Reformers in much of the common law world have recently turned their attentions to laws pertaining to murder and manslaughter; however, perceptions of the past maintain a hold. In England and Wales, the Coroners and Justice Act (2009) abandoned notions of provocation that developed in the seventeenth century, instead stipulating that “loss of control” would serve as the means of mitigating charges of murder to a lesser offence. If a person has reasonable grounds for losing control, of a sort that accords with contemporary norms and values, that loss of control can be adduced as a partial defense on a homicide charge. Concerns about blaming victims and gender bias have helped shape the shift away from provocation defenses. Whether a married woman's sexual infidelity might in some way serve as a partial defense that moderates her husband's killing of her from murder to something less serious has proven especially controversial. (The reverse, a wife killing an adulterous husband, receives far less attention, but then women kill their partners for any reason far less often.Footnote ¹) Drafters of the 2009 act expressly abandoned the older notion that sexual infidelity constituted sufficient provocation to mitigate charges in a husband's killing of his wife. Angry, jealous men killing their spouses in revenge or a passionate rage might no longer cite infidelity as sufficient provocation to kill. Some people, including lawmakers and judges, expressed concerns about the change. One MP (and later attorney general) complained that “thousands of years of human experience and history should be jettisoned for a piece of political correctness.”Footnote ² He need not have worried: recently, the decision in R. v. Clinton (2012) reintroduced the substance of the defense in a new guise, seeing a wife's adultery not as provocation, but as a trigger for a husband's understandable “loss of control.” Among other factors, the Court of Appeal alluded to “experience over many generations” in treating a man's suspicion of his wife's sexual infidelity as reasonable grounds for mitigation.Footnote ³

Defenders of the adultery defense, in whatever shape it appears, tend to mention some mix of history, the Bible, or evolutionarily derived aspects of human nature in support of their position.Footnote ⁴ This article tackles the supposed historical narrative used to sustain such a defense. Whereas dogmatic assertions purporting to be grounded in evolutionary psychology or biblical warrant might resist any such intervention, justifications for the defense based on understandings of history should be open to revision. Two corrections need to be made. First, the judicial acceptance of adultery as a legitimate provocation came relatively late in the seventeenth century development of provocation defenses, and later than seems to be accepted even among those few who do acknowledge its historical rather than timeless nature. Two, when it developed, and for a long time thereafter, it mitigated only a husband's killing of the other man, not of his wife. The adultery defense as it is understood today seems to be a product of the nineteenth century.

Historians as well as legal professionals often share the widely held but erroneous assumption that, as Keith Thomas once wrote in a much-cited essay, “In England, there was a well-established tradition that a husband could lawfully kill an adulterous wife caught in flagrante delicto.”Footnote ⁵ Not so. We have seen in the distant past things that are not there, filtering the evidence through assumptions that serve modern ends in ways that distort discussions of how past practice ought to inform present action, and that twist readings of law, literature, and history more broadly. Only in the nineteenth century is there mounting evidence of popular beliefs, held by jurists as well as jurors, that husbands might be somewhat excused for killing their unfaithful wives, not just their male rivals, with the novelty masked by talk of an “unwritten law” sanctioned by long history.

After tracing premodern iterations of the infidelity defense, this article turns to the early modern distinction between murder and manslaughter and subsequent development of the doctrine of provocation, nodding as well to the context afforded by practices surrounding adultery and divorce. In the second half, it moves into homicide trials of the eighteenth and nineteenth centuries to locate the appearance of the modern infidelity defense. Although the primary purpose here is to correct a pervasive misconception of the timelessness and tenacity of notions that a husband might kill his adulterous wife with some degree of impunity, the discussion also draws upon and seeks to contribute to a diffuse body of work revising understandings of marriage and homicide more generally. It suggests that altered perceptions of female sexuality, male honor, and the purposes of marriage, as well as shifting attitudes to crime and punishment, drove the emergence of this “long tradition” in the nineteenth century.

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Some suppose that the adultery defense has an ancient history; it does, but it lacks a continuous history. The great eighteenth century jurist William Blackstone observed that “the laws of Solon, as likewise by the Roman civil law…and also among the Goths” did not just mitigate the more serious charge of murder to a lesser but still culpable form of homicide, but indeed treated such killings as justified.Footnote ⁶ This constituted something of an oversimplification, however. The Augustan law of 18 CE, the first to make a wife's adultery a public, criminal offense, did so by restricting private sanctions. It denied the husband any right to kill his wife, allowing him only to kill the other man, and only if the interloper was of low status. The father, or paterfamilias, might still kill the adulterous woman, but in much narrowed circumstances: he had to kill both parties together, and could do so only if they were found in the act, in his own or his son-in-law's home.Footnote ⁷ It is true, however, that later Roman laws extended a husband's prerogative, either granting impunity or punishing such killings more lightly than others. Germanic laws and customs sometimes did allow deadly responses, but not uniformly. Early codes of the Burgundians, Visigoths, and Lombards allowed a husband to kill his adulterous wife, as long as he killed the other man as well; however, later Lombard codes denied the husband the power of life and death, instead stipulating that the offending man pay the husband the value of the wife's wergeld.Footnote ⁸ Over the centuries that followed, medieval canon law and theological discussions denied the husband any right to kill. Gratian, Aquinas, and others expressly forbade private vengeance of this sort, against either the wife or the other man. If adulterers were to suffer death, it must be inflicted by public authority.Footnote ⁹

