Sexual Violence in Conflict Zones: From the Ancient World to the Era of Human Rights

11. Law, War, and Women in Seventeenth-Century England

Chapter 11 Law, War, and Women in Seventeenth-Century England Barbara Donagan In modern accounts of dismaying actions, whether in war, civil unrest, or mere everyday violence, we are familiar with a standard trope that is intended to heighten both the horror of the actions and our sense that those who commit them are outside the ranks of decent and humane people. It is so familiar and routine that it has probably lost much of its power. We read almost daily of offenses against “women, children, and even the elderly.” Here I shall confine my discussion to women in the western tradition and the early modern world, and my examples of early modern theory and practice will largely be drawn from Britain, primarily England. There, the situation was further defined by the fact that the experience was that of civil war between fellow countrymen. English theory and practice, however, were not insular but part of a continental culture of war. The business of war, in fact, offers an example of early modern globalization. The obligation to extend special protections to certain categories of persons and things has a long history, going back at least to the “Truce of God” movement of the early Middle Ages. These early attempts to limit violence extended their protections from holy places and persons to the weak and harmless—specifically women, children, and the old—and eventually to a wide range of persons and occasions, from merchants to fairs to long weekends . The movement had no teeth beyond excommunication and was an expression of good intentions rather than an effective regulator of conduct.1 The duty to refrain from harming the harmless remained, however, even as the movement withered. It was recognized as one of the unwritten laws of war that derived from natural law, Christian morality, and, implicitly, self-interest. 190 Barbara Donagan The absence in succeeding centuries of formal written codes governing relations between enemies did not mean the absence of conventions or “rules” of conduct. Before the emergence of international treaties regulating conduct in war, of the kind familiar to us through the Geneva and Hague Conventions, many aspects of the relations between enemies were governed by the unwritten laws of war. These addressed, for example, the treatment of prisoners, including their exchange and ransom, and the differing permissible fates of captured towns, depending on whether they surrendered on agreed conditions or were taken by storm. In Henry V Shakespeare had made clear the awkward tension between norms of protection and permitted violence (such as that allowed after a successful storm), as well as the impossibility of enforcing either written or unwritten rules when troops were “enraged” in hot blood. In his speech before the gates of besieged Harfleur Henry V warned of the consequences for women: I will not leave the half-achieved Harfleur Till in her ashes she lie buried. The gates of mercy shall be all shut up And the fleshed soldier, rough and hard of heart, In liberty of bloody hand shall range With conscience wide as hell, mowing like grass Your fresh fair virgins and your flowering infants . . . What is’t to me, when you yourselves are cause, If your pure maidens fall into the hand Of hot and forcing violation? What rein can hold licentious wickedness When down the hill he holds his fierce career? We may as bootless spend our vain command Upon th’enraged soldiers in their spoil As send precepts to the Leviathan To come ashore.2 In the 1630s the prolific narratives of Germany’s sufferings in the Thirty Years’ War that appeared in England only confirmed Shakespeare’s vision of the vulnerability of women to the horrors that could accompany war.3 Regulation of military violence was nevertheless not only a matter of adherence to unwritten norms of war. From the late medieval period at least, armies issued formal “articles of war” or codified army regulations, intended primarily to discipline their own troops but also to address some inter-army matters (such as treatment of prisoners) and some aspects of treatment of civilians. The earliest extensive English articles that I know of date from the Law, War, and Women in Seventeenth-Century England 191 reign of Richard II.4 These articles were expanded in the reigns of Henry V and Henry VI; they were not an exotic form of knowledge but part of soldiers ’ professional formation. Over the years...