Dangerous driving, medieval style

A sad but informative little snippet from a 15th C coroner’s inquest … (well, I suppose you know it’s not going to be a jolly tale when you look at ‘an inquest on the body of …’).[i]

This death took place in 1419, between Whitechapel and Mile End, in modern London. John Waryn of Stratford Langthorne died in a cart accident – the two separate records describe it slightly differently, but the main point seems to be that John dozed off and the cart overturned. An obstacle or ditch may have been involved, and John may or may not have struggled to get things under control, but, one way or another, the cart and/or one of the horses squashed him.

At the risk of seeming callous, I will note that this sad little tale does, incidentally provide someOn –  interesting information about medieval transport. First of all, we learn a bit about the cart – it must have been a reasonably substantial vehicle, with its iron-clad wheels, and its team of four horses. Then we learn that one of the horses had a special designation –  ‘the Thyllehors’ (in this case, a bay). Not a horsey person, but the trusty Middle English Dictionary tells me that this was the horse which worked closest to the wheels, in between the shafts. There is some more Middle English as well – the description of the dozing is somehow rather charming: within the Latin record, we have the specific description that this is not full lack of consciousness – it is partial sleep ‘ commonly called Slomryng’. All very peaceful. Until it wasn’t. Poor John.

GS

18/9/2021

 

[i] Records can be seen here, here and here. It is also quite interesting from a deodand point of view.

Total eclipse of the hearth: a characteristic medieval method of low-level extortion?

Something which has caught my attention when working through many, many accounts of alleged violent offences in medieval court records is a particular method of extorting money by torture, which is specifically ‘pre-modern’: making the unfortunate victim sit on a burning tripod until he or she stumps up. See, e.g., cases from rolls of: 1332, 1337, 1348, 1355, 1381, 1406, 1407 (& same incident). There is also a similar case involving burning somebody with a griddle or grate, to get them to say where some jewels were, from 1433).

I suppose that it first struck me as interesting because it sounded so odd – and so specific (and, as a kid, tripods had a special, troubling, place in my heart, both as a required construction of a ‘gadget’ for the guide Camper badge, and as the terrifying villains of the John Christopher books and TV series). A moment of reflection, however, and I realised that a tripod, and a hot tripod at that, would be a common feature of medieval homes, supporting cooking vessels in the hearth. No sci-fi or uniformed organisation reminiscing required.

I find myself asking why this appears to have been a relatively plausible tactic for those trying to get a person to cough up money or do something else to benefit the offender. Why not just use a knife to threaten? Everyone seems to have had a knife, judging by the number of deaths by stabbing on the rolls, after all. Perhaps the answer is a combination of factors:

  • the ‘sit on a tripod’ practice caused pain as well as exerting mental pressure, perhaps speeding the whole process up; might there also have been something humiliating for the victim about being injured on the buttocks?
  • as long as it wasn’t prolonged unduly, it probably wouldn’t cause death – whereas waving a knife about could always end in a stab wound, blood, death.

There are certainly signs that it was regarded as potentially very damaging, though: an unsuccessful allegation of 1330 saw three people (two men and a woman) indicted for having, at ‘Burnecestre’ (really!) , taken and tied up one Alice Garlicmonger and put her on a burning hot tripod, naked, until she made fine with them, burning her ‘enormiter’ and ‘usque ad ossa’ (the latter is interesting from an anatomical point of view – coccyx? femurs?). The three were found not guilty anyway, so no prospect of further interrogation of medieval ideas of the construction of a backside.

Some of these, e.g. the 1337 case, mention a causal connection – here, the ‘enormous’ or ‘outrageous’ burning was done in order ‘to get more money’.  ‘The entries don’t always have the burning as connected to the taking, but I think that must be the idea. Can’t rule out gratuitous cruelty, I suppose.

I am not sure that there is anything obvious to do with these, but perhaps I will find something some day. For now – it’s a little curiosity to share asynchronously with anyone who ever stumbles along this way. Pray for me, and you are welcome.

 

GS

18/9/2021

Image – sort of hearth. No, not medieval. General idea …Photo by Zane Lee on Unsplash

If I could Tourn Back Time: Jurisdiction in the Fifteenth Century (Again)

Another little bit of Year Book/Plea Roll matching – this came up tangentially in a bit of petty treason research today, and seemed worth a quick word and thought.

When I say matching … it is not quite an ‘X = Y’ situation: more of an X probably = Y, Z or A.

The Year Book case is YB Trin. 6 H VII f 5 pl 4 (Seipp 1491.020). The plea roll entry is one of three possibles on the King’s Bench roll for Trinity 1491.

The candidates are:

  1. KB 27/920 Rex m. 5 (AALT IMG 209) This is a case from Berkshire before John Horne, in which Richard Patte of Sulhamstead, clerk, was alleged to have raped a widow, Margaret Huys, lately wife of John Phelippe.
  2. KB 27/920 Rex m. 3d (AALT IMG 463) This also comes from Berkshire, from John Horne’s tourn. John Hyde, recently of Sonning, clerk, was alleged to have raped Elizabeth, wife of James Trell.
  3. Yes, it’s Berkshire and John Horne again! KB 27/920 m. 3d (AALT IMG 465): Stephen Bregyn, clerk, was accused of raping Alice Robyns, wife of John Robyns.

Or perhaps it is an amalgamation of all of them – since they are all saying the same thing.

The YB case is not about petty treason at all – though there is a passing reference to that in the reported argument – it is a case about jurisdiction over rape. Who could hear rape cases? Could low-level criminal courts hear them? Let me be up-front about one thing: there is a difference between YB and PR in terms of which courts are mentioned – the YB is interested in courts leet, whereas the PR entries are all about sheriffs’ tourns. Since there is nothing on the roll specifying courts leet, I think I have to assume that one of these is the best match. Possibly these tourn cases prompted a wider discussion of low-level jurisdiction.

