Two gaol delivery roll entries for a session at Leicester in 1419 deal with the death of a certain John Chaloner, said to have been killed in his bed one Saturday night in 1418.Footnote ¹ Both record ‘appeals’ – that is, prosecutions initiated by an individual. The first appeal is by John’s wife, Margery, against John Mathewe of Leicester, tailor, and Richard Bargeyn. The second sees a role reversal for Margery: now herself accused of participation in the killing. The roll notes that all three accused were found guilty, and were sentenced to death, but there is a striking difference in the method of despatch: the two male defendants were to be hanged, in accordance with the usual form of capital punishment for felony, but Margery was to be burned. This mode of execution set husband-killing apart from most other homicides, including other homicides within the family.Footnote ² This setting apart survived until 1828, when the legal differences between husband-killing and ‘ordinary’ homicide were removed,Footnote ³ and it came with procedural and doctrinal implications which were of interest and concern to common lawyers, in Margery Chaloner’s era and for several centuries thereafter. Much scholarly attention has been paid to ideas about husband-killing and literary representations of it, especially in the early modern period,Footnote ⁴ but there is also much here for the legal historian, including the medieval legal historian, to consider. Two important aspects of the English common law’s distinct and distinguishing response to husband-killing are evident in Chaloner and will be discussed here: on the one hand, the English association of this offence with treason,Footnote ⁵ and, on the other hand, the particular struggle to fit some husband-killing cases within the common law’s pre-existing procedural frameworks. As will be seen, husband-killing caused intellectual and practical legal problems, as intense, in their own way, as the better-known fears it aroused in the breasts of patriarchal elites and the plot ideas it placed in the minds of writers.

Treason, Homicide, Husband-Killing: Complicated Relationships

By the time of Chaloner, there had been an explicit association between husband-killing and treason for more than six decades, and some degree of connection for considerably longer. The nature of the association, however, was not straightforward. If we examine the entry relating to the prosecution of Margery Chaloner, we will note that this contains different descriptions of her offence. As well as the appeal against Margery, the entry mentions proceedings initiated by indictment, and, in the latter context, describes her offence as proditio, a word which had come to be associated with treason directed at the king.Footnote ⁶ Proditio is not used throughout, however: where the entry is concerned with the appeal against her, it uses only the language of felony, as in any other homicide case. This inconsistency of terminology highlights an important truth about the common law’s response to husband-killing: its dual and shifting nature. Throughout the centuries of its formally separate treatment, husband-killing sat between the two categories, felony and treason, and, while lawyers might push it somewhat towards one or the other, with their choices about rules and procedure and their theoretical constructions, its association with treason was always a somewhat troubling complexity: neither an inevitable, nor a perfect, nor a stable, union. This section of the chapter will explore the nature of the association in the later medieval period.

A preliminary complication for such an exploration is that neither ‘felony’ nor ‘treason’ can be pinned down to one straightforward concept, and there is a degree of overlap: treason had ‘more than one centre’, focusing in part on lord–vassal relationships and in part on king–subject relationships as something special and distinct, and felony seems to have imported an idea of betrayal.Footnote ⁷ In addition, the definition and content of the offences themselves had not reached a fixed state in the later medieval period, with treason in particular being pushed to respond to political crises and developments in constitutional thought.Footnote ⁸ Nevertheless, by the later medieval period, a tolerably clear conceptual distinction was in place, with felony representing a more general class of serious wrong, regarded as disrupting the king’s peace, and treason becoming primarily the ‘place where law and politics meet’,Footnote ⁹ comprising offences against the king’s person, royal government or the constitution.Footnote ¹⁰

