Life-Long Learning in Legal History

Yesterday, I became aware, rather belatedly, of a woman who edited some volumes for the Selden Society in the 1930s and -40s, the two Select Cases in the Exchequer Chamber volumes (vol 51 and vol 64). The name long familiar from catalogue searches and bibliographies, ‘M. Hemmant Ph.D.’, was, in fact Mary Hemmant, a history graduate, sometime suffragist (not, she would be keen, I am sure, to point out, a ‘suffragette’) and (amongst other things), judge of dog shows (specialising in Irish setters). I had assumed that M. Hemmant was a man, as most of the Selden Society notables were, but there she was, hiding behind an initial.[i]

A little light investigation gave me a few facts about our subject, and a few things to observe.

Mary Hemmant was born into a wealthy family. Her father, William Hemmant, had made his fortune in Australia, then served there as a politician, before returning to Britain and settling down in a very large house in Kent, named after his Australian constituency, Bulimba. The family was not ensconced in ‘Bulimba’ at the time of Mary’s birth, however: she was born in Ealing, London, in 1879.

Of her early years, I have found very little. Easily accessible records and accounts suggest that she lived the life of a  privileged, though socially engaged, woman. Her good works included decoration of churches  and work with the Sevenoaks Lay Association.[ii] Mary was an active member of the ‘non-militant’ pro-women’s-suffrage organisation, the NUWSS, taking charge of its Sevenoaks branch, and engaging in a lot of pro-suffrage writing of letters to newspapers.[iii] She was not a Christabel Pankhurst type, though, and was one of those signing Sevenoaks NUWSS letter deploring militant methods of WSPU in March 1912.[iv] Quite politely, she engaged with, and disagreed with, anti-suffrage arguments.[v]  She bred Irish setters and judged other people’s Irish setters in competitions. [vi] Her social status clearly made her the sort of person who merited a mention in the papers, when she attended a wedding or a funeral.[vii] Apparently she was a very good tennis player, [viii] and she drove a car, from 1915 to 1964 (when she got in trouble for bad driving and gave it up for good, aged 86).[ix] She lived until 1971, as her death at 93 in a home in Ticehurst, and cremation, were recorded in a local Sevenoaks paper in that year. She was still listed as ‘Miss Mary Hemmant’ at this point, and her address was given as 8 Bradbourne Park Road, Sevenoaks.[x]

But how does the legal history writing fit into this quiet, privileged life? I was interested to see that Mary Hemmant had had a rather unusual educational trajectory, only taking up the study of history at a relatively late stage in life. She graduated with a BA in History as a University of London external student (with a second class degree) in December, 1912 – so, in her 30s, by the look of it.[xi] A secondary source tells me that she studied at the Maria Grey Training College at some point. She clearly did gain her Ph.D. in 1929 (so, around 50), at University College London, on the subject of ‘The Exchequer Chamber, being ‘the assembly of all the judges of England’.[xii] This was the topic on which she would write her Selden Society volumes in the 1930s and 1940s (in her 50s and 60s). I speculate that her family connections with an eminent lawyer, Lord Atkin,[xiii] who was president of the Selden Society in 1933, might also have encouraged her in that direction. Most of us do not have her privilege, but it is a somewhat heartening story of serious application to something very challenging at a later stage in life.

Only somewhat heartening, however, since the reception of Mary Hemmant’s work does not suggest that even this well-connected and well-off woman managed to obtain unalloyed respect from the legal history notables of the day. I found this quite telling, in terms of the treatment of ‘outsiders’ by the legal history ‘boys’ club’ of the early-to-mid-twentieth century.