The successful argument against lower courts having jurisdiction in this area, as it appears in the YB, is that they only have jurisdiction over felonies if they existed at common law rather than having been created by statute, and rape as a felony was a creature of statute. A choice had been made to limit such jurisdictions, and/or that it was seen to be fitting to keep them to the things they had been able to do ‘since time immemorial’, or at the time of the (certain or assumed) grant of jurisdiction.

The issue about sheriffs and rape jurisdiction was not new – I wrote a blog post about this issue as it arose in 1482, in the not-too-distant past (it’s here). A bit odd, then, that tourns are still being used in this way, and it’s still thought worth reinforcing via YB reports that this is not OK. Suggests something of a lack of influence of common lawyers on practice in the low-level criminal jurisdictions, I think (though, as ever, I am ready to be told that I am missing something important …). I do wonder what was going on with John Horne’s tourns in Berkshire.

As far as the rape cases themselves go, well, nothing very surprising. the accused  all ‘walked’ after having paid a fine to the king (to save the bother of a trial for the trespass element of the charges).Each of these fines was 5s – a pretty common amount, according to the list of fines in the plea roll – and, according to the National Archives currency converter that represented about 8 days of wages for a skilled tradesman. Moderately costly then, I suppose. Whether or not there was any other settlement, compensating the women themselves, will remain a mystery.

GS

13/9/2021

 

Image – to fit in with my contrived title, it’s a medieval clock! From Salisbury Cathedral. Yes I do know that isn’t in Berkshire, but best I could do. From Wikimedia Commons.

 

Death and betrayal amongst the medieval ‘Chipping Norton set’: (yet) more on petty treason

Not too long ago, I noted a case from 1418/19 in which a woman called Marjory appealed two men of offences relating to the death of her husband, John Chaloner, only to be appealed herself for this same death, and being convicted, and, apparently, burned, for ‘petty treason’ (see this blog post). Well, now another of these double appeals has turned up: cue a bit of comparing and contrasting!

A pair of entries on an Oxfordshire gaol delivery roll for 1407 tell us that Emma, widow of John Handes, had come and appealed Roger Sutton of the death of John her husband, giving the required pledges for prosecution. Her appeal alleged that, on Wednesday  6th July 1407, at Chipping Norton, Roger had killed John with a dagger (price 1d), feloniously. Rather than pleading guilty and going to jury trial, as I was expecting, Roger decided not to put up a fight – he said he could not deny this, and so all that was left for a jury to do was to appraise his assets. There was not much to appraise: there were, apparently, some clothes, worth 20d, but no land or other goods or chattels beyond the clothes. The man himself was to be hanged.

The second appeal was by William Handes, brother and heir of the deceased John. He appealed Emma of the death of John, and his pledges to prosecute were noted. His appeal explained that Roger had done the actual killing, but Emma advised and ‘consented’ to it. She was also alleged to have paid Roger for his felonious work (2s). Unlike Roger, Emma was ready to fight. The jury found her guilty though, and sentenced her to burn. Emma had no assets, it was recorded. She did not burn, however: first she had the sentence deferred, by claiming pregnancy, and having this confirmed by a ‘jury of matrons’. Generally, deferral means deferral, but, in this case, this period seems to have given Emma a chance to seek a more permanent way to avoid execution: according to the patent roll, she was pardoned.[i]

Spot the differences?

Clearly, the later Chaloner case and this one share a basic pattern: W appeals X for the death of H; H’s brother and heir appeals W. X and W are both sentenced to death; W claims pregnancy. There are obvious differences, in that the pregnancy claim is accepted in Emma Handes’s case, but not in Margery Chaloner’s, and in that Emma manages to secure a pardon (whereas, as far as my investigations have been able to establish) there was no such pardon for Margery.

Another difference is that there is not the intriguing overlap in personnel in the Handes case which we see in the Chaloner case: in the latter, both of the widow’s pledges to prosecute were apparently relatives of the deceased husband, including the brother who would appeal her; in the Handes case, that is not obviously the case. Following on from this, while I do wonder whether there might have been some pressure or deception in the Chaloner case, helping Margery to bring an appeal against others, and then appealing her too, to ensure that everyone involved was convicted, or, indeed, to get rid of somebody who would have had claims on the deceased’s property) it is harder to see that in Emma’s case. It is still hard, however, not to be suspicious that the motives of her brother in law in appealing her might not have been entirely about getting justice for his brother.

It is worth a brief word about the pregnancy deferral-pardon element of the Handes case as well. Here we see the jury of matrons in action. The fact that they found her to be pregnant suggests that she was in a fairly advanced state of pregnancy, but the months allowed to her presumably gave her a chance to make her request for a pardon. Just what lay behind that is unclear – was the allegation of her involvement found to be trumped-up nonsense, or was there some other reason for the exercise of mercy? The short note of the pardon does not tell us, unfortunately.

A final intriguing element is that, as well as her pardon for the conviction on the appeal brought by her brother in law, Emma Handes also received a pardon for another appeal, in this case brought by a certain Roger Taillour of Chipping Norton. Could this be the same man as Roger Sutton? And where is this approver appeal? I haven’t turned it up yet, though it seems unlikely that it is made up. If it does exist, it brings in yet another dimension to the case – some sort of odd vicious triangle, which certainly needs some more thinking about. There may be another instalment, if I find more …

 

GS

12/9/2021

[i] CPR 1405-8, pp. 371, 470, 10 Oct 1408.

Image – slightly gratuitous church. It’s St Mary’s Chipping Norton. Well somebody probably went there at some point, in between all of the killing and accusing, didn’t they?

