After many years of comparative neglect, medieval married women (of a non-queenly, non-noble sort) have been considered with much greater care, in the historical studies of recent years.[i] It has, I think, become clear that not even classical legal historians – with their customary focus on doctrine and procedure, rather than people – ought to be muttering ‘coverture’, as if that magic word gave a straightforward answer to all possible questions relating to wives and common law, and then moving back to writs and institutions.
A glimpse of the complexity, and perhaps contradictions, involved in common law construction of the married woman can be seen in a remarkable pair of entries on a Leicester gaol delivery roll from the reign of Henry V.[ii] These entries, from a session in 1419, revolve around the death of a certain John Chaloner of Leicester, and those found to have been involved in that death. John’s wife, Margery, had brought an appeal (individual prosecution) against John Mathewe of Leicester, tailor, accusing him of killing her husband in his bed, on a Saturday night in November 1418, and accusing Richard Bargeyn as an accessory to this offence. These men were found guilty, and they were ordered to be hanged.
So far so not very surprising: bringing appeals for the deaths of husbands was an acceptable role for a wife. By this time, they no longer had to claim that they had held their dying husband in their arms, in order to justify their prosecution of his alleged killers: it was simply uncontroversial that a wife could bring such an appeal, despite the general restrictions on prosecutions by women. They had their uses.
Immediately after this un-astounding entry, there is, in fact, something of a surprise – at least to the reader. Margery, formerly appearing as the wronged and avenging widow, is cast in a different role entirely. She herself was the subject of an appeal, by the self-declared brother and heir of John Chaloner, John Smyth of Moreton, and was accused of participation in the death of her husband. A jury found her guilty of this and she was ordered to be burned. Presumably rather desperate, Margery then asked for a respite of the execution, claiming to be pregnant. The usual procedure was performed, with the ‘jury of matrons’ assessing Margery’s body. They adjudged her not pregnant, however, so the burning was ordered to go ahead.
This second case would be grim, but not in any sense odd, were it not for the fact of its association with the first appeal, and the role-switching which all of this involved. A woman was seen as an adequate bringer of an appeal against others, despite herself being the subject of an appeal for the same offence. In some ways this looks a little like an analogue of the approver appeal, in which one member of a criminal gang turns on the others and accuses them. Unlike the successful (male) approver, however, Margery was not immune from the consequences of her alleged actions. The idea that a woman suspected to have participated in her husband’s killing, could bring an appeal against her fellow-felons is one which was put forward in a judicial aside by William Babington, one of the justices of gaol delivery in this session, just a couple of years later, in a case in the Exchequer Chamber. It seemed rather unlikely to me, until I saw this case (and I am afraid I said so, in my recent book).[iii] I still find it a bit odd, but, clearly, it happened. It shows the ‘double edged’ effect of marriage – it was her marriage which gave Margery standing to pursue her appeal, but it was also her marriage which laid her open to especially spectacular punishment, when she herself was convicted.
I note that Margery had, as pledges for the prosecution, John Smyth and Robert Chaloner, and then John Smyth had Robert Chaloner and one other man as his pledges. This suggests that the double appeal strategy was no accident, and that there was a very strong idea that if there was a wife, she was the one who had to bring an appeal for her husband’s death. There was, presumably a reason why John Smyth could not simply appeal against Margery, and then, once she had been burned, as heir, appeal against the other alleged perpetrators, if he so desired – I imagine that this was to do with principal/accessory issues (the entries are not very detailed on this). I am yet to work out why Margery might have been co-operating with the man who was about to prosecute her to her fiery destruction. Was force involved, or trickery, or did she think she might somehow escape conviction and execution? In any case, the moving force in the legal process seems to be John Smyth, the heir to John Chaloner, who comes out at the end of the grisly story rather better off and not under suspicion … officially.
[There is also the possibility that John Smyth was not real, but a device to bring an appeal when nobody else could/would. Was there any procedural advantage in using somebody from outside Leicestershire (I believe Moreton is in Warks)? And I wish I knew who Robert Chaloner was – I am sure he would be able to tell us! Needs more thought …._Hope I come up with an answer before giving a paper revolving around it in the summer!]
[i] See references in GS, Women in the Medieval Common Law, c. 2. Anyone new to the area would be well advised to start with Married Women and the Law: Coverture in England and the Common Law World ed. by Tim Stretton and Krista Kesselring (Montreal, McGill-Queen’s UP, 2013) and Married Women and the Law in Premodern Northwest Europe. edited by
Cordelia Beattie and Matthew Frank Stevens (Woodbridge, Suffolk: Boydell Press, 2013).
[ii] JUST 3/195 m. 72d. They are mentioned in Edward Powell, ‘Jury Trial at Gaol Delivery in the Late Middle Ages: The Midland Circuit, 1400-1429’ in Twelve Good Men and True: The Criminal Trial Jury in England, 1200-1800, edited by J. S. Cockburn and Thomas A. Green, (Princeton: Princeton University Press, 2014), 78-116 at 106.
[iii] GS, Women in the Medieval Common Law, 99.