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

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.