Author Archives: vifgage

About vifgage

Professor Gwen Seabourne teaches and researches Legal History, with a particular focus on the medieval period. She is the author of two books and several articles, mainly on this period of Legal History. Current interests include women in legal history and legal humour. This site does not purport to reflect the views of her employer, nor to constitute legal advice.

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Arrest, authority and a poisoning allegation: excusing trespass in fourteenth-century Leicestershire

Here is what looks like a YB-Plea Roll match. It took some finding, in a long roll with lots of very dull, terse, entries in writing which is on the turn towards (shudder) early modern style (a little enlivened, it is true, by some great footnote doodles). The case is Richard Wynslowe v. John Cleypole (1489),[i] a Common Pleas trespass case which starts off in fairly banal fashion, but gets quite intriguing, quite soon.

We are in Leicestershire, and John Cleypole, of Halloughton, gentleman, is answering a case of trespass. It was alleged that, on 4th March 1488 he had broken into the house of Richard Wynslowe, clerk, of Halloughton, and assaulted and threatened his servants, Robert Tyrlyngton and Isabelle his wife; whose services Richard lost for a month, which, so he claimed, caused him loss of 10 marks). Thus far, this is fairly common-or-garden stuff. The interesting bit comes with the defence argument.

John denied most of the allegations, except for the part about entering Richard’s property. As far as this was concerned, however, he argued that Richard should not succeed in bringing this action, because his entry had been to arrest a felony suspect. He explained that Isabelle was suspected of poisoning one Thomas Shepherd at Houghton. According to John, ‘long before’ the day of the alleged trespass, Thomas had been poisoned (intoxicatus), and Thomas, languishing on his deathbed at Halloughton, had contacted John and had told him, openly, that Isabelle had given him a poisoned draught (potum venenosum), of which he died, before the alleged trespass, at Uppingham in Rutland. John said that, after that, suspecting Isabelle of causing the death, he had gone to Richard’s property, had entered to arrest Isabelle, and had then taken her to the king’s gaol of Leicester. The thrust of his argument was that this was not the trespass alleged by Richard, and Richard should not succeed.

There are small variations in the Year Book. For example, the report simplifies the facts, making the allegation that it was the plaintiff (Richard) who was suspected of the poisoning, rather than a servant of his. Both Robert and Isabelle disappear from view. In addition, there is some difference in the way the two sources deal with the way the poisoning allegation was supposed to have reached John. The YB describes this as coming via ‘common voice and fame’. There seems to have been some dispute as to whether this was sufficient (perhaps leading to the version we see in the plea roll, with the idea of a specific report by Thomas to John).

The YB deals in more detail than does the PR with the question of authority. In the YB there is discussion of the fact that John was acting on the orders of the sheriff, which does not appear in the PR. The YB shows discussion of whether John should be allowed to interpose the sheriff and his command here, and apparently it was resolved that he needed to remove the sheriff from the equation, basing his conduct on his own suspicion of Isabelle’s felony. There is also discussion of the way in which the poisoning allegation itself should be handled: was it acceptable to use it as a basis for John’s conduct, without allowing an opportunity for it to be denied? Here, discussion in the YB suffers from its simplification: having treated the plaintiff and the alleged poisoner as identical, this distorts what appears to have been the true situation – a justification of conduct complained of by X, on the ground of a serious allegation against Y. Basing themselves on their simplified model of the case, so the YB tells us, ‘All the Court’ thought that John ought to have put the poisoning allegation in such a way that Richard could have traversed it: he had to be given the opportunity to say it simply did not happen. It is not clear, though, that they agreed on what this meant: did it need to be amenable to a traverse under normal pleading rules  within this case, or was it enough that there was a theoretical possibility of bringing a separate writ de odio et atia, as one judge was reported to have said?

The PR entry ends with Richard’s final gambit. Careful not to admit that Thomas had been poisoned as John alleged, he made the argument that Thomas did not notify John that Isabelle gave him the potum venenosum, as John had said, and that John had trespassed in the way he, Richard, had stated. This was the issue which went to the jury.

 

So what?

In terms of Legal History, and the development of law, I think there are a couple of Interesting points. I have noted above some of the differences between YB and PR. Looking at them together gives snapshots of the process of formulating issues, and the way in which medieval lawyers worked by simplifying complex facts – sometimes, we might think, over-simplifying them.

It is worth thinking about what all of this reveals about attitudes to ‘policing’ and (massive anachronism alert …) ‘civil liberties’. In relation to the arrest power which features in John’s defence, the thinking does not seem to be that a person could not arrest another on the (to us, nebulous) ‘fame of the country’, even though, in the end, John conveniently seems to find that there was actually a direct communication to him from the languishing poison victim, but that, for ‘common fame’  to be an acceptable basis for arrest, defeating a claim of trespass, the person doing the arresting had to take responsibility, as an ordinary citizen, rather than shielding behind the authority of the sheriff. We see, I think, co-existing ideas of community and official responsibility, and perhaps some tension between them. Richard certainly decided to proceed with caution, in framing a narrow issue based on John’s claim of actual notification by the deceased.

