Childish tricks and chastisement: a few hints from a fourteenth century trespass case

My own childhood was in the dwindling twilight of the age of corporal punishment: officially banned in England and Wales, it was nevertheless alive in the memory of schools. There was a thin, whippy, cane in the office of one headteacher – a slightly threatening relic – and there was one teacher in secondary school who, entirely illegally, but without anyone ever daring to report him, used an ancient dap (gymshoe!) on the backsides of offenders (boys only, in front of the class, and not in the trousers-down private school fashion: some sort of attenuated performance of former rituals, I suppose). My father, though, certainly had tales of school canings, and, for his generation and many before it, that was a normal part of educational technique. I was smacked as a child, for some of the worst of my many misdemeanours, and cartoon heroes like Dennis the Menace and Minnie the Minx certainly took their share of parental slipperings. All of this now seems very foreign indeed, but those just-about-retrievable memories help a little in thinking about historical cases like one I came across yesterday.

 

The case is a trespass case from the King’s Bench roll of Easter 1325. It is not in the educational context, though it seems to involve a young person of what we would consider school age – technically, I suppose, it is an ‘employment beating’ case rather than a ‘scholastic beating’ case. It is not earth-shatteringly different or new, but there are some interesting little snippets of information as to attitudes and assessment of behaviour in the area of reasonable chastisement and correction of children. It felt worthy of a quick note.

 

The marginal note tells us that the case is from Hertfordshire. It involved a complaint by Thomas, son of Edmund de Mareford, against William de Salesbury, parson of the church of Wheathampstead, and another man, William Rayemund. Thomas alleged that the two Williams, along with one other man, had assaulted him. They had, he said, in the usual, stereotyped formula, done this with force and arms and against the king’s peace: they had beaten and wounded him, and mistreated him, and done him other enormities, to his great damage (he claimed this amounted to £60). The apparent date assigned to the assault was 31st January, 1323, though there might be a slip here. In any case, the Williams did not make a thing of that. Instead, they denied that they had done anything wrong or against the king’s peace. Their version of events was that, on the day in question, Thomas was a garcio (groom or servant) of William de Salesbury, and was ‘within age’. (Quite what age this means is a bit vague, isn’t it, as there was not one ‘age of majority’ at this point). The Williams said that Thomas had been naughty, in some childish way, and had been guilty of some childish prank (quandam transgressionem puerilem).  (Again, it would be good to know more – I am still stuck in Beano mode and am thinking about buckets of water on doors or sneezing powder…). Because of this naughtiness, William de Salesbury had beaten him as a punishment (causa castigacionis) with a pair of small rods or sticks (virgula). It had not been a trespass, and was not against the king’s peace.

 

Thomas, however, stuck to his story. Both sides agreed to put the matter to a jury, which was duly summoned, deliberated, and came down on Thomas’s side. Thomas was to recover damages – not quite what he had claimed, but still a fair bit: £20. (How nice to have an actual outcome!)

 

There is a bit more about moves to get the money paid, and fines to the King, but  my main interests here are (1) what is said about the beating and (2) the pretty large award which is made by the jury.

 

The excuse

The excuse which the Williams tried to use obviously didn’t work, but, equally obviously, they thought it was ‘a runner’ – something which sounded plausible and which might get them off the hook. What does their attempted argument tell us? Well … it tells us that a beating might be regarded as reasonable chastisement and not contrary to the king’s peace, when and if:

  • the person beaten was under age
  • the person beaten was in the employ of the defendant
  • the person who was beaten had done something wrong – even a ‘childish transgression’
  • the beating was done with particular instruments regarded as reasonable/restrained (here, we have ‘a pair of small rods’ – whether that is a particular, specialised, instrument for spanking, or just some useful things which were to hand, I am not sure: further investigation needed here!)

 

 

The award

I am collecting figures for various sorts of physical injury damages, but haven’t got enough material to say anything much as to comparison (and sadly, of course, the record of Thomas’s allegation doesn’t specify quite what injuries were done to him).  Using the currency calculator from the National Archives website, however, tells me that Thomas could probably have bought 44-54 cows or 23-28 horses for this amount, so not bad at all, presuming he was not injured in some permanent way.

 

Thoughts

I am not sure that the case is going to be hugely useful to my current project on mayhem – I found it when looking for mayhem cases, but it is insufficiently detailed in terms of the injury suffered, to be helpful in understanding the borderline between trespass and mayhem/wounding. It is, though,  interesting to see small hints about what were perceived to be the boundaries of legitimate corporal punishment of children. They are only hints – as there is frustrating vagueness about a few key points – but still, it may contribute to wider understanding, when put together with and compared with other material about parental beatings, teacher beatings and adult employment-beatings.

I do find myself cheering on young Thomas here  and hoping that things improved for him after this case.

 

GS

28/11/2021

 

 

Image: St Helen’s Church in Wheathampstead, Herts. I have never been to Wheathampstead but I am sure it is a little piece of home counties paradise (How poorly-travelled I am – like the great and problematic Charlene, I have I never (knowingly) ‘Been to Me’, but nor have I been to Paradise … nor Wheathampstead …)

Dragon looking a bit rough

This is a bit of fluff, but felt moved to do a quick post on this fabulous heraldic picture from the first edition of Fitzherbert’s Graunde Abridgement (it’s c. 1516) without the stress of Twitter (sometimes feels a bit ‘here I am, looking for acceptance … but what if nobody loves me?’, doesn’t it? Oh, just me then …), so here we are. Just look at that dragon – I do like a dragon, and am always fascinated to see the different ‘takes’ artists had on them. This one is looking very rough and scaly indeed. Clearly does not have a daily scale-care routine. I am trying to think what sort of a reptile it looks like – perhaps something like a tuatara? Though of course that would not have been something an artist in England in this period would have seen.

