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No Greater Provocation? Adultery and the Mitigation of Murder in English Law

  • K.J. Kesselring

Reformers in much of the common law world have recently turned their attentions to laws pertaining to murder and manslaughter; however, perceptions of the past maintain a hold. In England and Wales, the Coroners and Justice Act (2009) abandoned notions of provocation that developed in the seventeenth century, instead stipulating that “loss of control” would serve as the means of mitigating charges of murder to a lesser offence. If a person has reasonable grounds for losing control, of a sort that accords with contemporary norms and values, that loss of control can be adduced as a partial defense on a homicide charge. Concerns about blaming victims and gender bias have helped shape the shift away from provocation defenses. Whether a married woman's sexual infidelity might in some way serve as a partial defense that moderates her husband's killing of her from murder to something less serious has proven especially controversial. (The reverse, a wife killing an adulterous husband, receives far less attention, but then women kill their partners for any reason far less often.) Drafters of the 2009 act expressly abandoned the older notion that sexual infidelity constituted sufficient provocation to mitigate charges in a husband's killing of his wife. Angry, jealous men killing their spouses in revenge or a passionate rage might no longer cite infidelity as sufficient provocation to kill. Some people, including lawmakers and judges, expressed concerns about the change. One MP (and later attorney general) complained that “thousands of years of human experience and history should be jettisoned for a piece of political correctness.” He need not have worried: recently, the decision in R. v. Clinton (2012) reintroduced the substance of the defense in a new guise, seeing a wife's adultery not as provocation, but as a trigger for a husband's understandable “loss of control.” Among other factors, the Court of Appeal alluded to “experience over many generations” in treating a man's suspicion of his wife's sexual infidelity as reasonable grounds for mitigation.

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1. The most recent data for England and Wales from the Office for National Statistics (ONS) indicates that in 2013–14, 46% of female homicide victims (84/183) and 7% of male victims (24/343) were killed by a current or ex-partner. The report does not specify the sex of the partner; therefore, one is left to assume that these were heterosexual unions. Violent Crime and Sexual Offences- Homicide. ONS, February 12, 2015, 1.

2. November 9, 2009, House of Commons Debates, Hansard, col. 85; for similar objections in the House of Lords, see July 7, 2009, House of Lords Debates, Hansard, cols 589–90.

3. Coroners and Justice Act 2009, especially s. 55 (6)(c); [2012] EWCA Crim 2., 1 Cr App R 26. For discussion of this case, see: Baker, Dennis J. and Zhao, Lucy X., “Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity,” Journal of Criminal Law 76 (2012): 254–75. For discussion of the broader effort to reform homicide law in ways that diminish traditional gender biases, see Danielle Tyson, Sex, Culpability and the Defense of Provocation (New York: Routledge, 2013); Jeremy Horder, Homicide and the Politics of Law Reform (Oxford: Oxford University Press, 2012), esp. pp. 205–11; and Ramsay, Carolyn B., “Provoking Change: Comparative Insights on Feminist Homicide Law Reform,” Journal of Criminal Law and Criminology 100 (2010): 33108. Such reform efforts have both contributed to and drawn from directives issued by the United Nations. The United Nations Division for the Advancement of Women, for example, has urged that states remove both “honor” and adultery from defenses for either premeditated killings or so-called “crimes of passion.” See “Good Practices in Legislation on ‘Harmful Practices’ against Women,” 2009, 19–20. (September 19, 2015.)

4. See, for example, Daly, Martin, Wilson, Margo, and Weghorst, Suzanne J., “Male Sexual Jealousy,” Ethology and Sociobiology 3 (1982): 1127, which uses the (commonly mistaken) view that early modern law treated a husband's killing of his adulterous wife as something less than murder as evidence for the argument that “coercive constraint of female sexuality by the use or threat of male violence appears to be cross-culturally universal.” Biblical injunctions usually cite Leviticus 20:10 and Deuteronomy 22:22, although of course they then run up against John 8:7.

5. Keith Thomas, “The Puritans and Adultery: the Act of 1650 Reconsidered,” in Puritans and Revolutionaries, ed. Donald Pennington and Keith Thomas (Oxford: Clarendon Press, 1978), 257–83, quote at 268. For other, more recent expressions of this belief, see, for example, works cited in notes 50, 63, and 66.

