The Trial of Mervyn Touchet,
Earl of Castlehaven
1631

Copyright Rictor Norton. All rights reserved. This essay may not be republished without the permission of the author.

On Monday, the twenty-ninth day of April, in the year of our Lord 1631, about the hour of ten in the morning, the Lord Keeper Coventry, being by special commission duly appointed Lord High Steward of England, with twenty-six members of the Nobility, proceeded into Westminster Hall, attended by a Herald and six Sergeants at Arms. The Lord High Steward being seated in a Chair of State, and the Peers of the Realm being seated round a table covered by a cloth of green velvet, proclamation was made for Silence! Thus began — amidst all the dread-inspiring pomp and circumstance of a solemn rite of degradation — the trial and condemnation of Mervyn Touchet, the trial which would remain the legal precedent for all homosexual court cases for the next two hundred years. It was a sensation, and pamphlets describing it were reprinted every time there was a gay scandal during the next two centuries.

Actually, it was only partially a homosexual trial, for the indictments against Castlehaven included one count of rape as well as two counts of sodomy. The evidence (which we have little reason to doubt, for even Castlehaven admitted to much of it) illustrates a quasi-subculture within the highly circumscribed boundaries of a private estate, where Castlehaven endeavoured to collect a group of lusty Irish lads to fulfil his fantasies, even going so far as to recruit vagabonds and out of work sailors from the ports.

Portrait of Mervyn Touchet Mervyn Touchet was the twelfth Lord Audley in the peerage of England, and the second Lord Audley and Earl of Castlehaven in the peerage of Ireland. When only about twenty-four years old, he inherited a goodly fortune from his father, which augmented the estate in Fonthill near Tisbury in Wiltshire which he had inherited from his mother. He proceeded to marry a heiress, by whom he begot his son James, and when she died he became wealthier still and married another heiress. His second wife was Lady Anne Stanley (heiress of the Earl of Derby, widow of her first husband Lord Chandos), and a marriage was arranged between Lady Ann's daughter (also previously married) and Lord Audley's son — just to keep the money in the family.

The alleged orgies are supposed to have begun on the first day after Castlehaven married Anne. According to her, he called upon each manservant to come into their room, one by one, "to show their Nudities, and forc'd me to look upon them, and to commend those that had the longest". On succeeding days, he brought into their bridal chamber three of his menservants, including Henry Skipwith and Giles Broadway, who lay between them, being husband before and wife aft, and upon one occasion he held Anne tightly while Broadway ravished her against her will. Another servant named Amptil (or Antill in some accounts) sometimes also participated in these odd nuptial rites, though he was usually busy elsewhere.

Amptil had originally been a beggar and a vagabond, until Sir Henry Smith picked him up and made him his footman. Castlehaven eventually acquired Amptil as his personal page, and found his services so agreeable that he made him his master of the stables. For thus tending his horses, Castlehaven gave Amptil a salary of £500 per year, compared with a yearly allowance of only £100 given to his own son James. James was furious when Castlehaven arranged for Amptil to marry his daughter by his first marriage, giving Amptil a dowry of £7,000. As will appear throughout the tale, Castlehaven was a kind master, though an unkind father and a vicious husband.

Henry Skipwith had been fetched over from Ireland to be the page to Lady Anne. Like Amptil, he also had come from a very poor background, and he was similarly rewarded by Castlehaven with an estate in Salisbury worth £260 per year. According to Skipwith, "For the most part I lay in Bed with the Earl". At other times he lay with Amptil. At still other times Skipwith was persuaded by Castlehaven to sleep between himself and Lady Anne. Eventually Lady Anne gave birth to Skipwith's child, but the child disappeared, and Skipwith, believing Lady Anne had foully done away with it, grew to hate her. Castlehaven then coerced the young Lady Audley, his stepdaughter Elizabeth Brydges, to lay with Skipwith in the presence of himself and other servants. Elizabeth was but twelve years old, and the first time Skipwith lay with her, Castlehaven had to apply to Skipwith's penis some oil to make penetration easier. It required two applications. Elizabeth was already married to Castlehaven's son James, himself hardly more than a child, but his resentment at this paternal unkindness eventually led to the court action. Castlehaven in court admitted that he often lay with Skipwith, "and being a good Servant I gave him good Rewards".

Meanwhile, Florentius (sometimes called Lawrence) Fitz-Patrick and Castlehaven were buggering each other in the mansion at Fontain (later Fonthill) Gifford in the County of Wilts. Amptil and other men were not actually involved in the trial, and Castlehaven was charged with perpetrating the crimen sodomiticum (inter alios non Christiandos) specifically upon Fitz-Patrick on 1 June and 10 June, 1630, when they were overseen. Florentius was also a vagabond who one day happened upon the Fonthill estate, and lingered on, in spite of his misgivings, "through frailty, and because I was not furnished of another place".

