Monthly Archives: November 2020

Presuming expertise: opinions on prolonged gestation in the Barony of Gardner case

In the course of researching for a paper on how the law, over a long period of time, and in different jurisdictions, has handled scientific uncertainty with regard to the beginning of (legally valued/protected) life and paternity, I have become a little obsessed with an a little corner of family/succession law, that of ‘adulterine bastardy’. An ‘adulterine bastard’ was a child born to a married woman, but whose biological father was not (or was held not to be) the man married to the woman at the time of conception. Before the development of DNA testing, it was impossible to be sure on this matter, and before the development of blood testing – which could at least rule out some men as fathers – in the early 20th century, matters were even less certain. Central to the legal strategy found in several different legal systems,  for dealing with such uncertainty, was some form of presumption that a child born to a married woman was the legitimate offspring of her husband, unless that was impossible. Impossibility became watered down over time in various ways, but I will not explore that here. What I will discuss is one aspect of this little niche area, and its potential impact and interest for wider areas of study. This aspect is the question of the upper limit for human gestation, and the exploration of this question in the Barony of Gardner case of 1824-5. An account of this case is easily accessible online, thanks to archive.org  https://archive.org/details/reportproceedin00ofgoog/mode/2up and it seems to me a really interesting resource for teaching both Legal History and also areas such as gender and history, and the history of medicine.

The case concerned the right to a peerage – guess what, the Barony of Gardner. Can’t say I’ve ever heard of it – not one of the big ones, but there are those who value such baubles above and beyond the money and land, and that was all the more so a century ago.

The source, Denis Le Marchant, Report of the Proceedings of the House of Lorde on the Claims to the Barony of Gardner (London, 1828),  was written by a barrister – and it should be noted that he was not exactly a disinterested fan of obscure legal points, but counsel for one side in the case (the side of the petitioner, i.e. Alan Legge Gardner, apparently legitimate son of H and W2, in opposition to Henry Fenton Jadis/Gardner, who claimed to be the legitimate son of H and W1, but was, problematically, born after a long absence by H, which would mean that, for him to be legitimate, the pregnancy would have to have lasted 311 days). The case was heard in 1825 before a committee of the House of Lords.

There is quite a story – of foreign travel, adultery and apparently brazen lying. What I want to focus on, in particular, however, is the lengthy (though not complete) account of the examination of witnesses on the question of the possible length of gestation (and whether a gestation of 311 days was possible). This begins on p. 13.

There was a long list of medical men, variously described as physicians, surgeons, accoucheurs, and pairs of these titles. Some sported ‘M.D.’ labels, most did not. These are their names:

Charles Mansfield Clarke, accoucheur

Ralph Blegborough, M.D.

Robert Rainy Pennington, Esquire, accoucheur

Robert Gooch, M.D., accoucheur

David Davis, M.D.

Dr. Augustus Bozzi Granville, physician

Dr J. Conquest, physician

John Sabine, Esq. surgeon and accoucheur

Dr. Samuel Merriman physician and accoucheur

Dr. Henry Davis, physician

Dr. Richard Byam Denison,physician

Dr Edward James Hopkins accoucheur

Henry Singer Chinnocks, Esquire, surgeon and accoucheur

Dr. James Blundell, physician

Dr. John Power, physician accoucheur

After the ‘medical men’ had had their say, some women were allowed to speak, both in a ‘professional’ capacity, and also to give evidence as to their own experiences as to length of pregnancy. Mary Tungate. midwife was followed by the following women who had either experienced, or were experiencing, long pregnancies: Mary Wills, Mary Summers, Mrs. Mary Gandell, Isabella Leighton, Mary Parker, Mrs Sarah Mitchell. It is interesting to imagine the presence of these women, and especially pregnant Mary Parker, in the masculine environment of a House of Lords committee. I was interested to see that discussion relating to the midwife Mary Tungate seemed to assume that she was to be assimilated to a ‘medical man’ for the purposes of an exception to the rule against hearsay evidence: 170-1. The women were all deployed by the side wishing to show that it was not impossible that the child born after 311 days of absence was legitimate. It was admitted – 247 – that ‘they were not persons of high rank or distinction, — no one can think that such persons would expose themselves to a cross examination on the details of their pregnancy’. This does not seem very polite treatment for women who had submitted themselves to this ordeal.

 

The ‘medical men’ (and Tungate) were routinely asked the length of time they had spent in practice, the extent of their experience, their views of normal gestation periods, and the possibility of longer periods. Most answered around the 39-40 week mark here. Some cited instances of longer periods and thought the 311 day pregnancy a possibility, while others were quite sure that it was not. There were some interesting outlier views – including a late survival of the idea of differences relating to the sex of the foetus, with boys staying longer in the womb than girls – 152. Questions also demonstrated something of a lay obsession with the formation of nails as an indicator of gestational age – e.g. 15, 37.