6. William Blackstone, Commentaries on the Laws of England (Oxford: 1768), IV:191. And in the much more recent past, some American states (Texas, Georgia, Utah and New Mexico) passed laws that made the killing of the other man a form of justifiable homicide, as well. See Weinstein, Jeremy D.'s overview of relevant common law developments in “Adultery, Law, and the State: A History,” Hastings Law Journal 38 (1986): 195238.

7. See especially Eva Cantarella, “Homicides of Honor: The Development of Italian Adultery Law over Two Millennia,” and David Cohen, “The Augustan Law on Adultery: The Social and Cultural Context,” in The Family in Italy, ed. David I. Kertzer and Richard P. Saller (New Haven: Yale University Press,1991), 229–46 and 109–26.

8. See the survey in Rivers, Theodore John, “Adultery in Early Anglo-Saxon Society: Æthelbert 31 in Comparison with Continental Germanic Law,” Anglo-Saxon England 20 (1991): 1925.

9. Otis-Cour, Leah, “De jure novo: Dealing with Adultery in the Fifteenth-Century Toulousain,” Speculum 84 (2009): 357. For Aquinas, see Summa Theologica, 5.60.1. One reviewer asked if commentators ever excused a wife's killing of an adulterous husband. Not that I have found, and indeed that such an action so manifestly violated any sort of law, human or divine, influenced Aquinas's condemnation of the reverse, given his belief that husbands and wives should be judged on par.

10. Otis-Cour, “Adultery in the Fifteenth-Century Toulousain,” quotes at 358 and 366; and Claude Gauvard, ‘De grace especial’: Crime, état et société à la fin du moyen âge (Of Special Grace: Crime State, and Society at the End of the Middle Ages) (Paris: Publications de la Sorbonne, 1991), 818–22.

11. Otis-Court, “Adultery in the Fifteenth-Century Toulousain,” 366.

12. See Sara McDougall's work for shifts in late medieval notions of adultery and its punishment, especially important in challenging assumptions of the ubiquity of a sexual “double standard” in which public authorities supposedly overlooked husbands’ adultery and focused on wives: The Opposite of the Double Standard: Gender, Marriage and Adultery Prosecution in Late Medieval France,” Journal of the History of Sexuality 23 (2014): 206–25 and The Transformation of Adultery in France at the End of the Middle Ages,” Law and History Review 32 (2014): 491524.

13. Cantarella on Italy: “Homicides of Honor,” 240–44. Sara Beam notes that early modern French law gave a husband the right to punish his adulterous wife, but also that popular publications sometimes condemned such actions: “Les canards criminels et les limites de la violence dans la France de la première modernité ,” Histoire, économie, et société (The ‘canards criminels’ and the limits of violence in early modern France,” History, Economy, and Society) 2 (2011): 21. Stuart Carroll, Blood and Violence in Early Modern France (Oxford: Oxford University Press, 2006), 237–38, notes that pardons for killers of adulterous wives could be obtained, but indicates that “Revenge on the cuckolder was more likely to be applauded than wife murder and killing him was easily defensible.”

14. Joel F. Harrington, Reordering Marriage and Society in Reformation Germany (Cambridge: Cambridge University Press, 1995), 228. Heinrich Zoepfl, ed., Die Peinliche Gerichtsordsnung Kaiser Karls V (The Penal Code of Emperor Charles V) (Leipzig: C.F. Winter'sche Verlagshandlung, 1883). Clause 120 (p. 101) is actually somewhat ambiguous about the punishment for adultery, leaving it to be punished according to the traditions of imperial justice. Clause 150 (p. 129) notes that a husband's killing of his wife's lover would not be punished as murder, but says nothing of killing the wife. I thank Julia Poertner for her translations of these passages.

15. Mary Elizabeth Perry, Gender and Disorder in Early Modern Seville (Princeton: Princeton University Press, 1990), 73, 120.

16. See Rivers, “Adultery in Early Anglo-Saxon Society,” 20–21 and Carole Hough, “Women and Law in the Anglo-Saxon Period,” Early English Laws, 2015. (August 15, 2014).

17. F.W. Maitland and Frederic Pollock, History of English Law before the Time of Edward I (Cambridge: Cambridge University Press, 1895), 2:484. For recent examinations of the legal remedies available for rape, abduction, and adultery and their interrelations, see Caroline Dunn, Stolen Women in Medieval England (Cambridge: Cambridge University Press, 2012) and Sara M. Butler, Divorce in Medieval England (New York: Routledge, 2013).

