Garthine Walker. Crime, Gender and Social Order in Early Modern England. Cambridge: Cambridge University Press, 2003. xvi + 310 pp. $60.00 (cloth), ISBN 978-0-521-57356-6.
Reviewed by Robert Shoemaker (Department of History, University of Sheffield)
Published on H-Albion (May, 2004)
Gendered Discourses of Crime and Justice
This is the first monograph on this subject, and a welcome contribution to the historiography of both gender and crime. Building on the earlier collection of articles Garthine Walker jointly edited with Jenny Kermode (Women, Crime and the Courts in Early Modern England, 1994), this substantially revised version of her doctoral dissertation sets out to challenge conventional claims that crime was fundamentally a masculine activity (with the exception of a few notably "feminine" crimes such as infanticide and witchcraft) and that crimes committed by women were few in number, petty, and lacking in courage and initiative. The parallel argument that because female crime was relatively insignificant women were treated leniently by the courts is also called into question. Basing her conclusions on an extensive sample of the rich surviving records from several courts in Cheshire, Walker concentrates on violent crimes and theft, but there are also discussions of a wide range of other offenses, including scolding, assault, bastardy, erecting cottages, and forcible rescues. Her method is to examine the intersection of discourse and practice, by showing how stories about male and female crimes varied not just according to the contrasting circumstances of men's and women's lives, but also depending on the discourses available for condemning or justifying them. She argues that legal categories were also fundamentally gendered, which further accentuated the apparent differences between crimes committed by each sex. Only after taking into account differences of language and context, she contends, is it justifiable to engage in the quantification of criminal prosecutions. And when the same criminal activities are compared, almost invariably the differences between the sexes are much reduced.
In the case of violent crime, for example, although women were accused of far fewer assaults (partly because often only the men were prosecuted when both husbands and wives were involved), the proportion of such crimes which involved the use of arms was similar for each sex. Women were particularly likely to use violence to protect their households, often against officials who sought to distrain goods for debts or make arrests. Women's relative participation in some of the more violent forms of theft (notably burglary and housebreaking) was also equal to that of men. Male victims' accounts of female participation in such crimes, however, tended to minimize female violence. In order to defend their honor from the impression they had been overpowered by women, men's accounts of female violence tended to emphasize verbal insults and attacks on property, rather than attacks on their bodies. (In other contexts, however, it was men's violence that was downplayed: men were never prosecuted for their participation in infanticide, because this was perceived as solely a female crime.)
In her analysis of the stories told to judicial officials by victims and defendants, Walker shows that men and women adopted "a range of subject positions" (depending on the context) in order to place themselves in the best possible light (p. 279). In the final chapter she shows how litigants and petitioners used available cultural and legal discourses to limit their own culpability and demand entitlements. The mothers of bastard children, for example, portrayed themselves as victims of dishonest and evil male seducers when petitioning the court to order fathers to support their children. Those who sought to build cottages on commons and wastes successfully used the language of rights, entitlement, and natural law to support their pleas. The way in which the articulation of criminal complaints was shaped by the range of discourses available is further illustrated by the impact of the events of the 1640s and 1650s on the character of prosecutions for violence in Cheshire. The defeat of Charles I in 1646 legitimated critiques of the "unnatural" use of power and violence by husbands. With the execution of the king in 1649, however, this discourse became dangerous, and the term disappeared from complaints about domestic violence. In addition, women's participation in the civil war facilitated "an extension of positive discourses of feminine force" (p. 93), and the widespread use of "the language of oppression" (p. 267) in these years allowed the poor to articulate claims for rights in their petitions to magistrates. Following the Restoration, however, these discourses lost their legitimacy.
Despite this evidence of lower-class and female agency, the law was created by male elites, and Walker shows that because concepts of culpability, appropriate punishments, and mercy were based on perceptions of male criminality, the courts treated men differently from women, often more leniently. In murder cases, for example, the key question was whether the culprit could avoid the death penalty by being found guilty only of manslaughter (because there was no premeditated malice) or excusable homicide (because the killing was accidental or in self-defense). Because these forms of mitigation were intended for deaths arising from fights arising out of the male culture of honor and conducted on an equal basis by voluntary participants, they were not perceived as appropriate for women. Female murderers were never convicted on a reduced charge and branded or pardoned; they were either acquitted or hanged. The only exception was in cases of the "female crime" of infanticide. Contrary to conventional wisdom, Walker shows that the 1624 Infanticide Act was interpreted as providing opportunities for mitigation, allowing some of those convicted to be pardoned. In theft cases, women suffered from the fact that benefit of clergy, originally created for men only, was still largely excluded from women. Owing to the unavailability of clergy to women convicted of thefts of goods worth between ten and forty shillings until 1691, women were more likely to be hanged for larceny than men.
This is the most subtle and sophisticated analysis of the relationship between gender, crime, and justice in early modern England yet published. Despite the author's latent hostility to quantification, this book shows the merits of combining qualitative and quantitative analysis, and of examining criminal complaints and judicial decision-making in a broad range of cultural and social contexts. Walker nonetheless understates the significance of her findings by presenting them as a critique of an older historiography of crime (primarily from the 1970s and 1980s), with its naïve enthusiasm for quantification and understandably limited conceptualization of gender. It would have been helpful to see Walker's response to more recent work which adopts a cultural approach, such as that of Malcolm Gaskill.[1] She also could have more systematically addressed recent scholarship on gender, where her argument concerning the increasing ideological stress on feminine passivity following the Restoration is potentially controversial.
This book raises other questions for further research. While the gendered aspects of prosecutorial discretion, jury verdicts, and judicial punishments are examined, there is no analysis of women's and men's experiences of preliminary examinations and courtroom trials, key aspects of the judicial process where women were potentially disadvantaged in male-dominated environments. More generally, we need to know more about how the gendered ideas about crime, which shaped the languages of prosecutions, were disseminated. Walker includes some material about ballads, but much more work needs to be done to determine where the discourses came from that litigants and witnesses used and manipulated in their testimonies and petitions. Where, for example, did the mothers of bastard children get the idea of the evil male seducer which they used in their petitions to the court? Having demonstrated that ideas about crime and justice were shaped by broader cultural trends, we now need more research into how the processes of cultural transmission worked.
Note
[1]. Crime and Mentalities in Early Modern England (Cambridge: Cambridge University Press, 2000); reviewed on H-Albion, http://www.h-net.org/reviews/showrev.cgi?path=28349979329615.
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Citation:
Robert Shoemaker. Review of Walker, Garthine, Crime, Gender and Social Order in Early Modern England.
H-Albion, H-Net Reviews.
May, 2004.
URL: http://www.h-net.org/reviews/showrev.php?id=9364
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