There were some interesting exchanges on matters of authority (which was more important – the learning of well-known medical writers, or the experience of doctors themselves?) and of evidence – could the medical men use their notes (answer – this seems to have been allowed, if they were in their own writing and contemporaneous, as an aide-memoire: see, e.g., 60, 66, 119, 136. The meticulous note-taker, Dr Granville, in the end had some of his patients brought in, so as to circumvent objections that this was not the best, or legitimate, evidence – 87]

There were also some slight episodes of sparring about confidentiality – it is interesting to see ideas of patient confidentiality at this early stage – see, e.g., 66, 133. This concern about confidentiality apparently did not apply to the wives of the medical men themselves – two of these women were given as examples of women who had had long pregnancies – 67, 111 – (and appear to have kept period diaries – I remember being told this was a good idea, in the excruciating one-off assembly on this topic given at my school – obviously the reason was to be ready for possible evidence before a House of Lords committee…).

[Should you be interested in the result, Alan Legge Gardner won, and became Third Baron Gardner. Honour and bloodlines prevailed. Or something. That seems of considerably lesser interest than the enquiry itself, which seems to have been on a fairly large scale, and to have shown some interesting differences of professional opinion in this still-early period of formalisation of medical training and expertise. I am still working on how it fits into a longer story of uncertainty in this aspect of ‘the secrets of women’, which remained officially mysterious, and open to some very odd theories and evidence, into the twentieth century].

 

GS

30/11/2020

From Wikipedia.

Loss of entitlement

Continuing to research the weird and wonderful world of ‘adulterine bastardy’, including some interesting claims for very long pregnancies, and some questionable treatment of women, as witnesses and as possible ‘adulteresses’, I have been reminded of the recent run-out of this area of law, in relation to the holding of peerages. The Pringle case,  In the matter of the Baronetcy of Pringle of Stichill [2016] UKPC 16 https://www.bailii.org/uk/cases/UKPC/2016/16.html featured the displacing of a line which had, since the early 20th century, been in possession of the title. Then DNA testing revealed that there was no chance that the person presumed to be entitled in the current generation was actually a lineal descendant of the first grantee (which is the requirement in this sort of case). The case gave rise to some interesting and humane comment – I particularly valued G. Black, ‘Identifying the legal parent/child relationship and the biological prerogative: who then is my parent?’ Jur. Rev. 2018, 1, 22-41, and B. Häcker, ‘Honour runs in the blood’, L.Q.R. 2017, 133(Jan), 36-41, which explored comparative rules on challenging paternity, and considered the problems associated with upsetting family units in situations well beyond that of peerages. My own thought, though, was that, while, in general,  it is absolutely right to be cautious about wholly prioritising genetic over social relationships, especially if the latter are long-lasting, in the context of hereditary titles, a strong focus on DNA could serve a very useful purpose. I have no time for the whole business of hereditary entitlement to ‘specialness’, from the monarchy downwards – it is embarrassing, babyish nonsense – but even those who shut their critical faculties down with ideas about the magical powers of particular families would have to think again if they were confronted with the likely fact that they were no more immune from infusions of unexpected genetic material than anyone else’s family. A respectable Legal Historian cannot of course suggest that it would be worth a thought for anyone invited to a royal garden party or the House of Lords bar, who has the opportunity to collect a DNA sample.

29/11.2020.

Detriment, conscience and the fine art of judicial shade

As the Land Law year rolls into co-ownership/constructive trust season, I was interested/irritated* (*delete as applicable) to see the appearance of another in the seemingly unending  parade of common intention constructive trusts cases: O’Neill v Holland [2020] EWCA Civ 1583. https://www.bailii.org/ew/cases/EWCA/Civ/2020/1583.pdf

Sometimes these things make me wish that (ALERT: mostly gratuitous Legal History reference coming up, to justify inclusion in ostensibly LH-centric blog) the Statute of Uses had done a better job of stamping out the whole law-equity separation business, but never mind – they must be read and inwardly digested.

This was a Court of Appeal case, centred on (parts of) a case which had been dealt with by a District Judge, District Judge Obodai, and then, in a County Court, by HHJ Pelling. The ‘live’ part of the dispute centred around a house in Farnworth, Bolton (53 Worsley Road for those keen Land Law fans who want to enter it on their Constructive Trusts Cases Maps … well, there might be such people). Ms O’Neill wanted reaffirmation of an earlier holding that this property, held in the sole name of Mr Holland, was in fact held on trust for both of them, and that she had a 50% equitable interest. She got it.

