Sex and Punishment: Four Thousand Years of Judging Desire (26 page)

In 1628, Isaac Chiverton was socializing with some young men when they jokingly asked him how he had lived as a bachelor for so long without ever being accused of fornication. He replied that “when he was a young man as they were it might be that he played with some wenches.” For that remark, he was hauled before an ecclesiastical court to explain whether or not he had ever committed fornication or adultery. Another man was accused of sexual misconduct after neighbors complained that he and his wife shared a bed with a maidservant. Even married couples could be sued if they were suspected of having deviant sex—or of simply enjoying it too much. Each suit was expensive, time-consuming, and risky. Sometimes casual contact was enough to sustain an immorality action, as when a shepherd ducked into a woman’s house for an hour, seeking shelter from a storm. Other, seemingly closer encounters were treated lightly. In 1623, Richard Tench was let off with a caution after he admitted to kissing and fondling the breasts of another man’s wife.

Many cases came from people’s genuine outrage at their neighbors’ conduct, but just as many were brought out of sheer malice. Immorality suits were filed in retaliation for such minor harms as the killing of a dog or pig, or as strategic gambits in long-running quarrels. No one ever filed such lawsuits to get rich, however. The church courts did not award money to successful plaintiffs; rather, defendants found guilty were forced into humiliation through public repentance. Sexual deviants were often forced to wear white sheets, sometimes with a paper attached to their head spelling out their wrongdoing and confessing their crimes. Sometimes the guilty parties would be required to get down on their knees in public and beg forgiveness of their accusers. Moral offenders could also be ostracized from the community and—worst of all—thus rendered unable to sue others in court.

Religious justice was supposed to emphasize reform rather than retribution, but that was not how cases actually played out. In the backbiting environment of the English village, genuine expressions of remorse were likely to backfire. Consider Edward Peinton, who, after months of secretly visiting a married woman, experienced a genuine bout of conscience. He told a friend about the affair, and the other man promptly snitched to the local minister. The minister persuaded the adulterous couple to confess by promising he would keep it quiet, but was no truer to his word than Peinton’s friend. When he publicly refused Peinton communion, local suspicions were confirmed, and an adultery case was filed in the court of the bishop of Salisbury.
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The subject of illegitimacy in particular consumed English justice. Despite the decline in the rate of children born out of wedlock, bastardy remained a big problem and was treated with severity, if not cruelty. Once convicted, both mothers and fathers were often stripped to the waist and whipped through the streets. Mothers of bastard children were, of course, easier to identify than the fathers. If they proved too afraid of naming their seducers, the midwives who attended them would be instructed to browbeat them during labor, refusing all assistance until they gave in. When this stratagem failed, parish ministers would sometimes refuse to baptize the children.

Illegitimacy proceedings were wrapped in biblical cant, but the court’s concern was economic. (“We are already overpressed with too many poor bastard children,” read one suit.) Women who bore illegitimate children, such as a mother sued in Castle Combe in 1606, were considered worse than fornicators: They were infectious drains on public finances. To conceive a child with no husband was, in the words of a minister, a

filthy act of whoredom . . . by which licentious life of hers not only God’s wrath may be poured down upon us inhabitants of the town, but also her evil example may so greatly corrupt others that great and extraordinary charge for the maintenance of baseborn children may be imposed upon us.

An unmarried woman’s swollen belly was proof that something very wrong had gone on, and that someone expensive was coming into being. To avoid the burden of feeding an unwanted child, authorities often drove expectant mothers from town, forcing them to give birth in the fields, where babies had a higher chance of dying. Failing that, their goal was to get someone else to pay the child’s expenses. For this reason, illegitimacy cases almost always got the attention of the courts. Many desperate women also resorted to abortion-inducing concoctions, physical abuse of their wombs, and even infanticide.

Most of the women who bore children illegitimately were already well acquainted with their seducers. Many must have intended to marry the men, as the 20 percent rate of pregnant English brides suggests. But confusion as to who intended or said what leading up to or during the act of love was as common then as ever. Many unwed mothers testified to their belief that their lovers would soon be their husbands. If the men involved were already married, or if there had been no real courtship, then the excuse was rejected and lenient treatment refused. A woman’s claim that she believed the marriage promises of a traveling merchant, for example, was likely to be met with scowls.

