'Bodies of Evidence: Sex and Murder (or Gender and Homicide) in Early Modern England, Gender & History 27.2 (2015), 245-62.

'Bodies of Evidence: Sex and Murder (or Gender and Homicide) in Early Modern England, Gender & History 27.2 (2015), 245-62.
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  1 Bodies of Evidence: Sex and Murder (or Gender and Homicide) in Early Modern England,  c . 1500-1680 [*A pre-print version of an article to be published in Gender & History  27.2 (2015).*] K.   J.   K ESSELRING   A BSTRACT :   To see how contemporaries understood the body’s place in differences between men’s and women’s homicidal violence, this paper disaggregates the data from a sizeable sample of English homicide records produced between c.  1500-1680 to see who men and women were accused of killing, and how, and places that information within the context of early modern medical and legal works. Women killed far fewer people than did men, which accords with studies of homicide in other times and places; but if we include in our counts (as contemporaries would have done) both infanticide and killings by means of witchcraft, we see that women were disproportionately represented amongst those deemed to have committed murder rather than the less serious crime of manslaughter. Early modern responses to homicide, and thus the long-lived laws that grew from them and the bodies of evidence upon which we rely, had embedded within them humoural understandings of male and female difference that were premised on variations in vital heat. More so than their ‘hot-blooded’ counterparts, women were associated with cold-blooded killings. In 1564, Agnes and Edward Baynton lost their only son in what they thought suspicious circumstances. In their grief and anger, they turned to Jane Marsh, a widow said to be of such ‘skill and knowledge that she could detect and accuse such persons as did use that devilish art of witchcraft’. Marsh blamed two women: she said that Dorothy Baynton, the wife and mother of the people to whom Edward’s estate would pass should he die without a son, had procured one Agnes Milles to use ‘sorcerers’ charms and witchcraft’ to kill the young boy. Dorothy Baynton denied the charge, evaded punishment and responded with law suits of her own, making Marsh pay for her temerity. Agnes Milles, however, confessed and was hanged as a murderer. 1  Accused witches, we know, tended to be women. Killers tended to be men. We might simply count Milles amongst the former and not the latter, confident that she did not kill anyone at all. To do so too quickly, though, risks misunderstanding the beliefs and practices that shaped *The author wishes to thank participants at the 2014 European Social Sciences History Conference and the Berkshire Conference on the History of Women for their helpful comments on earlier versions of this paper, Anne Cummings and Hilary Doda for their invaluable assistance with data entry, and the Social Sciences and Humanities Research Council of Canada for funding the research from which this paper derives. 1  The National Archives, Public Record Office, C 3/8/113. All manuscript references are to the National Archives unless otherwise noted.  2 the very records upon which we rely, and missing an opportunity to rethink our treatments of sex and murder, or gender and homicide, in the era in which legal definitions that persist to the present first took shape. To understand the history of homicide in early modern England requires recognition that people accused of doing so by means of witchcraft were executed right alongside those thought to have killed in more conventional ways. In her own day, contemporaries of Agnes Milles would have seen her not just as a killer, but as the very worst sort of killer: a murderer, and one made susceptible to such actions by her very sex. Lest opening a discussion of homicide with a story in which the woman identified as a killer in fact killed no one start us off in the wrong direction, though, let us add a second. In 1645, Susan Adams beat Hester Pride to death. Pride was Adams’s servant, however, and a jury endorsed Adams’s story that she had only beaten her ‘with a small stick, by way of correction…for some fault which she had committed’. As such, the jurors deemed Adams guilty simply of manslaughter. Over the sixteenth century, murder and manslaughter had come to be legally distinct species of the broader class of criminal homicide; while both remained capital offences, men found guilty of manslaughter, the lesser kind of killing, could have their sentences mitigated by claiming a legal device known as ‘benefit of clergy’. 2  The jurors were alarmed then to find that they had mistaken the law: they had thought that Susan Adams would be able to evade sentence of death with a manslaughter verdict by claiming benefit of clergy, ‘as men in such case use to have’. Unlike the many men who did so, however, women could not escape a 2  Over the sixteenth century, clerics’ long-standing immunity from trial in secular courts became a device by which men who committed one of a shrinking list of offences for the first time could escape capital punishment. A statutory change in 1575 regularised the practice, meaning that men convicted of a ‘clergyable’ offence – which included manslaughter – could claim the ‘benefit of clergy’, reading a passage of Scripture to prove their supposed clerical status, and then face at most a branding, forfeiture of property, and a year’s incarceration instead of execution. Women, in contrast, could try to claim ‘benefit of the belly’, submitting to a physical examination to determine whether they were pregnant, but this secured only a temporary reprieve, not necessarily an escape from execution. See K.J. Kesselring,  Mercy and Authority in the Tudor State  (Cambridge: Cambridge University Press 2003), pp. 212–4.  