Leah Otis-Cour has traced such texts throughout the Middle Ages, delving particularly into the customs of what is now southern France, where she finds that most either explicitly reject, or make no mention of, a husband's right to kill an unfaithful wife. Even more tellingly, her work and that of Claude Gauvard on late medieval French court records and letters of remission demonstrate that such killers were indeed tried, found guilty, and sometimes executed. Although some such men secured pardons for their offenses through their tales of righteous anger and passion, such remissions were “anything but automatic.” Indeed, they were “much more the exception than the rule.”Footnote ¹⁰ Otis-Cour concludes that “the idea of systematic impunity of the murdering husband of the adulterous wife is more a reflection of contemporary imagination than of medieval reality.”Footnote ¹¹

Work by Otis-Cour, Gauvard, and, more recently, by Sara McDougall, therefore, challenges assumptions about the lenience of medieval continental courts in dealing with men who killed their unfaithful spouses.Footnote ¹² Early modern continental courts' dealings with such men still warrant further study, but works touching on Italian and French legal codes, commentators, and practice of the era suggest a revival of late Roman treatment of a wife's adultery as a justification or at least an extenuating circumstance in her slaying, based either on notions of just anger or affronted familial honor.Footnote ¹³ Some codes, such as the 1532 Constitutio Criminalis of the Holy Roman Emperor Charles V, mandated public punishment for the adulterers but no private right of vengeance against the wife.Footnote ¹⁴ Some seem to have found ways to combine the two. According to Mary Elizabeth Perry, in early modern Seville, a wronged husband could act as the state executioner and personally kill his wife and her lover in the public square.Footnote ¹⁵

In English legal development, however, for a long time adultery neither justified nor excused a man's killing of his wife. Certainly it did not do so formally, and evidence of informal mitigation is both scant and focused on the male rival. Anglo-Saxon codes seem to have favored payments of wergeld, calibrated by the aggrieved husband's status rather than the wife's value.Footnote ¹⁶ In their foundational History of English Law before the Time of Edward I, F.W. Maitland and Frederic Pollock note that already by the thirteenth century “there are signs that the outraged husband who found his wife in the act of adultery might no longer slay the guilty pair or either of them,” although he might castrate the adulterer.Footnote ¹⁷ It seems that cuckolded men were far more likely to sue than to kill: with rights to a wife's services seen as something akin to property, from 1285 on, husbands could prosecute their male rivals for “wife theft” to secure damages and to ensure that wives who left not be able to claim their dower thereafter.Footnote ¹⁸

T.A. Green suggested in his study of jury nullification that medieval juries of laymen might show sympathy for a man who killed, in flagrante, the man having sex with his wife; but to do so, he notes, they had to craft elaborate narratives that falsely depicted the killing as self-defense.Footnote ¹⁹ In the one case he cites from 1341, Robert Bousserman came home unexpectedly at midday to find John Doughty “ad fornicandum” with his wife. He felled Doughty with a hatchet blow to the head. Sympathetic trial jurors concocted rather a different story, however, that portrayed the incident as a perfectly excusable act of self-defense. According to them, Doughty snuck into the house at night, while Bousserman slept. He then blocked the door and struck at Bousserman repeatedly with a knife. Only then, “seeing that his life was in danger and that he could in no way flee further, in order to save his life, he took up a hatchet and gave John one blow in the head.”Footnote ²⁰ Only this sort of story allowed Bousserman to go free. Sara Butler found a second, strikingly similar tale in her study of medieval court records: again, a husband who killed the man who had had sex with his wife, again benefitting from jurors’ careful rewriting of the episode to a tale of nighttime home invasion and necessary self-defense.Footnote ²¹ Elizabeth Papp Kamali identifies a third: when Robert Mahen found his wife Alice in a compromising position alone with one Richard de Fenlake, he slapped her and killed Richard, with jurors depicting the killing as self-defense rather than as a retaliatory act of anger.Footnote ²² Thus, although medieval English law did not treat the killing of an adulterer caught in the act as justifiable or even as excusable, jurors might sometimes sympathize. Even so, the cases found to date in which jurors secured self-defense verdicts for such killings dealt with the violence between two men, not between a man and his wife.

Of course, medieval English law had not yet formalized a distinction between murder and manslaughter, or between more and less serious forms of culpable homicide. The law treated some homicides as justifiable and others as excusable, but did not yet delineate differing categories of criminal homicide. The excusable forms of homicide were limited to self-defense, misadventure (“infortuniam”), and those committed while of “unsound mind.” Even though excusable, such killings still resulted in a conviction, but with the offender guaranteed a pardon de cursu. A statute of 1390 seems to have introduced at least a short-lived distinction between murder and simple homicide, but it was only really over the sixteenth century that “manslaughter” became formalized as a lesser form of culpable homicide.Footnote ²³

Neither excusable nor justifiable, manslaughter still resulted in a sentence of death, but conviction on such a charge made a discretionary pardon de gratia somewhat more easily obtainable, and typically fell within the coverage of the general pardon statutes issued at the conclusion of early modern parliamentary sessions.Footnote ²⁴ Even more significantly, manslaughter convictions—unlike those for murder—remained open to pleas of “benefit of clergy.” Loosely based in the medieval exemption of clerics from punishments in the king's courts, this legal fiction allowed men who could read to claim a fictional clerical status and thus to escape the full punishment for the first instance of one of a list of offenses. After statutory refinements in the late sixteenth century, most men convicted of a “clergyable” offence exchanged a sentence of death for a branding, forfeiture of property, and up to a year in gaol. Manslaughter, unlike murder, remained a clergyable offence.Footnote ²⁵