It would probably not have seemed too odd to her, given that she (presumably) chose to label herself as ‘M. Hemmant’, rather than ‘Mary Hemmant’, but several of the reviews of her volumes are studiedly un-gendered. Generally, they do her the courtesy of calling her ‘Dr Hemmant’, though not always: to Samuel E. Thorne, she is ‘Miss Hemmant’ throughout.[xiv] T.F.T. Plucknett is generally positive, though pointing out some mistakes. [xv] Positive/bland reviews come from Erwin F. Meyer and Margaret Hastings.[xvi] The general view seems to be that the later volume is not up to the standard of the earlier one, but of some value (S.B. Chrimes talks of her ‘highly competent scholarship’).[xvii] An outlier in its ferocity, and surely one which must have hurt – is Samuel E. Thorne’s review of the second volume. He damns her as being ‘neither a lawyer, nor at home among medieval law reports’ (the first of which might seem a bit harsh, when we consider that she would have had considerable difficulty in becoming a lawyer prior to 1919, at which point she was forty …).[xviii] While he is not wrong in his corrections, his tone is not exactly welcoming to those trying to work on legal history without having been through the training so much more easily available to men than to women.

There we are then, that is a brief introduction to M. Hemmant Ph.D. There are some further papers relevant to her story which it would be good to see, in order to get a fuller picture of her interactions with the Selden Society, so that’s one for the backburner pile. And interim lessons for today? Well, the straightforward gender bars no longer persist, so to that extent this is a story of the past, but the practical difficulties of acquiring the necessary skills, confidence and contacts to be a successful and accepted legal historian remain significant, and certainly are still considerably more challenging to some groups than to others.  Work to be done.

 

GS

19/11/2024

[i] See the similar mistake I made with N. Dermott Harding.

[ii] Sevenoaks Chronicle and Kentish Advertiser, Friday 21st January, 1910; Friday 27th December, 1912.

[iii] See this account.

[iv] SCKA, Friday 8th March, 1912.

[v] SCKA Friday 19th May, 1913.

[vi] SCKA, Friday 31st July, 1971; Gentlewoman, Saturday 4th June, 1921, p. 50; Buckinghamshire Examiner, Friday 22nd June,1928; Mid Sussex Times, Tuesday 9th July, 1935, p. 3.

[vii] See, e.g., See, e.g. Times, Monday 19th December, 1932.

[viii] SCKA, Friday 31st July, 1971.

[ix] Tonbridge Free Press, Friday 9th October, 1964, p. 9.

[x] SCKA, Friday 31st July, 1971.

[xi] Times, Saturday 7th December, 1912, ‘University Intelligence’. (I notice that a certain Helena F. Normanton was listed in the same place, having done a bit better, and earned a first class degree in History).

[xii] See: Successes, setbacks and stories of the unexpected from the IHR’s Class of 1921 – On History Medieval England | British History Online

[xiii] For contact with Lord Atkin, see, e.g., Times, 2nd March, 1939.

[xiv] S.E. Thorne, Yale LJ 58 (1948-9) 821-4.

[xv] EHR 50 (1935) 139-40.

[xvi] Speculum 9(1934) 334-6; Speculum 24 (1949) 623-6.

[xvii] EHR 64 (1949) 372-4

[xviii] S.E. Thorne, Yale LJ 58 (1948-9) 821-4.

Steady on, Fred! F.W.M. and the legal historical G.O.A.T.

What do we think is the ‘greatest event in English law’? Something about freedom, fairness, equality? Something especially spectacular or creative? Well, if it’s 1888 and you are F.W. Maitland it is this …

Selden Soc. vol. 2, (liv

Don’t get me wrong, I like a petty assize as much as the next Land Law/Legal History lecturer, but I am not sure I would pick out the introduction of novel disseisin as the single greatest LH event of all time …

(And the dog looks equally unconvinced, to my mind).

GS

1/11/2024

Meaty Medieval Matters

The most wafer-thin of snippets … just something in a plea roll that has rather intrigued me.

