Continuing our Women's History Month series, Nell Darby examines how women in eighteenth-century England used their local magistrate to complain about their husbands, showing how women from relatively humble backgrounds used this lowest rung of the criminal justice system to air their grievances and have their voices heard.
It was at the summary level of the criminal justice system that most people came into contact with the law during the long eighteenth century. Throughout this period, the summary process was widely used by rural communities for both civil and criminal matters, and it is through their relationship with the local magistracy that members of rural societies were able to negotiate relationships and issues within their communities.
Reading through the surviving notebooks of rural magistrates - where they recorded the cases they heard at summary proceedings - you will find several entries recording a woman, venturing into the justicing room to make 'a complaint against her husband'. Although many entries lack detail, others catalogue a litany of domestic violence or abuse, from being sworn at or threatened, to being physically beaten. Before the impressive figure of the male magistrate, together with his clerk, and possible other onlookers, such women braved both a patriarchal society and the criminal justice system to accuse their husbands of violence against them.
Summary proceedings were primarily a forum where disputes could be arbitrated and mediated by the magistrate, with his role becoming increasingly about civil and personal matters, and involving the provision of financial advice and counselling. The magistrate was a central figure within his community, ensuring a stable society, but his exact role was also dependent both on his own beliefs and individuality, and on how the law was interpreted by him. Therefore, throughout the long eighteenth century, the summary process in rural England continued to offer a localised and personalised form of justice. The summary process also, at that time, provided a more informal and flexible form of justice, where disputes could be mediated and settled.
The rural magistrate at summary level had an important function in maintaining social relations within his local community, and he was used by the local population to act as mediator or referee in personal disputes. This was a fact acknowledged in the mid eighteenth century by the legal theorist William Blackstone, who saw the magistrate's key role as "healing petty differences", and by magistrate Richard Burn, who repeated stressed the primary role of the justice as being, as his name suggested, to keep the peace amongst residents of his county.
John Brewer and John Styles have concluded that the criminal justice system was a 'multi-use right' used by the lower and middle orders of society, and it's clear that at summary level, the middle and labouring classes were well represented. In terms of gender, as with the higher courts, women were less evident than men in rural summary proceedings, in terms of both complainants and defendants, but they did form a higher percentage of complainants at summary level than has been found in the higher courts. They were particularly well represented in terms of offences against the person, being active participants in the summary process as complainants in cases involving petty violence and assault, primarily accusations made against men. Women's participation reflected the desire to reach agreement in cases at a more local, accessible level, without the need for the expense, time and travel involved in taking a case to Quarter Sessions.
As Peter King has highlighted, summary proceedings were 'the main formal judicial forum in which disputes relating to marital violence were settled'. Although marital violence actually only constituted a small part of the rural and provincial magistrate's summary workload, these cases need to be looked at within the context of assault complaints brought by women. An average of 15 per cent of offences against the person complaints brought by women involved marital violence. This shows that women saw the rural magistrate as serving a useful purpose in resolving cases of marital violence. These cases were unlikely to represent the first time a husband had made threats or been violent towards his wife. Approaching the magistrate was the first step in taking legal action in such cases, but it was the local community that initially dealt with cases of marital violence, and legal action was seen as the last resort.
'Dreadful Wife Beating Case'. Illustrated Police News, 26 December 1868.
Legally, married women during this time were viewed as akin to children; just as children were to be the subject of reasonable chastisement by their fathers, and servants by their masters, so too were women allowed to be chastised by their husbands. Although women were able to ask to bind their husbands over to keep the peace, the onus remained on a woman to show that the violence displayed towards her was not reasonable, but excessive. Only a minority of female complainants before the rural magistrate requested sureties of the peace against their husbands, suggesting that this was not the primary aim of bringing cases. The relatively high percentage of such complaints brought to Wiltshire JP William Hunt who favoured mediation in his summary work suggests that women were using the magistrate to negotiate a better relationship with their husband, or in the hope of embarrassing their spouse into behaving better.
This fits with the role of the magistrate in maintaining social order. Discipline was accepted as appropriate in some situations, but magistrates had to ensure that such discipline remained moderate, and did not undermine the social order. This emphasis on moderation is clear from the magistrates' records of their activity at summary level; for example, Norfolk magistrate Robert Doughty, in 1664, stressed that Elizabeth Copeman had asked for a warrant to be issued against her labourer husband Thomas because the beating she had received at his hands was extreme, rather than moderate. Wives frequently stressed the unreasonableness of their husbands' actions extreme violence, putting them in fear of their lives and stressed their own innocence in such actions, stating that they had given their husbands no cause for violence, and had not retaliated. In phrasing their complaints in a certain way, they were making clear their awareness of how the law worked, and what they needed to show in order to get action taken against their spouse.