3 death sentence for manslaughter in this way. In the end, members of parliament saved Adams with a special ordinance that pardoned her for the killing. 3  Both incidents involved types of slayings for which women came before the courts in higher numbers than did men: killing by means of witchcraft and of servants. Overall, however, men far outnumbered women amongst those accused of homicide in early modern England. Indeed, they do so in studies of homicide in every time and place done to date: while their participation in crime in general is highly variable, women have typically constituted fewer than a fifth of all those charged with killing another person. 4  Such persistent differences in homicidal behaviour seem to demand explanations drawn, in part, from ‘nature’. Yet, clearly, the ways in which people defined, committed and punished crimes depended in part on socio-cultural factors, too. How, then, ought we to explain the disparities between men’s and women’s histories of 3    Lords’ Journal , vol. IX, p. 4 (11 February 1646). 4  Malcolm Feeley and Deborah L. Little provide the classic overview of changing rates of women’s involvement in criminal processes in the English context: ‘The Vanishing Female: The Decline of Women in the Criminal Process, 1687–1912’,  Law and Society Review  25 (1991), pp. 719–57. European data is brought up to date in Manon van der Heijden and V. Koningsberger, ‘Continuity or Change? The Prosecution of Female Crime in the 18 th  and 19 th  Centuries’, Crime, Histoire et Sociétés  17 (2013), pp. 101–27 and Greg T. Smith, ‘Long-Term Trends in Female and Male Involvement in Crime’, The Oxford Handbook of Gender, Sex and Crime , ed. Rosemary Gartner and Bill McCarthy (Oxford: Oxford University Press, 2014), pp. 139–57. Manuel Eisner, ‘Long-term historical trends in violent crime’, Crime and Justice: A Review of Research 30 (2003), pp. 109–12 provides a succinct overview of the data on homicide throughout Europe, noting that women typically account for no more than 15% of killers, when infanticide is excluded. Pieter Spierenburg’s work is also required reading: see especially ‘How violent were women? Court cases in Amsterdam, 1650–1810’, Crime, Histoire et Sociétés  1(1997), pp. 9–28; his introduction to Spierenburg, ed.,  Men and Violence: Gender, Honour and Rituals in Modern Europe and America (Columbus, 1998); and  A History of Murder: Personal Violence in Europe from the Middle Ages to the Present   (Cambridge, 2008), pp. 117–22. For works on the English homicide data that distinguish male from female killers, see, for example, Barbara Hanawalt, ‘The Female Felon in Fourteenth-Century England’, Viator   5 (1974), pp. 253–68; Peter Lawson, ‘Patriarchy, Crime and the Courts: The Criminality of Women in Late Tudor and Early Stuart England’, Criminal Justice in the Old World and the New , ed. Greg T. Smith, Allyson May and Simon Devereux (Toronto: University of Toronto Press, 1998), pp. 16–57; Garthine Walker, Crime, Gender and Social Order in  Early Modern England (Cambridge: Cambridge University Press 2003), pp. 113–58; J.M. Beattie, Crime and the Courts in England, 1660–1800  (Princeton: Princeton University Press, 1986), p. 82 and his article on ‘The Criminality of Women in Eighteenth-Century England’,  Journal of Social History  8 (1975), pp. 80–116; Gwenda Morgan and Peter Rushton,  Rogues,   Thieves and the Rule of Law: The Problem of Law Enforcement in North-East  England, 1718–1800 (London, 1988), pp. 97–9, 112-23; and Martin Wiener,  Men of Blood: Violence, Manliness, and Criminal Justice in Victorian England   (Cambridge, 2004). For contemporary surveys of homicide that speak to the sex differences today, see the reports issued by the United Nations Office on Drugs and Crime [UNODC], e.g., UNODC Global Study on Homicide 2013  (United Nations Publication, Sales No. 14.IV.1), p. 13, which indicates that, world-wide, only 5% of those people convicted of the intentional homicides it includes in its surveys were women.  4 homicide? How do we understand the relationship between ‘sex’ and ‘gender’, the biological and the socio-cultural, in these histories? Answers given to such questions tend to emphasise one aspect or the other, either nature or nurture; even if acknowledging both, they often insist that one or the other be given priority. 5  Yet we may well find that they cannot be separated so far as to allow such prioritisation. Much recent work has sought to move beyond discussions of why men’s criminality so often exceeded women’s, preferring to study the latter ‘in its own right’–and valuably so. 6  But a recent resurgence of interest in biological explanations of human behaviour, whether derived from evolutionary psychology or from feminist biologists’ work that emphasises ‘diversity against dichotomy’, suggests that we might return to such questions. 