Tag Archives: gender

Gender in word and deed

Law is, as we all know, a wordy thing. Its rules, pronouncements, rulings, are bound up with the words in which they are expressed. Working across the different languages of English and Welsh legal history involves engagement with some issues which are properly in the domain of the linguist, which should encourage caution, but at times they cannot be avoided. One of these issues is that of gender. The convention of linguistic gender is widespread. Perhaps it is often not particularly important, but when one is studying medieval women, it deserves attention.

The issue comes up in different ways. One is disputes about whether a masculine word should be taken to apply to women as well as men. In the unattractive phrase found in 19th and 20th C writings, does ‘the masculine embrace the feminine’? Thus the disagreements as to whether women should have been considered to be within the protections given to a liber homo in Magna Carta, and wrangles as to whether ‘heirs’ should be understood to ‘embrace’ ‘heiresses’[i]  Another way in which linguistic gender v. sex/gender in reality arises relates to the ‘feminisation’ (or not) of texts and provisions. I have been pondering this lately, in the context of pardons.There are two interesting, and contrasting, aspects of pardon formulae to mention here,[ii]  one relating to sorts of offence (specifically, rape), and the other to roles within the criminal justice system (specifically, approvers).

From at least the late fourteenth century, pardons which cover more than one specified offence commonly exclude from their ambit treason, homicide and the rape of women.  These offences are, one presumes, held up as too serious to be pardoned as a ‘job lot’ with any other transgressions an offender might have committed in a particular period. I have noted that ‘rape of women’ might still be included when the person receiving a partdon was a woman. This seems interesting because felonious rape was, at this point, and until very recent times, a ‘male on female’ offence. Women might be accessories, to felonious rape, or to ‘ravishment’, but not principals. Had the formula been devised with female offences in mind, it is hard to believe that it would have included this particular exclusion. I find it interesting, and telling in terms of the relationship between women and the law, that the formula was adopted, unchanged in this respect, when the ‘pardonee’ was a woman.

One gender-adjustment is made in these same pardons, again from at least the later fourteenth century.  In the original, ‘male’ version of the wording, mention is made of the possibility of the potential ‘pardonee’ acting as an approver – one who confesses an offence, but hopes to avoid execution by inculpating others, appealing them and obtaining a conviction.[iii] When the ‘pardonee’ is female, this word is feminised – so ‘probator’ becomes ‘probatrix’.[iv] Fair enough, according to the linguistic/legal rules of the day, one might think, since ‘misgendering’ might cause an indictment to be held insufficient. The odd thing is, though, that acting as an approver was a ‘men only’ thing. All the evidence suggests that, because approvers had to be able to engage in trials by battle, and because women were not thought capable of fighting such judicial duels, they were never approvers of this sort. Thus, the feminised word had no attachment to the reality of legal process. It is unanswerable, of course, but I do wonder what was going on in the minds of the clerks drawing up these pardons. Was it an automatic translation (the medieval in-language equivalent of Google translate?)? Is it evidence of a rather radical (even performative?) disinterest in women and the ways in which the law positioned them as different and unequal?  And does this have anything to say to existing scholarship on gender roles in the pardoning process (queens interceding, mercy as a bit on the effeminate side etc. etc.)? Gendered food for gendered thought.

GS

15/6/2021

[i] I have a bit of a go at these in c.1 of Women in the Medieval Common Law.

[ii] On later medieval pardons, see especially Helen Lacey, The Royal Pardon: Access to Mercy in Fourteenth-Century England. (Woodbridge, Rochester NY: Boydell & Brewer, 2009).

[iii] For a masculine version, see, e.g., this one.

[iv] See, e.g,, this one.

Picture – well, if you have to ask…, it’s a quite brilliant reference to Lynn Anderson’s Country and Western classic ‘(I beg Your pardon, I never promised you a) Rose Garden)’ – one of the great rhymes in popular song….

Photo by Max Berger on Unsplash

A ‘Petty Treason’ Oddity

This really is a snippet, but, I think, worth mentioning as a little footnote to various recent posts on wives being treated as ‘petty traitors’ for killing their husbands.