In the King’s Bench plea roll for Hilary term 1422, there is mention in passing of [spelling modernised] ‘the Blind Butcher of Stanyate/Stangate’.[i] The entry is really more about his recent apprentice, John Butcher, who had been accused of an offence by an approver. But enough of the nefarious or unfortunate John Butcher – it’s his former master who is the interesting one. This man was, presumably, well-known as well as unusual (thus the description and the lack of a name – presumably there were not multiple blind butchers). However, he appears to have been running a successful operation despite his disability, since he had, until recently, had this apprentice. I would have thought of butchery as a rather difficult thing to do without good sight, what with all of the cleaving and flesh-hewing, but perhaps a master-butcher could delegate the actual chopping to his minions. An odd thing for a vegetarian to be cheering on this medieval meat-man, but find that I am rather impressed at his pluck and competence.

GS

30/10/2024

 

[i] see AALT Page: KB 27/643

Image: some deads. Photo by Kyle Mackie on Unsplash

Conspiracies and puzzles in medieval London

CW: foetal death

Continuing my occasional posts on indications of medieval legal thought on the foetus,[i] here is another tantalising keyhole for us to look through … The King’s Bench plea roll for Easter 1324 (KB 27/256 m.22 ) has an entry about an alleged conspiracy to have a woman indicted of an offence, before the coroner, and that offence appears to involve a foetus.

It was a London case, in which Amice de Ragace complained that Geoffrey de Litlington and William de Wengrave had conspired on 23rd July 1310 to have her indicted before a coroner of London of the death of a certain child [infans] in the belly of Alice le Callestere. As a result of this, she had been arrested and locked up in Newgate for about a fortnight in August 1310, before being acquitted at gaol delivery of the death of the infant. Rather a long time later, she was claiming compensation from Geoffrey, and successfully convincing a jury that there had indeed been a conspiracy (though she did receive rather less than she claimed, and there was a dispute about whether satisfaction had been received).

This seems to imply that nobody said ‘hang on, that is not an offence’, that it was not, therefore, obviously preposterous, as far as the London authorities were concerned, to prosecute somebody for causing the death of a foetus (apparently this alone, and not also injury to or death of the pregnant Alice – at least this is not mentioned). This is not to say that medieval law regarded termination of foetal existence as the same as murder/felonious homicide of somebody who had been born, and it certainly shouldn’t be co-opted into modern debates about abortion, in our very different contexts. What is does suggest is that it could be seen as some sort of serious wrong, and that the status of the foetus, and its place in ‘criminal law’  in the first third of the fourteenth century needs closer attention.  (A small point which I am mulling over is that designation of the foetus as infans – a word I would have associated with a small child rather than applying to the pre-birth situation. What can be read into that, and what influence might word-choice have had on the case?).[ii]

JUST 3/40/2 m.8, an entry relating to a woman who looks likely to have been the same defendant, Amice Ragaz, at the relevant time. Here, though, the accusation was that she had killed ‘Alice daughter of John Feryn’. So: was this the pregnant Alice, her child, or somebody else entirely? Ever more mysterious, and signalling once again, if it needed to be signalled, that there is a need for extreme caution in attempting to draw conclusions on the basis of half-glimpses in manuscripts of thinking on what was clearly regarded as a puzzling matter, and one that could be considered from different perspectives.

 

GS

27/10/2024

 

Image: that London. Vaguely where the conspiracy was hatched … 

[i] See, e.g.,: Finding the words for offences involving the foetus: a medieval Midlands example | Bracton’s Sister

A pregnant pause (in legal proceedings) | Bracton’s Sister

A vicious beating or a vicious lie? A fifteenth century Somerset case | Bracton’s Sister

A Cornish compensation claim | Bracton’s Sister

Procedure and pregnancy: a Middlesex appeal | Bracton’s Sister

Criminal Chaplains in Yorkist Yorkshire? | Bracton’s Sister

Kentish conundrums | Bracton’s Sister

Bleeding Legal History | Bracton’s Sister

Untruth in wine: a snippet of medieval medical thinking | Bracton’s Sister

I really should bring these together somehow …

[ii] Infans is, however, employed in the case noted here: A vicious beating or a vicious lie? A fifteenth century Somerset case | Bracton’s Sister

Fairly unprecedented?

