TRIUMPH AND FAILURE
These piecemeal, local and colonial attempts to create a brave new world, dedicated to God and purified of sin, were in the 1640s and 1650s suddenly played out on a national scale. Within English society,
* This is why in Scotland those guilty of incest, sodomy, and bestiality, the most abominable crimes of all, were sometimes beheaded or burned at the stake, rather than ‘only hanged’: George Mackenzie, The Laws and Customes of Scotland (1678), 160-62.
Puritans had always been only a minority, albeit one with disproportionate influence. The Civil War of the 1640s, which culminated in the execution of Charles I in 1649 and the establishment of a republic, gave them supreme power.
The escalating struggle between royalists and parliamentarians was fundamentally, though never exclusively, a war of religion – it came about because each side was passionately committed to a particular vision of God’s will on earth, and believed that its opponents were dedicated to destroying it. Puritans were terrified that the king’s religious policies, at home and abroad, threatened to roll back the Reformation and reintroduce popery, the ultimate threat to English liberties as well as to their eternal salvation. The king and his supporters in turn feared and persecuted Puritans because they believed them to be dangerously subversive radicals, whose principles and actions undermined the stability of the church and the authority of the monarchy.
The king’s uncompromising policy proved to be self-defeating. By 1640 Charles had been humiliated by his Scottish subjects, who had risen up in national rebellion against his attempts to impose changes of doctrine and worship on their own church. The Scottish army invaded and occupied the north of England; within months, Ireland too was engulfed in bloodshed, this time by a Catholic uprising that massacred thousands of Protestants and seemed to confirm the worst Puritan fears about the king’s dubious religious motives. Even before the outbreak of war in England, Charles was forced into making heavy concessions; and his ultimate defeat in 1648 seemed, to his most zealous opponents, the clearest possible sign that God actively supported their cause and had destined them to sweep away the corrupt old order and establish His kingdom on earth.
The church courts were one of the earliest casualties of this conflict. Within a few weeks of the opening of the Long Parliament, the ‘root and branch’ petition of December 1640, which set out Puritan demands for reform, complained of a ‘great increase and frequency of whoredoms and adulteries’ as a direct result of corrupt ecclesiastical justice. In July 1641, the court of High Commission was duly abolished, and with it all ecclesiastical powers of punishment. In their place, the House of Commons ordered a new statute to be drawn up against sexual offences. As with much other legislation during the war years, its passage was a long drawn-out affair, but it gained new impetus from the spring of 1649 – after the army had excluded all but the most hard-line MPs, and forced through the execution of the king, the abolition of the monarchy and the House of Lords, and the proclamation of a Commonwealth. On 10 May 1650, alongside a slew of other measures for moral reform, the purged Parliament finally passed the Act ‘for suppressing the detestable sins of incest, adultery, and fornication’. Adultery and incest became capital crimes. Brothel – keepers would be whipped, branded on the forehead with a capital B, and imprisoned for three years; if they reoffended they would suffer death. Fornicators were to be jailed for three months, and possibly (the wording is ambiguous) they too were to be executed for a second offence. A copy of the Act was sent to every parish in England, to announce the dawn of this new sexual regime.1
This seemed a great triumph. Finally, after more than a century of determined campaigning, the strictest possible laws had been put in place to enforce sexual discipline. Many other revolutionary social, religious, and constitutional developments took place or were contemplated around the same time. The prospect of creating an entirely new society, led by God’s chosen people and dedicated to His honour, was discernibly in the air. Throughout the 1650s, successive regimes of the unstable English republic repeatedly exhorted their subjects to moral reform: the extirpation of uncleanness and of other sins took on an urgent significance for men who truly believed that they were the instruments of a daily unfolding divine mission. Puritan magistrates likewise felt empowered to pursue sexual offenders with fresh zeal. Within a few weeks of the passage of the Act, Oliver Cromwell’s own brother-in-law, the energetic army officer John Disbrowe, presided over the trial and execution of an adulteress at Taunton. Though the criminal records of the period are very incomplete, it is certain that other men and women were hanged, too (as they were also in Scotland). When Susan Bounty was convicted of adultery in Devon in 1654, she pleaded for mercy on the grounds of her pregnancy. So she was allowed to carry her baby to term. Shortly after she gave birth to it and held it in her arms, her child was taken from her, and she was carried to the gallows. After her execution, the tiny infant was sent forty miles across country, to her widower, Richard, for him to look after and bring up.2