By the late sixteenth century, then, manslaughter had been formalized as a charge distinct from murder, and men convicted on such a charge could very often plead benefit of clergy to avoid the punishment of death. What distinguished murder from manslaughter remained in flux: murder, initially defined by secrecy, came to include notions of premeditation and malice, whereas manslaughter was generally a sudden, unplanned, or “hot-blooded” killing. Notions of male honor and physiology shaped the distinctions that emerged. (Very few women were convicted of manslaughter, and if they were, they could not claim benefit of clergy to avoid the death penalty.Footnote ²⁶) After a pivotal case in 1600, as J.H. Baker has noted, provocation came to supplement notions of “hot-bloodedness” in decisions about manslaughter. The key issue was, therefore, determining what constituted sufficient provocation. A widow appealed the conviction of her husband's killer merely for manslaughter, successfully arguing that he ought to have been found guilty of murder instead. True, her husband had mocked and made faces at the shopkeeper who then stepped out to the street to deliver a fatal blow, but she and the judges thought that no matter how unplanned the killing, no matter how “hot-blooded” the punch, the underlying provocation did not suffice to moderate the charge.Footnote ²⁷

In an important book entitled Provocation and Responsibility, Jeremy Horder traced the subsequent evolution of provocation defenses over the seventeenth century. In brief, he notes that judges outlined four key provocations that could serve to reduce murder to manslaughter: seeing a friend or family member attacked (from two cases in 1612); seeing a man committing adultery with one's wife (from a 1617 case); experiencing grossly insulting, although not dangerous, physical assaults such as tweaks of the nose or boxes on the ear (from a number of early seventeenth century cases); and, finally, from a 1666 case, seeing an English person unlawfully deprived of his or her liberty by wrongful arrest or impressment. Offering a deadly response to any of these affronts to one's honor could not legally be excused; but whereas it merited punishment, such a killing did not necessarily merit death.Footnote ²⁸ These four came together in the report on Mawgridge's Case (1707) to constitute the “modern doctrine of provocation” that has only recently been challenged for its gendered and outmoded medical bases: a challenge to which Horder himself was crucial, in his work as a law commissioner even more so than as an historian.Footnote ²⁹

Given the quality of the book and perhaps the direct role Horder himself has played in English homicide law reform, his account has been widely cited.Footnote ³⁰ It includes one simple but significant mistake, however: it misdates the case that first saw judges decide that adultery constituted sufficient provocation to justify a manslaughter verdict in lieu of murder, dating Manning's, or Maddy's, Case to 1617 rather than to 1671. In this case, John Manning was indicted at the Surrey assizes for murder. The jury determined that Manning had found the victim “committing adultery with his wife in the very act” and had thrown a stool at him, inflicting a fatal wound. The whole court resolved that this was merely manslaughter. As such, Manning was able to plead benefit of clergy and thereby to exchange the death penalty for a branding. In a much quoted line, moreover, the court directed the executioner “to burn him gently, because there could not be greater provocation than this.”Footnote ³¹

Does it much matter than this case happened in 1671 rather than in 1617? Yes, I would suggest. It means that adultery goes from being one of the first agreed-upon provocations to being the last. Judges had decades of familiarity with provocation defenses behind them before they included adultery. It was not an early or obvious component of the defense, but an issue that only acquired a clear statement in the 1670s.

Was there really nothing before Manning's Case? As Horder notes, one earlier case exists that spoke to these issues, but in ways that cannot now readily be deciphered. In an all too brief report of Parker's Case, most likely decided sometime between 1523 and 1538, it states that “one Parker found a man between his wife's legs committing lechery, and he killed the man, and all the justices held this to be felony. But suppose a man means to ravish my wife against her will, and I kill him, it seems that I can do so in defense of my wife, just as in the case where he means to kill her.”Footnote ³² Does the “felony” here imply a lesser form of criminal homicide than murder, what was then just coming to be known as manslaughter? The first sentence on its own might seem to imply that judges decided that Parker's act was a felony less serious than murder, but when it is supplemented by the second line, the distinction being drawn here seems to be between culpable and excusable forms of homicide: Parker's slaying of a man having consensual sex with his wife constituted a felonious killing rather than an excusable act, such as defense of oneself or one's wife from rape or deadly assault, that merited an automatic pardon. Either way, Parker's Case was not the one that would live on as precedent and reference point in courtroom conversations and legal literature. That honor went to Manning's Case of 1671.Footnote ³³

Also indicating that Parker's Case did not signal a shift toward seeing adultery as exculpatory are several other incidents over the sixteenth century like that of Robert Bousserman, in which men who killed their wives’ sexual partners secured punishments less than death only by crafting narratives of self-defense. Walter Basset sought pardon for his killing of William Brown in 1531, for example. In his account, he noted that Brown, a priest, had indulged his “voluptuous and sensual appetites” with Basset's wife, “to the great defamation of your said orator.” When Basset warned the priest away, the latter purportedly threatened revenge. Basset later woke up one night to find the priest in his home. Only after a tussle, “perceiving that the said priest would have slain him,” did he give the man an unarmed punch, “whereupon the said priest died.”Footnote ³⁴ Basset still seemed to think that he had to portray his killing of the adulterer as an act of self-defense to secure mercy. So, too, did those petitioning for pardon on behalf of William Wright, who killed his wife's lover in 1560, do so by using language found in accounts of killings committed by accident or in self-defense: when the victim angrily confronted Wright, then “by misfortune the said Wright with his staff struck him upon the head whereof he died.”Footnote ³⁵

