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Law, Status, and the Lash: Judicial Whipping in Early Modern England
Published online by Cambridge University Press: 23 April 2021
Abstract
This article focuses on the contested development of judicial whipping as a marker and maker of status in the particular social, cultural, and political context of England in the sixteenth and seventeenth centuries. In these years people disputed with special vigor who could be whipped and why, often in battles fought in and around parliaments and the Court of Star Chamber, and often invoking fears of “servility.” Tracing the rise and spread of judicial whipping, its linking with the poor, and disputes over its use, this article demonstrates how whipping served as a distinctively and explicitly status-based disciplinary tool, embedding hierarchical values in the law not just in practice but also in prescript. Some authorities thought the whip appropriate only for the “servile” and, indeed, both valuable and dangerous for its ability to inculcate a “slavish disposition.” After men of the gentry successfully asserted their freedom from the lash, so too did a somewhat expanded group of “free” and “sufficient” men. By the later seventeenth century, challenges over the uses of judicial whipping left it limited ever more firmly to people of low status, affixed by law to offenses typically associated with the insubordinate poor.
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References
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18 22 Henry VIII, c. 12 (1530–1). For early proclamations, see Tudor Royal Proclamations, vol. 1, The Early Tudors (1485–1553), ed. Paul L. Hughes and James F. Larkin (New Haven, 1964), no. 128 (1530), no. 161 (1536), no. 204 (1541). An earlier proclamation against vagrants, in 1493–94, mandated time in jail and the stocks, not whipping (no. 30). The proclamation of 1536 might seem somewhat different in ordering whipping for pardoners, but it describes them as vagrants and beggars who take money deceitfully from the poor.
19 27 Henry VIII, c. 25 (1535–36).
20 See C. S. L. Davies, “Slavery and Protector Somerset: The Vagrancy Act of 1547,” Economic History Review 19, no. 3 (1966): 533–49.
21 See, for example, 5 Elizabeth I, c. 4 (1562–63); 14 Elizabeth I, c. 5 (1572); 18 Elizabeth I, c. 3 (1575–6); 39 Elizabeth I, c. 4.
22 7 James I, c. 4 (1609–10).
23 18 Elizabeth I, c. 3 (1575–76).
24 43 Elizabeth I, c. 7 (1601).
25 7 James I, c. 7 (1609–10).
26 21 James I, c. 20 (1623–24).
27 3 Charles I, c. 4 (1627).
28 North Riding Quarter Sessions Records, ed. J. C. Atkinson, vol. 1 (London, 1884), 26, 52, 101, 102, 185, 194–96, 235, 247–48.
29 These institutions formally merged with local goals in 1865. For their various permutations, see Joanna Innes, “Prisons for the Poor: English Bridewells, 1555–1800,” in Labour, Law and Crime: An Historical Perspective, ed. Francis G. Snyder and Douglas Hay (London, 1987), 42–122. On the London Bridewell, see also Archer, Ian W., The Pursuit of Stability: Social Relations in Elizabethan London (Cambridge, 1991)CrossRefGoogle Scholar; Griffiths, Paul, Lost Londons: Change, Crime, and Control in the Capital City, 1550–1660 (Cambridge, 2008)CrossRefGoogle Scholar; and Dabhoiwala, Faramerz, “Summary Justice in Early Modern London,” English Historical Review 121, no. 492 (2006): 796–822Google Scholar.
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31 The National Archives, Kew (hereafter TNA), SP 14/108, fol. 58 (Mason); TNA, PC 2/29, fol. 393 (Sexby); TNA, PC 2/30, fols. 27 (Coe), 260 (Fludd).
32 Durham University Library (hereafter DUL), Add. MS 329, fols. 127–31. This set of Star Chamber reports exists in multiple manuscript copies, with some variations, including, for example, DUL, MSP 65; Folger Shakespeare Library, Vb. 70; and British Library (hereafter BL), Lansdowne MS 620 and Add. MS 48057. Ian Williams is producing an edition for the Selden Society.
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38 See, for example, Archer, Pursuit, 4.
39 Commons Debates, 1621, 5:128, 360, 369; quotations from Commons Debates, 1621, 6:120–21; Journal of the House of Commons, vol. 1 (1547–1629) (London, 1802), 601–2.
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41 Journal of the House of Lords, vol. 3 (1620–1628) (London, 1767–1830), 119, 124, 134.
42 Chamberlain's letters suggest that Floyd was whipped after a delay, but another newsletter writer indicated otherwise: TNA, SP 14/121, fol. 150; BL, Harley MS 389, fols. 88d, 92.