There are, of course, questions about the real story, and how it ended. It may be possible to find out whether Isabelle was convicted of the poisoning, and it may be possible to find an ending for this trespass case. I will certainly be looking. Other things may well remain murky – in particular, why was Richard so keen to protect an alleged poisoner, what was the role and relevance of Robert, and was there some other ‘beef’ (poisoned or otherwise) between Richard and John lying behind this?

GS

 

6/3/2021

 

 

[i] CP 40/910 m. 340 (IMG 665) http://aalt.law.uh.edu/AALT3/H7/CP40no910/aCP40no910fronts/IMG_0665.htm; Seipp 1489.041; BU Law | Our Faculty | Scholarship | Legal History: The Year Books : Report #1489.041

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Slow Burn to No Burn: sex, death and survival in fourteenth century Somerset

How nice it is to be able to get at the treasure trove of scanned plea rolls on the AALT website (AALT Home Page (uh.edu) ) once again, after the storm/power disruption of recent weeks. Back I go to my searches of KB 27 plea rolls. I am looking for information on my projects for this year and next year, but, from time to time, other things pop up, and seem worth a brief word.

Today’s plea roll fun comes to us courtesy of the King’s Bench roll for 1359H.[i] (So we are post-appearance of Black Death, pre-royal decline and war with France going poire-shaped). It is a record of a presentment by jurors from different hundreds in Somerset, and deals with quite a long-running case.

The jurors, in summer 1358, before royal justices at Yeovil, presented that Philip de Clyfton had been involved with (adulteravit cum… carnaliter cognovit) a married woman: Joanna, wife of Philip Maubaunk[ii], during Philip M’s life. Sinful and scandalous, obviously, but the main offence which was relevant to a secular jurisdiction was the next bit: Philip C and two servants of Philip M, whose names the jurors said they did not know, had killed Philip M. Specifically, Philip C and the servants had ‘intoxicated’ Philip M, at Yeovil, with poison (unspecified, let’s be honest, it was probably supposed to be something in his food rather than the old snake in the bed, but nice pic, isn’t it? And it fits in with the whole poison-woman-Eve-serpent-sin vibe).

This, so the story went, had all been done with the encouragement and assistance of Joanna. It had, allegedly happened a long time previously, in June 1342. Joanna had been arrested and appeared in court before the King’s Bench at Westminster, in early 1359. She was asked how she pleaded to the charge of aiding and abetting the felonious homicide, and said she should not be obliged to answer until proceedings were (re)started against the alleged principal, Philip C. She was bailed to appear in the KB at Michaelmas. Proceedings against Philip C were then resumed, until, at Easter 1360, the sheriff of Somerset reported that Philip C had died in his custody at the beginning of the year. As far as the court was concerned, the fact that Philip C, who was indicted as principal, was dead, meant that he could not be convicted according to the law and custom of the realm, and that, in turn, meant that Joanna had to be acquitted.

 

So what?

Well, there are a number of things to think about here.

  1. The slow burn… If this is not a complete fabrication, it looks as if we are seeing action being taken against alleged killers (or some of them) 16 years or more after the alleged killing. Why? Had Joanna and Philip C gone off to a happy life of carnal knowledge somewhere else? Did nobody care about Philip M? Was there some late confession or slip, spilling the (poisoned) beans? The allegation in 1358-9 was one of poisoning, with the involvement of both wife and servants – the sort of thing which, generally, was taken extremely seriously, with added extras to the execution of convicted offenders (drawing as well as hanging for male servants, and burning for wives who killed their husbands) and which, of course, had been confirmed as a sort of treason by the Statute of Treasons 1352. It is puzzling that it took so long to be resolved (to the extent it was resolved).The passing of time allowed Joanna to avoid trial and possible conviction, and, in fact nobody actually stood trial for this alleged offence.
  2. The accessory/principal issue. It is interesting that a rule was upheld, allowing accessories a ‘get out of jail (and the risk of execution) free card’, if the principal died. It doesn’t seem entirely logical to me, and seems rather to encourage a certain amount of bumping off amongst former partners in crime. That’s one to investigate/ponder on some more. Just what was the relationship between the amenability to conviction of the principal and of the accessory?
  3. Venomous words. A smaller thing, but an interesting one. I note that ‘to poison’ and’ to intoxicate’ are used fairly interchangeably here, whereas we would now differentiate between them somewhat, in terms of deadliness, intention or focus. Another matter to bear in mind, and one which may have some bearing on the interpretation of other records which include only one of the two terms. We cannot necessarily assume precision and set boundaries of meaning in the use of these ‘medical’ terms.
  4. Oh yes, sex. The words describing sexual acts or relationships are always interesting. Here we have a description slightly different to those I usually encounter in common law records of offences: carnaliter cognovit is familiar enough (and rather unilateral), but adulteravit cum suggests bilateral activity. All rather more complex, or equivocal, than the idea that the medieval concept of sex was a man doing things to a woman. Then again, there might just not have been the words in the clerk’s Latin vocabulary to translate what was actually said (let alone what was actually going on – if anything was).

