Monthly Archives: February 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.

 

 

Lucky escape of a Nottinghamshire hot-head

All sorts of interesting questions arise in the case of a Nottinghamshire man who ‘got off’ (eventually) after being presented for his involvement in the death of his mother, not least what actually happened in the confusion which led to her death.

The record is at JUST 1/676 m.2 (image via AALT at: http://aalt.law.uh.edu/AALT4/JUST1/JUST1no676/IMG_4752.htm ) This is a roll from a judicial session in Nottinghamshire in 1305-6.

The person who came under some suspicion, William under the Appelton of Harworth, was an angry young man. We are told about the ‘angry’ part, and his actions bear out the description of him as ‘iratus’ that night at least. We do not know his age, but he was young enough to have a mother still living, and, until the events of the night in question, still active enough to run. On the other hand, he was old enough to have a wife. ‘Angry young man’ seems about right.

Those from his area, Bassettlaw,  given the job of reporting offences and unnatural deaths to the session said that Agnes mother of William under the Appelton of Harworth, on a date in 1304, ran onto a sword which was held by her son William and killed herself. This way of presenting the facts ascribed causation of the death to Agnes herself: she moved, took the active part, while William did nothing but hold a sword. He could not possibly be held responsible, to any extent, for his mother’s death. Even without more, one might ask whether holding a sword in such a way that somebody might collide with its point might possibly be worthy of some criticism, but in fact there is more. The jurors told a story which suggests that the death was entirely avoidable, and was mostly or entirely the result of William’s aggressive and reckless behaviour. That they chose not to interpret it in this way tells an interesting story of its own.

According to the trial jurors, on the day in question, as evening fell, William was angry (iratus) with Richard, one of his servants, and wanted to hit him with his drawn sword. Was this to be beating with the flat of the sword – unconventional, but masters did have the right to chastise their servants, up to a point – or was the intention more murderous? This is not explained, and, in any case, Richard was saved from William’s attack when Avelina, his wife, restrained William physically, helped by Thomas, William’s brother, and Isolda, his sister, who came in because of Avelina’s shouting.

Next, the scene was plunged into darkness, because a candle lighting William’s home went out. Agnes enters at this point. She had been getting ready for bed in her dower house, located nearby,  in William’s court, when she heard the noise, and came over to William’s place in the dark, to investigate and calm things down.  She did not see that William was (still) holding a drawn sword in his hand, and ‘suddenly’, ‘by accident’  she ran onto it, and was injured by her own movement, and died some hours later.

Concluding their account of the episode, the jurors reinforced the point that this fatal injury happened by accident, and also chose to say that the stupidity (stulticiam) of Agnes had contributed. This seems rather unjust as a judgment on Agnes’s conduct. It was, as the story shows, hardly stupid to come and try to defuse a situation caused by her aggressive son, which was clearly causing alarm to a number of people in the household. The point of defaming Agnes in this way might show some contempt for women, but the main reason to do it was to make sure that the death was not ascribed to felony or malice on William’s part. William, still alive, could soon not be, if he was found to have killed his mother feloniously, whereas Agnes was now beyond hurting, except in the most metaphorical sense.

The jurors had done their best to exculpate William, but he still had something of a wait in gaol, until a royal pardon was obtained. The pardon was forthcoming, however, and it appears in Calendar of Patent Rolls 1302-7, 421. So William was free to rage another day, now also presumably enjoying the part of his inheritance formerly assigned to his mother as dower.

Points of interest

There are, as ever, many of these. In social history terms, it might get us thinking about relations between masters and servants, husbands and wives, mothers and sons. In legal terms, it is an interesting illustration of the interaction of ideas about causation and culpability and the stretching of causation ideas to bolster a case for non-culpability. Mostly, though, I am left wondering just how reckless men were allowed to be with deadly weapons before it would be regarded as their fault that somebody was killed. The efforts of the jurors to distort the likely facts (e.g. the business with Agnes running so fast, in the darkness, onto a motionless sword, that she gave herself a fatal wound, with seems much less likely than a confused struggle involving William not remaining entirely still) appears to suggest that they knew they were pretty near to the limit in this case.

3/2/2019.