6
Recorded in the Common Pleas roll for Michaelmas term 1421 is a trespass case in which Isabella, a ‘silkwoman’ of Salisbury, was accused, with her husband, John Clerk, of having beaten Agnes Howedon, her apprentice. This beating was alleged to have happened on 7th December, 1419, and to have caused Agnes damage worth £20.1 John and Isabella, however, asserted that they had done nothing forceful, wrong or against the king’s peace. Their version of events was that Agnes had secretly taken merchandise from John’s shop, to one Gregory Fisher’s house. On 7th December, they had found Agnes making off with goods, and had beaten her for her insolence and her wrongs. They had done this with a small willow rod, on her limbs, and in the appropriate manner for their master-apprentice relationship. Agnes, however, said that they had hit her with rather more hefty sticks or staves beyond the norm for chastisement. John and Isabella denied this, Agnes maintained it and all agreed that the matter should go to a jury.
1 CP 40/643 m. 108 (IMG 195).
There is much that we will never know in terms of the truth of this and many such stories told in the formulaic records of the common law – thus, it is possible that none of this happened, and supposing that something along these lines did happen, it will remain a mystery whether Isabella and John employed the customary rod or more menacing and damaging implements to beat Agnes – but there is undoubtedly more which can be done with what is left to us in terms of filling out the picture of the medieval common law’s treatment of women as defendants. Even this one example raises a number of questions which have yet to be fully explored, and its juxtaposition of common law (the trespass case, and rules about the effect of marriage on responsibility and property) and local custom (apprenticeship rules, including the appropriate size of stick for chastisement, and jurisdiction relating to recovery of misappropriated goods) remind us of common law’s existence within a pattern of other bodies of regulation.
Treatises such as Glanvill and Bracton gave limited space to the issue of women’s legal responsibility for their misdeeds, and, indeed, their descriptions often assume a male offender.2 The classic accounts of legal history, have not expanded much on this lack of interest in women’s offending.3 Women defendants are certainly outnumbered by men in court records (with proportions varying depending on period, methods of counting and type of offence).4 It is, however, by no means an oddity to find a woman accused of an offence or wrong, either with her husband, as here, or alone. This chapter will consider the scope of cases brought against women, and how the common law constructed and accommodated them in a system designed around the male offender. It will ask to what extent there were different ideas of male and female responsibility, what were the impacts of marriage, pregnancy and the gendered nature of routes to exculpation or the avoidance of punishment5 and will argue for caution in adopting the idea that women were ‘indulged’ by the system, as some past work has claimed.
2 Glanvill XIV, p. 1; Bracton II, pp. 353, 428.
3 Hyams, ‘Maitland’, pp. 227–30. Baker, Introduction, cc. 29 and 30.
4 See above p. 81–2.
5 Walker, Crime, Gender and Social Order, p. 75.
Incidence of accusations
Women defendants are present in smaller numbers than men in records of both ‘civil’ and ‘criminal’ cases. It is not, of course, possible to assert that this represents accurately the levels of offending by women (for there is always a ‘dark figure’ of undetected or unreported, and thus unrecorded, crime to factor in), nor even to make very clear statistical claims about changes over time, since the nature of surviving records does not allow for comparisons of like with like, but the bald finding that women are less frequently mentioned as defendants, across all series of records, is robust.6 In ‘civil’ cases, this may be explained in part by the rules relating to succession to land and the effect of marriage on property holding, which those shaping the common law chose to adopt and retain. These rules made women less likely to be in control of land or personal property so as to be sued alone in respect of it, and meant that wives, unamenable to processes or outcomes involving the seizure of assets or money payments, were not worth suing without their husbands.7 In ‘criminal’ matters, there were also differing levels of accusation of men and women, though the insistence on placing a male relative or husband between women and the legal system was much less strong than it was with regard to ‘civil’ cases. Reasons for the lower level of ‘criminal’ accusation of women must therefore be sought in social conditions and ideas and in their interaction with the developing common law.
6 See, e.g., Clive Coleman and Jenny Moynihan, Understanding Crime Data: Haunted by the Dark Figure (Buckingham and Philadelphia, PA, 1996); Butler, ‘Violence and Murder’, p. 333, and above, 81–2.
7 See Baker, Introduction, pp. 285–8, 523–8.
There was one accusation of ‘crime’ which could not be made against women: they could not be accused of rape as a principal (though, as the example at the beginning of Chapter 5 shows, they could be seen as an accessory of some sort in these cases). Aside from this, however, women were accused of almost the same range of offences and wrongs as men, including offences of physical aggression from assault, through false imprisonment and mayhem, to homicide, including offences against men.8 Hanawalt, noted that ‘over half of the felonies women committed involved violence to persons and property’.9 The sight of medieval women appearing as defendants in cases of violence ‘which must have required masculine strength and an absence of all the qualities now considered feminine’ was enough to cause horrified fascination in a Victorian barrister and legal historian, Luke Owen Pike. Having seen such records, he regarded all medieval women but those of ‘very highest rank’ as ‘almost as brutal as their husbands … strong in muscle but hard of heart – more fit to be the mothers of brigands than to rear gentle daughters or honest sons’.10 The dramatic horror and confusion of this response is also seen in Pike’s recreation of a husband-killing, highlighting the fact that the accused woman’s name was Isolda, with all the resonances which come to that for a scholar of the medieval literary tradition, and also casting her as a ‘female Othello’, before ascribing her flight to a (feminine) failure of courage at the last, after she had ‘shown the energy and power of a man’ in committing the crime.11 Such a view of (most) women as shockingly brutal fitted in well with his overall idea of patterns of change in this area, seen in his book’s subtitle Illustrating the Changes of the Laws in the Progress of Civilisation. While we no longer look back at medieval records of accusations against women through the distorting lens of Victorian gender ideals, it is still important to note that neither the ideas about female weakness clearly also present in strands of medieval thinking, nor the view that women were less likely to be physically aggressive than were men, tending instead towards verbal onslaughts, nor a suggested disinclination of men to bring to official attention women’s violence against them, worked to rule out the possibility that women would be accused or convicted, of violent, physically demanding offences.12 Though they were more often accused of the most serious violence along with an accomplice rather than individually (Hanawalt’s study of coroners’ rolls from the late thirteenth and fourteenth century showing that they were accused of killing with an accomplice in 64% of cases while males were accused of killing with an accomplice only 25% of the time, and were often procurers or abettors rather principal offenders),13 they were not thought completely incapable of dangerous, forceful conduct. They were not regarded as too weak ever to attack males, nor too inhibited to engage in activity such as mutilation or violence against men’s genitals (though the latter was a matter regarded with particular horror).14 It was envisaged that they might be capable of misconduct regarded as treason,15 or which could endanger the ‘state’ or public order.16 Women were accused of most other ‘criminal’ offences: a few being accused of arson, many more accused of theft or ‘offences of dishonesty’. In her study of fourteenth-century gaol delivery rolls, Hanawalt noted the relatively high level of women accused of burglary, and that ‘larceny was the most common crime among female offenders’.17 There were also vast numbers of women accused of economic or ‘regulatory offences’ as well as some more unusual accusations (for common law jurisdictions) such as running a brothel and witchcraft.18 Despite an enduring myth of their immunity from common law prosecution for the killing of babies and children less than a year old, which is stressed by the Mirror, as Butler has shown, there are certainly cases of homicide relating to small infants.19 In considering level and type of accusation made against women, it should be borne in mind as ever that the common law was not the only forum for accusations of offences, and gender balance might be somewhat different in other courts. For example, though there was attention to prostitution near royal residences and, to some extent, in Southwark, accusations relating to the selling of sex in itself were generally left by the common law to other authorities, reducing the proportion of women who might otherwise have appeared as defendants in common law records.20 ‘Civil’ wrongs of which women were accused include trespass of various sorts, trespass on the case, abduction of heirs, disseisins, non-payment of debts, nuisances, wrongdoing relating to their holding of land or franchise rights and misbehaviour with regard to land held (e.g. waste).21 All women might be forced to defend themselves, though different sorts of dispute or offence might be more likely to be associated with those higher or lower in the social scale. Very few members of higher social orders were accused of ‘run of the mill’ felonies.22 but even queens regnant and dowager could be sued – despite the argument of Isabella of France that as a ‘person of dignity and excellence’, she did not need to respond to a writ of dower.23
8 See, e.g., trespasses against a hermit and a chaplain: CP 40/421 m. 4 (IMG 9) KB 27/177 m. 50 (IMG 5618); false imprisonment of a man: KB 27/432 m. 8d (IMG 203); mayhem: KB 27/401 m. (IMG 6145); homicide: JUST 1/383 m. 36 (IMG 1539); KB 27/178 m. 62 (IMG 5995), ‘infanticide’: JUST 1.383 m. 8d (IMG 1799).
9 Hanawalt, ‘The Female Felon’, p. 254.
10 L.O. Pike, A History of Crime in England (London, 1873), vol 1, p. 255.
11 Op. cit., 256; the case is JUST 2/26 m. 1 (IMG 3).
12 See, e.g., Kamali, Felony, p. 144; Teresa Phipps, ‘Misbehaving Women: Trespass and Honor in Late Medieval English Towns’, Historical Reflections 43 (2017), 62–76, 67; Miriam Műller, ‘Social Control and the Hue and Cry in Two Fourteenth-Century Villages’, JMH 31 (2005), 29–53, 42; Karen Jones, Gender and Petty Crime in Late Medieval England: The Local Courts in Kent, 1460–1560 (Woodbridge, 2006), pp. 92–3.
13 Hanawalt, ‘Violent Death’, p. 306.
14 Post-mortem mutilation: JUST 1/804 m. 69 (IMG 2436). Attacks on men’s genitals, JUST 3/89 m. 1 (IMG 234); JUST 1/ 569A m. 9 (IMG 8133); JUST 1/1109 m. 30d (IMG 8870). P & M II, p. 484; Deuteronomy 25:11.
15 See, e.g., CPR 1401–5, p. 480; CPR 1467–77, p. 190; Bellamy, Law of Treason, pp. 203, 126–7, 236–7; J. Freeman, ‘Sorcery at Court and Manor: Margery Jourdemayne, the Witch of Eye’, JMH 30 (2004), 343–57, 343; Simon Walker, ‘Political Saints in Later Medieval England’, in The McFarlane Legacy: Studies in Late Medieval Politics and Society, ed. by Richard Britnell and Anthony Pollard (Stroud and New York, 1995), 77–106, 88–9; L. Diaz Pascual, ‘Jaquetta of Luxembourg, Duchess of Bedford and Lady Rivers c 1416–72’, The Ricardian 21 (2011), 67–91, 67; Kathleen Kamerick, ‘Tanglost of Wales: Magic and Adultery in the Court of Chancery circa 1500’, Sixteenth Century Journal 44 (2013), 25–45; C1/267/41; C1/229/20.
16 See., e.g.: CCR 1323–1327, 203; CPR 1324–1327, 21; CPR 1401–5, pp. 516–17; CPR 1301–7, pp. 270–1; CPR 1327–30, pp. 24, 213; CPR 1327–30 pp. 221–2; CPR 1361–4 p. 358; KB 9/72 mm. 1–5, 11 and 14; KB 27/562 Rex m. 22.] 56–7; KB 27/562 Rex m. 1(IMG 186). KB 27/482 Rex m. 39d. (IMG 447); Samuel K. Cohn jr, Popular Protest in Late Medieval English Towns (Cambridge, 2013), pp. 7, 185, 20; 208, 212, 24; 196, 251, 318; 304, 320; Sylvia Federico, ‘The Imaginary Society: Women in 1381’, JBS 40 (2001), 159–83; Simon Walker, ‘Rumour, Sedition and Popular Protest in the Reign of Henry IV’, P & P 166 (2000), 31–65.
Women accused of slander of a judge: Seipp 1356.134ass; 58 SS App XVIII pl. cxxxvi.
17 Arson, e.g., 83 SS p. 71, no 687; JUST 1/307b m. 6d. (IMG 9137): KB 27/884 m. 11 (IMG 234). Theft offences, e.g., KB 27/866 m. 9; JUST 1/409 m. 11 (IMG 35). Burglary: JUST 1/409 m. 10 (IMG 21).
Hanawalt, ‘The female felon’. Counterfeiting money: JUST 3/43/2 m. 1 (IMG 135).
18 Seabourne, Royal Regulation cc. 3 and 4. See also, e.g., CP 40/581 m. 129 (IMG 263), CP 40/717 m. 482 (IMG 963). Brothel: KB9/363 m. 38 (IMG 85); KB 9/365 m. 12, (IMG 24): KB 9/361 m. 39 (IMG 79). Selling five-year-old girl: KB 27/515 m. 3d (IMG 294). P & M II, p. 552. Witchcraft: above note 15.
19 Mirror, book IV c. 16; Cleveland, Woman under the English Law, p. 96; Sara M. Butler, ‘A Case of Indifference? Child Murder in Later Medieval England’, Journal of Women’s History 19 (2004), 59–82.
20 See, e.g., CPR 1272–81, p. 585; Fleta, book 2 c. 5; CPR 1367–70, p. 449, CPR 1370–74, p. 14. KB9/366 m. 51 (IMG 102); KB 9/389 mm. 48, 49, 49d (IMG 86, 98, 99); Karras, Common Women, pp. 10–12, 21, 41, 150; J.B. Post, ‘A Fifteenth Century Customary of the Southwark Stews’, Journal of the Society of Archivists (1977), 418–28; Karras, Sexuality, p. 123; CP 40/517 m. 440 (IMG 968), Seipp 1456.122abr; C 16/489 m. 13d, CPR 1454–61, p. 610; SC8/73/3626 SC 8/27/1309.
