Roman castration pliers

Thoroughly modern mayhem?

There is a story in the UK news[i] which is of potential interest to those of us who like a bit of mayhem. One Marius Gustavson appeared in Westminster magistrates court on Wednesday 22nd March, charged with offences including GBH for removing body parts from other men (those parts including penises, testicles,[ii] nipples, as well as damaging legs beyond healing, requiring amputation …). Other men, allegedly involved in the same activities, appeared in other courts. The chopping of bodies is portrayed in reports as perhaps being consensual, and part of a ‘nullo’ subculture (a new thing to me), and the whole process also involved filming, streaming and charging people to view the footage.

It is the suggestion of consent which caught my attention. It is unlikely that a defence based on consent could succeed in this situation, following, in particular, the decision with regard to less extreme injuries in R v Brown back in the 1990s (gay S & M-inflicted injuries, Lancs; consent defence to offences under ss. 47 and 20 of the Offences Against the Person Act 1861 – ABH and wounding – does not work)[iii]. However, I wonder whether it will reignite people’s interest in the law which lies behind Brown, and, in particular, its discussion of mayhem/maim. Whether or not there is a full, discursive, judgment to pore over, I think we can probably anticipate some commentary which takes a bit of a wander through the weird and wonderful world of mayhem.

It does strike me that the injuries in this new case are actually much more clearly within the traditional bounds of mayhem than were those in Brown (or indeed the tongue-splitting etc. in  R v. BM).[iv] Statements on the law of mayhem, and its application, required permanent damage, loss of function or total loss of a ‘member’, which I am not sure was present in Brown, though it certainly is here.[v] They are also very much tied to the male body – so damage to testicles in particular is specifically mentioned in the masculine-focused medieval definitions of mayhem. Leg-removal would also be a clear mayhem. Nipples I am less sure about. And Bracton completely failed to anticipate live-streaming, though it did predict one other aspect of this case – keeping the removed bits

We await the next part of the legal process – apparently due for the 19th April – and further enlightenment.

 

GS

27/3/2023

[i] See, e.g. the Guardian report, though it is in many other places.

[ii] Apparently this is done with something called a ‘burdizzo’. I now know 100% more about how this all works than I did 15 minutes ago. I am not sure that that is a good thing. None of the reports make it clear whether anaesthesia was involved. For castration in Bracton, see this post.

[iii] [1994] AC 212.

[iv] [2018] EWCA Crim 560.

[v] Some of the journalism also draws us into a story from Japan of a man who had his genitalia removed, cooked and eaten … Definitely beyond my mayhem-centric remit. I don’t think this was what Bracton had in mind in its passages on castration and mayhem.

Image: Roman castration pliers, obviously. Courtesy of Wikimedia Commons.

Also ran, or a bit of a gallop off in the wrong direction

Some time ago, it became apparent to me that there was a fair chance that any research-related keyword trawl of old newspapers would bring up results relating to horse racing. I suppose it’s not particularly surprising – there are lots of horse races and racehorses, and the equines  can’t all be called Dobbin or Silver, so owners use whatever daft word or couple of words that may pop into their heads.

Today, I did an idle search for ‘Petty Treason’ in a newspaper database, just to check there wasn’t anything more I should be adding to my current project, and was interested and surprised to see quite a few hits from the 1960s and 1970s. I had forgotten the whole horse thing, but, as it turned out, most of the hits were, in fact racing results or lists of runners. It would seem that there was a filly called Petty Treason, which ran in races all over the country for a period in the early 60s. I rather like the fact that she was a lady horse (yes, that is the technical term)  certainly resonates with my project, and its subject matter of women killing their husbands as petty treason. I also like the fact that Petty Treason’s sire [horse daddy – see, I know some of the words] was called High Treason.[i]

Petty Treason does not seem to have been massively successful – I have only seen one victory so far – but at least she did not follow the path of her namesake-offence and end up being burnt at the stake. She seems to have become a brood-mare [yes, again, note horsey vocab – crushing this!] and produced some offspring, with different stallions [and I am remembering more horsey vocab – that’s called ‘covering’ the mare, isn’t it … resonances with ‘coverture’ …?] though sadly they did not get treasonous or criminal names. Poor show.

Now – how on earth am I going to get this into the paper I am writing, on petty treason, for a conference in a few weeks? Stakes, that’s the link, isn’t it? Needs some thought. Giddy up!

 

GS

18/3/2023

[i] See, e.g., Times 14th  Sept 1960 p 14, and, for her win see Times 13th June 1961 p.4.

