Weapons and words: revisiting an issue from medieval sexual offence records

(This post contains references to sexual offences and sexual violence).

Despite the lack of interest in this area which is shown in the leading textbook on medieval English legal history, (you have a look at Baker’s Introduction to English Legal History editions 1-5 …), the study of sexual offences has seemed to the better sort of social historians and history-based legal historians to be something worthy of considerable attention, just as it has done to many modern legal scholars. There has been some excellent work, examining the implications of the word raptus (summary: it’s complicated) and differences over time, in terms of the basic allegations which appear in legal records. One aspect which has not been to the fore is the very occasional use of metaphorical language in these records, in relation to sexual offences, specifically the use of the image of weaponry to stand in for male genitalia.

I mused about this in a previous post. Since then, I have found some more examples, and it seems worth revisiting, and perhaps trying to discuss the matter with those who might have wider, relevant, expertise (over a longer time-span, or else a broader knowledge of other sources – literary, theological … than is possible for a legal scholar stepping out of her lane quite enough by taking on medieval history…).

In the earlier post, to summarise, I noted an entry on the King’s Bench plea roll for Easter 1435 relating to proceedings against a clerk, Thomas Harvy, for alleged offences in Norfolk, including a sexual offence (which was probably understood to be ‘consensual’ – at least in contemporary terms of an absence of overt physical struggle).[i] Jurors had presented before the justices of the peace that, on 1st October 1433, Thomas Harvy of Testerton, clerk, … broke into the house of  John Serjeant of Colkirk, at Colkirk, and attacked Margaret, John’s wife,  wounding her shamefully (turpiter) with a certain carnal lance called, in English, a ‘ballokhaftitdagher’, and so he continued to do until that day, setting a bad example etc., to John’s great damage and against John’s will.’[ii]

I did, at first, question my reading of the carnal lance/ ballokhaftitdagher’: could the lance perhaps have been some sort of butchery implement? But both terms being used together made a pretty strong case for seeing the ‘carnal lance’ and ‘ballock hafted dagger’ as evoking not actual weapons but metaphorical weapons, and to refer to male genitalia.

I had come across the ‘carnal lance’ image on its own in a very small number of other cases.[iii] Now, though the number remains small, I have a couple more. There is another ‘carnal lance’ reference  in a  1483 Devon rape indictment.[iv]  This one does seem to separate the attack with the lance and the sexual penetration, so did make me wonder once more whether I might be talking fanciful nonsense, but yet another, from the same county and roll, mentions the use in an attack on a female servant of both ‘carnal lance’ and two ‘stones’.[v] A metaphorical link between testicles and stones was certainly present in the medieval period, and appears, for example, in the Mirror of Justices, in a discussion of mayhem (Book I c. 9). It is, of course, hard to be sure that this was not a real lance and real stones, but the more examples I find of the link between weapon-talk and sexual offence cases, the less likely that seems.

I have not gone out looking for references in a systematic way, and it seems unlikely that I have, by chance, found all of them. The best view which I can give at the moment is that this was a known idiom/image in later medieval England, and an unusual, but not unknown,  inclusion in legal records.

 

Why is this interesting, and what does it all mean?

If we assume that the ‘weapons’ are metaphorical, what then? First it is worth noting that a resort to metaphorical language is unusual within the generally unfanciful context of medieval plea rolls. It was not necessary to describe the (alleged) offences in this way. Secondly, it should be acknowledged that  the use of weapon-imagery is a well-known practice in literary sources.[vi] What are the implications of this weapon imagery in the legal context?  Several things occur to me, all a little tentative just now – I would certainly be interested to know what others think. Here are some of them:

  1. I wonder whether we can read into the occasional intrusion of this sort of imagery in entries on the legal record something of the mood of discussion about such offences, amongst the men involved in making records, or those in court. Is there validity to my intuitive reaction that it sounds like joking about and diminishing the seriousness, or the wrong, of sexual assault and rape? Might it be argued to show the exact opposite: since we know that these prosecutions almost never ‘succeeded’ in the sense of ending with a conviction and punishment according to secular law, aligning it more closely with the ‘ordinary’ sort of violence (and especially categorising the harm as a ‘wound’, as in ‘ordinary’ batteries etc.) showed a greater-than-usual degree of concern. The ‘rape: an offence (predominantly) of sex or violence?’ question is something of an ‘old chestnut’ in modern legal scholarship, but I think that there is some worth in considering linking up those debates with the work on rape/sexual offences in historical studies, which does not always deal with this point.
  2. What does the weapon imagery say about ideas of men, rape and sex?
    1. Does associating offending sex with a weapon in some sense dissociate man and penis, and, if so, is this something which serves to minimise – or ‘outsource’ – culpability?
    2. How does the association work with ideas/reality of rape as a weapon in (medieval) warfare?
    3. What does it all say about contemporary ideas of (socially sanctioned) sex? We are well used to the medieval idea of heterosexual encounters as asymmetrical, perhaps with a ‘playful’ combat aspect. Does using the weapon idea in sexual offence cases suggest an acceptance of a continuity between offending and non-offending sex?
    4. If weapon-imagery is to be used, what is the reason to choose one type of weapon rather than another? What implications might there be in choosing a lance rather than a dagger, a Latin/French term or an English one?

As ever with medieval legal records, far more loose ends and questions than concrete findings, but, I will stick my neck out a tiny bit and make one statement based on all of this. It does seem to me that one thing the use of weapon-words must have done was to reinforce the connections between the men involved in the legal process (jurors, clerks, those in court) and place them in opposition to the woman against whom, or with regard to whose body, the offence had, allegedly, been committed. The wielding of such weapons was a thing clearly gendered male, and, as such, something drawing men together in exclusion of women. Probably not, therefore, something conducive to a receptive attitude to allegations of a crime against a woman’s body.

