During the early modern period, gender issues within society caused the criminal justice system and its authorities to target those who challenged traditional codes of behaviour: women, especially, were seen as a threat to the social order. This essay will look at why women became penalised under the criminal justice system in England and Europe. The differences in crime rates and the operation of justice will also be explored, in order to provide an insight into how crime rates and the authorities' response to crime differed locally and regionally in the early modern period. Through a range of historiography, this essay will evaluate the contrast in how men and women were penalised under the justice system by considering how female crime was deemed to be “rebellious” whilst male crime was “normalised”. The wider social, political and economic context behind crime rates during this period will also be considered, as it is clear that crime has not always been solely a gendered issue. This essay will therefore argue that although crime is gendered to a large extent, the assumption, by many historians, that crime rates were higher amongst men is incorrect. Crime was just as common among men as it was among women. However, due to gendered stereotypes and traditional values, women were more likely than men to be accused of crimes and penalised for them.
The operation of the criminal justice system varied locally and regionally during the early modern period. Crime rates tended to be higher in urban settings compared to their rural counterparts. For this reason, geographical, social and political factors had an influence on male and female crime rates across Europe. In England, the courts followed the rule of “Common Law”, which meant that the reputation and past behaviour of suspects were considered credible evidence in deciding verdicts during court trials. A woman’s facial expressions and gestures were also considered important evidence in court. As a result, women had very limited agency under early modern law.[1] For example, Mary Janson, who was accused of stealing, was ‘bound by recognisance not explicitly [for] receiving stolen goods but because she was of evil fame and very bad behaviour’. [2] Gendered attitudes towards a woman’s weak “nature” and behaviour, therefore, meant court trials saw women as causes of the threat to the social order.
The rise in urbanisation during the early modern period and the move towards more centralised and systemised states also caused many people to feel anxiety towards the order and control of the country. Anxiety around the breakdown of the patriarchal order, as a result, influenced how women were documented in court records and is one of the most predominant reasons why evidence of women’s involvement in crime is limited. It is therefore important as historians, when looking at criminal evidence, to consider not only the limitation on the quantity of the records but also how a woman’s past behaviour and performance of societal roles all influenced the outcome of court trials. The lack of awareness and consideration of these factors led many contemporary historians to view crime solely as “history from below” and not focus on gender relations, forming the assumption that crime was mainly masculine.[3] Many historians, therefore, only focused on male crime and did not consider women’s relationship with crime and the courts during the early modern period. However, this essay will prove that crime was both common amongst men and women and that women were treated very differently under the legal court system than men.
One of the most common criminal offences for which women were accused and penalised for was “scolding”. As defined by early modern law, a “common scold”, ‘was a habitually rude and brawling woman whose conduct was subject to punishment as a public nuisance’.[4] Legal definitions, however, ‘were often easily manipulated and in practice could encompass a wide variety of alleged activity’.[5] Although men could be accused, “scolding” was a gendered crime and mainly committed by women. The rise in scolding accusations also took place during the period when witchcraft cases amongst women were at their peak.[6] This, therefore, caused an increase in methods and punishments used by the authorities to maintain the social order.
The most popular punishments for “scolding” were the “ducking stool” and the “scold’s bridle”. Although the scold’s bridle was more commonly used, both involved the accused being publicly shamed and potentially ostracised from society. Figure 1, for example, depicts the experience of Ann Bidleston, who is shown as B in the image, who was punished for “scolding” in Newcastle. The scold’s bridle ‘was musled over the head and face with a metal tongue forced into her mouth which forced the blood out, she was then walked through the streets of Newcastle’ by Robert Sharp, who is shown by A in the image.[7] It is clear that although men and women were both accused of “scolding”, harsher punishments were inflicted upon women who rebelled against the social order. Women of a lower social status were also more likely to be convicted of “scolding” than women of a higher rank, as outcasts of society tended to voice their opinions against the authorities within their communities.[8] This idea that women gossiped amongst their neighbours and therefore went against the traditional behavioural expectations of society, supports the argument that crime was gendered to a significant extent in the sixteenth and seventeenth centuries.