 

So – Joanna was ‘one who got away’ from the medieval common law; but was she also ‘one who got away with it’? As ever, we’ll never know.

 

GS

28/2/2021

[i] KB 27/394 Rex m. 16; http://aalt.law.uh.edu/E3/KB27no394/AKB27no394fronts/IMG_2821.htm

[ii] There is a Maubaunk family of a fairly high social status, appearing, e.g. in the Inquisitions Post Mortem: see TNA C 134/82/4 (earlier). There is a Philip Maubank of Dorset, whose full age is being proved in 1333: TNA C 135/35/1.  CIPM vol. 10 no. 530 (Edw III File 147) has Philip M and Joan – in summer 1333 Joan, late the wife of Philip M, is in trouble for not turning up to the proof of age of a young man whose lands she has in wardship.

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Mining and undermining: a ‘lady lawyer’ at the Glamorgan Assizes of 1908

(Normal medieval service will be resumed soon, but here is a last one from Welsh Newspapers Online for the moment, found on one of my searches during the recent AALT disruption).

In the few years before Covid 19 came into our lives, there was a lot of activity in relation to the centenaries, first, of militant suffrage campaigns, then the gaining of the vote for (some) women, and then the Sex Disqualification (Removal) Act 1919. (I had a small role in some of that, especially looking at how suffrage campaigning interacted with/clashed with ideas of Cymreictod (‘Welshness’), and, even more specifically, at events in my native town, Abergavenny). I am sure we have all become familiar with certain stories and images over the course of all this activity – iconic shots of the Pankhursts and that one picture of Helena Normanton and Rose Heilbron as silks in particular. It is comforting, in an unjust world, to see a fight in which ‘the good guys’ (sort of) (eventually) won – a reasonably straightforward cause and a definite ‘victory’. Nevertheless, it always seems to me that it is important not only to remember the winners – however impressive they may be – but also those who didn’t manage to smash down walls or transcend the limits placed upon them, those who experienced ridicule without eventual recompense, and who often seem to be lost in shadowy ‘before’, as we focus on the struggles we know to be connected to the attainment of particular equality goals. The thing is, there was a lot of ‘before’, and most of us probably have less in common with the ‘winners’ in these stories than with the shadowy multitude, whatever we may like to think.

It is harder, of course, to tell these other stories. They are likely to be less well documented: it is a question of looking for hints and snippets, and trying to interpret them, often ‘against the grain’ of the particular source, its tone and assumptions. Here is just one, which I found quite telling, and useful in thinking about narratives around the removal of the bar on women working as lawyers.

An article in the Weekly Mail for 11th  April 1908 is headed ‘Young Lady Lawyer’.[i] It is not, obviously, about a woman officially employed as a legal professional – that would not be conceded as a possibility until after the passing of the 1919 Act –  but about a woman acting in a somewhat analogous fashion. The legal matter was a case at Glamorgan Assizes, between William Watkins and William Burchell Rees (the two men identified geographically, in classic Welsh style –  ‘William Watkins, Crofte, Brynamman’ and ‘William Burchell Rees, Godregraig, [=Godre’r Graig] Ystalyfera’) over mineral rights (i.e. coal – it’s South Wales, after all) in Camarthenshire. There were professional lawyers, including a KC, on the plaintiff’s side, but the defendant acted ‘in person’. The newspaper report, however, though it found much of the case ‘dry and uninteresting’, makes much of the assistance given to William Burchell Rees by ‘a young lady’.  It notes, but with less interest, the fact that the defendant himself had clearly become familiar with quite a lot of law in this area, preferring to concentrate on the fact that his daughter ‘a girl of about nineteen summers’ was ‘at his side, prompting him’ as he questioned witnesses ‘on the intricate legal and technical details involved’. What an interesting juxtaposition – daughterly duty, properly assisting rather than speaking, and yet (somewhat unnaturally?) conversant with legal and technical detail, to a greater extent than her father, and (shrewishly?) ‘prompting’ him. She also ‘took copious notes’ during the hearing.

The report notes that this was not the only occasion on which ‘Miss Rees’ (we get no more) had been involved in legal business. In another legal case from the same area, she had been said to have ‘extraordinary legal knowledge’, and a certain Mr Abel Thomas had said that he had had ‘great pleasure’ in cross examining her. Furthermore, apparently, one judge (Bray J) was said to have wanted to be in charge of the case, in order to see her, but it had been assigned to another judge. So it sounds as if Miss Rees was a curiosity, a strange prodigy, and perhaps a focus of creepy desire from male lawyers and judges.