18. Dunn, Stolen Women, esp. 130, 144–45.

19. T.A. Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago: University of Chicago Press, 1985), 42–43.

20. Green, Verdict According to Conscience, 42–43, citing The National Archives (hereafter TNA), JUST 2/211, m. 1 d/1 and JUST 3/78, m. 2d/1.

21. Sara M. Butler, The Language of Abuse: Marital Violence in Later Medieval England (Leiden: Brill, 2007), 98–103. Butler qualifies her suggestion that adultery “may have provided sound justification for homicide, not only of the wives’ lovers,” but perhaps even of the wives, by acknowledging that the only evidence offered for the latter is a sermon story in which the husband killed both guilty parties to general approbation. The two court cases she discusses––the killing of John Doughty noted by Green and the second case mentioned here––both deal with the killing of the other man, and through crafting narratives of self-defense.

22. I thank Elizabeth Papp Kamali for sharing her in-progress work, “‘The Devil's Daughter of Hell Fire: The Role of Anger in Medieval English Felony Adjudication.” She cites TNA, JUST 3/1, m. 9.

23. On medieval homicide law, see for example: Kamali, Elizabeth Papp, “Felonia Felonice Facta: Felony and Intentionality in Medieval England,” Criminal Law and Philosophy (2014): 125; John H. Baker, Oxford History of the Laws of England, vol. vi: 1483–1558 (Oxford: Oxford University Press, 2003), 553–62; John G. Bellamy, The Criminal Trial in Later Medieval England: Felony before the Courts from Edward I to the Sixteenth Century (Toronto: University of Toronto Press, 1998), 57–69; Green, Thomas A., “The Jury and the English Law of Homicide, 1200–1600,” Michigan Law Review 74 (1976): 414–99; Kaye, J.M., “The Early History of Murder and Manslaughter,” Law Quarterly Review 83 (1967): 365–95, 569–601; and W.D. Sellar, “Forethought Felony, Malice Aforethought and the Classification of Homicide,” in Legal History in the Making, ed. William M. Gordon and T.D. Fergus (London: Hambledon Press, 1991), 43–60.

24. See the discussion in Krista J. Kesselring, Mercy and Authority in the Tudor State (Cambridge: Cambridge University Press, 2003), 93–97, 102–5.

25. Ibid., 46–8, and for a more extensive treatment, Lesley Skousen, “Redefining Benefit of Clergy During the English Reformation: Royal Prerogative, Mercy and the State” (MA thesis, University of Wisconsin, 2008). Women could claim benefit of clergy for minor thefts from 1624, and on par with men from 1693.

26. See Kesselring, Krista J., “Bodies of Evidence: Sex and Murder (or Gender and Homicide) in Early Modern England,” Gender & History 27 (2015): 245–62; and Garthine Walker, Crime, Gender and Social Order in Early Modern England (Cambridge: Cambridge University Press, 2003) for discussion of the gendered nature of homicide law as it developed in these years. For the broader context of early modern perceptions of masculinity, male physiology, and male honor codes, see for a start Alexandra Shepard, Meanings of Manhood in Early Modern England (Oxford: Oxford University Press, 2003); and Mark Breitenberg, Anxious Masculinity in Early Modern England (Cambridge: Cambridge University Press, 1996).

27. J.H. Baker, Introduction to English Legal History, p. 601, citing Watts v. Brains (1600), Cro. Eliz. 778.

28. Jeremy Horder, Provocation and Responsibility (Oxford: Clarendon Press, 1992), esp. 23–42.

29. Ibid.

30. See, for example: David M. Turner, Fashioning Adultery: Gender, Sex and Civility in England, 1660–1740 (Cambridge: Cambridge University Press, 2002), 127; Elizabeth Foyster, Marital Violence: An English Family History, 1660–1857 (Cambridge: Cambridge University Press, 2005), 117; Klimchuk, Dennis, “Outrage, Self-Control and Culpability,” University of Toronto Law Journal 44.4 (1994): 454; and Gough, Stephen, “Taking the Heat out of Provocation,” Oxford Journal of Legal Studies 19 (1999): 482.

31. Manning's Case (1671), 83 Eng. Rep. 112 (Raym. 212). In 86 Eng. Rep. 108 (1 Ventris, 158) the accused is called John Maddy.

