Additional Pages: A historical source in their own right

For most of my academic career, reading at speed, and always off to the next book on the list, I have skipped and skimmed the ‘additional pages’ – the Roman-numbered ones at the beginning and end of a volume, containing the preface and index. More recently, though, I have become a little obsessed. First of all, I started looking at the index of any book I was reading, to see whether they had anything to say about women (in the case of Legal History books, the answer was very often no). Then, more recently, I have started to read prefaces. A particular feature seems to be the ‘minimising and patronising thanks’ motif – especially the brief, duty-bound, mention of women who no doubt did more than the transcription and typing credited to them. The attitude conveyed is one of arrogance and self-importance, seeking to emphasise the author’s own struggle, importance and genius. A particular gem turned up in my reading today, featuring not only women-minimising, but also something of an under-estimate of the others involved in bringing a book to press.

 

In Selden Society vol. 62, C.T. Flower, Introduction to the Curia Regis Rolls (London,. 1944), Preface, viii, Our Cyril (as I am sure he was known) informs his reader that ‘This book has been read in proof by my colleague, Mr. L. C. Hector, who has made numerous suggestions, of which I have used a very large proportion. I am greatly indebted to Mr. Stuart Moore for his unfailing encouragement, and to Professor Plucknett for his careful scrutiny of the proof sheets. My wife has made my task much easier by typing more than half the text, although she was at the time crippled by an accident. A last word of thanks is due to the printers, on whom the times in which we are living must have imposed great difficulties, of which they seldom made me aware.’

 

So what sets my teeth on edge here? Well, first of all it is the bit about his wife. No name. It’s his wife and he can’t even be bothered to include her name. According to his ODNB entry, it was Helen Mary Harding, before she married Cyril. Thereafter, apparently, ‘my wife’ sufficed. Then there is the ‘more than half the text’ – was it really necessary to go into proportions? And finally, the implications of this poor woman typing away whilst badly injured (we will pass over ‘crippled’: vile though it is, it was probably not out of the ordinary at that time). The idea that, during WWII, it was thought to be so urgent a matter to get out a volume on medieval legal records that a very-injured woman was called upon to type it up suggests both a lack of perspective and also a less-than-healthy partnership. The dismissal of the printers and their ‘great difficulties’ in a few bland words also seems jarring – and is there a hint that they sometimes did make him aware of problems (uppity little tradesmen! Don’t they know how important the work of a learned society is? Hitler will look upon my disussion of essoins in thirteenth century records and despair!)?

 

I shall continue to seek out dodgy preface remarks: they seem to be an interesting window into the mental world and self-regard of earlier scholars, and the lives of Legal Historians’ Wives. There seem to be so many ways to go wrong in a preface – self-indulgence, boasting, performative thanking, general dullness – that I do wonder whether we might not do away with them and just, you know, write the book. Which is what I am supposed to be doing now.

 

GS

4/4/2020

Done or in dereliction of duty? A medical dispute in medieval Sussex

Well, looking at this sort of thing during the awful events of the present does make me feel as if my skill-set qualifies me for Golgafrinchan Ark Fleet Ship B* (*If you don’t know what that is, you are not my friend. Read The Hitch-hiker’s Guide to the Galaxy at once!) but I hope it does something for general morale and the gaiety of nations. It’s certainly keeping me going today.

Join me for another little tale from the Plea Rolls and Year Books – this time with a medical theme.

Master Simon of Bredon v. Prior of Lewes (1367)

Back we go to 1367, reign of Edward III (characterised by some terrible sweeps of infectious disease, but that’s not where this is going). England and France at war, off and on, all sorts of chivalrous things happening. Down in Lewes, in Sussex (site of a big 13th C battle, later to be home of a dubious Guy Fawkes parade), there is a house of Cluniac monks. They are much aggrieved to be taken to court by a medical man (or former medical man) called Simon, who claims that they owe him money.