Also, if nobody has made an adult colouring book of these things, they really should. I would buy it.

GS

21/11/2021

Quamdiu Se Bene Gesserit, or, a legal historian’s view of Dune

Quamdiu Se Bene Gesserit, or, a legal historian’s view of Dune

There is a new film based on Frank Herbert’s Dune in cinemas at the moment. I am still not entirely happy with the idea of ‘sharing moisture’ with a room full of strangers, given the continued pandemic, but I dare say I will see it one day on DVD or streamed. In the meantime I thought I would re-read the books (well, re-read the first one, read the rest – I don’t think I got beyond vol. 1 as a teenager) and see what they say (explicitly and implicitly) about the legal system(s) in the Duniverse. When constructing a whole world, or set of worlds, like this, an author inevitably draws on contemporary ideas about law. They almost always also bring in (contemporary ideas about) legal history, when setting up certain sorts of ‘alien’ civilisation. I am sure there is a way I could use all of this in LH teaching, but, for now, let’s just get down a few thoughts….

[And note – book I has a glossary and Appendices – feels like home!]

Dune is set in a far-future in which there are multiple planets with human(oid) civilisation. After all sorts of war and chaos, things have come to an uneasy setllement. In the first book, this is more ‘uneasy’ than ‘settled’, but there is definitely an idea of what ought to be going on, and a lot of it is explained in terms which will not be familiar to lawyers and legal historians. The main systems of law/norms which we see are (i) what I would call the ‘general law’ – overarching rules applying to the Imperium and its constituent parts; and (ii) the specific laws/customs of the Fremen of Arrakis, a.k.a. Dune, a desert-living people, the conception of whom owes much to a 1960s US conception of Arab peoples, viewed through the lens of the film Lawrence of Arabia (1962).

The basic constitutional set-up is that there is an emperor, and a set of hereditary rulers of planets, or planetary systems, owing allegiance to the emperor (leaders of the Great Houses and the Minor Houses). We don’t hear much about the lower orders – though there are definitely slaves.[i]

An aspect of the system-building in Dune that I like is the mixing of ideas of hereditary rule with those of corporate law and structure. The relationship between the emperor and the Great Houses is complicated by the presence of a corporate vehicle, CHOAM. Shares, and corporate roles, in this huge development company go along with position in the hereditary structure. I suppose what appeals to me about this is the idea that the crown and hereditary power organisational model is not some sort of high-minded ‘noble’ thing, above the fray capitalist structures: it is all about the money, and employs whatever legal vehicles maximise profits for a limited group of people.

 

‘Law is the ultimate science’[ii]

The ‘basic law’ governing relationships here is the Great Convention (GC). 596 – GC univesal truce enforced under power balance maintained by Guild, Gt Houses and Imperium. It is not quite clear how detailed this is: is this a ‘codified’ legal world’ – should I be thinking of somethng the length of Magna Carta or something more like the Code Napoléon?

In terms of content, the GC includes rules, each beginning ‘‘the forms must be obeyed’.[iii]

  • Chief rule – no atomic weapons to be used against a human target. The penalty is planetary obliteration.[iv] Some weapons appear to be on the edge of legality under this rule, particularly the ‘stone-burner’ (radioactive, deadly, blinding …).[v]
  • Dictum familia – setting up the rules on non-prohibited assassination. Because informal treachery would be bad …
  • rules about kanly (feud or vendetta). There are strict rules. The process involves swearing kanly, and then being entitled to kill all agents of the House against which it has been sworn.[vi]

The general thrust, then, seems to be an agreement which does not aspire to genuine peace, but tries to keep a lid on excessive disorder by setting a few rules. The kanly idea has certain resonances with ideas about the early medieval period, but with no real central effort to channel people’s grievances towards compensation rather than vengeance.

Another source of law is legislation by the Landsraad, which seems to be a sort of parliament.[vii] There are also imperial Orders in Council.[viii]  And public law fans everywhere will be thrilled to learn that there is some rumbling about wanting a proper written constitution.[ix] Once he is emperor, Paul is not very keen on the idea of a constitution (which would of course, tie his hands somewhat).

‘Constitutions become the ultimate tyranny’[x]

Just begging for a ‘discuss’, isn’t it?  Jessica and Alia agonise over the law/religion/government relationship.[xi] Paul, however, is not a great fan of the law – a bit of Marxism, or some such going on here?

‘What is law? Control? … Law – our highest ideal and our basest nature/ Don’t look too closely at the law. Do and you’ll find the rationalized interpretations, the legal casuistry, the precedents of convenience. You’ll find the serenity which is just another word for death’.[xii]

For the legal historians, we have the possibility of investigating the role of custom, in particular with regard to the Fremen, and pondering again the distinction between law and custom … There is even the odd bit of jurisprudence – an undead philosopher trashes natural law and has a go at classic seminar question ‘What is justice?’.[xiii]

Other aspects of organisation are not explicitly tied to the GC or particular legislation, but seem to have the status of law. Family law and succession are clearly important. There is an idea of monogamous marriage, but also other forms of relationship amongst the ruling classes. Baron Harkonnen seems to favour young male partners, and nobody seems to be bothered. Powerful men may have a concubine, and this is a relatively respectable position. Jessica is described as the concubine, or formal concubine, or bound concubine  of Duke Leto (who is unmarried, for political reasons).  As concubine, Jessica has a degree of power and respect, and her son, Paul, is regarded as legal heir to the Dukedom, and then rightful Duke, and Alia Leto’s legal daughter.[xiv] Still, it is a bit of an unsatisfactory position, even if Leto charmingly tells her that she is actually better off because he hasn’t married her (it seems to be his choice …) as that means she doesn’t have to eat formally with him every night.[xv] The pattern is repeated in the next generation: Paul is ‘with’ his Fremen woman, Chani, but is going to marry the Emperor’s heiress, Princess Irulan. It’s OK though, because ‘this is a political thing … [and] that princess shall have no more of me than my name.’ [no sex, no kids – and the name thing shows that gender trumps rank …][xvi]