32. R. v. Parker, in The Reports of Sir John Spelman, ed. J.H. Baker (London: Selden Society, 1994), 72. “Nota que fitzh[erbert] iustice monstre vn inditement que vn Parker troue vn home enter lez tibys de sa feme fesant lechery et il occise le home et toutz lez iusticez ten[ont] ceo estre felony mez posito que vn home volet ravishe ma feme encounter sa volunte et ieo luy occise semble que ieo puissa issint faier en defens de ma feme come en case que il violet luy occider.”

33. For a case in which a husband killed the other man that specifically referenced Manning and the line about burning him lightly as “there could not be a greater provocation,” see the Gentleman's Magazine 26 (1756): 203.

34. TNA, SP 1/73, f. 24.

35. Discussed in Kesselring, Mercy and Authority, 105, citing British Library, Cecil Papers, vol. 153, no. 56.

36. Matthew Hale, Historia Placitorum Coronae, ed. Sollom Emlyn, 2 vols. (Philadelphia, 1847), I:486.

37. As part of a broader project on early modern homicide, I have compiled a database with a sample of 3,601 inquests and indictments from c. 1500 to 1680, of which sixty-six detail accusations against men for killing their wives and thirty-two charge women with killing their husbands. Although a few accuse adulterous partners of killing their innocent spouses, none of the records in this particular sample betray evidence of a spouse receiving a lighter sentence for killing an unfaithful partner. For details on the database, see Kesselring, “Bodies of Evidence,” 245–62.

38. See, for example, Robert Kingdon, Adultery and Divorce in Calvin's Geneva (Cambridge, MA: Harvard University Press, 1995), 175–78; and Harrington, Reordering Marriage and Society in Reformation Germany, 268–71.

39. Informally, many people did separate from partners for a variety of reasons, including adultery, and form new unions. For an overview of the history of divorce, see Lawrence Stone, Road to Divorce: England, 1530–1987 (Oxford: Oxford University Press, 1992) and for updates to relevant portions of the history, see, also, Butler, Divorce in Medieval England; Tim Stretton, “Marriage, Separation and the Common Law in England, 1540–1660,” in The Family in Early Modern England, ed. Helen Berry and Elizabeth Foyster (Cambridge: Cambridge University Press, 2007), 18–39; and Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England (Cambridge: Cambridge University Press, 2003). The distinctiveness of the English case becomes clearer when it is remembered that in both the colony of Massachusetts and in Scotland, both divorce and public punishment of death for adultery became possible. For Scottish divorce law and practices, see, for example, Thomas C. Smout, “Scottish Marriage, Regular and Irregular, 1500–1940,” in Marriage and Society: Studies in the Social History of Marriage, ed. R.B. Outhwaite (London: St. Martin's Press, 1981), 204–36; and Heather Parker, ‘“In all gudly haste’: The Formation of Marriage in Scotland, c. 1350–1600” (PhD diss., University of Guelph, 2012). For the colonial context, see, for example, Cott, Nancy, “Divorce and the Changing Status of Women in Eighteenth-Century Massachusetts,” William and Mary Quarterly, 3rd series, 33 (1976): 86614; and Cornelia Hughes Dayton, Women Before the Bar: Gender, Law and Society in Connecticut (Chapel Hill: University of North Carolina Press, 1995).

40. Martin Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge: Cambridge University Press, 1987), 150–53, 249–59.

41. Thomas, “The Puritans and Adultery: the Act of 1650 Reconsidered,” 257–83. See, also, Faramerz Dabhiowala, The Origins of Sex: A History of the First Sexual Revolution (London: Penguin, 2012), 42–55 for the broader regulatory impulses behind such legislative initiatives. James Cordy Jeaffreson's Middlesex County Records, 3 vols. (London, 1886–92), III:207–96, notes indictments for some thirty individuals on charges of adultery over the 1650s; one woman, Ursula Powell, was found guilty and may have been hanged (p. 287); all the others were found not guilty, though some of them had to remain imprisoned until they could secure sureties for their good behavior.

42. Dabhiowala, Origins of Sex, 54–55. See also Turner, Fashioning Adultery and Bailey, Unquiet Lives, 140–67 for the history of adultery prosecutions in the years after the Restoration.

43. Thomas Heywood, A Woman Kilde With Kindnesse (William Iaggard: London, 1607), sig. G1r.

44. Thomas Heywood, Gynaikeion (Adam Islip: London, 1624), 179.

45. Panek, Jennifer, “Punishing Adultery in A Woman Killed with Kindness,SEL 34 (1994), 357–78; and Ronald Huebert, The Performance of Pleasure in English Renaissance Drama (Basingstoke: Palgrave Macmillan, 2003), 90–91. If the critics on Huebert's list cite evidence for the claim, it is typically Keith Thomas's mistaken statement to that effect in “The Puritans and Adultery,” 268. Turning to his citations, we find Pollock and Maitland's History, cited in n. 17, which notes that that “tradition” had or was dying out by the thirteenth century, and Manning's Case (1671), which came later and dealt with the guilty man.

