Burn Books and Year Books: Mean Girls in the medieval convent?

A Selden Society volume from several decades ago noted the Year Book treatment of an interesting case, Wakefield v. Prioress of Hampole (1318) and a matching plea roll entry, and commented on its importance in relation to the medieval ‘law of contract’. I have just come across another entry on a plea roll relating to this case, which was not mentioned in the Selden Society volume, which I thought I would note, for those who like such things (massive global audience, I am sure), and have a little recap and reconsideration of this case, which is interesting both in relation to the ‘law of contract’ and also to investigations with a focus on social and gender history. And religious women being, well, mean.[i]

 

The nerdy bit, a.k.a. ‘You can’t join Mathletes, it’s social suicide! [but still a rung above being a medieval legal historian]’[ii]

The Year Book references can be found here, (Seipp 1318.099ss) and the case is included in SS 65, J.P. Collas and T.F.T. Plucknett (eds), Year Books of 12 Edward II (Michaelmas A.D. 1318) (London, 1950), p. 58,  and discussed by Plucknett at p. xlvii. The plea roll reference given is quite correct: (translated into modern format) TNA CP 40/225 m 250, which you can see here, but the case did not finish at that point, and to have a proper match, covering the ground seen in the YB, you would also need this entry, from CP 40/231 m. 221.

 

The basics, a.k.a. ‘Get in loser, we’re going [legal history]ing’

The case was, at its root, a dispute about money. It was said that money (20 marks)  had been paid over by a man called Robert le Botiller to Christine, prioress of Hampole,[iii] in 1294, in relation to Robert’s daughter, Eleanor, who was intended for the cloister. The nuns at the convent in question did not, however, accept her. Not surprisingly, given the way things didn’t work out, There was an attempt to get the money back, but the new prioress resisted this. The prioress won. This may well seem questionable, but the explanation lies in the rules about proof and evidence which prevailed in the medieval ‘old personal actions’, i.e. the available modes of proceeding in the area occupied by modern contract law.

 

The law bit: ‘Stop trying to make debt happen. It’s not going to happen.’

There was some quibbling over whether a debt action of this sort could be brought by a person other than the person who had paid the original sum (Robert had died, and the current claimant was William de Wakefield, the executor of Robert’s executor) , but in the end that was not the thing which killed it: the real problem was that it was brought against somebody other than the original recipient (a new prioress had succeeded). William’s side clearly saw that this might be a difficulty, as they tried to make a connection via benefit to the convent as a whole, as a result of the money handed over. This didn’t work, though – in this case, a ‘debt on a contract’ case without a specialty (deed), a defendant was allowed to proceed by ‘wager of law’ or compurgation (swearing that the money was not owed and bringing along 11 oath-helpers to support credibility). This could not work (according to its own logic) for somebody other than the original contracting party – only the former prioress herself would have been able to wage her law and make statements about whether or not the money was owed. A successor could not do so.

One might think that the appropriate response to that would have been ‘well, let’s find another mode of proof then …’, but no – that’s not how these thngs worked. Forms of action came with a particular set of procedures attached, and in this sort of action, the defendant had to be capable of waging his or her law. This meant that William could not get as far as an inquiry about the terms of the deal, whether the money was in fact paid over, or what was supposed to happen if the other side of the agreement was not fulfilled. In the world of of medieval common law litigation, he was indeed … a loser.

 

The human bit: ‘On Wednesdays, we wear habits’

Well, what is better than a story about medieval nuns? Obviously one about medieval nuns being less than obvious embodiments of Christian charity. Here, we appear to see them rejecting a candidate for nun-hood, and then finding a reason not to pay back the money intended to help that happen. This may be a false picture of course – Eleanor may have been ‘evil [taking] a human form’, or she may have been unwilling to join the convent – there was no chance for the facts alleged by the claimant to be interrogated. Whatever the truth behind this allegation of rejection, however, it is certainly not implausible that a prioress, with the aid of her legal advisers, would stand by her strict legal rights. The plea rolls are full of actions in which heads of religious houses seek to use the law to secure their house’s economic position (and, as much work on nunneries has shown, this position was not infrequently rather precarious). One thing which occurs to me is that the changing of heads of house might be rather useful, as a way of making actions like that of William incapable of success. Surely medieval religious would never be so sneaky as to do this deliberately?

Shut Up!