Miss Rees was called as a witness, by her father (I warm to him somewhat – he clearly thought highly of her). The judge asked, charmingly, ‘What is she?’, and her father responded ‘I hope some day she will be called to the Bar.’ This was greeted by incredulity on the part of the judge, and laughter in court.

This, then, was the sort of reception given in 1908 to the idea of a ‘young lady’ aspiring to be a professional lawyer. In this environment, the change which would come in 1919 was far from inevitable, and I think that this low-level ridicule, and belittling, and those on whom it was focused, should be integrated into overall narratives of the beginnings of women’s entry into the legal profession. How wearing it must have been. Not only could she not act as a barrister, but even her informal help to her father was met with a fragile hostility and an undermining focus on her as an object of unseemly male fascination.

GS

26/2/2021

Update 4/3/2021

There is a portrait of this ‘interesting Welsh girl’ in another edition of the paper, in April 1908: AN INTERESTING WELSH GIRL.\|1908-04-11|Weekly Mail – Welsh Newspapers (library.wales)

Miss Burchell Rees seems to have been familiar with the inside of a court room, and with her father’s litigation: in a report from 1906, relating to Langer Anthracite Co. (Llandilo) v William Burchell Rees and Edgard Rees, her father is reported to have been accompanied to court by ‘a young girl’: A LLANDILO CHANCERY ACTION|1906-03-24|Evening Express – Welsh Newspapers (library.wales) (I am assuming that it is the same ‘young girl’). Possibly by way of explanation of her presence, her father is reported to have said that he was ‘a Welshman, and rather deaf’ and ‘could not afford counsel’. This seems to be evoking ideas of women as carers, rather than (entirely) presenting her as some sort of legal assistant. Earlier still, as a ‘schoolgirl’, her ‘remarkable knowledge of law’ was remarked, with regard to yet more family litigation, in 1904: STARTLING CHARGESI|1904-08-17|Evening Express – Welsh Newspapers (library.wales).

This last report has some very interesting material on gender and coal mining, and also gives us this: ‘An interesting witness was Florence Mary Rees, a girl of sixteen, who showed such a remarkable familiarity with legal formula [sic] and documents that the judge elicited from her that she studied law as a hobby, had a law library, attended police courts, because that was her delight, and hoped eventually to turn the knowledge she thus acquired to good account by becoming a lady lawyer’. I wonder if she might have been inspired by reports such as those relating to aspiring lawyer (and one who ‘made it’, Ivy Williams: LADY LAWYER AGAIN.I|1903-12-16|Evening Express – Welsh Newspapers (library.wales)  It sounds as if Florence’s father was something of a self-taught lawyer himself. More details of the rather bullying questioning of Florence can be seen here: ^°0LGIKL’S KNOWLEDGE OF LAW.|1904-08-20|Weekly Mail – Welsh Newspapers (library.wales)

Certainly, William Burchell Rees was no stranger to litigation: his name appears in several other law-related reports, in the first two decades of the twentieth century, e.g. IA WOMAN’S LOANS.1|1904-08-16|Evening Express – Welsh Newspapers (library.wales) IERASURE IN THE DEED|1906-07-28|Weekly Mail – Welsh Newspapers (library.wales) . If this is also him, he was still at it in 1916: LOCAL COLLIERY ACTION.|1916-11-18|Llais Llafur – Welsh Newspapers (library.wales). He seems to have scandalised the community with his personal life: UNPLEASANT CASE.I – i|1904-08-18|Evening Express – Welsh Newspapers (library.wales)

(Inevitably, by the way, there was a racehorse called ‘Lady Lawyer’ in the 1920s, which has featured heavily in my searches!).

[i] https://newspapers.library.wales/view/3378810/3378816/136/Our%20Lawyer

Advising ‘One in a Fog’ and others: the ‘Our Lawyer’ column

I am rather entranced by the 1890s ‘Our Lawyer’ column in the Weekly Mail, which can be found in the Welsh Newspapers Online database. Welsh Newspapers Online – Home (library.wales)  In it, an anonymous barrister gives short bursts of advice to people who write in under pseudonyms – several of them per week. This process seems interesting to me, in that we see a barrister interacting directly with the public (I may be wrong, but I thought that that would have been frowned upon at this period – a solicitor should have been involved between client and counsel). ‘Our Lawyer’ often finds fault with the information received – it is insufficient, or confused – and often points the correspondent towards consulting a solicitor, so I suppose he was not really taking work away from them overall. He also stands back from specific practical advice about whether to litigate, e.g. saying ‘We never give estimates of costs’ – to M.E. (Merthyr), enquiring about the possibility of bringing an action for the ‘seduction’ of her daughter.[i]