Eventually Giles Broadway was brought into this sociable circle. Broadway was a sailor:

"I came not to my lord with a desire or intent any ways to serve him, but was rather inclined for the sea: only Mr Skipwith had drawn me thither for society-sake; and not hearing from my friends concerning my intended voyage, and being more kindly respected by the earl than I looked for, I staid from week to week, and from month to month, contrary to my intention, and my lord made me his bed-fellow."

Castlehaven, who had already married off his daughter and stepdaughter to his other servants, had further plans for Broadway. One day while they were strolling in the garden, he said to Giles, "Thou art young, lusty, and well-favoured. I am old, and cannot live long, my wife wholly delighting in lust, which I am neither able nor willing to satisfy, thou mayest do well to lie with her: and so pleasing her, after my death marry her, and thereby raise thy fortune." He continued to so solicit Giles as they lay in bed together, with Florentius lying at the foot of the bed to keep their feet warm. Broadway finally agreed, and lay with Lady Anne on only one occasion, not quite successfully penetrating her while Castlehaven held her arms behind her back. This resulted in the charge at the trial that Castlehaven had caused the rape of his own wife.

On 1 November 1630, James, Castlehaven's son, who had recently come into his majority, wrote a letter remonstrating Castlehaven for parental unkindness, and soon thereafter he brought the matter to the attention of the courts. Six weeks later Castlehaven was arrested and confined in the Tower of London pending formal arraignment. He appealed to be tried by a local jury of Wiltshire men, but was informed that as a nobleman he must be tried in Parliament, and the House of Lords duly heard the indictment in April 1631. The outcome was a foregone conclusion because of Castlehaven's suspected Roman Catholic allegiance; in the words of the Attorney General: "when once a Man indulges his Lust, and Prevaricates with his Religion, as my Lord Audley has done, by being a Protestant in the Morning, and a Papist in the Afternoon, no wonder if he commits the most abominable Impieties". Castlehaven was the ideal victim to be prosecuted for what many regarded as the "Jesuit perversion".

Castlehaven was sequestered without benefit of counsel for more than six months. When he finally appeared in Westminster Hall, pale and haggard, he requested that a solicitor be permitted to speak for him since his voice was so weak after the confinement and poor treatment. The Lord High Steward courteously replied that the long imprisonment "hath been to you a special favour; for you have had time enough to bethink yourself", and refused to grant his request. The charges were read, containing such rhetoric as "seduced by the Instigation of the Devil, he Wickedly, Devilishly, Feloniously committed that Detestable Abominable Sin", to which Castlehaven pleaded Not Guilty. One might almost think that he was being tried for witchcraft.

The Attorney General Sir Robert Heath began with a harangue about the Sodomitical Sin, including its history since the degenerate times of Rome, and became so carried away with his theme that Castlehaven rightly interrupted him to urge him to stick to the specific charges of the indictment. The Lord High Steward politely bade Castlehaven to let the Attorney General complete his opening statement. Eventually Heath finished quoting Scripture, and Castlehaven was permitted to proceed with his defence.

Castlehaven began by quoting Scripture in defence of his love of Skipwith (his exact reference is not cited, but it was probably an allusion to the love of David and Jonathan, perhaps even the "heresy" about Christ and St John being lovers). He went on to argue that Lady Anne was a lusty whore who wanted to replace him with a younger husband, and that his son was "gaping after my estate" and was paying the servants to lie against him. He argued that a wife could not testify against her husband, but the Court decided to accept her testimony since she was the aggrieved party.

Castlehaven then emphasized the legal point that since Broadway testified that Castlehaven had emitted between his thighs rather than actually penetrated him, technically there was no sodomitical rape, but the court replied that it still came within the definition of buggery. Castlehaven then protested that Broadway by his own testimony was a participant in the crime, and could not therefore be a legal witness against him. The Lord Chief Justice argued that such a conspirator or participant could be a legal witness until he himself was convicted of the felony, "for otherwise, Facts of this nature would seldom or never be discovered". It is this precedent in particular which would lead to the convictions of numerous homosexuals throughout the following centuries (although, during the next century, proof of actual penetration would be required for conviction of a felony and the ultimate penalty of death, while attempted but incompleted penetration would be a misdemeanour, punishable by the pillory, fines and imprisonment).

Lady Audley, young Lady Audley, Giles Broadway, and Florentius Fitz-Patrick testified, and after two hours of deliberation the jurors unanimously found Castlehaven guilty of rape, and fifteen of the twenty-six jurors found him guilty of sodomy (a majority was enough to convict). He was sentenced to death. Castlehaven appealed for mercy to King Charles, who granted only a postponement of execution so he could repent. Castlehaven's coffin was prepared, and placed in a corner of his prison room, where he prayed daily with Dr Wickham, Dean of St Paul's.

