Monthly Archives: January 2018

Truth and (a sort of) reconciliation? Scenes from a medieval Suffolk marriage

A plea roll record of a land case from the end of the reign of Edward I gives an interesting view of medieval marriage (or one particular medieval marriage at least), gender and families of different types.

JUST 1/1323 m 77d sets out an assize case heard by Retford and Spigurnel, justices of assize in various southern counties of England, in summer 1303 (with updates until 1304). It concerned land in Suffolk, in Somersham and Nettlestead, and the question was whether Ralph Norreys and his associates had been within their rights to eject John Dunning from the land, or whether John had the better right to hold the land, so that their actions had been an unjust ‘disseisin’ (more or less ‘dispossession’).

Both men’s cases involved telling the story of dealings with the land in recent times, so as to establish their family connection and right to it. Part of this story was the tale of the marriage of Alan de Bosco and Agnes Norreys. Putting together the story they told and the facts found by the jurors, this is what happened … (and yes, usual warnings about not believing everything which appears in the record applies, but there is no obvious reason to doubt this) …

Alan was married to Agnes when he (at least) was below the age of majority (this was 14 for boys, and the jurors say, very precisely, that he was 13 years and 7 weeks old at the time). They lived together for a short period – quarter of a year – and then Alan suddenly left, going off to Cambridge for three years. While he was away, Agnes took service with Robert, parson of the church of ‘Flokton’ (Flixton?). Robert and Agnes had a child, William. Then Alan came back from Cambridge. As soon as she found that he was back in Suffolk, Agnes went to Alan’s house, with the infant William, but Alan would not let her in, and swore that William was not his son, since, so he said, he had never had sex with Agnes. Agnes then sent William back to Robert, who acknowledged him as his son. Afterwards, Agnes went straight back to Alan, who took her back in as his wife kindly (benigne) and in due course, they had a child, called Geoffrey.

The key issue for the land case was whether or not William was Alan’s son. To cut a long story short, Ralph traced his right through William while John traced his through Geoffrey. If William was not Alan’s son, Ralph would have no chance of success. Although that might seem an easy legal issue, if this story is the truth, or something like it, there were complications. The rules about legitimacy, and who was to be regarded as a man’s legitimate son, were not entirely biological. In a world which had no blood or DNA testing, a lot of reliance had to be placed on probability, reputation and presumption. The starting point was that, if a child was born during the course of a marriage, then that child was the legitimate child of the spouses (with associated property rights after the death of the parents). As the common lawyers charmlessly, and repeatedly, put it ‘Whoever bulls the cow, the calf is yours’ – meaning that, even if a wife had been impregnated by somebody else, the child would be presumed to be the husband’s legitimate issue. The presumption could be rebutted, however, if it was completely impossible for the husband to be the father – e.g. if he had been imprisoned abroad for years and came back to find a child. Thus careful questions were put to the jurors to ascertain whether Alan had come back from Cambridge during the three years, or whether Agnes might have gone to meet him somewhere. Apparently not. They were also asked about local opinion – who was reputed to be William’s father (answer: Robert and not Alan). Things would seem to have been going John’s way, on the whole, though clearly this was not as watertight an ‘impossibility’ case as the ‘husband abroad in prison’ scenario. But here the legal procedure ground to a halt, and all there is is a series of additional ‘court dates’ and an instruction to the judges to get on with it. It may be that there was some uncertainty as to whether John had managed to rebut the presumption of legitimacy. Leading common lawyers had been prepared to accept some fairly fanciful suggestions as to how an apparently distant husband might have managed to father a legitimate child, in a case from an earlier term in the same year (Seipp 1304.027rs; https://www.bu.edu/phpbin/lawyearbooks/display.php?id=1531 ) opining that he might have come to the county in which the wife lived, by night, without anyone knowing, so that John might not have been regarded as ‘home and dry’. I hope to track down more on this litigation, but it may take some time.

