Presuming expertise: opinions on prolonged gestation in the Barony of Gardner case

In the course of researching for a paper on how the law, over a long period of time, and in different jurisdictions, has handled scientific uncertainty with regard to the beginning of (legally valued/protected) life and paternity, I have become a little obsessed with an a little corner of family/succession law, that of ‘adulterine bastardy’. An ‘adulterine bastard’ was a child born to a married woman, but whose biological father was not (or was held not to be) the man married to the woman at the time of conception. Before the development of DNA testing, it was impossible to be sure on this matter, and before the development of blood testing – which could at least rule out some men as fathers – in the early 20th century, matters were even less certain. Central to the legal strategy found in several different legal systems,  for dealing with such uncertainty, was some form of presumption that a child born to a married woman was the legitimate offspring of her husband, unless that was impossible. Impossibility became watered down over time in various ways, but I will not explore that here. What I will discuss is one aspect of this little niche area, and its potential impact and interest for wider areas of study. This aspect is the question of the upper limit for human gestation, and the exploration of this question in the Barony of Gardner case of 1824-5. An account of this case is easily accessible online, thanks to archive.org  https://archive.org/details/reportproceedin00ofgoog/mode/2up and it seems to me a really interesting resource for teaching both Legal History and also areas such as gender and history, and the history of medicine.

The case concerned the right to a peerage – guess what, the Barony of Gardner. Can’t say I’ve ever heard of it – not one of the big ones, but there are those who value such baubles above and beyond the money and land, and that was all the more so a century ago.

The source, Denis Le Marchant, Report of the Proceedings of the House of Lorde on the Claims to the Barony of Gardner (London, 1828),  was written by a barrister – and it should be noted that he was not exactly a disinterested fan of obscure legal points, but counsel for one side in the case (the side of the petitioner, i.e. Alan Legge Gardner, apparently legitimate son of H and W2, in opposition to Henry Fenton Jadis/Gardner, who claimed to be the legitimate son of H and W1, but was, problematically, born after a long absence by H, which would mean that, for him to be legitimate, the pregnancy would have to have lasted 311 days). The case was heard in 1825 before a committee of the House of Lords.

There is quite a story – of foreign travel, adultery and apparently brazen lying. What I want to focus on, in particular, however, is the lengthy (though not complete) account of the examination of witnesses on the question of the possible length of gestation (and whether a gestation of 311 days was possible). This begins on p. 13.

There was a long list of medical men, variously described as physicians, surgeons, accoucheurs, and pairs of these titles. Some sported ‘M.D.’ labels, most did not. These are their names:

Charles Mansfield Clarke, accoucheur

Ralph Blegborough, M.D.

Robert Rainy Pennington, Esquire, accoucheur

Robert Gooch, M.D., accoucheur

David Davis, M.D.

Dr. Augustus Bozzi Granville, physician

Dr J. Conquest, physician

John Sabine, Esq. surgeon and accoucheur

Dr. Samuel Merriman physician and accoucheur

Dr. Henry Davis, physician

Dr. Richard Byam Denison,physician

Dr Edward James Hopkins accoucheur

Henry Singer Chinnocks, Esquire, surgeon and accoucheur

Dr. James Blundell, physician

Dr. John Power, physician accoucheur

After the ‘medical men’ had had their say, some women were allowed to speak, both in a ‘professional’ capacity, and also to give evidence as to their own experiences as to length of pregnancy. Mary Tungate. midwife was followed by the following women who had either experienced, or were experiencing, long pregnancies: Mary Wills, Mary Summers, Mrs. Mary Gandell, Isabella Leighton, Mary Parker, Mrs Sarah Mitchell. It is interesting to imagine the presence of these women, and especially pregnant Mary Parker, in the masculine environment of a House of Lords committee. I was interested to see that discussion relating to the midwife Mary Tungate seemed to assume that she was to be assimilated to a ‘medical man’ for the purposes of an exception to the rule against hearsay evidence: 170-1. The women were all deployed by the side wishing to show that it was not impossible that the child born after 311 days of absence was legitimate. It was admitted – 247 – that ‘they were not persons of high rank or distinction, — no one can think that such persons would expose themselves to a cross examination on the details of their pregnancy’. This does not seem very polite treatment for women who had submitted themselves to this ordeal.

 

The ‘medical men’ (and Tungate) were routinely asked the length of time they had spent in practice, the extent of their experience, their views of normal gestation periods, and the possibility of longer periods. Most answered around the 39-40 week mark here. Some cited instances of longer periods and thought the 311 day pregnancy a possibility, while others were quite sure that it was not. There were some interesting outlier views – including a late survival of the idea of differences relating to the sex of the foetus, with boys staying longer in the womb than girls – 152. Questions also demonstrated something of a lay obsession with the formation of nails as an indicator of gestational age – e.g. 15, 37.