One of the groups involved in power and overthrow of power is called the Bene Gesserit – thus my title. Not quite clear to me why that name would have been chosen – it alludes to good behaviour, and for legal historians has resonance with the commission to judges that they shall keep their role as long as they do not misbehave (as opposed to serving as long as the monarch pleases, the older, pre-17th C, rule which made it simpler to remove them). This has been taken to be important for judicial independence (though it can be exaggerated, because it does nothing to ensure that those who are appointed in the first place are independent types rather than subservient ones). I am not quite sure what that has to do with the Bene Gesserit in the Dune books, who are an order of women with highly trained physical and especially mental capacities. They are associated repeatedly with another rather 17th C-resonant thing, though: witchcraft. They are forever being called witches, and we even get a very witch-hunty ciration of ‘Thou shalt not suffer a witch to live’ at one point.[xvii]

We are invited – implicitly – to contrast the laws and treachery of the rest of the universe with the honour and law of the semi-nomadic Fremen. There is more than a touch of orientalism/romanticising the ‘primitive’ about this (and before we dismiss the latter as a term we would never use now, I did notice ‘ancient and primitive law’ as a heading within the classification system at a library last week). The laws and customs of the Fremen are strange to outsiders at first, but the suggestion is that they are logical responses to their unforgiving environment, with its extreme shortage of water. I don’t think we are supposed to see the Fremen as misogynist, but some of their rules definitely show the perspective of a man of the mid-20th C. No hint of Frewomen’s Liberation …

They may be Fre, but the Fremen are not individualistic. It is all about the group’s survival, and getting and retaining water.  The overall rule is: ‘A man’s flesh is his own; the water belongs to the tribe’.[xviii] Leading on from this, those who are net takers of water without providing anything to the group may be sacrificed, and rendered down for their moisture,[xix] and the blind ought to be abandoned in the desert, presumably for similar reasons.[xx] Taking it a step further, in a sense, it was, at least at one time, the case that ‘someone caught outside the sietch without a stillsuit was automatically killed. To waste water was to endanger the tribe.’[xxi]

Despite the whole group thing, there is also some sort of individual property right in water. Paul is entitled to the water of a defeated adversary, and Jessica retains rights in the bottled water she brought with her. Giving some of it up to the others whilst in the desert will be compensated tenfold when they get to the Fremen settlement.[xxii] There are also tokens for water from the common stock, which are involved in courtship (I love you so much I am giving you the moisture captured from somebody’s squished flesh ..). There also seems to be a limited idea of property in chattels – so things belong to people, but are shared out by the leader when somebody dies.[xxiii]

Keeping one’s word is a big deal, and there is a consciousness of being especially honourable in this respect. Contracts are, of necessity, oral.[xxiv] [No specialty rule for the Fremen …]

The Fremen use trial by combat not (just?) for things we would think of as legal, but to determine truth, under the ‘amtal rule’.[xxv]  Combat seems to be an all male affair,[xxvi] and is to the death. Intriguingly, there is an echo of medieval trial by combat procedure, in that it has to be ensured beforehand that Jessica, who has the special powers of a Bene Gesserit ‘witch’, will not put a spell on a combatant.[xxvii] There is also some form of ordeal – as when Jessica shows she is fit to be a Reverend Mother (this ordeal rather resembling the ordeal of the bitter waters, Numbers 5:11-31).[xxviii] Ordeals are not confined to the Fremen: Paul is also tested by a Bene Gesserit Reverend Mother, to check his humanity (didn’t quite get that …) in a fancy process involving a poison needle and a box of (artificial) pain (if you can have artificial pain ..). Bit of a step up from hot iron, ploughshares and holy morsels of medieval European ordeals. Interestingly this is not founded on an appeal to God, but on psychological understanding of what humans and animals would do differently.[xxix]

Anyway, back to the Fremen. Combat is also the way one leader takes over from the last. The Fremen do not have hereditary leadership, but rather the strongest person (well, man) leads: ‘the one who brings water and security’.[xxx] Paul manages to change the rule, so he doesn’t have to kill Stilgar to lead. Instead, he has Stilgar go through what looks like a homage ceremony, kneeling, handing over his knife, swearing fealty.[xxxi] Hmm – doesn’t sound that Fre to me …

Except there is relatively Fre love. For the men anyway. And assuming that they like women. At least there is a convention that women ‘are not taken against their will’.[xxxii]  Nevertheless, there are certainly situations in which men get to do the choosing as to relationships – we see this after (15 year old) Paul beats Jamis in combat, and gets to decide whether to have his widow as his woman or his servant, or free her.[xxxiii] And families appear to decide who a Fremen woman will marry (relatively young).[xxxiv] So – not as fre-ly consensual as all that. Another aspect of Fremen Family Law which emerges is that there is a rule against incest: the death penalty (hanging on a tripod) applies to incest.[xxxv] Exactly what amounts to incest is unclear, beyond the example of brother and sister which is the matter in hand in the passage relating to this law. One would have thought that the structure of society would have meant quite a lot of in-marriage within tribes, so the rules would have to be restricted to a small number of banned relationships.