21 See, e.g., knowingly selling putrid ale: KB 27/590 m. 36 (IMG 94); trespass: JUST 1/1055 m. (IMG 3112); KB 27/274 m. 24 (IMG 49); disseisin: Seipp 1342.098rs, 1342.281ass; Dower: JUST 1/804 m. 20 (IMG 2328); writ of right: JUST 1/804 m. 4d (IMG 2465); writ of entry: JUST 1/804 m. 17d (IMG 2493); Quo waranto (women are a very small minority here): JUST 1/804 m. 30 (IMG 2347); JUST 1/804 m. 36 (IMG 2360); JUST 1/804 m. 5d (IMG 2468); JUST 1/804 m. 24 (IMG 2337); nuisance: JUST 1/804 m. 7d (IMG 2473); eloigning heir: JUST 1/985 m. 14 (IMG 797).
22 Hanawalt, ‘Violent Death’, p. 308, notes that few members of upper orders were accused of homicide.
23 Seipp 1336.085.
In relation to those offences in which it did take an interest, the common law had quite a substantial reach, its constructions of responsibility for offences having a place for both ‘principal’ and ‘accessory’.24 This was important to women’s liability, as women might be accused of committing a crime alone or doing so with other offenders, of participating directly but also of a variety of ‘accessory’ culpability, by encouraging, procuring, conspiring or consenting to an offence,25 or they might be accused of receiving goods or offenders or assisting offenders after the offence.26 Their alleged participation might involve physical assistance, as in the case of a man’s successful plaint that a woman had held him by the hair while another man cut off his arm,27 or they might be regarded as accessories in relation to words alone rather than any more physical intervention.28 They might themselves be said to have been incited to commit a crime, though this was less frequent.29 One of the more unusual cases of women being accused as accessory to homicide involved a woman, Isabella, giving a knife to her deaf husband, Eborard le Barbur, and making signs for him to kill another man, William Skynner, which he is recorded as having done.30 The fact that the common law entertained accusations of accessories meant greater likelihood of women being accused. For example, as noted above, though they could not be accused of felonious rape, they could be accused as an accessory to rape.31 Few such allegations show the accused women in such a prominent role as that in an indictment of a woman, one Matilda Whorewell, for helping Adam, a ‘leprous man’, to rape her ‘beautiful’ servant, Margaret, since Matilda herself was not prepared to take his money and have sex with him. Matilda was alleged to have led Adam to the room where Margaret was sleeping and locked the pair into the room, where Adam raped Margaret with particular violence, so that she died of the effects of this shortly afterwards.32 By way of contrast, there are some rather ill-defined accusations of women’s incitement to kill, which tend to indicate that accusations that offences were committed at the behest of a woman might be formed on fairly tenuous bases, perhaps demonstrating the influence of misogynist tropes of women’s scheming malevolence,33 such as that in the Dialogue of the Exchequer, which emphasised the role of women in inciting men to wrongdoing.34
24 Kamali, Felony, p. 79.
25 See, e.g., JUST 1/804 m. 53 (IMG 2393); KB 27/623 m. 14 (IMG 209); JUST 1/303 m. 56 (IMG 8755); KB 27/294 m. 26 (IMG 404). KB 27/717 Rex m. 6d (IMG 553). Allegations of ‘counselling’ others to commit an offence: JUST 1/996 m. 23 (IMG 145); JUST 1/632 m. 21d (IMG 885) and JUST 1/635 m. 20 (IMG 704); KB 27/715 Rex m. 1 (IMG 156). ‘Consenting’ to offences, see JUST 1/1108 m. 9d (IMG 8697), JUST 1/486 m. 1 (IMG 2717). For ‘procuring attack’ by one man on another: JUST 1/1032 m. 1d (IMG 2695). ‘Lady’ ordering a man’s beating, then receiving the offender: JUST 1/764 m. 1 (IMG 4928). Women’s words blamed for male seditious speech, though the man was held responsible: KB 27/564 Rex m. 12 (IMG 175).
26 Receiving stolen goods: KB 27/294 m. 31 (IMG 414). Receiving offenders: JUST 1/804 m.47d (IMG 2548); KB 27/518 m. 26 d (IMG 523); JUST 1/804 m. 73d (IMG 2606). Taking food and drink to robbers (acquitted): JUST 1/1032 m. 6 (IMG 2693). Man receiving his felon wife: KB9/366 m. 14 (IMG 48).
27 KB 27/247 m. 14 (IMG 29).
28 Kamali, Felony, pp. 212–16, 233; Bracton II, p. 340; Mirror book I c. 9.
29 Women incited to kill: KB 27/560 m. 57d (IMG 359); KB 27/559 m. (IMG 159).
30 JUST 1/286 m. 11 (IMG 7327).
31 J. Carter, ‘Rape and Medieval English Society: The Evidence of Yorkshire, Wiltshire and London, 1218–76’, Comitatus 13 (1982), 33–63, 46; JUST 1/966 m. 32 (IMG 76). In the ‘ravishment’ context: Seipp 1369.070.
32 KB 9/167 m. 8 (IMG 17).
33 98 SS, p. 200. Words spoken by a woman said to have ‘moved two men to fight’: KB9/366 m. 31 (IMG 62). Female incitement as a literary trope: see, e.g., William Ian Miller, ‘Choosing the Avenger: Some Aspects of the Bloodfeud in Medieval Iceland and England’, LHR 1 (1983), 159–204, 178, 181.
34 Dialogus de Scacc. book II, c. 7.
In addition, the existence of liability for receiving felons or giving aid to outlaws, when combined with social facts, expanded the chances of women being accused of an offence. Hanawalt highlights receiving as particularly female, or of importance within accusations of female offending,35 and it may be significant that women are used as examples of ‘receivers’ in registers of writs, though men are usually used in relation to other offences.36 Given women’s subordinate place to husbands and male kin, it seems likely that they would have been under some pressure to receive male kin and connections on the run who came demanding shelter. Although there was certainly an idea that non-consent could negate their culpability, however, it is not clear that the threshold for their consent was very high.37 A woman receiving a male felon might also experience the ultimate ingratitude of his decision to turn approver and accuse her of the offence in an attempt to save his own neck.38
The system was clearly, and unsurprisingly, shaped with masculine norms of offending in mind. One small example of this may be seen in the fact that the formulae used in accusations of trespass included a stereotyped list of swords, bows and arrows. While women certainly used weapons to inflict injury, and there are well-known descriptions of exceptional women bearing weapons and armour, swords, shields, bows and arrows can fairly be classified as stereotypically masculine. It has been observed that there were differences between men and women in relation to training with weapons, amenability to being sworn to the assize of arms and involvement in hunting with bows or lances.39 Using the same, weapon-centred formula for both men and women did not, however, apparently seem to medieval common lawyers to be too incongruous. Weapon lists might eventually be changed to reflect the advent of firearms,40 but there was not felt to be a need to alter the wording for those whose bearing of arms would be less likely. This might not be a matter of practical importance – for there was a great deal of fiction in the weapons lists in any case – but it is an indication of the gendered assumptions and paradigms lying behind and within common law development.
35 Hanawalt, ‘Female Felon’, p. 131.
36 See, e.g., 87 SS pp. 101, 167. Note that the example of a receiver in 80 SS p. 338 is male.
37 Entries noting that W received felons against H’s wishes, or in his absence, see, e.g., JUST 1/409 m. 20 (IMG 43), 98 SS p. 168.
38 Woman hanged for receiving thief and pelf: JUST 3/48 m. 29 (IMG 152). See also (brother): JUST 3/1/1 m. 12. (IMG 30).
39 Given, Society and Homicide in Thirteenth Century England, p. 136. See also e.g. Bracton II, p. 32; James Blythe, ‘Women in the Military: Scholastic Arguments and Medieval Images of Female Warriors’, History of Political Thought 22 (2001), 242–69; Steven Gunn, ‘Archery Practice in Early Tudor England’, P & P 209 (2010), 53–81, 54; M.R. Evans, ‘Unfit to bear arms’’: The Gendering of Arms and Armour in Accounts of Women on Crusade’, in Gendering the Crusades, ed. by Susan B. Edgington and Sarah Lambert (Cardiff, 2001), pp. 45–58. Formulae: Milsom, ‘Trespass’, p. 203, ‘Swords, axes, bows and arrows’ CP 40/93 m. 14 (IMG 30); ‘swords, staves etc.’ KB 27/754 m. 47d (IMG 414); ‘swords, staves and knives’ CP 40/832 m. 322d (IMG 1539); CP 40/50 (1283) m. 17.
40 See, e.g., CP 40/882 m.308 (IMG 578).
In terms of the treatment of developments in the common law’s jurisdiction over the medieval period, accounts have often not mentioned the gendered nature of changes, even when they are quite stark. For example, a major ‘story’ of the medieval common law was the fourteenth-century expansion of trespass actions to encompass misconduct which was not really violent.41 Conventionally, from an internal, ‘doctrinal’ perspective on legal history, this is portrayed in the language of ‘rise’, ‘triumph’ and, in relation to the later part of the story, the heroic military metaphor of storming a citadel.42 This is to smooth over the many individual decisions involved in making such a change and expansion, and the potentially different impacts of changes. The actions in this expanded field were particularly likely to be related to male misconduct, regarding, as they did, wrongs done by those in positions not generally open to women, such as those of farrier, surgeon and carrier.43 It does appear worth considering that it may chime in with the suggestion of the later medieval period having seen an increasing masculinisation of the common law in terms of development in the courts themselves, with a focus on offences of particular relevance to men, while other offences which might be focused on women’s wrongdoing, women as subjects and suspects – such as scolding – were accommodated in other jurisdictions.44 At the same time, we have noted what seems to be a trend towards greater specificity in the inclusion of women in legislative pronouncements over the course of the later medieval period, and that plaintiffs were also most likely to be male; thus we cannot reduce the complex picture of differentiation and different treatment of men and women to points on a straightforward spectrum of advantage and disadvantage in the ‘position of women at common law’ over the medieval period. It can, however, be pointed out, first, that ideas about women and their treatment by the common law did not stand still in these centuries, and, second, that their position, complicating though it might be, must be considered as part of any overall statement about or narrative of developments in the jurisdiction.
41 Ibbetson, Historical Introduction, Part II.
42 See, e.g., Ibbetson, Historical Introduction, part II, c. 7; Baker, Introduction, p. 363.
43 Milsom, ‘Trespass’, e.g., p. 220.
44 Bardsley, Venemous Tongues, pp. 80, 82–9.
Escaping liability
There were various ways in which a person who had apparently committed an offence under medieval common law might avoid conviction or punishment. Trial could be avoided by claiming clergy, by fleeing to sanctuary or at least beyond the reach of the authorities, by failing to turn up for trial or escaping custody; in some cases, an out of court settlement would bring matters to an end. If the matter came to trial, following the early thirteenth-century introduction of jury trial for criminal cases, all accused persons could avoid a finding of guilt by refusing to plead and put themselves on the jury, though this would lead to harsh treatment designed to force submission.45 Despite a finding that the accused had carried out the action alleged, conviction or punishment might not follow, again, if clergy was claimed at a later stage, or if it was found that the action had taken place with some justification or excuse, in particular, in self-defence, by accident, as lawful arrest or chastisement, whilst too mentally disordered, or too young to be held responsible or if a pardon was obtained.46 It was not inevitable that a person regarded as having some sort of mental disturbance would avoid all punishment,47 and nor did minority mean that an offender would be left alone by the criminal justice system. Small girls might be pardoned any offence, for example, but they were not necessarily spared trial and conviction, as can be seen in a 1284 eyre case of a six-year-old girl sent back to gaol to await a pardon after she had caused a death by dropping a stone from a cliff.48 There was, however, an established understanding that culpability and punishment could be affected by these matters.
45 See, e.g., JUST 3/48 mm. 24, 27 (IMG 56, 62).
46 Green, Verdict, p. 30; Kamali, Felony, p. 87; Hurnard, King’s Pardon; Helen Lacey, The Royal Pardon: Access to Mercy in Fourteenth Century England (York, 2009), p. 69. Acquittals or pardons for offences by women not in their right mind: JUST 1/543 m. 55 (IMG 4173); KB 27/273 m. 29; JUST 1/159 m. 3d (IMG 9053); JUST 1/166 m. 28d (IMG 9739), JUST 1/374 m. 85 (IMG 2427); JUST 1/374 m. 52 (IMG 2357); JUST 1/375 mm. 52, 85 (IMG 2357, 2427); Hurnard, King’s Pardon, pp. 161–9; JUST 1/383 m. 11d (IMG 1712). Pardon for failed execution: CPR 1258–66, p. 342; JUST 1/486 m. 14d (IMG 2847): CPR 1281–92, p. 113.
47 A ‘rabid’ mother, who drowned her child and fled, was subject to the usual processes to try and get her to court: JUST 1/374 m. 25d (IMG 2490). Kamali, Felony, pp. 55, notes that those acknowledged to be insane might still be found a felon, especially in suicide cases.
48 Hurnard, King’s Pardon, p. 50; JUST 1/111 m 27; CPR 1281–92, p. 225 (pardon). Despite Coke’s assertions, there was not a unified ‘age of discretion’ for responsibility in medieval ‘criminal law’: A.W.G. Kean, ‘The History of the Criminal Liability of Children’, LQR 53 (1937), 366. The youngest girl I have found executed was 13: Seipp 1338.182rs. There is even less clarity regarding non-felonious cases: see Seipp 1456.072.
These escape routes showed some differences in availability and utility for men and women. Some were available to all, at least in theory, though they might accommodate men more easily than women. In other cases, it was explicit that women could not use a particular method of escaping the rigours of the common law. There were also escape routes, full or partial, which were only open to particular classes of women, relating to their pregnancy or marital relationship. Although this summary suggests a rough level of equality in the availability of legal ‘escape routes’, and the idea of women’s exclusion from some routes being balanced by their ability to use others has been embraced in some legal historical work, it seems to be the better view that the system did not ‘favour’ or ‘indulge’ them in this respect.