There were some interesting exchanges on matters of authority (which was more important – the learning of well-known medical writers, or the experience of doctors themselves?) and of evidence – could the medical men use their notes (answer – this seems to have been allowed, if they were in their own writing and contemporaneous, as an aide-memoire: see, e.g., 60, 66, 119, 136. The meticulous note-taker, Dr Granville, in the end had some of his patients brought in, so as to circumvent objections that this was not the best, or legitimate, evidence – 87]

There were also some slight episodes of sparring about confidentiality – it is interesting to see ideas of patient confidentiality at this early stage – see, e.g., 66, 133. This concern about confidentiality apparently did not apply to the wives of the medical men themselves – two of these women were given as examples of women who had had long pregnancies – 67, 111 – (and appear to have kept period diaries – I remember being told this was a good idea, in the excruciating one-off assembly on this topic given at my school – obviously the reason was to be ready for possible evidence before a House of Lords committee…).

[Should you be interested in the result, Alan Legge Gardner won, and became Third Baron Gardner. Honour and bloodlines prevailed. Or something. That seems of considerably lesser interest than the enquiry itself, which seems to have been on a fairly large scale, and to have shown some interesting differences of professional opinion in this still-early period of formalisation of medical training and expertise. I am still working on how it fits into a longer story of uncertainty in this aspect of ‘the secrets of women’, which remained officially mysterious, and open to some very odd theories and evidence, into the twentieth century].

 

GS

30/11/2020

From Wikipedia.

Loss of entitlement

Continuing to research the weird and wonderful world of ‘adulterine bastardy’, including some interesting claims for very long pregnancies, and some questionable treatment of women, as witnesses and as possible ‘adulteresses’, I have been reminded of the recent run-out of this area of law, in relation to the holding of peerages. The Pringle case,  In the matter of the Baronetcy of Pringle of Stichill [2016] UKPC 16 https://www.bailii.org/uk/cases/UKPC/2016/16.html featured the displacing of a line which had, since the early 20th century, been in possession of the title. Then DNA testing revealed that there was no chance that the person presumed to be entitled in the current generation was actually a lineal descendant of the first grantee (which is the requirement in this sort of case). The case gave rise to some interesting and humane comment – I particularly valued G. Black, ‘Identifying the legal parent/child relationship and the biological prerogative: who then is my parent?’ Jur. Rev. 2018, 1, 22-41, and B. Häcker, ‘Honour runs in the blood’, L.Q.R. 2017, 133(Jan), 36-41, which explored comparative rules on challenging paternity, and considered the problems associated with upsetting family units in situations well beyond that of peerages. My own thought, though, was that, while, in general,  it is absolutely right to be cautious about wholly prioritising genetic over social relationships, especially if the latter are long-lasting, in the context of hereditary titles, a strong focus on DNA could serve a very useful purpose. I have no time for the whole business of hereditary entitlement to ‘specialness’, from the monarchy downwards – it is embarrassing, babyish nonsense – but even those who shut their critical faculties down with ideas about the magical powers of particular families would have to think again if they were confronted with the likely fact that they were no more immune from infusions of unexpected genetic material than anyone else’s family. A respectable Legal Historian cannot of course suggest that it would be worth a thought for anyone invited to a royal garden party or the House of Lords bar, who has the opportunity to collect a DNA sample.

29/11.2020.

Detriment, conscience and the fine art of judicial shade

As the Land Law year rolls into co-ownership/constructive trust season, I was interested/irritated* (*delete as applicable) to see the appearance of another in the seemingly unending  parade of common intention constructive trusts cases: O’Neill v Holland [2020] EWCA Civ 1583. https://www.bailii.org/ew/cases/EWCA/Civ/2020/1583.pdf

Sometimes these things make me wish that (ALERT: mostly gratuitous Legal History reference coming up, to justify inclusion in ostensibly LH-centric blog) the Statute of Uses had done a better job of stamping out the whole law-equity separation business, but never mind – they must be read and inwardly digested.

This was a Court of Appeal case, centred on (parts of) a case which had been dealt with by a District Judge, District Judge Obodai, and then, in a County Court, by HHJ Pelling. The ‘live’ part of the dispute centred around a house in Farnworth, Bolton (53 Worsley Road for those keen Land Law fans who want to enter it on their Constructive Trusts Cases Maps … well, there might be such people). Ms O’Neill wanted reaffirmation of an earlier holding that this property, held in the sole name of Mr Holland, was in fact held on trust for both of them, and that she had a 50% equitable interest. She got it.

The main point of Land Law interest was, I suppose, discussion of whether it would matter if there was not specific pleading of detrimental reliance, or a specific finding of it, in the circumstances that, as far as the CA was concerned, there was in fact evidence of detrimental reliance. Answer – no. Also, there was a bit of an attempt to expand the importance of ‘unconscionability’ as something which could make up for lack of (pleading of? or actual?) detrimental reliance. This did not work. Nevertheless, the CA seemed happy that there had been evidence of DR – with particular reference to not sorting out legal/equitable positions earlier on, as a result of a misrepresentation that Ms O’Neill would not have been able to obtain a mortgage. (A minor legal point – I confess I had to look up what an ‘equity of exoneration’ was – mentioned early on, at 12).

