Research and Publications

Gwen Seabourne

A graduate in Law from Cambridge (B.A.) and Oxford (B.C.L.) and in History from Bristol (Ph.D.), and a former Law Commission research assistant,  I am currently employed by the School of Law, University of Bristol, as Professor of Legal History, teaching Legal History and Land Law, and researching in Legal History.

Research and Publications: see https://research-information.bris.ac.uk/en/persons/gwen-c-seabourne 

2021 projects

My book Women in the Medieval Common Law has just (6th April) appeared, This is the end of a long-running project, though I have no doubt I will continue to think about women. Despite having finished the book (and the presence of a not-properly-opened parcel of copies with a ‘street value’ of £Preposterous on the side of my desk), I can’t seem to stop myself noting down cases I might have referred to in it, involving insights into attitudes towards medieval women, and the conditions, material and intellectual, in which they lived their lives.

I have a chapter on the law relating to rape in medieval western Europe, in a collection which will also (I hope) be out very soon.

In terms of current work, these are on my agenda (and putting them here may make me actually deliver …):

  1. ‘”In the beginning…”: unknowns at the start of life’ – I presented a version of this at a symposium in April 2021, and it is due to be written up for a volume of papers on ways in which the law has coped with intractable uncertainty (eds A. Bell and J. McCunn). My piece will look at determinations of life and legitimacy. I am reading a lot about bastardy at the moment, and trying to get over a severe inhibition about saying the word (can only do it if I really slow down, which serves to emphasise it more than anything). I think I am just horrified at what it embodies: the numbers of people, over centuries, stuck with such outrageous and cruel condemnation.
  2. Pregnancy, the foetus and the newborn baby in late medieval common law sources Previous work of mine has touched on medieval legal ideas about pregnancy, the pregnant woman and the foetus or newborn, and this is something which is in need of further exploration. Pregnancy, the foetus and the newborn are mentioned in a wide variety of medieval common law contexts, from determinations of whether a convict is pregnant, so that her execution must be deferred, to questions regarding succession to land which depends on the live birth of a legitimate heir. An examination of legal treatment of pregnancy (in cases of succession to land or status and the punishment of convicted offenders), the foetus (in those contexts, and also in cases concerning the legal consequences of  damaging or killing it), and the newborn (in the context of determining whether a baby was born alive or stillborn) would allow me to draw conclusions on how the common law conceptualised pregnancy and the relationship between pregnant woman and foetus, and the extent to which contemporary ‘academic’ medical and theological ideas can be seen to have influenced the common law in these areas. One would expect a degree of influence by medical and theological theories on the  ideas of educated legal professionals, but also some differences, since in resolving legal disputes, it was typically necessary to deal in more definite answers than we might find in academic medical or theological works, and the picture in records of legal practice may be different again, since the common law accorded a significant role to laypeople at a relatively humble social level, whose ideas might not necessarily be identical. Another layer to consider in this area is that of language. Work I have done in this area has shown me that there is considerable variation in the terms used for the foetus or baby (in English, French and Latin legal formulae). A particularly thorny issue is that of the term ‘stillborn’. While virtually all other languages describe the baby dead at birth as ‘born dead’, English alone developed the ambiguous ‘stillborn’. This English term has connotations of silence, or lack of motion, or both, and, in its early use, does not necessarily indicate an absence of life. My study will need to engage with such linguistic conundrums. I have seen it suggested that it’s an early modern coining, but no – I note that it’s in the Wycliffe translation of the Bible. So it’s crying out for some exploration. This will involve a bit of amateur hour in Early Modern sources (not the origin, but language in this area is definitely being refined in the 17th C). A sad topic, obviously, but an important one. I had hoped to include it in the paper I’m writing on intractable uncertainties at the start of life (more on the legal/doctrinal side of Legal History) but word limits and archive closures have made that impossible – so I think it will be a project of its own.
  3. Mayhem Mayhem was the offence of causing significant bodily harm to one of the king’s subjects, without occasioning death. There has not been a sustained study of this offence which charts in detail its interesting evolutionary path, losing what seems to have been its initial focus on punishing those who deprived the king of a potential fighting man, and towards a means of compensating a considerably wider class of injured individuals who had sustained injury at the hands of another. Mayhem formed part of the common law’s response to bodily damage, alongside more studied areas of jurisprudence such as trespass, but has, arguably, been sidelined in Legal History in favour of concentration on trespass and trespass on the case. I think that mayhem needs to be reinstated in the narrative.I would like to look at the following questions:
    1. What was the function of the appeal of mayhem in the medieval period, and how did this change as a result of changes in the availability of alternative responses and remedies such as trespasss actions in the common law courts?
    2. What do the records of mayhem cases suggest about medieval medicine and ‘popular’ medical ideas?
    3. What do the records of compensation suggest about the value put upon different parts of the body, and the loss of different capacities?

    My preliminary studies of appeals of mayhem suggest a great predominance of cases involving injuries to hands and arms. I would like to examine a larger sample of records, to check whether the general picture accords with that preliminary finding, and then to consider what are the implications of the finding on types of injuries forming the subject matter of complaint. There is, presumably, some relationship between mayhem cases and those injuries considered both serious and non-deadly. It would be most instructive to compare the conclusions from a survey of appeals of mayhem with wider contemporary writing and modern scholarship on ideas of disability and damage to bodies.

    Update, October – well, it’s going slowly, but I have a working title: ‘Immortal wounds’ and non-fatal felony: the medieval appeal of mayhem. Not bad, eh? 

     

     

     

    4. Causation of death in homicide offences

    Looking at a range of legal records and wider historical sources, I would like to consider, in particular, what can be learned about ideas of causation from accounts of deaths occurring some time after an allegedly homicidal event.