A quick post … I am just doing my homework for the next round of Land Law tutorials, and struck by this sentence, from Baxter v Mannion [2011] 1 WLR 1594 at 1595. There are reasons for the lack of reference to cases, since this was dealing with recent legislation, but still, pretty restrained of the CA. It does note that counsel did use a few cases. In spite of its lack of historical mooring, I expect my students will be glad about the now-unusual shortness of the case-light report (a mere 10 pages, not counting annexed legislation).

GS

22/10/2024.

Broadside

Matrimonial Causation

CW: suicide

I went to an interesting exhibition last weekend, in the rather lovely Bristol Central Library, showing off some of the books and records from the library and Bristol Archives relating to crime and punishment. As you can imagine, there was plenty on executions and jails, and also a special guest appearance from a book of Tolzey Court records (more debt than crime, but even so, nice to look at).

One (undated) item that got me thinking was a broadside/handbill (from B22689/BL8F1) – printed text on flimsy paper – about the death of two young people at some point in the early nineteenth century, headed ‘LAMENTABLE EFFECTS OF THE NEW MARRIAGE ACT EXHIBITED IN THE MELANCHOLY DEATH OF JOHN BARTER AND MARY LEVETT, WHO TERMINATED THEIR EXISTENCE ON SUNDAY LAST BY SWALLOWING POISON’ (or perhaps more accurately in terms of emphasis, LAMENTABLE EFFECTS of the new MARRIAGE ACT exhibited in the MELANCHOLY DEATH of John Barter and Mary Levett, who terminated their existence on Sunday last by swallowing

POISON’

Apparently poison got potential readers’ attention.

The story related is one of suicide – until 1961, of course, a felony/criminal offence in England and Wales – but what especially grabbed me about this was its linking of desperate deaths to a piece of legislation on marriage, ‘the New Marriage Act’.  This seemed to be worth a bit of thought.

The tale, if I may summarise, was that two young people, John Barter (19) and Mary Levett (17), of ‘Maiden Keignton, Glos.’ [?], were rendered desperate to the point of suicide by the impact of ‘the New Marriage Act’, which meant that they were not able to marry each other. The stumbling block was disparity of wealth – John had ‘some property’ while Mary did not have anything but ‘her personal attractions and qualifications’, and John’s father, not, apparently,  swayed by attractions or qualifications, withheld consent to the match. This led to the teenagers buying and taking laudanum, and so dying, in a thicket, ‘in each other’s embraces’.

The account really does all it can to portray the dead couple as as little to blame as possible. The headline does this graphically, suggesting that causation is to be attributed to: 1.POISON  and 2 the New Marriage Act. In the text, there is the death in each other’s arms, the use of ‘melancholy’ and ‘romantic’, and, perhaps most tellingly, ‘ill-fated’. I think we get the message – John and Mary were not at fault really.

Was there any truth in the story? This is the sort of thing a non-specialist must approach with both humility and caution. I have to say that it seemed rather unlikely to me, first the attribution of causation to the new legislation, and secondly the idea that ‘the unfortunate young man’ broke off from his despair long enough to write some bad verse, blaming the statute for their demise. In addition, it didn’t seem to me impossible that a determined young couple might find some way to get married, despite one parent’s objection.