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50 DUL, Add. MS 329, fols. 158–89. For this case, see also Bellany, Alastair, “Singing Libel in Early Stuart England: The Case of the Staines Fiddlers, 1627,” Huntington Library Quarterly 69, no. 1 (2006): 177–93CrossRefGoogle Scholar.
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53 Star Chamber Reports: Harley MS 2143, ed. K. J. Kesselring (Kew, 2018), no. 60.
54 Kesselring, Star Chamber Reports, no. 342.
55 Kesselring, no. 905. For details of this case, see the pleadings and proofs in TNA, STAC 5/A45/14 and TNA, STAC 5/A21/40. For subsequent moderation of the punishment, see C66/1458, mm. 36–37; and Calendar of the Manuscripts of the Most Hon. the Marquis of Salisbury [. . .], vol. 5, ed. R. A. Roberts (London, 1883–), 521; and Calendar of State Papers, Domestic Series, of the Reigns of Edward VI, Mary, Elizabeth and James I. 1547–[1625] [. . .], vol. 4 (1595–1597), ed. M. A. E. Green (London, 1867), 439. According to a later accusation against the clerk of the court, it would seem, too, that Owen bribed the clerk £5 to stay the attachment against him, to give him time to get away and to petition for the pardon. See BL, Lansdowne 86, no. 42.
56 John Hawarde and W. Paley Baildon, Les reportes del cases in Camera Stellata, 1593 to 1609: From the Original Ms. of John Hawarde [. . .] ([London, 1894).
57 Hawarde and Baildon, Les reportes, 39–40 and 44; see also 147.
58 Hawarde and Baildon, 341, 343.
59 Hawarde and Baildon, 372–73.
60 Hawarde and Baildon, 55, 104, 124, 195, 258.
61 TNA, STAC 8/103/1.
62 See BL, Harley MS 358, fol. 201v, discussed and cited by John Baker in The Reinvention of Magna Carta, 1216–1616 (Cambridge, 2017), 266–69.
63 TNA, STAC 5/N15/10; BL, Add MS 48064, fols. 207–8v, which seems to be a full transcript from the lost Star Chamber order and decree books; also Harley 2143, fol. 44r, a summary of the decree. For the later report referencing the case, see DUL, Add. MS 329, fols. 148–53.
64 DUL, Add. MS 329.
65 DUL, Add. MS 329, fols. 127–31.
66 DUL, Add. MS 329, fols. 189–91; and Rushworth, Historical Collections, 3:11. See TNA, STAC 8/79/1 for the case file. For other cases, see DUL, Add. MS 329, fols. 148–53 (matching TNA, STAC 8/161/10); and Rushworth, Historical Collections, 3:19.
67 Hudson, “Treatise,” 36, refers to the “slavish speech of whispering,” but this seems to be a transcription error on Hargrave's part. Manuscript versions (e.g., BL, Harley MS 1226) refer to whipping. See Guy, Court of Star Chamber, 79. For another reference to the relative novelty of whipping among the court's sanctions, see Hudson, “Treatise,” 224.
68 Folger Shakespeare Library, MS X.d. 337, fol. 4d.
69 Alexander Leighton, An Epitome [. . .] of the Many and Great Troubles that Dr. Leighton Suffered (London, 1646), 85.
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72 Journal of the House of Commons, vol. 2 (1640–1643) (London, 1802), 134.
73 Journal of the House of Commons, 2:113, 115, 162.
74 16 Charles I, c. 10.
75 Daniel L. Vande Zande, “Coercive Power and the Demise of the Star Chamber,” American Journal of Legal History 50, no. 3 (2010): 340–41, citing Phillips, “The Last Years of the Court of Star Chamber,” 118, which notes that of 236 cases heard in the court's latter years, only nineteen involved corporal punishment. See also Thomas G. Barnes, “Star Chamber Mythology,” American Journal of Legal History 5, no. 1 (1961): 1–11.
76 A Briefe Relation of Certain Speciall and Most Materiall Passages and Speeches in the Starre-Chamber [. . .] at the Censure of Those Three Worthy Gentlemen, Dr Bastwicke, Mr Burton, and Mr Prynne (Amsterdam, 1637), 21. On this point, see also J. P. Kenyon, The Stuart Constitution, 1603–1688: Documents and Commentary, 2nd ed. (Cambridge, 1986), 118.
