Trial of the Earl of Castlehaven 1631 The Lords that were his Peeres sate on each side of a great Table covered with greene, whose names are as followeth. 1. The Lord Weston, Lord Treasurer. 2. Earle of Manchester, Lord Privy Seale. 3. Earle of Arundel and Surrey, Marshall. 4. Earle of Pembroke and Montgomery, Lord Chamberleyn. 5. Earle of Kent. 6. Earle of Worcester. 7. Earle of Bedford. 8. Earle of Essex. 9. Earle of Dorset. 10. Earle of Leicester. 11. Earle of Salisbury. 12. Earle of Warwicke. 13. Earle of Carlisle. 14. Earle of Holland. 15. Earle of Danby. 16 Viscount Wimbleton. 17. Viscount Conaway. 18. Viscount Wentworth. 19. Viscount Dorchester. 20. Lord Piercy. 21. L: Strange. 22. Lord Clifford. 23. Lord Peter. 24. Lord North. 25. L: Howard. 26. Lord Goring. THE ARRAIGNMENT OF The Earle of Castlehaven. Thomas Lord Coventry, Lord Keeper of the Great Seale of England, was for this day Lord high Steward of England, who brought the Commission into the Court, and after an Oyez gave it to the Serjeant at Armes, who gave it to Sir Thomas Fanshaw to reade, who reads it, and then the usher of the blacke Rod kneeled downe to my Lord, and presented him with a white rod. He had seven great Maces carried before him when hee came into the Court: hee sate in a chaire of State; there attended him a Harald at Armes. The Judges sate before the Lords on each side of the table, whose names were, 1. Sir Nicholas Kide, Lord chiefe Justice of England. 2. Sir Thomas Richardson, Lord chiefe Justice of the Common Pleas. 3. Sir Humphrey Davenport, Lord chiefe Baron. 4. Baron Denham. [p.1] 5. Judge Iones. 6. Judge Hutton. 7. Judge Whitlocke. 8. Judge Crooke, the Kings learned Counsell. 9. Serjeant Crew. Master Attorney generall. Master Solicitor. Sir Iohn Finch. Sir Thomas Fanshaw, Clarke of the Crowne. After the Commission was read, and the staffe received by the Lord high Steward, he commanded an Oyez to be made, and after gave licence to all the Peeres of the Realme to put on their hats, and then all the Lords were called by their names, and answered particularly to them. Then was the Lieutenant called to bring forth his prisoner, who sate by the Common Pleas, and hee brought him to the barre, with divers of the Guard attending upon him, where he had a place in manner of a pew lined with geat velvet, and the Lieutenant another adjoyning to it: and when he had done his obeysance to the Lord Steward, and the rest of the Lords, who also returned it to the Lord high Steward, spoke to him to this effect. "My Lord Awdley, the King hath understood both by report, and the verdict of divers Gentlemen of quality, that you stand impeach’d of divers great and haynous crimes; and to try if they be true, he brings you here this day to triall, doing like the Almighty King in the 18. of Genesis, that sent downe to see whether their sinnes were so grievous as the cry of them, and Kings on earth can have no better paterne to follow, then the Kings of heaven: the Soveraigne, Gods Vicegerent on earth, hath commanded that you should be tried this day: and the desire of his Majesty is your try all should be as equall as equity [p.2] it selfe. And because the crimes that come this day before you, may in some breed detestation, and the person in others compassion: first lay these two aside, and let your reason sway your judgement, and your head your heart. And therefore these Peeres, who are your Peeres, and who have as noble justice in their hearts, as noble blood in their veynes, are this day to try you; therefore if you be innocent, speake without feare, and bee sure those that accuse you shall not escape free. But if you be faulty, I advise you to give honour to God and the King, and confesse your fault, for it is no vaine confidence nor subtilty that can hide the truth; therefore if truth touch you at the heart, and your conscience is a thousand witnesses, and God is greater then both, stand not against it; and if you doe not, God will put into the hearts of those noble persons to finde it out, and doe that is just." The Lord Awdley said, "I have beene a close prisoner these six months, without friends, and without Counsell, and am but of a weak speech at the best, and therefore I desire to have the liberty of having a Counsell to speake for me." My Lord high Steward said, "For your imprisonment, to you it hath beene a speciall favour, for you have had time enough, more then ever any man had that hath beene committed for such offences, and more favour then ever any man that came to this bar, and you demand nothing that the law can allow you but you shall have it, but for your demand I must move it to the Judges and they shall satisfie you in it, or in any other thing you require." Then he propounded it to the Judges, who answered that in criminall causes counsell is not to be allowed, but for matter of law hee may: Sir Thomas Fanshaw read the Indictment and asked him whether he was guilty or not, Lord Audley answered, "not guilty;" Sir Thomas Fanshaw said, "how wilt thou [p.3] be tried?" L. Audley answered, "by God and my Peers:" The Lord high Steward said, "the prisoner is indicted of rape and