A gaol delivery entry for a session at Bedford on 30th July, 1439 (JUST 3/210 m. 31) noted that William atte Halle of Bromham in Bedfordshire, labourer, had been indicted for the felonious killing of his wife, Alice. On 7th May the same year, at Bromham, he had allegedly posioned her food with ‘some deadly poison called arsenic and resalgar’. She had died on the 18th May. William’s not guilty plea was unsuccessful. He was found guilty and was ordered to be drawn and hanged.

So what?

The marginal note here, ‘distr’ & sus’ is not the usual expression of punishment for an ‘ordinary’ felony – we would expect just the ‘sus’ – referring to the hanging. ‘Drawing and hanging’ is usually only seen in cases of ‘petty treason’ convictions of men (so, servant kills master cases and counterfeiting). A husband killing his wife was not petty treason, since this was a category which related to offences against hierarchy, so there was no conjugal symmetry here. So was this a mistake? Was this particular case seen as particularly heinous for some reason? Could it have been the poison? A mystery – perhaps somebody can enlighten me.

I am also interested in the ‘cause of death’ aspect. Those who have ever done me wrong will be pleased to know that I have no expertise in the art of arsenic poisoning, so I do not know whether a death 11 days after ingesting arsenic would be likely to have been caused by the arsenic. Either way, it is interesting that a medieval jury would think so, and it’s one for my ‘post attack lingering deaths’ spreadsheet.

GS

16/5/2021

(Photo by Raphiell Alfaridzy on Unsplash – OK it’s a bit random, but generally suggesting meal preparation …)

To Marry and to Burn: punishing domestic treachery in medieval England

(A version of this was posted on the Bristol Law School Blog on 24th May 2021.  I will continue to update this version, including adding to the ‘grand total’ mentioned in the sixth paragraph below, as I find new instances).

One of the less enthusiastic endorsements of marriage is to be found in the words of St Paul’s first letter to the Corinthians: ‘it is better to marry than to burn’. His point was that celibacy was the best way to live, but those too weak to resist the temptations of the flesh could take the second best option of monogamous marriage. Before the Protestant Reformation in England, there were those who followed what this passage portrayed as the higher path, dedicating themselves to a life of celibacy and the service of God in monasteries and convents, but for most people, the expectation was marriage. Marriage and fire were, however, not as distant, one from the other, as St Paul’s words would imply.

Marriage in medieval England was understood to be hierarchical, with the husband expected to control and correct the wife, and the wife to obey the husband. He was (again in words attributed to St Paul), ‘the head of the wife’.  No doubt, as a great deal of historical research over the past few decades has shown,  there were many variations in practice, with more and less amicable situations, more and less mutual respect.  Even so, the husband’s authority over the wife was a fundamental principle, with real consequences; and one of these was connected with fire.

We can see an example of this connection between marriage and fire in an entry on a medieval legal record from the late fourteenth century. This notes a case from Essex, dealt with by John Cavendish and others, sent to the county as royal justices, in 1378. An indicting  jury of twelve men had said that, when John Trilly junior was lying in bed one Saturday night, his wife, Margaret, and a certain  John Robat of Walden, killed him with an axe or hatchet. The suspects were arrested, brought to court, pleaded not guilty, and accepted jury trial. Unfortunately for them, the trial jury said that they were both guilty, as well as noting that, at the time of the killing, Margaret was John Trilly’s wife. It was ordered that John Robat should be hanged. Margaret, however, was to be burned.

From at least the first half of the fourteenth century, and probably from the thirteenth century, the accepted punishment for a wife who killed her husband was death by burning. This was an unusual mode of execution: most convicted felons (including husbands convicted of killing their wives) faced the rope rather than the fire. For those of us for whom capital punishment of any sort is entirely abhorrent, it may be difficult to feel particularly exercised about the use of one method of ending a life rather than another, so long ago. (We may, though. note the reference, in a document relating to the execution of Anne Boleyn, of the move from burning to decapitation as a matter of royal mercy, as some sort of indication that there was seen to be a difference, at least in the sixteenth century), and it is certainly the case that, for a legal historian, it is important to try to look into the flames, and see what can be learned from past law, past practice.