There is a great deal which I imagine would be worth investigating, in the advice sought and given. This ranges from property law, through employment law, divorce and defamation, to the odd bit of crime, or company law. The names chosen by the correspondents are sometimes delightfully whimsical – one 1891 column alone features the literary (‘Banquo’), the mundane (‘Enquirer G’; ‘A.A.R.’), the abstract (‘Consistency;, ‘Lover of Fair Play’), the legally suggestive (‘Next of Kin’), the self-satisfied (‘A Business Man’), the classical (‘Felix’), the folksy Welsh (‘Shon Bach’), the unimaginative Welsh (‘Cymro’) as well as poor old ‘One in a Fog’, who wants a divorce.[ii]

I rather like the fact that one correspondent asking about payments towards the maintenance of his ‘illegitimate’ child (and attempting to get out of them) took on the name ‘Bastard (Tondu)’ (rather more appropriate for him than for the poor kid).[iii] And I admit I may have sniggered at the pseudonym W.A.P. (Haverfordwest).[iv] He wasn’t to know that would seem very rude in 2020-21, I suppose.

‘Our Lawyer’ is usually fairly matter-of-fact, but can’t seem to keep back the sarcasm at times, e.g. telling ‘G.B.’ of Cardiff, who was asking about adoption (not legally recognised in the jurisdiction at this point) that his enquiry ‘shows more zeal than discretion’,[v] telling ‘Fair Play (Llanelli)’ that he has ‘got rather mixed’,[vi] and suggesting to more than one unmarried woman that she is rather lucky to get a financial settlement from the father of her child.[vii]

Other bits of snippy, judgey or critical comment include:

‘Kindness is wasted upon such a man as the defendant has proved himself to be’ – replying to ‘Memo’ (Cardiff).[viii]

‘He must be a very mean man to ask for them’ – advising ‘Young’ not to give up her wedding and engagement rings to her husband.[ix]

‘Why did not ‘Commercial (Newport)’ look after his luggage at Tredegar? That is what any ordinary traveller would have done.’[x] Not much sympathy for this careless correspondent!

… telling ‘Justice’, in a case headed SEPARATION ORDER, that he has no right to take away from his wife gifts to her from her friends, and adding that ‘He appears to have queer ideas of justice.’[xi]

There is certainly some lack of sympathy with women, as in the  in  1891 entry – presumably somewhat after R v Jackson -telling ‘J.T. (Newport)’ that he has no power of making his wife live with him, ‘The letter he wrote to his wife was a very injudicious one. To threaten an obstinate woman that, unless she returns home she will be fetched, is certainly not the way to get her back. He had better try persuasion.’[xii]

I do warm to him when he is having a go at men out to rip off women, though, particularly in the following paragraph:  ‘A SELFISH LOVER. ’Careful Boy’ (we charitably omit the address) might have a settlement prepared for execution before his marriage is celebrated. [tells him how to do it]… But he should moderate his desires as to the division of the lady’s fortune. His proposal is simply monstrous, and if he should insist upon having half her fortune while he is in a state of impecuniosity, we hope she will throw him over before it is too late.’[xiii] Slightly going beyond the brief of legal advice there, O.L.?!

Anyway – it’s fabulous stuff. I am not qualified to do it, but if nobody has ever written a paper or a thesis on this topic, then they definitely should.

Amongst other things I’d like to know would be:

(i) Who was ‘Our Lawyer’?

(ii) How would this procedure have been seen by the profession?

(iii) How did ‘ordinary’ people perceive this service/project (It has a vague resemblance to modern pro bono or Law Clinic work, doesn’t it?). What does it tell us about their views and hopes of, and attitudes to, law?

(iv) Since I am sure this was not a one-off, what similar columns existed in other parts of the press?

I will end this with a personal favourite, from 1891:

‘HUSBAND AND WIFE. ‘J.M.A., who has been married for more than 40 years, and whose wife has recently refused to sleep with him on account of the coldness of his feet, is advised that he has no legal remedy. He had better try persuasion, and have a hot water bottle to put his feet on.’[xiv]  Very much Team Mrs J.M.A. – the cold feet thing sounds like a useful excuse to me!

 

GS

19/2/2021

 

 

[i] ‘.’ OUR LAWYER.,-.|1891-12-12|Weekly Mail – Welsh Newspapers (library.wales)

[ii] OUR LAWYER.|1891-10-24|Weekly Mail – Welsh Newspapers (library.wales)

[iii] OUR LAWYER,|1890-11-08|Weekly Mail – Welsh Newspapers (library.wales)

[iv] ———–OUR LAWYER –‘0|1891-09-19|Weekly Mail – Welsh Newspapers (library.wales)

[v] OUR LAWYER|1890-09-13|Weekly Mail – Welsh Newspapers (library.wales)

[vi] OUR LAWYER. .|1890-09-20|Weekly Mail – Welsh Newspapers (library.wales)

