The trial of the Lord Audley, Earl of Castlehaven, for inhumanely causing his own wife to be ravished, and for buggery Castlehaven, Mervyn Touchet, Earl of, 1592?-1631, defendant. 1679 Approx. 28 KB of XML-encoded text transcribed from 8 1-bit group-IV TIFF page images. Text Creation Partnership, Ann Arbor, MI ; Oxford (UK) : 2006-06 (EEBO-TCP Phase 1). A63198 Wing T2227 ESTC R18229 12657981 ocm 12657981 65423 This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. This Phase I text is available for reuse, according to the terms of Creative Commons 0 1.0 Universal . The text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. Early English books online. (EEBO-TCP ; phase 1, no. A63198) Transcribed from: (Early English Books Online ; image set 65423) Images scanned from microfilm: (Early English books, 1641-1700 ; 677:15) The trial of the Lord Audley, Earl of Castlehaven, for inhumanely causing his own wife to be ravished, and for buggery Castlehaven, Mervyn Touchet, Earl of, 1592?-1631, defendant. England and Wales. Court of Common Pleas. [2], 13 p. [s.n.], London : 1679. Reproduction of original in Huntington Library. Created by converting TCP files to TEI P5 using tcp2tei.xsl, TEI @ Oxford. Re-processed by University of Nebraska-Lincoln and Northwestern, with changes to facilitate morpho-syntactic tagging. Gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. 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Copies of the texts have been issued variously as SGML (TCP schema; ASCII text with mnemonic sdata character entities); displayable XML (TCP schema; characters represented either as UTF-8 Unicode or text strings within braces); or lossless XML (TEI P5, characters represented either as UTF-8 Unicode or TEI g elements). Keying and markup guidelines are available at the Text Creation Partnership web site . eng Castlehaven, Mervyn Touchet, -- Earl of, 1592?-1631. Trials (Sex crimes) -- England. 2006-01 TCP Assigned for keying and markup 2006-01 Aptara Keyed and coded from ProQuest page images 2006-02 Andrew Kuster Sampled and proofread 2006-02 Andrew Kuster Text and markup reviewed and edited 2006-04 pfs Batch review (QC) and XML conversion THE TRIAL OF THE LORD AUDLEY , EARL OF CASTLEHAVEN , For inhumanely Causing his Own WIFE to be RAVISHED , AND FOR BUGGERY . LONDON , Printed in the Year . 1679. THE TRIAL OF THE Lord Audley , Earl of Castlehaven . Judges , SIR Tho. Coventry , Lord Keeper , Lord High Steward for that day . Judges Assistant . Hide , Lord Chief Justice . Richardson , Lord Chief Justice of the Common Pleas. Davenport , Lord Chief Baron . Judge Jones . Judge Harvey . Judge Whitlock . Judge Crooke . Baron Denham . Kings Council . 1. Finch Recorder . 2. Sr. Randal Crew . 3. Mr. Attorney . 4. Mr. Solicitor . Queens Attorney . The Names of the Jury follow . THE Lords being all met and called , the Jury appeared full , and the Lord High Stewards Patent was read , which was dated the 17th . of April . Anno Dom. 1631. The Lord High Steward made a short Speech , praising and extolling the Kings Justice , and Care of the State , that his Majesty hearing of these abominable Crimes by report , could hardly believe them not only reported , but now by his Majesties Special Command , and Direction , Tryed and found by a Jury of able Men , and sufficient Men at Salisbury then , who opened the full business , and explained the meaning of the Law for such heinous Crimes ; First , for the — Secondly , for the Sodomy ; when , and in what Kings Reign these Offences were made Death by the Common Law. The Prisoner being brought to the Bar by the Lieutenant of the Tower , the Lord Steward spoke to him , bewailing of his Case for falling so far from God , and expressed his sorrow for him , not only as for a Subject , but as a Peer ; and withall gave him this Caveat ; that in , and out of all the Confession , and Deposition concerning this business , the Earl never fell into these foul Crimes , until he first fell from God , and changed his Religion , and that by Fountayle , and by perswasion of his Neighbour Roman Catholicks , and that he leaving God , God left him , and that the Dignity , of the Person did aggravate the Crime . The Prisoner desires to speak . The Lord Steward told him he should have time and leasure enough to speak for himself . In the mean time if he had any thing to deliver shortly ; he should be heard , desiring him to speak boldly without fear ; that