Apart from that, I found myself going back to a bit of an obsession – how judges in judge-only trials present their views of those who have given evidence before them. Clearly they are going to have to evaluate credibility, and prefer one version to the other, but there is quite a variation in how critical, or condemnatory they are prepared to be. I have mentioned this in previous posts. Here, the DJ went for it in a fairly strong way. As Henderson LJ put it, at para. 9, ‘It is fair to say that the District Judge was distinctly unimpressed by the evidence of these witnesses, and in particular by the evidence of Mr Holland whom she described on more than one occasion as “a stranger to the truth”.’ Also, at 49, Henderson LJ noted that Mr Holland had been held by the DJ to have given evidence which “beggared belief”. This view of the party’s honesty was thus stated, and repeated in the easily-available public judgment (and by those commenting on it …). Not for the first time, I do find myself wondering about what that must feel like – if the parties know.

On a related matter, when judges’ cases are appealed, there is an issue of the level of ‘shade’ to be ‘thrown’ on them (see how down with the kids I am!). Here, Henderson LJ, at 7.,  is a touch sniffy about the fact that the DJ’s judgment ‘[ran] to 50 pages and 184 paragraphs’ and suggested at 18 that she had ‘fallen into error’ by not using existing case law properly. At 46., he gives us ‘The relevant findings of the District Judge are contained in paragraphs 154 to 161 of her judgment. With respect to her, they could sometimes have been more clearly expressed and are not always entirely easy to follow.’ Relatively mild, I suppose. In relation to the decision in County Court, he says, at 60, ‘In my respectful opinion, Judge Pelling adopted too narrow a view of the District Judge’s findings of fact, and he was also wrong to take the view that detrimental reliance had not been pleaded sufficiently or at all by Ms O’Neill’ . Possibly slightly more ‘respectful’? I am not sure. It would certainly be interesting to consider the range of different ways of dealing with/ disagreeing with lower level decisions which are used by appeal courts, by whom, and in relation to whom. A project for somebody?

Finally, this touched on another of my obsessions – questioning gendered writing in legal documents. As another page on the blog makes clear, I am not in favour of the rather frequent use of ‘emasculation’ in legal discourse, to indicate weakening/ worsening. I wonder whether similar concerns apply to the description of things, including judgments, as ‘seminal’ (here, at 27, we have the ‘seminal speech’ of Lord Diplock in Gissing v Gissing [1971] AC 886.’ Does it need the sperm-related subtext? (Could a speech ever be ‘ovular’, and if not, why not?). Or can this usage be excused on the ground that the word is wider than human sperm, and takes in all sorts of ‘seeding’? A point to ponder.

GS

29/11/2020

 

 

Not entirely ‘perswasive’?

In between teaching and admin., at the moment, I am working on something touching on decisions relating to the presence of life and legitimacy. Today, I am pursuing bits and pieces on the legitimacy/’bastardy’ side of it, and looking at the splendidly titled Lex Spuriorum by a very early 18th C lawyer.[i] Usually, in this enquiry, I have found my mind occupied by the disturbingly condemnatory attitudes and language, and the writing-off of so many children, people, as ‘bastards’, and somehow not as good as others, despite self-evident lack of personal guilt in the ‘sinful’ nature of their conception. Today, however, I have been ‘going off on one’ in a different direction, after looking at the preface of this book.

 

In this preface, Brydall felt it necessary to justify himself – why was he writing the book? What ‘perswaded’ him (love that spelling!) to publish it? His specific answer to that is interesting (and a little hard not to laugh at): his alleged motives include writing ‘To let the People of this prefent Age fee, what great Difadvantages Children born out of Holy Matrimony do lie under, which might … very much deter Men and Women from ever purfuing unlawful and exorbitant Embraces, of which this Nation, as well as foreign Countries, have been deeply guilty.’ Unlawful and exorbitant Embraces should, obviously, be discouraged, but the idea that people intent on a bit of exorbitant Embracing would stop, read a treatise, find it ‘perswasive’ and think better of their plans, seems … just a little far-fetched.

Postscript – It is a measure of my current preoccupation with all things REF that my mind immediately went to ‘ooh – that’s a bold claim for the potential “impact” of a piece of writing’.

 

GS 22/11/2020

 

[i] John Brydall of Lincoln’s Inn, esq., Lex Spuriorum or the Law Relating to Bastardy (London, 1703).

Quantitative methods

And this qualifies as Legal History because …

  1. Some people who do LH like to count stuff (my own efforts here are a bit amateur, but some people do it very well …)
  2. Er … virus… bit like plague …
  3. It needs to be noted for future Legal Historians and other historians.

It is … shall we say interesting … to note that my dear employer, and presumably the decision is one by the senior management team, has changed the way that it is publishing information on coronavirus, now that the cumulative total of cases looks very bad, and the institution is hovering around the top 5 or 6 according to the UCU dashboard (all the others above it being in known hotspots in the NE and NW and E Midlands).

Pleased to see that somebody is trying to fight back: https://worriedacademic.wixsite.com/bristolunicoviddata

Otherwise, feeling pretty powerless, as there is so little accountability for all of this. Sometimes, all that’s left is resistance by limerick. So here’s one I found earlier (in my head):

‘Our priority is the health and safety of our staff, students and community’ [signed, from a safe distance, some very well paid people with an interest in minimising the impression that they are putting other people in harm’s way, ]

We care about students and staff,

don’t want you to worry – don’t laugh –

we promise you, that’s

why we’ve swapped scary  stats

for a sweet, soothing, ‘what virus?’ graph.