GS

26/5/2022.

[i] KB 27/697 Rex m.5 AALT IMG 0183. You can see a scan of the record here on the AALT website.

[ii] For the ‘ballock hafted dagger’ (a real weapon), see the earlier post, and Ole-Magne Nøttveit, ‘The Kidney Dagger as a Symbol of Masculine Identity – The Ballock Dagger in the Scandinavian Context’, Norwegian Archaeological Review 39, no. 2 (2006), 138-50.

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

[iv] KB9/363 m. 2

[v] KB 9/363 m.3

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

Note on terminology: I have generally stuck to ‘sexual offences’ here, because of an imperfect mapping on to modern conceptions of ‘rape’ of the ideas and definitions current in the medieval common law. There is probably not a satisfactory way of dealing with this mismatch, or at least I have not found one, and my choice is not intended to minimise the severity of the harm suffered, or the culpability of offenders of the past.

Image: I am going for a general suggestion of ‘puzzling’ here: a maze, Photo by Ben Mathis Seibel on Unsplash

Review: Lady Killers with Lucy Worsley BBC R4

Lucy Worsley’s latest radio show/podcast gets into a bit of legal history, mostly crime, but also some other bits. Obviously, I felt duty-bound to listen to it all, and did not in any way just want to hear about a few scandalous Victorian murder cases.

So – what was the verdict? I thought it was a good thing. I do think LW is a good thing in general,[i] and her shows are generally well put-together. Of course they are aimed at an audience other than full-time academic historians, but it is hugely important to produce things for everyone with an interest in history, and I suspect that it makes sense to get some things across via a bit of a romping TV or radio show by somebody with a bit of charisma, rather than trying to turn every academic into a great communicator in that register, as the various ‘impact’ and ‘knowledge exchange’ imperatives tyrannising British academia insist is essential. Also top marks for using a host of women as experts. There is quite an imbalance to be redressed in media history, so these things are important.

The series is organised around eight sensational cases of homicide by women, or possible homicide, though it branches out in two other important directions. First, it makes past-present links, with its avowedly feminist slant, and by bringing in comparisons with modern law and criminal investigation. Secondly, it uses each case as a point of departure, for consideration of the lives of nineteenth century women, including the legal changes which were beginning to dismantle some of the more egregious disadvantages they might face in terms of property and rights of citizenship.

Episodes

1:  Florence Bravo

I will confess straight away that, despite this being a bit of a sensation in its day, I had never heard of ‘the Balham mystery’ or Florence Bravo and the death by poisoning of her charmless-sounding lawyer husband, Charles, in 1876. Apart from the crime stuff – back to that in a moment – there is also (hurrah!) a little bit on property. It seems Florence had some money from a previous marriage, when she married Charmless Charles, but he could not get his paws on it, as she had used a trust (only me who would have liked more details on this? OK, fair enough …) … and a very brief not to the Married Women’s Property legislation (again … only me … OK …)

On the inquest, which sounds as if it got further into examination of Florence’s former sexploits with an old doctor than was strictly necessary, and which was reported in a fairly unrestricted way in the press, it was interesting to have the view of a modern barrister, Sasha Wass QC, pointing out some of the differences in terms of sexual history evidence and contempt rules (though also some depressing similarities across time …). I was also rather taken by the fact that there was a bit of a thing for sending the police interfering busybody letters suggesting lines of investigation they might take. Can’t imagine that they appreciated that!

(FYI, the inquest did not point to Florence as the killer, despite the impeccable logical link between shagging an older doctor and poisoning a husband’s wine … but she ended up living in hiding and died shortly afterwards, drinking herself to death on (unpoisoned) wine).

2: Madeleine Smith

I was familiar with this one: the Glasgow cocoa killer (allegedly poisoned her unsuitable ex in 1857, with arsenic, but the jury bring it in as ‘not proven’). The nice historical/legal historical point here was a bit of comparison between the story which was made to emerge from a selection of Smith’s letters, in the hands of the prosecution and that which came out after careful perusal of all 250 surviving letters. It is, perhaps, a little odd hearing somebody looking at documents on the radio, but that point was well made.

 

  1. Lizzie Borden

Off to Massachusetts for this famous axe/whacks murder case from 1892-3. Maybe a little less ‘core legal history’ here, and more ‘did she do it?’, but a couple of interesting points on the particular female interest in ‘true crime’ – the case in 1893 and now – and on gender and class.

 

  1. Grace Marks

Canada is the next location, for this ‘servant (allegedly) kills master’ story. Also quite well known, through Margaret Atwood’s novel treatment. Gory double killing. Considerable doubt about Grace’s role, and the main interest from my point of view was pondering on the way in which it was, and is, insisted upon that women defendants react in a particular emotional manner.

 

  1. Getting Away With It

This one looked back at and thought about  no.s 1-4, taking things in a slightly more ‘academic history’ direction, with greater input from Dr Rosalind Crone.  Had me at ‘It’s more complicated than that, isn’t it?’ (here, in relation to the Victorian ‘angel in the house ideal).

 

  1. Amelia Dyer

In this one, we get into the murky world of baby farming, and the investigation, prosecution and conviction of industrial-level baby farmer and killer, Amelia Dyer. She was a native of Bristol, I learned – strangely not somebody we hear a great deal about here. This one sees LW stepping back a little and letting the programme be led by the excellent combination of R. Crone and a former leading police detective, Jackie Malton, who had some great insights on the investigation process). The added social/legal history material here highlighted the changed position of unwed mothers, given full responsibility for their children under the New Poor Law 1834, and thus left to try and find some way of maintaining them, and working themselves – enter the baby farmers (unregulated and clearly not always kind, or, indeed, un-murderous). Also liked the little ending in which LW warns against too much self-satisfied contempt for the past, given the continuing mess of provision for child care for those in need. Well played.