GS

24/7/2021

 

(Image – as you can gather, the convent isn’t visible above ground – there are remains, but it’s a private site and I couldn’t find a free image …thus this unevocative view ,,,]

 

 

[i] I am sure I don’t have to say this, but, you know, classic teen film, 2004. Regina George, Plastics, L. Lohan before it all went wrong …

[ii] Latter clause inexplicably cut from the line.

[iii] Hampole was a Cistercian priory, in Yorkshire, see this outline.

Blood and impurity: a Victorian ‘bastardy’ case

… And the ‘bastardy’ work continues to bring up unexpected things …

Just now, Hooper’s Law of Illegitimacy led me to this insight into the sex life, or at least views of sexual behaviour, of the Victorian judge …

The case is Bosvile v Attorney General (1887) 12 P.D. 177, a case involving a dispute as to whether a child, Arthur, was or was not to be held the legitimate son of Bosvile. Mr and Mrs Bosvile’s marriage does not seem to have been all a respectable Victorian might have wished – I am afraid there was a ‘paramour’ in the picture. While there was a presumption that a husband was the father of his wife’s child even if she did have a paramour, this was, by this point, very much open to rebuttal, as long as there was what a jury considered very strong evidence that H was not the father. Naturally, this state of affairs (!) brought in the possibility of some fairly intimate revelations (as well as showing differences of opinion, and doubts, about possible periods of gestation).

In this case, clearly there had been evidence from a servant – a lady’s maid – about the timing of Mrs Bosvile’s periods. The period of gestation in the case was just about possible, according to contemporary views, but it could not be stretched back any further than the point at which Mrs Bosvile had left H. The lady’s maid’s evidence was that at that point, Mrs Bosvile was menstruating. This may have been used in two distinct ways. First, it seems to have been used in relation to likelihood of conception at that point – so, if H and W did have sex, conception would be unlikely. That’s one thing. But  there is also a strong suggestion that husbands and wives would be unlikely to have sex if W had her period. Butt J (let’s be mature and not make any jokes about the name …) was pretty sure on that point (at 183). No doubt Victorian judges would find the idea a little messy and unpleasant, but, given the general strength of both presumptions of legitimacy, it is interesting that a bit of blood would be thought to tell against it. The tide was definitely on the turn in relation to these cases, and the evidence acceptable to rebut a presumption. A nice little counterfactual question is: what would have happened, if there had not been a breakthrough in terms of blood testing, and then much later DNA testing, for paternity, in the 20th C?

GS

21/7/2021

Image – Photo by Joel Filipe on Unsplash

Bachelor, Doctor, Lawyer: Wilfrid Hooper LL.D. (solicitor)

In my continuing researches into aspects of ‘bastardy’ law, I recently had cause to read Wilfrid Hooper LLD (solicitor), The Law of Illegitimacy: a treatise on the law affecting persons of illegitimate birth, with the rules of evidence in proof of legitimacy and illegitimacy, and an historical account of the bastard in mediaeval law (London: Sweet & Maxwell, 1911).[1]. The name was vaguely familiar to me, as it had come up in earlier work on women and law.[2] and I thought it would be interesting to do a little digging into his story. We hear so much about the ‘great men’ of late-19th C/ early 20th C legal history: wouldn’t it be good to know something more about the mostly-forgotten figures of this era, the ‘lesser’, local, legal historians? Rhetorical question – my blog, my rules, so yes, it would! What I have found, in my morning of investigation, is, I think, interesting in and of itself, and also suggests some areas and themes for further thought.

Who was Wilfrid Hooper?[3]

He was born in Reigate, in 1880 or 1881, the youngest child of ‘a well known local family’ – that of Mr Thomas Rowland Hooper (architect) and Mrs Elizabeth Hooper (née Perren). This relatively privileged background gave him the chance of more education than most of his contemporaries would have had – and until he was 11, he was a pupil at Reigate Grammar School; then he went to boarding school, at Oatenham School. He does not seem to have gone to university prior to embarking on a legal career – so he is not in the Maitland class of privilege, clearly – but was articled to some London solicitors, ‘the brothers Benson’, a firm which became ‘Withers, Benson, Birkett and Davies’. While working his way into legal practice, he also worked at acquiring some university qualifications, as an external, private, student, and achieved his LL.B. Hons in 1902. He was admitted to full-blown legal practice in 1903, when he was entered on the roll of solicitors. He did time in the office of Harvey Ford, in London, before, in 1906, setting up his own practice in Reigate, in a room in his father’s offices in Market Hall. He took on a pupil, H.S. Holt, who eventually, in 1937, became his partner. Hooper only gave up practice in July 1950. Newspapers show that his practice included real property as well as ‘crime’ and ‘tort’ work.[4]