An example of outright exclusion of women from an ‘escape route’ can be seen in relation to ‘benefit of clergy’, under which the right of the common law to try or punish a person could be challenged. Benefit of clergy was available to men alone, since it was founded on the idea that the common law courts should not punish those in holy orders, and since women could not take holy orders.49 This sex-based distinction became more striking once common lawyers acquiesced in the artificial extension of benefit of clergy well beyond those men who could make a plausible claim to holy orders, in the fourteenth and fifteenth centuries, since there was no move to include women in the fictionalised scope of clergy, despite later suggestions of a woman apparently claiming clergy in the reign of Edward III.50 The results of this discrimination were particularly clear in instances in which a woman and a man were both found guilty of a criminal offence, and only the woman was executed, since he, but not she, could claim benefit of clergy.51
Approvers – those confessing their own guilt and accusing others of an offence, with a view to obtaining a conviction and thus not themselves being executed – were, at least from the thirteenth century, overwhelmingly male. The Mirror suggests a degree of doubt as to whether women could be approvers, both asserting that they could not, and also complaining as an abuse the alleged fact that they were in fact allowed to be approvers,52 but records of practice show very few women who may plausibly be so regarded.53 Although becoming an approver did not necessarily lead to safety, nor even to a much delayed execution, this is another interesting example of apparent sex-based differentiation, contributing to the unequal position of men and women in the medieval common law.54 It appears particularly stark in cases involving male and female offenders, when a man is able to become an approver while a woman is hanged at once.55 It should be noted that a medieval woman’s inability to act as an approver was not balanced by any immunity from being put at risk by the accusation of an approver.56 In addition, some pardons – those for military service – were only available to males,57 and while the theoretical basis of sanctuary did not import sex differentiation and while women did go to a church, confess and abjure, it has been shown that, in practice, women were markedly less likely to use sanctuary than were men, especially in the post-1400 period.58
49 A.K. McHardy, ‘Church Courts and Criminous Clerks in the Later Middle Ages’, in Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen, ed. by M.J. Franklin and C. Harper-Bill (Woodbridge, 1995), pp. 165–83, 165.
50 Baker, ‘The Law’s Two Bodies’, p. 40; L.C. Gabel, Benefit of Clergy in England in the Late Middle Ages (Northampton, MA, 1929), pp. 68, 87–90; Kesselring, ‘Bodies of Evidence’, p. 246, Mercy, p. 46; Baker, OHLE VI, p. 608; 129 SS, pp. 2, 47, 52, 59, 130, 155. Querying of women’s exclusion: 120 SS p. 91. For the suggestion of a woman claiming clergy, see, e.g., Hale, HPC II, c. 51. Citing a case from Fitzherbert’s Graunde Abridgement (Coron. H. 22 Edw. III p. 461) this states that ‘anciently’ professed nuns could have clergy. No such case has been traced. It may represent a misreading of KB 27/355 Rex m. 47d (IMG 8362), which is a male claim of clergy, but this is speculative. Nicholas Statham (attrib.), Abridgement of Cases to the End of Henry VI (Rouen, 1490), p. cxxvii, contains a note of a woman pleading clergy, but Pulton, De Pace Regis et Regni (1609) 207b, says no woman can have clergy, and cites the same reference to Fitzherbert.
51 See, e.g., JUST 3/167 m. 44 (IMG 96), Seipp 1408.017.
52 Mirror book V c. 17, book 1 c. 14.
53 For possible examples of women ‘approvers’, temp. Henry II, see Kerr, ‘Husband and Wife’, p. 222; Wiltshire GD and T has a rare later woman approver: no 42 and p. 12.
54 Kamali, Felony, p. 192; Anthony Musson, ‘Turning King’s Evidence: The Prosecution of Crime in Late Medieval England’, OJLS 19 (1999), 467–79.
55 Somersetshire Pleas (1242–3) p. 239 no 800 (male and female thieves).
56 See, e.g., JUST 1/1339 m. 9d (IMG 3138): approver accuses his female co-thief.
57 Bellamy, Criminal Trial, p. 143; Powell, Kingship, Law and Society, pp. 232–40; Lacey, Royal Pardon, pp. 100–6.
58 See, e.g., JUST 1/278 m. 85d (IMG 5490). Karl Shoemaker, Sanctuary and Crime in the Middle Ages 400–1500 (New York, 2011), p. 124; JUST 1/229 m. 14d; 1/614A m. 2; 1/230 m. 4d; 1/55 m. 21r; I/4 m. 29d; 1/614B m. 48d; 1/806 m. 17; JUST 1/4 m. 30d; JUST 1/174 m. 27d. Shannon McSheffrey, Seeking Sanctuary: Crime, Mercy, and Politics in English Courts, 1400–1550 (Oxford, 2017), p. 19; W.C. Jordan, ‘A Fresh Look at Medieval Sanctuary’, in Law and the Illicit, ed. by Karras, Kaye, Matter, (Philadelphia, 2010), c.1, p. 20. See, e.g., JUST 1/778 m. 59 (IMG 7919); JUST 1/486 m. 14 (IMG 2747).
If a case of homicide, mayhem or trespass came to court, pleading self-defence was a possible ‘escape route’. A successful plea of self-defence might lead to a royal pardon or, should a jury decide on benevolent subterfuge, to an acquittal.59 While there was no bar on women pleading self-defence, records suggest that it was not common for them to do so. The patent rolls contain hundreds of examples of entries relating to self-defence as a reason or partial reason for granting a pardon, but only a few of these relate to women said to have killed in self-defence.60 Women were also considerably less likely to use self-defence as a plea in ‘civil’ assault.61 It is arguable that the common law’s idea of self-defence was based on behaviour accepted in or expected of men, and there was difficulty fitting female behaviour into it.62 The standard exculpatory story of acting only as a last resort, when backed into a corner or against a wall and in fear of immediate death from an opponent whose onslaught was regularly described as being conducted viriliter, might be considered to suit expected male v. male violence much more than male v. female violence.63 Women would be allowed to portray themselves as having acted in self-defence, if they did fit themselves into the standard model; for example, a 1373 Buckinghamshire gaol delivery roll tells the action-packed story of a woman, Agnes atte Nasshe, dragged into a water mill by a man, John Chadde, who was intent on killing her. Agnes was said to have run away to a room high up in the mill; then John pursued her, grabbed her and drew a knife. Agnes, seeing no other way of saving her life, hit John in the chest (with her left hand, as he held her by the right hand) so that he fell to the ground, breaking his neck and dying. The jury considered that Agnes had no choice but to do this, and had not acted maliciously or with felonious intent. She was sent back to prison to await the king’s grace.64 In this unusual situation, Agnes was able to use the force of gravity to accomplish her escape from deadly peril. It seems improbable however that women would have been excused for acting in the way modern scholarship has shown to be a particularly likely response of the physically weaker person in a violent relationship, using force when not in immediate danger of death, but when a pattern of violence leaves them fearing for their lives.65 There was no obvious community sympathy for a Northamptonshire woman who reportedly raised the hue on the husband who was beating her, then assented to the husband being killed by her brother; the siblings were both arrested.66 It is also less clear that a killing would be seen as non-felonious if the harm feared was ‘only’ rape rather than death. Some sympathy seems to be shown to a woman in this situation in a Northumberland roll of 1256. Alice, daughter of Ivo de la Dene, stabbed Richard, son of Gamel, who was attempting to rape her. The jury described this action as having been done se defendendo, but, as Alice fled, how that would have been received remains a mystery.67 In a case on the roll of the 1285 Warwickshire eyre, a jury stated that another Alice, this one the daughter of Henry Haselod, had killed her would-be-rapist, Bernard, servant of Peter de Montfort, with Bernard’s own knife. There was no mention of ‘in self defence’ in this case, but, once again, the killer had fled.68 A much later case, from 1437, deals with the apparent scenario of an attempted rape by Eborard Legard, a ‘Frenchman’, on Joan Chamberleyn, which ended by Joan hitting Eborard over the head (more than once) with a candlestick. This was treated as self-defence, but it is somewhat ambiguous on the issue of whether killing a would-be rapist could be regarded as understandable enough to go unpunished, since there was also a suggestion that there was a potentially deadly knife attack on Joan by Eborard (after she had fought off his rape attempt, he decided to kill her). Whether this was a ‘makeweight’ to ensure that this qualified as self-defence (thus showing doubts about whether deadly force could be used when the alternative was ‘only’ rape and not death) or whether it was what was actually thought to have occurred cannot now be known.69
59 See, e.g., Seipp 1313.313ss; 1330.334ss, 1369.161ass; 1421.100rog. On the consequence of a finding of self-defence, see, e.g., Green, Verdict, c. 3.
60 Unsuccessful: Seipp 1321.124ss. Successful: JUST 1/804 m. 73 (IMG 2444), pardon: CPR 1292–1301, p. 4. SC8/278/13872; JUST 1/1277 m. 5 (IMG 2252). See, e.g., CPR 1334–8, pp. 109, 278; CPR 1361–4, p. 6; CPR 1364–7, p. 117; CPR 1388–92, p. 419. Self-defence (female v. female), accepted in a trespass case: KB 27/420 m. 58 (IMG 124). Pardon for man killing woman in self-defence: CPR 1292–1301, p. 4. CPR 1258–66, p. 615; CPR 1266–72, pp. 60, 112, 615; CPR 1340–43, p. 129. A woman attempting to arrest a man who pulled a knife on her is an example in a Year Book: Seipp 1302.202; SC8/278/13872.
61 Women’s self-defence pleas in trespass, e.g., KB 27/346 m. 46d (IMG 9895).
62 Hyams, ‘Maitland’, p. 232.
63 Green, Verdict, 36–7; Hurnard, King’s Pardon, p. 84. Kamali, Felony, pp. 74–7. For trespass: Seipp 1455.037, 1400.041. See, e.g., William Walravene v. John ate Hille CP 40/413 m. 114 (IMG 226). Self-defence homicide case: H and W attack D with sticks, D kills W, jury say this was not felonious: KB 27/322 Rex m. 17d (IMG 370). For viriliter, see, e.g., JUST 3/1 m. 9d (IMG 55).
64 JUST 3/158 m. 21 (IMG 45).
65 For modern consideration of this issue, see, e.g., Donald Nicolson and Rohit Sanghvi, ‘Battered Women and Provocation: The Implications of R v Ahluwalia’, Criminal Law Review (1993), 728–38; C.P. Ewing, ‘Psychological Self-Defense: A Proposed Justification for Battered Women Who Kill’, Law and Human Behavior 14 (1990), 579–94; Vanessa Bettinson, ‘Aligning Partial Defences to Murder with the Offence of Coercive or Controlling Behaviour’, Journal of Criminal Law 83 (2019), 71–86.
66 9 SS p. 70 (1314).
67 P & M II, p. 477; Northumb. AR, p. 85.
68 JUST 1/956 m. 41 (IMG 7847).
69 JUST 3/220/2 m. 57 (IMG 80); JUST 3/210 m. 29d (IMG 0141); Maddern, Violence and Social Order, p. 98.
Men did claim self-defence in trespass cases or mayhem cases, saying that they struck when being attacked by a woman,70 though it was fairly unusual for them to initiate action based on a claim that a woman had beaten them.71 There are few cases in which a male is said to have killed a female in self-defence, though clearly this was not inconceivable. In the rolls of the eyre of Hereford 1292, for example, there is a record of a case in which Geoffrey, son of Reginald, was reported to have killed Matilda Syward. She was said to have caught him in bed with her daughter (age not specified) and held on to him as she raised the alarm. Others came, one man, Simon the servant, hitting him with an iron fork, meaning to kill him. Geoffrey stabbed Matilda, then fled. Matilda died. The jury stated that Geoffrey could not have escaped from Matilda without wounding her, and the iron-fork-wielding Simon would have killed him had he not escaped; Geoffrey received a pardon, on grounds of a sort of self-defence, here conceived as encompassing killing X to escape the probable lethal attack of Y.72 The jury was to the fore in the development of self-defence: a picture of juries taking action to enforce ‘community’ views about homicide, sometimes against the apparent, strict rules of the ‘official’ criminal law, has been championed by Thomas A. Green. Exclusively male, the members of the jury were likely to cast self-defence in the mould of their sympathies and their own experiences and expectations of confrontation.73 This was not straightforwardly ‘anti-women’ – since women’s forceful action in defence of family members might also be seen in a favourable light, as in the case of a woman who helped her father when he was under attack, hitting his assailant with an axe. She was reported for this by a jury at the eyre of Yorkshire 1257, but pardoned as her father’s defender.74 Some women also included defence of a husband or an infant in their explanations of apparently violent or wrongful conduct.75 Woman might intervene physically in protection of other women from male attack or in a fight between men, though this might lead to serious injury to them rather than the man in question.76 Nevertheless, women who committed violent acts may well have been running a greater risk than were their male equivalents, and would be running a very great risk if they used violence against the man with the greatest opportunity to threaten or use violence against them – a husband – as will be discussed further below.
70 See, e.g., Seipp 1330.541ss; KB 27/578 m. 57 (IMG 127); CP 40/643 m. 452 (IMG 888); CP 40/643 m. (IMG 979); KB 27/472 m. 48 (IMG 98); KB 27/670 m. 102 (IMG 263). KB 27/431 m. 38d (IMG 304); KB 27/566 m. 3d (IMG 285); KB 27/577 m. 7 (IMG 15). KB 27/583 m. 46 (IMG 97); KB 27/595 m. 21d (IMG 280); KB 27/719 m. 46d (IMG 374); KB 27/721 m. 45 (IMG 95); KB 718 m. 96 (IMG 204); KB 27/782 m. 12 (IMG 26); KB 27/867 m. 24d (IMG 275); CP40/711 m. (IMG 838). H says he was defending W from a woman: KB 27/623 m. 4d (IMG 229). Unsuccessful: KB 27/626 m. 71 (IMG 157); KB 27/818 m. 40 (IMG 89); KB 27/857 m. 26 (IMG 59). Mayhem: KB 27/491 m. 59 (IMG 125).