he should have an honourable Tryal by those Peers he saw present , who were without exception . But withal he desired him for his own weale , and the sooner to obtain mercy from the King , to confess freely without circumstances , that his own Conscience was more than a thousand Witnesses . Then was the Indictment Read. First , For Sodomitry , with Florence Fitzh-Patrich , alias Fumy , at Sarum , the First of June 1630. Secondly , For a Rape committed against his own Wife , in compelling her , and forcing her to yield against her will , to the lust of one Giles Bradway at Sarum , the 20th of June 1630. He the said Earl holding his Wife by one Arm and one Leg , until the Fellow had satisfied himself , the Earl holding a Knife in one hand ; which done , the Lady endeavoured to kill her self with a Knife , but they took the Knife from her , and brake it . Thirdly , That the same Night he committed Buggery with Florence Fitzh-Patrich , alias Fume , being the 20th of June at Sarum . To all three Indictments , he pleads not guilty , and desires leave to speak , which was granted so he were short . The Earl alledges he is no Scholar , that he hath been kept these Six Weeks close Prisoner in the Tower , where he could have no occasion to seek out any thing that might clear him , and entreats the Lord Steward that he might have liberty to have Counsel . The Lord Steward replyed , that in all that time , he had more notice of the Proceedings against him , than any Prisoner before had , to his Knowledg , being often before the Council Table , and face to face before his Accusers ; yet to satisfie the Earl , the Lord Steward asked the Opinion of the Judges , who all in one voice answered , that it could not be granted but in points of Law ; if any such occurred , he should have present Determination : Then the Lord Steward said , that his Tryal must be secundum veritatem facti , little de jure : If his Lordship or the Lords doubted any thing , let them shew it to the Lord Steward , and he would shew it to the Judges , and so have present Answer : That now he was to be judged by the Peers , who were without any exception , and because of their absolute Integrity , no Oath was to be taken from them : So the Earl pleads , not guilty , and submits himself to God , his Peers , and the right of his Cause . Then begun the Kings Attorney to speak , and open the whole business with the Circumstances and Depositions , pressing them all against the Prisoner , but so fairly and so judiciously , that none could do better , nor contrive so foul a business in fairer Terms . First , Mr. Attorney clears himself of any former spleen against the Person , but against the Crimes ; that he should say nothing but what he could prove clearly ; ( which indeed he did perform ) that these ten years past , during the time of his service to our late Majesty , and our now present Sovereign , he had never opened his mouth against any Peer in this Land ; wherein he commended greatly the King in his Government , and the Peers in their Duty to their Sovereign ; then he shewed that these Detestable Crimes were now prosecuted by a Legal Course of Law ; that his Majesty and People might be clear of them : that the Lord Audley ( for so they still called him ) was Legally indicted in his own Countrey : Mr. Attorny goes on , causes the Depositious to be read . First , he insists upon the Rape : If a man , saith he , doth force a maried woman , and that she yeild thereafter , yet he dieth by the Law , except she concieve ; yea though she cried not , nor complained in time , for this is no exception against the King , but against the woman ; Mr. Attorny persists , and shews there was no necessity of revealing it , because the woman was in their Power . The Earl tried his Wifes Chastity the first night of her Mariage with him , and takes pleasure to make all men as bad as himself ; he tempts her first night after her mariage , to lie with his Favorite Anthil , whom the Earl said he loved above all men ; he saies also to her , that her Body was his Body , she must therefore use it at his pleasure , and used Scripture for it . To Anthil the Son of an Inkeeper , being his Favourite , he gave his Eldest Daughter in Mariage with 8000l . of Portion ; this argues strong affection , and that which all mankind abhors , ( that is to have their Wifes prostitute to others ) the Earl took great delight in . Next to Anthil scceeds Skipwith in