Moreover, the various legal writers who described the emerging distinctions between murder and manslaughter, such as William Lambarde and Edward Coke, made no reference to adultery as grounds for mitigation. The first reference found is in Matthew Hale's Historia Placitorum Coronae, which was likely finished just shortly before Hale's death in 1676.Footnote ³⁶ Therefore, Manning's Case in 1671 really does seem to be the hinge point. There are a scarce few earlier cases in which men who killed male rivals in the act benefited from the discretion of jurors or the mercy of their sovereigns. Formally, however, in the lands of lawmakers and judges, such killers did not benefit from notions that their offense was justifiable, excusable, or even moderated to manslaughter by the provocation involved until the late seventeenth century. And nothing, as yet, indicated mercy either formal or informal for a man killing his adulterous wife.Footnote ³⁷

Stepping back from legal texts and court cases briefly to bring into view the broader cultural setting reinforces the case for this chronology and provides some context. In the interim between the development of manslaughter as an alternative verdict to murder and the Manning decision in 1671, there are heated denunciations of adultery, with the issue of whether adulterers ought to die often lurking in the background and sometimes brought to the fore. Much discussion focused on whether adultery would count as grounds for divorce with remarriage. The official answer, in England, was “no.” Unlike others who became Protestant in the sixteenth century (including the Scots), the English did not come out of the Reformation allowing divorce with remarriage, on any grounds. Whereas divorce remained rare in other Protestant jurisdictions, the English forbade it altogether.Footnote ³⁸ Only in the 1670s did divorces by act of Parliament become possible, and then only for relatively few. Only in 1857 did judicial divorces begin. In the early modern era, despite much agitation for change, the English retained older Catholic practice, which treated marriage as indissoluble. Formally, adultery remained at best grounds for judicial separation: what was called a divorcium a menso et thoro or a separation of bed and board that could strip a guilty wife of her dower but allowed neither party to remarry.Footnote ³⁹

Might adultery become a capital offence, thereby bypassing the need for divorce, as it did in some other Protestant jurisdictions? Henry VIII had made adultery by a queen punishable by death, thus freeing himself to remarry, but what of other men and marriages? In England, aside from the civil damages a husband could secure from the man who absconded with his wife, adultery had long been a matter for the church courts, punishable by public penance or financial penalty. Justices of the peace and borough courts had discretionary powers to whip or publicly shame notorious offenders, but some Reformation era reformers wanted more. They sought harsher physical punishments enacted by the secular courts, with some arguing for Mosaic law and death for the guilty.Footnote ⁴⁰ Such calls succeeded only very briefly, and only in the context of revolutionary lawmaking in the Interregnum. After many earlier, failed attempts to pass such legislation, the infamous, so-called “Puritan Adultery Act” of 1650 did make adultery a hanging crime, thus freeing the innocent party to remarry. But the Act seems seldom to have been used to deadly effect and did not survive the Restoration of monarchy, episcopacy, and church courts in 1660.Footnote ⁴¹ Punishment for adultery thereafter reverted to the lighter sanctions imposed by church courts and justices of the peace, with the very notion that adultery constituted a public offense fading over the early 1700s.Footnote ⁴²

Adultery certainly figured into the jeremiads of moralists and dramatists throughout the post-Reformation years, but without calls to treat it as grounds for mitigating charges of murder to manslaughter. Although some argued strongly that the state should kill the guilty party, and a few noted with seeming wistfulness the ancient laws that allowed the offended husband to kill the adulterers, they stopped short of suggesting that adultery constituted grounds for private homicide in their own day. Thomas Heywood famously engaged such issues in his early seventeenth century play A Woman Killed with Kindness, in which the deceived husband refuses to “martyr” the adulterous pair, instead letting the other man travel abroad and ostracizing his wife, a “mild sentence” that invokes a fatal act of repentance from the guilty wife who starves herself to death.Footnote ⁴³ In another work, Gynaikeion (1624), Heywood discusses ancient responses to adultery and comments: “much is that inhumane rashness to be avoided, by which men have undertook to be their own justicers, and have mingled the pollution of their own beds with the blood of the delinquents.”Footnote ⁴⁴ Husbands had a right to “correct” their wives, but not to kill them; any such power had to vest in the state alone.

In their studies of adultery in early modern tragedy, both Jennifer Panek and Ronald Huebert note that the belief that an aggrieved husband might kill the adulterous pair seems more widespread today than it was then. Huebert recites a list of modern critics’ assertions that husbands of the era “had the right to kill” their unfaithful wives, but notes that they offer not a single example of a man who was legally exonerated after killing such a wife.Footnote ⁴⁵ Indeed not. When sexual infidelity appeared alongside murder in the news pamphlets and bawdy ballads that began to proliferate in these years, it served as a motive for the adulterous wife to kill her innocent husband, an offense so heinous it was typically deemed not murder but petty treason and punished with burning at the stake.Footnote ⁴⁶ Adultery in these accounts aggravated rather than mitigated murder: a woman's sexual infidelity might provoke her to the ultimate treachery of killing her husband, but does not serve as a motive moderating a man's killing of his wife or her lover.

By the time that William Blackstone crafted his Commentaries on the Laws of England in the 1760s, however, opinion on the provocative qualities of adultery had changed. Blackstone observed that “if a man takes another in the act of adultery with his wife, and kills him directly upon the spot,” it was “not absolutely ranked in the class of justifiable homicide, as in case of a forcible rape, but it is manslaughter.” He went on to note, moreover, that “It is however the lowest degree of it” and echoed the wording used in Manning's case: “and therefore in such a case the court directed the burning in the hand to be gently inflicted, because there could not be a greater provocation.”Footnote ⁴⁷ In between the emergence of manslaughter in the sixteenth century and Blackstone's influential characterization of it in the mid-eighteenth had happened both Manning's Case in 1671 and the decision in Mawgridge in 1707.

