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Rape and Resistance: Women and Consent in Seventeenth-Century English Legal and Political Thought

Published online by Cambridge University Press:  10 January 2014

Julia Rudolph
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Extract

During the Exclusion crisis, the figure of a tyrant rapist, a ruler undone by his own lust and cruelty, briefly appeared on the London stage. Early in December 1680, Nathaniel Lee's Lucius Junius Brutus was performed by the Duke's Company in the Dorset Garden Theater. Lee's play recounted the tale of the rape of Lucretia and the subsequent actions taken by Brutus in resistance to this act of tyranny. This theatrical production was by all accounts a success, yet the play was banned from the stage after only six days; the order of the Lord Chamberlain stated objections to its “very Scandalous Expressions & Reflections upon ye Government.” Lee's Brutus was, however, soon available in print, published by Richard and Jacob Tonson in June of 1681. Like other Exclusion publications, Brutus offered a powerful argument against tyranny and arbitrary government, and the play was evidently construed as an attack on the Stuart monarchy. Many modern commentators have specifically noted the anti-Catholic overtones of Lee's drama and have read it within the context of the Popish Plot scare. Yet the central theme of Lee's play is, of course, the association between tyranny and rape: it is the tyrant's violation of woman (not of religion) that justifies resistance. In Lee's drama, just as in Livy's history, the chaste and honorable Roman matron Lucretia is raped by “the lustful bloody Sextus,” a prince of the proud and tyrannical house of Tarquin. In both stories, Lucretia's rape and her subsequent suicide set off a train of revolutionary events: Brutus seizes the bloody knife from Lucretia's twice-violated body and, holding it to his lips, vows with his fellow Romans never to suffer Tarquin “nor any other king to reign in Rome.”

Type
Research Article
Information
Journal of British Studies , Volume 39 , Issue 2 , April 2000 , pp. 157 - 184
Copyright
Copyright © North American Conference of British Studies 2000

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References

1 Loftis, John (“Introduction,” in Lucius Junius Brutus, ed. Loftis, John [Lincoln, Nebr., 1967], pp. xii–xiii)Google Scholar and Stroup, Thomas B. and Cooke, Arthur L. (“Introduction to Lucius Junius Brutus,” in The Works of Nathaniel Lee, ed. Stroup, Thomas B. and Cooke, Arthur L. [New Brunswick, N.J., 1954], 2:317)Google Scholar agree that Lee's play ran for six days. For reports that it ran for only three days, see Loftis, , “Introduction,” pp. xii–xiiiGoogle Scholar; and the Dictionary of National Biography (DNB), s.v. “Lee, Nathaniel.”

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3 Nathaniel Lee, Lucius Junius Brutus act 1, line 447, in Stroup and Cooke, eds., Works. Also see Livy, , The Early History of Rome 1.57–60Google Scholar.

4 Lee, Brutus, act 1, lines 270–75. And cf. Lee's description of another tyrant rapist in his drama Caesar Borgia, act 1, lines 297–309, 589–611, in Stroup and Cooke, eds., Works.

5 Lee, Brutus, act 2, lines 51–52, 59–60, 70–72, 98–102, 104–5.

6 Ibid., act 2, lines 179–85.

7 As other scholars have noted, Lee dedicated his play to the Earl of Dorset, who was a satirist, poet, patron, and one who concurred in the invitation to William of Orange. See DNB, s.v. “Sackville, Charles”; Patterson, Annabel, Reading between the Lines (Madison, Wis., 1993), p. 211Google Scholar.

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20 A Political Conference, pp. 6–17, 24; see also Georgeson, , Defence of Parliament, p. 18Google Scholar; and Kennett, , A Dialogue between Two Friends, p. 11Google Scholar.

21 A Political Conference, p. 30.

22 Georgeson, , Defence of Parliament, p. 20Google Scholar, citing Claude de Saumaise (1588–[1653?]), the author of Claudii Salmasii ad Johannem Miltonum Responsio, Opus Posthumum (London, 1660)Google Scholar and Defensio Regia pro Carolo I (Leiden, 1649)Google Scholar.