Image: Photo by Daniel Bonilla on Unsplash  See if you can get it – yes that’s right, it’s a horse! See, this equestrian stuff is easy. Off for a bit of dressaging now. What, you don’t dressage? Oh, you must

[E]stop in the name of love

Yes … wrenched pun heralds a note on the fact that yet another proprietary estoppel case has come out, Gladstone v White [2023] EWHC 329 Ch. Not a massively exciting one in terms of legal doctrine, but some things to notice about the judgment, and the ‘human interest’ reporting of the case in various parts of the press. And vaguely historical because it features an old stately home in Bucks …

Basic facts

The main contenders in the case were solicitor Leigh White and David Gladstone (a former diplomat, i.a. having been the High Commissioner to Sri Lanka). White claimed an interest in Gladstone’s land, (Wotton House, a  Grade I listed ‘£15 million mansion’). White was, until recently,  in the mansion and refusing to leave; she had been there since the pandemic, when Gladstone (a man in his late 80s) had moved out to self-isolate. He now wanted to come back and wanted her out.

There had been a close relationship between White and Gladstone, though there was disagreement as to whether this amounted to her being a ‘surrogate daughter’ (and thus just the person to be left the property) or her being rather more in the nature of a friendly and competent adviser (and thus not likely to expect to benefit in property terms).

So what happened? Read on …

 

The Legal Bit

Well  … White’s claim was that she had an interest by virtue of proprietary estoppel. She said he had assured her that she would be left this interest, and she had acted to her detriment in reliance on it, so that it would be unconscionable for him not to give her the interest. He disagreed and wanted her out. On Gladstone’s side the argument was that there was no assurance which amounted to something White might reasonably have relied upon to her detriment, and not really any detriment, so no proprietary estoppel.[i] White lost on all fronts – and I don’t have anything very much to say about the law – it is applying the precedents in a fairly unsurprising way.

 

A long story

Several Land Law academics have commented on the length of this case – and, indeed, other proprietary estoppel cases. This one, from Trower J,  weighs in at 123 pages. Many of us recently had to slog through 108 pages of Guest v. Guest. There is a genuine issue here, for teachers of Land Law – we all like the idea of students reading primary sources, of actually going to the case law, but it is becoming increasingly unrealistic to expect them to be on top of such long cases. (There are a few interesting points in another recent one, Mate v. Mate, a measly-by-comparison 92 pages, but that is not going on any of my reading lists). If it takes us a long time to get through one, we have to expect that it will take students, less (tragically) immersed in the background, and the other cases in the area, much, much longer. Obviously, judgments are not principally written for teaching purposes (unlike, we may think, the old Year Books) but I do wonder whether it is wholly necessary for them to be quite so discouragingly long.

As many of us work with assessment regimes with strict word limits for student answers, there does seem a particularly striking contrast between that insistence on efficiency of expression and the apparently complete lack of limits on the length of judgments. I wonder if the current generation of students, word-limited as they are, will produce shorter judgments when some of them rise to the heights of judgehood. Or will they take these cases as a challenge to produce ever longer judgments?

It certainly appears self-indulgent at times, to have 100 plus page judgments, and I do think that Guest could have benefited from some pruning. There is, perhaps, more reason to have longer judgments in lower courts, so as to set down all of the findings of fact, and the ‘workings out’, and to minimise the possibility of appeals and criticism on the basis that a first instance judge has not considered something or other, or not considered it properly. Still, it is a bit of a heart-sinker, seeing that you are on ‘p. 1 of 123’ in a judgment …

It could probably lose some of the narrative bits. Evidence of Gladstone’s ‘frail’ state of health was, of course, very relevant, as was White’s career as a solicitor, (first, because she was basing her case in having suffered detriment by giving it up to work at Wotton, and, secondly, because, given the knowledge of legal matters which it implied,  it had implications for whether or not it was reasonable for her to rely on certain words as indicating that she would have a property interest). I am not sure that it was pertinent that Gladstone was ‘cultivated’ and ‘sensitive’ (34), or moved in ‘sophisticated circles’ (64), or the name of the architect who had done some revamping (even if that name is Ptolemy Dean. Ptolemy! Good Lord!). [And the suggestion that ‘David could be long-winded (128) may be thought to sit a little uninsightfully in a 123-page judgment….] So, we could do without some of the narrative elements, but nobody would want to redact the excellent passage in paragraph 421 in which we are treated to the exact wording of a quarrel in which somebody called White ‘a fucking nobody’ (though the judge does not use inverted commas, which does make it look rather as if the words are his.)

The coverage

Not that many Land Law cases find their way into the press. Not as exciting as big criminal cases, or Wagatha Christie style defamation cases, I suppose, but still, they do occasionally push the right journalistic buttons – different buttons for different papers. With this one, we have a mixture of:

  • Wealth/prominence of the property owner (Millionaire ex-ambassador, or even ‘multimillionaire’)[ii] The Mail gives us the additional nugget that he was a descendant of William Ewart Gladstone (old families – marvellous …) and throws in the fact that Tony Blair and his wife Cherie Booth had bought ‘a former coach house’ on the estate (how very downmarket! And, at the same time, extravagant!)
  • Value of the property (all accounts). Suspect it was this that drew in that well-known legal journal, the Tatler.
  • The fact that the losing party was a lawyer (always a bit of schadenfreude when lawyers lose lawsuits, I think).[iii]
  • The size of the legal bill faced by the losing lawyer (compounds, or adds an extra degree of piquancy to the schadenfreude felt by journalists, so it seems to me, anyway). £1 million is mentioned …[iv]

Only the Times, as far as I can see, went with a designation of ‘squatter’ for White. And, for a couple of points about Gladstone in his ambassadoring days, you’ll need to look at the Sri Lankan Times.

