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A thieving whore or a whorish knave? Defamation suits in Elizabethan England

Litigation was one of the most popular sports in sixteenth century England. I believe the rapid expansion of the whole legal world had everything to do with the Reformation. Most government officials, like Sir Nicholas Bacon, were Protestants who had been trained at the universities and the Inns of Court. They were humanists and activists strongly motivated to wrest the governing of England — the whole nation, from the Privy Council right down to the parish level — from the Church and into secular hands. They believed in the monarchy, of course, but even more, they believed in the rule of law.

Martin Ingram puts it this way: “The importance of law and legal institutions in the society of Elizabethan and early Stuart England is hard to exaggerate. Government, whether royal, ecclesiastical or seigneurial, was largely channeled through legal forms, and as a result the boundaries between judicial and administrative action were far less clearly drawn than is the case today. To a greater extent than at present, moreover, contemporaries looked to the law not only for the maintenance of order — broadly conceived to include many economic matters, religious observance and personal morality — but also the resolution of conflict within the society.” (p. 27)

Most lawsuits concerned property and were pursued through the common law courts or the equity courts. But crafty litigants often launched parallel defamation suits impugning their opponents’ characters. Also, people valued their reputations highly and would go to court to defend them.

More whore than thief or the other way ’round?

Which court heard your defamation suit depended on the terms employed. If the defamation involved spiritual matters, which in those days bafflingly included sexual behavior, it would be heard in your parish church court (aka consistory or ecclesiastical court.) This would be cheaper, but would only be ‘for the soul’s health’; church courts could not award cash damages. The loser paid all the costs. If convicted of lewd behavior, you’d have to stand up in church in a white robe and apologize in public.

But if your defamers called you a thief or possibly even a bastard, you could take them to a common law court and potentially be awarded damages. Determining jurisdiction was a ticklish matter. For example, “if a woman was defamed of some spiritual crime such as fornication whereby she lost the chance of a marriage, she could sue either in the ecclesiastical courts for her reputation or in the temporal courts for the damage she had sustained” (p. 296.) They could determine the value of the lost opportunity by examining comparable marriage contracts, which carefully delineated the financial responsibilities and rewards for each partner. Most marriages in the middling and upper classes were founded on contracts.

The common law courts became inundated with defamation suits by the last quarter of the century. They sought to stem the flow by narrowing the definition of what could be tried. “Action was denied in cases where the victim was simply called ‘knave’, ‘villain’, ‘forsworn rogue’, or the like, on the extremely dubious grounds that such terms of abuse were of uncertain meaning and commonly uttered in passion or choler without any real intention of harming a person’s reputation” (p. 297.)

They developed a principle that words should not be construed as insults if there was any way not to do so. They noted abusive ‘words of reproach’ which were insulting though not strictly defamatory. For example, the wife of a former mayor of Salisbury suffered the appellations Mistress Stinks, Mistress Fart, Mistress Jakes, Mistress Tosspot, and Mistress Drunkensoul from her neighbours, none of which were deemed actionable. She must have been the most appalling person! Or innocent. We’ll never know. But it must have hell to go out and do the daily shopping.

Ingram observes, “But to judge by some of the cases in contemporary law reports, alleged slanders came to be examined with the minuteness that was more properly applied to technical legal documents like writs” (p. 297.) This is the part that gets me giggling. I love imagining a committee of learned gentlemen like the ones in the illustration above (Robert Cecil with the Court of Wards), studying lists of insults with the aim of categorizing and ranking them. Perhaps they used something like the Shakespearean Insult Generator, to create terms of abuse.

Is ‘pribbling puttock’ actionable in a common law court? I would say yes. The OED says ‘puttock’ means “A person likened to a bird of prey in being considered greedy, grasping, rapacious, etc.; spec. a petty officer of justice; a bailiff.” Such a reputation would surely injure your ability to attain a lucrative post as a clerk of the registrar or similar, to which any good lawyer could apply a price tag.

A field guide to fornicators

Elizabethans did not mince words. They liked to characterize their enemies as filthy and beast-like, but to me, many of their terms of abuse evoke a charmingly pastoral life. Hedge whore, barn whore, burnt-tailed whore, muddy whore, and my favorite, a hollow tree whore. You’d be hard-pressed to find a hollow tree big enough for sexual misconduct in Texas!

Many suits were brought by people who were notoriously quarrelsome. I’ve known people like that in Austin, like the guy who called the city about stupid things like brush piles and miniscule property line encroachments. Trouble-makers! (That’s Falstaff in the picture to the right.)

In the closely knit, cheek-by-jowl society of early modern England, such people had even greater scope. Ingram notes, “Between status-conscious neighbours dwelling in close proximity it was possible for irritating tensions and petty jealousies to grow and fester, erupting eventually in to rancorous outbursts. Moreover, when cases are investigated beyond the evidence immediately available in depositions, it is sometimes found that the quarrels which precipitated acts of slander were only the most recent manifestations of extremely long and tangled histories of strained relations” (p. 315.)