23 Tyrrell's major works of Whig theory and history were Patriarcha non monarcha: The Patriarch Unmonarch'd (London, 1681)Google Scholar, Bibliotheca Politico (Dialogues 1–13, London, 1694Google Scholar; Dialogue 14, London, 1702), and The General History of England, Both Ecclesiastical and Civil, 3 vols. (London, 1700–1704)Google Scholar. For comments on Tyrrell's significance, see, e.g., Kenyon, John, Revolution Principles: The Politics of Party, 1689–1720 (Cambridge, 1990), p. ixGoogle Scholar; Pocock, J. G. A., Virtue, Commerce and History: Essays on Political Thought and History, Chiefly in the Eighteenth Century (Cambridge, 1986), p. 233Google Scholar; Rudolph, Revolution by Degrees; and Wootton, David, “Introduction,” in Political Writings of John Locke, ed. Wootton, David (New York, 1993)Google Scholar.

24 Tyrrell, , Bibliotheca Politica: The First Complete Edition Containing the Fourteenth Dialogue of 1702 (New York, 1979), pp. 148–49Google Scholar (all subsequent page references to Tyrrell's Bibliotheca Politica are from this edition). Barclay defends resistance to a tyrant who seeks the destruction of his people, claiming that “Wives and Children [must not] be exposed to the lust of a Tyrant” (ibid., p. 149; quote is from Barclay, William, De Regno et Regali Potestate adversus Buchananum, Brutum, Boucherium et Reliquos Monarchomachos [Paris, 1600], bk. 3, chap. 8Google Scholar).

25 Locke, John, The Two Treatises of Government, ed. Laslett, Peter (1963; Cambridge, 1988)Google Scholar, second treatise, para. 232–33, citing Barclay's De Regno et Regali Potestate. Wootton recently posited that Locke's Two Treatises were written, in part, in response to Tyrrell's, Patriarcha non monarcha (“Introduction,” pp. 77–89)Google Scholar. See also Marshall, John, John Locke: Resistance, Religion and Responsibility (Cambridge, 1994), pp. 234–37CrossRefGoogle Scholar; and Rudolph, Revolution by Degrees, chaps. 2 and 6, for further suggestions about the mutual influence between Tyrrell and Locke.

26 Tyrrell, , Bibliotheca Politica, p. 163Google Scholar.

27 Burnet, Gilbert, “An Enquiry into the Measures of Submission,” in Six Papers by Gilbert Burnet (London, 1689)Google Scholar, sec. xvi. Compare Lee's Brutus, act 4, lines 59–68, describing the tyrant's plan to have his soldiers rape the rebellious Romans. For other examples from the 1670s to the 1690s of this image of the standing army as “immoral,” “lewd,” “disorderly,” etc., see Schwoerer, Lois G., No Standing Army! The Anti-army Ideology in Seventeenth-Century England (Baltimore, 1974)Google Scholar.

28 Grotius, , De Jure Belli ac Pacis, 2:175Google Scholar. Samuel Pufendorf also offers an argument for this right of self-preservation in defense of chastity in De Jure Naturae et Gentium, Libri Octo, trans. Oldfather, C.H. and Oldfather, W.A. (Oxford, 1934), 2:279Google Scholar.

29 Kennett, , A Dialogue between Two Friends, p. 17Google Scholar; Kingston, Richard, Tyranny Detected and the Late Revolution Justify'd (London, 1699), pp. 50–51Google Scholar; A Political Conference, p. 30.

30 Tyrrell, , Patriarcha non monarcha, pp. 110–11Google Scholar; Locke, Two Treatises, second treatise, paras. 81–84; Butler, Melissa A., “Early Liberal Roots of Feminism: John Locke and the Attack on Patriarchy,” in Feminist Interpretations and Political Theory, ed. Pateman, Carole and Shanley, Mary (University Park, Pa., 1991), pp. 74–94Google Scholar.

31 There is this association between the question of female consent and rape not only because of contract theory but also because of the contemporary legal definition of rape. See below, pp. 176–79.

32 For a similar ambivalence in seventeenth-century treatises on marriage and domestic life, see Amussen, Susan Dwyer, An Ordered Society: Gender and Class in Early Modern England (New York, 1988), pp. 41–47Google Scholar.

33 Pateman, Carole, The Sexual Contract (Stanford, Calif., 1988), p. 42Google Scholar.

34 Astell, Mary, Reflections upon Marriage, in Political Writings, ed. Springborg, Patricia (Cambridge, 1996), pp. 17–18Google Scholar.