71 Woman sued for breaking a man’s close and beating him: KB 27/350 m. 120 (IMG 3702).
72 JUST 1/302 m. 69, m. 69d (IMG 8330, 8556); JUST 1/303 m. 59 (IMG 8761); CCR 1288–96, p. 184.
73 Thomas A. Green, ‘Societal Concepts of Criminal Liability for Homicide in Medieval England’, Speculum 47 (1972), 669–95.
74 JUST 1/1109 m. 30d (IMG 8869), CPR 1247–58, p. 150. For the perceived duty of men to protect women, see Elisabeth van Houts, ‘Family, Marriage, Kinship’, in A Social History of England 900–1200, ed. by Julia Crick and Elisabeth van Houts (Cambridge, 2011), c. II.5, p. 134; and, e.g., JUST 1/804 m. 71d (IMG 2595); JUST 2/67 m. 30 (IMG 136); JUST 1/302 m. 59 (IMG 8308); KB 27/578 m. 68d (IMG 414); Seipp 1469.079; 1469.082.
75 Green, ‘Societal’, p. 681; C. 9260/792 no. 15. (1361), 103 SS, pp. 261–2; trespass, removal by woman of a hawk attacking an infant, Case 21.6, CP 40/441 m. 147 (IMG 296) 1371.
76 See, e.g., JUST 1/739 m. 55d (IMG 1739); JUST 1/739 m. 92d (IMG 1810). JUST 1/118 m. 53d (IMG 4922); JUST 1/739 m. 55d (IMG 1739); JUST 1/739 m. 92d (IMG 1810); PCCG 31.
As with self-defence, the concept of accident or misadventure was an ‘escape route’ with a gendered dimension.77 The common law in practice accepted that accidental injury or killing was not worthy of punishment as a felony. Sometimes, women’s killings fell into this category,78 but it would be fair to say that the possibility of a misadventure finding for harm which came to pass as a result of play or martial practice was particularly useful for men. Bracton and Fleta’s examples of ‘death through play’ or accidental homicide are notably masculine, both in linguistic expression and, it might be thought, in factual scenario (hunting with spears, playing with a ball, throwing stones, archery).79 Given male domination of positions with law-enforcement roles, defences of lawful arrest were also more relevant to men than to women.80 Likewise, although the case at the beginning of this chapter involves a woman defendant claiming to have been engaged in reasonable chastisement of an employee, given the greater number of situations in which men were allowed or expected to chastise, as husbands, fathers and employers, this was a plea more regularly available to men than to women.81
77 For accident, see Kamali, Felony, p. 235; Bracton II, pp. 341, 384.
78 Hurnard, King’s Pardon, p. 176; JUST 1/615 m. 8d; CPR 1272–81, pp. 311, 457; CPR 1292–1301, pp. 29, 66.
79 Bracton II, pp. 341, 384; Fleta book 1 c. 31, Bk 1 c. 22. Archery: Green, Verdict, p. 88. On the masculine nature of ball games see, e.g., F.P. Magoun, Jr., ‘Football in Medieval England and in Middle-English Literature’, American Historical Review 35 (1929), 33–45. JUST 1/996 m. 39d (IMG 176) (Jury: the wound inflicted with D’s knife did not cause death). See also JUST 1/307 m. 9 (IMG 9121); KB 27/471 m. 26 (IMG 185). JUST 1/676 m. 2 (IMG 4752): woman ‘ran onto a sword held by her son and killed herself’.
Men wrestling, leading to death, pardon: KB 27/641 m. (IMG 214). Male defendants in archery deaths, e.g., JUST 1/804 m. (IMG 2450), CPR 1292–1301, p. 5 (misadventure). See also JUST 1/135 m. 11 (IMG 6967), CPR 1292–1301, p. 2; Hurnard, King’s Pardon, p. 279; JUST 1/1060 m. 13d. Girls said to have killed another child in play by mistake: London Eyre 1244 Lond RS 1970, no. 133. See also the 1284 Cornish eyre of deadly play with stones, above at 129. For a less forgiving line on male ‘sports’, see the report of Fyneux CJ’s speech in Seipp 1496.029.
80 See, e.g., Seipp 1505.051.
81 100 SS Case 2.13; CP 40/449 m. 262; CRR XVI 1237–42, p. 24 no 101 (woman chastises daughter to death). For male ‘chastisement’ cases, see KB 27/626 m. 26d (IMG 591); JUST 1/1334 m. 27 (IMG 2593) and the reference to chastisement of an adulterous wife in JUST 3/1 m. 9d. (IMG 0055). For a jury accepting the story that a woman had fled in fear of her violent husband, see JUST 1/804 m. 65d (IMG 2590).
Anger or provocation was not a ‘defence’ or ‘excuse’ as far as the common law was concerned, but some cases bring in the idea and suggest a degree of jury sympathy. In particular, homicides by men whose wives were caught in a compromising position with another man were not officially excused in medieval common law whatever much later commentators might have asserted,82 but this may be an instance in which the common law diverged from popular sentiment (or at least the sentiment of male jurors). There are, in relatively early cases, signs of a body of opinion considering wounding or castration of the lover a not inappropriate response,83 and medieval juries might show sympathy for the husband who killed his wife’s lover, portraying it as self-defence.84 For example, what might appear to be a rather suspicious story of pursuit and unavoidable homicide in self-defence was given by a jury late in the reign of Edward I, noted in a 1307 gaol delivery record. John Mustarde had, apparently, come upon his wife sitting with another man, Thomas Osmond, in the house of a third party. Thomas, according to the jury, then pursued and attacked John, following him into John’s home, and only when there was no escape did John happen to hit Thomas with a handy pole-axe. The alleged fact of John seeing his wife sitting with Thomas seems legally irrelevant, but it appears to have played some role in the jury’s mind. John was expected to be pardoned, as this was found to be self-defence.85 To what extent do we see gendered difference here? We might expect considerably less sympathy with a woman who behaved in a similar way, given differing ideas about the anger and physical aggression of men and women and differing expectations of chastity in husbands and wives.86 A married woman’s sexual jealousy was seen as a believable motive for procuring the homicide of ‘the other woman’.87 As long as she directed her reprisals against the ‘other woman’ rather than against her husband, while the fact that she had been wronged clearly did not amount to an exculpation, it may be that there was some sympathy for a woman committing an offence in this context. This is suggested by the questions about the culprit’s age and mental competence which seem to have been put to the jury in a case of 1306 in which an abused wife, Joan, wife of Edmund Sneed, was found to have ripped out the eyes of Christiane, daughter of Thomas de la Twychene, who had, according to the jury, been involved in adultery with Joan’s husband.88 The posing of these questions gives the impression of an active attempt to find a reason not to condemn Joan. Outside the marital context, it is not impossible that some sympathy lay behind determinations that a woman’s action did not cause a death, as in a case in which a woman was said to have been provoked by a man’s defamatory words and hit him with a tool, but his death was found to have been caused by a fever and not the blow.89 Sympathy did not, however, stretch to the situation in which a woman took violent action against her own husband, however adulterous or provoking he might have been, as we will see below.
82 Krista Kesselring, ‘No Greater Provocation? Adultery and the Mitigation of Murder in English Law’, LHR 34 (2016), 199–225; P & M II, p. 484; Seipp 1486.003, CP 40/893, m. 244 (IMG 448). See also, for the unacceptability of killing a wife’s lover, JUST 1/996 m. 30d (IMG 157). (1306–7).
83 1257, 1288 and 1305–6 instances of castration in such circumstances, though these were seen as offences by the common law: JUST 1/1109 m. 27 (IMG 8791); JUST 1/210 m. 43d (IMG 5127) (1288); JUST 1/791 m. 1 (IMG 1482).
84 Kesselring, ‘No Greater Provocation?’, p. 204; Green, Verdict, pp. 42–3; JUST 3/1 m. 9d (IMG 0055). See also JUST 1/118 m. 55 (IMG 4771): men kill a clerk in a room with a man’s wife: pardons on condition of fighting in Scotland. Petition of a man alleged to have killed his supposed ‘dishonourer’: SC8/103/5109 (he alleges that this is false, as a matter of causation, though care is also taken to portray the deceased unfavourably).
85 JUST 1/966 m. 10 (IMG 8921).
86 See, e.g., Elizabeth Papp Kamali, ‘The Devil’s Daughter of Hell Fire: Anger’s Role in Medieval English Felony Cases’, LHR 35 (2017), 155–200, 168, 175–6, 190.
87 JUST 1/409 m. 7 (IMG 16).
88 JUST 1/1032 m. 4d (IMG 2700). Edmund and Joan were reported to have supported Christiane thereafter.
89 JUST 1/956 m. 41 (IMG 7847).
Duress as an ‘escape route’ also had gendered aspects, though its status as a ‘general defence’ was as yet only at the ‘under construction’ stage in the medieval common law. Treatises considered duress, force and fear in relation to invalidation of a gift or transfer of land and definitions of the sort of fear which would count in such cases are expressed in masculine terms. Bracton for example, borrowing terminology from Romanist sources, defines the relevant fear as ‘an agitation of the mind caused by danger, present or future’, which is ‘immediate’ fear of death or physical torture, and which is the sort of fear which ‘may occur in a resolute man’ (in virum constantem) rather than a ‘weak or timid’ one (cuiuslibet vani vel meticulosi hominis).90 The use of vir makes it hard to see this as gender-neutral, whatever one might conclude about the inclusivity of homo.91 Defences of duress are evident in records relating to debt, in which it is clear that being kept imprisoned until one seals an obligation, if established, is a valid exception to the debt action. This was used by both men and women.92 Ideas of duress are less obviously effective as defences outside the context of debt. A woman’s explanation that she was present at a killing by others and concealed them, in part at least because of their threats to kill her, did not save her from death, for example.93 The increased likelihood of pressure being brought to bear by husbands on wives to transfer their lands was mainly dealt with – to the extent it was dealt with – through the formal mechanisms associated with the fine process and the possibility of challenging transfers after the husband’s death with a cui in vita action.94 An explicit idea of coercion and compulsion as a defence is, however, encountered in pronouncements and cases on what would later be called ‘the doctrine of marital coercion’ in relation to ‘criminal’ offences. Commentators have often portrayed the treatment of married women as generous, in that they were shielded from adverse consequences of their offending behaviour by this doctrine. An eighteenth-century legal scholar, for example, put it in these terms:
[T]he laws have always been very merciful in regard to femes covert, for they are not amenable to punishment for a bare theft, committed under the coercion of or in the company of their husbands, neither shall they be deemed accessory for receiving their husbands, who have been guilty of a felony, though it is said that men become accessories by receiving their guilty wives…95
90 Bracton II, p. 65; Fleta book 3, c. 7. See also Bracton II, p. 296, on the action quod metus causa. On the resolute, not timid, man as a Romanist borrowing: 8 SS, p. 180, 184.
91 See Chapter 1.
92 Woman’s defence of imprisonment and force: CP 40/427 m. 85 (IMG 172).
93 1 SS (1202) p. 28, no 77. On uncertainties surrounding duress, see Milsom, ‘Trespass’; p. 581, note 32, John Hudson ‘Emotions in the Early Common Law (c. 1166–1215)’, JLH 38 (2017), 130–54; Kamali, Felony, p. 235; 100 SS, xli (duress pleas based on st. 6 Ric. II st 2 c 5; SR II, 31).
94 See above p. 40.
95 Richard Wooddeson, A Systematical View of the Laws of England (Oxford, 1792), pp. 1, 261, Lecture XVI, p. 447.
A twentieth-century commentator on the medieval common law stated simply that:
[A] woman who committed a felony jointly with her husband could not be held guilty of it since she was under his dominion.96
Both statements, particularly the latter, give an exaggerated view of the ‘shielding’ effect of marriage for women in terms of culpability. Such accounts also tend to ignore the fact that the reason the common law had begun to develop ideas to exculpate wives was that they might be inculpated, or disadvantaged, because of their marriage. They are insufficiently attuned to the fact that these ideas developed not as general doctrines, but in relation to specific types of offence, and that, in fact, part of their early development concerned the exculpation of men as well as the exculpation of women. There was neither an automatic immunity for married women and married women alone, with regard to all felonies, nor a formed and straightforward legal ‘doctrine of marital coercion’ during the medieval period.97 The common law did hold husbands responsible in ‘civil’ cases and some non-capital criminal cases, in the sense that they were obliged to pay compensation for their wives’ misdeeds.98 This was rather different of course, being a practical necessity given the choice which had been made to bar wives from rights in chattels. It need not be seen as requiring an idea that the wife was actually always dominated by the husband to such an extent that she could not be responsible or culpable.
Thirteenth-century treatises had something to say about both the possibility of the wife being exculpated by virtue of the fact or presumption that she was dominated by her husband, and also the situation of the husband of an offending wife, who might perhaps be deemed responsible for his wife’s actions. There was particular concern with theft, which showed a continuation of the interest in theft and receiving stolen goods evident in older legal codes.99 Treatise accounts combine statements that punishment should only be imposed upon those actually offending, with a recognition of the theoretical and/or practical power of husbands over wives (and consequent difficulties in holding wives responsible for actions or situation which may not have been their own choice). There are illustrations of situations in which culpability can be presumed (particularly when stolen goods are found under a wife’s lock and key), probably descending from older treatments of this matter.100 Slightly different interpretations are given as to why a woman might be held not culpable in relation to such offences. Bracton, considering theft, gives an explanation based on the common law construction of the relationship between spouses and chattels – the wife is not to be held liable for theft by her husband, ‘because it is not she who has it [i.e. the stolen thing] within her potestas but her husband’.101 An explanation might, instead, be based on the husband’s legal power or (factual or presumed) domination over his wife.102 Concern was not all with the wife however: Bracton also considered whether a husband was liable for his wife’s thefts. The answer was ‘not inevitably’: the idea of his responsibility for her or control over her did not stretch this far. There was, however, work for him to do if he wanted to be held innocent, in that he needed to demonstrate that he had not consented to her misdeeds.103 In relation to wives and culpability for crimes committed by or with their husbands, on the whole, they were not simply regarded as irresponsible and unamenable to law if they were thought to have been involved in an offence with their husbands. Bracton states that ‘the wife must … not be discharged in every case’.104 The idea of the dominated wife was clearly not the only available construction of the marital relationship: Bracton also contemplated a homicide scenario in which a husband held the victim whilst the wife took the active role in the killing, and suggested at least limited capacity for the wife’s independent action when it placed upon her the tricky duty ‘neither [to] accuse her husband nor assent to his felony, but … to hinder him so far as she is able’.105
96 Wilts GDT, p. 24.
97 Bl. Comm. IV pp. 27–8; Gerry Rubin, ‘Pre-Dating Vicky Pryce: The Peel Case (1922) and the Origins of the Marital Coercion Statutory Defence’, Legal Studies 34 (2014), 631–59.
