By Louise McCarthy
Born in the West Midlands in 1726, Catherine Hayes was a party to the murder of her husband, alongside Thomas Billing and Thomas Wood. Both men, who were the main actors in the killing, were convicted of murder and sentenced to death by hanging. Catherine however, was convicted of petty treason, a common-law offence found under The Treason Act 1351, and burned at the stake.
Petty treason, more commonly known as a heightened murder, held a sentence of hanging and was more severe for females than males. The offence recognised the social hierarchical norms that a servant owed to his master and a wife to her husband. Although a man could be tried for the offence, it became clear “that petty treason was seen as a deeply gendered crime, in which the normal domestic order was overturned by the actions of deviant women.” The sentence stood until 1789, “when Sir Benjamin Hammett invited the House to ‘go with him in the cause of humanity’, denouncing the punishment as a ‘dreadful’ sentence, a disgrace to the statutes.” The offence itself was then abolished and reclassified as murder under the Offences Against the Person Act 1828.
Social, Economic and Religious context
The social, economic and religious context in which Catherine resided is important when interpreting the reasons behind her capital punishment. ‘A Narrative of the Horrid Murder of Mr. John Hayes’ was published shortly after the offence and justifies Catherine’s punishment, as the taking of life should be left to God. The author further says, that the taking of a husband’s life by the wife, is a greater sin. He says that a wife should appreciate the ample benefits of being a wife in England, as her husband takes on any children she has, any financial burdens, any foul language she uses and that the correction of a wife is therefore reasonable. However, Catherine understood this correction as domestic abuse, and this abuse was the reason behind her action. In a letter, she sent her friend amid her conviction and sentence, she wrote “the flirt Cause of my Aversion and Hatred proceeded from his ill Usage to me, he beat me, he abus’d me, and what is worse, he almost slaughtered me.” Despite her domestic abuse, her narrative was never appreciated because of social and economic normativity and the religious hierarchy of male supremacy at the time. A response to the Ordinary of Newgate’s Account of the Behaviour of Catherine Hayes explains, “these social and religious gender roles culminate into the oppressive injustices of women in eighteenth century law.”
It was thought that Catherine should have deemed herself lucky to have a husband who, as a popular publication of the time expresses, “treated his wife indulgently… (and) had much more reason to have complained of her; for she was turbulent, quarrelsome, and perpetually exciting disputes among her neighbours.” Catherine stepped outside the norms of femininity. She was not docile, pure and obedient. Having left home young, she took up work as a prostitute, was then accused of having sexual relations with her illegitimate child and married a man without the consent of his father. She transgressed entirely from the morally obedient female. As Saxton explains, “the introduction of the incest theme, a theme unsupported in the trial by any facts, shockingly crowns the case that Hayes is guilty, not just of murder, but of acting out against the founding fictions of social order.”
Traditionally, no defences were available to the offence of petty treason. In comparison, the offence of murder attracted the potential partial defence of provocation, reducing the defendants conviction from murder to manslaughter. Post 1630’s, however, as Lockwood explains, provocation was more readily used by the courts in petty treason cases. Therefore, although the name of the offence remained, the legal system surrounding it practically worked around a structure similar to that of homicide. Lydia Adler, who killed her husband in 1744, was able to claim provocation; the motivation behind the killing was that she discovered he had 4 wives, as Saxton writes “thus dislocating familial unity and damaging patrilineal laws of inheritance seems to have affected the mildness of the verdict.” Whether provocation was allowed as a defence did not depend on stringent legal test; instead, a look to the wider context was necessary. Adler and Hayes were both victims of domestic violence, but only Adler’s narrative was listened to. This is because familial and social order was the primary concern of the law. If the motives surrounding a killing violated this, punishment would be increased (petty treason) or decreased (manslaughter) depending on which party had violated the social norm. Because women are subservient in the social order, it is more likely that they would fall foul of deviating from the norm, as Hayes did, and consequently they were more susceptible to harsher punishment.
