Unfinished business: sexual misconduct in medieval Middlesex

I have found some additional material relating to an indictment I mentioned in Women in the Medieval Common Law,[i] though no conclusion. The indictment, from Middlesex, from 1385, related to a rape on Margaret. servant or maid (ancilla) of one Matilda Wherewell.[ii] It stated, on a night in 1385, Adam Matte, leprosus, had come to the house of Matilda Wherewell, in the parish of St Clements outside the bar of the old Temple in London, and bargained with Matilda to sleep with her that night,[iii] for 10 shillings. Matilda told Adam that she did not want to do this, but that she had a certain very beautiful servant called Margaret,[iv] who was lying in one of Matilda’s chambers, and he could sleep with Margaret if he paid Matilda the sum mentioned. Adam agreed and paid the money to Matilda. Straight afterwards, Matilda led him to the chamber where Margaret was lying. She told Adam he could do what he wanted, and locked the two in the room. Adam, feloniously, grabbed Margaret around the neck, threw her to the ground and raped her. Straight after this felony, because of the foulness of the rape, and Adam’s disease, Margaret became unwell, ‘losing her mind’, and continued in this state until she died, three days later. It was emphasised that Matilda had consented to, aided and abetted the commission of the felony.

Matilda’s first tactic, when she was tried in 1386, was to say that she should not have to answer this charge, since she was an accessory, and Adam, as principal, had not been convicted or outlawed. This worked, and Margaret was bailed to appear at future sessions. Later that year, another tactic emerged: flight. Her sureties were fined for failing to produce her,[v] and the sheriff of Middlesex was to track her down,[vi] and so it goes on until 1387,[vii] but then the trail fades away, and as is all too common, Matilda seems to disappear.

 

So what?

Well, I used it in the book to illustrate the reach of common law beyond principal offenders, to include those facilitating offences, and to note that this could make women amenable to prosecution as accessories, even when they were not regarded as capable of committing an offence as a principal. I think there is more here, though.

Prostitution/sex for sale

If the indictment is anything resembling the truth, it is an example of commercial sexual exploitation of an entirely unwilling servant – and perhaps a situation in which ‘prostitution’ seems a more appropriate term  than ‘sex work’, with the element of at least some exercise of will which seems to be bound up in that latter term. The picture given is one of an unaware servant exploited by Matilda, for her own financial benefit, who is unconsenting to the point of having to be locked up in a room with her ‘client’.

‘Leper’ as sexual predator

The story also brings together ‘lepers’ and illicit sex, in a way which will chime in with other ideas about lascivious ‘lepers’, from polemic and literature. It also seems quite interesting from the point of view of regarding it as plausible that somebody with leprosy might be wandering around looking for sex in a highly populated area. I cannot claim expertise in medieval disease or response to it, but this strikes me as unexpected. If this was indeed a person with leprosy/Hansen’s disease, then the idea that Margaret might have contracted it from him in a few days is beyond unlikely. The idea that she might be traumatised and ‘lose her mind’ seems rather more plausible, given the circumstances, and the horror of this disease in medieval Europe.

Legal points

It is, as noted in the book, interesting to see a woman accused as an accessory to rape, though she could not be a principal. Matilda’s contribution to the rape is significant, according to the indictment. It would not have happened without her, it would appear.

Given the structure of the offence and indictment, Matilda’s argument about principal and accessory was logical enough. If the man accused did in fact have leprosy, or was thought to have it, however, could he have been prosecuted? I don’t think that common law procedure had a strategy for trying those with feared and contagious conditions like this. In a sense, a ‘leper’ might be the perfect principal for an exploitative employer like Matilda (or the version of Matilda suggested by the indictment) – one the common law would not touch.

GS

17/6/2021

 

(image, halfpenny of Richard II, courtesy of Wikimedia Commons)

[i] KB 9/167 m. 8 (IMG 17), mentioned at p. 126 of Women in the Medieval Common Law.

[ii] (The indictment looks like ‘Whorewell’, at least to those of us with very questionable eyesight. The materials discussed here show that it was  ‘Wherewell’, however, and thus probably a simple geographical name, relating to Wherwell, Hants, rather than, as I had imagined, a sort of occupational designation/jeer, attached to a woman who appears to have been involved in selling sex, one way or another).