98 See, e.g., Crown Pleas of the Eyre of Devon 1238, ed. by Henry Summerson, no 524.
99 Older law: P & M I, p. 33, Hudson OHLE II, p. 168.
100 Fleta book 1 c. 36; Bracton II, p. 428.
101 Bracton II, p. 428.
102 Bracton IV, p. 287; Fleta book VI c. 50; refers to the case of Roger de Fanborne and his wife Agnes. Roger was hanged, Agnes released as she was ‘under her husband’s rod; Rubin, ‘Pre-Dating Vicky Pryce’, p. 637.
103 Bracton II, p. 428; Fleta book 1, c. 36. See Kamali, Felony, pp. 61–2. Note earlier ideas of responsibility spreading to kin rather than spouse: LHP, p. 223.
104 Bracton II, p. 428.
105 ibid.; Fleta book 1 c. 36. Compare Thomas of Chobham’s, Manual for Confessors, c. 1215: Sharon Farmer, ‘Persuasive Voices: Clerical Images of Medieval Wives’, Speculum 61 (1986), 517–43.
In records of cases, we see women being held not responsible for felonies because of a lack of knowledge of a key fact, such as that goods received were stolen,106 or on the grounds of coercion (whether actual or presumed) in cases of theft, harbouring thieves, robbery, even homicide.107 As with the Bracton account, there was no irrebuttable presumption of coercion, and occasional records indicate careful inquiry into its presence or absence.108 A confession of participation or evidence of wives’ own independent criminal activity might override any presumption of coercion by a husband.109 Women might also be seen as the dominant partner in relation to theft, with the husband a mere accessory or receiver.110 In relation to certain types of offence – those outside the home – there is a good case for suggesting that there was, over the course of the thirteenth century, a move from assuming the liability of wives present at their husbands’ offences to a more ‘firmly exculpatory’ view (at least in relation to theft), and there are certainly examples of what appears to be a presumption that wives acted under their husbands’ compulsion.111 In the reign of Edward III, there does seem to have been an expectation that if women were taken for crimes committed with their husbands, it should be asked whether this had occurred through the husband forcing the wife’s action, something which suggests that this was an acceptable explanation, but not that it was presumed to be the case in every instance of misconduct by a married woman.112 By the latter part of the fourteenth century, there are signs of language of ‘coverture’ crossing over into the ‘criminal’ context, and perhaps moving towards a more ready presumption of a will overborne. Thus, in a 1363 case concerning an indictment alleging that a husband and wife received felons, it was pleaded that the wife had been, at the critical time and was still, ‘covered by her husband Richard’ and ‘wholly under his potestas, so that she could not contradict him’, and that, since the indictment did not mention either that she committed an offence or consented to it or that she received the felons without his knowledge, it was insufficient.113
106 JUST 1/135 m. 28 (IMG 7010); David Crook, ‘The Seditious Murder of Thomas of Sibthorpe and the Great Statute of Treasons 1351–2’, Historical Research 88 (2015), 402–16.
107 Wilkinson, Women, p. 164; M.T. Clanchy, ‘Highway Robbery and Trial by Battle in the Hampshire Eyre of 1249’, in Medieval Legal Records, ed. by Hunnisett and Post, (London, 1978), p. 56; Kamali, Felony, p. 2; Crown Pleas of the Wiltshire Eyre, ed. and tr. C.A.F. Meekings (Devizes, 1969), pp. 180, 238; JUST1/996 m. 26d (IMG 151) (1249). JUST 1/996 m. 37 (IMG 86); Hanawalt Westman, ‘The peasant family’, p. 13; JUST 3/125 m. 9d.
108 JUST 3/125 m. 9d (IMG 62).
109 Northumb. AR, 332; 98 SS, p. 168. H not liable for W’s larceny when he was not present and had no knowledge of it. Kiralfy Source Book p. 37; 24 SS, p. 81; 98 SS p. 791; Seipp 1322.018. Kerr, ‘Husband and Wife’, pp. 236, 280.
110 SC 8/254/12666.
111 Henry Summerson, ‘Maitland and the Criminal Law in the Age of Bracton’, in The History of English Law, ed. by Hudson (Oxford, 1996), pp. 115–43, 116; JUST 1/564 m.3 IMG 7317), theft; Kerr, ‘Husband and Wife’, pp. 236–7.
112 Kerr, ‘Husband and Wife’, p. 237; 97 SS, 179.
113 KB 27/412 m. 34d (IMG 582).
That such claims of necessary coercion through marriage were not always a safe route for women can be seen in a case of 1366 in which Alice, ‘servant of Walter Baret’, was appealed alongside Walter in relation to thefts of various objects from a church. Walter claimed clergy successfully. Alice said that since she was his wife rather than his servant as the appeal stated, she would not answer for things done in her husband’s presence. A jury found that both Walter and Alice were guilty of the offence that Alice was indeed Walter’s wife, but that she had committed the offence of her own malice without her husband’s coercion. Alice was remitted to gaol to await the gaol delivery. At the delivery, it was ordered that she should be hanged because she had committed the offence, and this had not been through coercion of her husband.114 This case certainly shows the existence of a belief in a robust presumption of coercion, but clearly it could be rebutted, and juries were prepared to look past it. In addition, it should be noted that Alice’s claim of presumed coercion or the absence of a requirement to answer related to the specific situation of offences committed in the husband’s presence: it was not a formula suggesting a blanket immunity for married women. In the late fourteenth century, Alice and other women who were said to have committed offences with their husbands were certainly still being accused, convicted and hanged.115 Another wife, found to have been coerced, seems to have run the risk of execution in a case of 1353. She had confessed to a theft of bread, but said that this was done at the command of her husband (or, more precisely, by the man who was her husband at the time of the offence). She was not executed, but the report suggests that this was a matter of judicial favour rather than a matter of routine. She had not helped her cause by confessing to the theft, referring to command rather than coercion, nor perhaps by taking too big a step away from the ‘crime committed in husband’s presence’ cases.116 In the sixteenth century, the 1353 case may have been interpreted as illustrative of a conception of marital coercion which had become more generous to the wife, as a reading of 1551 seems to elide command and coercion, by adding the idea that a wife owes obedience to her husband.117 The default position in the medieval common law would appear to have been some expectation of influence by husband over wife. ‘Marital coercion’ as an exculpatory doctrine in felony cases was certainly not, however, equivalent to the situation of irrebuttably presumed wifely irresponsibility seen in some aspects of ‘civil’ law, in which we find such statements as that of a mid-fifteenth-century Chancellor that everything done by a married woman was to be regarded as having been done per drede de son baron,118 and it is quite possible that the strength of presumption of lack of culpability varied with the type of offence.
114 JUST 3/156 m. 5 (IMG 0015).
115 JUST 3/179 m. 5 (IMG 10). H and W, with others, convicted as accessories to homicide, on appeal by the wife of the deceased.
116 Seipp 1353.165ass.
117 132 SS, p. 192.
118 Seipp 1467.038.
Later legal tradition would emphasise the idea of favour and generosity in this context. There is, however, a danger of exaggeration of the idea that it excused women who were not in fact coerced. A balanced assessment requires an admission that we cannot know that there was not in fact significant coercion within marriages. We should also bear in mind the possibility of marriage having the opposite effect on women’s legal liability – that of what might be called ‘marital contagion’. The facts of married life put spouses in a position in which they might be accused of wrongdoing by virtue of proximity to the commission of an offence, or through cohabitation, by virtue of proximity to the proceeds of crime. Against any ‘advantage’ or ‘indulgence’ to women must be weighed the ‘collateral damage’ to wives (and families) of their husbands’ offences and convictions, including forfeiture, expropriation, economic loss and loss of freedom,119 as well as the risk that they themselves would fall under suspicion of guilt because of proximity to him and his offences, in circumstances ranging from those wives present at their husbands’ offences (whether or not actively participating), through those who ‘received’ their felon husbands or their stolen goods to the Yorkshire wife noted in the eyre of 1257 who had wanted to pull her husband out of a pond in which he had drowned himself, perhaps in order to try and escape the economic consequences of his ‘self-felony’.120 Perhaps, above all, the material on ‘petty treason’, to be discussed below, throws significant doubt on the idea that married women were, overall, shown ‘mercy’ by the common law.
119 See K.J. Kesselring, ‘Felony Forfeiture in England, c. 1170–1870’, JLH 30 (2009), 201–26; Seabourne, IMW, cc. 1 and 3; C.D. Ross, ‘Forfeiture for Treason in the Reign of Richard II’, EHR 71 (1956), 560–75; J.R. Lander, ‘Attainder and Forfeiture, 1453 To 1509’, Historical Journal 4 (1961), 119–51; Anne Crawford, ‘Victims of Attainder: The Howard and De Vere Women in the Late Fifteenth Century’, Reading Medieval Studies 15 (1989), 58. Orders to eject wives and children of attainted jurors from their lands: Seipp 1368.087, 1504.010. Suffering of the family of an official who not done his duty: 98 SS, p. 11; Wilts GD and T, no 119.
120 Yorkshire eyre 1257. JUST 1/1109 m. 30d (IMG 8870). For a theft case, see, e.g., W dragged into H’s theft: apparently arrested but not indicted m. 11 (IMG 28). For capital punishment for a woman noted to have been present with her husband at a (multiple) homicide, see CRR VIII, 273 (1220).
Another ‘escape route’ sometimes portrayed as generous to women relates to pregnancy. Evidence that executions of those felons confirmed to be pregnant should be deferred until after the birth predates the period of this book, and the possibility of such deferral was maintained through and beyond the medieval period.121 It was justified on the grounds of a need to prevent the killing of the foetus.122 Convicted women used claims of pregnancy in an attempt to defer execution, and were sometimes successful in doing so.123 Consideration of the area has been complicated and distorted by later developments and theories, leading to the linked ideas that pregnant felons were generally given a complete reprieve as opposed to a deferral of execution, and that this was part of a doctrine of ‘benefit of the belly’, regularly involving false claims and declarations of pregnancy, comparable to the (increasingly fictionalised) male-only doctrine of benefit of clergy.124 Recent work has shown the idea of fictionalised generosity to medieval women to have been a comforting myth. In the medieval period (and into the early modern period), women’s pregnancy was less of a shield than had been suggested.125 Butler’s study of the later medieval period has shown that pregnant women could not count on being pardoned, and there was not routine collusive false declaration of pregnancy: the ‘matrons’, tasked with determining the truth of claims of pregnancy, did find some not pregnant.126 It is also the case that some obviously pregnant women were hanged and that not all pregnancies ‘counted’ for the purpose of deferral.127 The increasingly evident requirement that the foetus be found to have ‘quickened’ meant that those pregnancies which had not reached this relatively advanced stage would not result in deferral. Even an advanced pregnancy might, on some views, not serve as a basis for deferral; if the woman had used a previous pregnancy to defer execution, there was a view that she could not do so again even if there was a new pregnancy. Mid-fourteenth-century Year Book reports note the hanging of women, despite their claims of pregnancy, because they had benefited from previous deferrals. Some disquiet is recorded, along with the suggestion that this is a change from the past, but objections do not appear to have prevailed.128 The idea that the ‘once only’ rule for pregnancy deferrals was not of long duration seems to be supported by a Warwickshire case from the end of Edward I’s reign. Alice, sister of Hugh ad Fontem, had been convicted of homicide. At least some thought it appropriate to send her back to prison, deferring her execution on the grounds of a new pregnancy, despite the fact that she had already had such a deferral, and had had the baby on which that first deferral was based, before becoming pregnant once more.129 The idea that one could only use the pregnancy deferral on one occasion seems to have become orthodox by the mid-fifteenth century. Baker’s Selden Society volume on readings on Magna Carta includes a reading which he dates 1455–60, which states this as incontrovertible, though its explanation leaves something to be desired – such a woman should be executed when pregnant a second time ‘inasmuch as she lost all manner of answers when she took the first answer, so that she cannot be saved by any fresh cause’. It works as an explanation only if considered to relate to the woman alone, and ignoring statements which highlight the need not to kill innocent foetuses.130
121 Bracton II, p. 429; Fleta book 1 c. 36; Mirror book IV, c. 16; J.C. Oldham, ‘On Pleading the Belly’, Criminal Justice History 6 (1985), 1–64, 2; Harris Stoertz, ‘Pregnancy and Childbirth’, p. 271.
122 JUST 3/210 m. 16 (IMG 35). Note, however, that there were limits to this: see below, p. XXX
123 Deferrals, e.g., JUST 1/374 m. 32d (IMG 2504); RCR vol I p. 204 (deferred burning for homicides – 1198); Kerr, ‘Husband and Wife’, p. 237; Wilts GD and T, pp. 34, 81; JUST 1/1108 m. 22 (IMG 8723); JUST 3/220/2 m. 77 (IMG 106); JUST 3/1/4 m. 42d (IMG 207). JUST 3/48 m. 2d (IMG 99); JUST 3/48 m. 28d (IMG 145), m. 40d (IMG 176); JUST 3/113 m. 6 d (IMG 27); JUST 3/189 m. 5 (IMG 13); JUST 3/217/3 m. 39 (IMG 55); JUST 1/1334 m. 1d (IMG 2673); JUST 1/966 m. 7 (IMG 8917).