Simon is Master Simon of Bredon, a doctour de physick, and he is bringing an action of annuity. He claims that the monks are in arrears with payment of sums they had undertaken to pay him, to the tune of £30. The prior (who I take to be John de Caroloco) and monks, however, argue that they should not have to pay the money. Both sides accept that there was an agreement to pay Simon some money – £20 per year, in two tranches – but there is disagreement as to whether this came with strings attached. The prior argued that it was a sum in recognition of Simon’s obligation to offer medical assistance to the house and its brethren, and Simon had utterly failed to do so, in the case of a former prior, Gerard (Gerald Rothonis was prior in 1363, according to the Victoria County History entry). Gerard had fallen ill, and Simon, who was at Mayfield (?), not regarded as too distant, had been sent for. He had refused to come.

Simon appears to have tried more than one line of argument for his position that the money should be paid. According to the Plea Roll, he argued that the money had not been conditional on his medical attendance or advice, and that he was, and had been, in poor health, having been struck by an illness called ‘gutta’ (I am tempted to say ‘gout’, but, in current circs, can’t get to a dictionary of medieval medical terms to check that; whatever it was, it made him helpless at some times, but able to function at other times). The same source also shows him claiming that the annuity was not a payment for future medical services, but a ‘reward’ for having given up to the prior the church of which he had previously been parson. The Year Book account includes additional technical pleas (to do with ‘doubleness’ of some of the other side’s pleading, and the wording of the original deal – did it oblige Simon to come in person and give medical advice, or something less than this; did it require medical advice or some more general counsel, since it did not specify). There is more detail on the prior’s pleading, including the idea that what was expected for a private, or internal, ailment like Gerard’s was examination of the urine – a classic medieval diagnostic procedure. There is a lot of interesting debate on the place of medical professionals, and the nature of expertise (of medics and lawyers). Simon gets into difficulties because his case about giving up the church does not have the sort of gold-standard evidence that the priory can produce: it is not mentioned in the parchment-work, while he is described as a doctor of physic in that document, and has not denied that he is one.

There is less difference between plea roll and year book than is sometimes the case, but the vocabulary and detail varies, so that those interested in this sort of arrangement will find it rewarding to look at both.

In the end (and, for once, we do have a result) Simon lost. He did not recover the ‘arrears’, and, what is more, had to pay for having brought a false claim. As ever, it’s impossible to know the truth – was Simon a poor infirm former medic who had given up his church and was supposed to be supported by this annuity, out of which the priory managed to weasel, or was he an arrogant and negligent doctor who would not attend his monastic clients? If he really was old and infirm, and needed to be looked after in his final years, he would probably not have chosen to approach the Priory of St Pancras for charity.

 

GS

22/3/2020

 

References:

Plea Roll: CP 40/426 m. 433, 433d http://aalt.law.uh.edu/AALT4/E3/CP40no426/aCP40no426fronts/IMG_0635.htm

http://aalt.law.uh.edu/AALT4/E3/CP40no426/aCP40no426fronts/IMG_0856.htm

Year Book: see Seipp 1367.014 http://www.bu.edu/phpbin/lawyearbooks/display.php?id=13743 for the case, and a link to the ‘black letter’ report.

On the Priory of Lewes, see https://www.british-history.ac.uk/vch/sussex/vol2/pp64-71#anchorn99

A’ things hae an end … post-Christmas musing

Twelfth night is upon us, and although I have taken the decorations down, I am looking at a pile of still-to-be-gobbled Christmas puddings. This may explain why my mind has been turning on a pudding-related issue from a late-medieval legal treatise today.

Littleton’s Tenures is not an especially easy or exciting read, and I had been putting (or pudding?) off checking some bits of it for a project I’m working on. Finally made myself do it today, only to be sidetracked by Littleton Bk 3 c 2 ‘§ 267, a passage on something called ‘hotchpot’. Without getting too tedious, this is to do with ensuring fair shares of property to a group, by looking at assets together. To the extent that I had ever thought about the word, I suppose I would have seen a connection with the ‘hotpot’ produced in great quantities once upon a time by Coronation Street’s Betty Turpin. But Littleton sees it not as a stew, but as a metaphorical ‘puddyng’ in which we might expect to see a variety of ingredients. His description is a little reminiscent of some of those Great British Bake Off technical challenges – ‘for in this pudding [puddyng] is not commonly put one thing alone, but one thing with other things together’. But what things, Littleton, what things? Are we talking sweet or savoury – or one of those sweet v. meat horrors?

