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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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2 On distinctively English definitions of aristocratic status, see Bush, M. L., The English Aristocracy: A Comparative Synthesis (Manchester, 1984)Google Scholar. On the amorphous category of “gentlemen” and its expansion in these years, see also Heal, Felicity and Holmes, Clive, The Gentry in England and Wales, 1500–1700 (Stanford, 1994)CrossRefGoogle Scholar.

3 The phrases “servile disposition” and “slavish disposition” occur in a variety of early modern texts, but for uses specific to whipping's ability to change the self beyond those cited below, see, for example, Traninger, Anita, “Whipping Boys: Erasmus’ Rhetoric of Corporeal Punishment and Its Discontents,” in The Sense of Suffering: Constructions of Physical Pain in Early Modern Culture, ed. Frans van Dijkhiizen, Jan and Enenkel, Karl A. E. (Leiden, 2009), 39–57, at 49Google Scholar. For a discussion of the varieties of unfreedom and the often classical connotations of references to slavery in the period in which the Atlantic system of racialized chattel slavery was just starting to develop, see Guasco, Michael, Slaves and Englishmen: Human Bondage in the Early Modern Atlantic World (Philadelphia, 2014)CrossRefGoogle Scholar.

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6 Beier, A. L., Masterless Men: The Vagrancy Problem in England, 1560–1640 (London, 1985), 158–59Google Scholar; Griffiths, Paul, “Introduction: Punishing the English,” in Penal Practice and Culture, 1500–1900: Punishing the English, ed. Devereaux, Simon and Griffiths, Paul (Basingstoke, 2004), 135Google Scholar; Paul Griffiths, “Bodies and Souls in Norwich: Punishing Petty Crime, 1540–1700,” in Devereaux and Griffiths, Penal Practice and Culture, 85–120; Martin Ingram, “Shame and Pain: Themes and Variations in Tudor Punishments,” in Devereaux and Griffiths, Penal Practice and Culture, 36–62; Ingram, Martin, Carnal Knowledge: Regulating Sex in England, 1470–1600 (Cambridge, 2017), e.g., 378CrossRefGoogle Scholar. Geltner, Guy, Flogging Others: Corporal Punishment and Cultural Identity from Antiquity to the Present (Amsterdam, 2014)CrossRefGoogle Scholar also describes judicial whipping as primarily an early modern rather than medieval phenomenon. See also Postles, Dave, “Penance and the Market Place: A Reformation Dialogue with the Medieval Church (c. 1250–c.1600),” Journal of Ecclesiastical History 54, no. 3 (2003): 441–68CrossRefGoogle Scholar; and Minson, Stuart, “Public Punishment and Urban Space in Early Tudor London,” London Topographical Record, no. 30 (2010): 116Google Scholar. On the overlapping and mutually reinforcing links between the violence used in household discipline and the maintenance of public order, see Susan Amussen's classic essay, “Punishment, Discipline, and Power: The Social Meanings of Violence in Early Modern England,” Journal of British Studies 34, no. 1 (1995): 1–34. On the potential links between the turn to whipping, wounding, and so on in early modern punishment and its performance on the stage, see Covington, Sarah, “Cutting, Branding, Whipping, Burning: The Performance of Judicial Wounding in Early Modern England,” in Staging Pain, 1580–1800: Violence and Trauma in British Theatre, ed. Allard, James Robert and Martin, Matthew R. (Farnham, 2009), 93110Google Scholar.

7 This history is touched on in Mills, Robert, Suspended Animation: Pain, Pleasure and Punishment in Medieval Culture (London, 2005)Google Scholar. For biblical references to whipping, see, for example, Deuteronomy 25:2–3; 2 Samuel 7:14; Proverbs 19:29.

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9 See Kesselring, K. J., Mercy and Authority in the Tudor State (Cambridge, 2003)CrossRefGoogle Scholar.

10 Pym, John, The Speech or Declaration of John Pym (London, 1641), 7Google Scholar. John Lilburne would borrow this passage in his later The Legal Fundamentall Liberties of the People of England (London, 1649), 40.

11 On the ways in which gesture and comportment were thought both to construct and communicate facts about self and identity, see, for example, John Walter, “Gesturing at Authority: Deciphering the Gestural Code of Early Modern England,” The Politics of Gesture: Historical Perspectives, Past and Present, no. 203, issue supplement 4 (2009): 96–127, 125; and Michael Braddick, “Introduction: The Politics of Gesture,” The Politics of Gesture: Historical Perspectives, Past and Present, no. 203, issue supplement 4 (2009): 9–35.