124 J.M. Beattie, cited in Oldham, ‘On Pleading’, p. 19, and Butler, ‘Pleading’, pp. 133–4. Walker, Crime, Gender and Social Order, p. 197; J.S. Cockburn, Calendar of Assize Records, Home Circuit Indictments Eliz I and James I (London, 1985), p. 122, suggests fiction.
125 Kesselring Mercy, App II, p. 78; Walker, Crime, Gender, p. 197; Butler, ‘Pleading’, pp. 133, 140.
126 Butler, ‘Pleading’, pp. 133–4, 136, 142. ‘Not pregnant’: e.g., JUST 3/220/2 m. 182 (IMG 243); JUST 3/173 m. 26 (IMG 61); JUST 3/188 m. 17d (IMG 411): Seipp 1348.279ass (1348): JUST 3/195 m. 72d (IMG 415). For claims with excessive gestation periods, see Butler, ‘More than Mothers’, p. 28.
127 Henry Summerson, ‘Attitudes to Capital Punishment in England 1200–1350’, in Thirteenth Century England VIII, ed. by M. Prestwich, R. Britnell and R. Frame (Woodbridge, 2001), pp. 123–34, 131: 1258 case, hanging of a heavily pregnant convict: JUST 1/1187 m. 11. (IMG 27).
128 Seipp 1338.259ass, 1349.019ass; 1351.055; 132 SS, p. 235.
129 JUST 1/966 m. 7 (IMG 8917).
130 132 SS, pp. lxix, 235.
Some women who obtained a deferral also obtained a pardon, but this was not inevitable, and some were hanged in due course.131 The suggestion that women received ‘indulgent’ treatment in this respect cannot be sustained.132 The rejection of the idea of ‘benefit of the belly’ as a generous ‘easy way out’ for women convicted of felony suggests wider problems with constructions of past courts and administrations as generous or lenient to women, and of women as fraudulent in claims relating to reproduction. None of this is to suggest that women were executed in greater numbers than men, nor even that a smaller proportion of accusations against men than accusations against women resulted in execution; the point is to highlight that the common law’s range of ‘escape routes’ was gendered, and that those routes available to women were not as ‘indulgent’ to them as has been suggested in what has become the orthodox common law narrative. Why might previous scholars have thought there was consistently favourable treatment of pregnant women? Partly, it is a case of ‘reading back’ the ideas and practices of the more recent past – in which it would not be unjust to see the treatment of pregnant convicts as more generous – into the more distant past, perhaps also retrospectively systematising and treating practices as if they conformed to a clear, accepted and articulated doctrine, when that does not seem to have been the case in the medieval period. Partly, it may have been a device to enable women’s encounter with the common law to be neatly encapsulated and then ignored, to move back to the more interesting business of men.
Disposal and punishment
In completed ‘civil’ cases, where the defendant was not acquitted, we see orders relating to land or money. The marital status of a female defendant had a bearing on the detail of the destination of both. In ‘criminal’ cases, we see financial penalties and corporal penalties, up to and including capital punishment, for women as well as men. On the whole, punishment for those convicted of felony was not differentiated by sex in the common law,133 though Britton worried about the need to make adjustments in some mayhem cases, depending on whether the assailant was a man or a woman – for what the author advocated as the usual rule of ‘member for member’ punishment could not apply if a woman attacked a man’s genitals. In this case, she was to lose a hand instead, a justification for this penalty being found in the fact that this was the ‘member wherewith she committed the offence’.134 Generally, however, death by hanging and forfeiture of such property as was held by the convict were available to deal with both men and women. Some lesser offences had different punishments for men and women, however,135 and in the case of some of the most serious offences, death sentences were differentiated based on marital status and/or sex.136 The most spectacular cases, to be dealt with below – those ending in burning of the female convict – were not common, but they deserve detailed consideration, as they are useful windows on both the medieval common law’s treatment of women and the ways in which that treatment has been portrayed in subsequent work.
131 Pardons: see, e.g., Butler, ‘More than Mothers’, p. 14 ‘1228, 1248, 1253: CCR 1227–31, 53; CPR 1247–58, 20; CCR 1251–53, 501’, CPR 1313–17, 20, CPR 1350–54, 10, 366; CPR 1354–8, 99, 515; CPR 1364–7, 103, CPR 1370–74, 122; CPR 1374–7, 269, CPR 1381–5, 243; CPR 1391–96, 8, 28, 317; CPR 1396–9, 516; CPR 1405–8, 299; CPR 1408–13, 267; CPR 1436–41, 356. Not: Butler, ‘Pleading’, p. 143; JUST 3/36/1 m. 17. Escape, sanctuary, abjuration: 24 SS, p. 96.
132 See, e.g., Wilts GD and T, p. 24 ‘indulgencies’.
133 No differentiation by sex: Glanvill 1. 2; Bracton II, pp. 298–9. Burning for plotters against their lord’s safety: D. 48.19.28.11; P. & M., ii, p. 504 n.; cf. CCR 1227–31, p. 53: woman convicted of husband’s death ordered to be burnt. Bracton II, p. 318, punishment for ‘lese-majesty’ is drawing, breaking and hanging, while for theft or homicide it is ‘simple hanging’; II, 349 punishment of a clerk for apostasy: degrading then burning; P & M, I, p. 437, n. 4. For sex as a matter to take into account in sentencing, in some canon law sources: Schrage, ‘Women Do Not Sit as Judges’, pp. 377–89.
134 Britton book 1, c. 26 no. 1.
135 See, e.g., SR I, pp. 199–200.
136 For sex differentiated execution in other jurisdictions, see, e.g., 18 SS, p. 75; 21 SS p. xxxiv; Henry Summerson, ‘Trials by Ordeal in a Kentish Court in the Early Thirteenth Century’, JLH, 41 (2020), 332–42, 340; Mia Korpiola, ‘Rethinking Incest and Heinous Sexual Crime: Changing Boundaries of Secular and Ecclesiastical Jurisdiction in Late Medieval Sweden’, in Boundaries, ed. by Musson (London, 2005), c. 8, p. 111; J. Borsje, ‘Rules and Legislation on Love Charms in Early Medieval Ireland’, Peritia 21 (2010), 172–90, 178.
Women, marriage, treason, heresy and fire
The severity of the punishments meted out to women by the criminal law were, however, throughout the period excessive.137
It was a common sight to see the body of a woman burning because she had murdered her husband, though it must be said that the hangman generally managed to strangle the prisoner before the flames touched her body.138
137 Cleveland, Woman under the English Law, p. 158.
138 Cleveland, Woman under the English Law, p. 118.
Death by burning was not restricted to female felons. From an early period, burning was suggested as an appropriate punishment for arsonists, probably because of a combination of the seriousness of the offence and an idea of ‘fit’ or analogy to the offence, ‘so that they may be punished in the manner as they have offended’. Both men and women were burnt for arson.139 The association of arsonists and death by burning was not complete either in theory or practice, however, with examples of arsonists being imprisoned or hanged rather than burnt, and disagreement amongst late-thirteenth century commentators as to the correct penalty.140 The idea seems to have become attenuated in the later thirteenth century, with examples of post-mortem or partial burning.141 Thirteenth-century treatises recommended burning as a punishment in some other areas: sodomy, apostasy, sorcery and being a ‘renegade and miscreant’.142 Evidence of use of such a punishment is hard to find for medieval England, however.143 In theory, death by fire was also the prescribed response for all recalcitrant heretics once royal justice took a role in this area. The idea of burning as the appropriate penalty for confirmed heretics was an old one, widespread and persistent in Europe, and not unknown in England in the thirteenth century.144 Early fifteenth-century legislation, expressed without sex differentiation, prescribed burning in a high or prominent place and forfeiture of property for heresy.145 In practice, while women were amenable to burning as recalcitrant heretics, those sentenced to the flames before the sixteenth century were predominantly male.146 This difference is best explained by women’s perceived and real lesser prominence within Lollardy (despite some well-known exceptions), mirroring their generally less prominent role in religious life and public life.147
139 Summerson, ‘Burning Issues’, pp. 101, 105, 107, 110, 111; LHP pp. 108–9; Glanvill, 1, 3; Britton book 1 c. 10. PCCG no 216 p. 52; Women burnt: 1 SS no.191, Eyre of London 1244 no. 146 (1240–1).
140 Summerson ‘Burning Issues’, pp. 110, 111; JUST 1/761 m. 33d. 111; Mirror, book IV c. 15 (punishment formerly burning, now hanging); Britton book 1 c. 10 (burning for arsonists).
141 Summerson, ‘Burning Issues’, p. 111, examples from Norwich in 1272 (burning after death of arsonists, including a woman): W. Rye, ‘The Riot Between the Monks and Citizens of Norwich in 1272’, Norfolk Antiquarian Miscellany 2 (1880), 27, 45, an account of the 1283 execution of Dafydd ap Gruffudd stating that organs were to be burnt because he had burnt houses and villages, and a hanging, then burning of an arsonist in Carlisle in 1292: JUST 1/137 m. 30. See also the prescription of death by fire for some arson in the customs of Waterford, c. 1300 18 SS, p. 177.
142 P & M II, p. 546: Fleta Book 1 c. 35; Britton, book 1 c. 10.
143 Possible post-mortem burning of a witch on the orders of the clergy, 1279: P & M II, 552: Northumb. AR, p. 343. For a 1324 example of burning associated with sorcery in Ireland, see A. Neary, ‘The Origins and Character of the Kilkenny Witchcraft Case of 1324’, Proceedings of the Royal Irish Academy 83C (1983), 333–50.
144 Britton book I c. 11, note z; Heresy and Authority in Medieval Europe, ed. by E. Peters, (Philadelphia, 1980), pp. 71, 74, 80. A.E. Larsen. ‘Are all Lollards Lollards’, in Lollards and Their Influence in Late Medieval England, ed. by Fiona Somerset and others (Woodbridge, 2003), p. 61; Maitland, The Deacon and the Jewess in Roman Canon Law in the Church of England (London, 1898), pp. 158–9. Mirror book IV, c. 14, burning for heresy. This chapter does not differentiate punishment for men and women.
145 De Haeretico Comburendo (1401); 2 Hen. IV, c. 15, SR II, pp. 125–8; 2 Hen. V, st. 1, c. 7; SR II, pp. 181–4; A.K. McHardy, ‘De Heretico Comburendo 1401’, in Lollardy and the Gentry in the Later Middle Ages, ed. by Margaret Aston and Colin Richmond (New York, 1997), pp. 112–26. F.D. Logan, Excommunication and the Secular Arm in Medieval England: A Study in Legal Procedure from the Thirteenth to the Sixteenth Century (Toronto, 1968), pp. 191–4; P.R. Cavill, ‘Heresy, Law and the State: Forfeiture in Late Medieval and Early Modern England’, EHR 129 (2014), 270–95, 271. P & M II, p. 546, notes 1160s corporal punishment (not burning) of heretics.
146 Heresy, case against males, e.g., JUST 3/206 m. 7d (IMG 1258).
147 See Shannon McSheffrey, Gender and Heresy: Women and Men in Lollard Communities, 1420–1530 (Philadelphia, 1995), pp. 109–23, 151–65; Claire Cross, ‘Great Reasoners in Scripture: The Activities of Women Lollards 1380–1530’, in Medieval Women, ed. by D. Baker (Oxford, 1978), pp. 359–80.
In both arson and heresy, the prescription of fire was linked to the nature of the offence only. In other cases, it was aspects of the offender’s identity (sex or marital status) which were determinative of amenability to burning. These aspects might be relevant to punishment only, or to both guilt and punishment. There are signs of a particular association between women and the punishment of burning. Some early records show women burnt as a punishment apparently for ordinary homicide,148 though punishment for this and most other felonies was generally hanging. Britton recommended the burning of women for treason.149 The most consistent evidence of theory and practice of burning of women related to those found guilty of offences which would come to be categorised as species of treason: first, the killing of a superior and, in particular, a husband and, second, counterfeiting coinage, always taken very seriously, as an affront to the king.150 The link between these offences and burning of women predated the explicit designation of the offences as treason: women, but not men, were burned for counterfeiting coinage before the 1352 Act (men being drawn and hanged),151 and wives who killed husbands were burned before this same legislation called such killings a species of treason.152 The reason for the burning of women is never articulated. The later idea that it was in some way connected to an idea of decency in their treatment is unconvincing.153 Burning was a particularly spectacular way to die, and one which had clear resonances with the tortures of hell.154 The choice of this method of execution not for all crimes by women but only for what were apparently regarded as particularly serious female crimes is likely to indicate that it was regarded as a worse death than hanging, though it is difficult to make a comparison of the suffering involved in the two types of death.155 We have no evidence from this period for the minor comfort of the idea that those sentenced to burn died not from the fire and smoke but from ‘mercy-strangling’.
148 Hurnard, King’s Pardon, p. 169: JUST 1/818 m. 47 (IMG 4479). For pre-conquest association of women and punishment by fire, see Hudson OHLE II, p. 186.
149 Britton book 1 c. 9 no. 3.
150 On treason, see in particular Bellamy, Law of Treason; Glanvill book I, 2, XIV. 1: Bracton II, p. 334; Fleta book 1, c. 21; Placita Corone, xxxvi–xxxvii, 21–2.
151 Fleta book 1 c. 22. See Bellamy, Law of Treason, p. 2, and, e.g., female counterfeiter burned, men drawn and hanged: JUST 3/1/1 m. 6d (IMG 52) 1310; (1347) KB 27/349 Rex m. 2 (IMG 2970); Woman counterfeiter to be burnt, 1375: JUST 3/158 m. 4d (IMG 64); man drawn and hanged for consent to killing of his lord: JUST 3/36 m. 2 (1296). Women burned for counterfeiting: JUST 3/41/1 m. 17 (IMG 0040).
152 Men or women could be condemned for the ‘petty treason’ of killing a master/mistress: Seipp 1440.120; KB 27/714 m. 164 (IMG 334).