We need to know!

GS

5/1/2020

Sashaying away (from imprisonment) in medieval Warwickshire

Time for another story from the medieval plea rolls. This one is, I suppose, vaguely appropriate to pantomime season, involving, as it does, a touch of cross-dressing. The leading man is not a sympathetic character, but it is hard not to have a sneaking admiration for his female co-stars.

The story emerges from a presentment, in a roll from 1306, at the end of the reign of Edward I. It can be seen at JUST 1.966 m.8 (AALT IMG 8919). The jury of Kineton hundred stated that Robert de Henynton or Hyninton had killed Robert son of Henry Roger of Compton Scorfen, in that settlement, in 1298. (See what I mean about him not being the most sympathetic character?). The murderous Robert then fled to the church of Compton Scorfen (this one? https://britishlistedbuildings.co.uk/101024126-church-of-st-mary-ilmington#.Xgj7zG52uUk ) and stayed there for eight days. He could have used this time to arrange to confess his crime and abjure the realm, but this was not the way things went. While he was in the church, two women took a leading role in helping him: his wife, Clarice, and his sister, Alice. They seem to have buttered up the men who were guarding the church, and arranged a cunning substitution of Alice for Robert, involving sneaking in women’s clothes for Robert to wear, to facilitate the whole sashaying away thing, while Alice stayed to face the music, dressed in Robert’s clothes.

The plan worked – at least for Robert. He seems to have got clean away, though he did forfeit his chattels, worth the large sum of £10 13s 10d, because of his flight from royal justice. Where he went is not clear, though apparently he was dead by 1306. Back in 1298, the sheriff had been ordered to arrest Clarice and Alice, once the deception was discovered. Alice at least was arrested and imprisoned at Westminster. It is not clear how long she remained there.

In 1306, Clarice was still alive, and keen to set the record straight. She came before the royal justices and presented a royal pardon, which had been granted to Robert in September 1298, for his good service in Scotland. This was no forgery – it is enrolled on the patent rolls (see CPR 1292-1301 p. 363). While this would have put an end to Robert’s problems with royal justice, however, it is interesting to note that a pardon did not amount to a blotting out of all guilt: the part played by Clarice and Alice was still held to be blameworthy, and there was an expectation that they would pay money to the king to make up for their transgressions. Since the jury said that they had no assets from which to make such a payment, however, this did not happen.

Alice did not come to this later hearing, and it remains a mystery what happened to her. Was she, like her brother, dead? The jury, which confirmed his death, said nothing to this effect with regard to her. I would like to imagine that she had used her undoubted pluck and resourcefulness and slipped away once more.

GS

29/12/2019.

Two sorts of labour: maternity and employment, medieval style

Officially not ‘work’: this is a contribution to solidarity with workers everywhere, and everywhen…

[This one seems an interesting case to note today, somehow, as my union, the UCU, is striking once more to try and do something about deteriorating working conditions, and the pitiful progress on gender and other equalities issues which appears to satisfy university management.]

The plea rolls of the fifteenth century Court of Common Pleas have a lot of ‘labour law’ cases, based on the post-Black Death labourers legislation. Although each concerns a dispute which mattered massively to the individuals involved, the records are mostly fairly repetitive: parties argue as to whether there had been an agreement to serve, or a leaving without permission, or a removal or enticing away of a servant by another employer. Occasionally, though, there is one which stands out and lets slip something which goes a small way to illustrating the world of employment relations. Such a case is that of Nicholas Welkys and Geoffrey Molde, cleric, of Royston, Hertfordshire, at CP 40/645 m.39, from Easter term 1422.

Nicholas alleged that Geoffrey had stolen away his servant, Alice Valentyne. Nicholas said that she had been employed by him, at Royston, on a one year contract, as a domestic servant (ancilla). Geoffrey’s action, on the feast of St Stephen, in the king’s eighth year,[i.e. 26th December 1420] had caused him to lose her services for ‘a long time’ (in fact 6 days) which had damaged him to the tune of ten pounds. There were the required allegations of force and arms and the whole thing being against the king’s peace, though whether or not there was likely to have been any sort of force depends on whether one believes the story of Nicholas or that of Geoffrey.