Another relationship which should not be oversimplified is that between the penalty of burning, women and treason. The sentence of death by burning in husband-killing cases, as seen in Chaloner, can be traced back to the thirteenth century at least.Footnote ¹¹ While this served to single it out from most other homicides, it is not a clear sign that the οffence was regarded as treason, or as having a relationship to king- or government-centred treason, as opposed to a wider idea of an offence against one’s lord,Footnote ¹² or even a manifestation of a deeper, older, vaguer association between women and death by fire.Footnote ¹³ An explicit conceptual association between husband-killing and king- or government-centred treason was made only in the Statute of Treasons 1352. Having listed treason offences against the king, his family, the realm and the coinage, this measure designated husband-killing (and two other non-royal homicide scenarios: servant kills master and prelate is killed by one owing him faith and obedience) as autre manere de treson: ‘another sort of treason’.Footnote ¹⁴

The association was not a complete absorption of the three ‘other’ scenarios into the treason category, nor can it quite be mapped onto later constructions of the relationship as one of parallel offences against hierarchies, with ‘petty treason’ offences representing a scaled down version of ‘high treason’ offences. A complete assimilation of husband-killing to the treason category was put forward in a case of the 1540s,Footnote ¹⁵ but no such statements would have been found in the later medieval period. Distance is maintained in the 1352 statute: the three ‘other’ scenarios are explicitly differentiated from those treasons listed beforehand, in terms of the forfeiture consequences which would follow conviction. Later accounts, including those of and concerning early modern literature, and those located in the era of moves towards ending the penalty of burning for women and the special treatment of husband-killers, emphasise a parallel between king-killing and husband-killing in particular, but care is needed here when considering the medieval position.Footnote ¹⁶ We should note that husband-killing was not, in fact, foremost amongst the three ‘other sorts of treason’ listed in the statute. The first of these, servant kills master, seems likely to have been the main concern at this time of government fear of the power of labourers.Footnote ¹⁷ I would conjecture that the inclusion of the husband- and prelate-killing scenarios was not particularly indicative of a concern with the incidence of these offences at that time, but a noting of situations which seemed analogous – in the case of husband-killing, tidying up and making explicit a vaguer prior connection to vaguer prior ideas of treason, and in the case of prelate-killing, in a rather more intellectual than practical manner (since one who stood in the right relationship to a prelate to commit this offence would be likely to have been able to avail himself of benefit of clergy, and might well not have had property to forfeit).Footnote ¹⁸ It has the look of legislation being created using the sort of running through of analogies familiar from accounts of common lawyers’ reasoning in Year Books and readings, a reconstruction which seems plausible given the strong case made by Bertha Putnam for the influence of a leading common lawyer, Sir William Shareshull, chief justice of the King’s Bench, on its drafting.Footnote ¹⁹ The 1352 statute was certainly important in the development of husband-killing as an offence associated with treason, but evidence from practice following the statute suggests that the link remained relatively loose in the medieval period.Footnote ²⁰

The link’s relatively loose nature can be seen in the language in husband-killing records. I have mentioned the use of proditio, a term associated with treason, in Chaloner. A reading from the late fifteenth century, however, denied that the offence was to be called treason at all,Footnote ²¹ and the language seen in other entries also suggests a degree of indecision as to whether to follow the linguistic conventions associated with treason, or to use regular ‘felony’ language. It is not unusual for early records to note a penalty of burning, but otherwise to use language indistinguishable from that seen in ‘ordinary’ homicides.Footnote ²² Sometimes they use an additional, condemnatory, term, most frequently something in the seditio or seductio field, and occasionally traditio, rather than proditio.Footnote ²³ The use of ‘treason terms’ increases during the reign of Richard II, a period which saw special attention to, and moves towards definition of, treason,Footnote ²⁴ and the ‘treason term’ used becomes increasingly likely to be proditio.Footnote ²⁵ This seems to bring husband-killing closer to treason, in which a similar movement to proditio can be seen,Footnote ²⁶ but there still does not seem to be an absolute necessity to include ‘treason terms’ in general, or proditio terms in particular, in husband-killing accusations at this time.Footnote ²⁷ A husband-killing case from a 1390 gaol delivery roll, for example, classes the deed as having been done feloniously and traditorie, elsewhere says that the victim was murdered horribiliter, and the verdict is simply in terms of felony and murder (though the wife is ordered to be burned).Footnote ²⁸ The coroner’s roll, with a record of the appeal, has no treason words, but describes the accused having ‘horribly murdered and feloniously killed’ the victim.Footnote ²⁹ Even in the later fifteenth century, there are some entries which do not use special vocabulary beyond felony, including those relating to what would appear highly transgressive episodes, such as a wife alleged to have killed her husband by dragging him by the ‘secret members’ and a poisoning case in which the devil’s instigation was invoked, but not the treacherous adverb proditorie.Footnote ³⁰ In Chaloner, as noted above, the section of the entry recording the appeal against Margery uses only felony language, whereas that noting the indictment also classes her offence as proditio.Footnote ³¹ This should remind us of the need to take seriously the fact that the ‘rules of the game’, including what seem to us important differences of terminology or classification, could be different, depending on the form of prosecution employed. The occasional ‘exaggerated’ use of treason words, such as the use in Chaloner of the language of proditio in relation to one of the male defendants, who is neither identified, nor punished, as a servant, should also urge us to caution in assuming there to have been settled vocabulary in this area.