  1. Mary Ann Cotton

This is another one which is familiar to me, for slightly weird reasons – my mother’s family tree includes a ‘Mary Anne Cotton’, from near enough to the scene of the alleged crimes, and the family have always been VERY insistent that there is absolutely no connection with this woman, pointing out the different spelling of Ann/Anne! A common enough name, I suppose, but anyway, she has always been on my radar for that reason, and the little song ‘Sing, sing, what shall I sing?/ Mary Ann Cotton tied up on a string …’ (not mentioned here). So the suggestion that this is not such a well-known case was a little bit surprising. Anyway, much discussion of poisoning, including the teapot alleged to have been used (news to me that tea was good for poisoning purposes because hot things are best and cold ones problematic for dissolving arsenic … the things you learn …) and discussion with barrister Alexandra Wilson about past-present comparisons concerning the trial. Important to note the differences caused by changes in rules about character evidence since the 1870s and this case. Might have gone into the fact that the jury was all male, with a property qualification, rather than being representative of society as a whole (which probably increases the potential impact of playing up gender roles).  My mother may be annoyed at the absence of an official acknowledgement that M.A.C. was ABSOLUTELY NOT related to us …

  1. Esther Lack

This one was unfamiliar to me. Esther Lack’s alleged crimes were the killings of three of her children. There was no ‘did she do it?’ here – the focus now, as then, was on her mental state, and the way in which mental disturbance was treated. Found not guilty by reason of insanity in 1865, Lack was sent off to what sounds like a rather pleasant asylum in Wiltshire (though died shortly afterwards). We hear from  Psychiatrist/psychotherapist, Dr Gwen Adshead on infanticide and mental disorders relating to maternity, and from Dr Rosalind Crone on asylums and the squalid conditions of Lack’s life in London. And she is invited to offer the academic-heart-warming line  ‘It’s way more complicated than that!’. Hurrah! Because life is and was more complicated than any neat summary or story-arc. Viewers and listeners can cope with something other than ‘I have all the answers and will impose my narrative upon the past’. So thumbs up there.

 

  1. Hannah Mary Tabbs

I had not heard of this one either. It’s a US case, so maybe that’s less surprising. Well worth including though, for the additional insights it brings, with regard to the impacts of race on the 19th C criminal justice system, and the links drawn between that and the present, with regard to racism and policing, and incarceration.

 

  1. Mad, Bad and Dangerous to Know

This was a bit of a round-up and discussion of general themes, especially from the second half – those who presumably ‘dunnit’. In a move calculated to annoy a certain demographic, the emphasis is on the environment which produced the situations in which the killings took place – with particular attention being paid to economic issues and the lack of support for women and maternity. There was a good bit on the press and the development of sensational headlines. I would have liked to hear a bit more about the property/trusts aspect of, and arising from Bravo – conversation could have done with a bit of a steer on that. Perhaps a separate series on those issues would be an idea? Come on, you know it makes sense!

GS

22/5/2022

[i] (did an actual doctorate, note, and worked her way up as a historian, rather than taking the ‘following Daddy’s footsteps and making programmes with Daddy’ route of some self-styled ‘history guys’ one might mention … OK, got that off my chest)

Image: a tombstone. Seemed sort of appropriate. Photo by Mr Xerty on Unsplash

Don’t talk to outlaws?

Quite often, there is more to learn from failure than from success: this is as true of legal history as it is – according to much wellbeing advice – of life.

Today’s snippet is on a failure (of the legal historical, as opposed to the personal, variety: obviously none of those at all). It is something that caught my attention in an entry on the Gaol Delivery Roll for Nottingham for a session on 1st August, 1422.

The entry notes that a certain Thomas Othehill was arrested for the heinous offence of talking to another man, one Roger Caus. Now, you will be asking, how on earth could that be any sort of offence? Well, it couldn’t, as things turned out, but the accusation was an attempt to portray this as acting, in some sense, as a ‘receiver’  of Caus, who was some sort of ‘wrong ‘un’, having been indicted of un-named felonies, and outlawed. Formally, it failed because the indictment did not actually include the word ‘received’.

So, it didn’t work, but perhaps it does suggest a degree of uncertainty about the location of the boundary of ‘receiving’ conduct. Somebody at least thought that talking amounted to or indicated ‘receipt’. The idea behind this prosecution may have been something along the lines we might see in canon law regarding excommunication: the sanctioned person should be shut out by others. Common law, probably not surprisingly, seems to have set the bar rather lower, in terms of what was required of other people, in relation to an offender. Some degree of active help, as opposed to the psychological boost of a bit of chat and company, was required (or had to be alleged, at least). Passing the time of day with Robin Hood would have been OK then. If he had existed.

GS

21/5/2022

Picture: Robin Hood Statue, Notts, Photo by Steve Harvey on Unsplash

Derry Girls: a shoe-horned appreciation

For those of us in the UK, this week saw the end of wildly-loved sitcom, Derry Girls, after a perfectly-judged run of three series: out on a high it went, with praise from all quarters.

So – saying it was great is hardly news (though it absolutely was, and I aspire to be somewhere on the Michelle-Sr Michael spectrum, though fear that the Clare-Jenny Joyce continuum would be more like my teenage self …). And I don’t have particular personal connections to vaunt – have in fact never been to Derry (though, if ‘being a Derry Girl is a fucking state of mind’, as Ms Mallon so memorably put it, then maybe we all have a little …) so why muse about it on a supposedly legal history-themed blog?