Looking at the story in the exhibition, I had assumed that it was talking about the famous ‘Hardwicke Marriage Act’ of 1753, which went some way to imposing ‘state’ control over the process of getting married, and, amongst other things, included requirements for parental consent for those who wanted to marry under the age of 21. As Rebecca Probert, whose research dominates in this area, has pointed out, there were ways around this, of entering into an effective marriage without parents knowing and thus being in a position to object (even if it would mean losing some property rights, once the family found out about an undesirable match).[i] A quick investigation of the printer, however, suggests that we should be thinking not about Hardwicke’s Act, but about the Marriage Act 1823, or, perhaps more plausibly, its stricter 1822 ‘dry run’.[ii]  At the foot of the broadside is ‘Shepherd, Printer, Broad Weir, Bristol’, and this would seem to be a printer active in the trade in the 1820s,[iii]

I will confess that I have never given the 1823 Act (nor its 1822 precursor, come to that) a great deal of thought. It is all treated extremely briefly in every legal historian’s go-to text, J.H. Baker’s Introduction to English Legal History 5th edition, p. 521, with half a sentence, to the effect that the 1823 Act ensured that marriages were not struck down for minor breaches. The relevance to the marriage of minors, and parental control thereof, has to be sought elsewhere. As ever with the history of marriage law, Probert’s work is helpful. This story turns on the fact that the new marriage legislation[iv] made things more difficult for minors wanting to marry without parental (i.e. its anagram, paternal), and that the position had been less strict before the passage of the act.

The 1822 Act brought in a new procedure with regard to the matter of minors, including a swearing that the parties were of age (1822 Act c.8-12), This might cause disquiet to those minors unable to make themselves tell lies under oath), quite apart from the difficulty of getting away with telling them, if an objecting parent took the matter in hand. If a licence was beyond the ‘ill-fated’ couple in this story, and they needed to be married via the banns procedure with full publicity, their names and residence, and intention to marry being published in a church, giving the chance for objection, including by the intended groom’s father. (Note that the 1822 Act s. 16 required affidavits, including as to majority, and also greater publicity).

The broadside expressed the view that the new legislation had led to ‘depravity’ and had been bad for young people, susceptible as they were to ‘the sweet passion of love’.

There was, in fact, at least one more reported suicide connected with the new legislation. In 1822, newspapers reported that a certain ‘young woman’, Mary Robson, of Darlington, had taken an overdose of laudanum, because she ‘had been on the point of being married for some time past, but the strictures of the New Marriage Act (1822) had prevented her, and made a serious impression on her mind’. We don’t know that this was a minor marriage case like the first one discussed here, but still, it does suggest that it was a plausible tale for newspaper readers of the day.[vi]

Not all responses to the 1820s legislation were quite so tragic: there are signs of satire and humour. A Mr Mallinson, apparently a big London star,  was advertised as singing a comic song ‘The Death of the New Marriage Act’, at a Gala Fete (‘unsurpassed for variety and grandeur’, so it was insisted) in Bath, on 14th June, 1824.[vii] Apparently not the only side-splitting musical tribute to this legislative endeavour. As well as making some relatively serious points on disquiet about the process of going along and swearing that one is  qualified to marry (including the fact that one is of age) – seen as humiliating, and as likely to lead to perjury – the Examiner noted a verse sung in 1822 by ‘wandering melodists’. The grievance here is publicity – the requirement of putting names up on the church door (1822 Act c. 17; for the thinking behind it, see this parliamentary debate).

“For to go for to stick up our names on the door

In this here sort of vay, vy ve cannot endure;

Gee ho dobbin, heighho dobbin!

Oh vat a rum go is this new Marriage Act!’[viii]

 

Undoubtedly an absolute banger.

 

GS

20/10/2024

[i] On this, see, e.g. R. Probert, ‘Control over Marriage in England and Wales, 1753–1823: The Clandestine Marriages Act of 1753 in Context’, Law and History Review (2009), 413. See also these works by Probert: The Changing Legal Regulation of Cohabitation : From Fornicators to Family, 1600-2010 (Cambridge, 2012); Marriage Law and Practice in the Long Eighteenth Century : A Reassessment (Cambridge, 2009); (with L. D’Arcy Brown), ‘The impact of the Clandestine Marriages Act: three case-studies in conformity’, Continuity and Change 23 (2008), 309–330; Probert, Marriage Law and Practice in the Long Eighteenth Century : A Reassessment (Leiden, 2009)

[ii] On this, see, e.g. Probert, ‘Control’.