The main point of Land Law interest was, I suppose, discussion of whether it would matter if there was not specific pleading of detrimental reliance, or a specific finding of it, in the circumstances that, as far as the CA was concerned, there was in fact evidence of detrimental reliance. Answer – no. Also, there was a bit of an attempt to expand the importance of ‘unconscionability’ as something which could make up for lack of (pleading of? or actual?) detrimental reliance. This did not work. Nevertheless, the CA seemed happy that there had been evidence of DR – with particular reference to not sorting out legal/equitable positions earlier on, as a result of a misrepresentation that Ms O’Neill would not have been able to obtain a mortgage. (A minor legal point – I confess I had to look up what an ‘equity of exoneration’ was – mentioned early on, at 12).

Apart from that, I found myself going back to a bit of an obsession – how judges in judge-only trials present their views of those who have given evidence before them. Clearly they are going to have to evaluate credibility, and prefer one version to the other, but there is quite a variation in how critical, or condemnatory they are prepared to be. I have mentioned this in previous posts. Here, the DJ went for it in a fairly strong way. As Henderson LJ put it, at para. 9, ‘It is fair to say that the District Judge was distinctly unimpressed by the evidence of these witnesses, and in particular by the evidence of Mr Holland whom she described on more than one occasion as “a stranger to the truth”.’ Also, at 49, Henderson LJ noted that Mr Holland had been held by the DJ to have given evidence which “beggared belief”. This view of the party’s honesty was thus stated, and repeated in the easily-available public judgment (and by those commenting on it …). Not for the first time, I do find myself wondering about what that must feel like – if the parties know.

On a related matter, when judges’ cases are appealed, there is an issue of the level of ‘shade’ to be ‘thrown’ on them (see how down with the kids I am!). Here, Henderson LJ, at 7.,  is a touch sniffy about the fact that the DJ’s judgment ‘[ran] to 50 pages and 184 paragraphs’ and suggested at 18 that she had ‘fallen into error’ by not using existing case law properly. At 46., he gives us ‘The relevant findings of the District Judge are contained in paragraphs 154 to 161 of her judgment. With respect to her, they could sometimes have been more clearly expressed and are not always entirely easy to follow.’ Relatively mild, I suppose. In relation to the decision in County Court, he says, at 60, ‘In my respectful opinion, Judge Pelling adopted too narrow a view of the District Judge’s findings of fact, and he was also wrong to take the view that detrimental reliance had not been pleaded sufficiently or at all by Ms O’Neill’ . Possibly slightly more ‘respectful’? I am not sure. It would certainly be interesting to consider the range of different ways of dealing with/ disagreeing with lower level decisions which are used by appeal courts, by whom, and in relation to whom. A project for somebody?

Finally, this touched on another of my obsessions – questioning gendered writing in legal documents. As another page on the blog makes clear, I am not in favour of the rather frequent use of ‘emasculation’ in legal discourse, to indicate weakening/ worsening. I wonder whether similar concerns apply to the description of things, including judgments, as ‘seminal’ (here, at 27, we have the ‘seminal speech’ of Lord Diplock in Gissing v Gissing [1971] AC 886.’ Does it need the sperm-related subtext? (Could a speech ever be ‘ovular’, and if not, why not?). Or can this usage be excused on the ground that the word is wider than human sperm, and takes in all sorts of ‘seeding’? A point to ponder.

GS

29/11/2020

 

 

Not entirely ‘perswasive’?

In between teaching and admin., at the moment, I am working on something touching on decisions relating to the presence of life and legitimacy. Today, I am pursuing bits and pieces on the legitimacy/’bastardy’ side of it, and looking at the splendidly titled Lex Spuriorum by a very early 18th C lawyer.[i] Usually, in this enquiry, I have found my mind occupied by the disturbingly condemnatory attitudes and language, and the writing-off of so many children, people, as ‘bastards’, and somehow not as good as others, despite self-evident lack of personal guilt in the ‘sinful’ nature of their conception. Today, however, I have been ‘going off on one’ in a different direction, after looking at the preface of this book.

 

In this preface, Brydall felt it necessary to justify himself – why was he writing the book? What ‘perswaded’ him (love that spelling!) to publish it? His specific answer to that is interesting (and a little hard not to laugh at): his alleged motives include writing ‘To let the People of this prefent Age fee, what great Difadvantages Children born out of Holy Matrimony do lie under, which might … very much deter Men and Women from ever purfuing unlawful and exorbitant Embraces, of which this Nation, as well as foreign Countries, have been deeply guilty.’ Unlawful and exorbitant Embraces should, obviously, be discouraged, but the idea that people intent on a bit of exorbitant Embracing would stop, read a treatise, find it ‘perswasive’ and think better of their plans, seems … just a little far-fetched.

Postscript – It is a measure of my current preoccupation with all things REF that my mind immediately went to ‘ooh – that’s a bold claim for the potential “impact” of a piece of writing’.

 

GS 22/11/2020

 

[i] John Brydall of Lincoln’s Inn, esq., Lex Spuriorum or the Law Relating to Bastardy (London, 1703).