For anyone working on recent legal history, of course, the relevance is obvious. Working backwards from the last episode, there are all sorts of insights into  legal rules and law-enforcement or law-breaking situations – from the Good Friday Agreement, British-Irish citizenship, release of paramilitary prisoners, British military activities, the RUC,  Orange marches, canon law procedure for recognition of miracles (the crying BVM statue one…) and no doubt much more.

There is also the ‘past meets present’ point made by many, that we (and by ‘we’, I mean in particular the current, appalling, UK government) run the risk of allowing things to descend into bitterness and violence once more, unless we have a mind to the troubled past of Northern Ireland, and the huge change represented by the GFA, and Derry Girls did a massively effective job of fixing that in current consciousness.

But it’s probably the more general lessons/reminders about history which hit home the most for me in my capacity of scholar of legal history. Like the fact that the bits professional historians (legal and other) focus on – the big changes, the high politics and economic generalisations, for example – are not necessarily the main concerns of most of the people at any given time. I mean, it may even be the case that, while the Statute of Uses was being prepared, or while assumpsit was storming the great citadel of debt, teenagers of the past were more bothered about their equivalents of Take That, Fatboy Slim and finding ‘massive rides’. At times, we may all need to ‘catch on to ourselves’ and realise that, unless we are prepared to put a bit of life, good stories, and even humour into our history,  we risk sounding rather more like Uncle Colm than any of the others. For my part, I shall be endeavouring to infuse this summer’s conference paper with something of the spirit of Aunt Sarah –

possibly not at the peak of academic rigour, but, I hope, some memorable lines. Should get back to it, I suppose.

GS

21/5/2022

 

Main Image: everyone has heard of Derry Girls, right?

 

The benefit and the doubts: a killing in the cloisters in medieval Lincolnshire

It has been a while since I turned up anything new on petty treason, but today I came across a rather interesting case in a Lincolnshire gaol delivery roll from a session in September 1416. This time, it’s not about fatal goings-on between husbands and wives, but the ‘all boys together; world of the medieval priory.

The entry on the roll indicated that John Waldyng of Nocton Park, Lincs, (a house of Augustinian canons),formerly of Markby in Lincs, canon, had been arrested for having hired Richard Kyngton of Crouland, Lincs, yeoman and Peter Appulby of Nocton Park, canon, feloniously to kill and murder Robert Frisby, formerly prior of Nocton Park. In accordance with his plan, they came to Nocton Park one Sunday night, with a stave and a ‘handspathe’ and there feloniously killed and murdered Frisby.

John Waldyng had been indicted before one of the Lincolnshire coroners {Thomas Harleston, of  Kesteven). Further details, which presumably came from the coroner’s proceedings, include the story that Robert Frisby was walking in the cloisters of the priory, at twilight, having prayers said before him, and was attacked from behind, hit in the head with knobbly clubs, and a small iron-shod mattock, ‘breaking his brain’ (and killing him).

There was more – after the killing, John hid Frisby’s body in a corner of the chapter house, and that night took it to a ditch in the woods of the priory. He buried the body, but not before taking Frisby’s purse, with money and some other goods (including his keys). The next day at dawn, John broke into the prior’s room(s) (cameram & studium) within the dormitory of the priory, and took further items – gold, jewels and chattels to value 3s 4d. On a previous occasion, he had taken other goods of the priory, including ‘a book called iornall’ (an ecclesiastical book, rather than the secret diary of Robert Frisby, I am afraid)  and weapons and fighting gear – worth 13s 4d.

John made a successful claim to benefit of clergy. In his case, this was fairly uncontroversial – he was a canon. This success meant that he was not going to face execution for his offences. Nevertheless, the (lay) jury gave a verdict, finding him guilty.  John was committed to the ecclesiastical authorities for safe custody.

So what?

Well, when I saw Frisby being described as ‘prior’, I was hoping that I had found a straightforward example of ‘killing one’s religious superior’ as mentioned in the Statute of Treasons 1351/2, which would show how the designation of that offence as ‘sort of treason’ played against the fact that benefit of clergy would be likely to be claimed in all such cases. The likelihood is that benefit of clergy would have prevailed in such a case, but I have not yet found one.

This case is not quite so straightforward an example as I had thought, though, because Robert Frisby was not actually John’s prior at the time of the killing. He had, apparently, resigned in 1400, and there was another prior at this time. We might debate whether the faith and obedience owed to a prior ever went away, but I don’t suppose that this had been sorted out. There are certain aspects of the way in which the accusation seems to have been made which suggest some uncertainty as to the classification of this offence. It is stated to have been not just a felony but a treason – the key word proditorie comes in more than once. There was an insistence on calling Frisby the master of John, and John his servant,  as well as talking about Frisby being (former) prior. This would cover two of the three species of ‘petty treason’. Of course, John may really have been Frisby’s actual servant, though I would imagine that, since he is called ‘canon’, there would not have been any sort of contract of employment of the sort which would have existed between a ‘normal’ master and servant.

So – not the clear cut example I had hoped, but still an interesting insight into ideas about the ecclesiastical species of petty treason. There was some appetite for labelling such a homicide with treason-words, even though it was probably always clear that John would not be facing any sort of execution, let alone the ignominy and added pain of the petty traitor’s death. I am also rather taken with the almost martyrdom-story-like elements of the narrative of the killing of a man walking around in prayer, in the twilight stillness of the priory, struck down by cowardly brutality, from behind.

GS

17/5/2022

Image: not terribly evocative, but this is where it all happened … site of Nocton Park priory.

Self defence and God’s deliverance: an attempted rape indictment from Buckinghamshire

Content warning: as will be obvious from the title, this refers to sexual offences

Here is a little extra snippet for considerations of medieval women and the law. Yes, I am obsessing about a few words once again…. This time, it’s a rather interesting formulation in an indictment from Buckinghamshire, from the file of Hillary term 1440.