Anyway – law students, I am not sure I would bother plodding through this one: you have enough on with Guest v. Guest. It would be a rather good plot for a drama, though, should any TV or radio dramatists stumble upon this: class elements, stately home, tension, got to be Winslet as the lawyer-claimant, Nighy as the landowner; and a chance for a bit of a cameo from Michael Sheen as Tony Blair … come on, you know it makes sense.

GS

2/3/2023.

[i] (There were other things going on, to do with trusts and undue influence, but let’s keep it simple, and think just about Wotton and about the proprietary estoppel case).

[ii] See, e.g., Express.

[iii] See, e.g., Mail.

[iv] See, e.g., Metro and Sun.  In fact, this looks like a conservative figure, if my sums are correct!

Exam question setting season musing

A problem question problem (in the form of an essay)
‘I should spend less time devising “amusing” out-of-date pop culture themed names for my problem question characters, and just call them Arnold, Betty, Charlie and Deborah’
Discuss.
(Photo by MChe Lee on Unsplash – though we aren’t doing traditional exam hall exams this year. I miss them.)

Hell is other people[‘s property rights]?

Yes, it’s another infernal easement dispute:

(Fair warning – this is a Land Law post. Normal historical service will be resumed soon. Bracton’s Sister thanks you for your patience).

The High Court judgment in a fiercely-fought easements case has just appeared. Hambling v Wakerly [2023] EWHC 343 (Ch.) is an (unsuccessful) appeal from a decision in Norwich County Court, by HHJ Walden-Smith, and concerns land in Suffolk. (And, to the great relief of those of us still struggling through the whopping proprietary estoppel judgments which have been gushing forth in recent months, it is a mere 12 pages. Appreciated!)

The dispute, which had been brewing for some time, had various aspects, but the only thing which was to be decided in the appeal was whether the judge in the County Court had got wrong her construction of an express easement, to be found in a 2001 Land Registry Transfer.

The land lay like this … The Hamblings were registered proprietors of two separate but almost-adjacent parcels of land: to the west, Garden Cottage (with gardens and post-transfer-constructed stable block) and to the east, a field. A private road ran between the two, and out to the highway, the relevant land being owned by the Wakerlys. There was an easement relating to that private road. It was agreed by both sides in the case that the field had the benefit of that easement. They also agreed that it could not be used as a straightforward right of way from the cottage to the highway. The actual argument was as to whether the Hamblings could use it  between Garden Cottage and the field. They said yes, the Wakerlys said no.

In Norwich County Court, the Hamblings were told that they could not use the track as they wished, between the two parcels. They had run arguments based on: (i)  construction of the wording of the easement; (ii) ancillary use; (iii) proprietary estoppel; (iv) rights to light (in relation to a fence which will be mentioned below, which ran ‘along the entirety of the cottage/track border’. The appeal concentrated on the construction argument. The relevant words involved a grant of a ‘right of way for all purposes with or without vehicles at all times of the day and night over and along the [ road ….] but subject to access over the road marked “Drive” [on the annexed plan] only being used for access to the field not to Garden Cottage.” That looks pretty conclusive against their claim of a right to use the road to gain access to Garden Cottage, so I am not surprised that the case on construction did not work in the County Court.[i] The construction rules, as referred to in the County Court, from the trusty ‘Easements Bible’, Gale on Easements were:

  • Construe according to general rules on interpretation of legal documents
    • Assess the words of the transfer in light of
      • their natural and ordinary meaning (objectively and not taking into account subjective intentions)
      • any other relevant provisions in the Transfer
      • facts and circumstances known or assumed by the parties at the time of transfer
      • commercial common sense.
      • all facts and circumstances (as an aid to interpretation).

 

The County Court judge decided that the natural and ordinary meaning meant no use of road for access to Garden Cottage, and nothing displaced that.

The Hamblings’ lawyer tried to argue that the County Court judge had taken into account ‘subjective’ material which should not have featured in her construction. However, that was a bit cheeky, since she had also had to deal with the proprietary estoppel argument of the Hamblings, which did require such material to be considered. So that didn’t wash in the High Court. Other criticisms were made of the County Court decision, with regard to whether sufficient account had been taken of the geographical facts, and the suggestion of some odd sort of one-way access from cottage to field, but to no avail. (Incidentally, is there really a need to use locus in quo, terminus a quo and so on? Perfectly good English expressions, avoiding the classical class issues and facilitating accessibility, are available, you know).

The Hamblings’ argued that, even if they lost on basic construction, they could still use the road from Garden Cottage as a matter of ‘ancillary use’. This sort of argument can work, at times, as a sort of ‘escape route’ from restrictive doctrines like the rule in Harris v. Flower, or as a way of enlarging the meaning of clearly-existing easements, but it did not work here, first, because there were express words against such use, and, had it been necessary to go there, there was a second strand – such use would not actually be ‘ancillary’ to the use of the field.