Geoffrey’s story was that he had done nothing wrong because he had actually retained Alice, from the feast of the Nativity of St John the Baptist in year 8 [i.e. 24th June, 1420?], for a year, as an ancilla. According to his version, on the feast of [the translation of ] St Edward, King and Confessor [13th October, 1420], Alice had left Geoffrey’s service without licence or just cause, had gone to work for Nicholas until [26th December], then, of her own free will, returned to Geoffrey, who had the better right to be her employer, and had, consequently done Nicholas no damage.

Nicholas agreed that Alice had been hired by Geoffrey earlier on, but claimed that, on the feast of St Edw Conf yr 8, because Alice was heavily pregnant, near to giving birth and unable to serve Geoffrey as envisaged, Geoffrey had given her permission to leave his service, and Nicholas had hired her from that day, for the following year. She had served him in Royston, so he said, until Geoffrey had abducted her with force and arms.

Geoffrey said he had not allowed Alice to leave his service. A jury was ordered to be summoned to decide whether there had, or had not been such permission, and so whether Geoffrey could be guilty of the abduction offence alleged.

I have not yet tracked down the outcome, but, as is often the case, the pleading itself discloses some interesting nuggets about medieval employment and attitudes to women, and pregnancy. Whatever the truth as to whether Geoffrey gave Alice permission to leave, it is very clear that being heavily pregnant was seen as a reason to end the employment relationship. We would not expect a medieval employer to have much of a maternity leave policy, perhaps, but it does raise questions about how working women coped with late pregnancy and birth. If Nicholas’s story is true (and it was presumably seen as at least plausible) the implication seems to be that Alice had to, and was able to, find a new place while at an advanced stage of pregnancy. That struck me as both sad (in terms of the apparent desperation on her part) and also interesting (in the sense that Nicholas seems to have been willing to take her on whilst pregnant and unable to do much, if any, work).

There are, of course, all sorts of other questions – such as who was the father, and what happened to the baby. Inevitably we will wonder whether Alice had been subjected to abuse, or whether she might have had some sort of approximately consensual relationship with Geoffrey. Might her surname, ‘Valentine’, even indicate some involvement in sex work/concubinage? No answers to those, but intriguing all the same.

25/11/2019

‘Stillbirth’ or fleeting life? Beyond curtesy

I recently published an article on tenancy by the curtesy in medieval England:

Gwen Seabourne (2019) ‘It is necessary that the issue be heard to cry or squall within the four [walls]’: Qualifying for Tenancy by the Curtesy of England in the Reign of Edward I, Journal of Legal History, 40:1, 44-68, DOI: 10.1080/01440365.2019.1576359

Curtesy is a topic which touches upon traumatic and tragic childbirth, and the difficulty in determining whether or not a baby was ever alive (in order to decide whether or not a man had produced ‘live issue’ with his wife, and thus qualified for curtesy. As is not uncommon, I have now come across something I’d love to have included in the article: linked chronicle accounts of a birth ending in the death of mother and baby, with some interesting inclusions and omissions of information.

The narratives are mentioned in L.E. Mitchell, ‘The most perfect knight’s countess: Isabella de Clare, her daughters and women’s exercise of power and influence 1190-c. 1250’, in H.J. Tanner (ed), Medieval Elite Women and the Exercise of Power 1100-1400 (2019) c.3, p. 61, citing Matthew Paris,  English  History  tr. J.A. Giles (3 vols HG Bohn, 1889) I:255.