Tourn-up for the [Year]Books: a Somerset sheriff’s jurisdiction

A quick Year Book-Plea Roll probable match: I think Seipp 1482.119 (YB Mich. 22 Edw. IV) is the same case as this one, from the Michaelmas 1482 King’s Bench plea roll (KB 27/884 m.1d; AALT IMG 0518).

The case concerns an indictment of rape, made against John Wheler of Bridgwater, in Somerset, chaplain. He was accused of having, on 20th March 1482,  broken into the house of a certain Alice Lye[i] , at Huntspill, attacked her, raping her and ‘having carnal knowledge’ of her, against the king’s peace.[ii] The matter had been presented in a sheriff’s court – the ‘tourn’ of Richard Morton esq. – on 4th April, 1482, at Highbridge, Somerset.

It will come as absolutely no surprise to anyone who has looked at this sort of material to find that the whole thing fell apart, and the accused chaplain walked free. In this particular case, the route to that expected conclusion was not via the blank ‘not guilty’ of a jury, but via the ‘you don’t have jurisdiction’ route: sheriffs were not supposed to hear such serious ‘criminal’ cases.

I suppose we might conclude, or muse about, a couple of things from this:

  1. There does not seem to have been agreement that this was something beyond the powers of the sheriff. (As a matter of fact, the KB roll for Trinity 1482 contained another rape case from the same sheriff’s tourn, in, from a tourn on 30th April 1482. This time, the accused man was Robert Cutteclyffe of Wells, chaplain, and the alleged victim Cecilia Wever, the attack said to have taken place at Burton. In this earlier case, however, a different technical fault was found with the process.) The YB report of what I take to be the Wheler case includes a lengthy discussion of the background to rape/ravishment as an offence, its statutory or non-statutory origin being taken to be crucial in determining whether or not a sheriff had jurisdiction here.
  2. Despite the incredibly low rate of conviction, men from relatively small communities did bother to prosecute alleged (clerical) rapists. Maybe use of the sheriff’s tourn for this suggests a lack of faith that other courts would do anything. There is something of a tendency to write off such action as not in good faith, as a sort of extortion of those who kept concubines. But does it, perhaps, rest upon an assumption that clergy would not be likely to take advantage of their position to engage in abusive sexual practices? Or on a desire to find that women were more ‘agenty’ than they might appear. The accused clergymen do seem to have been able to find a number of ways of challenging cases brought against them, but it is important to accept that that doesn’t tell us anything about the truth of the allegation, one way or the other. There is, no doubt, a great deal which is lost to us, in terms of what went on out of court: compensation, private settlement, or settling of scores, and no particular reason to think that the same sorts of facts underlay all or most cases.

GS

31/8/2021

[i] There is no more information about her.

[ii] Note, no mention of her will.

Rough and ready music: listening to the records

Expectation management: this is not very profound, just something I saw today which struck a chord, resonated, etc. [insert other music-related references …]

It’s a line in a plea roll entry from the reign of Edward IV, from Easter term 1482.[i] The case is not a pleasant one (well, it is in a ‘criminal’ roll …). You know it’s going to be serious when the word ‘coroner’ appears early on – and this starts with an account of an inquest, on 10th January 1482, before Suffolk coroners, at Halesworth, on the body of John Hensted, who had been killed there.

John Hevnyngham, knight, and William Jenny, sjt at law, had been at Halesworth on 29th December, 1480, on a royal commission, dealing with a case about land rights, between John Laveraunce and William Goderyche, and were in a room of an inn called the Hart, in Halesworth.[ii] The inquest jury (and an indictment founded upon their narrative) said that  a certain William Wingfeld, recently of Spexhall, Suffolk, got together a group of malefactors [6 men named, no amusing names, so I shall omit them – all grooms, tailors and similar] and attacked John Fayrechild, servant and clerk of William Jenney, as he was coming towards the room. They would have killed John F, had he not defended himself with a small ‘daggarr’ (note contrast with their swords and other not-small weapons …).  Despite his heroic defence against the odds, the group overpowered John F and ‘decked’ him. Again, he was in peril of death, and would have been a goner, but was rescued in the nick of time by loyal types, ripped from the hands of the ne’er-do-wells and taken into the room.  Wingfeld and his gang then started on John Hensted (who was in God’s and the king’s peace – it doesn’t actually say whether he was involved in the John F episode, but I imagine that is the idea …) and wounded him multipliciter et crudeliter, so much so that they killed and murdered him [never use one word where two will do …].

Afterwards [and this is the bit that grabbed me] one of William Wingfeld’s men, the groom Nicholas Petyt. celebrating John H’s death, said, in his native tongue, ‘I shall blowe a mote[iii] for his deth’ and straight away blew a high (or loud?) blast on a certain horn [which he  happened to have about his person – though I suppose that is plausible …and rather appropriate with the whole hart/white hart theme …]. William Wingfield said, also in English ‘a man of Jenneys is slayn. I wold it had lighted upon his master’, and afterwards, William W and gang fled. William W received the others, knowing what they had done.

Later, in the King’s Bench, William W and four of his men turned up, waving a royal pardon which said the charge had been malicious. Who knows whether that was true or not, or what happened to Nicholas Petyt, who was not included in the pardon.[iv] An interesting bit of creative dialogue creation (‘verbals’ is the word that comes to my mind – have just been watching a rather good documentary series about ‘bent coppers’ in London in the 1960s-80s, who favoured this sort of elaborate lie when ‘framing’ individuals ..) anyway. Whether or not these words were spoken, why would they be included in the narrative? Is Petyt’s supposed remark, and celebration, about indicating definite guilt, inconsistent with the sort of hot-blooded, hot-headed killings which might be passed over as undeserving of capital punishment?[v] Might the words attributed to Wingfeld have been an attempt to suggest that he had wished to strike at a royal official, and get him into more trouble?