While I am sure that this case is correctly decided on the law, it is, in fact, easy to see why one might think that a grant of two pieces of land to the same people would mean that the rights could, in a sense, be amalgamated, and used for both pieces of land. In England and Wales, however, easements are very definitely attached to pieces of land – operating for the benefit of a specific ‘dominant tenement’. Perhaps this case shows something of the distance between that idea (rather artificial, when you think about it – since it is, in the end, people, not land, who can benefit from such rights) and the ‘common sense’ or ‘gut-feeling’ assumptions of those who have not had the pleasure of a course in Land Law.

From a pure Land Law point of view, I think it is a case which shows the less-than-ideal state of the law on excessive user. Reading between the lines a little, it appears that the main concern of the Wakerlys was to do with the likelihood of intensification of use of the field. Much as the Hamblings’ lawyer might try and portray the situation as stopping the Hamblings doing nice things for their horses – the odd bag of hay, being taken to the field from the cottage, that sort of thing – the Wakerlys were probably rather more concerned with motor vehicle use. But the rules on intensification are rather generous to dominant owners, so resting on the express words of the transfer, and whacking up a fence in accordance with their limitation of the benefited land, was one way of avoiding a level of disturbance they did not want to tolerate.

The reason that I became aware that this case was coming up was that it had been picked up by certain sectors of the press, ever on the look-out for a case which could be fitted into the ‘neighbours from hell’ template. (For a handy starting list of such reports, see Sarah Nield, ‘Inflexibility of enduring property relations: the easement story’, Conv. (2021) 290-304, at note 91). The Daily Mail and Daily Express, and sometimes the Sun and Telegraph, can be relied upon to pounce upon stories like this. Occasionally there might be the potential for a cross-over with other favourite journalistic themes, but the NFH template is usually deployed in one of two slightly different ways – either ‘let’s purse our lips at the ruffianly behaviour of the lower orders’ or else ‘ooh look, we can talk about house prices and property’. This tends to the latter model. I do think that there is scope for some consideration of journalism in this area. Looking at reports of this case, I note the frequent emphasis on the Hamblings’ characterisation of their neighbours as ‘monstrous’,[ii] or ‘monstrous millionaires’ who were ‘boxing them in’.[iii] There is also the ‘dream home turns into nightmare’ trope.[iv] The 6 foot height of the fence was highlighted,[v] and the expense of the litigation, and its length, featured.[vi] There is an interesting ‘spin battle’, or inconsistency, between the idea that the Hamblings were losing the dream cottage/idyll/chocolate box because of the actions of the Wakerlys in building the fence, and the revelation that the insistence on the right to use the access road was connected to a potentially non-dreamy or chocolate-box-adjacent plan to use the field for the parking of vehicles.[vii]

A preliminary scout through other such cases makes me think it would be interesting to see what are the regular negative descriptions of parties in the cases (so far, I find references to spite[viii] and petulance[ix] quite interesting). I would look out for presentation of the matter as a ‘feud’ (well that is a bit legal historical, isn’t it?)[x] or as something of a ‘come-uppance’ tale, especially when it seems that the ‘bad’ neighbour might lose his or her house as a result of the expense of litigation,[xi] or when the loser is a (greedy) lawyer.[xii] Finally, because judges are definitely built up as ‘characters’ in these reports (and I am sure that they are far from unaware of that), I would be on the alert for judges performing  ‘surprise’ that such a dispute could not be sorted out amicably, or without court proceedings.[xiii] The judge in the High Court here avoided this sort of thing, not getting ‘judgey’ or ‘preachy’ about people bringing expensive litigation over such disputes, though this is all too common.[xiv] It always appears to me to be self-important ‘grandstanding’ on the part of judges,  rather talking down to people, who can spend their money on cases if they want to, however foolish, or trivial, it might appear to others.

Finally, on the subject of the intertwining of law and the media, there is a little throw-away comment in another recent judgment of the last decade, which I will use as a concluding thought/conversation opener … the judge in a case in Bristol County Court case, Shortland v. Hill (2017), HHJ Paul Matthews, shared with the world, at paragraph 36, the fact that he had watched the coverage of the case in a reality TV show about such things, ‘Neighbours from Hell’.This had been included in the trial bundle. He was quick to say that this had not been until after he had come to his conclusions – but still, definitely a sign of the back and forth between legal professionals and the media on this one.[i]

GS

26/2/2023

 

 

.

 

 

[i] There was some potential doubt surrounding the way things had been mapped. My students are always a bit surprised at the … how to put this … inexact … nature of maps in Land Registry records, when they encounter them for the first time. In a world of drones and GPS, when estate agents routinely offer 3D tours of properties, it does seem a little scrappy to be dealing with these rather rough maps.

[ii] E.g. Metro.

[iii] In the Mirror and Mail.

[iv] Again, in the Mirror. And here.