 

His entry into the legal profession and establishment of a practice did not indicate the end of his academic ambition, however, because, in 1910, he entered for and was awarded his  LL.D. at the University of London – based on his work on illegitimacy which became the book I have mentioned. He continued to write on legal and historical subjects for much of the rest of his life. He was a ‘big cheese’ in the Surrey Archaeological Society, contributing to its transactions and serving from 1937-47 as Hon Sec. His ‘local history’ works included a Story of Reigate through the Ages, and he was apparently working on a history of Dorking at his death. He also wrote about less Surrey-based matters, including courts, sumptuary laws, [5]the law on women, and seems to have an interest in the (lawyer and) poet, Cowper.[6]

He also had other interests, legal (SE Surrey Law Society. Poor Persons Committee 1923 – 50), political (borough councillor for SE Reigate ward 1921-33)[7] and miscellaneous (school governor for Reigate Grammar School, for example). (The obituary also notes – without detail – that he served in the  1914-18 war).

The personal life angle is rather intriguing – he was a bachelor until he made a late marriage – only a month to the day before he died. He died on Saturday 2nd September 1950, aged 69. This was said to have been due to complications caused by an accident in January 1950: he had fallen in his office, and banged  his head on an iron safe, and another in May, when he fell in the street. He seems to have gone into a nursing home after that. Wilfrid had ‘day release’ from the nursing home to get married, on 2nd August 1950, at the Congregational Church in Reigate, to the widow of a solicitor, Mrs LL Nightingale, widow of Mr Thomas Nightingale.[8] He returned to the nursing home until 24th August, and then was discharged – presumably into the care of his new wife.[9]

 

Thoughts and themes

It is interesting to consider what all this tells us about ‘the middling sort’ of legal historian, the ‘amateur’, (who also feels qualified to opine on a variety of matters from architecture to literature, agriculture to economics) the ‘local’ expert.[10]

Hooper clearly had some ambition in the academic line – or was keen to be recognised as a skilled (legal) historian. He made the effort to acquire an LL.D., and one presumes that he did not object to being called ‘Dr Hooper’ – this is certainly the way he is described in most newspaper articles (though the Daily Mail demotes him to ‘Mr’).[11] He does not seem to have been an obvious academic superstar (or, perhaps was not sufficiently silver-spoon-showy) however, achieving a ‘second division’ result in his LL.B.[12] There are also signs that he was not quite in the mainstream of historical study – e.g. he wrote an article debunking the existence of a ‘pilgrim’s way’ between Winchester and Canterbury in the medieval period, unaware that C.G. Crump at the PRO had recently done exactly the same thing.[13]

I suppose we are seeing the point at which history, law and legal history draw apart, and specialised disciplines are created. While Hooper still felt that he had something to offer in all departments, from an academic and practical perspective, he probably outlived the days when it was realistic to combine so many different enthusiasms and be taken seriously in them (without rather higher social standing than that of a Surrey solicitor).

GS

21/7/2021

Image – the man himself.

[1] London Daily News, Tuesday 4th  July, 1911, p.3. The price is given as 12s 6d and I suspect it was less of a hit than Beatrix Potter, Peter Rabbit’s Painting Book, which is listed above in the ‘Juvenile’ section, at 1s.

[2] He wrote The Englishwoman’s Legal Guide (London: David Dutt, 1913).

[3] My main source for the basic facts is the obituary report in Surrey Mirror, Friday 08 September 1950, p. 5. Clearly this may be rose-tinted, but it ought to be relatively reliable in this case, I think.

[4] Times 20/6/1933 p. 30. Surrey Mirror 8/6/1915 p. 2.

[5] Wilfrid Hooper. “The Tudor Sumptuary Laws.” English Historical Review, vol. 30, no. 119, 1915, pp. 433–449.

[6] See, e.g. Times 4/11/1931, p. 11,

[7] His politicking deserves a separate post, I think. There is some great material from one of his victories, and the very British ‘burn’ by his defeated rival…

[8] Elsewhere she is called Janet, mind you: Surrey Mirror 8/9/1950, p. 1.