the Earls affections , whom from a Foot-Boy and a Page he advanced to be his Favourite , and so stiled him usually , and made him sit at his Table , and makes him his Bed-Fellow : sed quorsum hoc ? I leave that to your Lordships to judge : to him he was not so favourable as to Anthil , in bestowing his Wife upon him , and was the Pander and the Baud ; when as most men strive to leave their succession to legitimate Children , and not to Spurious Births . So I will leave this point of Rape with this truth , that to force a woman is a great sin ; but for an Husband to consent that his Wife shall be forced , is very much : but for an Husband to behold it , to be a spectator , yea to force her , it goes beyond the Bounds of humanity . Now as to that sin which should not be named amongst Christians , and a strange sin in this Land , brought hither by strangers , I will scarce name it , the Law of England saies , that Knowledg is a Burden , and I think it is in this particular , Crimen est bestiale contra naturam , It is Crimen Sodomiticum sine penetratione cum faemina ; It is Masculus cum Masculo , and therefore Penetration is not lawful to make it Sodomy ; Cubitus immunditus supplies the Penetration ; Voluntas solum requiretur , non Copulatio ; so that the Law of England makes distinction of degrees of this filthy sin , non est species Luxuriae , sed Bestialitatis , quia non sequitur Conceptio . Many more passages were cited by Mr. Attorny both out of Scripture and Law , &c. So he concluded that every Breach of this filthy sin was within the compass of Felony . Then he fell upon Henry Skipwith , born in Ireland , who being come from a Footman , to be the Earls Bedfellow and Favourite , got from the Earl 500l . per Annum , whereas he gave not his Son one hundred : he gave him also his House at Salisbury ; and gave him many Leases ; and all his goods by Gift and Deed ; besides all these , he did prostitute unto him his Lady , and his Eldest Sons Wife . Then did Mr. Attorny largely declare all my Lord Audlyes Business , how Skipwith and She did love one another in Ireland before her Mariage , but never enjoyed her , till after her Mariage ; and by reason of her young years what Oyls and grease the Earl used , to make her fit for Skipwith , which his heart abhorred to relate . He did aggravate the more against the Earl , because Skipwith being in such exorbitant and excessive favour with the Earl ; whatsoever his Wife had , must come by Skipwith , whatsoever the young Lady had , must come by Skipwith ; yet all these favours bestowed uppon Skipwith were nothing , in regard of that which is beyond all expression , that the Earl should be to him the impulsive instrument , to betray the Chastity of an Innocent Lady of 12 years , his own Daughter-in-Law , whose Children ( if any had been ) should have been Peers of this Realm ; and which is worse , if worse can be , the Earl to be the Spectator and Enconrager of all these filthy Crimes . This was confest by Skipwith , and the young Lady ; and as for the Earl's Filthiness with his Maid Blandina , that was also touched , how the Earl's House was a common Brothel-house , the Earl himself delighting to be not only an Actor , but a continual Spectator of Filthiness ; and also Blandina was abused by himself and his Servants for the space of seven hours together , until she had the French Pox ; and so Mr. Attorney ended his Speech , recommending the Business to the Peers . Then were all the Witnesses examined , Fumy , alias Florence , Fitz-Patrick , Giles Bradway , Skipwith , Scot , Flore , Walter Tite , his Steward , their former Depositions were read to them all , which now again upon Oath they did acknowledge to be true ; Both the Ladies Depositions were also read , and some of the Lords were sent to them to take their Oaths whether they were true or not , which they constantly stood to upon Oath . Thus did Mr. Attorney clearly prove what he had alledged against the Earl ; not one Circumstance at all which he alledged against the Earl , which was not proved by two of the Witnesses at the least . Then spake the Kings Sollicitor , resuming all that was said , and proved by Mr. Attorney , alledging more Law to prove the same ; but in substance said no more than what was said before . Then did the Prisoner speak for himself . First he excepts against the Witnesses , as base and unworthy persons , suborned by his Wife and his Son , to take away his