Why burn husband-killers? Three overlapping factors were relevant: sex/gender, marital status and nature of the offence. This was not, in fact, the only type of offence in which a woman might be burned while a man would face a different penalty. The same applied to counterfeiting offences, and to killings of one’s employer, and there are occasional, earlier, examples of women being burned for other felonies. The use of burning for husband-killers is, however, clearly connected with a wish to make a particular example of those who transgressed against the hierarchical understanding of marriage. For a wife to kill her husband was not simply homicide, but a form of rebellion against her natural superior. It was mentioned in the Statute of Treasons 1352, and from the fifteenth century onwards, it came to be called ‘petty treason’.

The burning of husband-killers has tended to be minimised in classical accounts of legal history, and is sometimes assumed to be associated with the Statute of Treasons. My research in this area has, however, highlighted both the longer, deeper association of husband-killing and fire, and also the greater number of examples of women consigned to the flames for this offence than had previously been suggested. While they were never numerous, there were certainly enough of them to confirm in the minds of lawyers and the population more generally, that this was the expected outcome, in the event of a conviction for husband-slaying. I have discussed the matter in a chapter of my recent book on women and common law in medieval England, and continue to collect examples of women sentenced to death by burning, from the vast corpus of medieval legal records which remain to us. The current total on my ‘spreadsheet of doom’, compiled from work on records of late medieval criminal sessions (13th-15th Cs, the majority being from the late 14th C and early 15th C), stands at 65 burnings ordered for women convicted of husband-killing. While it is not possible to elicit comprehensive, reliable, statistics from such searches, it may be of interest to note that this is considerably higher than the number of executions for rape which I have seen in the same records, though considerably lower than the number of executions for theft, for example. It is certainly high enough to be worthy of attention.

The idea that the offence was particularly heinous and should be punished in this spectacular and symbolic way was not something which was being imposed on communities by ‘the powers that be’: it was something much more pervasive. In some contrast to other areas of crime, in which jurors were willing to bend facts to let defendants avoid punishment, trial jurors, and those men in local communities in a position to initiate prosecutions by indictment or presentment, seem to have been keen to ensure that husband-killers would be burned. On occasion, we see them making it clear that a woman charged with homicide was married to the deceased at the time he was killed, though this might be obscured by the fact that she was now married to somebody else. This was done so that conviction would lead to burning, not hanging. There seems to have been no doubt in the minds of the leading men in medieval communities that it was right to mark out husband-killers in this way.

The fact that the penalty was used, and accepted as appropriate by men at different social levels, over a long period of time, would seem to make it likely to have exerted an influence on the minds and behaviour of married women. This is particularly so, if we add in other things which I have noted emerging from my archival work: accusations were sometimes made on what looks like a relatively slender basis, with rather quick leaps to an accusation that a woman whose husband was killed by somebody else was ‘in on it’, and even over-zealous prosecution when the husband was not, in fact dead at all. These findings do tend to suggest that the threat of fire as a judicial penalty, as well as an eternal punishment, is something which should receive further consideration in studies of medieval marriage and gender, as well as law.

As well as telling other people what they ought to think is worthy of investigation,  a post on a research blog  is a good place to include a little reflection on the process of conducting research. I began looking at this area as a result of being unconvinced by the accounts I had read in secondary sources, and suspicious that they were over-simplifying matters, in a way which played down the importance of the executions of women by burning. To understand what more there was to say, and how accounts might need to be adjusted, it has been necessary to trawl through a very large number of pages of medieval manuscript (in recent times, this has been via the magnificent Anglo American Legal Tradition collection of scanned images), looking for accusations of husband-killing, and orders that somebody should be burnt. Finding a needle amongst the fields of haystacks does sometimes feel like a bit of a ‘win’, each instance strengthening the emerging argument. Nevertheles, each time I come across one of the Latin abbreviations indicating that a burning has been ordered, in the margin of a roll, there is the realisation that it indicates a terrifying end to a real person, as human as the rest of us. I have come to recognise that that feeling, that discomfort, that connection, is itself important in an investigation of the people whose lives and deaths are noted in the rolls.