    Preliminary investigations show that, perhaps not surprisingly, most accusations of homicide involve a relatively swift demise, but that there are accounts of a more lingering death, perhaps with attempts at medical treatment, in some cases and some which relate to deaths at some considerable time after the blameworthy conduct of the accused person. It is with these cases of less immediate death that I am concerned. They seem to be an unexploited source for information about medieval understanding and ‘lay’ theories on the link between an injury and death, and what action might appropriately be taken to avert death, or to care for the body and soul of a fatally injured person.

    Beginning with a survey of court records and law reports, I would like to broaden my investigation of this matter, and to relate the findings to scholarship on such matters as the deodand, or item deemed to have ‘moved to’ the death of an individual, and as such, forfeit to the crown, as well as to work on medieval and  early modern homicide.

5. Sexual offences 

I gave a short paper on signs in common law records of legal action against sexual misconduct other than rape, to the AVISA project in June. I have now agreed to write this up by December, for a journal, so it climbs the chart …

6. Defaming the Welsh

This will examine something not previously considered much: the fact that common law liability for defamation developed at almost exactly the same time that Wales was brought fully within the English administrative and legal system, in the earlier sixteenth century, which was, moreover, a period of profound importance for the survival of the Welsh language. My preliminary investigations into defamation material show numerous interesting issues of linguistic encounter and mutual misunderstanding, and consideration of these will be important for the history of tort and for Welsh history. This is rather stepping out of my area of expertise, such as it is, since it will involve an incursion into the sixteenth century, and possibly even later (note to self: look up ‘ruff’ in Cymraeg), but I feel as if it needs to be written by somebody. I am really keen to do this project, but it has become apparent to me that I can’t avoid doing a bit of additional work in non-common-law sources – church records and scary Star Chamber records in particular. Consequently it has slipped down the chart a bit.

So – a few things to be getting on with. Glad to say I have a period of research leave in 2021-2, and have a visiting fellowship at Magdalen College, Oxford, for the first part of it, for a good stretch of manuscript-stroking, so that should make this ‘to do’ list a bit less insanely optimistic.

GS

2021

 

And there’s more …

What every medievalist should know about law

Did this one for the Centre of Medieval Studies at Bristol, in April.

A paper for the SLS conference, Legal History section, Durham, September 2021.

Inspiration (?!) has struck…

Paternity, presumption and precedent: common lawyers and the construction of illegitimacy

Abstract

From the medieval period to the twentieth century, important legal consequences flowed from the designation of a person as legitimate or as a ‘bastard’. Land rights, wealth, reputation and chances in life could all be affected by the imposition of one label or the other. Around the idea of the ‘bastard’, the common law built a vast jurisprudential edifice.

This paper will argue that the treatment of ‘bastardy’ by common lawyers, has been over-simplified and under-explored. Following the ‘fatherly’ lead of Sir Edward Coke in particular, common lawyers fashioned from medieval and early modern case law a model of uniform and straightforward rules, cut off from complications of pleading, the role of the Church and the vastly different contexts (from status as serf or free person, through maintenance of ‘paupers’, to succession to land and titles) in which a decision on ‘bastardy’ might be made. The robust independence of the common law from the pernicious influence of ‘foreign’ ideas (e.g. about legitimation by subsequent marriage) was also part of this construction.[i]

Aside from the interest of the development of the law on ‘bastardy’ in and of itself, and as an important aspect of social history, an analysis of this area has broader implications for common law. Simplification and misinterpretation of older legal materials, in the process of using them as precedents in an adversarial process, is far from unique to ‘bastardy’ law, and continues to be a feature of the common law today. Furthermore, ‘the common law mind’ has, into relatively recent times, resorted to metaphors of reproduction, and the legitimacy of that reproduction, when engaged in making choices about the formulation and application of doctrine.[ii] For all its jarring attitudes and apparent marginality to modern life, the old law on bastardy grew up with and in the developing common law itself, and formed an important part of legal doctrine, and of the self-image of common lawyers. It is, it seems to me, one of the special tasks of Legal History not to allow legal scholarship and practice to pass over their more problematic offspring.

[i] See, e.g., Denis Le Marchant, Report of the Proceedings on the Claim to the Barony of Gardner (London: Henry Butterworth, 1828), xxx: ‘In England the sturdy independence of our ancestors soon checked the encroachments of the priesthood. Neither the civil nor the canon law ever formed part of the law of the land.’

[ii] See the ‘piling up’ of metaphors by Bagnall J in Cowcher v. Cowcher [1972] 1 All E.R. 943, 94: ‘[E]quity is [not] past childbearing: [but] its progeny must be legitimate – by precedent out of principle.’

 

 

 

Also waiting, not even half-baked, for their turn on the back-burner:

History of theft offences

Predictably mostly medieval – toying with the idea of proposing a book on this. We concentrate on offences against the person quite a lot. I’d like to look at something different – and important. If I do it, I want to have a serious look at an open access format. I am mortified at the cost of my recent book – it really does defeat the purpose of writing something if nobody is realistically going to want to buy it. Means that anyone who does buy it will expect it to be extraordinarily good – pressure or what?

Common law at the deathbed

There seem to me to be some interestingly discordant ideas buzzing about in the history of  common law, with regard to the relevance of the deathbed in various transactions. Deathbed marriages and deathbed property transfers are treated with suspicion (except where they are facilitated – donatio mortis causa) but dying accusations and confessions are treated with special respect (because when you are dying, you tell the truth – think a particularly creepy version of Andrew Lincoln in Love Actually, stalking K. Knightley with his placards).

Vampires and property law

I mean it. There is thinking to be done about a number of issues. It is a measure of my essential triviality that this is the one I actually want to write …

Last updated 7/7/2021