 

GS 30/10/2020

Bastardy, Presumptions and a Plague of Beatrixes

(Sheldon arms, apparently: see VCH reference, below)

I am writing something about difficult questions at the start of life – determining whether (legally recognised) life is present in a foetus or newborn, and determining legitimacy – from periods before the development of some important medical techniques and instruments (to c. 1900 –  in 10,000 words …). One of the aspects I am investigating is the use of presumptions, to help come to an answer, when everyone accepted that there was a high level of uncertainty. An important presumption in the area of determinations of legitimacy was the common law’s long-lasting and rather strong presumption of legitimacy for a child born to married parents. I have just spent quite some time chasing down a Year Book/Plea roll match for an interesting case from the later years of Edward III, which has a bearing on this, and, since it won’t get more than a short mention, perhaps no more than a footnote, in the paper itself, I thought I’d write it up here.

The Year Book report is Seipp 1370.044 or YB Pasch. 44 Edw. III pl. 21 f. 12b. The Plea Roll record is CP 40/438 m. 370d (AALT IMG 5516). It is a Common Pleas case. As is often the way, the names in YB and PR don’t match up, but I think we can be pretty certain that these documents refer to the same case. There is also  information in other sources which gives some indications about the people involved in the case.[i] This is my reconstruction of the whole story, based on all of this.

There was a need to determine whether or not a girl was to be classed as ‘legitimate’ or ‘a bastard’ at common law, in order to deal with a land dispute. The land in question was in the West Midlands of England, in Warwickshire, centred on the manor of Sheldon, and included different parcels of land and associated rights. Once upon a time, it had been held by Henry de Sheldon and Beatrix his wife (HS and B1) and John Murdak had been granted an interest which would come into play if HS and B1 died without heirs of their bodies.

This had all happened in the 1330s. The central characters in the 1370 dispute were Thomas Murdak, knight (TM), son of John, who claimed that he should hold the land, and  a married couple, (Sir) John de Peyto and Beatrix his wife, who  were in fact holding some of the relevant land and rights. John and Beatrix (JP and B2) argued that they held a tenancy for life in the land, from one Beatrix (B3), eventual successor of HS (as daughter of John de Sheldon, JS, who was HS’s son and heir). When they wished to use B3’s superior right as the foundation of their own right, and against TM’s claim to it, TM made the argument that they could not do so, because B3 was a bastard. (And bastards were outside the scheme of succession at common law).

Why was there a doubt about B3’s legitimacy? Well, it seems that the circumstances of her birth were slightly unusual: she was said by JP and B2 to be the posthumous child of JS, born to his wife after a short marriage (at most fifteen days), though conceived before the marriage. TM told it rather differently: in his version, there had been some very dubious behaviour, which could mean that there was no real marriage, and so no presumption of legitimacy, and also, in fact, B3 was the child of another man entirely. His tale was of a very unwell JS, sick to death with plague, and not in his right mind, being physically carried to the church in Yardley, to marry (desponsare de facto) ‘some woman’ (not named – the odds seem to be in favour of her having been called Beatrix, like everyone else …) who was, at the time ‘grossly pregnant’.  As he told it, this was part of a fraudulent plan, essentially to do him out of his rights, which, remember, would come into play on the death of HS and B1 and their legitimately procreated heirs, and to protect the holding of JP and B2. JP and B2, however, expanded on their version, stating that B3 was in fact the biological child of JS: he and B3’s mother had been lovers (and had had two previous children) and he had promised to marry her, then impregnated her with B3 before going off to Calais for three months, and, on his return, he had fulfilled that promise. Though he had been ill, he had been sane and had married her at the behest of his conscience (presumably wishing to ‘make an honest woman of her’, and secure her future provision). They had lived together for a fortnight, then he had died. B3 had been born afterwards (interestingly, neither a date of birth, nor a gestation period, is included). Essentially, their tale denied both the ‘not JS’s biological child’ and the ‘not a valid marriage’ aspects of TM’s case.

Argument continued, with the aim of narrowing things down to one issue which could go to proof. According to the Year Book report, there followed some back and forth about exactly how pregnancy, espousals and legitimacy worked together, as far as the common law was concerned. TM’s side had a go at saying that the fact that it was accepted that B3’s mother was very pregnant before the espousals meant that Alice was a bastard. This seems to imply an argument that pregnancy had to start, as well as end, after espousals had been made.  This argument did not prevail, but it is interesting that it could be made, since it suggests the possibility of insisting on very exacting standards of continence and of ‘bastardising’ quite a number of children born within a marriage. The orthodox, less exacting, rule was stated by Fyncheden JCP: a child would be found to be legitimate, if the mother was pregnant by the man she then married, and she married him before the birth. Interestingly for my investigation, though, his reported words also suggest that a child conceived in the period between promise to marry and actual marriage (I have been doing too much Land Law because I automatically think of this as ‘conception between contract and conveyance’) does not automatically get the benefit of the strong presumption of legitimacy which would have applied to a child conceived after marriage.