[9] The Daily Mail – on-brand as ever – says only that he had substantial assets: £44, 944 DM 30/12/1950, p.5.

[10] He gives his views on architecture in Banbury Guardian 1/8/1912, p.3.

[11] 30/12/1950, p.5.

[12] Times 4/11/1902, p. 8.

[13] Times 11/11/1936, p. 11; Observer 29/11/1936 p. 13.

Discerning paternity: James Percy and his moon-mark

And today in bastardy studies …

I have been mostly looking at an odd little area: the use of evidence of resemblance in assigning paternity of ‘bastards’. This has taken me down an another interesting little side-road, to the story of a trunk-maker called James Percy or Piercy (1619-c. 1690), who claimed to be related to the powerful Percy family (earls of Northumberland, wardens of the March, general top-dogs in the north of England over several centuries ….), and, indeed, to be entitled to inherit the earldom This will not be new to Early Modernists, or peerage fanciers, I dare say, and JP even made it into the ODNB, but I had not come across the story before.

James was not a bastard, but he is relevant to investigations of paternity more generally, in that part of the case was a physical resemblance, to wit, … a mole in the shape of a half-moon, which was the emblem of the earls of Northumberland:

‘God hath been pleased to make a true decision himself, which may be a president, for he sent the claimant from his mother’s womb with a crescent into the world, which is God’s ensign of truth, and the very badge belonging to the Percies, earls of Northumberland.’ (The case of James Percy, the true heir male and claimant to the earldom of Northumberland (London, 1680) p.7)

This mole/birthmark seems not to have made it into the ODNB’s telling of the tale, which outlines James’s relatively humble upbringing and the fate of his claim to the earldom, launched in 1671, the previous (11th) earl having recently died, without a living son (his wife having given birth to a stillborn posthumous child in 1670/71). Not hugely surprisingly, the dowager countess, mother of the 11th earl, was not having it. She went hard on behalf of Lady Elizabeth Percy, the more expected contender, and used all sorts of procedural and practical tactics to make it hard for James to make out a case. There were proceedings in the House of Lords, petitions to the king and other recipients. James’s story was not constant. Things dragged on for about 20 years, with James publishing his argument in an attenpt to gain support for the claim, and the case was only finally kicked out by the HL in 1689, with more than a little cruelty (see the ODNB entry for the ‘public humiliation’ which was ordered for poor old James, but probably not carried out).

So – an interesting story, but one which has been somewhat twisted in its reception in some legal sources. My route into the story was via 19th and 20th C reports of bastardy/exhibition of child cases from US jurisdictions, which were concerned with whether or not it was appropriate to give any weight to resemblance between a child and the man alleged to be its father. Percy’s story reaches the American cases via citation to a slightly throw-away footnote in Howell’s State Trials 12, p. 1199,  in the report of another case entirely. Some of the US reports make fairly expansive claims about what the law was, or had been, in England, and the case of James Percy is cited as uncomplicatedly showing that evidence of resemblance as an indicator of paternity was perfectly fine, and that this applied to bastardy cases (despite the fact that James was claiming not to be a bastard – otherwise of course he could not feasibly have claimed to be earl of Northumberland, entitiled types being rather strict on this point). I have more to do on resemblance evidence in paternity cases, but am not convinced that the crescent moon mole in Percy could really support the conclusions which seem to have been drawn from it.

GS

19/7/2021

 

Image – a crescent! c/o Wikimedia Commons. Really wanted to find a proper Percy moon and shackle, but best I can do is this slightly banana-esque number. Odd shape for a mole, isn’t it?

 

A fragment on special pleading

Excited at this new archival discovery of doggerel (In the archive of my head, that is …). And if Bracton can include little stories about jesters and the like, and YBs and Plea Rolls can include pictures and little rhymes, I don’t see why not …

 

There are several Is in ‘Appallingly Bad and Selfish Instincts When Pinged to Self Isolate’

 

This feckless and reckless pretender,

an odious snake oil vendor

who’s certain that rules,

are for gullible fools

sells as ‘freedom’  his sordid surrender.

 

(Sometimes only a limerick will do … I know, it’s not exactly Extinction Rebellion …)

Photo by CDC on Unsplash

‘Falling into error’: when crime meets constructive trusts

WARNING: It’s mostly a LAND LAW sort of post. Legal historians can look away now. … Normal pootling around in the plea rolls will resume soon…

I am shortly going to be signing off from my Land Law duties for a year devoted to Legal History research, but Parker v. FCA [2021] EWCA Crim 956, to which the marvels of Twitter alerted me recently, deserves a quick note.