A certain John Snelle of Wendover, Bucks,[i] miller,  was in trouble. He had been indicted before royal officials, and the case  was now being dealt with in the KB.[ii] The allegation was that John had, on Tuesday before the feast of the translation of St Thomas [7th July] 1439 at Wendover, come to the  land of Henry, prior of St Mary Overy (Southwark), in Wendover, with force and arms, and had attacked and beaten Isabella Webbe, wife of John Webbe. The beating was said to have been so bad that her life was despaired of (not an uncommon thing to state). Less usually, there is a specific allegation with regard to John Snelle’s intention to commit a further offence: he wanted to have sex with Isabella (carnaliter concubere) there and then, (so, a rape in our terms, given the coercion) and would have managed this, had she not defended herself, through divine intervention [gratia dei mediante, se ipsam defendisset].

Not-wholly-unexpected-anticlimax spoiler – an entry on the KB plea roll for Easter 1440 notes that John was acquitted. Aren’t they always, when it’s anything to do with rape? Nevertheless, this indictment interests me because of the interlaced divine intervention and self defence aspects of the foiling of the attempted rape.

It seems to me that, while self defence was certainly ‘a thing’ in medieval law, a ‘defence’ to homicide and batteries, its application, with regard (a) to women and (b) to rape, was uncertain. In its best-known guise, in homicide cases, self-defence narratives tended towards a rather masculine paradigm: defendant was cornered, had no option but to use significant force, to preserve his life, and that his mind was full of the need to defend himself, not a felonious, and/or premeditated, intention to kill. This classic self-defence story assumes that the party who is attacked is armed and capable of inflicting a deadly injury on the attacker, and that it is credible that the attacker would be able to kill the party who is attacked. None of this is impossible in a F-F, F-M, or M-F encounter, of course, but, given average physical build and predominant gender roles, it would be significantly less likely to fit medieval women than men. It does not cover some of the more predictable deadly responses of those women attacked by somebody who sought to kill them, which might involve some time between attack and deadly defence. If we go beyond homicide, and ask whether a woman who (feared she) was about to be raped, and killed her assailant, would escape capital punishment. I tried to look at this issue a little in my recent Women and the Medieval Common Law book, and noticed a certain discomfort with regard to whether a woman was in any sense entitled to kill a man trying to rape her.[iii] In at least one case, an allegation of attempted murder was spliced into the allegation of attempted rape, to back up a possibly uncertain case.[iv]

This 1440 case may, perhaps, suggest less of a discomfort about whether women should be allowed to use deadly force in these circumstances, and more of a disbelief that they could actually resist. Isabella seems to have needed God’s help. ( I did spend a while attempting to understand how her self defence and God’s intervention would work together… did God somehow let her win, in the way trial by battle was supposed to work, or was it an independent bolt of lightning type of thing, meaning that her feeble mortal efforts at self-defence were a bit beside the point? But let’s not let our heads explode … overthinking …). Of course, the fact that God had her back would also tend to make the accused sound rather worse. Not only was he attempting to commit an offence against a mortal woman, but he was struggling against the Almighty himself.

Of course, even with the allegation of God’s involvement, it was still impossible to get a conviction of a man for a rape offence. That, of course, is not an entirely historical problem.

 

GS

16/5/2022

 

Image: St Mary’s Church, Wendover, because, like, God …

 

[i] ‘Gateway to the Chilterns’, apparently.

[ii] Order to that effect 25th Jan, 1440

[iii] pp. 131-3.

[iv] JUST 3/220/2 m. 57; JUST 3/210 m. 29d.

Sophisticated tastes in fifteenth century Rochester

Well this one appealed to me today – no particular research reason (though I suppose it links, rather vaguely, to my PhD work on regulation of victual sales etc.), just rather interesting to see some details of medieval sneakiness. And maybe having been drinking a glass or two of Law School prosecco (REF results day!) made it jump out as well …

It’s a Kent case from the King’s Bench roll for Michaelmas term 1440, (and see the indictment, here) about dishonest selling of wine. Thomas Elbrygge (also accused of other market-related offences) was indicted for having, on 3rd May, 1439, at Rochester, taken six bottles of old wine of La Rochelle, which was defective in colour and taste and unfit for human consumption, and mixed them with old Spanish wine, and then done various things to try and disguise the appearance, smell and taste of this combination. Egg white comes into the picture, in relation to making the concoction look better, there is also use of ‘gum’ – resin, I think – and pitch – mmmm! – apparently so that it would smell like the fancy Romney and Malmsey wines.  He then sold it as Romney and Malmsey, which was, of course, false and fraudulent, and obviously endangered the king’s people.

I was rather taken by the use of one particular word: along with being a fraud and a falsifier, Thomas was said to be a ‘sophisticator’ of wine. Interesting how words change in meaning over time, and this is a nice example of a real switch in terms of positive or negative implications. We would now generally like the idea of being ‘sophisticated’ – not sure I have ever achieved it, mind you – not so our predecessors. The Sophists of classical philosophy do not get a good press, and medieval people definitely did not want their wine to be sophisticated.

Cheers!

GS

12th May, 2022.

Image: some wine, not, as far as I know, adulterated/ ‘sophisticated’.

