A Fine and Terrible Mystery – Episode 17: Distance and Context

This is the 17th  episode in my investigation of the discordant life of Sir Thomas Malory, author of Le Morte d’Arthur.  Episode 1 can be found here.

An American criminal court is a particularly terrible kind of public theatre for a juror.  You sit with a group of strangers a short distance from someone accused of crimes which can be terrible.  You watch and listen as the prosecution and defense carefully construct damning and exonerating narratives.  The prospect of deciding between the two “concentrates the mind wonderfully” to appropriate Johnson’s observation about the prospect of being hanged.  During the last weeks whilst I’ve studied the accusations of rape against Sir Thomas Malory, I found myself recalling my own experience as a juror and falling into the same frame of mind.   I’ve read and reread and studied, working to be honest, objective, and uncertain, to see how the evidence fits together, but not force it to do so.

To complete my investigation of this difficult and controversial aspect of Malory’s life, I decided to take a step back, to verify and improve my overall knowledge of the crime of rape in 15^th century England.  To that end, I’ve been carefully studying Caroline S. Dunn’s 2007 Ph.D. dissertation Damsels in Distress or Partners in Crime?  The Abduction of Women in Medieval England to see what extent it contradicted or corroborated my earlier research and to see if the context of her incisive and comprehensive study illuminated Malory’s case further.  I also decided to look again at the closest thing to recent writers for the  prosecution, Catherine Batt’s paper “Malory and Rape” and Jonathan Hughes Arthurian Myths and Alchemy:  the Kingship of Edward IV as well as Edward Hicks 1970 biography Sir Thomas Malory His Turbulent Career which details the discovery of the Nuneaton indictment.

Dunn searched every volume of the patent roles from the early 1200’s to the year 1500, both the records of the King’s Bench and the Gaol Delivery in order to cast her net as widely as possible.  She was able to classify 821 of 1,283 cases as abduction (730) or rape (90) or kidnapping followed by rape (37).  Further, she was able to identify motive in 344 cases.  Sexual assault and violent abduction could be detailed in both appeals and indictments, and she uses such ancillary information for her classification.   This corroborates Hardyment’s observation that the absence of such details in the accusations against Malory, both in the Nuneaton indictment and Hugh Smyth’s subsequent appeal at Westminster, argues the possibility that if there was sexual relationship between Malory and Joan Smyth, it was consensual.  Indeed, according to Dunn, over half the instance of wife abduction were women going willingly with a lover.

Henry Ansgar Kelly suggests the severe legislative act of 1382 which enables family members, not just the victim, to appeal the crime whilst precluding trial by combat supersedes the earlier acts, particularly Westminster I and II.  Dunn argues, persuasively, that instead, the latter act supplemented the earlier legislation.  In particular, her examination of the evidence shows that whilst women could not appeal their husbands of rape, they could appeal others after 1382.  Hence, Joan Smyth could have appealed Malory, contrary to the assertion made by Catherine Batt.  Further, statistics show and it was known to the legal community at the time that appeals by the victim were more successful than those made by others. Indeed, prosecution under all the acts was possible, not just the act of 1382.  Obviously, there are many reasons Joan Smyth may not have chosen to do so.  But that both Buckingham at Nuneaton and Smyth at Westminster chose to accuse Malory only under the 1382 act  further corroborates Kelly’s assessment that the decision  was an admission that any relationship between Malory and Joan Smyth was consensual.

Hardyment disputes there was any sexual relationship at all and I was skeptical of her argument.  However, I now consider it the most probable of the possibilities for the following reasons.  First, surprisingly, the accusation of the attempted assassination of the Duke of Buckingham was classified in the indictment as a trespass, not as a felony, possibly because no one was injured in the incident and the ambiguity of the events.  The specific addition of the accusation of a sexual relationship, consensual or not, to the accusation of abduction with theft of property meant it merited classification as a felony, justifying arrest and imprisonment.  Second, and more importantly, there is the curious collection of companions included with Malory in the appeal:  Adam Brown, a Coventry weaver, Thomas Potter, a small farmer, and William Weston, gentleman.  None of the three served Malory directly or were members of his family, as is often the case in other cases of rape and abduction in which groups are involved.  Hardyment suspects Joan Smyth may have originally been Joan Weston, William Weston’s sister, and that Malory may have been helping Weston rescue his sister from an unwanted marriage.  Third, Malory was never tried for any of the accusations.  However, in subsequent negotiations for bail and comprehensive pardon, the accusation of felonious rape, the most notorious charge, is never mentioned.  It’s a particularly telling clue in evaluating the charge’s merit.

For all these reasons, and my earlier discussions on the topic, my verdict is that Malory was most probably innocent of sexual assault (and definitely was never explicitly charged with such.)