Indicative of an evolving relationship between husband-killing and other treason οffences in later medieval legal thought is the move, around the time of Chaloner, to a new conceptual structure. Husband-killing (along with master-killing and prelate-killing) came to be described not as a ‘sort of treason’, but as ‘petty treason’, contrasted with ‘high’ treason. This move, though often backdated to the 1352 statute, was an independent development.Footnote ³² The high treason/petty treason binary had rivals well into the fifteenth century, in classifications splitting treason into that which touched the king directly and that which did not, and in the great/petty, as opposed to high/petty, distinction seen in some statutes, and arguably importing different nuances of constitutional thought.Footnote ³³ The inclusion of offences relating to the coinage militated against a neat two-level structure for treason, for these were οffences against the king/realm, treated severely and yet not fully assimilated to ‘high treason’,Footnote ³⁴ and the parallel between treasons closely involving the king or realm and those against superiors at a lower level was not complete, since a number of different ‘higher’ οffences amounted to treason, whereas only killing a master, husband or prelate, and not lesser transgressions against such a superior, was singled out for special treatment in the 1352 statute.Footnote ³⁵ The prominence of the high treason/petty treason binary increased and became conventional in legal texts from the sixteenth century to 1828, shaping accounts of the law and its history which placed in the foreground ideas of a neat parallel between ‘high’ and ‘petty’ offences, a neat, logical, perhaps natural, relationship of derivation of the lesser from the greater offence.Footnote ³⁶ The medieval evidence suggests a less straightforward association of the different offences and less of an ambition to create an exhaustive list of ‘other sorts of treason’. Later lawyers looking at the 1352 statute, with its three ‘other sort of treason’ scenarios, were not infrequently rather uncomfortable with the fact that its ‘petty treason’ scenarios did not cover all of the offences against hierarchical relationships which would fit their interpretation of that class, in particular making no mention of patricide (or matricide).Footnote ³⁷ We may regard this as illustrative of differing ideas of the nature and purpose of legislation: the 1352 statute clearly did not set out to be exhaustive in terms of situations covered, and makes it clear that extensions were envisaged. Some later accounts, however, treated the statute as if it was an exhaustive list and felt compelled to force the ‘petty treason’ category to cover children who killed a parent, either by classing them as servants, or else by misreading a medieval report of a master–servant case as if it was about the killing of a mother.Footnote ³⁸