Photo by CHUTTERSNAP on Unsplash

Labour law and extremely small medieval Londoners

I have noted a few cases on labour/employment law over the years, but this is a new one for me, and a fairly secure Year Book-Plea Roll match[i] – names almost line up, though there are some changes of story …

Let’s go to the London area, in the 1350s, and observe what is clearly a fairly extreme shortage of workers …

The entry, labelled ‘Middlesex’, sets out the case against Robert Brewer de Holborn and Elena his wife, and Matilda daughter of Philip de Cornwaile, recently servant of Thomas Cheris, cutler. These three were sued on behalf of the king, and himself, by Thomas Cheris, on a writ founded on the recent labour legislation (Statute of Labourers (1349), 23 Edw. 3, ch. 2). Robert and Elena had allegedly admitted Matilda into their service before her term of service with Thomas was up, and Matilda had left Thomas’s service before the end of her term, without licence or reasonable cause. Both offences were ‘in contempt of the king’, to the damage of Thomas, and contrary to the legislation.

Thomas’s contention was that Matilda had been in his service, in St Stephen’s parish, Coleman Street ward, London, under a contract which ran from 21st June, 1349 for the next seven years, but left before the end of that term. without licence, on 5th October, 1354, and was taken on by Robert and Elena in the St Andrew’s parish, Holborn, Farringdon ward, and retained, (in contempt of the king,  to the damage of Thomas – to the tune of 20 l., according to Thomas – and against the form of the ordinance.

Robert and Elena’s answer to this, as far as the plea roll was concerned, was that they had done nothing wrong, since Matilda was too young to have made a binding contract to the effect alleged by Thomas. Having examined Matilda in court and inspected her body, the court decided that she was within age, and could only have been about three years old when Thomas said she was initially retained, so that she could not then have contracted with anyone, or entered into a covenant. As far as the case against Matilda was concerned, Thomas lost – he would take nothing and was in mercy for a false claim. We might think that the case against Robert and Elena would have to fall too, given the problem with Matilda’s ‘covenant’ with Thomas, but not so: that case went on, and Robert and Elena, in the end, put themselves on a jury on the issue of whether or not Matilda was retained by Thomas as he stated in his writ. [Here, the entry ends].

The Year Book tells a broadly similar tale. One character is called William Brewer of Holborn, rather than Robert, and he is bringing, rather than defending the suit, and Matilda is said to be the defendants’ daughter rather than the daughter of somebody else entirely (though possibly that relationship is forgotten later on in the report – it certainly seems odd that it is not used in argument) but still, I think this is the one.

The YB story is that a  writ on the Statute of Labourers is brought against ‘a man and his wife’ (Ds) and their daughter, ‘M’. M had allegedly covenanted to serve P for seven years, but left without reasonable cause, before the end of her term. The Ds had then retained her, contrary to the statute. As with the plea roll version, there was an inspection of the girl, and it was decided that she was too young to have made a binding contract as alleged, so that part of the case failed, but the case against the Ds continued. Year Books being Year Books, we get more of an account of the sparring before the eventual issue was reached, and it is pretty interesting.

There was, apparently, some argument about the interpretation of the Statute of Labourers: the Ds’ counsel  argued that the statute concerned covenants for usual terms, i.e. one year, not seven. Essentially, the point was that it was incorrect to build a case on the statute here. Expanding upon this, it was argued that, if this was allowed, a writ on the statute could be used for a covenant for a lifetime of service, or for a thousand years – which was clearly regarded as ridiculous.

Counsel for the Ds also, we are told, had a go at making  something of a coverture point – the writ was against both H and W, but a feme covert could not employ anyone, as ‘all would be said to be the act of the husband’, and, clearly, it would be wrong for the wife to end up in prison for her husband’s act – so using the statute, which did prescribe imprisonment for this offence, would certainly be inappropriate. Willoughby JCP was not entirely in agreement with the coverture argument, and made quite an interesting intervention, to the effect that ‘common understanding’ was that, if somebody was retained in the service of one spouse, s/he was regarded as being in the service of the other too. (So, coverture fans, I suppose that indicates more of a unity approach to coverture than a domination approach – or, indeed, just something a bit more practical and a bit less in thrall to any particular theory; something which showed an understanding of employment in small scale ‘family business’ situations).

The YB has a little more on the question of M[atilda]’s age. It was a serjeant, Finchden, who showed her to the court, asking them to observe that she was nine, and so could not bind herself contractually. The court, we are told, both ‘saw’ and ‘examined’ her (luy vist & examina – let’s hope that this was nothing traumatic, eh?), and agreed that she was nine, so not bound by a covenant. They also made the faultlessly logical comment that she would have been younger when the covenant was actually made (‘a long time past’).

That sorted out the case against Matilda, but, agreeing with the plea roll, it didn’t mean that the Ds were off the hook. Argument clustered around (i) whether M could be regarded as having been in P’s service, despite not having been working there on the basis of a binding covenant, and (ii) whether or not there was a difference between removing M from P’s service and retaining her after she had left P’s service. Both pleading and statutory interpretation aspects of those questions came into play. Sensing that the court was not on their side, the Ds were scared off these legal issues, and just went to more general pleading,[ii] though there is a slight difference here from the ending of the plea roll entry. That had made the issue for the jury one of denying that Ds had retained M. Here, it is whether or not Matilda was retained by Thomas as he stated in his writ. This does seem to me quite an important difference, but I suppose that it indicates that the YB report writer had lost interest once the thing seemed to take this more factual turn, and so was not really bothered about what it was exactly that the jury was to decide. What he cared about was the cut and thrust of discussion in court, rather than the lives of little people outside the ‘Westminster (Hall) bubble.’

So what?

Well, there is all sorts here – pleading and statutory interpretation for those of a technical persuasion, employment practices and the treatment of children for those with more soc. and ec. hist. interests, and some chat about coverture for gender hist. types. I am struck, as ever, by the differences between PR and YB – it really does seem, sometimes, as if there is immediate and deliberate distancing of the material put into reports from the actual case involved. Perhaps needs a warning at the start like TV shows loosely based on true historical events.  (And no, let’s definitely not get into ‘what is truth?’ … )

 

GS

18/4/2022.

