Is it a footballer? Is it an MP?
No… it’s a Superinjunction!
Yes, the infamous writ of Shut-The-Hell-Up is back. Someone’s been bad. But because they’re rich we’re not, repeat not, allowed to talk about it. Unless we’re in Parliament, or Scotland, or anywhere in the world part from England and Wales.
The superinjunction is a fascinating concept. Setting aside the legal and moral questions, it’s fundamentally aimed at preventing someone’s shame and embarrassment. It’s a startling reminder that we’re not that different to those who came before us. Public shame is a powerful tool, as it always has been.
In fact, lots of the terms we use for this sordid world of embarrassment come from our past. Those who misbehave are ‘pilloried’. Twitter mobs – like the revolting peasants of old – reach for their ‘pitchforks’. We have ‘witch-hunts’.
There’s at least one big difference, though.
In the past, the job of exposing and punishing of sexual immorality was one for Church and state. Now, we’re civilised enough to leave it to tabloid journalists.
Up to the 17th century, in fact in some areas well into the 18th, there were specific law courts which dealt with cases of sexual ‘immorality’. These were the Church Courts.
Under the control of the bishops, the Church Courts were there to uphold canon law. This was a pretty complex mandate. They had a civil side, which heard suits about marriage (they could, for example, grant a form of separation) and defamation, as well as probate cases.
But they also had a disciplinary side, which upheld the dignity of the Church, the dignity of churchmen, and the morals of the laity.
This was a wide remit, and it means that the records of the Church Courts make for vivid and fascinating reading. They tell us of raucous rectors and vivacious vicars. They tell us about the kinds of stuff people got up to on Sundays and festivals, those things that some members of the clergy heartily disapproved of: dancing, football, gambling, drinking in the alehouse during divine service.
As with most courts from the period they spent some of their energies dealing with general troublemakers, too, like the delightful-sounding Joan Harman of Graffham, Sussex, prosecuted in 1621 for being, ‘an incontinent [i.e. loose] person, a gadder up and down, a common carry-tale, a maker of lies, one that hath contracted herself to 2 or 3 knaves and is married to none, but still continueth her bad courses.’
Or Christopher Hall and Richard Earicke of Enmeth, Norfolk, busted in an alehouse on the Sabbath in 1618, and who then fell to blows when ‘the said Christopher Hall turned up his arse against the said Richard Earicke and in opprobrious manner willed him to kiss his arse, which words he the said Christopher Hall iterated sundry times’.
They even give us one of the earliest ever records of the game of cricket, when two men were hauled up for playing it in the grounds of Boxgrove Priory, Sussex, one Sunday in 1622. That they did so on the Sabbath was just part of the problem; they’d also smashed the church windows, and clattered a young girl’s head.
But it’s the courts’ role in policing peoples’ sex-lives that’s most striking. And it was this which explains how, with a cheeky irreverence, they became widely known as the ‘Bawdy Courts’, or – wonderfully – the ‘Bum Courts’.
It all depended on one of the crucial legal rules of the day: that all sex outside marriage was illegal. And this, in turn, meant that the courts spent much of their energy recording instances of ‘fornication’ (sex before marriage) and ‘adultery’ (extra-marital sex).
The records make for some eye-popping reading, complete with illicit liaisons, affairs, and suspicious meetings in improbable places.
In 1621, in Sutton, Sussex, for example, the life of Martha Rood came under scrutiny: ‘because she is reported by common fame very incontinently to live. And also John Gunter, for the common fame is that the said John Gunter and Martha Rood to make continually one bed and lie continually together. Besides that, common fame is that the said Martha Rood and Richard Furlonger do suspiciously resort under hedges and ditches.’ Naughty.
Then there were people like Alice Rowsham of King’s Sutton, Northants, who admitted in 1630 to an affair of several months with Thomas Charles of Neithrop, leading to her getting pregnant out of wedlock.
Thomas, she said, ‘had the carnal knowledge of her body the first time upon Shrove Tuesday last’ at the house of Widow Long where they worked as servants; and he’d slept with her ‘divers times since, and the last time upon Wednesday before Michaelmas’. He denied it, though, and the court cited two other men for incontinence with Alice. One of them, Matthew Long, son of Alice’s boss, told the court that although it was ‘commonly reported and suspected’ that he had carnal knowledge of her body, he ‘denieth that he committed the act of incontinence with her’. He did, however, confess ‘that he did kiss and handle her by her secret parts’.