[v] See, e.g., the Metro and Mail

[vi] Express

[vii] As reported here,

[viii] E.g. this one about an ‘aggressive and spiteful pensioner’

[ix] E.g. this one.

[x] E.g. here.

[xi] E.g. this one.

[xii] E.g. here and here.

[xiii] General, see, e.g., this

[xiv]  See, e.g. paragraphs 42 and 43 here.

[i] (He also commented upon the fact that the claimant was bald … which was interesting …)

Image: that’s the flag of Suffolk, that is – new one on me, despite being a bit of a flag-nerd. Can see I will have to revise! Courtesy of Wikimedia Commons.

Pulling our Leggatt?

Judicial humour – what do we think? Ever appropriate? I am slightly torn: On the one hand, it can be the cause of horrid sycophantic laughter in court. On the other, I do like a pun, in general, so I suppose there’s no reason why a judge should be barred from the fun. But on the third hand, when these things appear in meticulously-prepared Supreme Court decisions, there is a bit of a feeling that the judge in question must have been rather too pleased with himself (or herself, in theory).

Anyway, I noticed this little pun in Lord Leggatt’s judgement in the recent big nuisance case (about the posh London flats, the owners of which were annoyed at people looking in from a viewing platform at an art gallery), Fearn and others v Board of Trustees of
the Tate Gallery [2023] UKSC 4.

Overlooking in two senses! Ho ho! Groansome or great? You be the judge!

GS

2/2/2023

Photo by Quino Al on Unsplash

Badge saying Coal Not Dole'

Striking times

In these times of strike, my thoughts turn (predictably) to the important question of ‘What did Welsh newspapers of the 19th/early 20th century have to say about strikes?’

And of course the Welsh and English language press had much to say about the great industrial battles which are a part of Welsh and wider British labour history. But naturally enough, there is at least one bad poem on the subject, here, from 1853:

This one takes a bit of a dodgy turn in the middle, having started off in a way which could be read as positive. Be happy with your lot, workers!

And this one tickled me – report from 1904 of a striking choir in the West Midlands. No doubt that would have seemed a particularly terrible thing to readers in the ‘Land of Song’. Note the use by church ‘bosses’ of scab child labour to cover essential services …

 

GS

1/2/2023

Main image – something very evocative of my childhood, not quite so long ago, but long enough.

 

Law, Equity, Doomed ‘Marriages’? (And ‘Lesbian Rules)

In more than one previous post, I have gone on about what I think is the questionable use of metaphor in legal writing and judgments. I am not too keen on the use of metaphor in legal discussion. Isn’t it often more confusing than elucidating? And not infrequently more than a bit pretentious?

Well, whatever one makes of the general question of metaphor, there are some individual usages which are particularly objectionable – emasculation is my least favourite, and the reproductive metaphors (Cowcher v Cowcher, anyone?) are also pretty grim, and indicative of a special brand of judicial self-regard. A historical sex/gender-related area of metaphorical activity which had me thinking today was from the 1870s, when the big news in the legal world was the bringing together of the administration of law and equity in one court system, under the Judicature Acts 1873-5.

Those of us who have been through the law-degree route will be very familiar with this being metaphor-ised with watery imagery, in ‘Ashburner’s fluvial metaphor’ (‘two streams of jurisdiction [which], … run in the same channel [but] run side by side and do not mingle their waters’[i]]. At the time of the acts themselves, however, quite a different metaphor was used: that of marriage (or, in some cases, marital sex).

One account mixed metaphors of war and consummation of marriage. Which may well say something about some people’s experience of marriage. More commonly, a more-or-less consistent wedding metaphor was used, though in this poem copied from Punch, the likely tensions in the marriage are certainly emphasised.[ii]  Surprise, surprise, the ‘gruff’ masculine character is the common law, and ‘sweet Equity’ is the bride (virginal, obvs).

One possible problem with the metaphorical marriage can be seen though, if we add in something a bit earlier. It is a completely anachronistic reading, I know, but it made me smile anyway. Another image of equity, much older, but apparently still current in the days of complaint about the problems of separate jurisdictions, in the nineteenth century, was that of equity as ‘the lesbian rule’. Yes, you read that right. And wrong. Because, sadly, it is not, in fact, a suggestion that the Court of Chancery was much more open-minded than other jurisdictions, and welcoming to women who were attracted to women.