[vii] OUR LAWYER. .|1890-09-20|Weekly Mail – Welsh Newspapers (library.wales)

[viii] ———-OUR LAWYER. .|1890-11-01|Weekly Mail – Welsh Newspapers (library.wales)

[ix] OUR LAWYER.|1891-12-19|Weekly Mail – Welsh Newspapers (library.wales)

[x] OUR LAWYER. «.|1890-12-06|Weekly Mail – Welsh Newspapers (library.wales)

[xi] OUR LAWYER.|1890-12-27|Weekly Mail – Welsh Newspapers (library.wales)

[xii]  OUR LAWYER. .|1891-10-17|Weekly Mail – Welsh Newspapers (library.wales)

[xiii]  ———IOUR LAWYER.|1891-01-10|Weekly Mail – Welsh Newspapers (library.wales)

[xiv] OUR LAWYER. .|1891-12-05|Weekly Mail – Welsh Newspapers (library.wales)

The Cambrian, 14th September, 1839, p.3.

A little bit of nunsense

Proud to have a post on the excellent Legal History Miscellany blog this week: https://legalhistorymiscellany.com/2021/02/17/allure-of-the-runaway-nun/ about medieval nuns.

To be honest, I have not spent that much of my life thinking about nuns – academically speaking, they have always seemed to be pretty much covered by ‘proper’ historians, church historians, and scholars of literature, art and music (Hildegard …), and a Presbyterian upbringing meant I didn’t come into contact with nuns very much at all in real life (still not sure I have ever spoken to one). But they are interesting from a common law legal history point of view. There is the stuff I touched on in the LHM post, but also a lot more in terms of working out how to enable them to act at common law, if they were enclosed and unable to come to court, and issues around women being forced into convents to allow other family members to snaffle up their property rights. And then there is the fact that all of the common law learning must, presumably, have become more or less redundant after the dissolution of religious houses in the 16th C. It would be quite a fascinating project to trace what happened to it – were nuns still referred to, or used as examples, in common law treatises after that? How did it compare, e.g., to the ways in which law about Jews was referred to, after the 1290 Expulsion? Another one for the queue for the back-burner …

In the meantime – and it’s a bit of a nun sequitur (I’m trying to make that one happen ..) – in a trawl of the Welsh Newspapers Online archive, I found a ‘so-terrible-it’s-great’ poem about nuns in an issue of The Cambrian from 1839 which deserves much wider publicity: the gem at the head of the post.(1) Even by the standards of the day, it is mawkish in the extreme, and the last line is an absolute corker. Ka-blam – she wasn’t sad, she was dead! I love the idea of some hard nosed Swansea businessman sitting and reading his paper, moving between the price of copper (which is just above it) and this fabulous work. Surely ‘F.C.N.’ deserves to be better known.

GS

19/2/2021

(And PS – look up any word in this database, and there will be a racehorse with that name. There was one called Defamation, in my last search, relating to that subject. This time, we have the late 19th C horse ‘Nun Nicer’ – good to see a bit of nun-punning going on there … And there’s even a ‘Seabourne’ in the early 1900s – oh come on, as if we don’t all look our names up in these things – though in my case it is to find some of the ne’er do wells of my family in court records – nothing serious, other than being thrown out of a workhouse, and being caught for chicken stealing because of suspicious feathery debris on his clothes – Ymlaen Wncl Joseph!)

(1) Copper Ore sold at Swansea, Sept. 11, 1839.|1839-09-14|The Cambrian – Welsh Newspapers (library.wales)

 

Friar Tuck in the Fifteenth Century

Here is a by-catch snippet from a King’s Bench plea roll which might appeal to the more train-spotting completist type of Robin Hood fan (not judging you!) … what seems to be an additional reference to Robert Stafford, naughty Sussex chaplain, who conducted a life of crime under the alias Friar Tuck (or, at least, a reference to a Friar Tuck being up to no good in Sussex).[i]

The name of Stafford (if that’s who this was – as seems likely) is not mentioned, but the description of the offence in the KB plea roll for Michaelmas term 1421 (KB 27/642 m. 32 (AALT IMG 305) might be of interest: at Lewes in 1420, it was presented that Robert Southe of Laughton in co. Sussex, gentleman, Thomas Wodhacche of Horsham, yeoman, and John Pyttekene of Laughton, yeoman, on February 1417, at Plumpton in a place called Lynterygge, with weapons including bows and arrows, their faces hidden, and painted with various colours (make up or camouflage paint? RuPaul’s Drag Race or Celebrity SAS: Who Dares Wins?) beat up Walter atte Brome and Simon Martyn, shouting, amongst other things, that they were the servants of their reverend master, Friar Tuck – and they rampaged around the countryside for some time, terrifying the populace.