No answers to those at present, but here’s one I might do better with: why did this entry appeal to me? Well, I think there is something engaging, for the modern reader, in the ‘code-switching’ between Latin record and English reported speech in these records: it almost feels a bit comic, despite the situation, and it gives a sense of performance, of throwing the hands up and saying ‘do you know what, this is not going to work in scholarly Latin, here’s what was actually said …’ I know that there is a lot of work on this in literary studies – macaronic works etc. – but I think that plea rolls are a bit neglected as a linguistic/literary production, and that it would be very interesting to get legal historians and lit. scholars together to look at what these sources can tell us about English, and the sound of medieval England (or plausible versions thereof) at some point. It has been done to some extent with defamation, but there is a lot more in there, if you have the patience to do a bit of ‘listening’.

GS

29/8/2021

 

[i] KB 27/882 Rex m.9; AALT IMG 173,

[ii] Excitingly, there is an old pub called the White Hart in Halesworth. A quick scan shows claims that it goes back to the 17th C – could it be the same one? Image above is its sign.

[iii] According to the ME Dictionary online, a ‘mote’ is one note on a hunting horn. New one on me.

[iv] The pardon is calendared: CPR 1476-85 p. 242

[v] Note that Petyt is accused, alone, of the offence, here (and next membrane) and here. And he is called a ‘vagabond’ rather than a groom … interesting ‘spin’ going on somewhere … This one is v. close to the story on the plea roll, but implicates the others, and doesn’t call him a vagabond! The matter of ‘vagabond’ as an ‘addition is debated in a (connected?) YB report here.

Canons and knives: death (and treason?) in a medieval priory

A ‘query petty treason’ case today – while I am most interested in the ‘husband killed by wife’ cases, it is worth remembering that the Statute of Treasons 1352 gives other examples of ‘sort of treason because against the natural hierarchical order of things’ cases. I do have some ‘servant kills master/mistress’ cases on my ‘table of doom’, but there is much less available in the other category – killings of abbots by their monks. Here, though, on two Cambridgeshire gaol delivery rolls,[i] is a case from 1403 which is, if not quite ‘monk on abbot’, tantalisingly adjacent to that. Having been very pleased with myself for finding it, I discovered that those hard-working early 20th C local historians had been there before me: there is a one-page account of the documents (complete with old style roll numbering) in The East Anglian vol. 13.[ii] Slightly miffed for a moment, but then, actually, I quite like making this sort of connection. Maybe one day somebody will do the same with this post … (delusions of being Emily Dickinson, or something, there …).

Anyway, on with the story. The deceased in this case was William Gilbert, priory of a rather small foundation in Cambridgeshire (I confess I had never heard of it) called Spinney. A bit of basic research reveals that this was a house of Augustinian canons, and, at the relevant time, had only a handful of residents.

The inquest before a coroner was held ‘ on 19th May, 1403. The story noted down from the twelve inquest jurors[iii] was that three canons of Spinney (also said to be confratres – ‘brothers’ of the deceased), John Lode alias John Catesson, Thomas Smyth, and William Hall, had killed him that same day (note speedy start to proceedings!). The killing, as described, was fairly drawn out. John Lode stabbed William Gilbert under the left arm, Thomas Smyth stabbed him in the back. William Gilbert then managed to get away into a different room, but the trio broke the door, and Thomas stabbed William Gilbert through his left arm, and his side, to his heart. It is carefully specified that each of the first two stab wounds would have sufficed to kill WG, had there not been another one.[iv] The geographical as well as physical locations are specified – the initial stabbing was said to have taken place in the priory church, and the final wound, in the priory’s hall, to which William Gilbert had fled in his failed escape bid.

The three were found guilty by a jury, at the gaol delivery session on 20th  July 1403, but escaped execution because they were able to take advantage of benefit of clergy, and were ‘claimed’ by the ecclesiastical authorities.

Petty treason: teasing out the definitional implications

What does all this tell us about petty treason? The account does use the language of treachery or treason – the trio had risen up like traitors, but note that the bond highlighted is not that between the killers and their prior, but between the killers and the king (tanquam proditores domini regis manu forte proditorie). If they were really seen as traitors against the king, it seems surprising that they were allowed benefit of clergy. What am I missing? And does this case show that canon-prior just was not seen as analogous to monk-abbot in this context? The reference to ‘fellow brethren’, as Palmer translates it, suggests a less ‘vertical’ relationship, doesn’t it?

Canon to the right of him, canon to the left of him … thoughts on the social implications

Assuming this is anywhere near true, it does make life at the priory of Spinney sound rather grim – a conspiracy against its leader involving what was probably the bulk of the others in the house. Note, though that one person did rather nicely out of it all – the sub-prior, who escaped indictment, and stepped fairly seamlessly into the top job once the dust settled …

 

GS

22/8/2021

 

[i] JUST 3/8/6 m.58 (AALT IMG 106);  JUST 3/190 m. 5 (AALT IMG 13).

[ii] W.M. Palmer, ‘Murder of the Prior of Spinney’, p. 104.

[iii] (who, I note, included a certain ‘Willamm Schakespeare’ … there you have it – evidence that W. S. was actually a member of the Undead …).

[iv] I am by no means an expert, but that third wound, right through an arm and side, into the heart, sounds as if it would have had to be particularly forceful. I also note that William Hall is not reported to have struck a blow at all. But then accessory liability – or treating as principals all with any sort of participation in the killing – was certainly ‘a thing’ in these cases.

Image: where the priory would have been if it was still there, but it isn’t. All sorts of symbolic ..

No, no, no, no, no, no, no, no, no, no, no, no, there’s no Limit[ation of Actions volume]

A bit out of date, surely, referring to a Euro-dance classic by 2Unlimited? Yes, but … that’s sort of the point of this particular ‘blog as therapy’ post.