In the end, rather than deciding B3 was definitely a bastard, (either because she was admittedly conceived before marriage, or because the marriage was invalid), or deciding that the conclusion would rest upon her presumed legitimacy as a result of having been born after the espousals, it was decided that the issue to be put to a jury was to be (effectively) whether the biological father of Alice was HS or the ‘other man’. This strikes me as a rather difficult thing for a jury to conclude upon, and it is interesting that it was thought feasible that they could do so. Also of interest is the point that the fact of there having been espousals did not blot out the possibility of B3 being found to be a bastard. My inquiries into later versions of the presumption of legitimacy within marriage show some interesting ups and downs in terms of its strength, and what sort of doubts might be entertained about paternity after the mother’s marriage, but it seems that, at least at this point, challenging legitimacy in these circumstances was a real possibility: if the ‘unloaded’, neutral, question ‘was X or Y the biological father of Z’ could be left to a jury, there would seem to be a fairly even chance of a finding of bastardy or of legitimacy. I am also pondering the issue of there having been a particular fascination amongst common lawyers at this point for the question of bastardy/legitimacy within marriage – another project I have done looked at a case from just before this one, Tyryngton v Beauchamp (1369),[ii]  the report of which saw common lawyers introducing a gratuitous discussion of just this issue (that case did not concern a child whose legitimacy was in dispute, but the report shows lawyers ‘going off on one’ about this).

The reporter loses interest once the issue is identified, as is usual, but the record tells us (some of) what happened in the end. The record includes later stages of procedure, which went on for some terms, and, to cut a long story short, TM dropped out, and so the case came to an end, leaving JP and B2 in possession of the land. There never was a jury verdict. It may be that some deal was struck, or it may be that TM decided that a jury would not have believed that B3 was the biological child of the mysterious ‘other man’.

So there we have it – for my immediate purposes, it represents an interesting stage in the development of doctrine around determinations and presumptions of legitimacy. More broadly, it is fascinating both legally and socially. The legal structure is set up so that it is in order – and perhaps it is an early resort – for claimants to land to cast aspersions about the sexual behaviour of non-party individuals. We see insights into a plausible story of a long term non-marital relationship which might be regularised on the point of death, and also a deep-seated suspicion of deathbed marital dealings (generally of the ‘woman as gold-digger’ variety: given the unequal system of real property, such marriages would tend to be for the benefit of women rather than men). If the background to this case was indeed a recurrence of plague, it is also interesting to ponder the effects of such crises of mortality on law and practice with regard to marriage, legitimacy and succession.

[And then of course there is the oblique evidence provided for the otherwise unknown ‘Statute of Beatrixes’ (or should it be ‘Beatrices’?), under which all female children in the West Midlands were required to be called Beatrix.]

GS

23/10/2020

(For more on bastardy in common law and canon law, and jurisdictional issues, in medieval England, including a 1364 case which might also support the idea of particular attention on this issue in this era, see, e.g. R. H. Helmholz, ‘Bastardy Litigation in Medieval England’, American Journal of Legal History 13, (1969): 360-83).

[i] VCH Warkwickshire (not going to pretend I can get to libraries at the moment): https://www.british-history.ac.uk/vch/warks/vol4/pp200-205

[ii] William de Tyryngton and Johanna his wife v. John Beauchamp del Holte and Joan his wife (1369).CP 40/435 m.387, 387d (IMG 773 and 1857(; Seipp 1369.059; YB 43 Edw. III Trin. pl. 5.

Destructive trusts: a family fight over beneficial interests

[This is a modern Land Law comment – sorry legal history chums!]

Amin v Amin [2020] EWHC 2675 (Ch) is a recent constructive trusts case, a judgment by Nugee LJ on appeal from the London county court.

https://www.bailii.org/ew/cases/EWHC/Ch/2020/2675.pdf

It has some interesting aspects from the point of view of explanation of ‘the rules’ on common intention constructive trusts (nothing especially new, but nicely put) but also a good one to read to get an idea of the sorts of disputes which this body of law may be called upon to handle, and also issues of practical case-crafting  and handling of evidence, at different stages of proceedings.

The basic facts of the dispute were that Mrs Amin was sole legal owner of a house in London. She regarded herself as having the whole legal and equitable interest in it. Her husband, Mr Amin, and her sons, Raja and Zubaire, claimed that they were entitled to an equitable interest by way of a common intention constructive trust. (The dispute initially arose as a possession proceeding by Mrs Amin, and a counter-claim by Mr Amin and the sons for a declaration of their interest, and thus entitlement to stay). This way of proceeding meant that it was a virtual  ‘all or nothing’ case – Mrs Amin claimed everything, and Mr Amin and the sons counter-claimed 100% of the equitable interest.The county court judge decided in favour of Mr Amin and the sons – the house was held by Mrs Amin on trust for them, and she must transfer the legal title to them. She appealed.