12 On the reordering of early modern society, see, for example, Alexandra Shepard, Accounting for Oneself: Worth, Status, and the Social Order in Early Modern England (Oxford, 2015); Keith Wrightson, “‘Sorts of People’ in Tudor and Stuart England,” in The Middling Sort of People: Culture, Society and Politics in England, 1550–1800, ed. Jonathan Barry and Christopher Brooks (Basingstoke, 1994), 28–51.

13 On the later uses of penal whipping, see Morgan, Gwenda and Rushton, Peter, Rogues, Thieves, and the Rule of Law: The Problem of Law Enforcement in North-East England, 1718–1800 (London, 1998), 73, 132–38Google Scholar; Beattie, J. M., Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford, 2001), 286–87, 304–08, 446Google Scholar. See also King, Peter, Crime, Justice and Discretion in England, 1740–1820 (Oxford, 2000), 263, 267, 272–73Google Scholar; Sharpe, J. A., Judicial Punishment in England (London, 1990), 23–24, 7677Google Scholar; Greg Smith, “‘Civilized People Don't Want to See That Sort of Thing’: The Decline of Physical Punishment in London, 1760–1840,” in Qualities of Mercy: Justice, Punishment, and Discretion, ed. Carolyn Strange (Vancouver, 1996), 21–51; Robert Shoemaker, “Streets of Shame? The Crowd and Public Punishments in London, 1700–1820,” in Devereaux and Griffiths, Penal Practice and Culture, 232–57; Hitchcock, Tim and Shoemaker, Robert, London Lives: Poverty, Crime and the Making of a Modern City, 1690–1800 (Cambridge, 2015), 246–67, 363–64CrossRefGoogle Scholar. For discussions leading to the final end of corporal punishment in the court system, see the precipitating “Cadogan Report”: Committee on Corporal Punishment, The Report of the Departmental Committee on Corporal Punishment, 1938, Cmd. 5684.

For the links made in later years between sexual elements of whipping and corrective lashing in the home, public schools, courts, prisons, and the military, see Gibson, Ian, The English Vice: Beating, Sex and Shame in Victorian England and After (London, 1978)Google Scholar. George Ryley Scott's The History of Corporal Punishment: A Survey of Flagellation in Its Historical, Anthropological and Sociological Aspects (London, 1938), sometimes cited as an authority, was written as an intervention in early twentieth-century discussions about abolishing penal whipping, with arguments for its roots in the masochistic drives being promoted by civilization and for its effects in generating unhealthy sexual fixations.

14 This conclusion is based largely on absence and implication, unfortunately. In their history of early English law, Frederick Pollock and F. W. Maitland do note whipping, in passing, as one possible punishment for petty larceny: The History of English Law before the Time of Edward I, 2 vols. (Cambridge, 1969), 2:497. Studies of court records rarely reveal its having been used, however. See, for example, Jones, Karen, Gender and Petty Crime in Late Medieval England: The Local Courts in Kent, 1460–1650 (Woodbridge, 2006), 47Google Scholar, where Jones notes that fines were the most common punishments for theft in her records; Carrel, Helen, “The Ideology of Punishment in Late Medieval English Towns,” Social History 34, no. 3 (2009): 301–20CrossRefGoogle Scholar, which suggests that the pillory and stocks were the most frequently used form of corporal punishment; MacIntosh, Marjorie Keniston, Controlling Misbehaviour in England, 1370–1600 (Cambridge, 1998), 113–14CrossRefGoogle Scholar, which notes only one pre-sixteenth century whipping, and that for adultery rather than theft, in what seems to have been more an ecclesiastical than a secular court (in Durham, where the lines between the two were more blurred than elsewhere). In Crime and Conflict in English Communities, 1300–1348 (Cambridge, MA, 1979), 124, 150, 157, Barbara Hanawalt discusses conviction rates for larceny, but not the punishment, and only mentions whipping in the context of a mother fatally disciplining a child and for the belief that it could help restore sanity to the mad.

15 Murray Chapman, ed., Montgomeryshire Court of Great Sessions: Calendar of Criminal Proceedings, 1541–1570 (Aberystwyth, 2004), nos. 653, 658, 916, 928, etc.

16 J. S. Cockburn, Calendar of Assize Records: Surrey Indictments, Elizabeth I (London: HMSO, 1980). Twenty-two of the cases had no notation of the punishment imposed. In these same records, forty-nine men and women were sentenced to be whipped for vagrancy.

17 For context, see, for example, Todd, Margo, Christian Humanism and the Puritan Social Order (Cambridge, 1987)Google Scholar; Paul Slack, The English Poor Law, 1531–1782 (Cambridge, 1995); and Marjorie McIntosh, Keniston, Poor Relief in England, 1350–1660 (Cambridge, 2012)Google Scholar. For the linking of “sin” and “crime” in early modern England, see Cynthia Herrup's classic essay “Law and Morality in Seventeenth-Century England,” Past and Present, no. 106, (1985): 102–23.