46. For the domestic murder pamphlets of these years, see, in particular, Frances Dolan, Dangerous Familiars: Representations of Domestic Crime in England, 1550–1700 (Ithaca: Cornell University Press, 1994); and Randall Martin, Women and Murder in Early Modern News Pamphlets and Broadside Ballads, 1573–1697 (Aldershot: Ashgate, 2005). See, also, Walker, Crime, Gender and Social Order, 143 for the linking of adultery with petty treason. The sentence of death by burning for petty traitors was abolished in 1790, and the offense itself only in 1828. See also Crépin, Marie-Yvonne, “Violences Conjugales en Bretagne: La Répression de L'Uxoricide au XVIIIe siècle,” Société d'Histoire et d'Archéologie de Bretagne (“Marital Violence in Brittany: The Repression of Spousal Killing in the 18th Century,” Historical and Archaeological Society of Brittany) 73 (1995): 164, 168, which notes that a quarter of her cases of spousal homicide involved adultery, but with the adulterous, “trapped” partner rather than an abandoned or betrayed partner doing the killing.

47. Blackstone, Commentaries, IV:191–92.

48. Mawgridge's Case (1707), 90 Eng. Rep. 1167.

49. David Turner notes the high profile of this case, which was made newsworthy in part by Mary's pregnancy, in Fashioning Adultery, 128–30. For contemporary publications on the crime, see Anon., The Full and True Relation of All the Proceedings at the Assizes Holden at Chelmsford (London, 1680), and True Narrative of the Execution of John Marketman (1680). One publication did acknowledge Mary's adultery as a provocation, but depicted it both as one that John should have withstood and one that he could have withstood had he not neglected church attendance and thus denied himself God's grace. The account of Marketman's speech on the scaffold has him denouncing his own sexual sins and drunkenness, and speaking of his own pride: “I always (through my pride) would make her be subject to me, not minding my own duty to her, which if I had taken care to have performed, we had lived more comfortably, and these unhappy ends of both prevented.” (sig. B2v, B3r). A copy of a letter he reportedly sent to Mary's lover ended the publication, with a note that he forgave him, as he too was in “some part guilty” of the sad turn of events for robbing Mary of her innocence. See A Full and True Account of the Penitence of John Marketman (Samuel Walsall: London, 1680).

50. See, as simply one example, Elizabeth Foyster, Marital Violence: An English Family History, 1660–1857 (Cambridge: Cambridge University Press, 2005), 116–17, which claims that in the early part of the period under study, a husband who killed an adulterous wife could successfully secure a conviction for manslaughter rather than murder, but cites as evidence an eighteenth-century case in which a man killed not his wife, but his wife's lover.

51. Jennine Hurl-Eamon, ‘”I Will Forgive You if the World Will’: Wife Murder and Limits on Patriarchal Violence in London, 1690–1750,” in Violence, Politics and Gender in Early Modern England, ed. Joseph P. Ward (Palgrave Macmillan: Basingstoke, 2008), 223–47.

52. January 1733, trial of Samuel Thomas (t17330112-24) and September 1745, trial of Thomas Morgan (t17450911-32), Old Bailey Proceedings Online (hereafter OBP) version 7.1, May 29, 2014

53. OBP, September 1810, trial of Richard Griffin (t18100919-56). I have included in these tallies cases in which the man and woman might not have been legally married but were described by deponents as having lived or been accepted “as husband and wife.” The search was conducted by using the keyword wife with the “offense” filter set to “Killing–All subcategories,” and the dates set as noted. All the results were then read to identify those in which a man killed a woman treated as his wife.

54. OBP, January 1767, trial of John Williamson (t17670115–24).

55. OBP, July 1754, trial of Robert Finch (t17540717-43).

56. OBP, May 1780, trial of Albert Lowe (t17800510-58).

57. OBP, April 1786, trial of John Simpson (t17860426-42).

58. OBP, April 1791, trial of Charles Taylor (t17910413-57).

59. OBP, September 1791, trial of George Dingler (t17910914-1). On Garrow, see Beattie, John, “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991): 221–67; Beattie, , “Garrow for the Defence,” History Today 41 (1991): 4953; and Allyson May, The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003), 40–42, 56–58.