[iii] These terms are notoriously difficult to translate, perhaps impossible in terms of capturing the nuances. It is clear that this is about sex, not accommodation.

[iv] (Or, as the KB 27 version has it, a servant called Margaret Pulcheriman. Makes a difference, doesn’t it? The latter suggests the sort of ‘trade name’ which might be used by a sex worker, and would seem to relate the unwillingness to the state of the particular man, rather than to the more general unwillingness of a servant not generally selling sex).

[v] AALT Page (uh.edu)

[vi] AALT Page (uh.edu)

[vii] AALT Page (uh.edu)

Gender in word and deed

Law is, as we all know, a wordy thing. Its rules, pronouncements, rulings, are bound up with the words in which they are expressed. Working across the different languages of English and Welsh legal history involves engagement with some issues which are properly in the domain of the linguist, which should encourage caution, but at times they cannot be avoided. One of these issues is that of gender. The convention of linguistic gender is widespread. Perhaps it is often not particularly important, but when one is studying medieval women, it deserves attention.

The issue comes up in different ways. One is disputes about whether a masculine word should be taken to apply to women as well as men. In the unattractive phrase found in 19th and 20th C writings, does ‘the masculine embrace the feminine’? Thus the disagreements as to whether women should have been considered to be within the protections given to a liber homo in Magna Carta, and wrangles as to whether ‘heirs’ should be understood to ‘embrace’ ‘heiresses’[i]  Another way in which linguistic gender v. sex/gender in reality arises relates to the ‘feminisation’ (or not) of texts and provisions. I have been pondering this lately, in the context of pardons.There are two interesting, and contrasting, aspects of pardon formulae to mention here,[ii]  one relating to sorts of offence (specifically, rape), and the other to roles within the criminal justice system (specifically, approvers).

From at least the late fourteenth century, pardons which cover more than one specified offence commonly exclude from their ambit treason, homicide and the rape of women.  These offences are, one presumes, held up as too serious to be pardoned as a ‘job lot’ with any other transgressions an offender might have committed in a particular period. I have noted that ‘rape of women’ might still be included when the person receiving a partdon was a woman. This seems interesting because felonious rape was, at this point, and until very recent times, a ‘male on female’ offence. Women might be accessories, to felonious rape, or to ‘ravishment’, but not principals. Had the formula been devised with female offences in mind, it is hard to believe that it would have included this particular exclusion. I find it interesting, and telling in terms of the relationship between women and the law, that the formula was adopted, unchanged in this respect, when the ‘pardonee’ was a woman.

One gender-adjustment is made in these same pardons, again from at least the later fourteenth century.  In the original, ‘male’ version of the wording, mention is made of the possibility of the potential ‘pardonee’ acting as an approver – one who confesses an offence, but hopes to avoid execution by inculpating others, appealing them and obtaining a conviction.[iii] When the ‘pardonee’ is female, this word is feminised – so ‘probator’ becomes ‘probatrix’.[iv] Fair enough, according to the linguistic/legal rules of the day, one might think, since ‘misgendering’ might cause an indictment to be held insufficient. The odd thing is, though, that acting as an approver was a ‘men only’ thing. All the evidence suggests that, because approvers had to be able to engage in trials by battle, and because women were not thought capable of fighting such judicial duels, they were never approvers of this sort. Thus, the feminised word had no attachment to the reality of legal process. It is unanswerable, of course, but I do wonder what was going on in the minds of the clerks drawing up these pardons. Was it an automatic translation (the medieval in-language equivalent of Google translate?)? Is it evidence of a rather radical (even performative?) disinterest in women and the ways in which the law positioned them as different and unequal?  And does this have anything to say to existing scholarship on gender roles in the pardoning process (queens interceding, mercy as a bit on the effeminate side etc. etc.)? Gendered food for gendered thought.

GS

15/6/2021

[i] I have a bit of a go at these in c.1 of Women in the Medieval Common Law.

[ii] On later medieval pardons, see especially Helen Lacey, The Royal Pardon: Access to Mercy in Fourteenth-Century England. (Woodbridge, Rochester NY: Boydell & Brewer, 2009).

[iii] For a masculine version, see, e.g., this one.

[iv] See, e.g,, this one.