35 Margaret Sommerville has recently argued for an analysis of contractarian thinking within this context of attitudes toward and theories about women in early modern Europe. I disagree, however, with her conclusion that this kind of contextual interpretation will explain away the contradiction in Whig thought. See Sommerville, Margaret R., Sex and Subjection: Attitudes to Women in Early-Modern Society (London, 1995), pp. 4–5Google Scholar and chap. 8.

36 Pateman, , Sexual Contract, pp. 48–55Google Scholar; Shanley, Mary, “Marriage Contract and Social Contract in Seventeenth-Century English Political Thought,” Western Political Quarterly 32 (1979): 79–91CrossRefGoogle Scholar; Springborg, Patricia, “Note on the Text,” in Astell, , Political Writings, p. 4Google Scholar; Tuana, Nancy, Woman and the History of Philosophy (New York, 1992), pp. 86–97Google Scholar.

37 Tyrrell, , Patriarcha non monarcha, pp. 84, 110–11Google Scholar; Pufendorf, , De Jure Naturae et Gentium, 2:845, 853, 859–60, 862, 916Google Scholar. Although Locke attributes more autonomy to the married woman, and even defends the reasonableness of divorce, he too acknowledges the natural subordination of women. Locke, Two Treatises, first treatise, para. 47; second treatise, para. 82. And for the general agreement on the scriptural authority for female subordination see Burnet, Enquiry, sec. xiv.

38 Tyrrell, , Patriarcha non monarcha, pp. 83–84Google Scholar.

39 Amussen, , Ordered Society, pp. 72–73Google Scholar; Erickson, Amy Louise, Women and Property in Early Modern England (London, 1995), pp. 24–26Google Scholar; Laurence, Anne, Women in England, 1500–1760 (New York, 1994), pp. 227–28Google Scholar; The Lawes Resolutions of Women's Rights: Or, the Lawes Provision for Women (London, 1632)Google Scholar, bk. 1, sec. 2; bk. 3, secs. 9, 13, 42; bk. 4, sec. 2, all excerpted in Klein, Joan Larsen, ed., Daughters, Wives and Widows (Urbana, Ill., 1992)Google Scholar. A husband's control over his wife's person as well as property may be indicated by the fact that a husband could not legally be found guilty of raping his own wife. See SirHale, Matthew, Historia Placitorum Coronae (1736), ed. Emlyn, Sollom and Wilson, George (London, 1800), 1:628Google Scholar.

40 Erickson, , Women and Property, pp. 6, 230–31Google Scholar. But note, too, her admitted warning about the danger of assuming a golden age for women existing before any period one studies. For some other views, see Prest, W.R., “Law and Women's Rights in Early Modern England,” Seventeenth Century 6, no. 2 (Autumn 1991): 169–87Google Scholar; Fletcher, Anthony, Gender, Sex and Subordination in England, 1500–1800 (New Haven, Conn., 1995)Google Scholar; and Laurence, Women in England.

41 Erickson, , Women and Property, p. 233Google Scholar.

42 Bashar, Nazife, “Rape in England between 1550 and 1700,” in The Sexual Dynamics of History: Men's Power, Women's Resistance, by the London Feminist History Group (London, 1983), p. 30Google Scholar.

43 Simpson, Antony E., “Vulnerability and the Age of Female Consent,” in Sexual Underworlds of the Enlightenment, ed. Rousseau, G. S. and Porter, Roy (Chapel Hill, N.C., 1988), p. 182Google Scholar; Statutes of the Realm, Capitula Itineris Stat. Incert. Temp.; “The Old Law of Libidinous Rape,” in The Lawes Resolutions of Women's Rights, bk. 5, sec. 22.

44 Statutes of the Realm, Stat. Westm. Prim., 3 Edw. I, c. 13, 1275.

45 Post, J. B., “Ravishment of Women and the Statutes of Westminster,” in Legal Records and the Historian, ed. Baker, J. H. (London, 1978), p. 154Google Scholar; Simpson, , “Vulnerability and the Age of Female Consent,” pp. 183–84Google Scholar. See also Statutes of the Realm, 4 & 5 Ph. & M., c. 8, s. 3, 1557–58, a later statute regarding the abduction of heiresses.

46 Statutes of the Realm, Stat. Westm. Sec, 13 Edw. I, c. 34, 1285.

47 The identification of women as male property is further underscored in the final clause of this statute, which states: “He that carrieth a Nun from her House, although she consent, shall be Punished by three Years Imprisonment, and shall make convenient Satisfaction to the House from whence she was taken, and nevertheless shall make Fine' at the King's Will” (ibid.). Post concurs that this clause on nuns “emphasized, by implication, the material motivation of the whole chapter” (“Ravishment of Women,” p. 157).