 

Here endeth the lesson.

GS

1st May, 2021.

(Photo by Zachary Kadolph on Unsplash)

Early modern attitudes: was ‘hermaphrodite’ defamatory?

I am preparing a lecture on the history of common law ‘tortious’ defamation, and have, once again, come across references to the case of Wetherhead v Armitage (1678) 2 Lev 233; 1 Freeman 277; 2 Show KB 18. According to the accounts in the English Reports, this was a case in the King’s Bench in Michaelmas 30 Charles II (= 1678 – we pass over the whole Commonwealth business without counting those years). It was an ‘action on the case’ (i.e. a ‘tort’ claim for compensation) in respect of words. There are some variations in reports and discussions of the case. All agree that the plaintiff was a dancing teacher to ‘young gentlewomen’, and she had, apparently been insulted by the defendant, but his words are given in slightly different forms. He may have said “she is no more a woman than I am; [or possibly ‘she is as much a man as I am’]’ and ‘she had a bastard on J. S. [or possibly ‘she got JS with child’’. There is agreement that he rounded off with ‘she is an hermaphrodite [or a hermaphrodite].” The plaintiff claimed that the words had caused her to lose some of her students, causing her £40 of loss.

There may have been mistakes in the way P’s case was pleaded – reports suggest that perhaps it should have been more exact about when P had been a dancing-mistress, and about which students left as the result of D’s words. What is intriguing to me, however, is what the case could tell us about contemporary attitudes to ‘hermaphrodites’ (which must be taken to be a rough, if problematic, equivalent to ‘intersex person’). There are statements to the effect that this does not count as necessarily defamatory in itself, and that the statement as a whole does not obviously damage a dancing-mistress in her profession ‘for young women are taught to dance more frequently by men than women‘. In one version (2 Show. 19), counsel for D, Mr. Levinz and Mr. Saunders moved … ‘that “hermaphrodite” is no word of turpitude or crime, but only an imbecility’. The last term may seem insulting today, but should be seen as akin to ‘weakness’ – so, somewhat milder, if still troubling.

A slightly different view of the matter was apparently taken by Wylde J, who seemed to doubt the idea of ‘hermaphroditism’, and insisted, presumably following Coke, Bracton and older sources, that one sex must predominate. He is also reported as seeing ‘the matter’ (but which part!) as ‘scandalous’ in and of itself. But the agreed ratio of the case seems to be that ‘hermaphrodite’ was not actionable without special damage (2 Lev. 233).

The case is referred to in later works as authority for the proposition that calling a school-mistress or dancing-mistress an hermaphrodite is not actionable without pleading by P of particular damage. The bit about being a man and having fathered an illegitimate child is sometimes left out, making a simpler story, and there seems a little doubt about what the case actually decided.

Assuming that the ‘not necessarily defamatory and actionable’ view is correct, it does seem interesting that, while P clearly regarded it as insulting to be so designated, being a ‘hermaphrodite’ is not clearly treated by the court as if it would obviously damage the reputation of somebody dependent on public acceptance for her livelihood. Would we expect people of the seventeenth century to blame the ‘hermaphrodite’ for being so? I can’t claim an expertise in 17th C attitudes in this area, but it is worth bearing in mind that the common law did treat allegations of certain physical conditions (syphillis, leprosy…) as being obviously defamatory. (I also like thinking through the logic of the ‘insult’: if P is ‘as much of a man’ as D, and P is an hermaphrodite … what does that say about D?)

Because of the murkiness around the decision and also just because I would very much like to know a bit more about the people involved, it would be excellent to find the KB record for this one, and see what more can be gleaned from it.