The Mawgridge case, as noted, came to be seen as bringing together all the core elements of the provocation defense. In it, Chief Justice Holt “gave the opinion of the Judges,” saying that the distinction between murder and manslaughter originated in statutes under Henry VIII that took away the benefit of clergy from “murder committed upon malice prepensed.” He described first the classic instance of manslaughter: if a man assaulted another person, “either by pulling him by the nose, or filliping upon the forehead, and he that is so assaulted shall draw his sword and immediately run the other through, that is but manslaughter, for the peace is broken by the person killed, and he that was so affronted might justly apprehend that one who treated him in that manner might have some further design against him.” Holt then described instances of unlawful detention leading to manslaughter, including when one person killed someone who was injuring or restraining another by force, deeming the killing manslaughter alone, “because when the liberty of one subject is invaded, it affects all the rest and is a provocation to all people.” Then, in a short quote laden with significance, he noted that “where a man is taken in adultery with another man's wife, if the husband shall stab the adulterer or knock out his brains, this is bare manslaughter; for adultery is the highest invasion of property, and there cannot be a greater provocation: and jealousy is the rage of a man.”Footnote ⁴⁸

Thus, at the end of the seventeenth century and into the eighteenth, many years after manslaughter first emerged as a verdict, adultery became not just a provocation for killing but the greatest such provocation. Crucially, however, the killing being mitigated was explicitly and specifically that of the male “invader,” not the wife. One might contrast the decision in Manning with the 1680 case of John Marketman, who did kill a wife suspected of adultery. Marketman was hanged for killing his wife Mary, an act denounced in the popular press as a “bloody and execrable murder.” The only hints of sympathy for John came in the suggestion that Mary's alleged lover—not Mary—shared somewhat in the blame.Footnote ⁴⁹ Reports of Manning, Mawgridge, and the eighteenth century cases that referenced adultery as a grave provocation, along with texts by Hale, Blackstone, and others, all quite specifically noted that the killing made somewhat understandable by the provocative act of adultery was that of the husband's male rival, not that of his wife. It was the offense one man offered another that constituted the provocation.

It is the killing of the wife today, however, that is said to be (or to have been) somewhat excusable, whether through provocation or loss of control, driven by some mix of outrage, jealousy, vengeance, or temporary defect of reason. Those citing the long history of such a defense mistakenly conflate the killing of either or both the adulterous wife and her male lover.Footnote ⁵⁰ If the killing of the adulterous wife was not treated as manslaughter in the seventeenth century, when did it become so? Are there cases of husbands killing unfaithful wives in which jurors downgraded charges of murder to manslaughter, or in which petitions for pardon secured mercy for a convict on the grounds of provocation? And if so, when?

That change seems to date to the nineteenth century, not before. In her survey of criminal court records from London's Old Bailey from 1690 to 1750, Jennine Hurl-Eamon found thirty-eight cases in which men were charged with killing their wives. In only two of these did the husbands do so in a rage over adultery or suspicions of infidelity.Footnote ⁵¹ In both, juries found the men guilty of murder and the judges sentenced them to death.Footnote ⁵² Continuing the hunt from 1750 forward identifies a further forty-seven men charged with killing their wives before finding the first case in which the victim's sexual infidelity clearly prompted the killer's conviction for manslaughter rather than murder, and that trial took place in 1810.Footnote ⁵³

In the set of forty-seven Old Bailey cases of husbands accused of killing wives between 1750 and 1809, juries acquitted twelve men, generally because the evidence suggested that the victims had died of natural causes. Juries found thirty-one of the men guilty, convicting twenty-two of murder and nine of manslaughter. Four more men were deemed to have killed the victims, but while insane. Some of these killings constituted the final stop in a long line of horrific brutalities. Anne Williamson died of starvation, for example, after her husband John had long kept her handcuffed to the interior of a closet in which he would lock her away, apparently to keep her from complaining about him in public. (Neighbors knew of the mistreatment and remonstrated with him, but did nothing further.)Footnote ⁵⁴ Some were the products of drunken brawls over drink, misspent money, or belated dinners. Adultery or imputations of a wife's infidelity appeared in five of these cases between 1750 and 1809, but in none of these five (summarized subsequently) did it serve to moderate the charge, nor did the defendants or their counsel even seem to try making it matter.

In 1754, Robert Finch killed his wife Elizabeth, almost severing her head from her body. He told those who arrested him that “the provocations were great, that was it to do again, he would do it.” To one bystander he said “he would do it was it to do again, sooner than any man should enjoy his wife,” suggesting that he suspected infidelity. Some people reported that he went by the name “Mad Finch,” noting that he was often “phrensical.” However, neither his talk of his victim's “provocations” nor his madness served to deflect the jury, which found him guilty of murder.Footnote ⁵⁵ In 1780, Albert Lowe killed his wife Mary, and one deponent did report that Lowe had at one point said that “he would never forgive her after what he had seen between her and those nasty fellows who were there last night, and that she should never lie in his bed again.” Lowe was ultimately found guilty only of manslaughter, but the trial transcript focuses on Mary's near constant intoxication and quarrelsomeness as the factors inclining to moderation. (A former landlady described the victim as “a drunken wicked woman that quarreled with everyone.”) Some suggested that her own drunken tumbles, or accidental swallowing of a pin, had in fact caused her death.Footnote ⁵⁶ John Simpson's case in 1786 proved somewhat more complicated. He did say he had found a man in bed with his wife Elizabeth, but also maintained he had seen Gypsies there, too, along with sightings of black hogs and other things deemed part of his “distraction.” The judge concluded “there can be no reasonable doubt that this poor woman received her death by the hands of the prisoner at the bar, and that it was done under no circumstances which could in any degree, in point of law, operate either to justify or mitigate the fact,” but ultimately acquitted him based on his “plain and evident insanity.”Footnote ⁵⁷