48 Post, , “Ravishment of Women,” p. 160Google Scholar. Post adds that the dower clause was also aimed to ensure that heirs would retain their estates intact; the fact that the clause was frequently invoked, Post claims, demonstrates that it met a real need.

49 Statutes of the Realm, 6 Ric. II, Stat. 1, c. 6, 1382. Post, , “Ravishment of Women,” p. 160Google Scholar. Note that the passage of this 1382 statute, and of a similar statute of 1487, was motivated by ongoing property disputes between families—these laws were passed in order to help particular families.

50 Post, , “Ravishment of Women,” pp. 152–53, 157Google Scholar. The rape charge was also used occasionally by the couple itself, against family objections to a match, in order to force acceptance of elopement.

51 Bashar, , “Rape in England,” pp. 30, 41Google Scholar.

52 See, e.g., Statutes of the Realm, 4 & 5 Ph. & M., c. 8, s. 3, 1557–58. In this statute, the link between rape and abduction is reaffirmed, and the focus is on disinheritance and the forfeiture of property when a person abducts, deflowers, or contracts secret marriage with a “maid or woman-child.”

53 The Lawes Resolutions of Women's Rights, bk. 5, sec. 21 (bracketed material is in the modern edition being cited here. It is a translation of a Latin phrase that I have omitted). For an analysis of the significance of The Lawes Resolutions of Women's Rights, see Prest, “Law and Women's Rights.”

54 Erickson, , Women and Property, pp. 5–6 and chap. 2Google Scholar.

55 Amussen, Ordered Society, chap. 3; Erickson provides summaries of her findings in Women and Property, pp. 18–20, 223–28.

56 It has frequently been argued that women's theoretical legal subjection must be compared with their actual experience and independence. See, e.g., Amussen, , Ordered Society, pp. 93–96Google Scholar; Erickson, , Women and Property, pp. 4, 8, 18Google Scholar.

57 Chaytor, Miranda, “Husband(ry): Narratives of Rape in the Seventeenth Century,” Gender and History 7, no. 3 (November 1995): 378–407, esp. pp. 395–96CrossRefGoogle Scholar.

58 Hale, , Historia Placitorum Coronae, 1:631Google Scholar.

59 Ibid., pp. 628–31.

60 Ibid., p. 627.

61 Ibid., p. 633.

62 Ibid., p. 632.

63 Ibid., pp. 634–35. Along with other examples, Hale repeats a sensational story about a case brought by a fourteen-year-old girl and her parents. This case was one among many, Hale claims, that was inspired by a recent successful indictment of rape in this locality. In this case, the accused man proved his innocence, and the woman's malicious intent, by dropping his trousers in front of the jury: “for all his bowels seemed to be fallen down in those parts that they [the jury] could scarce discern his privities, the rupture being as full as big as the crown of a hat, whereupon he was acquitted” (p. 635).

64 Simpson, , “Vulnerability and the Age of Female Consent,” pp. 182, 184–87Google Scholar. As Simpson explains, the First and Second Statutes of Westminster introduced a fundamental confusion regarding the established age of female majority and consent. The Second Statute of Westminster, while making rape once again a felony, ignored the case of the rape of a minor with her consent. Thus consensual intercourse with a girl under the age of twelve remained classified only as a misdemeanor under the First Statute of Westminster. A sixteenth-century statute finally remedied this discrepancy by making it a felony to rape a minor with or without her consent (Statutes of the Realm, 18 Eliz. I, c. 7, 1576). However, this statute also lowered the definition of female majority to ten years of age, adding a new source of confusion to the law books. The eighteenth-century courts generally accepted the Elizabethan statute and at the same time generally ignored the fact that despite this lowered age of consent, the rape of a girl between the ages of ten and twelve was still an indictable misdemeanor. No similar confusion plagued the legal understanding of male majority and autonomy. Although a mature woman was thus variously defined as a girl who had reached ten or twelve years of age, a boy legally became a man only at the age of fourteen. And in fact, as Hale explained, a boy below the age of fourteen could not be found guilty of committing a rape since he was considered to be “impotent as well as wanting discretion” (Historia Placitorum Coronae, 1:629Google Scholar).