The mediating role of magistrates can be seen in the action taken or not taken as a result of wives' complaints against their husbands. William Hunt usually attempted to reconcile couples, judging by the entries in his notebook. In April 1745, he heard a complaint by Mary Draper, who said that her husband had beaten her, turned her out of her house, and refused her maintenance. Hunt called the husband to him, and made him promise to 'receive his wife again and us[e] her better for the future', at which point, Hunt let the couple go. In other cases, Hunt notes, 'I suffered them to agree it', or 'it was agreed'. In one case, the couple managed to resolve their differences at least temporarily without having to be called before Hunt for a hearing, which suggests that other members of their community might have mediated informally, in order to prevent the case being heard before the magistrate again. When Sarah Padfield made a complaint of assault against her husband William in Somerset in 1777, the local magistrate, Thomas Horner, dismissed the complaint 'on his promising to behave well for the future'. In 1814, when Elizabeth Beard accused her husband Joshua of assault, the Bedfordshire JP Samuel Whitbread got the couple together the following day and Elizabeth 'agreed to forgive' her husband, on him paying a fine to the new local infirmary. Here, Elizabeth had agency in agreeing to forgive her husband or not.
"JUDGE THUMB. or -- Patent Sticks for Family Correction: Warranted Lawful!", a 1782 caricature by James Gillray. In a possibly apocryphal tale, it was said that Judge Francis Buller had authorised wife-beating as long as the husband used a stick no wider than a thumb.
But the magistrate's attempts at mediation were not always successful; a year after Edmund Tew, a magistrate in County Durham, had persuaded one couple, Robert and Margaret Crisp, to 'agree', Margaret was again complaining about her husband's behaviour. Now, Tew ordered Robert Crisp into a recognizance, binding him to good behaviour. After several occasions of threatening behaviour, agreement was no longer possible. In addition, where recognizances were issued, this may have infuriated men who felt that as a result of their wives going to the magistrate, they were being punished financially. However, it also demonstrates a way of women asserting their authority in their marriage. They may have been empowered by persuading a magistrate to order a recognizance. They must also have had faith enough in the summary process to believe that their actions would not lead to further violence from their husbands although this was not always the case. But in close rural communities, there is a likelihood that friends and neighbours would be aware of the recognizance, and keep an eye on couples. A husband might be restrained by the near presence of a magistrate, or cowed by the watching eyes of his neighbours. It was the wife's knowledge of this, learned and passed down from generation to generation, that enabled her to use the legal resources to hand, and calculate what might have a more positive effect on improving her husband's future behaviour towards her.
The fact that women were willing to bring assault complaints to the rural magistrate throughout the long eighteenth century shows that they regarded summary proceedings as a forum where they could air grievances and gain resolution. In terms of agency, Jennine Hurl-Eamon has stated that 'as prosecutors ... assault victims were empowered'. Yet there is evidence that women chose which cases were worth bringing to the magistrate, such as when they complained of repeated acts of marital abuse, and they also phrased their testimony in a particular way to conform to expectations of female behaviour. This choice suggests that there was an awareness of how the law operated and of the function of the magistrate not just in indicting more serious offences, but in mediating and negotiating both men's and women's relationships with each other.
Dr Nell Darby is a crime historian and freelance writer. Her PhD (Northampton, 2015) looked at the relationship between the rural magistrate and his local community over the course of the long eighteenth century.
 Peter King, 'The Summary Courts and Social Relations in Eighteenth-Century England', Past & Present, 183 (2004), 126.
 Gwenda Morgan and Peter Rushton, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North-East England, 1718-1800 (London, 1998), 216.
 Norma Landau, The Justices of the Peace, 173, 194; Peter King, Crime, Justice and Discretion in England, 86, Shane Sullivan, 'Violence, local magistrates and the informal law 1700-1833: Magistrates and mediation' (Australasian Law Teachers Association, 2007), Morgan and Rushton, Rogues, Thieves and the Rule of Law, 31-33
 William Blackstone, Commentaries on the Laws of England, Book 1 (Oxford, 1765), 8; Richard Burn, The Justice of the Peace and Parish Officer, Volume 3 (13th ed, London, 1776), 7, 12, 14.
 Douglas Hay, 'Property, Authority and the Criminal Law', in Douglas Hay, Peter Linebaugh, John Rule and EP Thompson (eds), Albions Fatal Tree: Crime and Society in Eighteenth-Century England (London, 1975); John Brewer and John Styles (eds), An Ungovernable People: The English and their law in the Seventeenth and Eighteenth-Century England (London, 1980), 20.
 King, Crime and Law in England, 1750-1850: Remaking Justice from the Margins (Cambridge, 2006), 181
 Jennine Hurl-Eamon, Gender and Petty Violence in London, 1680-1720 (Columbus, 2005), 3, 57.