Witchcraft was also a gendered issue, especially regarding how authorities responded to both male and female cases. Accusations of witchcraft were commonly associated with female crime and women as a result of neighbourhood gossiping. Although men were sometimes accused and tried for witchcraft, it tended to be women who were proven guilty and therefore penalised. Societal ideas of behaviour and neighbourliness amongst women were influential in the rise of witchcraft cases during the early modern period. This was because women were expected to conform to the rules of society, and anything that went against the patriarchal order was seen as rebellious behaviour. As a result, ‘male criminality is normalised whilst female criminality is seen in terms of dysfunction’.[9] Outcasts of society, especially widows, were, therefore, more susceptible to accusations of witchcraft as they went against female behavioural norms. Women were also more likely to face the death penalty once guilty of a crime, due to the expectation to uphold their reputation and honour. For example, after the trial of Effam Mackallean, who was found guilty in six cases of witchcraft, the assize ruled that ‘she shall be burnt quick, according to the laws of this realm’.[10] It was also likely that her death took place publicly, as female punishments tended to take place in front of the community in an attempt to not only humiliate the accused but also reinforce gender norms and behavioural expectations. Thomas Harvey, for example, was ‘by the command of the then Baron Nicholas…. Committed at Exeter whereby he [was] deprived of his liberty’.[11] This is not surprising as men accused and tried for witchcraft, and crime, in general, tended to face more leniency from the courts. However, due to the nature of the justice system, witchcraft trials are not always completely reliable, as the court tended to use leading questions and intimidation techniques to get a confession. It is, therefore, hard to determine whether certain witchcraft cases were based upon accusations of neighbourhood grievances or if the accused was guilty. Despite this, witchcraft cases provide historians with an insight into how female crime was viewed by the courts as well as society during this period.
Theft and the possession of stolen goods were also common in female crime rates during the early modern period. However, due to statistics on female crime often being discredited and overlooked, many historians formed the opinion that female theft was of less significance and therefore categorised it as a “petty crime”.[12] Despite this, women were charged and prosecuted for property crimes such as stealing goods and household burglaries, Daniel Defoe’s Moll Flanders provides an example. The protagonist, who is known within her community as being in common occurrence with the court, is ‘indicted for felony and burglary; for feloniously stealing two pieces of brocaded silk, value £46, the goods of Anthony Johnson, and for breaking open the doors’ and as a result is punished with the death penalty.[13] Despite being a piece of literary fiction, Defoe’s novel provides an almost accurate representation of female crime in London. His work explores women’s relationship with crime and the courts during the early modern period and provides a historical insight into how female thieves worked within their communities. Like Defoe’s characters, it was not uncommon for female thieves to work and learn together in organised groups, ‘the comrade she helped me to dealt in three sorts of craft, viz., shop-lifting, stealing of shop books and pocketbooks and taking off gold watches from the ladies’ side’.[14]Men and women also differed not only in ‘their choice of partners in crime’, with women ‘50% more likely to work with other women and 25% with men’, but also in the retributions they received.[15] John Steers, who was indicted for grand larceny for stealing a range of goods in 1686, was given the verdict of ‘not guilty’ due to ‘giving an account of his Reputation’.[16] However, despite women being faced with harsher punishments for crime, ‘women turned to theft for the same reason men stole in this period – largely as a means of survival’, the difference was that due to behavioural codes of society, property and theft-related crimes committed by men were “normalised”.[17] Women turned to the same practices as men to survive in the economic, political and social hardships of the early modern world whilst facing the prejudices that came with not conforming to stereotypical female roles. Crime was, therefore, to a large extent, moulded around gender issues that took place throughout the seventeenth and eighteenth centuries.
