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Married Women, Crime, and Questions of Liability in England, 1640-1760

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Married Women, Crime, and Questions of Liability in England, 1640-1760 MARRIED WOMEN, CRIME, AND QUESTIONS OF LIABILITY IN ENGLAND, 1640-1760 by Marisha Christine Caswell A thesis submitted to the Department of History In conformity with the requirements for the degree of Doctor of Philosophy Queen‟s University Kingston, Ontario, Canada February, 2012 Copyright ©Marisha Christine Caswell 2012 Abstract Upon marriage, women in early modern England became subject to the common law doctrine of coverture. Coverture had a number of consequences, all of which stemmed from a married woman‟s lack of independent legal identity. These consequences largely manifested themselves in a married woman‟s complete lack of property rights, but the lack of an independent legal identity created complications for assigning criminal responsibility to married women in the early modern criminal justice system. Coverture largely manifested itself in the criminal law through the defence of marital coercion, which held that a married woman who committed a crime – with the exceptions of murder and treason – was assumed to be acting under her husband‟s coercion and was therefore not liable for her actions. This study examines the perceptions, treatment, and experiences of married women in the northern assize circuit and London between 1640 and 1760, with particular attention to the defence of marital coercion. This thesis discovered that the household ideal, not the defence of marital coercion, was the most important factor in determining the perceptions, treatment, and experiences of married women with the criminal justice system. People in early modern England did not see coverture as the loss of rights, but rather the means through which to create a unified household. The household ideal manifested itself in various ways, including understandings of women‟s household role, the tendency of people to treat husband and wife as a criminal unit rather than two separate individuals, the “suitability” of victims in murder trials, and the unique treatment of married women in the execution pamphlets. The married women of this study were subject to the common law doctrine of coverture. While they did not feel its effects in their daily lives, their lack of an independent legal identity created complications in the criminal justice system. Above all, married women were both criminals and wives. Criminal actions may have removed these women from their husbands‟ cover, but their experiences with the criminal law were still shaped by coverture and the corresponding household ideal. ii Acknowledgements Writing acknowledgements is always one of the more pleasant tasks of scholarship. It signals not only the completion of a project, but offers a small token of gratitude to those who contributed to the final product. First and foremost I would like to thank my thesis supervisor Jeff Collins and Jane Errington. Jeff‟s comments consistently got to the heart of the matter, forced me to refine my ideas, and my writing more generally. This thesis would not have been possible without his input, advice, and keen editorial eye. Jane Errington has provided guidance and a friendly face since I entered her class on colonial North America at the beginning of my doctoral studies. She has read every draft and her revisions – which someone once likened to cod liver oil – helped me develop my arguments and tighten my writing. If there are any repetitive sections, it is through no fault of hers. I would also like to thank the members of my examining committee: Tony D‟Elia and Leslie Ritchie, and Jennine Hurl-Eamon. They each provided valuable insight and offered new ways of looking at the problem. I am grateful to a number of professors who have taught me at Dalhousie, St. Mary‟s, and Queen‟s, but I owe a special thanks to two in particular: Krista Kesselring and Tim Stretton. The path to this thesis started accidentally when one of the only open seminars at Dalhousie was Krista‟s “Crime and the Courts in Early Modern England.” From the first class, I was hooked on criminal history, thanks in no small part to Krista herself. Tim supervised my MA thesis and continues to offer considerable advice and assistance along with his insight into coverture. This thesis would not have been possible without the financial support of SSHRC, the Ontario Graduate Scholarships, and the Timothy C.S. Franks Research Travel Fund. I was greatly aided in my research by the staff at the National Archives UK, the British Library, the Folger Shakespeare Library, the Beinecke Rare Books and Manuscript Library, the Harvard Law School Special Collections, and the Stauffer Library at Queen‟s University. Earlier versions of this work were presented at various conferences, and