 

[i] YB Pasch. 29 Edw. III f. 27 p. 29;  Seipp 1355.085  = CP 40/381 m. 59d or a hat will be consumed … The YB account here is, of course, founded upon David Seipp’s work.

[ii] The YB report is interested, too, in the technical pleading point that this had moved from a purely legal argument to an issue of fact.

Image – site of St Stephen’s, Coleman Street … not very atmospheric, or suggestive of medieval labour law, I admit.

Covered in translation

Quick snippet: given my background as a native of Abergavenny (‘Mountains, Markets and More’… top tourist advertising, eh?) I am always keen to understand how bits of ‘the common law of England’ have applied in the Land of My Fathers, and so, whilst working on coverture, I have been interested in the question of how the relevant terms: ‘coverture’, ‘feme covert’, etc., would have been translated into Welsh.

This turns out to be slightly complex.  The origin of ‘coverture’ etc. is clearly French, and English language sources continued to use feme covert into the twentieth century (there are even some pieces of legislation which use the term still ‘on the statute book’ – e.g. Prescription Act 1832 s.7 – so, in a sense, it is still part of English common law, offensive though that is). Add to that the fact that ‘coverture’ is not a concept which was known to ‘native’ Welsh law,[i]  so that there is not a ready-made traditional word to use, and we end up with the apparently messy translation issue I have encountered.

The modern specialist Welsh-English legal dictionary,[ii]  has, for ‘coverture’, bod yn wraig briod, i.e. ‘to be/being a married woman’. And I suppose for most modern purposes, that would do, though it does not quite capture the abstract nature of coverture, nor its oppressive implications. What other possibilities might there be? I have done a little digging in old newspapers, and in older dictionaries. This seemed a sensible move because, although ‘coverture’ was not a Welsh law thing, following the 13th C conquest,[iii]  and 16th C union, it was part of the law applied in Wales as in England. That would mean that Welsh speakers could be expected to discuss it. How would they do so?

 

The answer seems to be ‘in English or French, or, if in Welsh, in a variety of different ways’  The big old 1852 (general) dictionary of Daniel Silvan Evans has seven different terms for feme covert. Some, like the modern law dictionary’s version, are essentially ‘married woman’ (gwraig briod, gwraig briodol… ) but there are a couple which are, perhaps, to be trying to link back to aspects of Cyfraith Hywel, and others which have a slightly different feel, adding an extra layer to ‘coverture’. Some link to the old idea of cowyll may be seen in ‘gwraig gowyllog’ and ‘gwraig dan gowyll’.[iv] Others emphasise the concept of nawdd – protection or patronage. Thus, we have the wordy ‘gwraig dan nawdd ac awrdurdod gwr’ and snappier ‘gwraig wrnawdd’.[v] It would certainly be interesting to consider the differences of nuance between the ‘English’ (well, French, but you know what I mean) version (no active party indicated, rather abstract, somewhat neutral in terms of hierarchical positioning) and the masculinity-emphasising, hierarchically positioning Welsh versions (dan is very much ‘under’, by the way).

 

For ‘coverture’, the dictionary goes for ‘gorchudd’, which might be understood more like ‘veiled’, or a series of more generally applicable words to do with lids etc. ‘Cowyll’ gets a mention. It also has ‘bod dan orchudd, nawdd, neu awdurdod gwr’ and ‘cyfiwr neu ansawdd gwraig briod, gwrnawdd, gwrnoddiad’.  Both the protective, patronage-indicating nawdd and the emphasis on the masculinity of the protector are seen in the usage dan nawdd ei gwr which is the translation in an 1882  Welsh language newspaper of ‘under coverture’.

 

So – preliminary investigations suggest that this is a bit involved. The politics of translation, especially as between the languages of a conqueror and the conquered, are pretty complex, and this, I suppose, is an area which will have seemed obsolete before the renaissance of legal Welsh, and technical translation, in the twentieth and twenty-first centuries. There may not be one answer, therefore. But an interesting question, on’d ife?

 

GS

17/04/2022

[i] That sounds positive, doesn’t it, but in fact it’s not because life was great for medieval Welsh women under Cyfraith Hywel – it’s because women just generally could not hold real property, so there was no need to create that sort of abstract idea to handle their status. Weirdly, it is probably the less discriminatory nature of English common law land rules – women disadvantaged but not disqualified – which contributed to lawyers coming up with ‘coverture’. So an oppressive idea arose from a situation of marginal advantage … Women’s history is twisty!

[ii] Robyn Lewis, The New Legal Dictionary (English-Welsh) Gomer Press, Llandysul, Ceredigion, 2003, p.266. Thanks to Gwilym Owen for putting me on to this!

[iii] (still time to pull it back … Owain will come again etc. etc.)

[iv] Cowyll was a payment to a new wife, after consummation of the marriage, a recognition of her (now ‘lost’) virginity. (It’s gowyll here due to a soft mutation following dan, in case you are wondering …)

[v] Extra bonus find on this trawl – the existence of something called a ‘cover-slut’ – some sort of apron to hide one’s dirty clothes (in Welsh, bryntgudd). Definitely one to introduce into everyday conversation wherever possble…

Image: ragged dragon flag … I am sure it says something profound about nations, language etc. etc., but will leave you to draw your own conclusions … Photo by Chris Curry on Unsplash

Coverture points in a cause célèbre

As I have been mentioning (rather a lot!) in recent posts, I am currently pulling together a few thoughts on coverture for what one might generously describe as ‘a paper’, for a conference on that topic.[i] The content will be mostly medieval, with a few links to the law and legal history of the present.[ii] I do enjoy delving into a bit of 19th and early 20th C ‘public awareness’ stuff too though,[iii] and the thing which really strikes me about discussions of coverture in that period is the level of opposition based not on ideas about oppression and limitation of women’s lives, but about the ill effects coverture might have on men, or the ways in which women might use it to their advantage (unfairly, of course …) to escape some liability. I have touched upon this sort of thing in a previous post concerning the deployment  of coverture as a (sneaky) way of escaping debts. Another implication of coverture, which seems to have caused exaggerated fear amongst Victorian newspaper readers and writers, arose in a more felonious context: there was concern that women might take advantage of ‘marital coercion’ to weasel out of the consequences of serious crime.