Sorting out some long-overdue personal and work admin matters, I came across an email exchange from 2013 (yes I am a digital hoarder/archivally oriented/keeper of proof) about a volume on Limitation of Actions which a former colleague was putting together. I was to write ‘the historical bit’ and various other thrilling chapters would follow. Of course I did my section. Then, for whatever reason, the project ground to a halt.

It is not the greatest piece of legal scholarship, by any means, and it didn’t take me that long, but still … it is a shame to have bothered and never to have seen the thing come out. I have had such varied experiences with edited collections – nothing but good to say about some of them (esp. Weikert/Bennet Hostages Book – that was extremely efficient) but others  … I actually have another, more substantial thing for an edited collection which has a number of years of ‘forthcomingness’ behind it, which I hope is actually going to appear very soon … otherwise this may become a series of ‘things I was asked to do, and did, which somehow never got published’ …

The limitation thing, though – I think it’s time to put it out there, for what it is worth, and (shudder) move the email exchange from the ‘to do’ folder to the outer reaches of the ‘archive’ folder. There comes a point when hope and dutiful waiting reach their limitation period, after all.

So here we are, for anyone who wants a quick introduction to the ideas behind limitation of (civil) actions  – and bear in mind it is from 2013!

GS

20/8/2021

 

Gwen Seabourne, Historical Introduction to Limitation of Actions

 

I: Antiquity and rationale of the limitation idea

 

The idea of setting some temporal limit to the right to bring a legal action is very ancient, with antecedents in both Old Testament law and Roman law.[1] It is a concept long established in English law and exported to the common law world.

 

Various reasons have been put forward for having a limit to the right to bring an action. Some of these focus on the claimant, expressing a reluctance to support a person who ‘sleeps on his rights’, [2]  or a suspicion that such a claimant may be a perjurer.[3] Others focus on the defendant, and the perceived unfairness of leaving people vulnerable to legal action without temporal limit.[4] A third explanation concerns the legal process itself, the fairness of which might be compromised by allowing ‘old claims’, since evidence may deteriorate or disappear, and memories may become unreliable. Fourthly, there are wider justifications based on claims that not limiting actions would be deleterious to the economy (by discouraging enterprise) or to public order.[5] Finally, specifically in the context of land actions, it has been suggested that, if a claimant brings an action long after a defendant’s alleged wrong, it should be presumed that at some point during this long period of delay, the defendant in fact did gain proper title to the land in question.[6]

 

 

II: The English Context

 

(i) to 1540

English law has had two differing ways of meeting the concerns noted above. One has been to limit actions when the individual claimant’s delay is seen as unconscionable. The central example of this is the equitable doctrine of laches, though some forms of estoppel could also be seen in this way. The other response has been to provide that, in all cases of a particular type, actions shall be barred after a certain period, without the necessity of referring to individual conscience or circumstances.

 

From the twelfth century onwards, there was royal intervention, setting limitation dates in relation to certain types of legal actions.[7] The strategy was to use as a cut-off point some significant and well-known political event, such as the death or accession of a king, or the return of a king from an overseas expedition.[8] There was a lack of articulation of the reasons for limiting actions in such a way, and it is likely that the concern was with establishing stability of land-holding after a period of uncertainty as much as with fairness to the parties in individual cases. After the the reign of Edward I, the twelfth and thirteenth century dates were not further adjusted, so that the effective limitation period for those actions covered by earlier statutes grew in length each year. Blackstone called this situation ‘absurd’.[9]

 

As well as the statutes, the medieval common law set temporal limitations in other ways. The related idea of prescriptive acquisition had some role in relation to the acquisition of franchise rights, common rights and perhaps personal freedom.[10] Human lifespan was sometimes a limiting factor, since some forms of action did not survive the parties.[11] For evidential reasons, some criminal cases were required to be brought within a short time limit – notably rape accusations.[12] In addition, within the legal profession, there are hints of a general principle of limitation in the view that ‘every writ has its limitation period’, given in a case of 1285.[13]

 

(ii) from 1540: ‘another and more direct course which might endure for ever’[14]

 

The policy of setting by statute a fixed number of years as a limitation period for (some) actions was first introduced in 1540.[15] This legislation of Henry VIII was concerned with land actions.[16]

 

The statutes’ coverage was relatively narrow. The medieval legislation and the act of 1540 concerned only land actions,[17] and, even within the category of land actions, they were not comprehensive.[18]  It was not until the 1623 act that the first limitation periods were set for tort actions,[19] and, for example, contractual suits in which there was a sealed deed were excluded. No general limitation was placed on the bringing of criminal proceedings.[20]

 

The thirty to sixty year periods fixed in 1540 appear comparatively long, but were a considerable reduction from the effective limitation period in the years immediately preceding the act.[21] Adjustments were made in an act of 1623-4,[22] revising some periods downwards, beginning a trend which has continued into modern times.

 

It was clear from the start that fixed limitation periods would be a problem for those labouring under some disability in person or at law, and efforts were made to minimise unfair disadvantage in such cases. The statutes therefore included provisions allowing extra time for those in such a position: initially covering those under the age of majority, married women, those in prison or outside England, and in 1623 extended to cover those who were non compos mentis.[23] Other matters of detail and interpretation were worked out in supplementary statutes or in common law cases,[24] and the Chancery and ecclesiastical courts elaborated their own parallel doctrines in the limitation area.[25]

 

III: More recent history

From the nineteenth century to the present, both statute and case law made adjustments to the law on limitation.[26] The related laches principle continued to develop in the nineteenth century court of Chancery,[27] and, since the merger of common law and equitable jurisdictions in 1873-5, became available in all courts.[28]

The Chancery had long taken notice of the statutory limitation regime – applying limitation periods in connection with actions against trustees, by analogy with statutory provisions.[29] The subject of limitation began to attract treatise writers in the nineteenth century, examining statutes and case law, and sometimes comparing the situation in other jurisdictions.[30]