The unfortunate mother was Isabelle countess of Cornwall (wife of Richard, earl of Cornwall, and daughter of William Marshall and Isabella de Clare). Her demise was noted to have occurred in 1240, along with that of her baby, named Nicholas. She was said to have been ill with jaundice, and to have been sufficiently forewarned of her impending death to make her confession. The birth itself was skated over, and there is an interesting disparity with regard to the state of her offspring: Mitchell notes that ‘the nurses hoped that the child would be born alive, but it was dead’, whereas the child was said, elsewhere to have been born alive, but not lively or not active (vivo, sed non vivido – H. Luard (ed.), M. Paris Chron. Maj. vol 4) and there is no particular mention of the nurses, who, in Giles’s version, named the child despite the fact that it was dead. I would like to check the MSS on this, since the state of the child is potentially crucial in terms of both common law (child born dead does not ‘count’ in the same way to give father property rights – though in this case, Richard had already ‘passed’ this test, with previous live births) and canon law/theology (a dead child can take no benefit from baptism, and the ‘nurses’, though they could perform emergency baptism, had no right to perform this sacrament on what modern parlance would term a stillborn child). Vincent’s account of Richard of Cornwall in the ODNB also says that the child was ‘stillborn’. Perhaps it seems a ‘picky’ point, and it did not seem to have any immediate practical consequences for Richard, or anyone else, whether the baby was ever alive. In relation to curtesy, and the roughly  contemporary accounts of curtesy, such as those in Bracton, however, the possibility that a dead baby may have been baptised is important, since it feeds into Bracton’s suggestion of the likelihood of fraud and mis-reporting by those present at a birth of the state of the baby.

Yet another farming/proprietary estoppel case …

Once again, farming and family squabbles are to the fore in a recent proprietary estoppel case: just out (dropped?) on BAILI – Guest v. Guest [2019] EWHC 869 (Ch) https://www.bailii.org/ew/cases/EWHC/Ch/2019/869.pdf

The case was heard in Bristol by HH Judge Russen. Spoiler – the claimant was found to have made out his case. Not massively surprising in terms of outcome, but it does reinforce some ideas I have about this fertile area for land law.

  1. I suspect that this comes from spending much of my time with my Legal History hat on, looking at much shorter old common law reports, but I am often a bit taken aback by the level of judicial comment about impressions of the character of parties and witnesses. No doubt it is important to the decision that the judge makes a choice as to which of two disagreeing parties is to be preferred, but how much further is it appropriate to go? Does it help future decisions? Do people appearing in court know the level of detail of such comments (and general dirty laundry airing – arguments, personal letters, accusations of laziness, forgery, being a poor farmer…) which will be included in these public reports. Aside from the excellent follow-up on Valerie Burns (Dawn Watkins (2013) Recovering the Lost Human Stories of Law: Finding Mrs Burns, Law and Humanities, 7:1, 68-90) I am not sure what work has been done in this area. I think it would be a nice project for somebody.
  2. Farmers. A great deal seems to emerge from these cases about the relationships between farmers, business, land law and family. This case includes some interesting assumptions about what should happen to farms over generations (preference for sons over daughter being in charge? Strong idea of a male head of the family? Perhaps some lingering idea of primogeniture, or at least it being the destiny of the eldest son to farm the land). There is some idea that the mysteries of proprietary estoppel are making their way around the farming world – with a reference to the claimant here knowing about Davies v. Davies, though his mis-spelling of ‘Proprietary Stopol’ (which the judge chooses to include) suggests word-of-mouth transmission of the concept. Another interesting project would be an investigation of knowledge of this doctrine, and the extent to which it may have affected conduct in family-run farms. The impression given by a number of these cases is that, while farmers have to juggle many schemes and regulations, and take advice on how to organise their business in order to take advantage of subsidies and tax breaks, they are not necessarily taking account of proprietary estoppel, particularly in its modern incarnation, post Thorner v. Major. This case suggests some awareness that it is important to have records of what is said (there are a number of secret recordings mentioned), so perhaps things are moving, but it also suggests that the defendants had a somewhat out of date reliance upon the idea that it would always be legitimate to change things by altering wills.