It is an appeal relating to very dodgy financial and property dealings, which ends up at the confluence between crime and property law, with enough references to different sorts of constructive and resulting trusts to satisfy the deepest devotion to doctrinal principles. If that floats your boat, read the case to get all of the details (spoiler – after some detours round the houses, the constructive trust point is actually straightforward).

I suppose we do need to locate this a little more clearly in its legal context: it concerns a convicted ‘fraudster’ who had run dubious financial schemes, persuading people, including Parker, to hand over money to him, which they lost. In such cases, there are processes to attempt to recover the ‘proceeds of crime’ (Proceeds of Crime Act 2002) so that, as well as facing prison time, the offender cannot profit from his crime. Often this recovery will be complicated in terms of finding assets, but not necessarily legally complex. It does get more difficult if the money has been used to purchase real property, however, as in this case. Essentially, the case turned on whether there was a chance that Parker, one of the fraudster’s victims, had a chance of establishing that he had an interest in a particular property, as a result of the dealings between himself and the fraudster. This was ruled out, but the Court of Appeal found that to have been wrong. Parker could have had a ‘common intention constructive trust’, as featured in every Land Law student’s favourite cases, Stack v Dowden and Jones v. Kernott. Clearly this principle was not restricted to domestic contexts.

There are two connected things which struck me as interesting here: the fact that there appears to have been a lack of familiarity with the rules of property law in certain quarters, in earlier stages, and the way in which the CA dealt with what certainly appears to have been a lack of full understanding  of principles of trusts. This business of grabbing assets of fraudsters is tacked on to criminal proceedings, but it can easily – as here – demand a detour into property law. Then there is the matter of how the CA ought to respond when there has been an apparent error in application of the law, by a judge in a lower court, as seems to be the case here. The judgment in this case is certainly at the mild end of correction.

Lady Justice Andrews, at 10,  was at pains to say a comment about the judge’s errors were ‘not intended as a criticism of the experienced judge who heard this matter’, because one could not expect ‘expertise in the law of trusts’ from criminal judges. The mild expression of ‘falling into error’ is chosen – suggesting a bit of a fault-minimising gravitational pull. Nevertheless, the impression given here is that the mistakes were pretty basic – including dealing with possible property interests in an order which was not logical [65], not providing proper reasons to dismiss Parker’s claim of an equitable interest, not giving the principles on which the decision was made [68], despite being referred to the relevant trusts cases. The CA judgment sums up the position succinctly – it is neither new nor particularly difficult:

‘83. The issue at the heart of this appeal can be identified as follows: if A gives B money for the express purpose of using it only to purchase an identified property as an investment, A and B agree that A will have an interest in the property pro rata to his financial contribution, and the money is then used to buy the property, does A have a beneficial interest in the property? The answer is yes. It would be surprising if it were otherwise.’

(In addition, an argument was run at one point which ignored one of the basic pieces of legislation on property law – the Law of Property Act s. 53(2).[72]. I would not be impressed by that sort of muddle in a Land Law paper …)

Ideally, one would have hoped that lawyers, and judges, would keep abreast of the core areas of law, even if they do specialise in one particular aspect. Certainly, the fact that they will all have passed exams in property subjects at some stage ought at least to make them aware of the broad outlines of informal acquisition of property interests, so that they would be able to consult someone with more expertise, or look up the relevant chapters in a textbook. A little humility in recognising the limits to one’s own expertise does not seem too much to ask. Land Law/Trusts refresher courses for criminal lawyers, anyone?

 

GS

19/7/2021

Image: a gent falling – whether or not ‘into error’ … Photo by Sammy Williams on Unsplash

Names and associations: when ‘great men’ turn out not to be so great

The latest New Law Journal includes a story with some interest for legal historians, discussing the re-naming of a set of barristers’ chambers – from ‘Hardwicke Chambers’ (after Philip Yorke, Lord Hardwicke, 1690-1764) to ‘Gatehouse Chambers’, with the heading ‘Rebranding the past―when historical ideals fall short of modern values’.