 

The trends in statutory limitation have been towards simplification (reduction of numbers of categories – in line with the common law’s general move away from the dominance of forms of action); increase in the scope of the limitation rules,[31] reduction of the length of the limitation period and some erosion of the principle that time does not run against the crown.[32] England and Wales, unlike some other legal systems, have not embraced general principles of limitation with relation to criminal prosecutions.[33]

 

The matter has not often formed part of undergraduate law studies, with the exception of consideration of adverse possession and limitation in the context of land. It has, however, remained a crucial topic for practitioners and litigants, and has been considered by bodies dedicated to reform and rationalisation of the law on a number of occasions, from the 1820s onwards.[34]

 

IV: Conclusion

Limitation of actions, then, is an ancient idea. The history of limitation in England and Wales shows a range of different justifications for it and a range of techniques for achieving what is regarded as a fair limitation period in different types of case. It is clear that ideas of appropriate temporal limitation of actions – and which actions should be so limited, and who should and should not be subject to such limitations – has varied considerably over time, and no doubt the rules will continue to evolve with economic and political conditions.

 

 

 

[1] See, e.g., P. du Plessis, Borkowski’s Textbook on Roman Law 4 ed, 76-7, 167;  Dig. 41.3.1; A.M. Prichard, ‘Early usucapio’ (1974) 90 LQR 234-45; R.W. Lee, The Elements of Roman Law 4 ed 1956, 125.

[2] YB Trin. 34 Hen. VI, pl. 27; Bl. Comm. bk III c. 10.  A’Court v Cross [1825] 3 Bing. 329 at pp. 332, 333;  Board of Trade v Cayset, Irvine & Co. Ltd [1927] AC 610 at p. 628; Thomson v Eastwood (1877) 2 App Cas 215, 248; Mountstephen v Brooke 3 B & Ald. 147 106 ER 614; Cholmondeley v Clinton (1920) 2 Jac & W 1, affirmed 4 Bligh 1, 130 ER 540; Doe d Duroure v Jones (1791) 4 TR 300, 308; 100 ER 1031.

[3] See. e.g., H.J. Stephen et al., Mr Serjeant Stephen’s New Commentaries on the Laws of England, , 14th ed., 1903), 541.

[4] Law Commission Consultation Paper no. 151, 1.27; Thomson v Eastwood (1877) 2 App Cas 215, 248-9.

[5] See. e.g., Cholmonderlet v Clinton (1820) 2 Jac & W 139, 37 ER 527, 577; H.J. Stephen et al., Mr Serjeant Stephen’s New Commentaries on the Laws of England, , 14th ed., 1903), 541. Note also contrary views, condemning the idea of limitation of actions, Reeves v Butcher [1891] 2 QB 509. but that, while there are certainly live debates about the detail of limitation periods and their application, the idea that there should be limitation to at least some legal actions is entrenched in the law of England and Wales.

[6] W. Blackstone, Commentaries on the Laws of England (Oxford, 1765-9) four volumes, vol. II, book III, ch 10  p.189; Thomson v Eastwood (1877) 2 App Cas 215, 248 per Lord Hatherley; Mountstephen v Brooke 3 B & Ald. 147 106 ER 614, per Abbott CJ.

[7] P & M II, 51, 81. See, e.g.; the statute of Merton cc.8, 9, statute of Westminster I c. 39 in Statutes of the Realm I, pp. 3, 36. Note that, even before intervention by statute, certain land actions required that action should not be delayed too long. In particular, the action of novel disseisin implied that the claimant had been dispossessed ‘recently’. P & M II, p. 51; Glanvill xiii, 32, 33. Co. 1 Inst. 153.

[8] The practice of dating by association with other events made sense in a less reliably documented world, and was a characteristic practice in medieval law, also seen, for example, in assessments of the age of minor heirs in inquisitions post mortem.

[9] W. Blackstone, Commentaries on the Laws of England (Oxford, 1765-9) four volumes, vol. II, book III, ch 10  p.189. Note however, that the popularity of novel disseisin, which Blackstone was discussing, was in decline from the later medieval period, (see, e.g., W.S. Holdsworth, History of English Law IV, 484) and that limitation statutes did not cover many other important common law forms of action. The position may, therefore, have been somewhat less ‘absurd’ than he thought.

[10] See, e.g., J.H. Baker, Introduction to English Legal History 4th edn (London, 2002), 470-1; P & M  1 p. 425; YB 6 Edw. II Quo Warranto pl. 5 and pl. 6.

[11] See, on debt and trespass, Baker, Introduction, 326, 345, 401. S.F.C. Milsom 77 LQR at 264; Martell’s Case (1382) YB M 6 Ric II pl 33, per Belknap CJ; and on actions for seisin of land when the defendant died and was succeeded by an heir: Littleton’s Tenures, 421 ff.

[12] See, e.g., G.D.G. Hall (ed.), The Treatise on the Laws and Customs of England commonly called Glanvill, book 1, c.6; statute of Westminster I (1275) c. 13.

[13] Prior of Launde’s case (1285), P.A. Brand, The Earliest English Law Reports vol. II (London, 1996), 205-9.

[14] Bl. Comm. vol. II, book III, ch 10,  p.189.

[15] 32 H VIII, c. 2 (1540); Statutes of the Realm III, 747. There had been an attempt at something similar in 1529, though this was part of a set of proposals which failed due to parliamentary opposition: W.S. Holdsworth, History of English Law vol. IV 451, 484, 572-4. Note that the statutes’ strategy was to bar the action, rather than the right: Bevil’s Case (1573) Co. Rep. at ff. 11b, 12a. Wainford v Barker (1698) 1 Ld Raym 232.