Picture – well, if you have to ask…, it’s a quite brilliant reference to Lynn Anderson’s Country and Western classic ‘(I beg Your pardon, I never promised you a) Rose Garden)’ – one of the great rhymes in popular song….

Photo by Max Berger on Unsplash

Maritime maths: ‘within the four seas’

Ahoy there!

Today’s papers include a report that those who know about these things have decided to designate the waters around Antarctica an ocean (as opposed to just ‘the waters around Antarctica’). I cannot comment on the geographical rights and wrongs of this,[i] and, looking at it in terms of eco-systems and current patterns etc., I have no doubt it makes sense, but it feels a rather odd thing, doesn’t it, splitting up water into separate named areas, as if it they were discrete, borderable, landmasses? This designation of separate oceans or seas has resonances[ii] with one aspect of my recent research into the law of adulterine bastardy.

Until the twentieth century, there was some legal relevance in knowing whether or not somebody was a run-of-the-mill ‘bastard’ or an ‘adulterine bastard’. The latter designation was used for a child  born to a married woman, but not the child of her husband. The law sometimes had to sort out disputes in which a wife/widow alleged that the child was that of her husband, but somebody else (the husband or an alternative heir, perhaps) claimed that the child had been fathered by somebody else. Just how this was to be done changed over time, but, for several centuries, roughly from the fourteenth century to the early eighteenth century, a key question in legal process around this matter was whether or not the husband had been ‘within the four seas’ at the relevant time for conception of the child.[iii] If he had, he was presumed to be the father in most cases. The question which arose for me, when I came across this criterion, was ‘which seas do we mean, then?’. Presumably the Channel and the North Sea are reasonably easy (if we ignore the Isle of Wight, Scillies and Channel Islands), but does the western ‘sea’ bring Ireland into the equation or not, and where on earth is the northern ‘sea’ (have we forgotten that the border with Scotland is a little bit on the landy side?). If we factor in the whole of the area controlled by the king of England, that might include parts of modern France as well, for much of the relevant period.

There is some discussion relevant to the issue in early modern sources. In relation to jurisdiction, Selden interprets ‘Within the Kingdom’ as ‘within the Southern, Eastern and Western Seas’ and, on the vexed question of the ‘northern sea’ writes of  ‘That Northern Sea which washeth both sides of that neck of land whereby Scotland is united to England’. (which may not be the most practical of borderlines). and ‘clarifies’ this as ‘within the outmost bounds of the English Empire in those four Seas, or within the opposite shores of the Eastern and Southern Sea or Ports belonging to other Princes, and within the bounds of the Northern and Western Sea, which indeed are to be bounded after another manner ; but yet to be bounded : that is accordirng to the extent of possession Westward beyond the Western Shores of Ireland, and by the first beginning of that Sea, which is of the Scottish name and jurisdiction’. [iv] He notes a late fourteenth century case in which somebody tried and failed to make the argument that Scotland itself was ‘within the four seas’ – which I must track down.[v] It may, in fact, have received a slight ‘unionist’ twist in the minds of Scots at least, in the nineteenth century – one treatise at least, while stating that it does not have great force in Scots law, implies that the common law test relates to ‘residence of both parents within the islands of Great Britain’.[vi]

By this time, however, English law had moved on from relying so heavily on the ‘within four seas’ formulation. Why? Well I am sure that there are various reasons, including some of the odd results which might be produced if the presumption was given the sort of weight sometimes suggested. I think there might have been another factor too. Coke, perhaps deciding that there were serious practical problems with the whole maritime delimitation issue, decided to interpret the problem away: stating that it just meant ‘within the kingdom of England and the dominion of the same kingdom’.[vii] This represented a  move from geography to political control. It may also have contributed to the decline of the concept. Coke’s work, of course, came at a time when England and Scotland were beginning their period of global attempts at colonisation, and  a criterion and a test which might be interpreted as a presumption of legitimacy even when husband and wife were on different sides of the Atlantic was probably destined to be [wait for the maritime image …] jettisoned.

 

GS

12/6/2021

 

[i] (I stopped geography at 16 and last memory of it is of a fairly major error in the map-work exam, in which none of the blue had been printed on the paper, which made it rather hard to discuss bodies of water, as required …)

[ii] ‘Sounding the depths’ is hinted at here, you see – this is high literature …

[iii] This expression also occurs in some procedural matters, at an earlier time – I have not investigated this yet. See, e.g., 29 SS, 225; 113 SS 138; 18 SS, 234.