In the aftermath of the Black Lives Matter protests and (in a Bristol context) the toppling of the Colston statue, no doubt many professions and businesses are considering their overt and more subtle links with the offences of the past. One of the things which strikes me about much of the discussion around this issue of commemoration is the fact that it often falls into a binary – ‘the past’ and ‘modern times’. As many good studies of the Colston issue (not to mention US Confederate statues) have shown, however, there is often a rather more complex timeline than that. with an important stage between the life of the now-controversial character and the present day, an era in which there was a move to highlight, or make use of, a figure of the past. Thus, the Colston statue was put up not in the old slaver’s own day, but in the heyday of Victorian imperialism. In a sense, naming modern legal institutions after ‘great legal men’ of the past has something in common with this tendency. The NLJ article more or less makes this point. The attempt to dredge up some historical figure to associate with one’s present day enterprise is both unimaginative and questionable. There is always the chance that the historical figure will turn out to have said or done something dubious, and there is also the issue of whether it is fair to borrow the image of people from the past without their approval – see also the feeble nonsense of ‘Nightingale Hospitals’ and ‘Nightingale Courts’ (at one point it was suggested that these might be called ‘Blackstoen Courts’ too …). Apart from anything else, it all tends to reinforce the ‘great men and the occasional carefully selected great woman’ view of history. Let’s just not, eh?

Though the article was not what I feared, on seeing the title, (was steeling myself for something along the lines of ‘political woke virtue correctness gone mad signalling TM Daily Mail’)  it does have its faults. It is irksome to see a certain lack of concern about the contemporary correctness of the objectionable Talbot-Yorke opinion, and there are some inappropriate choices of language here – it would be wise to avoid ‘slaves’ and ‘slavery’, which  are now rapidly falling into disuse, amongst people who see their effect in rendering matter-of fact the subjugation of certain sections of humanity. In addition,  in the context of the enslavement of Africans, discussing ‘branding’ – the marking of livestock, or people, as chattels, by the imposition of hot metal, is, surely, well beyond infelicitous.

GS

17/7/2021

Image: the ‘great man’ himself, c/o Wikimedia Commons.

Byways and rabbit holes in ‘bastardy’ research

Today, I have mostly been creating a very interesting internet search history by looking up variations of the word ‘bastard’ in various legal and historical databases. I have a legitimate (!) reason to be doing this , as I prepare a paper on such things for the SLS conference, but it does still feel a bit like being back at school and looking up rude words in the big German dictionary in preparation for an (eventful) exchange trip to Hamburg.

Anyway, all of this searching revealed some interesting uses of ‘bastard’ – the expected ones (status, insult) plus some more metaphorical, with various products and concepts described this way (not always with the same implications). This will all be useful stuff for the SLS paper. But I spent a happy few minutes going off down another path, when a ‘bastard’ reference brought me back to questions of sex and gender, and the way in which they were understood in different historical and cultural contexts. This is something I touched on in c. 1 of Women in the Medieval Common Law, but I had more notes on it than I could use in the book, and it struck me that there are aspects of the area which I’d like to revisit.

The first step from ‘bastard’ searching to issues of sex/gender was coming across a case of mistake as to whether a ‘bastard’ child was male or female, in an article in the excellent Welsh Newspaper Archive. It caught my attention because of its Bristol context (I am very aware that, though I have lived here for ages, I have not really made an effort to write about it, so it is always good to find something with a local angle). The case was an attempt by the mother of a child to enforce maintenance payments for the child by the man she claimed was the father (this is all long before DNA tests or even blood tests, so in a world of extreme difficulty in pinpointing paternity). It took place in Bristol, before the local magistrates, in 1869. The Western Mail of 10th June, 1869 notes that there had been an ‘EXTRAORDINARY MISTAKE IN THE SEX OF A CHILD’. The defendant, Daniel Williams was charged with failure to pay sums due under a ‘bastardy order’ (i.e. an order that the man said to be the father of a child should pay towards its maintenance). The mother in the case was the splendidly named ‘Jane Vulture’. On the defendant’s behalf, it was argued that the order in question had specified that he had to pay to support a male child, born on 9th November, 1866, but the child now brought for inspection was female. Ms Vulture may, perhaps not have been able to read, since the story seems to have been that she signed statements about the child which were read out to her – and now claimed that she had never said it was a male, and that that must have been a mistake by the clerk. Sadly for her, this did not sway the court, and the case against Williams was dismissed. Who knows the rights and wrongs of it – was this a different Baby Vulture from the one initially the subject of an order, or did Williams take advantage of a clerical error to weasel out of his responsibilities? The case was not, however, quite what I had thought on seeing the headline. Given current controversies about the validity of biological sex and gender identity, I jumped to the conclusion that this was a case of ‘intersex’ or something similar. Wrong, I think. There is no suggestion of the possibility of doubt here.