[16] Its promulgation at that time is likely to have been connected to the upheaval and uncertainty caused by the 1535-40 attempts by Henry VIII to enforce royal claims to feudal revenue by rendering wills of land held to uses (on trust) first totally and then partially invalid. Baker, Oxford History of the Laws of England vol. VI, p. 725 notes that some lawyers were expressing views that this was something which should be reformed.

[17] The early concentration on land actions can be explained, first, by the common law’s particular concern with land law, and, secondly, by the room for genuine doubt as to title to land in a system with surprisingly few formalities for acquisition. In this context, refusing to go too far back into the history of the tenure of a particular piece of land meant that there was a reasonable chance of producing oral testimony if documentary evidence were absent or unsatisfactory.

[18] The statute did not, for example, apply to advowsons and wardships: st. 1 Mar. (1553) session 2 c.5. It did not apply to writs of formedon nor actions involving rights of entry: Holdsworth, History of English Law, 484; 1623 act s.1.It did not apply to the king – only in c.2 of the Jacobean statute was the royal right included, and then a period of sixty years was deemed appropriate.

[19] Significant areas were still not covered by the limitation legislation: see Civil Procedure Act 1833.

[20] This was, in part, explained by the maxim nullum tempus occurrit regi (Co Litt 90b: no time runs against the king), though, given the ‘private’ nature of many prosecutions, this is not a full explanation. There were, however, limitations on some prosecutions from the Tudor period: Holdsworth, History of English Law IV, 499, 525; st.7 Henry 8 c.3, st. 31 Eliz c 5. In addition, many early modern statutes, particularly those dealing with (private) criminal prosecutions, included a specific limitation period.

[21] 32 H VIII, c. 2 (1540); J.H. Baker, Oxford History of the Laws of England vol. VI, p. 725

[22] 21 Jac. 1 c. 16 (1624); Statutes of the Realm IV, 1222; W. Ballantine, A Treatise on the statute of Limitations (21 Jac. I c. 16., (1810)

[23] Section 2 of the 1623 act added those who were non compos mentis to the list of those regarded as having disabilities. Ideas about persons and disability have evolved and other circumstances have had to be taken into account – see, e.g., Limitation (Enemies and War Prisoners) Act 1945.

[24] See, e.g. Anon (1552) Brooke Abr., s.v. ‘Limitations’ pl 2; Prideaux v Webber (1661) 1 Lev. 3; Hyleing v Hastings (1699) 1 Ld Raym 389.

[25] See, e.g. R.H. Helmholz (ed.),Three Civilian Notebooks 1580-1640, Selden Society vol. 27 (2010)., 64, 95, 101, 108; R.H. Helmholz, Oxford History of the Laws of England vol. I, 570, 584-5; W.H. Bryson (ed.), Cases Concerning Equity and the Courts of Equity 1550-1660 vol 2, Selden Society 118 (2001), no. 207, Randall v Tyrney (1612); D.E.C. Yale (ed.), Nottingham’s Chancery Cases (1954, 1961-2) Selden Society 73 and 79, xcv, 448, xcvii, 505; Holdsworth, History of English Law V, 329 Blackwell v Simpson (1582-3) Choyce cases 163; Clench v Tomley (1603) Cary 23; Porter v Pretty (1604) 1 Choyce cases 105-6; Sedgwick v Evan (1582-3 Choyce Cases 167] Sibson v Fletcher (1632-3) 1 Ch Rep 59, 60; Hales v Hales (1636-7) ibid. 105. Garford v Humble (1628) Tothill 26; Moyle v Lord Roberts (1629-30) Nels. 9, 10;.Smith v Clay (1767) 3 Bro CC 639; Pickering v Lord Stambrod (1793) 2 Ves 272 at 280.

[26] See, in particular: Civil Procedure Act 1833, Real Property Limitation Acts 1833 and 1874, Limitation Act 1939, Law Reform (Limitation of Actions) Act 1954, Law Reform Miscellaneous Provisions Act 1971, Limitation Act 1975, Limitation Act 1980. Courts of Chancery worked out the applicability of statutes of limitation in their jurisdiction – see, e.g., Foley v Hill (1844) 1 Phil 399.

[27] Holdsworth, History of English Law V, 329. See also, e.g., Cox v Morgan (1801) 2 Bos and P 368 at 412; Marquis of Cholmondeley v Lord Clinton (1820) 2 Jac & W 1 at 140; Rochdale Canal Co v King (1851) 2 Sim NS 78 at 89; Penny v Allen (1857) 7 De GM & G 409 at 426; Archbold v Scully (1861) 9 HL Cases 360 at 383; Lindsay Petroleum Oil Co v Hurd (1874) LR 5 PC 221 at 239; Re Baker, Collins v Rhodes, Re Seaman, Rhodes v Wish (1881) 20 ChD 230, CA; Re Maddever, Three Towns Banking Co v Maddever (1884) 27 ChD 523, CA.

[28] Judicature Acts 1873-5, 36 & 37 Vict. c. 66 and 38 and 39 Vict. c. 77; Holdsworth, History of English Law XVI, 165; J.E. Martin (ed.), Hanbury and Martin Modern Equity 19th edn 2012, p. 717, Knox v Gye (1872) 5 App Cas 656 at 674; Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 at 239-41 Re Sharpe [1892] 1 Ch 154 at 168; Weld v Petre [1929] 1 Ch 33 at 51, 52; Re Pauling’s ST [1964] Ch 154 at 168; Alec Lobb (Garages) Ltd v Total Oil GB Ltd [1985] 1 WLR 173.. Laches retained under Limitation Act 1980 s36(2).

[29] Knox v Gye (1872) 5 App Cas 656 at 674. Claims against express trustees became subject to statutory limitation in 1833 (Real Property Limitation Act 1833 s. 25) and those against trustees under implied or constructive trusts became subject to limitation in the Trustee Act 1888.