Equally important to recognise, in exploring the medieval common law response to husband-killing, is that, while it is tempting to see it as more-or-less homicide or more-or-less treason,Footnote ³⁹ the better view is that it was not clearly seen as one or the other. While the inclusion of husband-killing in the 1352 statute, the ‘petty treason’ label and the burning penalty for husband-killing all signalled an affinity with non-husband-killing treason, husband-killing did not always follow the treason pattern. It followed the homicide pattern in some respects, and elsewhere it sat between the two poles. In the ‘like homicide’ column, we can place the fact that suspects were always tried in the same way as ‘normal’ suspected killers: on appeal or indictment, rather than using the special modes devised for ‘high’ treason, and the fact that forfeitures followed the felony, not the treason, pattern.Footnote ⁴⁰ In other areas of theory and practice, there was some uncertainty, or change over time, with regard to the position of the offence vis-à-vis treason and homicide. We can see change with regard to the relevance of benefit of clergy for males accused or convicted of petty treason, and in treatment of degrees of participation. In the early fifteenth century, as with homicide (or indeed any felony) benefit of clergy was available to males but not females.Footnote ⁴¹ This, however, was changed by statute in the late fifteenth century.Footnote ⁴² Probably better classed as somewhat uncertain are the questions of principal and accessory, and of attempts. The treason pattern of liability did not rank participants as principal and accessory, and punished attempts as well as completed actions, while the homicide pattern distinguished principal and accessory and, aside, perhaps, from a brief period in the early fourteenth century, generally did not punish attempts.Footnote ⁴³ To some extent, petty treason followed the homicide pattern with regard to principal and accessory. Thus, the liability of a woman who was an accessory in the killing of her husband was dependent upon that of the principal in so far as, if the principal succeeded in trial by battle in an approver appeal, or died, for example, she would be acquitted.Footnote ⁴⁴ An issue which was not covered by the homicide rules but with which petty treason cases had to contend was whether it was possible to convict a (non-servant) principal of ordinary homicide, and a wife, described in terms which seem to position her as an accessory, of petty treason, hanging the one and burning the other. There are occasional cases which seem to suggest this,Footnote ⁴⁵ but we may also detect some discomfort as to how to describe the wife’s actions in an ‘accessory’ situation. There is a slightly odd description in the appeal against Margery Chaloner, for example, suggesting that she, as well as her co-accused, broke into her husband’s house at night. While it is possible that Margery was not living with John, it is, perhaps, more likely that this tying of Margery to the break-in is an attempt to play up her active role in the whole enterprise, rather than casting her as an accessory to a man who does not seem to have been treated as a servant. At least as odd is the description of a man and a woman using one knife to kill her husband, which we see in a case of 1424, again involving a non-servant male.Footnote ⁴⁶ It may be that one of the jobs done by the inclusion in indictments of allegations of a wife’s alleged adultery with her husband’s killer, seen in a number of cases, and in addition, no doubt, to acting as a general smear on her character and credibility, was tying her to the act as firmly as possible, to get around uncertainty about the rules on accessories in petty treason in general, or the particular issue of finding principal and accessory guilty of different offences in these cases.Footnote ⁴⁷

As far as attempted husband-killing is concerned, the situation in the medieval period is somewhat unclear. Later commentary suggests that an attempt to kill one’s husband would be prosecuted and punished as petty treason, but all who say so cite for this proposition one somewhat ambiguous, and as yet unverified, source: a short account, ascribed to Spigurnel J, contained in an early fourteenth-century Year Book report of a case on a different topic (receiving stolen goods).Footnote ⁴⁸

There was much for medieval lawyers to discuss with regard to the appropriate rules and procedure for petty treason in general, and its husband-killing species in particular. Their idea of husband-killing as treason was not sufficiently absolute as to constrain them to treat it identically to the ‘higher’ forms of treason, and they elected to follow treason jurisprudence and procedures or those of homicide, as seemed appropriate. In some cases, however, accommodating husband-killing within the common law brought with it additional difficulties which led to explorations of possibilities beyond either the treason or the homicide pattern. One scenario which caused particular concern to medieval lawyers and those wishing to use the law, arose in Chaloner and some other fifteenth-century cases, and it is this matter to which I now turn.

Prosecuting Problems

A perceived problem which was present in Chaloner was how to prosecute when it was alleged that a wife had participated with others in killing her husband. This could present a difficulty in such cases as a result of the existence of different methods of starting a criminal prosecution and the rules for their interaction, and the role given to wives in bringing an appeal.