One practical issue which is not addressed is how exactly initmacy works – I don’t mean the complex business of getting into somebody’s stillsuit, but the water issue. They are all so cautious about losing moisture, but there is the issue of, well, fluids involved in ‘the huddlings of sex’,[xxxvi] isn’t there?

All of which has wandered off the point a bit – ah well, this is a work in progress, and I shall revise and resubmit after I have read some more.

 

[Miscellaneous points – couldn’t find an obvious place to put these, but they need to be in here somewhere …

  1. Everyone seems to be off their face on the addictive drug spice/melange all the time … Is that any way to run a universe?
  2. They have ruffs – ruffs![xxxvii] Sorry – they are never coming back, however far in the future. I make no secret of my extremist anti-ruff stance … Preposterous!]

 

GS

6/11/2021

Updated 19/11/2021, after reading Book III

 

 

[i] I: 39. And obviously he does say ‘slaves’ rather than ‘enslaved people’. 1960s.

[ii] I: 252 ‘Thus it reads above the Emperor’s door’.

[iii] I: 596.

[iv] I: 514.

[v] II, 55.

[vi] 100, 161, 517.

[vii] II: 75

[viii] II: 76.

[ix] II: 76.

[x] II, 76.

[xi] II: 252.

[xii] II: 249.

[xiii] II: 151 – Duncan Idaho, a fighter turned zombie type of thing (generally positive character) says of natural law that it is a ‘myth’ that ‘haunts human history’. II: 156 is his go at justice. Fair to say he has no problem with dictatorial power.

[xiv] I: 54, 57, 589.

[xv] I: 54.

[xvi] I: 561.

[xvii] III:58

[xviii] I: 241.

[xix] I: 238, 316-7.

[xx] II: 242. Cue a nice bit of legal tricksiness from Paul – he loses his eyes, but initially argues that because he can see with his mystical powers, he doesn’t have to be desert-ed. In the end though, he surrenders to the law, to become properly Fre (though also, to be fair, properly dead). The Fremen Law about sending the blind off into the desert is expressed as consigning them to Shai-Hulud (the great worm) in III:39.

[xxi] III: 286.

[xxii] I: 349, 351.

[xxiii] I: 354.

[xxiv] I: 320.

[xxv] I: 337.

[xxvi] Possibly a little inconsistent with the existence of Fremen amazons – II: 111?

[xxvii] I: 340.

[xxviii] I: 401.

[xxix] I: 6-9.

[xxx] I: 328.

[xxxi] I: 489.

[xxxii] I: 330.

[xxxiii] I: 389.

[xxxiv] III:290.

[xxxv] III:113.

[xxxvi] I: 332.

[xxxvii] II:250. It is a foppish traitor wearing one, mind.

Image: sand! (sadly no pictures of giant worms to be found …) Photo by Matteo Di Iorio on Unsplash

Edges and points: code-switching and weapon metaphors in a medieval sexual offence indictment

The King’s Bench plea roll for Easter 1435 contains an entry relating to proceedings against a clerk, Thomas Harvy, for alleged offences in Norfolk. Along with others, he was accused of ambush, assault and robbery, and, alone, he was accused of a sexual offence. He pleaded not guilty to all of the accusations, and, after some delay, a jury found him not guilty.[i] There is nothing unusual in any of this: experience with these sources has taught me that, despite that bloody reputation of medieval law-enforcement, acquittal rather than conviction and grisly punishment, was the norm in such cases.  The way in which the allegation is put, however, is unexpected, and, it seems to me, something worth drawing to the attention of scholars outside the small world of medieval legal history.

As will be obvious from my title, the unusual aspect to the entry is in its description of the sexual offence with which Thomas Harvy was charged.

Here it is, in free translation:

On Monday 11th January, 1434, at Bishop’s Lynn (now King’s Lynn) before William Paston, William Godrede and William Yelverton, and their colleagues, justices of the peace, the jurors presented that, on 1st October 1433, Thomas Harvy of Testerton, clerk (clericus) … broke into the house of  John Serjeant of Colkirk, at Colkirk, and attacked Margaret, John’s wife,  wounding her shamefully with a certain carnal lance called, in English, a ‘ballokhaftitdagher’, and so he continued to do until that day, setting a bad example etc., to John’s great damage and against John’s will.

What is going on, and why do I think that these few words are worth anyone’s time?

This part of the allegations against Thomas Harvy involved sexual misconduct, but was not on the usual spectrum of felonious rape and ‘ravishment’ charges seen in medieval common law records. It does not follow the pattern of rape charges, in that there is no allegation of ‘felony’, nor of ‘carnal knowledge’ against the will of the woman. It does not follow the pattern of ‘ravishment’ charges, in that there is no reference to abduction, nor any mention of the removal of the husband’s goods. The complaint is, rather, that the misconduct took place on (and continued to take place on) the husband’s premises. Despite the talk of wounding and weapons, there is every chance that this would have been understood by the (all male) jury, judges and the scribe who wrote the matter up on the King’s Bench plea roll, not to have been an allegation of rape (as they understood it) but an allegation of sex which was problematic only in that it was between parties who should not have been having sex, as opposed to being problematically violent or problematically non-consensual.