The judgment, which has just appeared on BAILI, describes quite a number of property dealings within a large family, and is of considerable interest from a ‘law meets culture’ point of view. One fact to bear in mind, and which is of some relevance, is that the Amin parents were not officially married as far as English law was concerned. They had been through a religious form of marriage, the nikkah, but technically were not married. As Land Law students know, there is a fairly stark line between cases involving married (or once-married) couples and those who are, strictly, ‘cohabitants’. The Amins would surely not have seen themselves in the same bracket as those involved in informal living together situations, but in some ways, Land Law does (certainly a factor to consider in relation to suggestions for reform of cohabitation/property law). There is also some discussion of what may look to modern Land Law students like an (allegedly) unusual or old-fashioned financial relationship between the parties, in which Mr Amin ‘did not allow’ Mrs Amin to have her own bank account. I have often been told, when discussing cases like Burns v Burns that modern female cohabitants would not end up in such a dependent financial position. Perhaps we might reconsider that.

Nugee LJ provides a good summary of where he thinks the law is on common intention constructive trusts, and what has to be shown, by whom. It may be picked up as blurring some boundaries but (heretically, I know) I am less interested in that. FWIW, the judge had applied the Jones v Kernott [2011] UKSC 53 test – using financial and other criteria to decide ‘what shares (if any) were intended’. (Land Law students will notice that this is drawing together two questions which we have tended to keep apart in teaching – the ‘is there an interest’ question, and the ‘if so, how much’ question). The case put by Mrs Amin’s lawyer in this appeal included a strong idea of it being wrong not to make separate, overt findings on all of the separate elements as to whether there a common intention at all, and if so what was its nature, and whether there was appropriate detrimental reliance. We have some further discussion on the (paper thin in my view- I am very skeptical about the idea of objective deduction in these cases) distinction between imputing and inferring intentions.  There is a nice quotable quote on the supposed separation of ‘is there a CICT’ and ‘how much of a share do people get?’: ‘I do not think the two stages can always be neatly distinguished’ [33] – the point is that the same evidence may well cover both bits: [34] ‘it seems to me to make no sense to try and make a sharp divide between evidence that enables an inference to be made as to their common intention that the beneficial interests should not follow the legal ownership, and evidence that enables an inference to be made as to what they intended those beneficial interests to be. Those questions are necessarily bound up together.’ Hackles will no doubt rise at this, but, really, it is a common dynamic in many areas of law, including Land Law, to move back and forth between ‘steppy’ tests and ‘holistic’ (cue whale music …) tests.

What I find more interesting and thought-provoking are the issues concerning the way in which the case was presented, and the evidence. Since this was an appeal, there were already limits on what could be done by way of going over the evidence, and deciding whether there was anything wrong with the initial decision. Greater limitations were imposed by a decision by Mrs Amin not to provide a transcript of oral evidence from the first hearing. Nugee LJ remarked on this more than once. He also highlighted the original judge’s doubts about Mrs Amin’s allegations of domestic abuse [8.11] though these were ‘not directly relevant to the proceedings’. Again, that might bear some exploration – what is relevant to proceedings is, to some extent, a matter of choice and perspective. Comment on the offences of false accounting of another witness were also mentioned (I do wonder whether people realise this sort of public and permanent comment will be made when they agree to be witnesses. I suppose they do).

I can see that, in such cases, judges do have to make comments on the credit-worthiness of witness/parties, but it is always a rather uncomfortable thing. I am sure that I would feel deeply insulted and mortified to see myself referred to as ‘[not having made] a good witness’ as was the case with Mrs Amin here, a description based on the fact that, in the initial judgment,

‘The Judge found her oral evidence to be confused and imprecise, and referred to her complete inability at times to recall any precise detail contained in her witness statement – something that happened so frequently that he formed the view that it was almost as if the statement had been written for her by someone else’.  [at 8]

It is also interesting to note the nature of the outcome (100% equity to Mr Amin – now deceased – and the sons) was the logical outcome of the way the case was put. Though this was portrayed as particularly harsh by Mrs Amin’s lawyer, both sides had gone for an ‘all or nothing’ approach, and neither had suggested a plan to share out the equitable interest, so, if Mrs Amin lost, this was always on the cards (though the practical effect could be less harsh, as she could seek indemnity from the beneficiaries on the mortgage payments which she, as legal owner, was still liable to pay).

So – an interesting case in a number of respects: legal, evidential, cultural. It is a bit out of the ordinary for such cases in dealing with a wider family group, whose relations are both personal and financial. It also leaves some untied ends relating to the position of the two Amin daughters, whose interests may well be affected. All in all, a messy situation meets an unsatisfactory area of law. Good luck with it, Law students of England and Wales.

‘It’s the Climb’

… as noted jurist M. Cyrus would have said…

Thoughts on a manuscript submission…

Well – big day: I’m about to press the button and send off my checked-over manuscript to the publisher. Women and the Medieval Common Law c. 1200-1500 is a real thing! No doubt there will be  messing around and checking – perhaps some battles about the (admittedly copious) length of the notes, but essentially this is it. I won’t be able to change anything major from this point onwards.