Life ; whereas , by Law , Witnesses ought to be honest persons and undefamed , which they are not ; and alledges Law for it : for Fitch-Patrick , he said he was a Recusant , and therefore could be no Witness ; which was repelled , because he was never convicted for the same ; and therefore the Judges could take no notice of his Recusancy . The Earl said further , That for his Knavery he had oftentimes beaten him , and turned him away ; and that he was now hired by his Son to bear witness against him : It was repelled again by the Lord Steward , because it could not be . It was answered again by the Judges , that in Law for the King , all Witnesses are held to be sufficient , and that no honest and undefamed men could be witnesses of such bad and monstruus Actions ; and besides , it concerned the Deponents Lives as well as the Prisoners . The Lord Steward further adds , that the Earl had fair dealing , beyond the practice , in that the Witnesses were brought face to face to him , which were all brought there , except the two Ladies . Secondly , That supposing it were true which they deposed ( which he hoped would not so prove ) he urged to be cleared , whether the Statute did intend that all kind of pollution ( man with man ) were Buggery or not , seeing by their Confession , there was no Penetration . To this ( the Judges Advice being asked ) they answered it was Buggery by the Law , and that the Law of this Land made no distinction of Buggery , if there be Emissio Seminis . Thirdly , He excepted against the Deposition of the Witnesses for the Rape , alledging that the Actor being the Witness , deposed , that he had spent after he had strugled with the Countess , that he did not penetrate at all . To this it was answered by the Judges ( after asking ) that the Countess her own Deposition ▪ did clear that Matter , who declared upon Oath that the Fellow had carnal dealing with her , being held by the Arm and Leg by her Husband , and never thereafter knew him . Fourthly , He said that the Wife could not be a Witness against her Husband : the Judges being asked their Opinions therein by the Lord Steward , answered , that in Civil Matters between Party and Party , a Wife could not be a Witness ; but for Criminal matters , and for the King , the Wife may be a Witness , Fifthly , He urged that his Wife was incontinent , yea before he married her , and therefore a Whore can be no Witness : the Judges Opinions being asked in this Case , they answered , that a common Whore may be ravished , and so repelled his Answer . Sixthly , He alledged that his Wife , his Son , and one Mr. William Wroghton had plotted together against his Life , and so all was but their Suggestions ; this he could not prove , and was rejected and repelled again by the Lord Steward . Lastly , He beseeched the Lords to consider what a dangerous preparative it was to this Kingdom , that a mans Wife and his Son , gaping after his Succession , the Devil and wicked servants complotting together , might bereave the greatest Peer of his Life . Wherefore he desires them to see into what a Misery the Nobles , Gentry , and Commons did involve themselves by this example , if he were condemned ; and so humbly submitted himself to God , and the censure of his Peers , and was removed to a place appointed , till the Peers considered of it . The Peers Names who were of the Grand Jury . 1. Weston , Lord Treasurer . 2. Montague , Lord Privy Seal . 3. Earl Marshal . 4. Lord Chamberlain . 5. Earl of Kent . 6. Earl of Worcester . 7. Earl of Bedford . 8. Earl of Essex . 9. Earl of Dorset . 10. Earl of Salisbury . 11. Earl of Leicester . 12. Earl of Warwick . 13. Earl of Holland . 14. Earl of Carlisle . 15. Earl of Berkshire . 16. Earl of Danby . 17. Viscount Wimbleton . 18. Viscount Conway . 19. Viscount Dorchester . 20. Viscount Wentworth . 21. Lord Clifford . 22. Lord Piercy . 23. Lord Strange . 24. Lord North. 25. Lord Peters . 26. Lord Edw. Howard . 