153 Ruth Campbell, ‘Sentence of Death by Burning for Women’, JLH 5(1984), 44–59, 54; Bl. Comm. IV, 93.
154 See, e.g., A.E. Bernstein, Hell and Its Rrivals: Death and Retribution amongst Christians, Jews and Muslims in the Early Middle Ages (Ithaca, NY and London, 2017); Mark 9:47–8; Matthew 25:31–46; Revelation 14:11.
155 Rarity of death by fire as a method of suicide, probably for practical reasons: Alice and Gwen Seabourne, ‘Suicide or Accident? Self Killing in Medieval England’, British Journal of Psychiatry (2001), 43–7.
A foolish doctrine, whereby allegiance was presumed to exist between husband and wife, was used as an argument for burning the wife to death in the event of her killing her husband.156
It is not surprising that in a hierarchical society, special opprobrium would be cast on killing of ‘higher up’ individuals: pre-fourteenth-century sources suggest the killing of feudal lords as particularly heinous, and also stressed the additional culpability in killing a father or mother,157 while the legislation of 1352 singled out the king and key members of the royal family, masters and husbands. The association in the Statute of Treasons of husband-killing with other homicides going against hierarchical structures (master-servant, abbot-monk) and, slightly more loosely, with the set of offences of thought and deed against the king and selected members of the royal family lying at the core of the definition of treason is interesting. That concern with husband-killings should be emphasised in the mid-fourteenth century leads to the possibility that it was part of the concerned programme of reform in the wake of the Black Death and its frightening dislocation and disturbance of expectations.158 It may also be considered to have formed part of the heightened attention of legislators to women, which was noted in Chapter 1, to have developed after the Black Death. In this statute, there was attention not only to women as offenders against their husbands, but also as potentially wronged parties, with the inclusion of offences against royal women being designated as treasons. The inclusion of husband-killings amongst treasons is probably best seen as, in part, a new formalisation of the conceptual positioning of what was already seen as a serious affront to accepted social order, and was already subject to a different penalty from that for ‘ordinary’ homicide. It was not, however, initially assimilated to treason in the language which was used in accusations. Thus, Matilda Kene, who was in 1292 accused of killing her husband, was said to have done so nequiter et in felonia rather than using a specialised term suggesting sedition or treason, such as proditorie.159 Treason as a separate and coherent concept was itself ‘under construction’ in this period. The 1352 legislation was probably the first step in the assimilation of husband-killing with the solidifying concept of treason, with the ‘petty treason’ label, by which it was known to later generations of lawyers, coming into greater use for this conduct in the fifteenth century.160
156 Cleveland, Woman under the English Law, p. 158.
157 Bracton II, p. 334. Fleta book 1 c. 16.
158 Bellamy, Law of Treason, p. 123. Crook, ‘Seditious Murder of Thomas of Sibthorpe’, argues that particular (male) cases influenced the Statute.
159 JUST 3/87 m. 8 (IMG 105). She preferred to face the statutory penalty for refusal to plead rather than a trial.
160 For the later sense, see Bellamy, Law of Treason, p. 229; RP IV, 260b (1423) – ‘Petty treason’ term used 1423, SC 8/307/15328, 1497 statute SR II, p. 639.
Cases of wives killing husbands had appeared on rolls from the late twelfth century onwards, and there are indications of burnings for this offence from at least the early thirteenth century.161 Differentiation between a wife’s punishment for killing her husband (burning) and that of another woman convicted of the same offence (hanging) can be seen in a case from the eyre of Kent of 1293–4.162 Burnings of husband-slayers were not common; only very occasionally does a gaol delivery roll have more than one such burning.163 This penalty was not always employed; for reasons which are not apparent, convicted husband-slayers were sometimes hanged rather than burnt.164 Nevertheless, the idea that burning of husband-killers was very rare, or specifically associated with mid-fourteenth-century legislation and later fourteenth-century conditions, can be overdone.165 Records, reports and recommendations of the burning of convicted husband-killers can be found throughout the late medieval period.166 There seems no doubt that burning was the accepted punishment from the early fourteenth century onwards. Had it not been the case that burning was a realistic possibility, the accusation that Hugh Despenser the younger had, in 1322, threatened to have Alice de Lacy burned as the cause of her husband’s death (qele estoit cause de la morte son Baron) and that she had complied with him because she feared for her life (pur doutee de sa morte) would not have made sense.167 It did make sense because the threat of burning for the killing of a husband was real and could be made even against women from the highest social positions.168 There are sufficient records to show that burning was not just a remote, theoretical possibility, but something to fear and expect. Common lawyers and those involved in the administration of justice accepted that this was the correct response to this offence, and acted upon this view in husband-slaying cases.
161 Kerr, ‘Husband and Wife’, p. 240; CRR V, p. 64, 1207: accused wife passed ordeal of iron; 59 SS p. 338 pl. 743 (fled): Coss, Lady, 134: Nicholas Vincent, ‘Simon of Atherfield d. 1211, a martyr to his wife’, Analecta Bollandiana 113 (1995) p. 349–61. Burning, 1212, 62 SS, 322, CRR VI, 306. Other examples of burning of wives, e.g., JUST 1/538 m.13 (IMG 3188); JUST 3/35B m. 53d (IMG 0217); JUST 1/705 m. 6d (IMG 8411); JUST 1/573 m. 78 (IMG 563); JUST 3/92 m. (IMG 403), JUST 1/374 m. 42 (IMG 2331); JUST 3/74/2 m. 5 (IMG 0023); 1315 JUST 3/111 m. 9 (IMG 22); JUST 1/1108 m. 17 (IMG 8657); KB 27/243 Rex m. 7 and 7d (IMG 261 and 250); JUST 3/1/3 m. 7d (IMG 0153); JUST 3/18/5 m. 29 (IMG 329); JUST 3/28/1 m. 5 (IMG 0013); 1357 JUST 3/139 m. 4d (IMG 82) two cases; JUST 3/166 m. 7 (IMG 16); 1380 KB 27/476 Rex m. 19 (IMG 0521); JUST 3/173 m. 26 (IMG 61); KB 27/508 m. 4 and m.6d (IMG 116, 252);JUST 3/177 m. 49 (IMG 107); JUST 3/180 m. 30 (IMG 67); JUST 3/177 m. 27 (IMG 0058); JUST 3/180 m. 30 (IMG 67); JUST 3/168 m. 9 (IMG 10); KB 27/561 Rex m. 2d (IMG 402); JUST 3/195 m. 72d (IMG 0415); KB 27/638 m. 20d (IMG 0583); JUST 3/197 m. 8 (IMG 21); JUST 3/202 m. 4 (IMG 827). There were also, of course, instances in which a woman abjured, e.g., JUST 1/778 m. 55 (IMG 7912); fled, e.g., JUST 1/303 m. 53 (IMG 8749); JUST 1/383 m. 57d (IMG 1800)); escaped from gaol, e.g., 2 SS, 154; died in gaol, e.g., JUST 1/166 m. 19 (IMG 9590); refused to plead, e.g., JUST 3/87 m. 8 (IMG 105); was acquitted: JUST 1/883 m. 4d (IMG 516); KB 27/883 m. 69d (IMG 416); including when a supposedly slain husband turned up in court: 1306 (JUST 3/105 m. 9 (IMG 18)); had a sentence deferred for pregnancy, e.g., JUST 3/113 m. 6d (IMG 27); JUST 3/189 m. 5 (IMG 13)) or was pardoned (see, e.g., Mitchell, Portraits, c. 6). Murderous Maud? The case against Maud Mortimer of Richard’s castle; CPR 1301–7, pp. 69, 378, pardon ‘for a felony she is said to have committed’; JUST 1/1334 m. 43d (IMG 2753); SC8/278/13872, KB 27/608 m.7 (IMG 89); KB 9/366 m. 32 (IMG 0064); KB 29/114 m. 12d (IMG 0080); KB 29/115 m. 11 (IMG 32); KB 27/893 m. 8d R (IMG 602). See also, for procedure at the local level, London Eyre 1276 no. 209.
162 JUST 1/374 m. 63 d (IMG 2563).
163 JUST 3/139 m. 4d (IMG 82).
164 JUST 3/199 m. 5 (1423) (IMG 568); JUST 1/383 m. 58 (IMG 1584).
165 Kerr, ‘Husband and Wife’, p. 240, and Strohm, Hochon’s Arrow, p. 39, suggest few burnings before the mid-fourteenth century.
166 See above note 161.
167 Natalie Fryde, The Tyranny and Fall of Edward II 1321–1326 (Cambridge, 1979), p. 113; Miscellaneous Books, duchy of Lancaster, D.L. 42/11, f. 66v.
168 Aside from Alice de Lacy, those accused included women labelled domina, wives of a dominus and a gentleman: JUST 1/306 m. 8 (IMG 9068); JUST 1/306 m. 8d (IMG 9088); CPR 1301–7, pp. 334, 378, 402, 410, 427, 440; JUST 1/1334 m. 43d (IMG 2753), KB 27/889 m. 22d (IMG 201), JUST 3/28/1 m. 5 (IMG 13).
Two instances of burning have received particular attention from modern commentators. Juliana Murdak was burnt for being ‘of counsel and precept’ with those who killed her husband in 1316.169 Nobody else was executed for this crime: one probable offender claimed benefit of clergy, another turned approver.170 The 1387–8 case of Elizabeth Walton, according to the Westminster chronicle, saw a wife inciting a priest to kill her husband. The priest received ‘condign punishment’ and the woman was burnt.171 These two cases are clearly interesting and important. They show the triple disadvantage for women of a system conceiving responsibility for homicide in relatively wide terms, and treating with particular opprobrium homicides going against hierarchical norms, but shutting women out from ‘escape routes’ available to men. Neither woman was alleged to have struck the fatal blow, and yet only they were executed, and they were executed by burning.
169 97 SS, pp. 216–17.
170 97 SS, pp. 216–17; Plea Rolls for Staffordshire, ed. by G. Wrottesley, pp. 30–4; William Salt Society x, 38; xiv, 18; KB 27/241 m. 12d (IMG 237): KB 27/242 Rex mm. 4, 31, (IMG 322, 378) and 31d (IMG 368); KB 27/243 Rex m. 7 and 7d (IMG 261 and 250). See also CCR 1323–7, 413; CCR 1318–23, 299, 471; CIPM II, 657; V, 555. For property ramifications of the case and the interest of law reporters: Seipp 1330.430ss and 1330.704ss; 97 and 98 SS pp. 216–17, 588–9; CPR 1340–43, p. 98 and CPR 1348–50, p. 340. Coss suggests an illicit relationship between Juliana and a constable: Peter Coss: ‘An Age of Deference’, in A Social History of England 1200–1500, ed. by Rosemary Horrox and W. Mark Ormrod (Cambridge, 2006), pp. 31–72, 48; Lady, pp. 131–8.
171 Westminster Chronicle, p. 322; KB 27/508 m. 4 and m. 6d (IMG 116, 252). See, e.g., Hanawalt, Wealth of Wives c. 6 note 78; Paul Strohm, ‘Treason in the Household’, in Hochon’s Arrow: the Social Imagination of Fourteenth Century Texts, ed. by Strohm (Princeton, NJ, 1992), pp. 121–44.
Although I would emphasise the long-term view of burning as a penalty for women who killed their husbands, it could also be argued that there may have been a particular royal and municipal interest in husband-killings in the later fourteenth century. This is suggested by criticisms of apparently unauthorised exercises of jurisdiction in this area in Yorkshire in 1378172 and a case from Dartmouth in 1390. These showed both eagerness by local authorities to burn female petty traitors and an idea that this was something over which the ‘centre’ should have some control. The latter case, for example, emerges from the 1390 patent roll pardon for the mayor of Dartmouth, for having had Denys, wife of William Beaumont, burnt, after she had been convicted for killing William by poison, without obtaining royal permission for the burning.173 The presence of a particular interest in burning husband-slayers at this time might conceivably be linked to roughly contemporary concern with women’s troubling behaviour, disrupting patterns of family authority, which also saw changes in legislative provisions on the effect of women’s sexual or marital misconduct on their rights to land.174 Scrutiny of the boundaries of authority and the attention of chroniclers should not, however, be confused with changes to the normal operation and accepted understanding of the common law. Burning had been the orthodox penalty for husband-slayers for a considerable time, and continued to be so regarded thereafter: burning was, for example, confirmed as the penalty for wives who killed husbands in the late fifteenth century too, in the discussions of lawyers reported in a Year Book note of 1483.175
172 This involved W’s alleged participation in the killing of H, but the focus was on a clerical participant, and the (lack of) authority of those who had condemned the killers. KB 27/468 Rex m. 19 (IMG 131); 88 SS, pp. 5–7.
173 CPR 1388–92, p. 253. A royal order also was given in the Walton case, KB 27/508 m. 4d (IMG 252).
174 Phifer, ‘Property, Power’, p. 212; Hawkes, ‘Preliminary Notes on Consent in the 1382 Rape and Ravishment Laws of Richard II’, Legal History 11 (2007), 117–32.
175 Seipp 1483.037; for property ramifications of petty treason, see Seipp 1449.070abr. For the burning of a young employee for killing her mistress: Seipp 1338.182rs; 1338.278ass; Bellamy, Law of Treason, pp. 87, 227. A Nottinghamshire servant convicted of murdering her mistress was hanged, not burned (1413, JUST 3/56/8 m. 2 (IMG 6), m. 15 (IMG 27); JUST 3/195 m. 64d (IMG 397). W kills H: Seipp 1322.018; 1338.182rs. Reports relating to the Murdak case: 1330.430ss and 1330.704ss (property). Bellamy, Law of Treason, p. 227; A. Fitzherbert, La Graunde Abridgement (London, 1516), I, f. 259.