sodomy, by two indictments, and hath pleaded not guilty, and it is my duty to charge you to stand to the triall of it, and you are to judge of it, as they are to be proved by evidence, and you are to ballance it. This cause may carry in it, in some pity, in others detestation, both of which ought to be put into the ballance, for a graine on either side may sway the scale, but reason must rule your affections, and your heads, your hearts: you are to give an attentive eare, and then weigh equally, that the scale may leane the right way, and the Judges will assist you in point of law, which if you doubt, one may propound it to me, and I to them, or of the prisoner, this your Lordships are to doe without corporall oath: The law conceiveth you of such, that you will do that for justice, which others doe for their oath, and therefore admits of no challenge, God direct you to it." Master Attorny said, "my Lord high Steward, and it please your Grace, there are two Indictments against Martin Lord Audley, the first for Rape, the second for Sodomy, the prisoner is honourable, the crimes dishonorable of which hee is indicted (if it falls out to be true) which is to be left to triall; I dare he bold to say, never Poet invented, nor Historiographer writ of any so foule, though Suetonius hath curiously set out the vides [i.e. lives] of some of the Emperors, which had absolute power, and that might make them fearelesse of any maner of punishment, and besides were heathens and knew not God, yet none of them came neere this Lords crime; this is a crime of that rarity in our nation, that wee seldome know of the like, and the other that we scarse heare of it, but they are of that pestilential nature that if they be not punished they will draw from heaven heavy judgements upon this Kingdome: I can speake with comfort [p.4] that all my time, both in his Majesties royall Fathers life, and since he came to his Crowne, I never had occasion to speake in this place against any Peere of the Realme before now, and God knowes I doe it now with sorrow, and I hope I shall not have occasion to doe so much againe; but his Majesty who is the patterne of vertue, not onely as King, but in his person also, in whom it is hard to judge whether hee excell most in Justice or Mercy, but I rather thinke in Mercy, for he would have my Lord Audley the prisoner at Barre heard with as much favour as such a crime as this can bee; when he first heard it, he gave strict accoumpt that the triall should bee searched, that his throne and people should be cleared from so grievous sins, and therefore he was indicted in his owne Countrey, according to the law, by Gentlemen of worth. The Bill is found, and now he is brought to this Barre to be tried by his honourable Peeres, such as of whose wisedome and sincerity there can bee no question, but to have an honourable hearing. And first, I shall beginne with the indictment of Rape, Bracton tells us of King Athelstons law, before the conquest; if the party were of no chast life but a whore, yet there may bee a ravishment, but it is a good plea to say she was his concubine; In an indictment of Rape there is no time of prosecution necessary, for: nullum tempus occurrit regi, but in case of an appeale of Rape, if the woman did not prosecure in convenient time, it will barre her for the crimen sodomiticum, our law had no knowledge of it till 15. H. 8. by which statute it was made fellony, and in this there is no more question, but onely whether it bee crimen sodomiticum fine penetration [i.e.whether full penetration proves sodomy], and the law the 5. of Elizabeth, sets downe in generall words, and there the law doth not distingish, neither must we: I know you will bee curious how you give the least mitigation of so abhominable a sinne, which brought such plagues after it, as we may see in Gen. 18. [p.5] Judges 14. Rom. 1. But my Lords, it seemed to me strange at the first, how a noble man of his quality should lust to such abhominable sins, but when I found he had given himselfe over to lust, and find that nemo repente sit pessimus, and that if men once habit themselves in ill, it is no marvell if they fall into any sinne, and that he was constant in no religion, but in the morning would be a Papist, in the afternoone a Protestant; I shall bee bold to give your Grace a reason why hee became so ill, he beleeved not God, then what may not a man runne into? but I find things beyond imagination, for I find his intentions bent to have his wife naught, which the wickedest man that ever I heard of before would have vertuous, and godly, how bad soever himselfe be, and him lewd to his owne wife, if she love him she must love Henry Skipwith, whom he loves above all, and not in any honest love, but in a dishonest; he gives his reason by Scripture [i.e. referring to Jesus’s love for John], she was now subject to him, and therefore if she did ill at his command it was not her fault but his, and he would answer it; he lets this Skipwith who he calls his favourite, spend of his purse 500 l. per annum, and if his wife or daughter would have any thing, though necessary, they must lie with Skipwith