In two cases from 1791, claims about the victims’ adultery proved more central, but the courts still gave no sign of seeing the infidelity as sufficient provocation to mitigate the charges of murder. Winifred Taylor lived long enough after being injured by her husband Charles to tell several people her account. She said that after Charles had beaten her on Friday, she had fled and stayed away for the night; he thought that she had spent the time away with a Mr. Walker. She returned on Saturday “to make it up.” They had their tea together, went to bed, “and had that together, which man and wife have together, and he grumbled because she was not altogether agreeable to his mind.” She insisted that “she did all that lay in her power to please him in bed, when they were connected together, and he said that she could do nothing for him, for…she had lain with Mr. Walker.” He turned his back, she thought to sleep. But then he turned again and cut her repeatedly with a razor or penknife. As she lay dying, he fled the house, only to be arrested by a constable called by his neighbors. When the constable asked how he could do such a thing, Taylor reportedly said that “it would have vexed any man to have his wife out all night and sleep with another man, and he said he was sorry she was not quite dead.” At the trial, however, Charles Taylor made no defense other than saying that he could remember nothing from the night. The court found him guilty of murder, sentencing him to death and dissection.Footnote ⁵⁸

George Dingler also stood trial for killing his wife in 1791. In his testimony, he said that he and Jane had separated for a time, but that after they reunited, he came to believe that she had been unfaithful; he said “that his son could attest that she had been seen in bed with several different men” during their time apart. Hearing of this, he took a knife and stabbed her. When it broke on her stays, he found a second knife and continued. At trial, he had acting on his behalf William Garrow, the celebrated, confrontational barrister who did so much to reform criminal advocacy. Significantly, although Garrow did try to make a case for having Dingler found guilty only of manslaughter, he at no point referred to Jane's supposed adultery. Rather, he focused on the technicality of a flaw in the indictment (which attributed Jane's death to a beating, not to knife wounds) and then on claims that Jane's fighting back after an initial assault constituted enough of a threat to make the offense simply manslaughter. Garrow's efforts proved in vain: the court convicted Dingler of murder, sentencing him to be hanged and sent to the anatomists.Footnote ⁵⁹

Husbands tried citing their wives’ drunkenness, profligacy, and “grossly abusive language” as provocations, but in these Old Bailey cases, the first in which a wife's adultery served as any sort of mitigating factor came with Richard Griffin's trial for killing his wife Anne in 1810. He cut her throat through. When asked by a witness why, he said that Anne had been out all the night before at a gin shop. He said that “he hoped she was dead, he would not mind being hanged.” He asked the man “how should I like another man to go along with my wife; I said not at all; he said, that is the reason I done it.” To a watchman who inquired, he responded similarly: “how would you like to see another man brought under your nose?” To another, he insisted that “he was very happy, he was, upon his soul; how would any of you like it, if your wife was to bring a man home before your face?” Despite the use of a weapon and despite the lack of remorse, the court found Griffin guilty only of manslaughter. As such, he faced a punishment not of death, but of a 1 shilling fine and 1 year in Newgate prison.Footnote ⁶⁰ A newspaper account of the trial reports the judge's summation: “though the prisoner might have been irritated by the infidelity of his wife, that did not entitle him to take the punishment in his own hands. If he had killed her purely out of revenge for her infidelity, it was clearly murder.” However: “if a quarrel had ensued, and he had perpetrated the deed during this quarrel and under the sudden impulse of the moment, this would only amount to manslaughter.” Whatever fine line the judge tried to draw, the jury reportedly deliberated for 6 and a half hours and ultimately decided that the killing constituted manslaughter.Footnote ⁶¹

The Old Bailey was not, of course, England's only criminal court. Some others before Griffin may very well have benefitted from similar sympathies in earlier years in other jurisdictions; but the evidence surveyed here suggests earlier instances of lenience for men who killed unfaithful wives need to be proven and can no longer be assumed. Griffin may not have been the first, but neither did his case signal an immediate or marked shift in direction. From 1810 to 1841, Old Bailey records include a further forty-six cases of husbands killing their wives, in only two of which was the woman's infidelity (real or imagined) mentioned in court, and in both of these, the men were sentenced to death.Footnote ⁶²

However, at mid-century, it seems that such killings and such defenses became more common and more commonly treated with sympathy. Martin Wiener's survey of killings reported in newspapers throughout the country, from 1841 to 1900, found sixty-six trials for homicides purportedly committed in response to a legally married wife's known or suspected infidelity.Footnote ⁶³ They increased in frequency over the period, and as a proportion of the overall numbers of homicides. And in the middling decades of the century, at least, some such killers found mitigation in either manslaughter verdicts or reprieves after conviction for murder. In a subset of seventeen cases between 1841 to 1870 (most numerous in the 1860s) in which the adultery was proven, Wiener found that two men were found not guilty, ten received manslaughter verdicts, and five received murder verdicts, but with four of the murderers later reprieved, only one was executed. In a set of twenty-five cases from 1871 to 1900, one man was deemed not guilty, five were convicted of manslaughter, and nineteen were convicted of murder, with six executed.Footnote ⁶⁴ By the end of the century, then, such men less often benefited from special lenience on the grounds of this “provocation.” “As the century wore on,” Wiener suggests, “English juries and English public opinion seemed to be less inclined to excuse the lethal responses of men to their imagined or actual cuckolding.”Footnote ⁶⁵ True. I would suggest, however, that he (like others) had been misled somewhat by his subjects in thinking that this represented a repudiation of “traditional” or “longstanding” lenience for men who killed unfaithful partners. Rather, it was a reversal of a relatively short-lived and contested toleration for such killings.