 

GS

18/4/2019

‘Lunacy’ in a Legal Record

A ‘supermoon’ is due tonight: https://www.timeanddate.com/moon/phases/

Reading about this has reminded me of the old idea of the moon’s baleful influence upon the mental state of susceptible individuals. Medieval criminal records referring to ‘lunacy’ as an explanation/excuse for violent or otherwise offensive activity are not hard to find, though usually they do little more than stating that the accused is deemed a ‘lunatic’, and it is easy to assume that this is simply a rather general label for those who are obviously disordered (perhaps specifically in a violent sense). Recently, however, I came across a case which went somewhat further into the matter, emphasising the lunar explanation of mental disorder. It is not one I have seen discussed elsewhere, so is, I think, worth a quick note.

The case is in a Suffolk Gaol Delivery Roll,  JUST 3/63/4 m.6, which can be seen on the AALT site at:

http://aalt.law.uh.edu/AALT7/JUST3/JUST3no63_4/IMG_0136.htm

 

Alice Brytyene of Lawshall appeared in a session in Suffolk in September 1309, before William de Ormesby and William Inge, royal justices. She had been arrested because, so it was said, she had: (i) feloniously burnt the home of Simon Brytyene, her husband, in Lawshall, meaning to burn Simon in the house; (ii) broken into the barn of Pymme Brytyene in Lawshall and taken away sheaves of wheat worth 13d; (iii) broken into the oven of Ralph del Peke and taken away seven loaves of bread worth 6d. Alice pleaded not guilty to these charges, and accepted jury trial. The jurors said on oath that she was not guilty of the burglary of the barn or of the oven, nor of taking away the wheat or bread. As for the burning of the house, they said that, for seven years and more, continuously,  Alice had been furia vexab[atur] in incremento lune so that lunatica[m] infirmitate[m]  patit[ur]m i.e. she had been tormented/bothered by madness with the waxing of the moon so that she had suffered from the disease of lunacy. And they said that on the seventh of July last past, Alice had been suffering from this condition [predicte infirmitate vexabatur] when she burnt down the house in question, in her insanity and not feloniously [furiose & non per feloniam] as had been charged against her. Alice was therefore acquitted of the burglaries, and (presumably in respect of the arson, though this is not stated) was to be returned to prison, (presumably in the expectation that she would be pardoned by the king).

 

It is already well-established that medieval common law and communities did not hold those with obvious and serious mental disorder responsible for their actions as a matter of felony, but it is interesting to see glimpses of the reasoning behind such determinations by lay-people, in the legal context. Here, we have the definite and dramatically or poetically satisfying link between the waxing moon and the growing disorder, and the (sophisticated and observant) comments about Alice having suffered over a long period with a fluctuating condition.  There is food for thought about the place of the ‘insane person’ within the community as well: this community, which was conscious of Alice’s long-term disorder, would appear to have allowed her a degree of freedom, until a recent time. (I am also musing about the effect of a widespread theory of lunar influence – to what extent would people have internalised that idea and to what extent might it have had an effect on their behaviour? One for transcultural psychiatrists/ historians of psychiatry, I think).

 

I have not turned up a pardon for Alice, but I am reasonably hopeful that she would indeed have been pardoned. This would not necessarily mean a ‘happy ending’, however, since closer confinement by family members might well have been her fate after this episode.

 

19/2/2019.

Trais a Thonypandy

Just come across this from this week’s Guardian: Simon Jenkins on the recent flap about whether Churchill was a hero or a rotter.

https://www.theguardian.com/commentisfree/2019/feb/14/winston-churchill-history-brexit-john-mcdonnell

Much of it is very predictable, but in making the (stating the bleeding) obvious point that heroes v. villains history is generally juvenile, the writer throws in some offensive nonsense of his own. First, we have the use of rape as a metaphorical idea – here, a particular presentation of the past amounts to the ‘rape’ of history. Is this: (a) tasteless; (b) stupid; (c) inappropriate; (d) a pathetic attempt to intensify his comments; (e) all of the above? In doing this, he puts himself right down there with that great bard, Sting, in his epic work De Doo Doo Doo (the one about being raped by words … enough said).

And then there’s the throwaway insult to an entire people, in discussing what he sees as the exaggeration of Churchill’s sins in relation to Tonypandy, ‘In Wales, any myth is history if the English are involved.’ Jenkins has, I believe, some Welsh heritage. There is, however, no trace of sympathy with his semi-compatriots in these cheap words of DARVO sneering. Very poor and very disappointing that the Guardian let this pass. But – note – I am not even vaguely tempted to try and suggest that being wrong, and insulting, is in any way like rape, just to try and make myself look – what – edgy? macho? a proper writer?