[30] See, in particular, J.J. Wilkinson, A Treatise on the Limitation of Actions as affecting Mercantile and other Contracts (London, 1829); W, Blanshard, A Treatise on the Law of Limitation (London, 1833), G.B. Mansel, A Treatise on the Law of Limitation (London, 1839), H.T. Banning, A Concise Treatise on the Statute Law of the Limitation of Actions (London, 1877); L.M. Lightwood, The Time Limit on Actions (London, 1909).

[31] For example in the field of debts backed up by a bond or ‘specialty’ was given a limitation period in the Civil Procedure Act 1833.

[32] See, e.g. G. Sharp, A Short tract concerning the doctrine of nullum tempus occurit regi (London, 1779). Nullum Tempus Act, 9 Geo. III c. 16 s 1.J. Chitty, A Treatise on the Law of the Prerogatives of the Crown (London, 1820),  379-80, Holdsworth, History of English Law X, 355

[33] See Note,‘ The statute of limitations in criminal law: a penetrable barrier to prosecution’, University of Pennsylvania Law Review 102 (1954) 630-54; Archbold 2013 ed 1-270; 4-74.

[34] Real Property Commissioners, First Report,  Parliamentary Papers vol. X(1829); Law Revision Committee, Fifth Interim Report (Statutes of Limitation) (1936); Law Reform Committee Twenty First Report (Final Report on Limitation of Actions) 1977) Cmnd 6923; Law Commission Consultation Paper no. 151, Limitation of Actions (1998); Law Com. no 270, Limitation of Actions (not taken forward by the government); N.H. Andrews, ‘Reform of the limitation of actions: the quest for sound policy’, CLJ 57 (1998) 589-610. Note the interesting suggestions concerning moving away from an ‘all or nothing’ to an ‘incremental’ approach to limitation which is described in A.J. Wistrich, ‘Procrastination, deadlines and statutes of limitation’ William and Mary Law Review 50 (2008) 607.

Image: a fence – sort of limit, innit? Photo by Markus Spiske on Unsplash

Neither loving, nor honouring, nor obeying the law on petty treason?

Today’s tale of less-than-happy relationships comes to you courtesy of entries on legal records from   1439.

A record of the Inquest at Bromham, Bedfordshire, on 18th May, 1439, on the body of Alice wife of William atte Halle of Bromham, labourer, notes the jurors’ view of events leading up to Alice’s death. They said that Alice had been pregnant, and suffering from a variety of complaints (whether pregnancy-related or not is unclear), and William had made the decision to kill her. On 7th May at Bromham, he had a certain dish (a posset? it would seem to involve milk curds – the word is balductam) made, and put various venemous powders in it, i.e. arsenic and resalger),[i] and gave the dish to Alice to eat, saying that it would make her well, and, believing his words, she ate, and was immediately poisoned, swelling up, being ill until 17th May, and then dying of that poisoning. He had, therefore, feloniously killed his wife. There is more: a record relating to the gaol delivery at Bedford on 30th July, 1439 notes that William was there because he had been indicted for having feloniously killed Alice, by putting poison (arsenic and resalgar) in her food on 7th May, so that she had died on 18th May. Above the entry, unless I am misreading it, we see a note that he was found guilty, and ordered to be drawn and hanged.

So what?

  1. The medical and personal information

There are some nuggets in the inquest record which are worth noting.

The account of the poisons used suggests a knowledge, and an availability, of these substances, down to a relatively lowly level. As for the swelling effect, and the lingering for 10 days, that is something which might be of interest to medical historians – is that plausible? Can we say anything about that without knowing how much was allegedly used, and how would one know that swelling was due to poisoning as opposed to pregnancy or other pre-existing conditions?

The narrative of William’s lies about the food being likely to help Alice get better also tells us something about plausible relationship dynamics: a wife would be likely to trust her husband; a husband of ‘labourer’ status might be involved in his wife’s care. I suppose it also tells us something about accepted nutrition for sick pregnant women.

  1. The sentence

Drawing and hanging was the classic punishment for ‘petty treason’. I have been collecting examples of spousal homicide for quite a while and I had got used to seeing a nice (well, not nice at all, but you know what I mean) neat distinction between the treatment of W kills H (= petty treason, those convicted are burnt) and H kills W (= ‘just’ homicide, those convicted are hanged). This looks like a court – or somebody – ‘getting the law wrong’ then. Maybe it’s just a ‘blip’, or maybe it shows us particular distaste for this offender, or these facts. On the face of it, it is presented as a ‘normal’ homicide – all we get in terms of motive is the usual ‘malicia’. There is no use of ‘treason words’ like proditorie, as we might see in a servant kills master, or W kills H case. There is the idea of William ‘imagining’ Alice’s death, which is something of a link with ‘high’ treason jurisprudence. Other factors which might be relevant are (a) the poisoning and (b) the pregnancy. Poisoning would be singled out as particularly worthy of spectacular punishment in the next century.[ii]  Might this suggest a whisper of a previous connection between treason and poison? As for pregnancy – well, the question of the common law’s attitude to the foetus, and its possible ‘rights’ is a huge topic, which I plan to get into rather more in the coming year, but suffice it to say at this point that, while it was thought worth mentioning by the inquest, the pregnancy is not mentioned in the gaol delivery entry, which, I think, is some indication that it was not considered to be the key to the raised level of offence.

An interesting oddity then, and I will have to work out how to fit it into my ‘spreadsheet of doom’ on petty treason.

GS

17/8/2021

 

[i] We’ve come across this combination before in the lore of spouse-offing: see this post.

[ii] ‘Acte for Poysoning’ (22 Hen. VIII c. 9; SR 3, p. 326).

Image: general theme of love and such … this one is clever but just a little sinister. Or maybe that’s just me …

Photo by Tim Marshall on Unsplash