Telling stories in eighteenth-century slander cases

A few themes kept coming up at the Litigating Women conference which I’ve just returned from. One of the discussions which I found most interesting was about narrativity and agency: have historians overstated the extent to which storytelling gave women agency? can the stories they told in court can really be thought of as theirs? does the fact that tropes about female weakness and dependence could be used to women’s advantage counteract the damage which these tropes did? One of the issues with ‘agency’ in this context is, I think, that it often seems to imply (temporary) escape from structural constraints. But most of the ways in which women exercised power in early modern society reinforced those constraints. When women told stories in court, they were often publicising the shame of other women. In this context, their ‘agency’ could be disempowering and oppressive, contributing to a wider context in which women’s bodies and behaviour were coercively regulated. ‘Power’ might be a more useful word than ‘agency’ here. Power can be a zero-sum game; it can be coercive or malicious; it can be exercised in a way which reinforces existing constraints.

The papers at Litigating Women also underlined how useful women’s testimony can be for social historians. We heard about inheritance, credit and debt; enclosure riot and sequestration; the community ties of servants and women who sold sexual services. I was especially struck by a paper by Susan McDonough about women who worked in the municipal brothel of late medieval Marseilles. While municipal legislation barred them from the environs of the local church and tried to relegate them to the margins of the city, they brought suits about slander and violence before judges who met at its very heart, in between the church and the marketplace. [1] The stories told by women in English slander cases, which I’ve been looking at for the eighteenth-century North, similarly include defamers asserting their authority over space. But the power which McDonough finds in these women’s testimony itself, standing in the centre of town which they were excluded from and speaking their part, is less obviously present in these sources.

Storytelling often worked to humiliate and disempower women. Carolyn Steedman has written about how the poor law forced its recipients to publicise their histories and circumstances: women who gave birth outside of marriage, or single women who were unable to maintain themselves, had to tell their stories to parish vestries and justices of the peace. [2] Poor women who appeared as church court witnesses might have their sexual and economic histories publicised through allegations brought against them. [3] As well as sexual insult between women, slander depositions describe men shaming women who they claimed to have sexual access to. [4] The witnesses who told these stories in court might enjoy them, especially if they personally disliked the defendant. But they might also resent being dragged into a case: one late eighteenth-century witness claimed that she had originally denied hearing a defamatory insult because ‘she did not chouse to have any Thing to do in the Business’, while another lamented ‘the Trouble she might have in being called on as a Witness’. [5]

This reluctance can’t be separated from these cases’ late eighteenth-century context. [6] Of the thirty-four cases from 1777-1800 which I’ve looked at in my PhD upgrade chapter, only one took place in a fully public space. This was at Sunderland’s corn market in 1787, and witnesses claimed that the slander had been met with cries of ‘shame’ from bystanders. [7] None of those who had allegedly cried out against the slanderer appeared in court to testify. Gossip had hardly lost its power: it’s still possible to hurt people by telling stories about them (I have a theory that the present-day equivalent of these cases is long Facebook statuses denouncing ex-friends or ex-partners). But the relationship between law, publicity and shame had been reconfigured. This is an obvious point, but the power of storytelling is entirely dependent on context. When I volunteered as a benefits adviser and as emotional support for litigants-in-person in a civil court, I met a lot of people who really wanted to tell their stories to someone sympathetic, but were uncomfortable relating them before a judge or framing them in the way the DWP required. This was as true for parents telling stories which reflected badly on their exes in custody cases as for people talking about their own long-term health conditions.

So I think we need to separate out several different issues about law, narrative and power. Did women gain authority from telling stories outside of court? Did telling stories in court give witnesses power? What did these stories do to/for both the plaintiff and the defendant in slander cases? All of this will vary by place, time, and jurisdiction. I want to use a 1739-40 church court case from the rural parish of Monk Hesleden (Durham) to suggest one possible set of answers.