Some records give further insights into ideas around this, particularly sex- and gender-charged offence. Accusations include descriptive information which might have been taken as intensifying the offence – or explaining how a woman could have managed it – such as that the husband was in his bed or that the killing was done at night.176 Allegations of husband-slaying include poisonings, use of weapons and killings in the context of a fight.177 Some records note concealment of the corpse by throwing it in a well or river, putting it in an oven or in the case of one Kentish wife in 1334, convicted and burnt for killing her husband, chopping it up, feeding part to the dogs and burying the rest.178 There is no sign of a disinclination amongst male community representatives to put women at risk of burning, as can be seen in the inclusion of a clarificatory statement at the end of an indictment of 1446, in which it is made clear that Joan, now wife of John Margetson, one of her co-accused, was married to William atte Talys when he was slain.179 There was to be no question of this being dealt with as a ‘mere’ homicide, and no risk of a failure on the grounds of incorrect description of Joan’s status.
Husband-slaying accusations include women acting alone and acting with others, and, in particular, ‘consenting’ or similar whilst others (generally males) perform the actual killing. There are records of accusations of wives working with a sister, brother, son, a servant, a lover (several of them clerics), a lover who is also a servant or another individual.180 Some early cases suggest a ready suspicion of wives. A record of 1207, for example, shows a woman accused of procuring her husband’s killing, apparently on the basis of local awareness of quarrelling between the spouses over her alleged multiple adulteries, and removal of chattels from the matrimonial home, but notes her vindication by ordeal of hot iron.181 Another wife was accused in a jury’s perhaps far-fetched narrative of secret signs and signals to let her alleged lover in to her house to kill her husband; she was, however, not tried.182 One wonders how it could plausibly be thought to be known by those drawing up an indictment in Wiltshire in 1305 that ‘Joan’ who was the wife of Richard de Langeleton had procured unknown men to slay Richard her husband at Coveleston.183 In the later fifteenth century, Fortescue noted a case which seems to support the idea that women might be presumed with relative alacrity to be involved in ‘domestic’ murders of their husbands.184 As an illustration of the disadvantages which could come with speedy legal processes, ‘the Chancellor’ tells ‘the Prince’ of a case he had seen at a Salisbury gaol-delivery session. A woman had been indicted for the death of her husband. She was convicted and burned ‘within the year’, but at a later session, the slain man’s servant confessed that he had committed the murder alone and that the burnt woman had in fact been completely innocent.185 Accusations might also be made some time after the alleged killing, leaving women at risk of disastrous consequences long after the loss of a husband, as can be seen in a case from the London eyre roll of 1276, recording an appeal in 1269–70 against a woman accused of killing her husband by the administration of a ‘poison drink’ in 1263–4.186
176 JUST 1/538 m. 13 (IMG 3188).
177 JUST 1/135 m. 14 (IMG 6975); JUST 1/306 m. 8 (IMG 9068); JUST 1/306 m. 8d (IMG 9088); KB 27/883 m.69d (IMG 416); CPR 1388–92, p. 253; JUST 3/167 m. 39 (IMG 86). 1422 decapitation with a sword: JUST 3/197a m. 9 (IMG 21) (axe); JUST 1/374 m. (IMG 2331); (knife) JUST 1/573 m. 61 (IMG 527); slit throat: JUST 1/739 m. 90 (IMG 1613); axe SS 88 p. 118: KB 27/561 m. 2d, 1401 (IMG 402); JUST 1/573 m. 61 (IMG 527).
178 JUST 3/92 m. 3 (IMG 403); KB 9/366 m. 32 (IMG 0064); KB 27/893 m. 8dR (IMG 602). W strangling H, then disposing of the body in an oven: Pike, History of Crime I, p. 256, JUST 2/26 m. 1 (IMG 3). JUST 3/28/1 m. 5 (IMG 13).
179 KB 9/253 m. 14 (IMG 28) 1446. See, however, KB 27/285 m. 14 (IMG 461).
180 JUST 1/135 m. 14 (IMG 6975); JUST 3/92 m. 3 (IMG 403); JUST 1/486 m. 11d (IMG 2842), JUST 1/538 m. 15d (IMG 3248); KB 27/883 m. 69d (IMG 416); Seipp 1483.037. Others JUST 1/303 m. 53 (IMG 8749); 88 SS, p. 14; KB 27/889 m. 22d (IMG 201); KB 27/690 Rex m. 3 (IMG 218); Maddern, Violence, pp. 46, 104, KB 27/690 Rex m. 3; SC8 215/ 10727; JUST 3/202 m. 4; KB 9/366 m. 32 (IMG 0064), KB 27/893 m. 8d (IMG 602).
181 1 SS p. 55. See also, e.g., Orr, ‘English Women’, p. 234, PCCG nos 254, 379 (in the latter, a woman seems to have been suspected because she was not in bed with her husband when he was attacked. Her story was that she had been in another room in bed with a sick child).
182 PCCG 1221, no 254.
183 Wilts GD and T, p. 108 no 586 (acquitted).
184 John Fortescue, Francis Gregor, et al., De Laudibus Legum Angliae; A Treatise in Commendation of the Laws of England (Cincinnati, OH, 1874) C 53 212.
185 This case, if it is a real one, has not been identified.
186 London Eyre 1276, no. 209.
The accusation or punishment of a woman as ‘accessory’ (with a hint that she is in fact the evil mastermind and driving force) is not unusual.187 We cannot, of course, know the truth of the episodes behind the accusations. It may be true that women would be likely to seek assistance of those with greater strength or opportunity to kill their husbands, but the common portrayal of the woman scheming behind the scenes may reflect gender-based assumptions of the male triers and indicters that they were involved, but not able to take a principal active role.188 It is interesting to note that accounts might vary in terms of where blame and impetus were placed: thus, the same killing might be assigned to a wife and servant in one account, without differentiation and, in another account, to the servant as principal with the wife consenting.189 The murder of husbands by wives said to have been involved with another man has had a fascination for contemporary authors and modern scholars. Finding an illicit sexual aspect to a killing might be a useful strategy for contemporaries wishing to stress a causal link between immorality and insubordination on the one hand, and more violent disorder on the other.190 In later commentary, speculation as to the presence of an illicit affair as the background to homicide, or its concealment, has proved difficult for some to resist, even when contemporaries left no record of such a suggestion, something which might be thought to tell its own story of ideas about women. In the case of a woman acquitted of a death in 1375, speculation involves a number of questionable steps. The case concerned the death of William Cantilupe, and the accusation and acquittal of his wife, Maud, and others. One account gives as the only ‘plausible explanation’ worthy of mention the theory that Maud was the driving force behind the killing, a view arrived at by a questionable path starting from the fact that Maud later married the local sheriff, instrumental in her acquittal, moving to the idea that he must have wanted to marry her at the time of the killing, then to the idea that they were lovers at that time, to her guilt, to her having been the driving force behind the murder.191 Even more recent authors may fall into this sort of mood, for example, on the basis of the terse and tendentious records of the common law, opining that Juliana Murdak is likely to have been a ‘sexually bewitching woman’.192
187 See, e.g., 1 SS p. 55, no. 101 (1207). Marion, wife of Hugh Dobin, was suspected of procuring Hugh’s death. Some reason for this suspicion is given, in her alleged adultery and removal of chattels from the marital home. She passed the ordeal of iron.
188 Hanawalt, ‘Female Felon’, p. 124, Crime, 117’. Strohm, Hochon’s Arrow, 135.
189 JUST 3/8/6 m. 11 (IMG 92); JUST 3/8/6 m. 35 (IMG 128).
190 Strohm, Hochon’s Arrow, 135–7, notes the Westminster chronicle alteration of the story to focus on an illicit sexual relationship. See also M. Hamel, ‘The Wife of Bath and a Contemporary Murder’, Chaucer Review, 14 (1979), 132–9.
191 Records of Some Sessions of the Peace in Lincolnshire: 1360–1375, ed. by Rosamund Sillem, Publications of the Lincoln Record Society, XXX (1936), pp. lxv–lxxv. On this case, see also F. Pedersen, ‘Motives for Murder: The Role of Sir Ralph Paynel in the Murder of William Cantilupe (1375)’, in Continuity, Change and Pragmatism in the Law: Essays in Memory of Professor Angelo Forte, ed. by A. Simpson, L.M. Wilson, S. Styles, and E. West (Aberdeen, 2016a), pp. 68–93 and ‘Murder, Mayhem and a Very Small Penis’, American Historical Association, AHA (2016), 1–32.
192 Coss, Lady, p. 138.
The apparent threat of Hugh Despenser the younger to have Alice de Lacy burned (as a husband-murderer) as ‘the chief cause of her husband’s execution’193 (her husband having been despatched for rising against the king) suggests an expansive idea of what might conceivably count as ‘killing’ of a husband. It is not clear that there was a suggestion that Alice had in any sense caused her husband’s actions, and this is best seen as a false accusation, though it is one with instructive aspects in relation to understanding of the scope of the offence. Other cases show that presence at the scene of one’s husband’s death might be enough to raise the possibility of being held in some way culpable.194 The limits of the conspiracy/accessory concept, or perhaps of the idea of causation of death, appear to have been reached with an allegation in the 1340s that two men and a woman had conspired to cause the death of the woman’s husband, to acquire his goods, by causing him to be imprisoned and hanged; nothing was to be done in this case, according to the endorsement of the petition of the mayor and aldermen of London.195 On the authority of a story told by a medieval justice, Spigurnel, in a Year Book report of the reign of Edward II, Hale tells us that a wife’s attempt to kill her husband also attracted the penalty of burning, though the case to which Spigurnel referred in 1322 is yet to be identified, and the story he told does not necessarily suggest a ‘pure’ attempt, i.e. one in which the husband certainly recovered afterwards. All that is clear from the story is that the husband was said to have survived long enough to drag himself before justices of gaol delivery who were already sitting, and denounce the wife and her lover as responsible for the attack on him. What was understood to have become of him afterwards is not clear, and Fitzherbert and Staunford’s earlier retellings do not make it clear that this was a pure, and completely unsuccessful, attempt rather than one which caused a lingering, and not an immediate, death.196 There is room for further research on medieval ideas about attempts in general, and this issue may not have been treated in the same way for all offences.197 It is not implausible that the expansive definition of treason, encompassing planning or desiring an outcome, as opposed to acting to ensure its achievement, might lead to the treatment of an attempted killing by wife of husband as ‘petty treason’, but this is not yet clear.198
193 See further above, note 167. See also the alleged false accusation of husband-killing against a woman and a male servant (husband being alive): C1/45/128 dated 1433–43 or 1467–72.
194 A man’s wife and son, present at his killing, arrested, but acquitted: JUST 1/1108 m. 19d (IMG 8715).
195 SC8 59/2929.
196 Hale, HPC 1, 378; Seipp 1322.018; Fitzherbert, Graunde Abridgement (London, 1577), Corone 383; Staunford, Les Plees del Coron (1557) I, p. 10; F.B. Sayre, ‘Criminal Attempts’, Harvard Law Review 41 (1928), 821–59, 824–5; Bellamy, Law of Treason, App. II, p. 227. On attempts and intention, see Fleta book 1 c. 23, Bracton II, p. 342; KB 9/245 m. 68 (IMG 127).
197 Baker, Introduction, p. 524; A. Kiralfy, ‘Taking the Will for the Deed: the Mediaeval Criminal Attempt’, JLH 13 (1992), 95–100, 97.
198 Bracton II, p. 334; Fleta book I, c. 21; Bellamy, Law of Treason, especially c. 5; Seipp 1440.121.
Conclusion
The medieval common law did not have an explicit doctrine of the nature and limits of responsibility, much less an explicit theory of when and how this might differ for men and women or sub-groups of women. Nevertheless, there are themes which can be discerned and uncertainties or changes which should be noted.
There are some striking asymmetries between the common law’s treatment of men and women with regard to doctrines and ideas of culpability, as, for example, in relation to benefit of clergy and ‘petty treason’. There are also some subtler ones, such as the apparently gendered nature of self-defence and accident, in which the common law worked through male paradigms which did not necessarily accommodate women as constructed by medieval social and legal thought. Another example is found in the formulae for pardons for almost all purposes rather than one specified offence, which emerged in the later fourteenth century, made explicit exclusions for homicide and ‘the rape of women’, this formula being used for pardons even when the recipient was herself a woman. Arguably this was not entirely irrelevant, given the alternative definitions of raptus and the existence of accessory liability, but it is best seen as indicative of the lack of specific accommodation for women in the legal system.199 Marital status made a considerable difference to women accused of ‘civil’ wrongs such as trespass or non-payment of a debt. Its impact upon ‘criminal’ responsibility is clear with regard to inculpation – as the cases on husband-slaying demonstrate – but less certain with regard to exculpation.
199 See, e.g., KB 27/47 m. 20 (IMG 173); KB 27/893 m. 6 (IMG 269). Lacey, Royal Pardon, p. 89.
This chapter has stressed the need to re-examine the comforting ideas of favour and balance seen in some previous work on women’s responsibility, in terms of the extent to which the common law developed ways to limit their liability. While their civil liability might be obscured by the mediating presence of a husband, and the logic of his role in relation to property and whatever may have been the case in previous ages, both single and married women in the later medieval period were assumed to be responsible for their own ‘criminal’ actions, liable to criminal penalty in principle and in practice. The law was not restrained by stereotypes of female passivity or weakness from blaming women for forceful actions, and nor should we be too keen to find favour to women in the system, exaggerating the extent to which they might escape criminal liability or punishment, in order to regard this as balancing their position. When a man might take advantage of a fictionalised process of claiming clergy while a woman, charged with the same offence, might be burned, it is hard to think of women as having been the objects of favour. Nor are we likely to comfort ourselves with the thought that, while medieval women may have been harshly treated, they were rather brutish, and so may not be regarded as appealing objects of pity:
[T]he women of these times were in many cases wanting in pity, decency, and all the better attributes of the sex … devoid of patience, gentleness, and sympathy. … Crimes of violence, such as the strangling with her own hands of a lover or husband, were by no means unknown; and if the criminal law punished women with severity, many of those who suffered had by their behaviour almost forfeited the right to be regarded as belonging to what is termed the gentler sex.200
200 Cleveland, Woman under the English Law, p. 158 And see Pike, above p. 123.