27. Lord Goring . The Peers being upon their Honours , removed themselves to another Room , and debated the Matter near three hours ; all the Lords except one , found him guilty ; and that was my Lord North , who conceived him guilty of neither . But there was a great Contestation for the Buggery ; fifteen found him guilty , twelve not ; but the Major part carried it . The Kings Serjeant at Law desired Judgment . Thereupon Sentence was pronounced against him by the Lord Steward , who adjudged him to be carried back to the Tower , and from thence to go to the place of his Execution , to be hanged till he died . The Earl hearing his Judgment , sate down upon his Knees , and protested upon his Salvation and Damnation , that he was Innocent , and then desired the Lords to intercede for him to his Majesty ; that his Majesty would be pleased to give him some respite , to settle and reconcile himself to his God ( though he desired no Pardon of his Majesty of his Life ) which the Lords promised him , and so the Court dissolved . The Lord Steward gave him a Grave and Godly Admonition , desiring him to reconcile himself to God , and to be penitent for his Offences . That he was beholding to his God , that he was not strucken suddenly in the very Acts of Sin , but he had this leasure to repent ; with many other comfortable Speeches . Notwithstanding this Judgment , there was a Warrant from his Majesty , upon the Lords Intercession , for his beheading . The Manner of the Earl of Castlehaven , his coming to the Scaffold , Carriage and Speech there . Mervin Lord Audley , Earl of Castlehaven , being at his Arraignment , the 25 of April 1631. recieved the Sentence of Death . It was not long after before the Warrant for his Execution was signed , and that to be upon Saturday the 14 of May following ; notice whereof was given him , and his Coffin carried into the Tower about a week before , that he might the better prepare himself for Death : The Dean of Pauls , Doctor Winerfe , failed not daily to visit him ; and to see how he stood , and to settle him in his Religion , upon the 1st . of May he published in writing under his Hand the Articles of his Faith ; and the Day for him to suffer in being come , there repaired unto him of Noblemen , Gentry , and others , a world of people to behold the same . He came attired in a plain black Grogram Suit , a falling Band , a Hat without a Band , coming along ( notwithstanding the mighty Guard which attended him ) such was the Concourse and Press of people , both men and women , to see him , that his person was scarce free , but even both along in the throng , insomuch that his man was fain to settle anew , and amend his Gown on his Back , when he came to mount the Scaffold ; which being ascended , the Dean of Pauls and Doctor Wickham , together with his servants , he saluted the Noble Personages , and whole Assembly , shewing to them all a very Noble , Manly and Chearful Countenance , such as seemed no ways daunted with the fear of Death . After a short while shewing himself to the people , he addressed himself to Prayer , the Deans accompanying him in that Exercise , but somewhat apart ; which being not long , he stood upon his Legs , and leaned upon the two Deans , conferring with them ; then after he turned to the Lords , and spake to this effect ; I acknowledge with thankfulness the great Goodness of Almihgty God , that it hath pleased his Divine Majesty to bestow on me many Endowments , as Honour , Riches , and the like , which I have mispent , having been a vicious Liver , and justly deserved Death , forasmuch and in that the least sin at Gods hands justly deserveth Death , and no less ; but for the two heinous Crimes with which I am branded , condemned , and here to suffer for , I do here deny them upon my death freely forgiving those that have accused me , and have been the occasion of my Death , even as freely as I my self do desire forgiveness at Gods hands , which I hope to obtain through his infinite Goodness and Mercy ; and somewhat the rather , by your Christian Prayers , which I expect and humbly beg of your Lordships and this whole Assembly . Now forasmuch as there hath been speech and rumour of my unsetledness in my Religion , I have for explanation thereof , not only made Confession of my Faith , to those two Worthy Doctors ; but for better satisfaction to the World in that Point , exprest the same in writing under my Hand signed ; which as it is here set down , I desire may be publickly read . The Confession of his Faith was read by a young Gentleman with a loud Voice , as followeth ; In the Name of God , Amen . I Mervin Earl of Castlehaven being in my full strength and perfect Memory , Thanks be given to my Maker , having been branded and openly accused for Change , Alteration and Doubtfulness of my Faith and Religion , I thought it fit , like a Christian man , to give satisfaction upon what Grounds I stand for my Belief , and I express it under my Hand for the satisfaction of all charitable people and Christian men . First , I do believe in the Blessed and Glorious Trinity , three Persons , one Eternal and ever-living God , God the Father , God my Redeemer , God my Sanctifier . I do believe upon the Merit , Death and Passion of our Blessed Saviour Christ Jesus , and upon his Mediation for the Remission of my Sins . I do believe and use with most humble Reverence , the Lords Prayer , the Creed of the Apostles , and the Ten Commandments , as they are set down and allowed by the Church of England . I do believe the Canonical Scriptures , that they are written by the inspiration of the Holy Spirit . I do believe the Book of Common Prayer allowed of in the Holy Scripture , and in the Church of England , to be an excellent Form for the Service of God , and to the use of the same ; and for the rest of my Belief , I do refer it to the true orthodox Faith of the Church of England . And for the Articles received at this present time in the Church of England , and confirmed by the Authority of Parliament , I do not differ in any Points , renouncing all the superstitious Errors taught or believed in the Church of Rome , or any other Church . In which Faith I will continue , God willing , to my Lives end ; in testimony whereof , I have here subscribed my Hand the first Day of May 1631. Then he proceeded . I acknowledge the great Justice and Mercy of the Kings Majesty ; His Justice , in bringing me to the Bar ; and His Mercy in affording me such a Noble and Gracious Trial here ; and I give His Majesty humble and hearty Thanks for signing my Death to be in this manner , contrary to the Sentence pronounced against me at my Arraignment : But there is a greater Favour than this , for which I am to render Thanks unto His Sacred Majesty , and that is , the long time I have had to repent in ; whereof ( praysed by Almighty God ) I can speak with comfort , I have made good use , and am now fully prepared for Death , and much the better , by the good help and instruction of these two worthy men , to whom I acknowledge my self bounden , and do here before you all give them hearty Thanks for their great pains taken in coming to me , praying for me , and preaching and reading to me . And I desire your Lordships to present my humble acknowledgment to His Majesty , and for His Goodness in sending them to me , and my Thanks for the same . I do also from my heart desire and beseech Almighty God to bless the Kings Majesty , the Queen , and the Young Prince , together with all such other Issue as he shall hereafter in Mercy bestow on them , and the whole State : and my Trust and Desire is there may be ever one of there Line to sway the Scepter of these Kingdoms to the Worlds end . And I beseech , and do heartily pray for the Welfare and happy Prosperity of the King and Queen of Bohemia , with all their Princely Issue . I do again desire your Lordships to make Tender of my humble acknowledgement of his Mercy and Goodness . And now lastly , That you will not bend your Eyes so much upon me , as your Hands and Hearts to Heaven in Prayers for me ; and so I take my last Farewel of your Lordships and the World. Then he went again to his private Prayers , which being done , he prepared himself for Death , striving to shew the like Courage and Magnanimity which he had formerly done , unto the last ; but sight of the Headsman ( whom yet he freely forgave , and took him by the hand , bidding him do his Office manfully ) together with the apprehension of his near approaching End , made him somewhat to change colour , and shew some signs of trembling Passion ; for his Hands shook a little in undoing his Band-strings ; which his man perceiving , stept to him and helpt him , as also off with his Doublet . Then taking leave again of the Lords , the Doctors , and his man , saying a very short Prayer by himself , he pulled down his Handkercher over his Face , and laid his Head upon the Block ; which was watched for by the Executioner , who instantly at one Blow smote it off . And thus died that Great Lord of Castle-Haven . FINIS . Notes, typically marginal, from the original text Notes for div A63198-e60 If a Man force a Whore , yet he dieth by the Law. No Man being never so ill , but would have his Wife better . The Ladies were in a Room behind the Chancerie ; the Lords that went to them were four , Bedford , Essex , Warwick , & Leicester