[iv] John Selden, Of Dominion (1652)  387.

[v] p. 388.

[vi] James Fergusson, Treatise on the Present State of the Consistorial L in Scotl&: With Reports of Decided Cases (Edinburgh: Bell & Bradfute., 1829), 199.

[vii] Co Litt 107a

Photo by Nathan Dumlao on Unsplash

Semen and semantics – considering legal metaphors[i]

A little reading this morning on law and metaphor, as I think about the paper I need to write for the SLS conference in September,[ii] which is going to look at bastardy, legitimacy and law/legal methods (a bit more on it here). Not surprisingly, others – lawyers and legal academics – have considered the issue of metaphorical talk in law, though, luckily, not the precise issue I mean to discuss.

Metaphor is an important theme for those of us interested in the history of women and law – especially in relation to coverture, so it is something which has been on my mind quite a bit in recent years. The bastardy angle is slightly different though – I want to think a little more expansively about the links between some of the problematic metaphors and expressions used in relation to bastardy and legitimacy (especially the ‘born within the four seas’ tag, in relation to adulterine bastardy,  but others too) and the process of ‘legitimate’ legal development, considering metaphors of (male POV) reproduction (and its impossibility), ‘father figures’ in law and legal history.[iii] In 20 minutes. Will it work, or will I end up getting too far into areas (language, jurisprudence) of which I know very little? We shall see.

My general reading so far has highlighted the sheer number of doctrinal tests which ‘get metaphorical’ – in all areas, but perhaps especially on the ‘civil’ side). Writings highlight their utility or problems, but there is probably quite a lot to say about their use as display within the legal profession and to/by its academic associates.

One thing I have noticed in my reading up to now is the difficulty people seem to find in writing about legal metaphor without using metaphors in that discussion itself. For example, this one at 257 states that  ‘[l]egal discourse is pregnant with metaphor., ’[iv]  this one (at p. 8) discusses metaphors ‘taking root’ in legal and other language, while this one, is generally wary of legal metaphors, but can’t resist (at 19) referring to a ‘seminal judgment’. That last one is a term I dislike – I know that semen-seminal could be interpreted generally, as ‘seed’/seedy (OK, I know, ‘seed-related’), but let’s be honest, sunflower seeds are not the first sort of seed that comes into anyone’s head in relation to those words. (And quite apart from the gendered sperminess of it, it has a rather uncritical aspect to it, justifying the process of legal development as somehow inevitable).[v] I certainly need to do some more thinking about how the apparently morally-neutral biological idea of the ‘seminal’ judgment relates to the morally-inflected legitimate procreation metaphors seen in some other places.

(And a final random thought – what would we call an ‘Ockham’s Razor’ for metaphors?).

GS

7/6/2021

[i] (I know – tabloidy title: never claimed to be classy …)

[ii] (seems a long way off but I already know I am going to have a large batch of marking in August, and, well, a break after the current lot might be quite nice/necessary if I am not going to collapse)

[iii] Thinking about this now, the main rivals to the fatherhood metaphor for legitimate legal development are probably that of botanical growth, that of rivers  and that of orthodoxy/heresy. Also n.b. the absolute ‘metaphor bingo line’ would be refs to fatherhood + ‘seminal’ + legitimacy.

[iv] Ah – takes me back to the ‘negative pregnant’ in medieval pleading …

[v] Maybe it’s compound metaphor as well, since presumably semen came to be used for … well … semen … before the motility of sperm was observed (otherwise, clearly, the people who choose words would have gone with something a bit more tadpoley). I can see I have work to do …

Photo by Erik van Anholt on Unsplash

Legitimate distraction

In today’s between-marking interludes, doing a case-search for something I am writing on ‘bastardy’. This keeps turning up 19th C cases with Bastard as a surname (Polden v Bastard; Nicolls v. Bastard…). Would have thought that would be a pretty mortifying surname in the days of Dickens and Wilkie Collins, with all of their illegitimacy-related plots, and all of the very real legal implications and social stigma of ‘bastardy’. Seems odd that it was not jettisoned. (Is it still with us? Can’t say I have ever been introduced to a Mr Bastard, Ms Bastard or Professor Bastard).