And where did that lead me next? Well, I did wonder what contemporary ideas were about this now-contested borderline, so I had a little search for that odd old term ‘hermaphrodite’. That came up a fair bit in my medieval investigations, and I had already had glimpses of its later uses, so it was interesting to probe a bit more in easily-accessible online archives of newspapers from the 19th and early 20th Cs. This turned up two definite but unequally sized strands of material – a few cases of what do look like possible cases of ‘intersex’, but far more metaphorical uses of ‘hermaphrodite’.

On the ‘factual’ side, there are newspaper reports which seem remarkably like medieval/early modern ‘prodigy/monstrous birth’ stories. Note, for example, tales of ‘hermaphrodite’ babies in Llanfynydd in 1851 and  Cardiff in 1906. There are certainly things to consider here, in relation to tone of report, and the apparent response of parents and medics. It is the more metaphorical usage of ‘hermaphrodite’ which particularly interests me, however. This comes up in relation to transgression of gender norms – such as a female cyclist wearing some form of trousers, in a ‘funny’ article from 1896. It is also used in relation to linguistic gender, in relation to bardic expression, in articles from the Welsh-language press, e.g. in 1851. Interestingly, it also crops up in areas with little to do with gender, even in its linguistic form, simply denoting an idea of mixture, or odd/uncomfortable/inappropriate mixture. Thus we have ‘moral hemaphrodisim’, ‘political hermaphroditism’ and even nautical and military hermaphroditism (mixed types of rigging and mixed army-navy organisation respectively). In many ways, there is an overlap with the metaphorical use of ‘bastard’ for mixed concepts, which is coming up in the SLS paper I am writing (‘bastard feudalism’, ‘bastardy’ in relation to the Scots ‘not proven’ verdict, amongst other usages). I am yet to work out when it would have been appropriate to use ‘hermaphrodite’ and when ‘bastard’ – presumably the latter is a little more critical than the former, though both are somewhat critical. More work to do!

 

GS

13/7/2021

Image – a rather gratuitous bunny. Yes I did choose the title to enable me to use it …

Photo by Quinn Secker on Unsplash

 

“Bastard Pauper Lunatics” and Victorian establishment values

Slightly listlessly looking for a bit of inspiration for SLS paper on bastardy etc., I was drawn into references in 19th C numbers of the British Medical Journal. This really is ‘foreign country’ territory – despite not really being so very long ago.

The page I alighted upon was one which promised something with a title making up a  full bingo-row of cold-hearted dismissive Victorian vocabulary: ‘Bastard Pauper Lunatics’. This (it was a letter) was indeed chilling – eugenic theory in full throated cry, despite the ‘civilised’ nature of expression, medium and audience. It was part of what was said to be a debate about what to do with the apparently frightening numbers of young pregnant ‘imbeciles’ turning up at workhouses. Solutions seem to have been at least as much concerned with condemnation and cost as with help and protection.

Just this one page (The British Medical Journal, Vol. 2, No. 1868 (Oct. 17, 1896), p. 1153 ) shows a lot about middle and upper class Victorian attitudes. On the one hand we have thinly veiled loathing for those in poverty or with mental incapacities, and also racism (including two-for-the-price-of one gratuitous racism): on sanitation in Egypt, it is stated as fact that ‘Sanitation in Egypt, as in India, has to contend with an ignorant, apathetic, and obstructive population …’ On the other hand, there is sympathy – rather gushing sympathy – for a recently deceased Archbishop of Canterbury and headmaster of Wellington College (an socially exclusionary  school) and an ailing prominent surgeon.

I can’t help but remember that this comes from the same world as the early Selden Society, and the ‘fathering’ (observe scare quotes – don’t like this usage at all) of English Legal History. It really seems like time to give some serious thought to the ways in which the discipline may have been influenced by its early environment. I know I am not alone in thinking this. Possibly some of that might make its way into the paper.

GS

10.7.2021

Plinth photo

Just a quick posting of the current state of the Colston plinth, a year on from the dramatic toppling. I am beginning to get used to it, as I pass it on my regular ‘obey the bossy watch’ circuit. Those not-at-all-mammalian ‘dolphins’ are incredibly ugly, mind you …

GS

10/7/2021