77 Lilburne, A True Relation of [. . .] Lilburnes Sufferings (London, 1646), 6–11. (A summary account of this presentation appears in John Rushworth, Historical Collections, 2:468–69, but misdates it to 1640); see Edward Vallance, “Corrigendum,” History Workshop Journal, no. 75 (2013): 306. Cook's invocation of Cartwright's Case came up in Somerset's Case (1772), as evidence that English common law did not allow slavery on English soil; see John Cook, Vindication of the Professors and Profession of Law (London, 1646), 7. Subsequent commentators on this 1646 invocation of Cartwright have often been mistaken on a number of points—misdating it or misstating the venue—and have suggested that it was only used then to speak to the injustice of whipping. That was true in this particular instance, but Cook did raise the case in another discussion, as a precedent for personal freedom more generally. Cook, John, Vindication of the Professors and Profession of Law (London, 1646), 71Google Scholar. For discussion of this point, see K. J. Kesselring, “Slavery and Cartwright's Case before Somerset,” Legal History Miscellany, October 10, 2018, https://legalhistorymiscellany.com/2018/10/10/slavery-and-cartwrights-case-before-somerset/ .
78 E. P. Thompson, Whigs and Hunters: The Origins of the Black Act (London, 1975), 258–69. For responses to Thompson, see the discussion and citations in Daniel H. Cole, “‘An Unqualified Human Good’: E. P. Thompson and the Rule of Law,” Journal of Law and Society 28, no. 2 (2001): 177–203.
79 An Agreement of the People of England (London, 1649), n.p.
80 Geltner, Flogging, 42–43; Garnsey, Social Status, 136–47. In later years, humiliores did become subject to whipping, but the close association with slave status seems to have persisted.
81 See, for example, Amussen, Susan Dwyer, Caribbean Exchanges: Slavery and the Transformation of English Society, 1640–1700 (Chapel Hill, 2008)Google Scholar, which offers an insightful discussion of the ways that English slaveholding abroad became a source of social and cultural change within England, even by the mid-seventeenth century. See also Guasco, Slaves and Englishmen; Colley, Linda, Captives: Britain, Empire, and the World, 1600–1850 (London, 2002)Google Scholar; Donoghue, John, Fire under the Ashes: An Atlantic History of the English Revolution (Chicago, 2013)CrossRefGoogle Scholar.
82 Samuel Curtis, The Lamentable Sufferings of the Church of God in Dorset-shire and the persecution there, whopping sufficient men of their own county as vagabonds (London, 1659), title page and 2.
83 Burrough, Edward, A Declaration of the Present Sufferings of Above 140 persons of the People of God (London, 1659), 17, 24Google Scholar.
84 George Fox, To the Councill of Officers of the Armie and the Heads of the Nation (London, 1659), 4.
85 Bent, James, The Bloody Assizes (London, 1689), 50Google Scholar.
86 Journal of the House of Commons, vol. 10 (1688–1693) (London, 1802), 247; The Tryals, Convictions and Sentence of Titus Oates (London, 1685). See Anthony Granucci, “‘Nor Cruel and Unusual Punishments Inflicted’: The Original Meaning,” California Law Review 57, no. 4 (1969): 852–60; and Schwoerer, Lois, The Declaration of Rights, 1689 (Baltimore, 1981), 92–94Google Scholar. See also A Letter to a Gentleman at Brussels (Windsor, 1688), 7, which noted that the whipping of clergymen, “who can never be deemed vagabonds and slaves in a nation where they have a liberal education while young and reverence and maintenance afterwards . . . stirred the blood of all English hearts” and prompted fears that “the best commoner in England” might also thus fall under the lash.
87 See Cressy, David, Dangerous Talk: Scandalous, Seditious, and Treasonable Speech in Pre-Modern England (Oxford, 2010), chapter 11CrossRefGoogle Scholar; and Harling, Philip, “The Law of Libel and the Limits of Repression, 1790–1832,” Historical Journal 44, no. 1 (2001): 107–34Google Scholar. In one of the more famous cases of the post-1790 crackdown, William Cobbett was punished with fines and imprisonment for a critique of flogging in the military that authorities deemed an incitement to mutiny (127).
88 John Locke, Some Thoughts Concerning Education (1693), ed. J. W. Yolton and J. S. Yolton (Oxford, 1989), 113. My thanks to Brennan Dempsey for bringing to my attention this passage and other discussions of whipping's contested role in education. See, in particular, Traninger, “Whipping Boys”; Rebecca W. Bushnell, A Culture of Teaching: Early Modern Humanism in Theory and Practice (Ithaca, 1996), and Parsons, Ben, “The Way of the Rod: The Functions of Beating in Medieval Pedagogy,” Modern Philology 113 (2015): 1–26CrossRefGoogle Scholar.