and have it from him, and not otherwise; also telling Skipwith and his daughter, that he had rather have a child by him then by any body else. But this thing I had rather should come out of the mouthes of the witnesses then from me." [p.6] The severall Examinations and Depositions before the Lords. Walter Bigges Examination. ANtill was a Page to Sir Henry Smith, and had no meanes when he came to my Lord Audley: he entertained him for a Page eight yeares, and then let him keepe horses in his ground, by which I thinke he inriched himselfe 2000 l. but he never sat at the table with him till he had married his daughter, then gave him to the value of 7000 l.. Henry Skipwith, was sent from Ireland by my Lord, to be a Page to my Lady, his Father and Mother were very meane folkes, there he spent out of my Lords meanes 500 l. per annum, and he gave him at one time 1000 l. and hath made divers deeds of lands to him: My Lord was at first a Protestant, after the buying of Fountaine turn'd his religion. Lord Audley his Examination. HE saith Henry Skipwith had no meanes when hee came to him, and that he had given him 1000 l. and that Skipwith did lie with him when he was straightned in roome; and that hee gave a farme of 100 l. to Antil that married his daughter, and at other times to the valew of 7000 l. and that there was one Blawdma in his house 14. daies, and bestowed an ill disease there, and therefore he sent her away. Lord high Steward said, I advise you not to deny those things which are closerly proved, for then the Lords will give lesse credit to the rest you say. [p.7] The Countesses examination. THe first or second night after we were married, Antil came to his bed side whilest we were in bed, and the Lord spake lasciviously to her, and told her, her body was his, and that if she loved him, shee must love Antil, and if shee lay with any man with his consent, it was not her fault, but his. Hee would make Skipwith come naked into her chamber, and bed, and delighted in calling up his servants, making them shew their privities, and her looke on, and commended those that had the largest. Broadway lay with her whilst she made resistance, and my Lord held her hands, and one of her feet, and she would have killed her selfe afterwards with a knife, but that hee tooke it from her: and before that act of Broadway shee had never done it. He delighted to see the act done, and made Antil come into the bed to them, and lye with her whilst he might see it; and that she cryed out. Fitz Patricks examination. THat Henry Skipwith was the speciall favourite of the Lord, and that he usually lay with him; and that Skipwith sayd, the Lord made him lye with his owne Lady Awdley, and that he saw Skipwith in his sight doe it, my Lord being present; and that he lay with Blaudma in his sight, and foure more, and afterwards he himselfe in their sights. Henry Skipwiths examination. HE spent five hundred pounds per annum of the Lords purse. He lay for the most part in bed with the Earle: hee gave him his house in Salisbury, and a Mannour of a hundred and threescore pound per annum; and that hee usually lay with the young Lady, and there was love before and afterwards. And that my Lord said hee would rather have a boy of his getting, then of any other; and that shee was but thirteene yeares old [p.8] when he lay with her, and that hee could not enter her body without art; and that my Lord gave her things to open her. That Blawdma lived halfe a yeere in my Lords house, and was a common whore. Fitz Patricks examination. THe Lord made him lye with him at Fountaine, and Salisbury, and once in the bed, & semen consumpsit [i.e. emitted semen] but did not penetrate his body; and that hee heard he did so with others. That Skipwith lay with the young Lady often, and that the Lord would have a boy by him; that Blawdma lived halfe a yeare in the Lords house, and was a common whore. Friers examination. THat Henry Skipwith and the Lady lay together, and that he would faine have a boy by him. The young Lady Audleyes examination. THat she was married to her husband by a Romish Priest in the morning, and at night by a Prebend of Kelkenny: that shee was first tempted to lye with Skipwith by the Earle of Castlehaven, and that she had no meanes but that which Skipwith gave her; but she would not lye with Pawlet: he solicited also to lye with Greene: that hee saw Skipwith and shee lye together divers times, and nine of the servants in the house had likewise seene it. When he solicited her she said her husband loved her not, and that he would turne her out of doores if she did not, and if she would not he would tell her husband she did. That he used a wyld to enter her body first: that he usually lay with her, and it was with the Earles priviry. Broadwayes examination. HE lay at the beds feet, and in the night he called for Tobacco, and as he brought it, caught him, and bid him come to bed to him and his wife, and held one of his wives [p.9] legs, and both her hands, and at last he lay with her, notwithstanding her resistance. That he used his body like a woman, sed nunquam penetravit, quamvis inter femine, semen