There is something of the carnivalesque about this, and perhaps the presence of the ‘gentleman’ amongst the gang suggests that this was not quite a band of desperate starving men. Nevertheless, this seems to be a tale of violence, at some distance from the true story of Robin Hood (which, as we all know, is about cute Disney animals in a forest).

Anyway – hope that is useful to somebody. Off to ride through a glen … or would be, if Covid permitted.

GS 13/2/2021

[i] See Holt, Robin Hood (London, 1982) 58, for reference to this man and his band of followers in 1417 and 1429 (CPR 1429-36, 10) Note that current circumstances mean no library access, so I am fairly sure I haven’t seen this reference before, but that doesn’t mean it isn’t already ‘out there’ somewhere! For more Robin Hoody goodness from the same time – clearly a key point in the Robin Hood myth-making – see Seipp 1429.051  http://BU Law | Our Faculty | Scholarship | Legal History: The Year Books : Report #1429.051 For another 15th C emulation of Robin Hood and co., see TNA SC8/27/1317A

Taking the long and winding road to mercy? A Norfolk woman’s route through medieval criminal justice

In the middle of the reign of Edward III, Margaret Clerk of Norfolk found herself in deep trouble with the law. She appears in an entry on the King’s Bench plea roll for Easter 1353.[i] This, though, was not her first encounter with medieval criminal justice. As the entry makes clear, she was in peril at this point as a result of an alleged breach of rules relating to abjuration of the realm, a process by which a person in danger of being convicted and executed for a serious offence could stay alive, at the cost of agreeing to leave the country swiftly, and according to particular instructions. Margaret had agreed to abjure after confessing to offences of theft, committed alongside a male offender. She had not, however, left the realm.

The entry states that there had been an indictment relating to Edward Clerk of Caston, parson of the church of Lingwood, and Margaret Clerk,of the same place (their relationship, if any,  is unclear) for various felonies. The sheriff of Norfolk had brought them before the king’s justices and John atte Wode, the king’s coroner of Norfolk, came and said that Edward and Margaret had confessed to him, in the church of St Peter at Lingwood, that they were thieves, and so abjured the realm of England. Apparently, he produced a record of this abjuration, which is copied down, and dated [5th April 1353]. The offences confessed to were burglaries at two houses, making off with a quantity of grain and pulses, and bread, worth 18s and 5s 15d respectively. They were asked if they abjured, and assented, Edward being assigned the port of Sandwich to depart within 15 days and Margaret was assigned Dover, to depart within 12 days. Edward’s chattels were forfeit, Margaret had no chattels.

Clearly, given that they were in court now, Edward and Margaret had not in fact departed the realm. They were asked if there was any reason why the law should not be carried out on them (i.e. why they should not be executed). Both told a tale of having set off properly for their ports, but being captured by their enemies at Swardeston, with force and arms, and asked to be put back on the road, to continue to the ports and leave the realm. The court sought the view of a  jury as to whether this story was true, and a jury from Swardeston said it was not – they had left the king’s highway for Swardeston of their own free will. (The record does not state what was so great about Swardeston…).

After that, Edward said that he was a clerk, and passed a reading test to demonstrate this to the court’s satisfaction. A local churchman came and asked the court for him. He was delivered into ecclesiastical custody. Margaret then said that she was pregnant, and inspection and examination by a jury of matrons confirmed this. Her hanging was ‘put in suspense’ as the Calendar of Patent Rolls has it (slightly tactless – let us say ‘respited’) ‘until etc.’ and she was to be held in the Marshalsea prison.

Later, in early 1354, Margaret showed a royal pardon, letting her off the execution. This is dated 20th  November 1353.[ii] The reason given for the grant of the pardon is interesting – those who had had custody of her in the Marshalesa  – Robert Bullore, deputy of Walter Mauny is named – testified that she was lunatica and that she had made a false confession because of her disturbed mental state.  As a result of this intervention, Margaret was allowed to go free.

 

So what?

This set of proceedings tells us a lot (including, for once, an outcome of sorts) but also raises numerous questions.

I would pick out for notice the fact that there was a significant difference between the ways in which the two co-defendants escaped execution. For Edward, the route to safety was via ‘benefit of clergy’. Off he went to the ecclesiastical jurisdiction and custody once he had passed the reading test and secured the support of local ecclesiastical authorities. This was simply not available to Margaret. She pleaded her pregnancy – the plea which later commentators called ‘benefit of the belly’. The plea of pregnancy would not have provided as permanent an escape from capital punishment as would Edward’s benefit of clergy plea: it gave a respite, not a cancellation of the execution at this period. There was no automatic pardon – and we should note that the pardon secured for Margaret had nothing to do with her pregnancy or maternity, nor was it some sort of favour to her as a woman – the reason was her current ‘lunacy’ and the statement that this condition was the cause of her making a false confession to crimes she had not committed.