It would, in fact, almost be possible not to spot that this is a sexual offence: after all, with the attacking, wounding, and reference to lance and dagger, it sounds rather like a serious ‘general’ assault with authentically medieval weapons. I am fairly sure, though, that those weapons are not what they seem. Apart from the fact that a lance or spear would be an unusual weapon in a case of breaking, entry and assault, there are sexual/anatomical overtones to both ‘weapons’ mentioned. I would be inclined to question my reading (and perhaps wonder whether the ‘lance’ was some sort of butchery implement)  if there was only one of these suggestive ‘weapons’, but seeing both together makes a pretty strong case for seeing the ‘carnal lance’ and ‘ballock hafted dagger’ as evoking not actual weapons but metaphorical weapons, and to refer to male genitalia. Such a resort to metaphorical language is unusual within the generally unfanciful context of medieval plea rolls, but the use of weapon-imagery in relation to sex will not be unfamiliar to scholars steeped in literary sources.[ii]

I have come across the ‘carnal lance’ image on its own in a very small number of other cases.[iii] It is consistent with an idea of sex as a battle, or a joust, with the understanding that weapons were profoundly masculine items, and with the view that normal, un-transgressive, heterosexual sex was thought (at least by those who were in a position to leave clues to their views) to involve an active man and a passive woman, and a degree of force. The reference to the ‘ballock hafted dagger’ can be fitted into a similar pattern, but it is both less familiar and more fascinating. Some rapid research on a term I had never encountered revealed that ‘ballock-hafted daggers’ (more commonly just ‘ballock daggers’) were real weapons,[iv] with a characteristic guard, featuring two swellings clearly thought to resemble testicles. The sexual symbolism of the ballock dagger may be considered to have been enhanced by the fact that they were thrusting rather than  cutting weapons, and by the fact that they appear to have been worn hanging outside the clothing in the general area of the genitals.[v] No contemporary, surely, would have failed to ‘get’ the reference.

I am aware that I have blundered into the territory of the literary scholar. Having arrived here, however, I will, tentatively, note two further points of interest with regard to the ‘ballock dagger’ reference. First, it does seem to me to be a slightly different sort of imagery to that of the ‘carnal lance’. The material dagger is named after male genitals, and male genitals are suggested by the reference to the dagger. This strikes the non-expert at least as crude, in more ways than one. I wonder if my second amateur lit. scholar point is also connected with the ‘crude’, in a sense: while the rest of the record is in the high-status, learned language, Latin, this word is in the people’s language, English. There is considerable scholarship on the issue of ‘code-switching’ in the literary context, though less has been done on this practice in the context of the records of common law.[vi] It seems likely that use of an English word here would have had an effect – it is certainly arresting now, to come across it after line upon line of Latin – but speculation about just what effect that would have been is, I think, something to leave to those with deeper knowledge.

Retreating (more or less) to the home turf of the legal historian, it also seems worth noting a possible impulse from medieval common law’s own formulaic nature towards thinking and talking about interactions in ‘weaponised’ language. Those of us who spend long periods of time looking at plea rolls probably tend to filter them out, but in fact entries on these rolls are full of weapons. It was necessary to specify the exact sort of axe, knife or pike used to inflict a homicide, for example (and to set out its value). It was also usual to allege that a trespass was carried out with swords, bucklers and knives (even when it definitely wasn’t). The common law records fairly bristle with armaments, real and fictional, and that is another context within which these metaphorical expressions should be placed. I wonder if it is possible that the lance and dagger images were intended to perform a legal, jurisdictional function, moving Thomas Harvy’s misconduct from being the sort of illicit sex which would have fallen to the jurisdiction of the church to being the sort of peace-breach which sounded like the business of the royal courts.

This case did come to an end, as far as the process of the common law was concerned. Whatever the truth of the matter, Thomas Harvy was found not guilty. I am not going to offer anything so neat as a conclusion to this post. It is, after all, one of the advantages to blog posts that they do not have to follow the rules of the formal academic article game. Besides that, I do not want to conclude, suggesting that I have said the last word on any of this – I am sure that I have not, and nor do I want to. Another of the advantages of the blog post format is that it increases the chances of coming to the attention of scholars outside one’s own little niche, and this one will have accomplished something if its short and basic remarks can encourage a wider body of scholars – particularly scholars of language and literature – to think that there might be something of worth for them in the records of the medieval common law.

The inclusion in these records of the unusual form of expression which I have been discussing raises many questions. We may wonder whether, perhaps, this way of talking about sex and anatomy was widely to be heard in legal proceedings, but usually weeded out before the final plea rolls were produced. The relationship between speech and record in medieval court proceedings is, unfortunately, almost entirely unknowable. Those involved in the administration of common law were, of course, men of their world, and absorbed and reflected back contemporary literary trends and thought on the relationship between men and women. We can only speculate as to the effect on any women who did find themselves involved with this sort of clubby, ‘bantering’, hostile environment (and, though we cannot come to any firm conclusion, such as might be suitable for submission to a traditional academic journal, I think that it is rather important that we do speculate about this).

 

GS

3rd November, 2021

 

[i] KB 27/697 Rex m.5 AALT IMG 0183 contains a brief entry relating to a rape case. You can see a scan of the record here on the AALT website.

[ii] See, e.g., D. Izdebska, ‘Metaphors of weapons and armour through time’, in W. Anderson, E.  Bramwell, C. Hough, Mapping English Metaphor Through Time (Oxford, 2016), c. 14; C. Saunders, Rape and Ravishment in the Literature of Medieval England (Woodbridge, 2001), 42; R. Mazo Karras, Sexuality in Medieval Europe: Doing Unto Others, third edn, (Abingdon, 2017), 26, 151, 172; Robert Clark ‘Jousting without a lance’, in F.C. Sautman and P. Sheingorn (eds), Same Sex Love and Desire Among Women in the Middle Ages (New York, 2001), 143-77, 166. The Dictionary of Medieval Latin from British Sources (Brepols, 2018) suggests this meaning too, in its sixth variation on ‘hasta’.