It was brought up in a letter by  ‘A Voice from Lincoln’s Inn’, printed in that well-known legal source,the Monmouthshire Merlin for 16th March 1850:

‘[Truly has it been said by that ancient but erudite lawyer, Sir John Doderidge, that “It is a court of conscience, which giveth comfort, considereth all the circumstances of the fact, and is, as it were, tempered with the sweetness of mercy: it mitigateth the rigour of the common law, and leaving the inflexible iron rule, taketh the leaden Lesbian rule and issueth this sentence full of comfort to the afflicted, “Nullus recedat a Cancellaria sine remedio”’. [The Lawyer’s Light, (1621), p.175.][iii]

Sadly it is actually about a flexible tool for building purposes, the origin of which was ascribed to Lesbos (and which is contrasted with the oh-not-at-all-phallic inflexible rule/rod of the common law). The point is its bendiness rather than its sexual preferences. Still, I do think that those of us who teach in the property/equity area should be making more of an effort to bring this metaphor back. As chance would have it, I am doing some equitable bits of Land Law this week, so I don’t suppose I’ll be able to stop myself bemusing the students with it.  Seems a bit more exciting than rivers anyway

GS

30/1/2023

(Additions/updates

Another interesting image for the fusion of law and equity – from a previous effort – is that of mixing strychnine and prussic acid – ‘A Horrible Compound’, Punch, 19th May 1860, p.8. This image made a comeback in Punch, 19th March 1873, p. 8:

Chemistry of Law Reform

There is talk about a contemplated ‘Fusion of Law with Equity’. Perhaps if this be effected, the resulting amalgam will be innocent, or even salutary. Such is sometimes the case with a compound, the constituents of which are deadly poisons.’

Then in 1875, we have a nice disease image: Punch 21st August 1875, p. 6

Suitors’ Sufferings

As Law is to Rheumatism, so is Equity to Gout. The fusion of Law and Equity may be said to form the counterpart of Rheumatic Gout.)

And on the ‘lesbian rule’ issue – of note is the to-ing and fro-ing between seeing the ‘lesbian rule’ as a good or neutral thing, and seeing it as a bad thing (the ‘palm tree justice’ of its day – another image which could certainly do with some examination). We certainly get ‘lesbian rule = arbitrary’ in Earl of Dalhousie v. Lord and Lady Hawley (1712) Mor. 14014, a Court of Session case, but older uses of the phrase are not necessarily hostile, suggesting that there is virtue in flexibility, and adjustment to the irregularities and curves (as it were) of a situation.

More matrimonial images

We have a law-equity marriage in a description of the effect of the Statute of Uses 1536, in ‘The Conveyancer’s Guide’, a long, long poem about, yes, conveyancing (and why not?( published in a collection of 1885:

‘The use, which was a sort of bride

was fast to the possession tied:

they were conjoined and married.

You can’t have one without the other:

like man and wife they go together.’

–  J Greenbag Croke (ed.), San Francisco 1885) Poems of the Law,

[i] Walter Ashburner, Principles of Equity, (London, 1902), 23.

[ii] Well, not entirely consistent – it does have a nasty miscarriage metaphor too, in the first verse.

[iii] (Doddridge’s book was actually printed in 1629, I believe). This image was used in English legal writing from (at least) the early modern period – e.g. Selden, Janus Anglorum 1 c.7, but elsewhere as well, and is usually credited to Aristotle, Ethics, v. References are often rather negative (it’s the thing we don’t want law to be) which would strike a chord with women in general and (modern style) lesbians in particular.

Photo by Jeremy Wong Weddings on Unsplash

Judges and kisses

Continuing with love-themed stuff, in honour (or, more probably, dishonour) of the season of pink hearts, and making it vaguely law-themed, here are a couple of bits on two things you wouldn’t think to put in the same title – judges and (remembered or imagined) kisses.

The first snippet comes from a breach of promise case.  I give you the reported sentiments of Lawrance J in the Suffolk assizes, in a breach of promise case in 1906. The case was brought by a certain Ethel Wheelhouse against ‘a veterinary surgeon’ (note, her name is publicised, his is not). Ethel did actually win the case, albeit recovering only a relatively small amount (£5) in damages). Nevertheless, there was some comment from the judge as to the quality of the love letters between the two: they never ‘got to burning point’, and, in particular ‘there were no crosses for kisses’. All in all, things had been ‘hotter in his day’. Was any of that really necessary? Rather condescending, and not a little narcissistic. And I am not sure anyone wants to think about judges salivating over hot kisses.

Then, also from 1906, we have an extra-judicial opinion on the subject, also related to love letters, from the Master of the Rolls (Sir Richard Henn Collins). This one, which combines condescension (again) and a bit of an obsession with kisses. He was giving out prizes to some ‘girl typists’, and felt moved to ‘speak of the lady typists’ love letters’,  asking (a bit creepily, let’s be honest, though no doubt thinking he was charming) about the idea of writing a love letter on a typewriter, and whether any of them had ever received a type-written love letter. In particular whether there was ‘in the region of type production anything that of itself could depict a kiss’. I am imagining that being followed by nervous laughter. And why would a type-written x not be obviously the same as a written one?

The very dreamy Richard Henn Collins. Relax ladies, he was married (and is now extremely dead).

Finally, getting much more modern, there is a report from 1907 of a judge rebuking a defendant for saying in court that a woman used to give him whisky and kisses, on the grounds that ‘when ladies kiss me, I generally hold my tongue’. Did he have to? Pass the heart-shaped sick bucket.