As interesting as the legal point, if not more so, is the ‘social’ material here. The early marriage is not particularly surprising, perhaps, nor the young husband’s departure (did he go to Cambridge University? I am put in mind of the folk song ‘The Trees They Do Grow High’ …) but what happened afterwards is less predictable. We cannot know anything about the willingness or otherwise of Agnes in relation to the sexual relationship with Robert the parson, but we can say (i) that it seems to have been well-known in the area; and (ii) that Robert was willing to acknowledge William as his son, and take him in. William would go on to have descendants of his own. The reconciliation of Agnes and Alan is fascinating: she was prepared to give up her child and he was prepared to take her back if she did so, despite the fact that all the neighbours knew him to be a ‘cuckold’. No pressure from the Church seems to have been involved. It seems to me that this story has interesting things to say about medieval men, women and communities, and the importance of engaging with initially off-putting and ‘dry’ sources like land law cases, if we want to learn all we can about medieval families and attitudes.

GS

28/1/2018

The other disadvantage of excommunication…

A Cambridgeshire case from the early part of the reign of Edward III shows the other disadvantage of excommunication (apart from the whole ‘no communion, going to Hell…’ side of things, that is) and also contributes to the rich and fascinating picture of women’s participation in medieval ‘criminal justice’.

The case was an appeal of robbery, brought by a woman, in which an objection was raised by the accused man, contending that he should not have to face such an accusation brought by a woman he claimed to be in a state of excommunication. It qualified for Year Book reports – it is both YB Pasch. 3 Edw III pl 33 f. 19a;  Seipp 1329.072  and also 3 Edw. III Lib. Ass. 12 f. 5b; Seipp 1329.171ass; http://www.bu.edu/phpbin/lawyearbooks/display.php?id=6228 https://www.bu.edu/phpbin/lawyearbooks/display.php?id=6327,

and I have found the plea roll entry in the King’s Bench roll for Easter term 1329: KB 27/276 Rex m.9; see also m.9d.

As is often the case, the reports are light on, or inconsistent as to, details. Putting it all together allows us to get a little nearer to what was going on.

The plea roll entry clears up the reports’ disagreements on the parties: it should be Margaret le Hornere v. Master Richard Badowe, Stephen Bedel and Thomas Bedel. It tells us that this is an appeal of robbery and breach of the king’s peace. It seems to be from Cambridgeshire rather than Kent, as the reports suggest (‘Cant.’ for Cambridgeshire could easily be misread as indicating ‘Canterbury’). Margaret had brought a trespass case against Richard, alleging that he had locked her up and taken some goods from her, and she had been faced with the argument that she could not do this, as she was an excommunicate, an official ecclesiastical letter to this effect (from John [Hotham] Bishop of Ely) appears to have been produced, and that put a stop to the action (at least until Margaret’s status should be improved.  Not to be put off, Margaret also tried the ‘criminal’ procedure available for ‘theft’ facts – the appeal of robbery – as noted. The KB record of this action gives a more detailed account of the robbery – which she said took place on a stretch of water between Barnwell and Cambridge – and a longer list of the items allegedly taken (much of it fancy  clothing). But the defence and the outcome were similar to the trespass case: Margaret could not pursue the case in her current state of lack of grace, and so the appeal could not proceed.

The case is interesting in a number of respects. In terms of jurisdiction and spiritual-temporal procedural matters, it is worth noting as an example of the effects of excommunication on ability to litigate in the secular courts. If one were able to have potential accusers excommunicated, that might be a very good way to hold them up, or even discourage them from pursuing their suit. In terms of the law on appeals, it looks as if there was some doubt about what should be done with the defendant in a case like this, once it was established that the woman bringing the appeal was excommunicate. The record shows a slightly makeshift looking series of securities being used, while Margaret was allowed time to show she had been absolved.

Things trundled on, with requests for Margaret to produce evidence of absolution, security for Richard’s appearance and several court dates, but in the end, Margaret seems to have given up, and never did manage to show that she had been readmitted as a communicant. Richard prevailed in the end. Nevertheless, Margaret did show an interesting flexibility in what action to bring, as well as clearly being rather keener to bring Richard to justice than to make sure that her soul was safe.

GS

25/1/218 (Dydd Santes Dwynwen!)

 

Legal History Novels

Not being particularly up with recent fiction, I have just got around to reading F. von Schirach, The Collini Case (2011). Wow – how often does a novel turn on legal history, legislation and limitation and (geek heaven) have an appendix setting out relevant provisions. Marvellous. Oh and a good story too…