65 Simpson, , “Vulnerability and the Age of Female Consent,” p. 187Google Scholar; and Bashar, , “Rape in England,” pp. 34–35Google Scholar, provide some statistical evidence of this concern for the male defendant.

66 Blackstone, William, Commentaries on the Laws of England, vol. 4, Of Public Wrongs, ed. Kerr, Robert Malcolm (Boston, 1962), pp. 235–41Google Scholar. Although Blackstone perpetuates the confusion about the age of female consent—and takes Hale to task for viewing the rape of a girl under twelve as a felony—he does recognize that the rape of a girl between the ages of ten and twelve would be an indictable misdemeanor.

67 Chaytor, “Narratives of Rape”; Bashar, “Rape in England.”

68 Bashar agrees that by the seventeenth century, rape is regarded more as a crime against the person than against property and that still “only the rapes that had in them some element of property, in the form of virginity, ended in the conviction of the accused” (“Rape in England,” pp. 41–42). Chaytor regards this language of property in the cases as a language of repair and distancing—part of a search for justice and control over violent sexual assault—rather than as a practical strategy (“Narratives of Rape,” pp. 385, 392–96).

69 For effeminacy as one of the classic attributes of tyranny, see Bushnell, , Tragedies of Tyrants, pp. 63–69Google Scholar.

70 Feldwick, Arlen, “Wits, Whigs, and Women: Domestic Politics as Anti-Whig Rhetoric in Aphra Behn's Town Comedies,” in Political Rhetoric, Power, and Renaissance Women, ed. Levin, Carole and Sullivan, Patricia A. (Albany, N.Y., 1995), pp. 227, 230–31Google Scholar; Stone, Lawrence, Broken Lives: Separation and Divorce in England, 1660–1857 (Oxford, 1993), pp. 27–29CrossRefGoogle Scholar.

71 One example of this type of slander is evident in Locke's code name for the Two Treatises: the doctor, employing double entendre, called his manuscript De Morbo Gallico—the French disease (see Peter Laslett, “Introduction,” in Two Treatises, by Locke, pp. 62–64). Also cf. Burnet, Gilbert, A Sermon Preached before the House of Peers in the Abbey of Westminster, on the 5th of November 1689. Being Gun-Powder Treason Day. As Likewise the Day of His Majesties Landing in England (London, 1689)Google Scholar, for this idea of tyranny as a French disease. There are further examples of sexual slander in the wild accusations against a tyrant rapist in A Friendly Debate between Dr Kingsman, a Dissatisfied Clergy-man, and Gratianus Trimmer, a Neighbor Minister (London, 1689), p. 58Google Scholar; and in Blount, Charles, An Appeal from the Country to the City, for the Preservation of His Majesties Person, Liberty, Property, and the Protestant Religion (London, 1679), p. 2Google Scholar.

72 See Nicholas Brady's dedicatory preface “To the Right Honourable Charles, Earl of Dorset and Middlesex,” in his Rape: Or the Innocent Impostors (London, 1692)Google Scholar; and see above p. 159 and n. 7.

73 DNB, s.v. “Brady, Nicholas.”

74 Brady deliberately emphasizes the fragility of a sovereignty based on the right of conquest, exposed as it is to conquest and defeat itself (Rape: Or the Innocent Impostors, pp. 43–44). This repudiation of conquest theory may be the contemporary political commentary offered by the play—perhaps Brady is pointing to William III's title by marriage and consent as well as by conquest. However, any association being made between William III and the play's Vandal king is ambiguous and dangerous since it would also entail an association with tyranny.

75 Ibid., pp. 5, 20.

76 Ibid., pp. 3, 13–14.

77 Ibid., pp. 4–5, 16, 20–21, 27.

78 Ibid., pp. 25–26, 29–30. This depiction of the rape as a property crime is also affirmed in the test devised for the falsely accused Agilmond. If he/she refuses to take these spoiled goods in marriage, his/her innocence will be proved. “His Royal Blood will prompt him to endure / Ten thousand Deaths, rather than marry one / That's ravish'd by another” (p. 34).

79 Ibid., p. 23.

80 Ibid., pp. 23–26, 52–55, and see above, pp. 177–78. There is no proof of penetration in the play, although the prominent focus on the dagger used by the rapist might be interpreted as a symbol of penetration.

81 Ibid., p. 49.

82 See Rudolph, Revolution by Degrees.