The alleged husband-killer could be prosecuted by a group or an individual, by way of presentment/indictment or appeal, and sometimes, as in Chaloner, both were brought in respect of the same alleged offence.Footnote ⁴⁹ A difficulty arose, however, when the wife herself also brought an appeal. A widow’s right to bring an appeal when her husband had been slain was accepted, justified in the legal formula, until the later fourteenth century, through a claim of physical proximity, if not unity, between husband and wife: he had to be said to have died ‘within her arms’.Footnote ⁵⁰ The need to repeat this metaphorical tag disappeared well before Chaloner, but the strength of the wife’s right to bring an appeal remained sufficient to cause complications since her appeal was given priority over appeals by others, including heirs and blood relations, and over indictments.Footnote ⁵¹ A wife who was both homicidal and canny could, therefore, bring an appeal to delay any prosecution of herself by others, and give herself a chance to find some means of legal escape, or to flee. She could delay the passing of property to the family of the deceased.Footnote ⁵² Further complications in prosecuting a husband-slaying wife in such a situation might also be caused when an heir did not want to, or could not, bring an appeal.

Chaloner gives an example of one way of minimising delay, by what seems to have been a relatively new adjustment of procedure. A 1421 law report, probably influenced by the judicial experiences of William Babington in Chaloner, puts an interesting remark into Babington’s mouth, having him comment that a woman could appeal X for her husband’s death, even when she herself had (allegedly) been involved in that death, and she could be appealed afterwards.Footnote ⁵³ Chaloner shows that ‘afterwards’ meant immediately afterwards: the two cases could be heard in the same session, thus avoiding some chances for delay or flight. This case may also have involved manoeuvring to get around the problem of an heir unwilling or unable to bring an appeal against the allegedly murderous wife, for reasons of his youth or incapacity, or reluctance to act against a defendant who might, of course, be his own mother.Footnote ⁵⁴ Some aspects of the record of the appeals in Chaloner suggest that such a problem had materialised there. Margery was appealed by a certain John Smyth of Moreton, who declared himself to be John Chaloner’s brother and heir. Questions are raised by the fact that his name is not Chaloner, but the entries indicate the involvement of somebody who is called Chaloner: Robert Chaloner, one of Smyth’s pledges for prosecution. Was John Smyth not actually heir to John Chaloner, but something of a device to ensure Margery’s prosecution in a situation in which none of the Chaloners wanted to bring an appeal? Divergent surnames are not necessarily a clear indication of a lack of relationship, and while ‘John Smyth’ might strike a modern reader as suspiciously generic, and while there are entirely fake people to be found in the historical records of common law, this was not a conventional fake name in medieval proceedings.Footnote ⁵⁵ Although it would be quite a leap to imagine that the appeal was a complete fabrication, ‘covenous’ appeals of other sorts have been noted and a degree of fiction is a possibility.Footnote ⁵⁶

It is not inconceivable that John Smyth was a real person but not actually the brother and heir. The fact that John Smyth and Robert Chaloner are both listed as Margery’s pledges for prosecution of her appeal tends to suggest that the two cases were not simply proximate in time but co-ordinated. Quite what was the aim is unclear, however: was this a strategy to expedite the matter so that Margery could be removed from the scene, or a strategy intended to help her by giving her an escape route, through a challenge to John Smyth’s right to appeal? We can see, however, that Margery did not avail herself of any such plea, trusting instead to the favour of the jury, and perhaps (despite the weight of scholarship which shows that this was not a wise strategy) the plea of pregnancy which she tried but failed to make out?Footnote ⁵⁷ There is no basis upon which to offer more than speculation, but the evidence does seem to suggest a strategy to deal with a perceived problem.