And there are countless cases of master-servant relationships, too. In 1622, William Dyer of Racton, Sussex, was in trouble ‘for incontinency with his maidservant, whom he hath now married’. In 1614, John Coventry of Enmeth, Norfolk, was presented for ‘that he did commit fornication and had carnal copulation on the body of Mary Wright late his servant’, whom someone else had now married.
And occasionally we glimpse some quite relaxed attitudes to sex. My favourite case, discovered by Martin Ingram, is that of Thomas Oven, who in 1627 spied John Bathe sleeping with another man’s wife under a Wiltshire hedge. Unfazed by this surprising discovery, he simply walked past, breezily bidding the couple to ‘grind on’.
With all these juicy tales, perhaps we should conclude that 17th century England was actually, surprisingly, quite sexually liberated.
But there’s a problem with this.
There are stats: if this was such an incorrigible world of smut, why were only between around 2-5% of people born out of wedlock? Yes, around a fifth of first-borns were conceived before their parents’ wedding, but this probably just comes from the wide acceptance (if not by many churchmen) of betrothed couples getting prematurely jiggy.
Then there is the sheer tameness of many of the ‘offences’. Like that of Joan Thorne, a married woman of Ely, who was brought to court ‘for behaving herself most uncomely in the fen’, while out dressing turves, simply ‘by stripping off herself into her smock’. This was deemed ‘a thing very unseemly before men, & very much offensible unto women that did see the same’.
Looking at the diaries and autobiographies of the age, it’s actually quite astonishing how little people wrote about their sex lives. Hardly anyone mentioned it. Even Pepys, who was relatively candid, and who was a serial womanizer, wrote in a shorthand code he assumed no-one would ever break. And he kept the the really lewd bits in pidgin French.
Yes, on at least one occasion he bought a pornographic book (from a shop on the Strand), and – yes – perhaps we should be cynical about his claim that it was ‘not amiss for a sober man once to read over to inform himself in the villainy of the world’. But he was so ashamed of himself that he eventually burnt the offending book (though not before spending some quality after-dinner alone-time with it).
More the point – and perhaps this is the biggest thing of all – the Church Courts themselves depended on cases being brought to them by ordinary people. Their very operation depended on the relatively conservative morals of the peasantry.
And that brings us right back to shame.
The usual punishment given out for sexual transgressors was to shame them. They would be forced to make some kind of public repentance, perhaps sitting in a special seat in the church during divine service, or standing in a white sheet on market day.
Given that this was a society that whipped those caught begging and sometimes hanged teenagers for minor theft, this might seem astonishingly mild. But this is to miss the point. It was all supposed to be deeply embarrassing. And it was. So much so that people sometimes begged to be let off for fear of the lasting shame it would bring.
In 1629, for example, a Banbury man paid a swingeing £3 fine for fornication, having pleaded with the court that public punishment ‘would be a great disparagement unto him in respect for preferment in marriage and, in all likelihood, an occasion of his loss of his present service and also of his friends’ goodwill and inclination towards his future preferment’. It was even claimed, on behalf of John Musgrave of Doddington, Cambridgeshire, that his mother would fall to ‘extremities’ were he to be subject to public shame. She had, after all, ‘swooned almost irrecoverably when she first heard him convicted’.
In many cases, the courts were actually sympathetic and allowed people to do their penance in private: a sort of village equivalent of the modern-day superinjunction.
It speaks of a world in which people were taught to feel deep embarrassment for sexual misdemeanours.
Our shaming culture, then, is old. England of the 17th century was uncomfortable with sex, though they loved to moralise about it. The Church Courts have gone, but we haven’t, I don’t think, fallen especially far from this tree.
But at least one thing has changed since the days of the ‘Bum Courts’, and not just the respective roles of Church and state.
In the past, the ultimate aim of the sanctions meted out by Church Courts was repentance and, ultimately, forgiveness. Once people had done their time standing in a white sheet, they were symbolically readmitted to the community. Ultimately, forgiveness and reconciliation were the aim.
I’m not so sure, in the internet age, that this is still the case.