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.

30 Bethlem Museum of the Mind, Beckenham, Bethlem Royal Hospital Archives, Court Books of the Governors of Bridewell and Bethlem Hospitals, BCB-01, Bridewell Minute Book, fols. 2, 6, 10, 10d, 12d, http://archives.museumofthemind.org.uk/BCB.htm.

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.

33 North Riding Quarter Sessions, 1:133, 136.

34 For such distinctions, see Garnsey, Peter, Social Status and Legal Privilege in the Roman Empire (Oxford, 1970), 139–47Google Scholar.

35 T. E. Hartley, ed., Proceedings in the Parliaments of Elizabeth I, 3 vols. (Leicester, 1981–95), 3:150.

36 BL, Harley MS 389, fols. 48d–49, 61.

37 Commons Debates, 1621, ed. W. Notestein, R. H. Relf, and H. Simpson, 7 vols. (New Haven, 1935), 6:118–19. See also TNA, SP 14/120, fol. 111; TNA, SP 14/128, fol. 95; J. V. Lyle, ed. Acts of the Privy Council, vol. 37 (1619–21) (London, 1930), 373–74.

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.

40 Commons Debates, 1621, vol. 5, 129.

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.

43 Journal of the House of Lords, 3:135, 137 (26, 28, 30 May).

44 On the 1621 Parliament and its context, see Russell, Conrad, Parliaments and English Politics, 1621–1629 (Oxford, 1979), at 85CrossRefGoogle Scholar.

45 Parliamentary Archives, HL/PO/JO/1/17A, draft of “An Act Concerning Petit Larceny and the Manner of Punishment of the Offenders Therein.” Note, too, that someone had prepared a draft bill to have people convicted of petty larceny sentenced to serve as slaves on public works, though it was probably not put before the House. TNA, SP 49/119, fols. 132, 131; Commons Debates, 1621, vol. 7, 54–55; see also K. J. Kesselring, “A Proposal to Enslave Petty Offenders (1621),” Legal History Miscellany, January 10, 2017, https://legalhistorymiscellany.com/2017/01/10/a-proposal-to-enslave-petty-offenders-1621/ .

46 A similar measure did pass in the 1623–24 Parliament: 21 James I c. 6.

47 TNA, SP 14/119 fol. 263; Foster, Elizabeth Read, The House of Lords, 1603–1649 (Chapel Hill, 1983), quotation at 73Google Scholar; Kane, Brendan, The Politics and Culture of Honour in Britain and Ireland, 1541–1641 (Cambridge, 2010), 210–12Google Scholar.

48 For the quotation and background on the court, see William Hudson, “A Treatise of the Court of Star Chamber,” in Collectanea Juridica, ed. Francis Hargrave (London, 1792), 2.

49 Guy, John, The Cardinal's Court: The Impact of Thomas Wolsey in Star Chamber (Hassocks, 1977)Google Scholar and Guy, John, The Court of Star Chamber and Its Records to the Reign of Elizabeth I (London, 1985)Google Scholar. See also works by T. G. Barnes, including “A Cheshire Seductress, Precedent, and a ‘Sore Blow’ to Star Chamber,” in On the Laws and Customs of England, ed. Morris S. Arnold et al. (Chapel Hill, 1981), esp. 361–62 for a note on damages.

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.

51 DUL, Add. MS 329, fol. 198.

52 Historical Collections of Private Passages of State, ed. John Rushworth, 8 vols. (London, 1721), 3:appendix, 18–19.

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.

70 Lilburne, John, A Worke of the Beast (Amsterdam, 1638)Google Scholar; Lilburne, John, The Christian Mans Triall (London, 1641)Google Scholar. On Lilburne, see Braddick, Michael, The Common Freedom of the People: John Lilburne and the English Revolution (Oxford, 2018)Google Scholar; Gregg, Pauline, Free-Born John (London, 2000)Google Scholar; and works by Rachel Foxley, for example, The Levellers: Radical Political Thought in the English Revolution (Manchester, 2013).

71 Henry E. I. Phillips, “The Last Years of the Court of Star Chamber,” Transactions of the Royal Historical Society, 4th series, no. 21 (1939): 101–31. See also W. J. Jones, Politics and the Bench: The Judges and the Origins of the English Civil War (London, 1971), 104–6. In his discussion of Star Chamber's demise, Ryan Patrick Alford in “The Star Chamber and the Regulation of the Legal Profession, 1570–1640,” American Journal of Legal History 51, no. 4 (2011): 639–726, emphasizes resistance to the court's expanding, expansive jurisdiction over the legal profession.

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), 9294Google 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): 126CrossRefGoogle Scholar.

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Law, Status, and the Lash: Judicial Whipping in Early Modern England
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