The species of ‘petty treason’ concerning women who were accused of killing their husbands is something which has interested me for some time, and I have included a number of notes on particular cases on this blog. At the moment, I am trying to think slightly more broadly, as I prepare a paper for a conference in 2022. The theme for the British Legal History Conference 2022 in Belfast is ‘Constitutional Change’, and it struck me as not too much of a stretch to do something on ‘petty treason’ there, because of the specific link which was made by the Statute of Treasons 1352 between acts against the King and his realm on the one side (which we might, slightly anachronistically, call ‘high treason’) and acts against smaller-scale ‘constitutions’, in the home, the workplace, the religious house (which come to be called ‘petty treason’, from the fifteenth century onwards). At the moment, I am working on two particular sub-issues in this area, which, though they may seem to be rather separate, do have a certain connection (to my mind at least) in that they involve complexities which are the product of choices made by common lawyers in their construction and positioning of women within the rules and procedures of the common law.
The first of these areas is that of understanding of ‘petty treason’ itself: was it ‘really’ a sort of treason, or a sort of homicide? That is not simply a problem of abstract classification, but something with potential practical effects, in terms of procedure and pleading. Looking at other systems, which did not take the slightly metaphorical route of extending treason (wholly or partially) to the ‘petty treason’ offences,[i] I do find myself questioning whether doing this may have been an unnecessary complication. What, really, was thought to be gained by partly assimilating the ‘non-regal/regnal’ offences to high treason? It was not necessary to do this, in order to punish offenders in a particularly distinctive way – since this was already happening well before the legislation. At least one of the categories (the religious one) does not seem to have been a real concern (I am yet to find any examples of charges based on it), and there do not seem to have been floods of master-servant cases (impressionistic – I need to do more digging here, but there do not seem to have been too many). Moving offences between treason and homicide might have some justification in terms of removing the possibility of benefit of clergy, but that would not explain the inclusion of wives who killed their husbands – since they could not claim clergy anyway. So, unless it is to be dismissed as ‘all talk’ and posturing, lashing out of ‘the authorities’ after the Black Death etc., etc., this is a bit of a puzzle. I think I need to see where else the extension of treason followed a similar pattern.
The second area of possibly unnecessary complexity involves the interaction between husband- killing and a series of rules and attitudes about women which had been laid down, or were being laid down, in the common law by the later medieval period. These were: misogynist views about women’s nature and capabilities; ‘property law’; rules about principal and accessory; and rules about the bringing of appeals. None of this arose by accident, and nor was it inevitable, and yet common lawyers felt themselves unable to choose not to allow it to cause complications and distortions in particular sorts of case. This is particularly evident in cases involving more than one person, including a wife, being accused of involvement in the killing of a married man. It is hard enough to decode those cases in which a wife is accused of participation with another or others, in one legal action: we cannot get much purchase on questions as to whether her participation is being exaggerated or underplayed, whether to assume or believe allegations about her sexual entanglement with other participants. Even more difficult, however, are the cases in which the wife accuses one person, and then somebody else with a decided interest in getting her out of the way, but also a likely personal interest in the deceased – his brother or heir – accuses her of having been involved. There are a couple of these mentioned in posts here, and I remain uncertain as to exactly what was going on in some such cases, as I have mentioned. I do have theories, some of which I ran past a seminar in October (you can hear something of them here if you are interested), but there is certainly room for more thought. Perhaps the most intractable sort of case was that which also brought in complications involving an heir who was the child of both the deceased husband, and also the allegedly homicidal mother – how should property questions and forfeitures be handled in such a case. There are signs that the common law was not thought up to handling these at all, in a later fifteenth century case relating to the Chaworth family,[ii] in which there was a resort to petitioning. The case is considered in Payling, S.J.,’Murder, Motive and Punishment in Fifteenth-Century England: Two Gentry Case-Studies’, EHR CXIII (1998) 1-17 (and I am trying to integrate into my account now, and to see how it relates to the several slightly inconsistent things which common law sources say on the subject of rights to bring an appeal for the death of a murdered married man).
All in all, it is hard not to see some of the complications in this area as deriving from the unresolved tension between different constructions of women: capable and incapable; persons and not-persons; objects of particular pity and protection and objects of particular fear. I would not say that this tension was unique to the common law, but perhaps – to change my physical metaphor – greater balance than some systems between the binaries I have just set up made things particularly difficult. And perhaps the common lawyers’ metaphors themselves – coverture and petty ‘treason’ and the rest – also made their own contribution to the whole complex business of legal response to intra-familial violence. Onwards I go …
[i] I have been spending some time looking at Scots law in particular – very interesting and different law of treason from that found in the common law, followed by very abusive imposition of the English rules after Jacobite scares. I think the contrast with Scotland would work well in my paper, though I am a little hesitant about blundering in as an outsider and non-expert…
[ii] KB 27/816 m. 70 (1465); KB 27/817 m.105; KB9/308 m. 82.