[iii] See A.P. Woolrich, Printing in Bristol, Bristol HA, 1986; and see the list here.

[iv] Probert, ‘Control’, 445 notes the multiple Acts: 3 Geo. IV c. 75; 4 Geo. IV c. 17; 4 Geo. IV c. 76, and Probert Marriage Law c.8 discusses the 1822 (c 75) Act. May I just say how maddeningly (and, actually, worryingly) difficult it is to get hold of legislation from this period – no longer on the shelves in my university library, as I discovered this afternoon.

[v] See Probert, ‘Control;, 446=8, and 1823 Act.

[vi] Berrow’s Worcester Journal  5th December 1822, p.2 (and elsewhere).

[vii] Bath Chronicle and Weekly Gazette, 3rd June, 1824, p.3.

[viii] Examiner, 22nd September, 1822.

 

Addition, 23/10/2024

We might note, too, on the lighter or more creative response to the 1822 Act, the story told by  ‘An ipso facto witness’, in a letter to the editor of the Manchester Guardian – spoteed outside a chapel-of-ease in Oldham, #a paper which I supposed contained the banns of marriage’ but ‘written in an almost unintelligible hand, and moreover turned wrong side up, and posted at the very top of the door.’! [Manchester Guardian, 14th September 1822, p.4]

And another Marriage Act-1822-linked report of suicidal behaviour is related in the Manchester Guardian, 23rd September 1822 p.3, – a young couple were thwarted by the new bureaucracy and failed to get married. The woman went off with somebody else the same day. The man attempted suicide (though one might think that the red tape did its work of preventing a marriage unlikely to be terribly successful). This same page carries another evasive dodge – putting up the list of names of those to wed to the back of the door. Creative once more.

New Marriage Act pottery

Pottering about: a whole new sub-sub-discipline?

I have always been inclined to rush by the rooms full of ceramics at museums and art galleries: all a bit samey, ugly, and/or reminiscent of grand-parental ‘best china’ … but now I may look again, having discovered that there may actually be some Legal History content there, begging for analysis.

This thrilling revelation was received when looking up something about a piece of 19th C legislation – internet search for ‘New Marriage Act 1823’ brought multiple versions of this scene, celebrating/satirising that particular statute (or, perhaps, its 1822 c.75 precursor?). Very popular, apparently, with many variations and copies. Sometimes the figures are around a tree,as opposed to indoors, and fashion choices vary (see this fine coat on the bride, as well as this one, presumably designed to tone in with a collection of Delftware in somebody’s cabinet) but the general idea remains, and the plaque mentioning the Act is usually there. This particular version is at the V&A museum, but there are several different ones, going into the early 20th C, by the looks of it. Clearly begging for a scholarly treatment. Look out for my ‘Pots and the Law’ in due course. (And also: what about the groom’s snazzy trousers here? Very smart!).

GS

18/10/2024.

Main image – V & A

Deserted wives, dastardly husbands, dodgy metaphors

At this time of year, the thoughts of a historically-minded tutor of Land Law turn to the nature of equity. Yes, it is time to inflict upon a new cohort of second year students the distinction between legal and equitable rules, to skate over the development and demise of conciliar jurisdictions and get them to read some of Land Law’s biggest cases.

This year, I have had reason to go back to the House of Lords decision in National Provisional Bank v Ainsworth [1965] AC 1175, and read it for the first time in quite a while. It weighs in at about 47 pages, so a bit of a thumper, I am afraid. Still, undoubtedly an important case, both in its attempt to define what is, and what is not, a property right as opposed to a personal right, and also in its many nuggets about social conditions and gender relations in the period which might be seen as the long twilight of ‘coverture’ as far as matrimonial property was concerned. The big point of the case is taken to be the refusal to class as a property right the ‘deserted wife’s equity’, with the result that a woman whose husband had left her and her children (going off and finding another woman, committing adultery, not paying maintenance and trying hard to get his wife out of her home, as Lord Denning in the Court of Appeal informs us – clearly what a nice fellow and a man of integrity)  did not have a property right to enforce against a bank which had granted her husband a mortgage, and wanted to turf her out and sell up.