Naturally, I can’t just do it, I have to agonise about doing it … and reflect about it. Well, indulge me, it’s been a long time in the works, and I don’t think I’ll be doing anything like it again.

I have wanted to write about women and legal history for such a long time – probably since my days on a postgrad course in which women were very much an add-on, and only interesting from a property perspective. For a long time, I avoided it, though. It seemed too close to home, in a way – I did drink in all the objective standpoint stuff rather too enthusiastically in my academic youth – and I was well aware that it would not be popular with the powers that be in the world of Law School legal history. So there was a lengthy diversion into other things – economic offences (seems a lifetime ago) suicide, all sorts. (And even a brief stint of masquerading as a modern property lawyer … But eventually it got to the point that I felt robust enough to have a go, and so it has been there in the background for a few years now.

It has changed a lot over the course of researching and writing. Obviously I was massively over-ambitious in thinking I could look at every subject, every relevant document (that has, of course, been especially true in the last few months, with library and archive restrictions). I more than half expect to be clobbered with the old ‘Why have you not looked at [insert name of 50 obscure MSS which would take a year to locate and translate…] and done a comprehensive survey of levels of women’s participation over 3 centuries [at least another year, with a research team and a way with complex quantitative analysis], but there does come a time when you just have to stop and publish the thing. It is the right length for the publishers’ parameters, it has some things to say, and I hope it will make a contribution. So – a little sadness that it is not all that I meant it to be, and trepidation that it will end up being clobbered from several different directions, by those who wouldn’t have done it at all, or would have done it in a different way …but I am so ready to move on.

One of the later things to do in this sort of project is the preface, dedication and so on. I am dedicating it to my mother, who very much deserves it. I hope it will make her happy and proud. I decided, though, against anything else personal by way of preface. I have become rather disenchanted with academic book prefaces. The convention of thanking people at the start of books they will probably never read, nor know about,  is polite in a way, but also a little odd. In some cases, it does feel a bit master/servant, in others, there is the sneaking suspicion that there’s a bit of boasting going on (look – not only do I write books, but I have a great personal life, supportive spouse etc. …) I hope that I have thanked those people who deserve my thanks in person anyway, and treated people in libraries and at conferences with respect as we work together. So I used the preface in a more content-relevant way, to set up the material which would follow. I feel more comfortable with that. At the moment, if I did the thank you thing, it might turn out to be rather more of a sarky ‘and I’d like to say THANK YOU VERY MUCH to the Senior Managers at my University for their handling of the coronavirus emergency and the [innuendo: abysmal] level of respect and support for staff who already have a lot to do [such as writing legal history books] over the summer’. And the email system which decided to play up just when I needed to despatch my files. Which would make me look extremely grumpy to anyone who looked at the book, years from now. So best not. [Could of course start a new trend for ‘And no thatnks to …’ sections, a.k.a. Er gwaetha pawb a phopeth if you know your Dafydd Iwan …]

Anyway. Time for action. Things to do. Buttons to press.

With crossed fingers.

And … done.

 

Ruffs: there ought to have been a law against them

The stiffest and starchiest stuff,

bleached, folded, fussed over enough

to demonstrate I’m

rich in servants and time:

behold, my ridiculous ruff!

 

Well, this was a bit of a clumsy attempt to justify including an item about ruffs in what is (very vaguely) a blog about legal history. Obviously, there was a long tradition in various jurisdictions of legislating about the sorts of clothing which people could wear, but not (as far as I know) specifically about what is clearly the most ridiculous item of neckwear ever – the early modern ruff.

I have been equally horrified and obsessed by the ruff since being bought a Marks and Spencers book about the Tudors, one childhood Christmas, with all of the classic, much-reproduced pictures of the celebs of the day, increasingly, over the 16th C, ruffed up. I mean, the codpieces were … disturbing (especially on young Edward VI – just so wrong) … but it was the ruffs that really stood out for me. They seemed to be a combination of extreme discomfort and extreme silliness. Also a seriously bad idea to be drawing attention to your neck in an era rather well known for its beheading. Some of them even made the ruffee look like familiar pictures of John the Baptist’s head on a plate.

I seem to keep coming across ruff-pics these days, when looking up biographies of legal history ‘great men’ or on social media feeds about various historical things, and feel the need to work out some of my repressed ruff issues. Here, then, is my chart of ruffs – no doubt to be updated as more ruff-porn comes to my attention.

 

  1. Ruff(le)

A subtle little number, sort of polo-neck-cum-ruff, from R. Dudley

https://twitter.com/HistParl/status/1301814785173061632

 

  1. Ruff puff

The ruff itself is less than spectacular – but with that puffy sleeve, chain and skull accessorising, a winner from ‘Mam Cymru’

https://twitter.com/gcseabourne/status/1241663502479171584

 

  1. Ruff and tough and strong and mean …

It’s Walter Raleigh, wearing a doily https://en.wikipedia.org/wiki/Edward_Coke#/media/File:Sir_Walter_Raleigh.jpg

 

  1. Rufformation

I am not convinced that ruffs are very godly, bishop Hooper

https://en.wikipedia.org/wiki/John_Hooper_(bishop)#/media/File:John_Hooper_by_Henry_Bryan_Hall_after_James_Warren_Childe_cropped.jpg