The current law
The current law has ungendered the offence of killing a human being to the extent that murder, regardless of the relationship between the parties, leads to the same sentencing. The real problem however, is that modern-day women who resort to violence due to the domestic abuse they’ve suffered must rely on unsuitable defences. The availability of provocation (now Loss of Control) is completely inefficient. It favours the “male” behaviour of ‘seeing red’ as a requirement, in practice, to be satisfied. This becomes an issue in cases of domestic violence, where women in a physically weaker position cannot assert violence until the man is physically vulnerable. This reveals the inherent masculinity of the current system, which puts such huge emphasis on a lack of time lapse in both loss of control and self defence.. McColgan has recognised this problem of gender-neutral defences, arguing that “treating women according to the same rules as men has hitherto failed to ensure justice for female defendants.” The law has recognised this difficulty and attempted to satisfy women’s concerns by allowing the defence of “battered woman’s syndrome”, reducing murder to manslaughter through a conviction of manslaughter by diminished responsibility. Nicolson argues however, that just as much damage can be caused with gender-specific defences. Although they can allow female defendants to escape criminal liability, they “also resonate with damaging and normalizing stereotypes about women’s biology and appropriate social role.” These problems come from the ‘therapeutisation’ of domestic violence. Such problems can be contextualised in two modern-day domestic abuse cases: Ahluwalia and Thornton where “female defendants are leniently, but patronizingly treated as mad or harshly treated as bad, depending on a judgement, not so much of their actions, but of their character and the extent to which it accords with social constructions of appropriate femininity.” Just as Catherine was judged upon her character of femininity, so too, are modern-day women who plead diminished responsibility. Their actions/ non-actions must fit in-line with the pigeon-holed expectation of how a woman is to react when domestically abused. If they’re ‘lucky’ enough to fit this criterion, they will be granted with the partial defence of diminished responsibility, holding with it a stigmatic attachment of mental health. Effectively, in order for a woman to gain recognition of her abuse, she must jeopardise a piece of herself, whether this is her life (petty treason), or her psychological health (battered woman syndrome). This is not appropriate. Instead, I forward, along with Carol Gilligan and Nel Noddings that the more appropriate means for acknowledging domestic violence as a defence, is to take into consideration the lived characteristics of a woman’s individual situation, socially, economically and subjectively, so they can be properly cared for by the law.
Without such an acknowledgement that gender-neutral laws do not provide for women, and gender specific laws can provide just as much hardship, I am afraid that just as Catherine Hayes’ narrative was not heard, many modern-day victims of domestic abuse will not be properly heard either. An adaptation of self defence, may be an appropriate route; adapting the quick reaction requirements in line with the lived and real experiences of women.
Catherine Hayes was a victim of a masculinised system; her narrative never allowed to develop into her own legal discourse. The crime she committed, interpreted now as murder through joint enterprise liability, was unlawful, but what became of her, a woman quite literally burnt at the stake, is unjustifiable. She was a victim of domestic violence. Not only was she a victim of domestic abuse, but a victim of the entrenched masculinity of the legal system. There have been clear developments in the law surrounding homicide. However, if a woman does not carry the inherently masculine characteristics that may grant her a partial defence of loss of control or self defence, she must rely on diminished responsibility. Women’s characteristics and lived experiences must be taken into consideration to break through this neutrally objective façade of justice we currently uphold.
‘A Narrative of the Horrid Murder of Mr John Hayes’ (3 edn, London: Booksellers of London and Westminster, 1726)
Carol Gilligan, In a Different Voice: Psychological Theory and Women’s Development, (revised edn, 1993, Cambridge, Mass: Harvard UP)
Hayes, Catherine Hall, ‘The last speech confession and dying words of Mrs Catherine Hayes, who was burn’d alive at Tyburn for the murder of her husband, on Monday the 9th, of this instant May 1726. In a letter to a particular friend’ (Dublin: Re-printed by George Faulkner in Pembroke-Court Castle Street, 1726)
Heather Keating, Feminist Legal Studies (2003). D. Nicolson, ‘Nicolson & Bibbings (eds.), Feminist Perspectives on Criminal Law’ Chp. 9 ‘What the Law Giveth, It Also Taketh Away: Female-Specific Defences to Criminal Liability’
Kirsten T. Saxon, Narratives of Women and Murder in England, 1680 – 1760: Deadly Plots (Routledge 2017)
Nel Noddings, Caring: A Feminine Approach to Ethics and Moral Education (1984, Chicago: Chicago UP)
V.A.C. Gatrell, The Hanging Tree: Execution and the English People 1770-1868 (1st edn, OUP 1996)
William Jackson, The new and complete Newgate calendar or villainy displayed in all its branches (1795 Alex Hogg)
George Town, ‘A Response to THE ORDINARY of NEWGATE his ACCOUNT, Of the Behaviour, Confession, and dying Words of the Malefactors, who were Executed on Monday, the 9th of this Instant May, 1726, at Tyburn’ (2014) p. 3 < https://blogs.commons.georgetown.edu/c18literature-of-crime-criminality/files/2014/12/Leah.pdf > accessed 24th October 2017
Heinzelman, Susan Sage, ‘Women’s Petty Treason: Feminism, Narrative, and the Law, Journal of Narrative Technique 20.2 (1990 Spring): 89-106
Matthew Lockwood, ‘From Treason to Homicide: Changing Conceptions of the Law of Petty Treason in Early Modern England’  J.L.H.
Wendy Brown, ‘Finding the Man in the State’ (1992) 18 Feminist Studies