[iii] KB 27/725 m. 31d; AALT IMG 567 (1442); KB 9/359/mm 67, 71; AALT IMG 141 (1482). The latter is mentioned in M. Mate, Daughters, Wives and Widows after the Black Death : Women in Sussex, 1350-1535, (Woodbridge, 1998), 48.

[iv] Ole-Magne Nøttveit, ‘The Kidney Dagger as a Symbol of Masculine Identity – The Ballock Dagger in the Scandinavian Context’, Norwegian Archaeological Review 39, no. 2 (2006), 138-50.

[v] Noettveit, 143.

[vi] See, e.g., G. Dodd, ‘Languages and Law in Late Medieval England: English, French and Latin’, In C. Barrington & S. Sobecki (eds.), The Cambridge Companion to Medieval English Law and Literature (Cambridge: Cambridge University Press, 2019), 17-29.

Image: daggers (reproduction) including, on the left, a ballock dagger. Photograph curtesy of Wikimedia Commons.

A few gems from a morning’s mayhem-ing

Recently, I have been doing some work on the appeal of mayhem – it’s one of my research leave projects (for a brief intro., see this post). The main content of this will be a survey of medieval material, but I am also very interested in seeing later attitudes to it, and what became of the appeal, and the concept of mayhem/maim after the medieval period. This morning turned up the following little gems …

  1. You can maim a wall. My interest is mayhem in the sense of particular sorts of damage to human bodies, though of course I am aware that there are less specific uses of the word than that encountered in appeals of mayhem. One comes across more general ideas of physical injury to humans in various places, and the ‘maiming’ of animals, in legal sources. Still, I was a little surprised to see that some leasehold covenants include promises by the lessee not to ‘maim’ walls – see Creative Foundation v Dreamland Leisure Ltd and others [2015] EWHC 2556 Ch. This certainly goes back to the 19th C. Don’t suppose I will be able to stop myself seeing how far back I can chase it …
  2. Disappointingly, there was not a judge called Mayhem J. Got very excited when a Lexis Library search suggested the existence of such a person – wouldn’t that have been splendid? Sadly, following the link to Sheffield Masonic Hall Co Ltd v Sheffield Corpn [1932] 2 Ch 17, I saw that it was in fact Maugham J.
  3. Much of criminal law found to be tedious … I do love the ambition and casual attitude of collections of the whole common law in one book, and was looking up a few references in Every Man His Own Lawyer (1776) when I came across the following passage:Since rather a lot of serious crime is statute-based, I suppose that’s you told, Criminal Lawyers!

 

GS

30/10/2021

Image: a wall, in perfect health. Photo by Joe Woods on Unsplash

Why not let the women try?

Today’s searching in old law books for references relevant to my mayhem project took me to a book, and an author, I’ve not encountered before (though he has made it onto HeinOnline, and was, apparently, the author of some other, cracking-sounding reads on agricultural holdings, land and contemporary criminal procedure): John Wynne Jeudwine (1852-1928).[i] He was a barrister, a fellow of the Royal Hist. Soc., and clearly had a sideline in law and history books. The one I was looking at was his Tort, Crime and Police in Mediaeval Britain (1917) (a snip at 6/- !). I picked it up on an open shelf, but it is in fact also there on archive.org.  It did have a little bit which will come in handy in relation to mayhem and the tort/crime borderline, but also some excruciating views about one of the big issues of the day – the possibility of women becoming barristers like him (p. 239 ff, stop before you get to police and clairvoyance …)

I suspect that our John thought himself quite a wit and stylist, and he came up with the following killer (and in no sense self-satisfied) argument about the issue:

  1. Being a barrister (like him) is, like, super hard (Elle Woods would, later, get this so wrong)
  2. Most men can’t do it, coz, like, you have to have a really good personality (like him)
  3. Even fewer women would be able to do it, obvs, (‘not one in ten thousand’) because, like, to do that, they would have to have a weird, unwomanly, sort of personality (battleaxe, shrew, hag, etc., only really quiet?) ‘the rather hard, rather mediaeval [what??] temperament essential for the advocate [like him!]: a combination of courage, judgment and silence’. Those ladies! They can’t keep quiet, now can they?
  4. So why not let them try? Might be a laugh, eh?
  5. In any case, they could be useful for the rubbish bits of barristering, and go to the police court. There they could do things which ‘intimately concern’ women – bad mothering and having verminous children, and, it is implied rather than set out explicitly, being a ‘common prostitute’, soliciting etc. This would be good for them, and for the law, because, apparently, men didn’t know about women’s stuff and women don’t know about ‘the conditions attending a life of poverty’ (well, apart from the ones with vermnous children or being accused of soliciting, I suppose …). Excellent!
  6. And obvs they shouldn’t have to wear a wig. [This is really important, and I am sure Helena Normanton and her sisters would have been glad to take up the suggestion that ‘[surely] their artistic sense [women are naturally artistic, innit?] could be trusted to design some academic headgear suitable to the woman lawyer…’ [I mean, wigs are stupid, but possibly better than a woman’s hat of that period would have been… think of the classic early women barrister pictures like this one without those wigs!).
  7. Or charge the male going rate (the dears were not to be ‘tied down’ to charging the same as men – clearly that would be ridiculous!).

 

Sorted! Thanks Mr Jeudwine!

Wonder how he reacted to the entry into the profession of women. I suspect some of the trailblazers would have made mincemeat of him [when not suppressing a desire to talk loudly about the best design of hat, and how great it is not to have to get paid the same as other barristers!]

[i] Times, Tues 1st Jan, 1929, p. 1.

Peas, grass and battle beyond The Last Duel

Lots of interest in the merits, and historical accuracy, or otherwise, of the big new film The Last Duel. I hope to go and see it, though feeling a little unsure as to whether I want to sit in a cinema with a load of strangers during current circs. I have the book though, so planning to read it this weekend.