It is not an uncommon reaction to such cases amongst today’s law students to see the woman in the case as rather pathetic, and to think that this is very much a thing of the past, and of past incarnations of marriage and family life. It is true that we are not likely to see again the overt suggestion that a married woman does not count sufficiently to be ‘in actual occupation’ of land (raised here, and rumbling on until the 1980s), and that subsequent developments in the area of matrimonial property, banking law and constructive trusts might well have helped out Marjorie Ainsworth, a.k.a. ‘the wife’ in this case, so, the problems here would be unlikely to recur in exactly this form. Nevertheless, we are unlikely to see the end of spousal misbehaviour, desertion and mean and petty conduct following separation, while marriage and gender inequality persist, and some of the judges’ positions and descriptions relating to gender and, specifically, to married women, seen here, have not entirely left the building. In particular, I want to focus on something I had forgotten about from this case – its use and expansion of that rather questionable metaphor of equity as ‘not past the age of child-bearing’:

‘Equity may not be past the age of child-bearing but an infant of the kind suggested would lack form or shape.’ (Lord Hodson, 1224E).

There is an interesting consideration of the obvious (and rather grim – women as brood mares … judges presumably ‘fathering’ doctrine …) gender aspects of this in an article on legal metaphor from 2004: A. Culley and M. Salter, ‘Why study metaphors?’, (2004) 15 KCLJ, 347 – well worth a read.  The authors note the echoes of ancient fears of the ‘monstrous birth’, familiar to medieval and early modern historians, which we can hear in this iteration of the metaphor.

Two further aspects strike me as interesting, looking at Ainsworth from a 2024 perspective. The first is that there is something particularly jarring in using a metaphor which positions equity as a woman, and stresses the centrality of child-bearing to a woman’s identity, in a case in which am actual woman, and one who had dutifully produced four children before her husband chose to walk out, was being screwed over by the combined might of social and gender relations, a selection of existing, man-made, legal doctrines, and a manel of judges. Metaphorically fertile women, good, real women, whether or not still able to reproduce in the traditional way, who cares? The second is that ‘past the age of child-bearing’ sounds particularly out of place in a world of IVF, surrogacy, choices about fertility, focus on living a good life through and beyond the menopause, and the occasional woman in the higher echelons of the judiciary. . I will be interested to see if it continues to be used in a world which finally has a small number of women in tribunals of the highest level, women who, things being what they are in the world of the legal profession, are quite likely to fall into the dread category of being ‘past the age of child-bearing’ themselves.

I must say that I am not generally in favour of the use of metaphor in legal discourse, if it can be avoided – even if it doesn’t strike an inappropriate, and icky note, as here, it is often rather pretentious. Judges would be well advised to steer clear of attempts at literary greatness. Clarity is what is wanted. If we must have a metaphor here, however, what would be better? Something to do with flowers, perhaps? Ah, the ladies would like that, wouldn’t they?!

 

GS

18/9/2024

 

Image – a rose! Photo by Walyudin on Unsplash

 

A pregnant pause (in legal proceedings)

This is a snippet on medieval women, pregnancy and the common law which I had not come across at the time I wrote Women in the Medieval Common Law, but which I would add, if there was ever to be a second edition (very likely, I am sure, due to massive global demand …).