(Top prize for the most Blackaddery sounding ones, though, must go to some earlier examples – so we have Bastard, Administrator of Bastard, who was Executor of Bastard v [disappointingly not Bastard, but] Jutsham 94 E.R. 996 1 Jan 1738  Barnes 444 | [1738], and the simple but classic Bastard v. Bastard 89 ER 807| (1690) 2 Show. K.B. 81.)

GS

6/5/2021

Image: Wikimedia Commons.

(PS Fans of the author, Mr Collins, ought to have an information site about him called Wilkiepedia, oughtn’t they? Maybe they do.)

Between cause and effect: the length of lingering deaths

There is an interesting (if, obviously, horrible) local murder case in the press today, for anyone looking at the issue of causation, and the potential time-gap between offending action and death, which action may still be amenable to prosecution as homicide. Rather than simply being a matter of later discovery of, and prosecution of, a murder, the death of Jacqueline Kirk was relatively recent (2019), but the criminal action being assigned as its cause (setting her on fire) occurred 21 years before that. This leapt out at me today, quite apart from its horror and human interest, as connecting to an academic interest which I have long had in ideas about causation of death, and the issues surrounding ascribing criminal culpability in cases of ‘lingering death’, in so far as we can gather them from medieval legal records – and on which I plan to work in 2021-2. There are differences, of course, in that there can now be considerably greater certainty about factual causation than would have been the case in the ‘premodern world’, but causation in the law of homicide is never just a matter of fact, but mixes in all sorts of judgments about blame and appropriateness of bringing belated legal proceedings, so this recent case, and the discussion which it will no doubt encourage, will be an interesting lens through which to examine my material (though I have to say that, while there are certainly some very belated prosecutions, I have not found any attempts to argue for a ‘lingering death homicide’ of anything like this length, in older materials – no doubt to a great extent because people subjected to serious violence such as being set on fire would be unlikely to survive long, without modern medical interventions, but there are fascinating changes in ideas about the moral/legal aspects of causation to track as well).

GS

5/6/2021

Image (and yes I know this is not the court where the accused appeared yesterday, but the new one is a bit ugly: also good to see a statue in Bristol which is not obviously in need of a toppling): Stone statue of Justice by Edward Sheppard, the old Magistrates Court, Bridewell St., Bristol, dated 1879

Musing on mayhem

Unable to get settled into marking after the excitement of this morning’s ‘French trip’, I have spent an hour or two this afternoon doing a little bit of preliminary reading for next year’s project on mayhem. May have been slightly distracted by references to Norwegian black metal and a film about loss of inhibition, but the actual relevant legal material is also interesting – the changing nature of an offence which was never quite pinned down, and then faded into a strange twilight, overtaken by various statutory provisions, and civil actions of trespass. My initial interest in it came from the very gendered early statements about it, which came to be ignored, allowing women to proceed for mayhem, and with the relationship between ‘crime’ and ‘tort’ here. Today’s reading, though,  has also got me thinking a little bit about categories of offence, and the weight of labels. ‘Mayhem’ feels more condemnatory than ‘trespass’, or wounding, or ‘an offence against statute X’. There’s something about its venerability, something about its … I don’t know … presumption of discrete existence … which demands attention and care. I am sure that a better way of articulating that will emerge as I read on.

In the end, more tightly drawn offences and processes seem to have fitted the needs of the law and those turning to it rather better than mayhem. But was anything lost when the category was de-emphasised and allowed to dwindle? I wonder whether there were victims who would have wanted to see their assailant labelled a mayhem-er (is there even a labelling noun like that?). Questions, questions! But … marking …

GS

4/6/2021

(Later re-musing: the more I ponder, the more it seems as if this might end up as something like ‘Mayhem: the long decay of an always-ailing concept’ … with or without the sick body imagery).

Photo by Charl Folscher on Unsplash

Presenting (and Indicting): talk on medieval sexual offences

In between the marking and admin today I am getting ready for a talk tomorrow (online, of course – in this case, with academics from various European universities, and nominally ‘in’ Paris – may purchase a croissant and coffee to get in the mood, since it starts relatively early). The topic is sexual offences, and the overall topic of the project, historicising sexual harassment. It is a challenge, to present the oddities of medieval common law to a mostly non-common-lawyer audience, but it has also been interesting preparing this, with a slight external perspective, thinking about what will be unfamiliar, and where the audience will probably know rather more than me (e.g. presenting on law-French to a ‘room’ full of French scholars is a new one on me).