suum consumpsit [i.e. "but at no time did Castlehaven penetrate him; although he ejaculated semen between his thighs"]. He hath seene Skipwith and the young Lady lye together in bed, and when he got upon her, the Lord hath stood by and encouraged him to get her with childe, and made him kisse his Lady, and lye with her, telling him he should not live long, and it might be his making; and he said to Skipwith the like. The Countesses examination. AT Fountaine the Lord brought Broadway to bed, and hee held her hands and one of her feet, whilst Broadway lay with her: and that she caught a knife, and would have killed her selfe, but that they tooke it from her. The Earles examination. HEE desired to bee pardoned in those things of which hee must accuse himselfe, and that condemnation should not come out of his owne mouth. Master Attorney generall said, "you have seene the cleernes of the cause proved, and I know your wisedomes to be such as you well know in so darke a businesse a clearer cannot be; for let a man be never so wicked, he will not call witnesses to see it." Lord high Steward asked, whether may a wife be witnesse against her husband. Judges answer: "In civill causes she cannot, in criminall shee may, especially where she is the party grieved." Lord high Steward asked whether buggery was within the Statute, without penetration. Judges answer: "It may, the use of the body to spend seed doth it." Lord high Steward asked whether one can ravish a woman of ill fame, or no. [p.10] Judges answer: "a whore may be ravished, and it is felony to doe it." Lord high Steward asked whether there be a necessity of accusation for ravishing, in convenient time. Judges answer: "in an indictment there is not, in an appease there is." Lord high Steward asked, whether men of no worth shall be sufficient proofe against a Baron. Judges answer: "any man in felony." Then the Lords went away to consider, and after their returne the Lord Steward asked one by one, first of the indictment of rape, to which they all answered, "Guilty;" then to the other, and fifteene found him guilty, and the rest not. Lord Audley spake for himselfe, that his wife had beene naught, and had a childe, which hee concealed to save her honour, and that his son now became 21. yeares of age, and hee old, that the one would have lands, the other a younger husband, and therefore they plotted his death. Then the Lieutenant was called to bring out the prisoner, who when he was come to the Barre, the Lord high Steward spake to him in this manner. "Mervin Lord Audley, you have beene indicted, and have pleaded not guilty, and put your selfe on God and your Peers, who have found you guilty of both, and therefore my heart grieveth that my tongue must utter, but justice is the way to cut off wickednesse. O thinke upon your offences, which a Christian ought scarce to name, and which the depraved nature of man, which carries us to all vice, yet hates this unnaturall sin; and you have not onely offended against the nature, but the rage of a man, jealousie; and though you dye not for it, yet you have abused your daughter, and having honour and fortune to leave behinde, you would have had the spurious seed of a varlet to inherit both. [p.11] "But my Lord it grieves me to see you stand against a truth apparant and concluded upon, how God might have taken you away in your sinnes, and therefore I hope he hath reserved you as a subject of mercy, when you were blinded in your sins he sends you to see this day of shame, to turne you to him; and seeing hee doth in a manner draw you, spend the rest of your time in teares and repentance, and this dayes worke is a correction for many crimes corruption." The Lord high Stewards sentence of death pronounced against the Lord Castlehaven. "FOrasmuch as thou Mervin Lord Audley hast been indicted of divers fellonies, for which thou desiredst to be tryed by God and thy Peeres, which tryall thou hast had, and they have found thee guilty of them, thy sentence therefore is, that thou returne to the place from whence thou camest, and from thence to the place of execution, there to bee hanged by the necke till thou be dead. "And the Lord have mercy upon thee." (See also my analysis of the trial, plus the trial of Broadway and Fitz-Patrick, and verses following the Castlehaven trial.) SOURCE: THE ARRAIGNMENT AND CONVICTION OF MERVIN Lord AVDLEY, Earle of Castlehaven, (who was by 26. Peers of the Realm found guilty for committing Rapine and Sodomy) at Westminster, on Monday, April 25. 1631. By vertue of a Commission of Oyer and Terminer, directed to Sir Thomas Coventry, Lord Keeper of the Great Seale of England, Lord high Steward for that day, accompanied with the Iudges. As also the beheading of the said Earle shortly after on Tower Hill. LONDON, Printed for Tho: Thomas. 1642. CITATION: If you cite this Web page, please use the following citation: Rictor Norton (Ed.), "Trial of the Earl of Castlehaven, 1631", Homosexuality in Eighteenth-Century England: A Sourcebook. uploaded 12 January 2023 <http://www.rictornorton.co.uk/eighteen/1631cast.htm>. Return to Homosexuality in Eighteenth-Century England