60. OBP, September 1810, trial of Richard Griffin (t18100919-56).

61. The Times Digital Archive, September 24, 1810, 3.

62. OBP, February 1818, trial of David Evans (t18180218-37) and October 1819, trial of John Holmesby (t18191027-35).

63. Martin Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004), 201. Note that Wiener is careful to distinguish between legally married and more casually united couples, and between those in which the infidelity was accepted by the court (43 cases) and those in which it remained unsubstantiated (23 cases).

64. Ibid., 206.

65. Ibid., 205. See, also, Foyster, Marital Violence, 115–22, which also describes late nineteenth century distancing from such defences as a narrowing or shift from a longstanding tradition.

66. Emphasis added. Wiener, Martin J., “The Sad Story of George Hall: Adultery, Murder and the Politics of Mercy in Mid-Victorian England,” Social History 24 (1999): 174–95, quote at 178–79.

67. Quotations taken from the various documents gathered in the relevant Home Office dossier: TNA, HO 45/9400/52638.

68. Wiener, “Sad Story,” 179 n. 23.

69. Ibid., 184.

70. Ibid., 190–91, quote at 191. An examination of the treatment of adultery killings on the continent is, unfortunately, beyond the scope of this article, but the Napoleonic Penal Code of 1810, which proved broadly influential in French colonies and other civil law jurisdictions, did expressly excuse the “crime passionnel.” Article 324 deemed the killing of a wife and her “accomplice,” when caught in the act in the conjugal home, an excusable homicide. See “Code Pénal de 1810” (September 19, 2015).

71. Stone, Road to Divorce, 231–300, quote at 233.

72. On criminal conversation, see also Staves, Susan, “Money for Honor: Damages for Criminal Conversation,” Studies in Eighteenth-Century Culture 2 (1982): 279–97; Turner, Fashioning Adultery, 172–93; and Donna T. Andrew, Aristocratic Vice: The Attack on Duelling, Suicide, Adultery and Gambling in Eighteenth-Century England (New Haven: Yale University Press, 2013), 126–74, 230–36.

73. 1 Hansard 14, 326.

74. 3 Hansard 142 1969–70, 1979.

75. For recent reviews of the literature on nineteenth century changes in view on sexuality and marriage, see Kate Fisher, “Marriage and Companionate Ideals Since 1750,” and Tanya Evans, “Knowledge and Experience from 1750 to the 1960s,” in The Routledge History of Sex and the Body: 1500 to the Present, ed. Sarah Toulalan and Kate Fisher (New York: Routledge, 2013), 328–47 and 256–75.

76. See, for example, the discussion in TNA, HO 347/15, p. 17, in which law reform commissioners advocated subdividing murder into first and second degrees, and used adultery killings as a specific example of a crime to be left in the non-capital category.

77. Hartog, Hendrik, “Lawyering, Husbands’ Rights, and “the Unwritten Law” in Nineteenth-Century America,” Journal of American History 84 (1997): 6796, quotes at 70.

78. Ireland, Robert M., “The Libertine Must Die: Sexual Dishonor and the Unwritten Law in the Nineteenth-Century United States,” Journal of Social History 23 (1989): 2744, quote at 30. Note that Ireland also misdates Maddy's Case, identified in the record with the regnal date 23 Car II, to 1683 rather than 1671, presumably not having noted that Charles II's reign was somewhat flatteringly treated as beginning at the moment of his father's death in 1649, not at his accession in 1660.

79. Ramsay, Carolyn B., “Intimate Homicide: Gender and Crime Control, 1880–1920,” University of Colorado Law Review 77 (2006): 102–91. See also Strange, Carolyn, “Masculinities, Intimate Femicide and the Death Penalty in Australia, 1890–1920,” British Journal of Criminology 43 (2003): 310–39.

80. Charles Dickens and Richard J. Horne, “Cain in the Fields,” Household Words, May 10, 1851, cited in Wiener, “Sad Story,” 184.

She thanks those who commented on earlier drafts of this article, including Drs. Sara Butler, Marisha Caswell, Jennine Hurl-Eamon, Cynthia Neville, and Tim Stretton, as well as the journal's anonymous reviewers. She also gratefully acknowledges support from the Social Sciences and Humanities Research Council of Canada.

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