calls ‘gruesome detail’, as in the story of Lydia Downes who was a party to infanticide in 1635: ‘Readers who wish to be spared gruesome details may be advised to skip this part of Lydia’s confession,’ he says, the effect of which is surely to encourage readers to read closely, and discover that Downes’s companion, Skeete, ‘took the arm of the child and put the hand of it into the mouth, and strangled it’. One can’t imagine Foucault apologising for catching our attention.

Cressy’s lead story is that of Agnes Bowker, who could produce a midwife to confirm that, on 17 January 1569, in Market Harborough, she had given birth to a stillborn monster. The story is complicated. Bowker had certainly been pregnant; indeed, by her own account the pregnancy had lasted far longer than normal. She claimed that she had had sex not only with a schoolmaster and a servant, but also with demons in various animal shapes, a claim which was intended to account for the strange resemblance between her offspring and a cat. Contemporaries believed there were authenticated cases of women giving birth to dogs, pigs and toads, and we should not be surprised that a pamphlet promptly appeared reporting the birth of this demonic creature.

But Bowker had not reckoned with the resourcefulness of a local clergyman, Anthony Anderson, who handled the matter on behalf of the church courts. By the time he became involved the monster had been cut open by the local innkeeper in the presence of the curate, and bacon and bits of straw found in its stomach; moreover, a local cat had been reported missing. Anderson set out to reproduce the diabolic monster in what Cressy calls a ‘laboratory experiment’. He had another cat killed and flayed, and the result was identical to Bowker’s offspring except for the eyes. A quick spell in boiling water and the eyes of Anderson’s cat were opaque, like those of the mysterious monster. Anderson was thus satisfied that he was dealing with a case of fraud, and it seems likely that Bowker had given birth to a normal child some time earlier, a child which had died or been done away with. It is worth noting that Cressy, like Elton, wants to get at the truth behind the stories. ‘I have chosen to immerse myself in a sea of stories,’ he says, but if you look closely you will find his feet are always on the ground. He never floats free.

Cressy talks cheerfully of Anderson exercising ‘a country version of Renaissance laboratory craft’. But the word ‘laboratory’ appears first in 1605, so the idea of Anderson thinking in terms of a laboratory is anachronistic. Anderson can scarcely have thought he was copying the techniques of scientists; nor was he looking for clues: Carlo Ginzburg showed in his Clues, Myths and the Historical Method (1989) how the idea of a clue was a 19th-century innovation. Umberto Eco’s Name of the Rose (1981) portrays a historical impossibility, a medieval monk with the mental faculties of Sherlock Holmes – the story’s whole point is that it is shot through with anachronism. I only wish that Anthony Anderson, as described by Cressy, was a similarly fictional creation, for his behaviour is every bit as puzzling and mysterious as that of Eco’s monk. He seems entirely of the 16th century when he infuriates a parishioner by calling him ‘boy’ and ends up being beaten until his head is ‘as soft as a sponge’, but faced with a Renaissance X-file he suddenly turns into Scully, seeking to dispel mystery with laboratory science.

What were the curate and innkeeper doing when they cut the monster open? Presumably they were testing a practical syllogism: neonates have empty stomachs. A creature with food in its stomach is not new-born. What was Anderson doing when he set out to reproduce the monster? Already convinced that the monster was a fake, he was not a scientist, exploring the secrets of nature, but a craftsman, studying the techniques of a competitor. He was not using laboratory equipment but the tools (a knife, boiling water) that would have been available to Bowker. He provided an illustration of Bowker’s fraudulent monster (putting his one piece of specialist equipment, a pair of compasses, to work), captioning it: ‘There is nothing so secret that shall not be made open.’ No Renaissance clergyman would have made such a claim about God’s handiwork; it ceases to be blasphemous only if it is read as a comment on human artifice. Anderson was not carrying out an experiment, but trying to reproduce a recipe; he was engaged in the fundamental cultural practice of his day, common to poets and craftsmen, that of imitation.

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.

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