More generally, however, the practical impact of the Act was muted. Its wording included so many provisos that conviction was almost impossible unless unimpeachable witnesses actually caught a couple in the act of sex. Circumstantial evidence, no matter how strong, was not enough. Husbands and wives were prohibited from testifying against one another; and so, even, were guilty couples – the confession of one party could not be used as evidence against the other. Thus, when in London in 1651 Susan Ward’s husband brought home his mistress and had sex ‘with her whilst his wife was in the bed with them’, the Adultery Act was no use to her. Nor was it to Robert Pegg in 1655, when he came home late one night to find his wife in bed and her lover hurriedly pulling on his breeches. Nor could it help the parish officers who entered the bawdy-house of Priscilla Fotheringham in March 1652 to find her ‘sitting between two Dutchmen with her breasts naked to the waist and without stockings, drinking and singing in a very uncivil manner’. Given the extraordinary standards of proof required, it is not surprising that there were not many formal trials under the Act, and still fewer convictions. In Middlesex, which included most of London’s suburbs, at least forty men and women were indicted for adultery in the course of the 1650s, many of them notorious for their loose living, but only one was found guilty. (A few more were tried instead, or in addition, for bigamy, which was also a capital crime, and easier to prove.)3
Instead, the main effect of the new regime was a surge of lesser prosecutions and punishments. In Middlesex, instead of being tried by jury, hundreds of suspected adulterers were instead bound over by magistrates – in other words, forced to end their alleged relationship, find respectable citizens to post bail for their good behaviour, and appear in court to answer for their future conduct. Presentments for brothel-keeping continued to be made in the court of King’s Bench, without any obvious reference to the new law. In many counties there was a notable rise in prosecutions for fornication and bastardy: in Devon, at the height of Disbrowe’s campaign against immorality in 1655, they accounted for over 30 per cent of all criminal prosecutions.4
Much of this activity relied not on the Adultery Act, but on the older bastardy statutes (which, though technically incompatible, remained in force), on common law, and on the discretionary power that zealous magistrates had traditionally wielded against sexual misconduct – even if this contradicted the letter of the new statute. Just as in the old days, many offenders were evidently admonished informally first, and only proceeded against if incorrigible. Similarly, when, in February 1652, Elizabeth Ratcliffe, who had borne a bastard child, was tried under the Act for fornication, she was set free because, though convicted by her own confession, she was ‘very penitent for her fault’. Elizabeth Goodheart was put on trial for her life, with a watertight case against her: she had given birth to twins who were evidently not her husband’s children, and had confessed to adultery with two different men. Yet she, too, ‘being heartily sorry for her fault’, was pardoned by the London bench of magistrates.5
Judicial discretion could also go the other way. In Middlesex during the 1650s several men and women acquitted of adultery were nevertheless sent to the house of correction, or imprisoned until they could post bail for their good behaviour. The parliamentary army was even more peremptory in its justice. In 1642, it went to extraordinary lengths to show its displeasure against a single ‘whore which had followed our camp from London’: she was ‘first led about the city, then set in the pillory, after in the cage, then ducked in a river, and at the last banished the city’. After winning the battle of Naseby in 1645, its troops turned with a vengeance on the defeated royalists’ female camp followers. About a hundred of them, who were Irish, were simply killed; and every Englishwoman was slashed across the face to disfigure her for ever. Many parliamentary soldiers themselves, and their paramours, were court-martialled for immorality: at Leith in Scotland in the winter of 1651, for example, one couple was sentenced
to be ducked twice at a high tide, and then whipped at cart’s tail and receive 39 stripes on the naked back from the main guard at Leith to Edinburgh port. . . and then both turned forth of the town at several [i. e. different] ports.