Similarly, perceived problems relating to the use of appeals in such scenarios were brought out in the documentation relating to the later-fifteenth-century case of Chaworth.Footnote ⁵⁸ John Chaworth had died in 1464, killed, so his family said, by men hired by Robert Marshall, allegedly the lover of his wife, Margaret. Margaret was also implicated. The Chaworths expressed concern that she could delay the prosecution by bringing an appeal against the actual killers, and that they would have problems bringing an appeal against her. Their particular difficulty was that the heir was only eight and the next choice, the deceased’s brother, was sickly.Footnote ⁵⁹ Rather than employing a double prosecution and (perhaps) a questionable appellant, the family opted to step outside common law processes and petition for a derogation from the usual rules. The request was that Margaret be excluded from appeal, and a special scheme directing an entail-like path for appeal right should be set up. The right would pass over the child and instead go to William Chaworth, (sickly) eldest brother of the deceased, then another brother, and then the king. This suggests that families who wished to prosecute a woman in this scenario had still not hit upon a secure and straightforward means to do so within the ordinary processes of the common law.

Some limitation of the ease with which a woman could be prosecuted for the death of her husband might not be antithetical to justice, of course, since apparently tenuous prosecutions, including one in which it became apparent that the husband in question was not dead at all, do provide evidence that suspicion against a wife was relatively easy to kindle or to affect.Footnote ⁶⁰ Nevertheless, families of deceased men seem to have seen a problem with bringing prosecutions of women in this area. Cases like Chaloner and Chaworth, with their multiple interested parties and their overlapping methods of prosecution, highlight the fact that the husband–wife relationship was interwoven with other family links, and, indeed, had an impact upon the local community beyond the family. We draw an incomplete picture of law and practice if we portray the offence simply as relating to one hierarchical relationship, a parallel with the king–subject relationship. Husband-killing presented genuine challenges to the existing legal categories and procedures which common lawyers had devised and into which it had to be fitted. The attempt to accommodate it within those patterns gave rise to considerable mental effort and creativity.

Conclusion

Once husband-killing had been reabsorbed, doctrinally, into the mainstream of homicide, common lawyers, even those with historical interests, might treat its encounter with treason dismissively, as a rather embarrassing byway in legal thought, best passed over in short order. ‘The use of this subdivision of murder I do not understand’, was the exasperated verdict of one historically inclined legal luminary.Footnote ⁶¹ The English legal response to husband-killing, or the perceived threat of it, as developed over a prolonged period, is, however, worth the attention of legal historians, whether of a social or doctrinal bent. As well as its great interest and importance in terms of gender relations and marriage, it was a matter of concern and keen interest to common lawyers throughout its existence as something separate from ‘ordinary’ homicide. In examining a body of law which developed over several centuries, we should, of course, be careful not to assume consistency of concepts and rules, or of relationships between legal categories. As this chapter has argued, the evidence from the medieval period shows that the relationship between husband-killing and ‘higher’ forms of treason, though evidenced by the words of the 1352 statute, was looser than the relationship drawn in later legal texts, and was not as neat, or at any rate not the same, as some of relationships between husband-killing and high treason in the scholarship on early modern literature. Husband-killing was not the only, perhaps not the most concerning, ‘other sort of treason’ in the 1352 statute. Medieval records of practice show that treason terms did not always have to be mentioned in husband-killing cases, and the law on treason did not straightforwardly dictate rules and procedures for these cases, which might be drawn from treason or homicide jurisprudence, or, as in the case of the scenario in Chaloner and Chaworth, be found in other ways.

At the heart of the husband-killing allegations in cases such as that of Margery Chaloner lay, we may conjecture, the story of a troubled relationship between two people. There were, however, additional dimensions of concern, and there are other relationships with which we must reckon. First of all, people beyond the spousal unit felt that they had a stake in the way in which these cases were handled: the wider family in particular might push to be involved in legal action concerning a suspected wife. Secondly, other, more metaphorical, ‘troubled relationships’ are highlighted by this material: those between different modes of criminal prosecution, between husband-killing, homicide and treason, and, ultimately, between women and the common law.