In her book, Cynthia Herrup has scoured the archives and discovered dozens of contemporary accounts of the trial (which was held in public, and therefore seen by many), plus innumerable pamphlets and poems. Her review of the documents is exhaustive and scrupulous, and her style is as compelling as the drama she reconstructs. However, although she is very good at highlighting the essential legal and political issues in the trial, it seems to me that she does not sufficiently engage our sympathy for any of the people in the affair.

Castlehaven's claim to innocence was consistently tied to the defence that no evidence confirmed sexual penetration (i.e. there was withdrawal before emission) and therefore the alleged acts did not meet the statutory legal definition of either rape or sodomy; to my mind, this kind of manoeuvre on his part actually demonstrates his "guilt" despite legal irregularities. Herrup demonstrates that the legal case against Castlehaven was technically flawed, and he was convicted mainly because he was regarded as a Catholic and an Irish sympathizer, and because he betrayed the patriarchal duty of keeping his house and family in order, hence the title of Herrup's book. Though Herrup does not dispute the abundant evidence of debauchery, she foregrounds the political, legal, social and cultural contexts of the affair, in effect retelling the tale for our postmodern times. In general it seems to me that Herrup has overinterpreted the case, and treated it as representative of the times when in fact it was unique. For example, Herrup constantly conflates (heterosexual) rape and (homosexual) sodomy in order to make general points about sexual/social "disorder", but this is virtually the only trial in which the two occur together.

Herrup emphasizes the political "use" of the trial; whereas I would emphasize the scandalous use of the trial. Herrup's claim that the earliest accounts of the trial were ideological and that the sexual side came to the fore only several generations later is belied by numerous contemporary verses such as those affixed to Castlehaven's hearse, which accused him of being "Besmeared with your sensual life". Numerous contemporary verses, which Herrup includes in a full appendix, nearly all emphasize lust rather than politics or religion or patriarchal irresponsibility. Despite Herrup's claim that sodomy was not the real point of the trial, nearly all the public retellings in pamphlets in the following hundred years not only catered for the public interest in bawdy sensationalism, but were directly inspired by notorious cases of sodomy and are demonstrably linked to the public interest in sodomites. Right from the beginning, the case was exploited more for its commercial topicality than for its moral meaning.

For example, the first pamphlet, in 1643, was inspired by the hanging of John Atherton, Bishop of Waterford and Lismore, for sodomy in 1642. The second pamphlet, in 1679, may have been inspired by the Popish Plot of 1678, in which Titus Oates was accused of being a sodomite. The third pamphlet, in 1699, was prompted specifically by the prosecution of Capt. Edward Rigby for sodomy in 1698. The fourth pamphlet, in 1708, was prompted specifically by a series of highly publicized. The next pamphlet, in 1710, was titled The Cases of Unnatural Lewdness and reprinted the trials of both Atherton and Castlehaven. In other words, contrary to Herrup's apparent wish to place the case at the centre of a political/ideological issue, it invariably worked within the context of the social or sexual discourse concerning sodomites.

Many of these pamphlet renditions of the trial give details which could only have been known by eyewitnesses, and Herrup does not adequately prove that their claims to be based on genuine sources are false, though she does prove, for example, that other accounts in letters and so on are indeed genuine and even that portions of the 1710 pamphlet, titled The Case of Sodomy, uses genuine manuscript sources. The best text, in my view, is the one of 1699, which uses direct quotations to report the testimony, but Herrup seems to think that only a journalist could have created this style of reporting, an opinion which I do not think is sufficient ground for dismissing it as a genuine source.

The data Herrup presents can hardly be challenged, but there remains a fundamental problem about "framing" this history, which is relevant to any sort of minority or alternative histories. Herrup briefly criticizes my own account of the affair (reproduced above) for being "presentist" and "popular" and in service to Gay Liberation (and so it was). Herrup chooses to portray Castlehaven's wife and daughter-in-law as the victims in the affair, and she shrewdly constructs our sympathy for them just as much as I directed our sympathy towards the sodomites. Herrup's account uses the perspective of feminist history and critiques the patriarchy, just as my account used the perspective of gay history and critiqued homophobia.

Herrup's agenda is seen in the fact that her account of the trial was originally presented at a Women's History Seminar in 1990 under the title "Patriarchy at Home". Frankly, it is disingenuous for her to suggest that it is more "objective" to rethink the story in terms of gender history rather than in terms of gay history. She is simply privileging one discourse over another, but it is really no more "objective" than mine. Herrup claims that "The prosecutions of Castlehaven and Broadway for raping the Countess of Castlehaven are a powerful example of how difficult it was for early modern women, however privileged, to have an effective legal voice." Herrup's emphasis on female disempowerment is frankly astonishing in view of the fact that it was three men who were executed! It seems to me that Herrup's refocusing of the trial through the lens of feminist history has in fact distorted her perception of the historical fact that this prosecution on behalf of women was successful, despite Tudor and Stuart gender prejudices, and it is clear that justice — at least for the women — did prevail.

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