To Marry and to Burn: the English Common Law’s Response to ‘Petty Treason’ by Wives: Paper at European Social Science History Conference, University of Gothenburg, Sweden

This paper will consider a form of crime entirely and finally disruptive of conjugal relations: the killing of one spouse by the other, and, specifically, the killing by a wife of her husband. It will discuss the English common law’s response to wives accused or convicted of killing their husbands, and will include both an analysis of available medieval data on the prosecution and conviction of women for this offence, drawn from a study of the plea rolls and gaol delivery rolls of the thirteenth to fifteenth centuries, and also an exploration of two distinctive features of the common law’s response in theory and practice, from the later medieval period until the late eighteenth century and early nineteenth century respectively.

The first of these distinctive features is the use of burning, a non-standard method of execution, for those women convicted of the offence. Although instances of wives allegedly killing husbands are relatively rarely encountered in common law sources, they are present in significant enough numbers to demonstrate that falling foul of the law of petty treason, and facing the possibility of death at the stake was a genuine risk for married women in pre-modern England.

The second distinctive feature to be examined is the partial theoretical assimilation of husband-killing with treason, which placed the husband-killer in a sub-category of ‘petty traitors’ alongside the servant who killed a master and the religious inferior who killed his prelate. This placing of the offence between ‘normal’ homicide and high treason might be considered a matter of arcane and obsolete legal doctrine, but it is important to note potential practical consequences of alignment with treason, both in terms of specific procedural differences between the prosecution of treason and homicide, and also in terms of entrenchment of the idea of such killings as particularly culpable, particularly harmful, and unworthy of mercy (aside from the late customary concession of strangulation at the stake, as opposed to vivicombustion).