 

  1. Ruff music

Johannes Eccard is wearing a ruff, but he’s not happy about it …

https://en.wikipedia.org/wiki/Johannes_Eccard#/media/File:Johannes_Eccard_1615.jpg

 

  1. Ruff ruff ruff

In everyone’s favourite tale of domestic violence, Mr Punch’s dog, Toby, always seems to have a ruff

https://www.bbc.co.uk/news/av/uk-44988800

 

  1. Ruff and ready

Because there’s no need to be all business-like about your armour,

https://commons.wikimedia.org/wiki/File:Portrait_of_Sir_Philip_Sidney,_illusthatixg_the_ruff_worn_with_armour-_Elizabethan_People_(book).jpg

 

  1. Outruffed

The absolute satisfaction of knowing yours is the biggest, silliest ruff out there. Also a fine example of the implications of ruffs for hair-dos.

https://twitter.com/gcseabourne/status/1241398414954369024

 

  1. Ruff justice

The the humble and charming Sir Edward Coke – ruthless misogynist, show-off and snappy dresser.

https://en.wikipedia.org/wiki/Edward_Coke#/media/File:Edward_coke.jpg

See the source image

Then there’s the picture above – the ‘beard squeezer ruff’ – right up under the ears too 0 astounding.

  1. Elizabeth R[uff]

Was there ever any doubt – this one has it all: the spectacular ruff, the puffy sleeves, the hair … apotheosis of the ruff – ruff as neck-halo, almost.

https://en.wikipedia.org/wiki/Armada_Portrait#/media/File:Elizabeth_I_(Armada_Portrait).jpg

 

OK, good to get that off my chest. Or neck. Or whatever.

 

6/9/2020

Update 9/9/2020

Bubbling under…

Not quite worthy of a place on the Completely Official Ruff Pics Top Ten, but may get there in time …

 

[Sc]ruffy

This picture looks as if it has had a bit of early modern photo-shopping. That hat is so 2D. But it’s the ‘ruff almost meets hat’ and ‘scraggy beard’ combo which is worthy of recognition:

https://twitter.com/WelshBiography/status/1303580143630204928

 

Well hello doily!

An honourable mention in the ruff-accessorising category goes to this gent – another Coke – who has cut up a doily and stuck it to his hat and cuffs, to cheer up his look. Also love the detail of shadow on his ruff from his little pointy beard. Marvellous.

https://en.wikipedia.org/wiki/John_Coke#/media/File:Johncoke.jpg

Take the ruff with the smooth

William Cecil sets off his hat/ruff/beard combo with a lot of velvet. Marks for detail in relation to the ‘hand ruff’ cuffs (why not make your wrists just as uncomfy as your neck?) and that emphatic rod (virga – definitely has subtext…)

https://twitter.com/HistParl/status/1305114197911535616/photo/1

 

Not even close …

I am afraid this chap just gets it all wrong. There really is no point in ruffing if your ruff is overshadowed by a brushed beard and natty hat. Yes I know it was early in ruff history, but still…:

What about this one – excellent illustration of variation of ruff angle: James VI of Scotland in the 1580s, ruffed at a very steep angle indeed – going full ‘John the Baptist’s head on a plate’: the head and body seem to be completely separate.  Portrait of James in 1586

And, new in on 5/11/2020 it’s this veritable neck-tutu from Henry Howard, earl of Northants, d. 1614 (from https://blogs.bl.uk/digitisedmanuscripts/2019/11/coppie-the-words-but-burne-this-paper.html:

Portrait of Henry Howard Earl of Northampton

This one – can’t quite put my finger on what it looks like: meringue?

Medievalwatch: imprisoned by laziness

Oh dear, yet another muddled bit of journalism, pushing the tired ‘anything bad can be called medieval’ line. Simon Jenkins’s piece in the Guardian today makes a sensible overall point about the pointlessness, at best, of most incarceration. But he can’t help himself from going down the easy, lazy route of calling bad things ‘medieval’.

‘Except for dangerously violent individuals, imprisonment is a medieval hangover, a world of clanging gates, yelling guards and filthy cells, the sole purpose being to “teach ’em a lesson”. ‘

https://www.theguardian.com/commentisfree/2020/jul/31/british-prisons-are-inhumane-and-do-not-prevent-most-of-them-should-go

Why is this important? Well calling Bad Things ‘medieval’ insults and ‘others’ the long dead, and annoys academics working on medieval matters. In the case of this particular Bad Thing, It is also just inaccurate, in that mass incarceration as punishment for serious offences, in great big fortressy institutions is more properly laid at the feet of the Victorians than medieval people. Likewise, if the point is about the poor conditions, or solitary confinement, then that is not something which is specifically ‘medieval’. There is a big, important, point that is missed, in labelling such Bad Things medieval, and that is that it plays down the connection between the Bad Thing and a particular, later, mode of societal organisation – capitalism. Prison policy, in the nineteenth century and today, is deeply connected to capitalism.  It helps nobody to ignore that.

31/7/2020