In closing I want to note that the literary arguments of both Catherine Batt and Jonathan Hughes focus more on the Le Morte d’Arthur itself rather than the events of Malory’s life and deserve more careful consideration in that context.  Batt, in particular, states that Malory’s portrayal of rape is not “incompatible with the perspective of an apparent rapist” which logically begs the difficult, possibly unanswerable question is there any literary work that definitively is?  The fact remains that the Pentecostal Oath, which Malory invented for the Round Table Knights, specifically proscribed sexual violence and that he portrayed rape as horrific and terrible as in the incident with the Duchess of Britany.  To my mind, Batt is working her way to a very different question anyway:  is Malory’s code of Chivalry inherently sexist?  It’s a viable and important question that I’ve added to my list of topics for a future post.

Episode 18 can be found here.

A Fine and Terrible Mystery – Episode 16: But did he do it?

This is the 16th  episode in my investigation of the discordant life of Sir Thomas Malory, author of Le Morte d’Arthur.  Episode 1 can be found here.

But did he do it?  Bear with me.  While we were rambling around the Colorado Plateau, recently, after my last post on this topic, I continually felt I still hadn’t done justice to this more than difficult issue of the two accusations of rape against Malory.  In particular, while I’d read and discussed some important research, I’d stopped short of expressing a personal conclusion.  Further, what I’d learned generally, failed what I might call “the novelist’s test” which is to say that I didn’t feel that I could write a fictional narrative of the events which properly served what is actually known and Sir Thomas Malory himself.  Lastly, and perhaps most importantly, I was concerned that I, like some more adroit scholars before me, were attempting to discover and elaborate exculpatory evidence rather than discover the truth.  Of course, I didn’t want Malory to be guilty.

To address this, I decided to do three things.  First, to reread Henry Ansgar Kelly’s important paper as carefully and critically as possible.  Second, to research the topic of rape in medieval England generally, for greater perspective and finally, to find and read the work of the best contemporary scholar I could find who took the position that Malory was probably guilty.

No scholar I’ve found has professed absolute certainly of his guilt or innocence.  Some see rape as part of a spectrum of historical patriarchal strategies for controlling women’s bodies and lives which is subsequently used to diminish the particular literary importance of the question of whether Malory was guilty of sexual assault.  Nevertheless, that is the question I’m addressing at this stage.  Further, in defense of my focus on that specific issue at this stage, I would quote Catherine Batt, (Malory and Rape, 1997), Le Morte d’Arthur “develops a rhetoric for rape as signal of the anti-social, the threat from the margins, that against which the community defines itself.”  Of the scholars I’ve discovered and read so far, Batt is the most skeptical Malory’s innocence but her concerns are primarily literary, not historical.  Nevertheless, two of her observations are particularly important.  First, following Sir William Stanford, writing in 1557, she reviews the case of a woman raped in prison who was not allowed to appeal (personally bring suit) for the crime because she has a husband who must do so for her.  In the context of Malory’s case this might mean the absence of a suit from Mrs. Hugh Smyth offers no circumstantial evidence of Malory’s innocence of sexual assault but is rather an indication of legal precedent.  Second, and more central to her paper, is that contention that the portrayal of rape in Le Morte d’Arthur “is not incompatible with the perspective of an apparent rapist.”  I, personally, don’t agree that the evidence she cites, (nor anything else in my own reading of Le Morte d’Arthur) justifies that conclusion, but, more importantly, I would echo P. J. Field’s observation about the danger and difficulty of using Malory’s work as primary evidence of his guilt or innocence of this particular crime.

Henry Ansgar Kelly’s comprehensive review of the statutes show how abduction generally was conflated with sexual assault.  His review of specific cases shows how the statutes were used to prevent wives from fleeing oppressive marriages, nuns from fleeing religious houses and even for extortion.   He makes the important point that statute of 1382 was enacted to cover cases in which women consent afterwards and it is so stated in the Rolls of Parliament.  He writes of Malory specifically,

… He was accused in 1451 of twice having had felonious sex with another man's wife and, on the second occasion, of feloniously abducting her. Later, the woman's husband accused Malory and named accomplices of ravishing her, and since he invoked the 1382 statute of Richard II, he was admitting that the wife consented to the ravishment. We do not know who was more in the right, the woman's self-proclaimed husband or Malory. But, given the track record of other such accusers, I put my money on Malory.

We may never know more about Malory's relations with the wife of Hugh Smith, but they may have been as complicated as those between Lancelot and Arthur's queen in the French romances that he would translate during his stays in prison, which he may have already read in 1450.

To quote George Smiley, “we’re almost there.”  I concur with Kelly’s deduction of the meaning of the use of the 1382 statute in Malory’s case.  But the question which remains for me, is how representative are the selection of cases which Kelly cites?  Fortunately, there is a relatively recent work which examines that question in detail and also sheds light on Batt’s first point.  It is the excellent 2007 Fordham University doctoral dissertation of Caroline S. Dunn, Damsels in Distress or Partners in Crime?  The Abduction of Women in Medieval England which I’m currently reading.  I expect to review it in my next Malory post when I also expect to make a final statement on the accusations of rape.  Then is will be time to move on to his imprisonment, the latter part of his life, the concurrent events in England and, of course, observations about Le Mort d’Arthur itself.
 

 
Episode 17 can be found here.