Elsewhere, Wiener narrated the extraordinary case of George Hall, a young man convicted of murder in 1864, which will be briefly revisited here to provide a sense of the strength of sentiment such killings could evoke in the mid-nineteenth century. George killed his estranged wife Sarah, not her lover. Moreover, he did so not when surprised by seeing them “in the very act,” but with careful premeditation, having bought pistols on the morning he arranged to meet with her. The court, unsurprisingly, found him guilty of murder, but popular sentiment lay firmly on George's side. Nearly 70,000 people signed petitions requesting mercy for him. Lobbying the Home Office on his behalf, too, were men such as James Fitzjames Stephen, who assisted in his defense and later went on to write one of the more influential tomes on English criminal law. The petitioners cited what they, and Wiener, call an “unwritten law” and the “long tradition,” which held, as Hall's defense counsel insisted, that “If a man detected his wife in the act of committing adultery and killed her paramour and herself on the spot, the crime was reduced from murder to manslaughter.”Footnote ⁶⁶

Most everyone depicted the adultery as a great provocation, and a provocation by the wife, not by her lover, who remained all but a nonentity in this tragedy. Even the Lord Chancellor, arguing against mercy, saw it as such: “Cases of adultery occur constantly, and often under circumstances of the greatest provocation to the injured husband, and [but?] it would be of the most dangerous consequence to society, if such provocation were accepted as a reason for not capitally punishing the husband when he commits a coolly premeditated murder.” True, some of the sentiment on George Hall's behalf emerged from an opposition to the death penalty. One group of petitioners urged the total abolition of capital punishment in all cases and referred to Sarah's actions simply as a “severe temptation” to kill. Most of the others, however, put the matter more strongly, disavowing any discomfort with the death penalty for murder, but insisting that Hall's act constituted no such crime. In petitions they advertised in the newspaper and circulated through churches and factories, they called Sarah's abandonment of her husband for another man an “extreme” or “grievous” provocation, or “provocation of the most aggravated kind.”Footnote ⁶⁷ The popular outcry secured Hall a reprieve, just hours before his scheduled execution.

Wiener contextualizes the case with reference to other mid-to-late nineteenth century killings of unfaithful wives by their husbands in which counsel appealed to the same “unwritten law.” As Wiener notes, Hall's case did not really fit even this story of how adultery might mitigate guilt, and neither did most of the others: the husbands in question rarely killed their wives “in flagrante” but after some pause and time for deliberation.Footnote ⁶⁸ Even so, Wiener treats the difficulty in getting a reprieve as the change most needing explanation in this story. He identifies a “growing idealization of domestic life” and “diminishing tolerance of violence in daily life” as factors working against Hall and other men brought before the courts for killing wives who had left or cuckolded them.Footnote ⁶⁹ A “reshaping of national identity” contributed to what he sees as a new tightening of restrictions on men's lethal violence against their wives, with crimes of passion and the loss of self-control seen as “un-English”: he cites Stephen himself as noting, despite his earlier pleas on Hall's behalf, that “It would be deplorable if we came to look upon passion and sentiment as any excuse whatever for crime, after the fashion of Frenchmen and Mexicans.”Footnote ⁷⁰ Wiener notes that by the end of the century, if men were to have their sentences for killing adulterous wives lessened, the mitigation more often came on the grounds of supposed insanity rather than provocation. Wiener is likely correct about these factors all playing parts in this story, but in having accepted the “unwritten law” as the product of “long tradition” and not noting the relative novelty of such defenses in wife killings, he mistakes the directions of some. The “diminishing tolerance of violence” and “growing idealization of domestic life” may well have been working not in tandem but at cross-purposes in this history.

The timing and nature of the changes traced here call to mind the chronology of the distinctively English action for “criminal conversation”: in both, over the early nineteenth century, the sense of the harm done to a cuckolded man became magnified and the balance of blame shifted from the male lover to the adulterous wife. As church courts gradually abandoned the business of prosecuting adultery in the late seventeenth century, common law courts stepped in by extending the action of trespass to cover a claim for damages by a husband against his wife's seducer. The seduction constituted the “criminal conversation” despite, as Lawrence Stone notes, “the fact that it was neither criminal nor a conversation in the usual sense of the word.”Footnote ⁷¹ In an action between the two men that echoed medieval suits for “wife theft,” the aggrieved husband could secure cash payment for his injured honor and the loss of “good company” with his wife. He might then also use the judgment as a basis for a parliamentary divorce, assuming he could afford the expenses incurred in either proceeding. Use of the so-called “crim. con.” action peaked from approximately 1790 to 1830, finally being killed off in a clause inserted in the divorce act of 1857. Even as its use peaked, so too did criticisms. Surely no man of honor or feeling could accept a cash payment as sufficient reparation for the damage done him by the infidelity? Surely men of lesser means who could not afford such suits and parliamentary divorces suffered too? Surely punishing the adulterous woman in a criminal court made more sense?Footnote ⁷²