A large number of the women charged with producing bastard children were domestic servants taken by their masters. Even though the sex should more properly have been characterized as rape, maidservants knew that pregnancy meant the loss of their jobs in any case—so they had little to lose by telling the truth. In 1592, one servant girl claimed that she had long tried to resist her master’s advances, “but in the end her said master did beat her and so by foul means . . . obtained his desire.” The master of another maid had an easier time getting her to succumb: She admitted that that she gave herself to him in exchange for a pair of gloves. Such cases likely resulted in the master being ordered to pay child support for at least a short period, and in the girl being whipped in public.

The problem of unwanted children was at its worst in overcrowded London. Between 1500 and 1700, the city’s metropolitan population increased almost tenfold, to five hundred and fifty thousand souls, as waves of people straggled in from the countryside. The city had few facilities to care for the poor, and whatever did exist for this purpose was strained from overuse and underfunding. The governors of two hospitals, Bridewell and St. Thomas’s, set up their own courts to decide who deserved help, who should be punished, and whose problems should be passed off for others to deal with. The courts doled out moral punishment and charitable aid in equal parts. A “whore” such as Mary Lee, who was brought to Bridewell after having a child with the married Anthony Shippe, was ordered whipped before she could receive aid. The baby had died, so there was no need to deal with the child’s upkeep; had it lived, the hospital would have stuck Shippe with the bill.

In identifying the men who fathered bastard children, the London hospital courts were not fussy about reaching the correct results so long as
someone
with money was ordered to pay for the child. Thus benefit of the doubt was often accorded to the women. In a 1569 Bridewell case, Alice Bruster claimed that her master, William Saywell, “got her with child and . . . promised her marriage and abused her half a dozen times in the shop and other places.” Saywell was immediately brought to the court at Bridewell, where he denied everything. Bruster was allowed to call up witnesses at a later date; they corroborated that Saywell had offered her money not to sue. Confronted with this testimony, Saywell confirmed her story and the hospital was off the financial hook.

Masters who kept their hands off their servants were still often told to pay for the care of their maids’ babies on the theory that they should have kept better order in their houses and shops. Moreover, when the hospital courts learned of situations that might result in the production of illegitimate children, they took preventive action: In one instance, a tailor was punished when it was discovered that his servants were cavorting in his bed while he was out.

For poor village girls and women, unwanted pregnancies presaged lives spent on the run. In large towns they stood a chance of remaking themselves as something other than “whores.” The penalty for skipping out on a church court case was excommunication, but that was no worse than staying around to face the charges. With no money or standing, the lives of these unwed mothers consisted of unmitigated horror until they found some safe haven. It was worse for the babies, many of whom were killed or abandoned by their desperate mothers along the way.

English law forbade anyone to harbor a fugitive pregnant woman. Some people gave shelter out of compassion or family ties, but many did it for money or in the hope of return favors. One 1592 case told of a man who gave refuge to a gentlewoman he believed was “kin to the Marquess of Winchester and . . . was [also] towards Her Majesty” Elizabeth I. Another man with less grandiose designs merely hoped that the baby’s father would “do him a good turn in exchange.” Taking in a fugitive single pregnant woman was a transgression malicious neighbors were often all too willing to report, though there was nothing to be gained from doing so other than the cruel joy of watching a neighbor dressed down in public. By the time these cases got to court, the girls had usually fled again, either to the city or to another Good Samaritan’s barn or woodshed.
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CHURCH COURTS ALSO specialized in slander suits. Insults and malicious gossip were, if possible, more common in the sixteenth and seventeenth centuries than today—with the difference that they were taken much more seriously. If left unanswered, offhand accusations that one was a whore, whoreson, or cuckold (to choose just three of hundreds of epithets) could truly harm one’s sexual “credit” in the community. The most common slander, “whore,” connoted a promiscuous woman, regardless of whether or not she took money for sex. Women who had adulterous sex or illegitimate children were whores. Even women who had the “wrong” kind of sex with their husbands could be whores.