Long, tangled histories of legal conflict too: suits over marriage contracts, boundary lines, inheritance, cattle. Defamation suits added spice to boring property disputes.

References

Gowing, Laura. (1994.) “Language, power, and the law: women’s slander litigation in early modern London.” In Jenny Kermode and Garthine Walker, eds. Women, Crime and the Courts in Early Modern England. London: UCL Press. Pp 26-47.

Ingram, Martin. 1987. Church Courts, Sex and Marriage in England, 1570-1640. Cambridge University Press.

Thomas, Keith. 1971. Religion and the Decline of Magic. New York: Scribner.

 

Missing article about sex, of all things

bray_sex_amazonOn June 18th, I wrote, “Last week I wrote a review of Alan Bray’s excellent Homosexuality in Renaissance England.” That was a bald-faced lie, or rather a brazen exaggeration. I wrote one measly sentence recommending the book. Unacceptable! So here is the promised review.

Bray’s book is excellent; not only a clear-eyed, detailed resource on the stated topic, but also a fine example of historical writing, on both technical and stylistic grounds. Read this together with Alan Haynes’ Sex in Elizabethan England and you’ll learn the difference between history and literature-based speculation.

Bray’s thesis is that a study of homosexuality ought properly to belong in a general study of interfamilial relations. He begins quite correctly with a discussion of his sources. He notes that most of our ideas about homosexuality in early modern England derive from Havelock Ellis’ 1897 Sexual Inversion. Ellis was trying to create a new culture. He was not writing a history book.

Bray notes on page 9, “There was an immense disparity in this society [early modern England] between what people said — and apparently believed — about homosexuality and what in truth they did.” Indeed. What people said was pretty horrible. Diatribes and sermons of the time displayed a persistent association between unnatural acts, homosexual sex and bestiality. Boys + goats = demonic debauchery.Goat_wikicom

Strictly speaking, nobody ranted about homosexuality, because the term wasn’t coined until the late nineteenth century. The earlier term was ‘sodomite;’ gritty and biblical, meant to be shocking. Like ‘atheist,’ the word had more to do with outlawry and social nonconformity, — behaving in a manner contrary to the laws of man, God, and nature — than with sex. Nobody you liked and respected was ever a sodomite. It was a word you hurled at someone you were trying to injure.

There was plenty of ranting, some of it truly vile. The odious Sir Edward Coke thought buggery was treason against the King of Heaven. (Coke was one of Bacon’s lifelong rivals; for this and other reasons I despise him.) Bray reviews the rantings and discusses the reasons people were so fearful about overturning God’s laws. You’d turn the world upside down. Chaos would result. 

World_Upsidedown_wikicomHe also gives us a look at the caricatures drawn in early modern literature: “…the sodomite is a young man-about-town, with his mistress on one arm and his ‘catamite’ on the other; he is indolent, extravagant and debauched.” The Earl of Oxford fit this portrait perfectly. Note that this man-about-town was omnisexual — depraved in all directions.

Bray examines court records for hints about interpersonal relations. Buggery cases were heard in the Quarter Assizes, judged by county Justices of the Peace. While the crime was a felony, cases were rare. In the 66-year period 1559-1625, in all of Kent, Sussex, Hertfordshire, and Essex, there were only 4 indictments for sodomy. These cases involved violence and were thus breaches of the peace. Nobody was sneaking around spying out naughty buggers and hauling them into court; not even into church courts.

Bray situates garden variety homosexuality inside the home, observing that homes in early modern times were also workplaces. The workshop was on the ground floor of the house or in the yard. A typical path for a young person, male or female, was to leave the natal home in the early teens and go off to work in someone else’s house. Boys might be apprenticed to a craftsman; girls would find work as servants. They would work until they were able to support themselves, through savings and advancement in their craft. In early modern England, as now, couples were expected to establish independent households. They married later as a result; men well into their twenties or even thirties, women around mid-twenties. Note that this is also an effective means of managing the birth rate; pretty much the only means they had other than abstinence.

Servants and apprentices lived with the family, though they might sleep on cots in the attic or in a cockloft over the barn, segregated by sex. Thus there were many opportunities for opportunistic sexual relations; desirable as a way of relieving sexual pressures without producing unwanted pregnancies.

Bray concludes that, “In general homosexual behaviour went largely unrecognised or ignored, both by those immediately involved and by the communities in which they lived.” Vehement hostility in public was matched by willing blind complicity in private.

Bray notes that Francis Bacon was known to have sexual relations with his servants, which no one would have minded if he hadn’t been so outrageously generous with gifts. Envy! He quotes Aubrey’s Life of Francis Bacon: “He was a παιδεραστής. [paiderastes~pederast] His Ganymedes and favourites took bribes; but his lordship always gave judgement secundum aequum et bonum [according to what is just and good.] His decrees in Chancery stand firm, i.e. there are fewer of his decrees reversed than of any other Chancellor.”

Thus we see that Bacon may have been queer, but he was also always fair.