On Saturday, 14 May, Castlehaven ascended the scaffold on Tower Hill, wearing a plain black Grogram suit and a black hat. He knelt and prayed, then stood up and made his dying speech — protesting his innocence, declaring himself a member of the Church of England, and requesting the spectators to lift up their eyes to heaven and to pray for his soul. His hands were then tied behind his back, a handkerchief was placed over his eyes, he knelt again and placed his head upon the block, and at a sign from him the Executioner at one blow divided his head from his body. Undoubtedly Castlehaven deserved punishment for having assisted in the rape of his wife, but he would never have been prosecuted for that had he not been a homosexual and a suspected Papist.

Six weeks later, on Monday, 27 June 1631, Florentius Fitz-Patrick and Giles Broadway were brought to trial in Westminster Hall on charges of rape and sodomy. Lady Audley appeared to give testimony against Broadway, and then "departed with as much privacy as might be into her coach". Fitz-Patrick pleaded Not Guilty, and asked who were his accusers. Sir Nichols Hyde the Lord Chief Justice replied that he was his own accuser, because of his former testimony against Castlehaven. Florentius protested that it was against the laws of England for a man to be required to testify against himself, but Hyde countered that since his testimony had already served to take away the life of a lord, it should serve to take away his own life also. It was a Catch 22 situation. Both men were found guilty and sentenced to death.

King Charles requested a stay of execution, to allow more time to consider the grave legal question of self-accusation. Sir Thomas Fenshaw, one of the judges, wrote up a report virulently attacking Broadway as a liar and Fitz-Patrick as a fool, and he urged that the land be rid of such miscreants as soon as possible, never mind the finer points of the law. Thus persuaded that the legal niceties need not be examined too closely, the King set a date for execution one week hence. The legal precedent therefore clearly established the principle that homosexuals could be convicted and executed for acts which took place between consenting adults in private, even if penetration could not definitely be proven, and even if the only accusation came from the confession of one of the men involved.

The turnkey of Newgate Prison noted that the prisoners behaved themselves civilly and religiously. On Wednesday, 6 July, Broadway and Fitz-Patrick were brought in a cart to Tyburn. The executioner tied the rope about Fitz-Patrick's neck, and he began to pray to Christ, Mary, and the Saints. An anti-Catholic among the spectators rebuked him for praying to Mary, but he persisted, saying "O yes, the blessed Virgin never forsook or failed any that trusted in, or called upon her". Then he turned to Broadway to exhort him to die proudly in the Roman Catholic faith. Broadway, sitting in a corner of the cart, did not respond. Fitz-Patrick then gave his dying speech, confessing that the testimony he had given at the trial of Castlehaven was true, but that Lord Dorset, one of the judges, had falsely promised him immunity from prosecution if he would testify. But he forgave all, and asked all assembled to pray for his soul, and began his private prayers.

Broadway, who had been intermittently meditating upon Fitz-Patrick's speech and nodding to the crowd in appreciation for their sympathy, then stood up so that the rope could be placed around his neck and his hands were tied behind his back. The executioner granted his request that his hands be untied so he could read the confession he wrote in prison. It was a formal confession, ending in three short prayers from Learn to Die, a pamphlet given to all condemned men while in Newgate. He finished, and handed it to the minister Mr Goodcoate, a kinsman who was seated on horseback near the cart, and began with a more specific confession about his relationship with Castlehaven, ending with regrets that he had been the cause of his kind master's death.

Concluding his speech, he pulled out a lace handkerchief and asked the executioner to tie it about his head. Then he pulled off his garters and unbuttoned his doublet, and joined with Goodcoate in cheerfully singing the 143rd Psalm. He made a confession of faith as an Anglican, and requested burial in his own country. The executioner again tied his hands behind his back. As Giles said "Lord Jesus receive my spirit" and Florentius commended himself to God, the cart was drawn away, leaving them to hang by their necks until dead.

[SOURCES: The Tryal and Condemnation of Mervin, Lord Audley Earl of Castle-Haven (London, 1699); A Complete Collection of State Trials, ed. T. B. Howell, vol. 3 (London, 1816), pp. 402-418, 419-426; see also H. Montgomery Hyde, The Other Love. Touchet's case was widely reported for many years to come, as in The Exquisite (London, 1842).]

A rich mix of sexual scandal, family dishonour, avarice, religious and nationalistic prejudice, outrage and drama, has ensured frequent retellings of the trial of the Earl of Castlehaven. The latest is the historical study by Cynthia B. Herrup, A House in Gross Disorder: Sex, Law, and the 2nd Earl of Castlehaven (Oxford University Press, 1999).

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 arrests of sodomites in 1707. 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.


CITATION: If you cite this Web page, please use the following citation:
Rictor Norton, "The Trial of Mervyn Touchet, Earl of Castlehaven, 1631", Gay History and Literature. Updated 8 August 2009 <http://rictornorton.co.uk/touchet.htm>.



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