The case was office-promoted by Sarah Hall rather than sued by her as a plaintiff, which suggests that the court took it more seriously than most slander cases. Sarah was sometimes described as ‘Mrs’, but I think this was about her social position rather than her marital status: no husband is mentioned anywhere in the case, and her crime is described as ‘fornication or incontinence’ rather than adultery. [8] She was suing a woman called Mary Harrison, but the case revolved around a story told by another woman, the fifty-one year old farm worker Mary Welch. Enclosed in the cause papers is a loose piece of ‘testemony’ from Mary, pictured below. It wasn’t written by her, as she couldn’t sign her name, but it was in the hand of someone significantly less literate than the clerks who wrote down official testimony. It read:

the testemony of mary welch Consarning Mrs sarrah hall I mary welch do de Clare that I See Mrs hall Siting one one Sack of Corn and Robert harle Siting one an othere a bout toue yards distanc from but I see nothing of ill acted by them the dores being all open october the 29th 1739 as witness my hand

test William Robinson [9]

IMG_20170104_153522

 

When Mary came before the court as a witness in May 1740, however, she retold the story which had prompted Sarah to bring the suit. Mary said that she had been employed by Mrs Yeale, Sarah’s sister, at harvest time. One day, ‘as she was Going up to Harvest Work about their Hay in the Morning sometime before Dinner’, she noticed Robert and Sarah sitting on sacks of corn in Mrs Yeale’s barn. She stopped at the open door of the barn, where she ‘observ’d the said Robert Harle playing with his Red Handkercher Between his Leggs & Upon the Motion & Rising of the Hankercher the Privy Member of the said Robert Harle stood Cocking out & Erect & to this Deponents Memory about Halfway out of his Drawers But not Quite Bare but visible’.

She was still able to tell this story in vivid detail, no doubt in part because she had been repeating it so much. As Robert had no breeches on, she explained, only ‘a paire of thin Course Lynn Drawers as is u’sd by work people in time of Harvest, she thinks his Privy Members was more Expos’d to the View by the means thereof’. She added that she had told this story to Henry and Dorothy Clapham (or rather, had told them ‘that Robert Harle she Believed was in Great Haven Sitting before Mrs Sallee … with what He had Cocking Before Her’), and that she had been sent for by Sarah in October 1739. At Sarah’s house, she had been ‘Question’d pretty much about stories Relating to this affair & was told she Deserved to have her Ears nail’d to the Pillory in case the Stories Rais’d was true’. But she had replied, she told the court, that ‘she Had told no more than the Real facts’. [10]

But wasn’t it the case, she was then asked, that she had confessed ‘before diverse credible persons and especially before William Robinson’ that she had seen nothing indecent? And wasn’t it also the case that the defendant and one Dorothy Clapham had sent for her and pressured her to testify? [11] Mary answered that she had been with William when she had seen Robert and Sarah in the barn; she had told him the same story that she was now telling in court. The defendant and Dorothy had indeed sent for her, but she had simply told them – again we find an insistence that she would tell the story which she wanted to tell, on her own terms – that she ‘wou’d speak to the facts’. [12]

Dorothy testified on the same day as Mary Welch, and described her, rather than Mary Harrison, passing on the story. Mary W had come to her house on the Sunday before the citation was brought against Mary H, and had there, without being asked, reported the whole thing to Dorothy and her husband. Dorothy explained that the barn in question was ‘the Barne of John Halls But now Belonging to Mrs Francis Yeale & Sarah Hall Daughters of the said John’, underlining these witnesses’ long knowledge of Sarah’s family. (Dorothy was fifty; her husband’s occupation wasn’t recorded in the deposition, but she was able to sign her name.) Mary had repeated this story to her on several other occasions, she said, and never recanted it. [13] We also have personal answers from Mary Harrison. Even if she had spoken the words in question, she and her proctor argued, ‘yet were not the same spoke by her with any malitious Intent but as a Hear Say Story from the said Mary Welsh or some other person’. [14]

We can return, now, to our questions. Did Mary Welch (and Mary Harrison) gain power from telling this story outside of court? Did the women who testified in court? What did this mean for Sarah Hall? I’m going to start with the second question, because it lets me describe an important part of the case which I haven’t yet explained. Two witnesses testified about Mary Harrison’s role in spreading the defamatory rumour, Frances Yeale and Alice Forster. Both women were Quakers, and so testified without swearing an oath (‘according to the Statute in that Behalf’). In July 1739, they claimed, Mary Harrison had told them that Sarah ‘was Catchd in a Barne with one Robert Harle with his Breeches Down’. She had said this, moreover, ‘in a Very Malicious Manner’. [15] Both women were literate, and Mrs Yeale, at least, was from a substantial local family. She was also talking about her sister’s reputation, and about a family barn which at least partly belonged to her. Meanwhile, Dorothy Clapham portrayed herself as an unwilling audience for Mary’s story, while the interrogatories suggest that she was an ally of Mary H’s who testified against Mary W in order to help her. She may well have enjoyed the story outside of court (it seems perfectly possible that she had passed it on to Mary H), and she did get to assert her local knowledge as a deponent, but her testimony mostly sounds defensive. Only Mary Welch was eager to share her story both with neighbours and with the court.