I am looking at ways of making this available beyond the seminar itself, though I am not sure I want to go on with my experiment in YouTubing. Sticking it up on Mediasite and sending links on request might be the answer, should anyone be interested.

GS

3/6/2021

Reviewing (the situation)

I have a book review out today a review of Felony and the Guilty Mind in Medieval England, by Elizabeth Papp Kamali, in The English Historical Review: Felony and the Guilty Mind in Medieval England, by Elizabeth Papp Kamali | The English Historical Review | Oxford Academic (oup.com)

Since this (excellent) book has received all sorts of praise and prizes, it feels slightly bandwagon-jumping to review it now, though in my defence I wrote this ages ago – possibly even pre-Lockdown I – the world of publishing moves in mysteriously-paced ways.

Still quite like reviewing books, as long as I like them. As a young whippersnapper, it was a bit of a thrill to make the odd criticism (though I don’t think I have ever been inappropriately critical – very much hope not; certainly nothing in comparison to some of the miserly-spirited write-ups I have seen of late), but these days, it is just nice to show appreciation for good work and well-made arguments.  It feels, at the moment, as if there is a particular wealth of good legal history books – perhaps it is that there is a crop of people coming to the top of their game at the same time (yes I did a bit of metaphor mixing there – what of it?). Long may it continue.

GS

2/6/2021

Photo by engin akyurt on Unsplash

Pictures (and words) at an (online) exhibition

We are all hoping that it will be safe to end the pandemic restrictions at some point not too far into the future. Historians are aching to get back into archives on the old basis, without booking or the frustration of being able to book, and to attend conferences once again. Nevertheless, many of us have found some aspects of ‘remote scholarship’ quite positive. I have certainly attended far more talks and seminars over this past year and a bit than ever I did in the Before Times. For example, I have watched a large number of seminars in London at the IHR, which, ordinarily, due to the travel time and expense, I would not have attended. To drag myself there in person, the subject matter would have to be absolutely central to my interests, whereas this year, I have been going and having my horizons broadened in all sorts of directions. I think it has been a bonus for postgraduate scholars, and early career researchers too. And it has been wonderful to have the participation of scholars from all over the world in these gatherings. I imagine that many series will go back to their previous pattern once they are able to do so, but I hope very much that that won’t be the case with all of them – I am sure that there is scope for continued history/legal history online seminars in the future. More on that in due course, I hope.

The other sort of ‘event’ I have enjoyed ‘attending’ has been the online exhibition. I have always been a haunter of museums of all sorts, from childhood enthusiasm for those glass cases of coins and badly-stuffed-and-posed animals, through intense teen art-staring, to an appreciation for slightly more off-beat, interactive things in more recent times – so one of the pains of lockdown has been not being able to see new exhibitions in person. It has been eased by some of the creative things done, e.g. by the National Archives, and various universities; and today (as a reward for hitting my afternoon marking target!) I visited an online exhibition about women’s magazines  between the world wars, Exhibition (lse.ac.uk). Women’s history is, of course, an interest, but I feel rather ill-informed about the era of my own grandparents. So much popular history of this era is dominated by ‘the rise of the Nazis’ and ‘the abdication crisis’ that the lives and enthusiasms of ordinary women can easily be drowned out – so it is good to see careful work being done on such things.

Lady Rhondda features prominently (and I do know about her, from suffragette studies, as well as because she was a big figure in Monmouthshire, which is Seabourne family home turf) along with Time and Tide. There’s so much more, though. I had never heard of The Woman Engineer –  and it’s rather heartening that there was such a publication. There’s a bit on political campaigning, relating to equalising the franchise, amongst other things. There is fashion too – with those unfeasibly long thin figures of women in suits and hats (pronounced ‘hets’ in a clipped R.P. in my head), and material on careers, and problem pages. Some of the design is very attractive.  (And who knew that Good Housekeeping in the 1930s featured articles on international politics by Helena Normanton? Well, not me!).

Anyway – I enjoyed that. As with the online seminars, I think there is a future for this format. Have a look before it disappears. As for me, well, time, tide and the marking pile (electronic) wait for no woman …

1/6/2021.

 

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