I am not going to presume to comment on the film’s medieval French context, since I am definitely not an expert on that, but, since I suspect that there will be some general wondering about the idea of trial by battle, a little bandwagon-jumping and a couple of quick musings on this from a common law point of view might not go amiss.

For many years, in my Legal History classes, I have included something on proof, including trials by ordeal and by battle. It tends to capture the attention of students just a touch more than the development of the strict settlement and the Bill of Middlesex, for some reason. It is one of the useful areas to push students’ imagination a little, and to try and get them to see beyond the Whiggish distinction between ordeals and battles (stupid) and juries (great and totally unproblematic). With ordeals, there is the fantastic article by Kerr et al.[i] to give them to read, and a case to be made for there having been something of value in the so-called ‘irrational’ mode of proof, when compared to contemporary alternatives. Battle is rather a harder sell, and I confess that I tend to send students off to read the articles by M.J. Russell,[ii] and then in class go for cheap shock value and do Ashford v Thornton in a slightly Horrible Histories way … There is obviously more to say than general agog-ness at the late extirpation of the possibility of TBB though. The gender aspect is, of course, important – women were not supposed to engage in TBB, and do not seem to have done so (though there is one slightly bizarre 15th C story about a duel being ordered between a female accuser and a Franciscan friar, who was supposed to fight with one hand tied behind his back![iii] I have spent vain hours trying to track that one down …) Then there are the accounts, in chronicles and legal sources of battles themselves, and the procedure which they followed, or should follow. Some of these are extremely impractical and ritualistic – with weird weapons, a lot of formulaic language and rules. I was reminded, the other day, when looking for something completely different, that another thing which is really fascinating is the fact that those fighting a TBB took an oath against sorcery.

I stumbled on this version in The Boke of Justices of Peas (printed 1506),[iv] in its little ‘how to’ guide to holding a trial by battle, and was enchanted (!). It’s prescribed for an approver (man who had ‘turned king’s evidence’ and was trying to save his skin by accusing another man of felony and then beating him in a TBB):

‘This here you iustice that I have this day neither ete ne dronke nor haue upon me Stone ne Grasse ne other enchauntement sorcery ne witchecrafte where thoroughe the power of the word of God might be enlessed or demenysshed & the deuylles power encresed and that myn appele is true so help me god and his sayntes and by this boke &c.’

[Justice, hear this: I have not eaten nor drunk today, nor do I have upon me stone, grass or other enchantment, sorcery or witchcraft which might serve to diminish the power of the word of God, and increase the devil’s power, and that my appeal is true, so help me God and his saints and by this book etc.’]

Seems a bit harsh not to let the poor devil eat or drink, but fits with the general religious ritualism of this sort of thing. What about the magic though … what ideas does that reveal about ideas as to how TBB worked, and how it could be derailed. It does seem to suggest that God could be foxed by a magic stone or grass (magic grass – new to me – I assume it is the green lawn stuff, and not some special other early modern meaning – sure somebody will tell me if I am wrong …), which is a rather interesting theological position, when you think about it. Belief in magic is one thing, thinking it could actually transcend the human world and put God off his stride, when intervening to say where the truth and right lay in a trial by battle is several steps further on, I would say. It just seems a really fascinating meeting of two sorts of supernatural belief. And it is made all the more striking as the formula for the duel goes on to bar human intervention to help one side or the other – by advice to take advantage of the opponent, or  physical help. It is as if the magic thing and the weighing in of spectators are on a par, equally likely![v] Possibly the supernatural issue can be rendered a little less blasphemous by thinking that the idea behind it must be that the magic grass etc. could skew the result by acting on the bodies of the combatants, rather than on God. Seems a bit weaselish, but maybe that works.  Feeling once again as if I have a lot to learn! It’s certainly something to think about as we enjoy the big film (or book …) and as we approach Halloween.

GS

16/10/2021

[i] Kerr, MH, Forsyth, RD, and Plyley, MJ, ‘Cold Water and Hot Iron: Trial by Ordeal in England’, Journal of Interdisciplinary History 22.4 (1992): 573-95.

[ii] Russell, M. J., ‘I Trial by Battle and the Writ of Right’, Journal of Legal History 1.2 (1980): 111-34 ; ‘II Trial by Battle and the Appeals of Felony’, Journal of Legal History 1.2 (1980): 135-64; ‘Trial By Battle Procedure in Writs of Right and Criminal Appeals’, Tijdschrift Voor Rechtsgeschiedenis 51.1 (1983): 123-34.

[iii] Bellamy, John G,  The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), 145; Eulogium Historiarum, III, 389.

[iv] Glazebrook, P. R. The Boke of Justices of Peas, 1506 : With an Introduction by the General Editor (London, 1972). It’s a book which sounds slightly unpleasant if you are a Scot (add the peas and it is all a bit graphically vomity). It is a collection of various ‘templates’ for legal proceedings which might have seemed useful to somebody acting as a JP, or one of his officials. The material is not particularly new – it’s 15th C stuff, perhaps quite a bit from the reign of Henry VII, but earlier than that too.

[v] The no sorcery rule appears in  older sources too– see Russell (1983) above, p. 132.

Photo by Artie Kostenko on Unsplash

Study Law … it’s better than eternal damnation!