Repeatedly over these years, MPs considered bills to make a wife's adultery at least a misdemeanor, to supplement or replace the crim. con. action in a way that held the wife more directly accountable and that better recognized the nature of the injury done. One of the more concerted efforts happened in 1809. In those debates, Lord Auckland noted the inadequacies of crim. con. damages, which many an “injured husband is ashamed to receive,” and which did nothing to deter the adulterous wife. He urged instead solitary imprisonment of 2 or 3 years as better for the “purposes of reform and of example.”Footnote ⁷³ In debates that led to the end of the crim. con. action, MPs denounced the acceptance of damages in such cases as “scandalous.” Lord Lyndhurst wanted criminal process instituted against adulterers, not civil suits. Crim.con. actions, he asserted, constituted a “scandal to the country. There is no other country in the world where such actions are brought; on the Continent they are looked upon with feelings of disgust and horror; and it is wondered at that a civilized country like this should maintain a law of this description.” The bishop of Oxford similarly called them “one of the most disgraceful proceedings that infected our social life.”Footnote ⁷⁴ That the wife was not implicated in the infliction of injury and that the affront of infidelity could be assuaged by cash no longer seemed tolerable to critics of the crim. con. action. The mounting opposition to crim. con. proceedings and the homicide cases therefore both reveal a new sense that the adulterous wife, not her lover, was primarily to blame.

Shifting notions of marriage and of ideals of both femininity and masculinity presumably played parts in the nineteenth century efflorescence of arguments that a husband's killing of an unfaithful wife was to some degree excusable. Although not the loveless relationships some scholars once thought, early modern marriages took shape within different legitimizing frames than did later unions, when the rhetoric of companionate, affectionate partnerships based on love and emotional ties came to dominate talk of middle class marriage. So, too, did earlier depictions of women as sexually voracious lose ground to notions of the reluctant, restrained, or even passionless female.Footnote ⁷⁵ As marriage became romanticized as the site of consolation and comfort and as women became idealized as the chaste guardians of virtue, the provocative quality of adultery inhered more in the wife's unfaithfulness than in the other man's “invasion” of a husband's rights.

Even as perceptions of the nature of the offense and the offender in cases of marital infidelity were changing, so, too, were attitudes to punishment. From the late 1780s, those convicted of manslaughter were no longer burned in the hand, but more often imprisoned, with the upper limit of jail terms increased from 1 to 3 years in 1822, and then to transportation for life from 1828. From 1837 onwards, in practice, murder was the only crime still punished by death. Manslaughter was thus subject to more substantial punishments than before, and murder charges were singled out to cover only the most heinous of acts that still merited death. These broader changes in penal sanctions presumably shaped attitudes to the appropriate punishment for adultery killings as well.Footnote ⁷⁶

Such changes played out differently in other common law jurisdictions, but also with some striking similarities. Hendrik Hartog has examined a series of killings that became “media events” in nineteenth century America. All involved men killing the male seducers, not their adulterous spouses; all harkened to the “unwritten law” and resulted in acquittals, although none occurred at the moment of discovery. In 1859, Congressman Daniel Sickles shot the district attorney who had been sleeping with his wife Teresa; in 1867, in the midst of a state constitutional convention, physician and major general George Cole shot the man who had had sex with his wife; and in 1869, Daniel McFarland shot the fiancé of his divorced wife Abby. In each of these cases the defenses borrowed both from notions of provocation and temporary insanity and the acquittals prompted much complaint and reaction, not least the acquittal of Daniel McFarland, which provided fodder for Elizabeth Cady Stanton's powerful reconceptualizations of women's rights within marriage. These cases, Hartog argues, “reveal a profound male disquiet about lost or changing rights and traditions,” with lawyers and elements of the media using them “to create a new legal understanding designed to restore male honour and property rights in women.”Footnote ⁷⁷ Strikingly, too, Robert M. Ireland's examination of the “unwritten law” in nineteenth century America notes the defense's relative novelty there. Ireland observes that although defense attorneys often asserted that American juries had always recognized a husband's right to kill his wife's lover, or at least his right not to die for doing so, that “there is no evidence that such leniency prevailed in the criminal justice system until the 1840s.”Footnote ⁷⁸ Moreover, as Carolyn Ramsey has demonstrated, at least from the 1880s onward, men who killed adulterous wives in the United States faced jurors concerned about maintaining paternalistic protection of women and heightened standards of masculine self-control: the killers very often felt the full weight of the law for their actions.Footnote ⁷⁹

Considerations of space unfortunately preclude a sustained comparison with other common law jurisdictions, let alone with practice in the civil law jurisdictions on the Continent. So, too, do they inhibit a more sustained examination of the reasons for the emergence in nineteenth century England of this “long tradition” of sympathy for husbands who killed unfaithful wives. Precisely what mix of factors shaped the chronologies of formal and popular attitudes to adultery slayings clearly merits further discussion. Why the myth (or fantasy) of a husband's “right” to kill an unfaithful wife remains so strongly held today might also warrant examination. What should now be clear, though, is that such a “right” had a very short history in English legal practice. In England, the belief that a man might cite a woman's sexual behavior as a mitigating factor in her killing did not shape “experience over many generations,” but took hold in the nineteenth century alongside newer notions of companionate marriage and women's sexual restraint. Charles Dickens in 1851 complained that “the fact of a woman being the lawful wife of a man appears to impress certain preposterous juries with some notion of a kind of right in the man to maltreat her brutally, even when this causes her death.”Footnote ⁸⁰ And indeed it did, in the case of adultery killings, but this was a relatively new and short-lived development. And it was in this relatively new and historically specific context that Charles Darwin would write in 1871 that sexual jealousy was a “universal instinct.” Whatever the universal or instinctive qualities of the jealousy, seeing adultery as grounds for excusing or justifying the killing of a married woman was neither. Rather, it was the product of a historical moment.