GS

23/1/2023

Photo by Marek Studzinski on Unsplash

Dwynwen and ‘Dwynwen’: troubled love and patronage

Aside from its association with some Scots poet or other, 25th January is, as we all know Dydd Santes Dwynwen – the day of St Dwynwen, ‘patron saint of Welsh lovers’ or ‘Welsh patron saint of lovers’, depending how exclusive or expansive one is feeling.[i] It is a funny old business, this celebration of Dwynwen: a mix of medieval poetry – [see Dafydd ap Gwilym’s invocation of Dwynwen here in Welsh and here in translation] -, historical snippets, (not-so-old, somewhat inconsistent, and sometimes nasty) stories and the modern cultural politics of Cymreictod, (proud) Welshness. If Dwynwen is new to you, the place to start is Dylan Foster Evans’s piece here. To summarise, the now-standard story features a 5th C Welsh princess, a suitor pressing for sex, a divine intervention involving ice cubing, a prayer and a retreat to a convent. The Dwynwen-related story which I came across recently, and have decided to inflict upon all those stumbling over this page, is a bit different: neither as magical (no ice cubes, no wishes) nor as attempted-rapey as the St Dwynwen story itself, but I think it has some pondering points nonetheless.

The year is 1904 and the scene is the National Eisteddfod, this time taking place in (Y) Rhyl, a seaside town in North Wales.  As was customary, the in-crowd at these affairs, the Gorsedd of Bards, headed by the Archdruid, Hwfa Môn, were admitting various notables to their order. The first so admitted as an honorary ‘Ovate’ (ofyddes) was one of Queen Victoria’s many grandchildren, Princess (Marie) Louise of Schleswig Holstein.[ii]

Princess Louise did not obviously have any connection with Welsh culture. As a letter reveals, she had not known about the Gorsedd before the visit in question, and, in her response to an address by the town clerk of Rhyl, at the Eisteddfod, she had noted that this was her first time at such an event. There was no requirement of proficiency in Cymraeg at that time, for acceptance by the Gorseddd, nor, indeed, was such a requirement imposed until pretty recently, and, though she had some other languages, including, of course, German, she was not a speaker of Yr Hen Iaith. Her 1956 memoir, My Memories of Six Reigns,[iii] says nothing about the Eisteddfod, or Welsh culture. I have seen no evidence of a lasting interest, either. Nevertheless, she was apparently cheered, and made a good impression. She sent Hwfa Môn a signed photo of herself, and some pictures of the Gorsedd which she had snapped, receiving in response a short formal poem in Cymraeg, an englyn, ‘Englyn I “Dwynwen”’,[iv] which perhaps somebody translated for her. And when HM lay dying the following year, the Hon Mrs Mary Hughes of Kinmel, a royal lady in waiting, who had also been Gorsedded in 1904, was a keen enquirer after his health. That is all my quick research foray could unearth, as far as her post-Eisteddfod connection with the Gorsedd was concerned.

All slightly irksome from a political and cultural point of view, perhaps, this toadying to a woman because of her royal lineage, but what has the incident to do with Santes Dwynwen? Well, along with having a ribbon bound around one’s arm (a ribbon which may have been green or blue or red, depending which account is consulted!) one of the perks of being received into the Gorsedd circle was and is the bestowing of a by-name (ffugenw), and the princess (hardly short of names, already having been given this little list: Franziska Josepha Louise Augusta Marie Christiana Helena!) was given the name … Dwynwen. Little explanation was given for this choice, in the newspapers which picked up the story.[v] It did strike me as rather intriguing, though.

To the extent that newspapers commented on the name at all, they emphasised non-christian interpretations. For the Chester Courant, the name Dwynwen signified ‘the British goddess of love’, and elsewhere, she was ‘a goddess known to the mythology of Ynys Môn [Anglesey]’ or ‘the Celtic Venus’. Some of those present at the Eisteddfod would have known the tale of Santes Dwynwen, and her designation as nawdssantes cariadon – patron saint of lovers.[vi] ‘St Dwynwen’ was in hearts and minds in Wales, as can be seen from the fact that an imposing  cross with an inscription to ‘St Dwynwen’  had been erected on Dwynwen’s ‘island’, Llandwyn, as recently as 1897. Hwfa Môn, as both a ‘descendant’ of Iolo Morganwg and a native of Ynys Môn, cannot have been unaware of her story. So, why the choice of ffugenw for the princess?

Was the association between Dwynwen and Louise a nod to her sad marital history? Married to a German royal, one Prince Aribert of Ansbach, in  1891, her marriage did not go well. In her memoir, Louise refers to her love life in quite moving terms, calling her marriage ‘a sad and tragic chapter’ and something which she ‘thought was going to be so perfect’, but which ‘ended, alas, in disaster’ (p. 110). There are no juicy revelations, or nothing which would get modern readers excited, but it was probably quite something, in 1956, to have a princess saying that:

‘As time went on, I became increasingly aware that my husband and I were drifting father and farther apart. I had no share in his life; there was not that real companionship and understanding between us, which, after all, is the true foundation of a happy marriage. In fact, I was not wanted, my presence was irksome to him, and we were two complete strangers living under the same roof. We occasionally met at meals and when we had guests, otherwise days might pass without our ever seeing each other.’