During 1655 and 1656, military rule was temporarily introduced across the whole of England. At the same time, the republic was keen to strengthen its plantations in the West Indies. So, in the spring of
1656, troops of soldiers were sent in to raid London’s streets and taverns. They kidnapped over a thousand ‘women of loose life’, imprisoned them on three specially commissioned ships, and transported them forcibly across the world, to populate Barbados. The Adultery Act had been hedged around by procedural safeguards because of widespread concern that it not be used unfairly against respectable men and women. But harlots did not have the same rights.6
Ultimately, therefore, the passage of the Act was a pyrrhic victory. The reign of the Puritans clearly inhibited sexual licence: the number of children born out of wedlock seems to have dropped to an all-time low in the 1650s. Yet the Act’s impact was mainly symbolic: most policing did not rely on it, and in the longer term the Puritan experiment was fatally counter-productive. The abolition of the church courts turned out to be disastrous. It created a huge gap in sexual policing which was only slowly and partially filled by the expansion of secular mechanisms. More generally, it destroyed a system of discipline that, for all its weaknesses, had proved to be broadly in step with popular sentiments – replacing it with one whose principles appealed only to a small, zealous minority, and whose severity proved to be unenforceable.7
In 1660 the monarchy and the Church of England were restored, and the Adultery Act abolished. Yet the effects of the mid-century cataclysm were impossible to reverse. Even before the Civil War, the capital’s rapid expansion had begun to affect moral policing.8 The crucial additional problem now was that of widening religious division. The 1640s and 1650s had seen a large increase not just in disaffection from the old national church, but in differences between Puritans. In the absence of censorship, and without the enforcement of religious uniformity, a great diversity of churches and sects had sprung up. The restored Church of England was determined to reverse this: religious nonconformity once more became a crime, alternative religious meetings were banned, and the church courts spent much of their time prosecuting people for religious dissent. Yet in cities this proved an impossible task: nonconformity was by now too widespread, and too entrenched. It also fatally compromised the church courts’ claim to be exercising universal moral and spiritual discipline.
In some small rural communities the church courts managed to reestablish their jurisdiction over sexual offences, and continued to exercise it even through the eighteenth century: but in London and in other major towns this proved largely impossible.9
Though the machinery of discipline had been severely weakened, sexual immorality remained a major target of secular policing. During the decades of the Restoration, there were close to a thousand prosecutions in London each year for sexual offences: a considerable number in its own right, and a sizeable proportion of all criminal litigation across the city. Most of this concerned overt prostitution, the traditional focus of secular policing. As in the 1650s, however, it also remained quite common for men and women to be prosecuted for illicit pre – and extra-marital relations. Compared with the early seventeenth century, when the church courts had been fully active, the numbers punished were inevitably much reduced. Nevertheless, adultery and fornication plainly remained within the scope of the law, and there was plenty of enthusiasm for keeping them there.10 In the decades after 1660 the Scots and the colonists of New England reaffirmed their harsh statutes against extra-marital sex, as did many European states.11 In England, too, there were periodic calls during the reigns of Charles II and James II for parliament to ensure the stricter execution of existing laws, to draft new statutes against uncleanness, or to reinstate the death penalty for adultery.12
Yet the attack on vice was no longer led from above. Though the Interregnum Puritans had been exceptional in their zeal, all previous monarchs and leaders of the church had supported the sexual disciplining of the populace. Now, Charles II did not even pay lip-service to it. (We shall see why in the next chapter.) His attitude was condemned much more than it was celebrated. As early as 1668, the first major political riots of his reign symbolically took the form of attacks by religious nonconformists on London’s brothels. It was sexual immorality that the government should be zealously repressing, they argued, not religious dissenters. In the propaganda war that followed, the king’s critics lashed out at his own indiscipline and the debauchery of his court. These were not just central themes of opposition criticism. Frustration and anxiety about royal frivolity was equally widespread, though usually concealed, amongst prominent
courtiers and clergymen. In the eyes of orthodox Christians, the court’s bad example undermined popular respect and, worse still, risked the wrath of God. Sexual licence was the route to irreligion, social anarchy, and political disaster. It was imperative, they thought, to rein it in and to reform.13 In 1688, they got their chance.