We can’t know exactly what lay behind this case, but there are four possibilities:

  • The story was a lie, and Mary initially recanted but then changed her mind. Mary didn’t see anything indecent in the barn, and made up the story as a way to humiliate her employer’s sister. When the case came to court, Mary decided or was persuaded to retract what she had said. Later, after talking to Mary H and Dorothy, she reconsidered and retold the lie as a witness.
  • The story was a lie, but Mary stuck to it. Mary made up the story, but she didn’t take it back. William Robinson, with the help of other people who wished to defend Sarah, wrote her loose ‘testemony’ and marked it with a cross. Mary did not sign her official testimony with a cross.

 

IMG_20170104_161601660

Mary’s mark in court

 

  • The story was true, but Mary recanted. Mary really did see the scene which she described to her neighbours and the consistory court, but was initially intimidated into denying it when the case appeared in court.
  • The story was true, and Mary stuck to it. Mary was telling the truth, her loose testimony was forged, and her insistence that she had told the same story the whole time – with Sarah’s attempts to intimidate her falling flat – reflected her behaviour throughout the case.

In all four scenarios, the story serves the same purpose. Whether Mary had made it up or not, it allowed her to critique a woman whose local power far exceeded her own. We don’t hear much about occupations in this case (I’d check the names against other local records if I was in the North East and writing about this for something more than a blog post!), but we do find out that Robert Harle was wearing the coarse linen drawers ‘us’d by work people in time of Harvest’. Part of this story’s scandal came, then, from the fact that it accused Sarah of fornication with a farm worker. In my MSt, I looked at a late seventeenth-century London case where a woman called Isabel Neighbours testified against one Mr Cutting, who’d tried to get her indebted husband arrested by the bailiffs: other witnesses allegedly heard her say that she was ‘resolved to be revenged of’ him. Isabel’s testimony was exceptionally detailed, relating even the mundane parts of a conversation with Mrs Cutting a year before (Mrs Cutting had asked ‘how she did and how her Husband did, to which this deponent required thus very well I thank you’). This conversation led to Isabel telling Mr Cutting that his own wife accused him of sleeping with his landlady, causing an argument in which Mr Cutting, ‘having a Knife in his hand, threw [his wife] back against the Barre and sayd he would Cutt her Throate’. [16]

Though Isabel was accused of making up her testimony in the name of revenge, another witness (whose testimony was not questioned) made the same claims about the substance of the case, Mrs Cutting having accused her husband of sleeping with their landlady. [17] The case had been brought by the landlady against him. Isabel’s story was distinctive only in that it publicised Mr Cutting’s treatment of his wife and was far more detailed, suggesting that she had rehearsed it many times outside of court. Malicious storytelling was not necessarily about making scandalous behaviour up, but using it to cause as much damage as possible. This was reflected in the legal basis of church court slander cases, which were concerned with malice and injured reputation rather than the truth of defamatory words.

Stories could cost the people who told them. Slander made sense in early modern England because people knew a lot about each another’s lives, lived in close conditions, were tied into networks of service, credit and debt. But this also meant that stories could be easily traced back to their tellers, potentially affecting their credit (in both the moral and the economic sense) and employment prospects. Isabel perhaps thought she had nothing to lose; Mary Welch, however, had been employed by Mrs Yeale at the last hay harvest and might wish to be employed by her again. Spreading a scandalous rumour about her sister can’t have helped, especially as Mrs Yeale came to court as a witness. At the same time, any power which Mary managed to claim through telling the story was directly proportionate to the power lost by Sarah.

In this case and others, witnesses talked about what they themselves described as ‘Stories’. When Sarah (allegedly) told Mary that she deserved to be pilloried if ‘the Stories Rais’d was true’, she presumably meant the stories told about Mary’s storytelling. If only in a desperate attempt to avoid culpability, Mary Harrison’s defence that she had retold it only ‘as a Hear Say Story’ drew a line between malicious storytelling and reporting what was being said by other people. In a 1768 case from Lanchester (Durham), a witness described ‘Mrs Bowerbank charging Dorothy Jons, for Raising & telling of stories against Mrs Whinney’ and Dorothy denying this. But ‘Mrs Bowerbank Knowing the said Dorothy Jons to Vary in her Stories, she the said Dorothy Jons said Did you doubt her, what wou’d you have me swear my self to the Devil, then said Mrs Bowerbank to this Respondent, pray Remember what Dorothy Jons has said’. There was an implicit distinction between the story told by this witness (who had answered Mrs Bowerbank, she told the court, that ‘she wou’d, if Ever Call’d in Question’) and the stories told by Dorothy. [18]

