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.
[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).
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….