Enjoying listening to the recent radio version of Marlowe’s Dr Faustus: BBC Radio 3 – Drama on 3, Doctor Faustus. Many of us will remember the lines about kissing Helen and being made immortal etc, but I was struck by this in the first scene – when he is having a bit of angst about where to direct his studies:

‘Both law and physic are for petty wits’

and this

‘This study [i.e. Law] fits a mercenary drudge who aims at nothing but external trash; Too servile and illiberal for me.‘

Not ones anyone is likely to use in their student recruitment material! Still, granted that he would have been better off sticking with Justinian and problems about succession, maybe it could be used in a sophisticated campaign saying ‘Study Law: it’s better than getting involved in a dodgy deal with the devil and ending up eternally damned …’ [I have missed my vocation in marketing, haven’t I?]

(Image, C. Marlowe, courtesy of Wikimedia Commons. Check out that fancy doublet!).

Hegal Listory

No doubt I risk tutting, sneering and/or wrath in pointing this out (again … see this old post) but … I am not sure that some parts of the world of legal history academia are aware of the concept of the manel and the general acceptance that diversity is a good thing …

Oh look – while the ladies may be allowed in to give the odd seminar, the speaker for the big lecture at the Cambridge Centre for English Legal History is … yup, another bloke …

It is rather worrying that there are no women legal historians (or historians of law, or former lawyers known to give a good talk…) isn’t it? I definitely can’t think of several.

[Voice offstage: Ah life was simpler in the good old days …

 

We would definitely never plan a big project with only men nowadays, would we …Oh …]

GS

12/10/2021

 

… and also … from this week’s reading (17/10/2021)

Another indication of the worrying lack of women who are able to do these things:

D Ibbetson, N Jones and Nigel Ramsay (eds), English Legal History and its Sources (CUP 2019) Chapters by males: females = 17:3.

 

…and one I’m looking at today (21/11/2021)

Apparently the massive gender imbalance amongst legal historians is an issue right across Europe (and in those working on European legal history). By my reckoning (and I will correct if this is inaccurate), Pihlajamäki, Heikki, Markus Dirk Dubber, and Mark Godfrey (eds), The Oxford Handbook of European Legal History (Oxford, 2018) has the following stats: editors – three men, no women; chapters by one or more men – 44, and by a woman – 4 (including two by the same woman).

Absolutely nothing remarkable in that at all.

Manicules and many hands: a little musing on the wonders of AALT

Like just about everyone who writes about the early history of the common law, I am a heavy user of the digitised manuscripts on the Anglo-American Legal Tradition website. They were especially valuable during the worst of the pandemic, of course, but many of us had been using them regularly long before that. Even for people living in the UK, it is often not feasible to get to the National Archives (ludicrously expensive and time consuming getting to central London by rail, and then out to Kew) and that is as nothing compared to the fun and games which researchers from other parts of the world must encounter. That being so, easy online access has been an enormous bonus. I realised just how much I had come to rely upon it, when AALT was unavailable for a few days last academic year, and I felt decidedly panicky. This morning, I have been doing a bit of leisurely searching in AALT plea rolls (I know it’s Saturday, but I definitely need a distraction from the ominous sounds of offspring packing for imminent departures to university… ) and, in best Carrie Bradshaw fashion (if the ever-profound lead of Sex and the City had been a legal historian), ‘got to thinking’ about the changing experiences of legal historical research which I have had, since I started out in the 1990s.

My first real encounter with medieval manuscripts came as a PhD student – up to that point, it had mostly been transcribed and translated things in the Selden Society volumes and similar publications, with a few early modern bits and pieces to do with the Bank of England when I had a job as research assistant at the Law Commission, including working on the repeal of parts of the early legislation regulating the Bank. I designed a project for the Ph.D., making the somewhat arrogant assumption that I would be able to just bowl up to the Public Record Office (as it then was) and read eyre rolls, to locate presentments and prosecutions of usurers and offenders against price regulations. Obviously, it soon became apparent that it would take quite a while to get to grips with the great and contrary membranes, the script and the abbreviations (not to mention the springiness of some of the tightest rolled ones, and the fear of handling some of the crumblier-edged ones). It is odd to think that just about everything I traipsed down to Chancery Lane to examine is now available with a few clicks on the AALT site. Just as well for the state of the records that present day versions of Ph.D.- me can have their clumsy hands kept off precious pieces of legal heritage to a great extent.

The experience of looking at the rolls online is, of course, not quite like ‘the real thing’. There is something special in making physical contact with the work of long-ago clerks. But there are also positives in using the scans. It is possible to expand the picture, to help make out more obscure words (or make a better guess, at least…). It is easier to go back and check something than is the case when using physical records. And then there is a certain charm in the online site itself. I am sure that others could add to the list, but there are two things that strike me about it, quite regularly. The first, and  more trifling, is a by-product of frequent use of the site – the odd misfire in searching for the site means that I have become unusually well acquainted with: (i) Aalto University in Finland and (ii) a Dutch serial killer nicknamed ‘Aalt’.  The second is to do with hands.

‘Hands’ can mean different things to people in the nerdy manuscript-fancying community, of course: perhaps first of all we’d think of writing styles and individual quirks. A lot of puzzle-solving entertainment to be had there, for those who like that sort of thing. Then we might think of manicules – the little pointing hands we see in the margin of manuscripts, indicating cases or things that the clerk thought might need to be found again, or which should be noted. What I am mostly thinking about, though is actual, present day hands: the springy nature of the rolls sometimes makes it necessary to hold them down whilst they are photographed, with the result that the AALT shots contain numerous images of the hands of those creating the digital archive – shots like this one.  That is going to be a sort of manual immortality one day, isn’t it? (Especially if the MSS themselves become more frail and less accessible). It certainly gives an inkling of the general effort involved in making these images available to anyone who wants to see them, and I find it a really interesting additional piece in the story of the handing on (!) of the information contained in the rolls, from one generation to the next.

GS

25/9/2021

Photo by Sebastian Dumitru on Unsplash