At common law, married women could avoid being convicted of certain offences simply by the fact that they were married. Coverture meant that women were, to an extent at least, legally subsumed by their husband – they lost some property rights, for example, although the extent to which this occurred in practice has been debated. But under certain circumstances, wives benefitted, as husbands could be found to be accountable for property offences committed by their wives.
There were restrictions on how far this could be taken, of course. As Garthine Walker has noted, the woman had to have been charged with a felony offence, rather than a misdemeanour, and she had to be found to have stolen by the constraint of her husband – it was not enough to have committed a theft in your husband’s absence, even if he had bullied or cajoled you, if there was no evidence of constraint.
Yet, as Peter King has argued, there was a grey area. Because of the differing, even conflicting, views of the courts and individuals about how to apply coverture in these cases, throughout the late 18th and early 19th centuries, married women were more likely than single women to avoid prosecution for such offences.
Although a different type of case, one 1844 trial involving a married woman similarly hinged on whether she had acted freely, or whether her husband had forced her into committing an offence, and shows how the courts could be influenced by a woman’s marital situation, and the concept of coercion. The courts may also have been more reluctant to convict a woman of an offence where a man might have been found guilty.
24-year-old Jane Bannon was tried at the Warwick Crown Court on 7 August 1844 of trying to help her husband escape from prison. Benjamin Bannon, Jane’s husband, then aged 28 and a wool stapler, had been convicted of coining offences at the Warwickshire Assizes just over three months earlier (on 30 March), and sentenced to 14 years’ transportation. He was still in prison awaiting this sentence, and it was alleged that Jane had smuggled a lifting-jack, a spanner, a saw and a pair of scissors to him, to enable him to break out.
It was proved that Jane had indeed got these implements, and taken them to her husband – but the judge told the jury that they had to decide whether she had acted as a ‘free agent’ or whether she had acted ‘under the control of her husband’. If the former, she was guilty of aiding the escape of a prisoner; if the latter, she was innocent in terms of the law.
The jury duly returned a verdict of not guilty, believing that Jane had been made to obey her husband’s instructions. The verdict met with the ‘evident satisfaction of a crowded court’, and Jane could walk free.
Her husband, though, was not so lucky. He had failed to escape from prison, and he would fail to avoid his sentence. He was given training as a tailor in prison, but two years after being convicted, on 22 June 1846, he left England on the convict ship Maitland. He arrived at Port Phillip Bay, Victoria, on 9 November that year, with 298 other passengers. From Port Phillip Bay, he was taken the short journey to Williamstown – now a Melbourne suburb, but at that time a nine-year-old port, where a 30 metre stone jetty had been built by convict labour in 1838.
Both Benjamin and Jane vanish from the archives at this point; Jane was not found to have acted as a ‘free agent’ in 1844, but once her husband was on the other side of the world, she was certainly more free than he was.
References: Garthine Walker, ‘Crime and the Early Modern Household’, in Helen Berry and Elizabeth Foyster (eds), The Family in Early Modern England (CUP, 2007), p.75; Peter King, ‘Female offenders, work and lifecycle change’ in Continuity and Change, 11 (1996), pp.67-68; Shani D’Cruze and Louise A Jackson, Women, Crime and Justice in England since 1660 (Palgrave Macmillan, 2009); Coventry Herald, 16 August 1844; AncestryTweet