The extent to which crime was gendered in the early modern period also differed regionally. This is partly due to the differing operation of justice and moral values across Europe. Women’s crime rates tended to be higher in towns and cities due to women having more agency and leading more public lives.[18] In the countryside, where female agency was more restricted, however, women tended to be less involved in crime as they lived more restricted and private lives. Through his study on crime rates in Surrey and Sussex during the eighteenth century, John M. Beattie found that women ‘also accounted for a much higher proportion of the total crime in the city than the countryside’. [19] As a result of this, scholars viewed female crime as much higher than men. However, when looking at court records from rural areas, male crime rates, in comparison to female crime rates, were much higher, as male crime tended to be done outside the private life of the home, and therefore was more likely to be called upon by the authorities. Differing moral values and societal ideals also impacted crime rates not only in England but also in other parts of Western Europe. ‘The gender gap in early modern Frankfurt [was] more profound than in other urban centres in the Dutch Republic or United Kingdom’, for this reason, crime in the city of Frankfurt was to a large extent influenced by gender issues, and female crime rates were much lower.[20] It is, therefore, clear that the contrast in patriarchal ideals and behavioural stereotypes across early modern Europe influenced not only crime statistics among men and women but also the extent to which crime itself was gendered.
In conclusion, crime during the early modern period was gendered to a significant extent. Although the crimes committed by men and women were, to a considerable degree the same, the ways men and women not only practised crime but were punished for crime was very different. Attitudes towards crime were, therefore also gendered not just within early modern societies but also among historians. As outlined above, many historians overlooked the wider context of crime during this period and formed the assumption that crime was most common amongst men and, therefore “normalised”. However, it has become clear that contemporary historians' lack of awareness of the context of early modern crime and the limited resources on female involvement in crime have influenced the viewpoint that women were not as involved in crime as men. On the contrary, like men, women were involved in crime as a means to survive in the changing environment of early modern Europe. Women were just as likely to be involved in theft and property crimes as men, however, women were treated with less leniency than men and, as shown above, were more likely to face the death penalty. It is, therefore, clear that gender issues in this period, to a considerable extent, heavily influenced not only men’s and women’s intentions behind crime but also how crime was managed by the justice system during the early modern period.
Rebecca Colyer is currently in her 2nd year of a BA in History at the University of East Anglia
Notes: [1] Jennifer Kermode and Garthine Walker, Women, Crime and the Courts in Early Modern England. (Chapel Hill: University of North Carolina Press, 1995), p. 6. [2] Garthine Walker, Crime, Gender and Social Order in Early Modern England. (New York: Cambridge University Press, 2003), pp. 214-215. [3] Walker, Social Order, pp. 1-3. [4] “Common scold” Collins English Dictionary, accessed 20 December 2022, https://www.collinsdictionary.com/dictionary/english/common-scold. [5] Kermode and Walker, Crime and the Courts, p. 18. [6] Anthony Fletcher, Order and Disorder in Early Modern England. (Cambridge, 1985), p. 119. [7] Ralph Gardiner, England’s Grievance Discovered. (London, 1655), pp. 110-111. [8] Fletcher, Disorder in Early Modern England, p. 120. [9] Walker, Social Order, p. 7. [10] “Report on the trial of Effam Mackallean”, National Archives, accessed 21 December 2022, https://www.nationalarchives.gov.uk/education/resources/early-modern-witch-trials/witches-accused-of-treason/. [11] “Petition for Thomas Harvey”, National Archives, accessed 22 December 2022, https://www.nationalarchives.gov.uk/education/resources/early-modern-witch-trials/male-witch/. [12] Walker, Social Order, p. 159. [13] Daniel Defoe, Moll Flanders. (London: Harper Collins Publishers Inc, 2011), p. 245. [14] Defoe, Moll Flanders, p. 172. [15] Kermode and Walker, Crime and the Courts, p. 9, pp. 81-105. [16] Old Bailey Proceedings Online (www.oldbaileyonline.org, version 8.0, 23 December 2022), February 1686, trial of John Steers (t16860224-21). [17] Lynn MacKay, “Why they stole: Women in the Old Bailey, 1779-1789”, Journal of Social History 32, no.3 (Spring, 1999), p. 1. [18] Manon van der Heijden, Marion Pluskota, and Sanne Muurling, eds. Women’s Criminality in Europe, 1600-1914. (Cambridge: Cambridge University Press, 2020), p. 34, p. 44. [19] John M. Beattie, “The Criminality of Women in Eighteenth-Century England”. Journal of Social History 8, no.4 (Summer, 1975), p. 82. [20] Jeannette Kamp, Crime, Gender and Social Control in Early Modern Frankfurt am Main. (Leiden, The Netherlands, Brill, 2019), p. 63.
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