7  My aim here is much more 5  See the works cited in no. 4 and Anne-Marie Kilday’s overview of the debates in her essay, ‘”That Women are But Men’s Shadow”: Examining Gender, Violence and Criminality in Early Modern Britain’, Gender in Late Medieval and Early Modern Europe, ed. Marianna Muravyeva and Raisa Maria Toivo   (New York: Routledge, 2012), pp. 53–68. For a more focused treatment of explanations rooted in sociobiology and evolutionary psychology, see especially the classic work by Martin Daly and Margo Wilson,  Homicide  (New York: A. de Gruyter, 1988). For overviews of more recent literature in the field, see John Carter Wood, ‘A Change of Perspective: Integrating Evolutionary Psychology into the Historiography of Violence’,  British Journal of Criminology  51 (2011), pp. 479–98 and Gregory Hanlon, ‘The Decline of Violence in the West: From Cultural to Post-Cultural History’,  English  Historical Review  128 (2013), pp. 367–400. There was, for a time, a third set of explanations which denied the differences as more apparent than real, suggesting that women’s crimes were either hidden from or overlooked by contemporaries. The view that stealth or ‘chivalry’ can account for much of the differential has long since been discarded, but for its classic statement, see Otto Pollak, The Criminality of Women  (Philadelphia: University of Pennsylvania Press, 1950). 6  A move that often harkens to Jenny Kermode and Garthine Walker, eds., Women, Crime and the Courts in Early  Modern England (Chapel Hill: University of North Carolina Press 1994). See, too, Jennine Hurl-Eamon, Gender and Petty Violence in London, 1680-1720 (Columbus: Ohio State University Press, 2005) and Marisha Caswell, ‘Married Women, Crime and Questions of Liability in England, 1640–1760’, Queen’s University PhD Dissertation, 2012. 7 For examples of the former, see Steven Pinker, The Better Angels of Our Nature: Why Violence Has Declined (New York: Penguin, 2011); the recent special issue of the  British Journal of Criminology , 51 (2011) devoted to ‘Human Evolution, History and Violence’; and the section devoted to ‘Psycho– and Sociobiological Perspectives’ in the Oxford Handbook of Gender, Sex and Crime , pp. 245–318. For a helpful introduction to the latter, see Riki Lane, ‘Trans as Bodily Becoming: Rethinking the Biological as Diversity, Not Dichotomy’,  Hypatia  24 (2009), pp. 136–57. For historians seeking to combine cultural and biological elements, see Lyndal Roper’s Oedipus and the Devil: Witchcraft, Sexuality and Religion in Early Modern Europe  (London: Routledge, 1994) and more recently, Dror Wahrman, ‘Change and the Corporeal in Seventeenth– and Eighteenth-Century Gender History: Or, Can Cultural History Be Rigorous?’, Gender & History  20.3 (2008), pp. 584–602, which calls cogently for a ‘corporeal critique’ of cultural history that engages with extra-cultural elements. He writes: ‘Unlike unreflective essentialism that presupposes that certain aspects of the human condition necessarily lie outside history and culture, and unlike unreflective constructivism that presupposes that no aspect of the human condition lies outside history and culture,  5 modest, though: I want to look at how early modern understandings of the body mapped onto differences between men’s and women’s homicidal behaviour. In a classic article, Susan Amussen urged us to examine the often contested place and meanings of violence in early modern society, noting the historically specific, mutually reinforcing and power laden ways in which understandings of legal, illegal and extralegal violence took shape. 8  Accordingly, this paper disaggregates the data from a sizeable sample of early modern English homicide records to see who men and women were accused of killing, and how, and places that information within the context of early modern medical and legal works. In her important study of Cheshire’s court records, Garthine Walker observed that homicide law itself encoded male standards of behaviour. 9  This paper builds upon that insight, showing that early modern responses to homicide, and thus both the long-lived laws that emerged from them and the bodies of evidence upon which we rely, had embedded within them understandings of male and female difference rather different than our own, ones grounded in climatic rather than chromosomal models. When humours and heat distinguished male from female, talk of killings in hot-blood and in cold counted as something more than metaphor. While women in early modern England killed far fewer people than did men, their very nature was thought to make them more susceptible to committing the kinds of killings deemed egregious acts of murder rather than the less serious crime of manslaughter. the self-reflexive preoccupation of the “corporealist” (or the “neo-essentialist”) is the un-predetermined boundary between the two’ (p. 599.) 8  Susan Amussen, ‘Punishment, Discipline and Power: The Social Meanings of Violence in Early Modern England’,  Journal of British Studies  34.1 (1995), pp. 1–34, which builds upon J.A. Sharpe’s urging that quantification of homicide rates be contextualised with studies of the ‘social meanings of violence’: ‘The History of Violence in England: Some Observations’, Past and Present   108 (1985), p. 214. 9  Walker, Crime, Gender and Social Order,  p. 157. For recent efforts to reform gender biased homicide laws, see, for example, Danielle Tyson, Sex, Culpability and the Defense of Provocation  (New York: Routledge, 2013); Jeremy Horder,  Homicide and the Politics of Law Reform  (Oxford, 2012), esp. pp. 205–11; and Carolyn B. Ramsay, ‘Provoking Change: Comparative Insights on Feminist Homicide Law Reform’,  Journal of Criminal Law and Criminology  100 (2010), pp. 33–108.
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