Since well before the Norman conquest, English law has had some idea of taking into account the possibility that a wife might participate in offending conduct not because she chooses to do so, and is generally a bad lot, but because her husband forces her to offend, or to join in his misconduct in one way or another.[iv] Early accounts are focused upon theft, and to suggest that there was ever a broad ‘doctrine of marital coercion’, such as might be used to avoid the consequences of homicide, would be a fairly large exaggeration. This spectre was, however, raised in the 19th C press. We can definitely see it in accounts of ‘The Bermondsey Murder’ and its aftermath in newspapers of 1849.

The story of this much-discussed homicide was as follows:[v] a man called Patrick O’Connor had been shot with a pistol, and bashed over the head for good measure, in Bermondsey. Result: death. His ‘mutilated remains’ were found in August 1849, (and the corpse’s false teeth seem to have played some part in identification). Suspicion fell upon a married couple, the Mannings.[vi] Mrs (Maria) Manning was caught in Edinburgh and Mr (Frederick Charles) Manning was caught in Jersey.[vii] He then said that Mrs Manning had instigated the whole thing and fired the shot to the head of O’Connor (as he went down some stairs).  Amongst the general enjoyment of a horrible crime, and the potential of a bit of scandal, there was, apparently, some concern that ‘the law of coverture’ would let Mrs Manning off the hook (or the gallows …). That people might be concerned about this was implied by a letter to the Times by one ‘W.E.K.’ of Lincoln’s Inn Fields.[viii] Was this a response to genuine concern or a gratuitous display of having read a bit of obscure law? I am not sure. In any case, W.E.K., plonking down the authority of Hale, reassured Times readers that ‘the plea of “coverture” being urged as a shield over the acts of Mrs Manning’ would not actually work in this context. As he put it, ‘The public may rest satisfied that the plea of coverture will not shield Mrs Manning from the sword of offended justice.’  Phew – so that was all right.  The pair, having sold a lot of newspapers, were convicted and executed.[ix]

The ’marital coercion’ point was not the only ‘coverture’ point relating to this case. We also have discussion of property and allegiance aspects. The property point arose once both the Mannings had been apprehended, when there was something of a dispute as to how to deal with the money found on Mrs Manning at her arrest. Could Mr Manning have it (at least, some of the money not obviously pinched from Mr O’Connor) for his defence, because … coverture and all …[x] That whole ‘man gets all the personal property’ part of coverture could certainly be a bit of a problem in the situation in which spouses were both accused of a crime and were going a bit ‘cut throat’ in their defence, with separate representation to fund … The allegiance point related to jury composition.  ‘Coverture’ meant Mrs Manning was unable to secure a trial by a jury made up half of aliens, as she wished, because she had married an Englishman.

Finally, and more of a ‘women in general’ point than a coverture point as such, there is endless fascination in the gendered nature of reporting of criminal defendants. Far more attention is paid to the clothes and appearance of Maria Manning than is the case in relation to her husband. It also seems very important to know how attractive she was (woman accused of murder: hot or not?). The authoritative view given in the Times of 24th August, 1849 was that, while she was ‘very neatly dressed’, and had ‘easy and graceful manners’, she was not ‘by any means what may be styled beautiful, as some of the papers have asserted’. Ah, glad we cleared that up. Obviously deserved to hang then.

GS

16/4/2022.

 

Image: Maria Manning, from this.  Officially not beautiful, right?

[i] Still looks more like a collection of individual points as opposed to a coherent whole – hey, a bit like coverture itself … and I have in no way just gone in my head from the idea of a paper on coverture to the fact that, in ‘rock, paper, scissors’, paper covers rock ….

[ii] Sorry, early modernists, once again your period is being treated as ‘the flyover centuries’ … love you really …

[iii] i.e. doing lazy online searches of old newspapers …

[iv] Shameless self-citation – see c.6 of my Women in the Medieval Common Law. Other accounts are available.

[v] Times, 18th August, 1849  onwards: there seem to be daily reports,

[vi] Mrs Manning, nee Maria Rue/ de Roux,  was ‘a native of Geneva’, or of Lausanne, though I am sure that her foreignness had nothing to do with the negative attitude of the press …The suggestion was that O’Connor and she were ‘at it’.

[vii] Lots of detail on detectives, police co-operation etc., for those who like that sort of thing; also note that Mr Manning, on the run,  was tucked up in bed by 9.30 – a slightly incongruous touch?

[viii] Times, 29th August, 1849.

[ix] Times, 14th November, 1849. I am, no doubt, sounding rather flippant, but, as well as acknowledging that this is all grim beyond words, I do have a serious academic concern relating to this material, It is this – I note that a fair amount of modern scholarship on coverture takes the line that women (implicitly a fair number of them), rather than being ‘helpless victims’ of coverture rules, managed to use their artificial relegation from full personhood to their own benefit. We should, I think, at least pause to note that this idea of flipping an oppressive doctrine to one’s own advantage was present in the minds of those deeply invested in maintaining discriminatory structures.

[x] Times 5th September, 1849.