So what does this tell us? Most cases don’t allow us to trace the power relations behind slander even in this partial and speculative way; those that do are often unrepresentative. Few slander cases were office-promoted in eighteenth-century Durham, and sexual insult was usually much more laconic than the story told by Mary Welch. But Mary was more invested in her narrative than most witnesses, not less, and so I am going to try to draw some tentative conclusions about storytelling, power and agency from this material. Telling shameful stories did give women a certain power: Sarah was clearly angry, and presumably also upset, about the damage which Mary had caused. Telling stories about social superiors had a significance of its own, though it was especially dangerous. At the same time, storytelling inside and outside of court was a very different experience. Witnesses described slander defendants confidently denouncing plaintiffs and vowing to ‘prove’ their insults; when cases were pushed through to a sentence, however, they usually lost. Justices of the peace seem to have settled slander cases by urging the person accused of slander to recant even when they denied the words in question. [19]

Despite the vivid stories told by witnesses, then, these cases are largely about slanderers being punished for their defamatory narratives. The stories which gave women the most power over their neighbours were condemned, even when they were told by witnesses like Mary Welch, Isabel Neighbours and Dorothy Jons rather than defendants. Slander testimony often gives us insights which we wouldn’t get in any other source, and women’s engagement with the church courts tells us a lot about law, gender and neighbourhood. But many of the stories which we’re most struck by were being punished rather than legitimised. We need to situate these cases within the legal and local contexts which gave them meaning: to separate out the experiences of witnesses, plaintiffs and defendants; to foreground what we know about women’s engagement with the law, trying to recover their willingness or reluctance, knowledge or uncertainty; to think carefully about the distance between a story told on the street and a story told in court.

 

[1] Susan McDonough, ‘Out of the brothel and into the court: prostitutes and criminal law in late medieval Marseille’, Litigating Women: negotiating justice in courts of law, c. 1100-1750. Swansea University, 28-9 June 2017.

[2] Carolyn Steedman, An Everyday Life of the English Working Class: Work, Self and Sociability in the Early Nineteenth Century (Cambridge, 2013), 78.

[3] Alexandra Shepard, Accounting for Oneself: Worth, Status, & the Social Order in Early Modern England (Oxford, 2015), 144.

[4] E.g. DUL, DDR/EJ/CCD/3/1755/4/5: ‘the Defendant said that Jane Moody was
a Whore & that Robert Sanderson the Defendant’s Husband had told her so and that Before he was Concerned with his Wife he had made Jane Moody a Whore as often as he Pleas’d’; Cheshire Archives, EDC/5/1788, Davies c Rome: ‘the plaintiff Elizabeth Davies, was then the subject of Conversation between the said Thomas Rome and Henry Hearon, and he then heard the said Thomas Rome speaking of her say to the said Henry Hearon, “that he had fuck’d Bet Davies before he had, and that she was with Child and he could prove it”’.

[5] DUL, DDR/EJ/CCD/3/1787/2/16;  DDR/EJ/CCD/3/1790/9/5.

[6] On the decline of defamation as a ‘significant public act’ by the late eighteenth century, see Robert Shoemaker, “The Decline of Public Insult in London 1660-1800,” Past & Present 169 (2000), 97–131.

[7] DUL, DDR/EJ/CCD/3/1787/3, fo. 9b.

[8] Amy Louise Erickson, ‘Mistresses and marriage: or, a short history of the Mrs’, History Workshop Journal 78 (2014), 39.

[9] DUL, DDR/EJ/CCD/3/1739/4, loose document.

[10] DUL, DDR/EJ/CCD/3/1739/4/8-9.

[11] DUL, DDR/EJ/CCD/3/1739/4/6.

[12] DUL, DDR/EJ/CCD/3/1739/4/9.

[13] DUL, DDR/EJ/CCD/3/1739/4/7.

[14] DUL, DDR/EJ/CCD/3/1739/5/8.

[15] DUL, DDR/EJ/CCD/3/1739/4/3-4.

[16] London Metropolitan Archives, DL/C/241, fo. 119a.

[17] Ibid, fo. 242b.

[18] DUL, DDR/EJ/CCD/3/1768/21/7.

[19] DDR/EJ/CCD/3/1786/9/9.

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