I would like to thank the audiences of the Berkshire Conference on the History of Women; the IHR Women‟s History Seminar; iii Married Women and the Law in Britain, North America, and the Common Law World; and Women and Crime in the British Isles since 1500 for their helpful comments. Amy Erickson, Laura Gowing, Margaret Hunt, and Karen Pearlston in particular all forced me to think about my scholarship in different ways, and demonstrate the importance of coverture and the criminal law. The questions students raised in my classroom also offered valuable insight into areas I would never have thought to explore. To my friends, for their personal and professional help I would like to thank (in no particular order) Kelly Bennett, Danyal Martin, Pamela Peacock, Josh Cole, Leigh-Ann Coffey, Sarah Ghabrial, Sarah Waurechen, Steph Jowett, Carolyn Harris, Phil Baldwin, Dana Brewer, Sarah Moffatt, Amanda Hoffman, Liza Turner, and Sam Ward. I also owe a debt of gratitude to the members of “Bill‟s Athletes” at the Kingston Running Room and of course Hobie for their efforts in keeping me sane and getting out of the office. And last, but by no means least, I would like to thank my family for all their support and encouragement. My grandparents Paul and Dolores Wall and Brian and Mary Caswell have taught me the value of education and allowed me to keep my nose in the books. My parents Les and Terry Caswell have made all of this possible. There are no words to adequately thank them for everything. My brother and sister Shaughn and Jessica Caswell have kept me humble, and my nieces and nephew, Allysen, Fiona, and Alistair have provided countless adorable moments. Thanks also go to Miranda Sauve as well as Cal, Debby, Corey, and Sarah MacKinnon. Jared MacKinnon has seen this project through with me. He has put up with my notes and books taking over the house, my late nights, archive trips, obsessions with my felons, and general ill humour. Thank you for everything, and I promise to clean up the office now. Marisha Christine Caswell, February 2012 iv Table of Contents Abstract ………………………………………………………………………………………….. ii Acknowledgements ……...……………………………………………………………………... iii Abbreviations……………………………………………………………………………………. vi Notes on the Text ......................................................................................................................... vii List of Figures …………………………………………………………………………………..viii List of Tables ………………………………………………………………………………….…ix Introduction …………………………………………………………………………………...…..1 Part I: Frameworks …………………………………………………………………………...… 34 Chapter 1 Marital Frameworks ………..…….……………………………………………..……35 Chapter 2 Legal Frameworks ……………………………………………………………..…… 57 Part II: Experiences …………………………………………………………………………….. 92 Chapter 3 Married Women in the Northern Assize Depositions ………………………………. 93 Chapter 4 Assigning Criminal Responsibility in the Northern Circuit ……………………….. 149 Chapter 5 Criminal Responsibility in London…………………………………………………177 Chapter 6 Executing Married Women …………………………………………………………218 Conclusion ……………………………………………………………………………………. 252 Bibliography ………………………………………………………………………………….. 266 v Abbreviations Beinecke Beinecke Rare Books and Manuscript Library, Yale University BL British Library CUP Cambridge University Press Folger Folger Shakespeare Library HLS Harvard Law School Special Collections OBP Old Bailey Proceedings ODNB Oxford Dictionary of National Biography OUP Oxford University Press TNA PRO The National Archives, UK, Public Record Office vi Notes on the Text Original spelling has been retained in the quotations, except for the letters u and i which have been modernized to v and j, where appropriate. Punctuation has also been modernised to aid in clarity. Abbreviations have been expanded and additions or corrections appear in square brackets. The spelling of names has not been modernized and follows what is present in the texts. The year is taken to begin on January 1. vii List of Figures Figure 3.1 Accusations against married women for theft-related offences in the northern depositions ……………………………………………………………………. 148 Figure 3.2 Accusations against married women for coining in the northern depositions ... 148 Figure 4.1 Verdicts over Time …………………………………………………………… 174 Figure 4.2 Patterns of Verdicts for Married Women ……………………………………... 175 Figure 4.3 Percentage of Verdicts for Wives Accused with Husbands in Theft-Related Offences ………………………………………………………………………. 175 Figure 4.4 Percentage of Verdicts for Wives Accused without Husbands in Theft-Related Offences ………………………………………………………………………. 176 viii List of Tables Table 4.1 Women in the Northern Circuit Gaol Delivery Books ……………………….. 150 Table 4.2 Married Women in the Criminal Courts, 1640-1760 …………………………. 174 ix INTRODUCTION In 1725, Joseph Gatfield accused John England and his wife Sarah of stealing three curtains, a pair of shoes, a looking
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