This sits somewhere between  the plea of pregnancy as a way of deferring the imposition of capital punishment (which has been explored in a number of studies)[i] and the less-explored area of women’s essoins or legitimate excuses for non-appearance. It is well known that the common law did accept that a capital sentence should not be imposed upon a pregnant woman (at least one whose pregnancy had ‘quickened’), the thinking behind that mainly revolving around the wrongness of making an ‘innocent’ suffer the penalty appropriate only for the guilty. It is also well known that there were a number of ways in which a person could make excuses for not appearing for trial, without negative consequences, but, as I noted in the book (p. 110), the great medieval treatises – Bracton and Fleta in particular –  talk about these entirely from a masculine perspective.[ii] Thus we learn that a man who is sick in bed can be excused, as long as he is not caught up and about and in his trousers, but, even though there are some early indications of essoins ‘de malo puerperi’ or ‘de puerperio’,[iii]  it is relatively rare to see them ‘in the wild’, being used (and succeeding) in practice.

There is, though, an entry on the King’s Bench plea roll for Easter term 1322 which shows the use of labour/childbirth as a reason not to turn up to defend oneself in an appeal (individually-commenced  criminal prosecution). KB 27/248 m.8d (AALT IMG 0193) records the efforts of the sheriff of Essex to bring Philip Clobbe, Roger Pontyn and Alice his wife into court to respond to Clarice, widow of Hugh le Bakere of [Bartlow], who appealed them of the death of her husband. After many failed attempts, Roger  appeared, but it was said that Alice was pregnant. The vocabulary is marginally different to the terms above – she lay in parturiendo – on which more in a moment – and so could not come to court without the risk of fatal consequences.

Alice was not going to be forced to come to court at once to stand trial, but was to be ‘kept safe’ so that she could be tried later. As with the execution deferral plea of pregnancy, this was only a temporary delay, This is not the only situation in which the machinery of the law resulted in non-convicted pregnant women being kept in some degree of confinement – see also the process in ‘civil law’ cases in which a woman alleged that she was pregnant with her deceased husband’s child, and property divisions depended on whether or not there was an heir.[iv] Considerable suspicion of women and their scheming ways was shown in such cases. Here, presumably, the fear was that a heavily pregnant woman would get up from her labour and go on the run from the law.

So – a small extension from the known material (or at least the material known to me) but an interesting one, and something that, I think, confirms the picture of not-exactly-merciful attitudes to pregnant women in the medieval common law. Perhaps it also reinforces the idea of the forms of the common law, with their development through a male paradigm, which might be applied to women in a rough and ready way, did not fit childbearing and pregnancy very well, intellectually at least.

There are a couple of language issues which might be noted. First off, interestingly and/or frustratingly, the use of Latin here obscures a detail which many of us would like clarified: whose death are we talking about – mother, foetus or both? The suggestion that she can’t come sine mortis periculo  – ‘without danger of death’ could, it seems to me, mean any of the above. And it matters, doesn’t it, in that it would be very good to know whether this is an extension backwards in time of the ‘don’t hurt the innocent for the misdeeds of the mother’ or whether it is an analogue of the ‘sick men don’t have to risk their health’ plea. And then there is that slight difference between the language of puerperium and that of parturition. Would it be stretching things to see them as having slightly different focus, linguistically, emphasising the child and the woman respectively? I put it out there, anyway, as something of an indication of the acceptance of complexity, possible dissonance and changing of points of view which medieval people’s minds could accommodate. Let’s be honest, those of us of a somewhat light cast of mind quite enjoy the lack of perspective in medieval visual arts. Intellectually, though, their ability to juggle and switch perspectives is intriguing and impressive.

 

GS

31/8/2024

 

Image – Elizabeth giving birth to John the Baptist, c/o Wikimedia Commons.

 

[i] See p. 143 of the 2021 book for references.

[ii] Bracton IV, pp 71, 91-5, 113, 124, 127, 143; Fleta book 6 c 10.

[iii] Examples of this terminology from the early 13th C: 67 SS p. 342; 84 SS no 3144, 3720, 3889; CRR I, p 383.

[iv] I have a chapter about to appear, dealing with this, amongst other things, so you’ll have to wait. In the meantime, see this later example.