And that she had moved from being an ‘enthusiastic girl’ to a ‘disillusioned woman’.

(Louise c. 1890, portrait by Josefine Swoboda)

Aribert and Louise’s nine-year marriage was annulled by her father in law, who apparently had the right to do this arbitrarily. I have to say that I am not on top of the detail of Ansbach family law (fascinating though I am sure it is) but the use of the terminology of annulment suggests that, as far as that law was concerned, it was as if the marriage had never taken place. Louise, however, took seriously the fact that she had been married before God, according to the rites of the Church of England, and did not, apparently, seek another husband, but accepted a single life. Aribert lived on until the 1930s. Was the choice of ‘Dwynwen’ an allusion to her lack of luck in love, or her need of the aid of the nawddsantes cariadon?

Whether or not it had that ‘spin’ to it, there is a bit of a parallel between Princess Louise and the Santes Dwynwen of the standard story. That Dwynwen, after the whole block of ice and praying business, went off happily to spend her life as a nun. There was no possibility for Louise of entry into a convent, but we might see as slightly nunnish the way that she did go on to spend a large proportion of her time on all sorts of charitable endeavours and good works, as well as taking an interest in arts and crafts. Dwynwen was a patron saint, Louise a patron of various well-meaning organisations. A princess of the nineteenth and twentieth centuries, however, was bound to be treated as rather more trivial than her fifth-century namesake. Reporting on her attendance at a craft/industrial event just before the 1904 Eisteddfod, journalists were unable to stop themselves focusing on the fact that she was ‘gracefully attired in a pale pink dress with a pink chip hat trimmed with roses’.  We hear a lot less about Santes Dwynwen’s outfits.

GS

20/1/2023

 

 

[i] For some reason, she is also associated with patronage of sick animals – not sure what sort of a spin that puts on Welsh ideas about love. Let’s not go there.

[ii] For some biographical details, see the ODNB entry, if you have access: K. Rose, ‘Marie Louise, Princess (1872-1956).

Much Druidic and Pan Celtic costumed business followed and surrounded all of this. The papers also report the competitions, including, interestingly, a prize for ‘the best chart or map showing the changes effected around the Welsh coast by the encroachments and recessions of the sea since the year 1800 – winner, Mr E M Lewis, Rhydyclaidy, Pwllheli. There was some grumbling about aspects of the Eisteddfod, and about the institution itself, as ever.

[iii] (slightly less controversial than Spare …) Marie Louise. 1956. My Memories of Six Reigns. London: Evans Bros. My memories of six reigns : Marie Louise, Princess, granddaughter of Victoria, Queen of Great Britain, 1872-1956 : Free Download, Borrow, and Streaming : Internet Archive

[iv] (nicely crafted but not that exciting, to my inexpert mind – images of sunshine etc.).

[v] The event was picked up by newspapers in  Wales, See, e.g., this and this. And, in Cymraeg, this. and also made an appearance in the UK national press: see Times Weds Sep 7 1904 p. 8. Manc Guardian Weds Sep 7 1904 p. 6.

[vi] For nawddsantes cariadon, see, e.g. this 1895 report.

 

Postscript

Continuing the comments on St Dwynwen and the phenomenon her day (see main post), there was the occasional comment on this in the UK press, from the 1970s. Somebody quickly used up one obvious title, in the 1972 Guardian article, ‘Funny Valentine’[i] (6th December, 1972) to give a rather sneery – and yet still interesting – account of the movement to ‘make St Dwynwen’s Day happen’.

James Lewis reported on the campaign by a Welsh publishing house, Y Lolfa, to drum up interest in the new or revamped feast, marketing cards on the model of the Feb 14th version. They were producing two ‘nice’ cards and one ‘naughty’ card. Obviously we wanted to know about the ‘naughty’ card first. This had a picture of ‘a young lady’s legs’ with the word rhyw x 6. This was a less-than-subtle play on words, because rhyw means ‘some’, but also ‘sex’ (and actually a number of other things, but let’s not over-complicate). So there you go – rude! Do wonder how many of those they sold, and how they were received.  The ‘nice’ cards featured one (rather sickly, to my mind, but perhaps that’s just me being jaded) pun Pwy sy’ wedi dwyn fy nghalon i? (Who has stolen my heart? – playing with the Dwyn in Dwynwen and the verb ‘to steal’), and a rather old-fashioned sounding Cofion cariadus ar Wyl Dwynwen (Loving greetings on the feast of Dwynwen. Although some doubted the likelihood that the cards would be popular, Lewis noted that Y Lolfa had been successful in their sales of a Christmas card of Prince Charles with ‘a greeting in pidgin Welsh’. Mocking the pretentions of the man who is now (Not My) King Charles III, or affectionate, I wonder.

[i]  Now there’s a song … apart from the fabulous Ella Fitzgerald recording of it, there are some splendid rhymes – e.g. ‘laughable/unphotographable’.