Apparently, he has been writing a history of Europe, but does not think we should ‘rewri[te] old feuds’ in Britain (Scots, Welsh and Irish are all implicated here – but I am sure we could bring in some moaning and aggrieved former colonies). This, of course means that we stick with existing versions of events, which are, needless to say, utterly value-neutral. So take that pretty much all historians of the last several decades, and kneel before the deep thinking of S. Jenkins.

Early modern attitudes: was ‘hermaphrodite’ defamatory?

I am preparing a lecture on the history of common law ‘tortious’ defamation, and have, once again, come across references to the case of Wetherhead v Armitage (1678) 2 Lev 233; 1 Freeman 277; 2 Show KB 18. According to the accounts in the English Reports, this was a case in the King’s Bench in Michaelmas 30 Charles II (= 1678 – we pass over the whole Commonwealth business without counting those years). It was an ‘action on the case’ (i.e. a ‘tort’ claim for compensation) in respect of words. There are some variations in reports and discussions of the case. All agree that the plaintiff was a dancing teacher to ‘young gentlewomen’, and she had, apparently been insulted by the defendant, but his words are given in slightly different forms. He may have said “she is no more a woman than I am; [or possibly ‘she is as much a man as I am’]’ and ‘she had a bastard on J. S. [or possibly ‘she got JS with child’’. There is agreement that he rounded off with ‘she is an hermaphrodite [or a hermaphrodite].” The plaintiff claimed that the words had caused her to lose some of her students, causing her £40 of loss.

There may have been mistakes in the way P’s case was pleaded – reports suggest that perhaps it should have been more exact about when P had been a dancing-mistress, and about which students left as the result of D’s words. What is intriguing to me, however, is what the case could tell us about contemporary attitudes to ‘hermaphrodites’ (which must be taken to be a rough, if problematic, equivalent to ‘intersex person’). There are statements to the effect that this does not count as necessarily defamatory in itself, and that the statement as a whole does not obviously damage a dancing-mistress in her profession ‘for young women are taught to dance more frequently by men than women‘. In one version (2 Show. 19), counsel for D, Mr. Levinz and Mr. Saunders moved … ‘that “hermaphrodite” is no word of turpitude or crime, but only an imbecility’. The last term may seem insulting today, but should be seen as akin to ‘weakness’ – so, somewhat milder, if still troubling.

A slightly different view of the matter was apparently taken by Wylde J, who seemed to doubt the idea of ‘hermaphroditism’, and insisted, presumably following Coke, Bracton and older sources, that one sex must predominate. He is also reported as seeing ‘the matter’ (but which part!) as ‘scandalous’ in and of itself. But the agreed ratio of the case seems to be that ‘hermaphrodite’ was not actionable without special damage (2 Lev. 233).

The case is referred to in later works as authority for the proposition that calling a school-mistress or dancing-mistress an hermaphrodite is not actionable without pleading by P of particular damage. The bit about being a man and having fathered an illegitimate child is sometimes left out, making a simpler story, and there seems a little doubt about what the case actually decided.

Assuming that the ‘not necessarily defamatory and actionable’ view is correct, it does seem interesting that, while P clearly regarded it as insulting to be so designated, being a ‘hermaphrodite’ is not clearly treated by the court as if it would obviously damage the reputation of somebody dependent on public acceptance for her livelihood. Would we expect people of the seventeenth century to blame the ‘hermaphrodite’ for being so? I can’t claim an expertise in 17th C attitudes in this area, but it is worth bearing in mind that the common law did treat allegations of certain physical conditions (syphillis, leprosy…) as being obviously defamatory. (I also like thinking through the logic of the ‘insult’: if P is ‘as much of a man’ as D, and P is an hermaphrodite … what does that say about D?)

Because of the murkiness around the decision and also just because I would very much like to know a bit more about the people involved, it would be excellent to find the KB record for this one, and see what more can be gleaned from it.