In 1513, the gossip Agnes Aspenhalghe accused Emmota Whittaker of acting the “whore with her husband,” adding that she saw Whittaker in a pig house “upon [her husband’s] bely and her bely nakyd.” Whittaker had no choice but to go before a court and try to prove her accuser wrong. If she won her case, she would have the satisfaction of forcing Aspenhalghe to get on her knees in public and beg her forgiveness. If she lost, then she stood a good chance of being charged for immorality herself.

Accusations such as “hedge whore,” “barn whore,” “hollow tree whore,” and “bitchery whore” were frequent and harmful enough to make sexual slander cases the most common type of suit heard in church courts. Often the suits were the result of private, face-to-face insult exchanges. When, in John Streme’s London house, a man accused Streme’s wife of having “hadd a childe by a priest,” it was only a matter of time before Mrs. Streme ran to the churchwarden and initiated a suit. The man later tried to apologize, but her mind was made up: “Thou art never abyll to make me amendys,” Mrs. Streme said. She had not actually mothered a priest’s child, so the insult could not have been believed by anyone, but that was not the point. It had been uttered.

Similarly, when Hugh Pare passed by the house of John Call, he heard the nasty Elizabeth Hertford accusing Call of being a “horeson,” “cocold,” and—inevitably—“horeson cocold.” Did anyone actually believe Call’s mother was a whore, or that his wife had committed adultery? Probably not. Nevertheless, Pare testified that Hertford had lowered Call’s reputation among his neighbors, whom he heard say “those words come not of noght.”

The remarks that sparked English slander cases seem no more worthy of being taken seriously than the modern epithets “skank,” “asshole,” and “son of a bitch”—insulting, to be sure, but not the stuff of lawsuits. But in the thin-skinned society inhabited by Call, Streme, and Hertford, slander suits were necessary follow-ups to brawls and catcall exchanges. To let an insult pass unchallenged was to lose face. In 1618, to take another case, the ferocious Mary Crooke stood in front of Anne Moxam’s house and screamed that Moxam was a “bobtail whore and whore bitch” who had “showed her arse before the king.” Again, no one could possibly have believed that Moxam had displayed herself to royalty, but even a ridiculous insult could not be ignored. Moxam’s decision to turn the other cheek was criticized as cowardly by her neighbors. To defend her honor, she should have confronted Crooke in the street or sued her for slander, or both, as was commonly done.

Slander actions were often sideshows to meatier disputes. When Elizabeth White heard Rachel Townsend encourage her husband not to pay his debts to White’s husband, the dispute quickly went from financial to sexual. Elizabeth confronted Rachel, telling her she was a “scurvy woman.” Rachel shot back: “I am not so scurvy a woman as you for I never sould my daughters maidenhead for money.” For good measure, Rachel further accused Elizabeth of taking five pounds for her daughter’s virginity. In short order, a mundane money problem between husbands had spawned a fight about sexual honor between the wives.

When sexual slander caused people to lose money, as it sometimes did, the church courts were useless. Religious justice was intended to cure the health of the soul, not the purse. Beginning in about 1500, then, the secular common-law courts allowed people to sue for money damages in slander suits. From that point on, for example, a girl who lost out on a profitable marriage by being called a whore had the option of saving her reputation in church court or suing the slanderer for money in common-law court. As one would expect, the volume of slander cases in the secular courts rose dramatically.

Looking back, the courts’ open-door policy toward sexual slander lawsuits seems excessive. Too many of them were transparently malicious attacks between people who already hated each other. When Maud Spender sued Alice Francklin for calling her a “fine whore, a burnt tailed whore, and a pocky whore,” evidence showed that the two women already had a long history of legal disputes; allowing Spender’s slander action to go forward could only worsen their quarrel. The better course for the court would have been to throw the case out. The incessant conflicts were bad enough; why exacerbate them with grudge-match lawsuits?