I suppose this says something quite interesting about pardons as well – this, essentially is a pardon being used as a (modern sense) appeal on the facts: she was in fact not guilty of even the acts complained of. A little different to the ‘average lunacy pardon’, in which X has killed Y, but is held to have done so whilst a ‘lunatic’. It illustrates rather well the fact that the medieval  pardon performed a variety of functions.

In addition, it is an interesting illustration of the plausibility of disruption of abjuration. Although it was not believed here, presumably it was not out of the question that annoyed neighbours or victims of the abjurers’ crime might attempt to cause them problems by ensuring that they broke the rules. Those bound for these assigned ports were supposed to go straight there, via the king’s highway (and in prescribed outfits and manner).[iii] Leaving the king’s highway was a move outside the prescribed route, and could end with the imposition of the death penalty, if it was not merely trivial. In this case, the suggestion is that Edward and Margaret were indeed making a break for it, preferring a Norfolk village to ‘abroad’, probably not a surprising preference in medieval English people.

As for the questions, well, there are many. Uppermost in my mind are three sets of questions, relating to the relationship between Edward and Margaret (kin, lovers … both …? Neither?); to the pregnancy, and to whether she was in fact ‘a lunatic’ (and, of course, rolled up in that one is ‘and what exactly did that mean’)? Upon the answers to these questions depends any real evaluation of just how ‘merciful’ all of this was. I am left wondering, in particular, about  the role of the various juries and officials involved in the abjuration saga – if Margaret was indeed a ‘lunatic’ at the time of the confession and abjuration, why did nobody notice, and why was there no provision for her future custody, as one might expect (perhaps because there is no suggestion she was violent, in contrast to the usual ‘insane homicide’ cases?). On a more selfish note, I am getting a little ‘what might have been’ (personal superpower) about not having found this before finishing the Women and the Medieval Common Law book – not that it would have brought entirely new points, but it would have been a nice opening case for a chapter. It was a nice one to ponder on a cold and locked down morning today, however. For once, a (sort of) happy ending – and nobody died!

 

[i] KB 27/371 m. 41 (AALT IMG 544).

[ii] This pardon can be seen in CPR 1350-4 p. 535.

[iii] Karl Shoemaker, Sanctuary and Crime in the Middle Ages 400-1500 (Fordham UP, 2011) c7, especially at p. 121.

Defamation with a Welsh accent?

‘Oh my country, my country! Her Majesty’s Commissioners say we are a drunken, lying and dishonest race – men without honour, women without chastity …’[i]

 

One of the projects I want to take off the back-burner in the next year deals with defamation in relation to Welsh, and the Welsh people. My initial interest was in the early period of common law actions on the case for defamation – which come to prominence, and show rapid development, in the sixteenth and seventeenth centuries, at a most interesting period for both Welsh governance and the Welsh language, and, as far as I am aware, there has not yet been a full consideration of the way in which actions on the case for defamation dealt with the bilingual reality of Wales. This is something of a stretch for me, in that this is not a period in which I would claim any great expertise, and there may be a need for a bit of hand-holding from those who know it better, but I am not sure that any individual has all of the various skills and knowledge relevant to this, so it does not seem totally out of order for me to have a go at it. At the moment, of course, it is difficult to make any progress, given the inaccessibility of archives. I decided to do a little exploration of such sources as are available to me, and am currently searching through the excellent Welsh Newspapers Online – Home (library.wales). This is proving interesting both in terms of what I have thought of as the ‘core’ of the project – the doctrinal development of defamation law in relation to Wales, Welsh and the Welsh – and also in terms of wider ways in which defamation might have had a distinct role, a distinct accent, for the Welsh, over a much longer period.

I had imagined that my main questions for the doctrinal core would be:

  • in what ways might calling somebody Welsh (alone, or in combination with something else) be defamatory?
  • when might an insult in Welsh be actionable?
  • how would such an insult be evaluated?

I have found some good material on some of these points in the archive in the past, and today turned up a nice quote relevant to the last point, from a letter in a newspaper in 1821:

‘ In cases of libel or defamation, which originated in the Welsh, and are now brought into Court to be tried in the English language, the parties are frequently foiled, and the ends of justice defeated. No language will admit of a literal translation, or is always capable of giving every word its full force and meaning in another.  The Judges are totally ignorant of the Welsh, the Barristers equally so, and the Attornies, not uncommonly without any knowledge of it. The issue of the whole matter then rests on the fidelity of the Interpreter, who is not, at all times, the most competent for his office. And how, I would ask, can justice and equity be administered in such a case?’[ii]

After starting to look at the newspaper archive, however, I have an additional question: how would it be ascertained whether a person alleged to have uttered an insult in Welsh could in fact speak Welsh? This came up in a report of 1808 from North Wales.[iii] The case was Williams (an infant) v. Read and his wife. How much of an ‘infant’ Williams was is not clear – and nor, sadly, though unsurprisingly, are the words, the nature of the alleged insult is not set out. We are told that Mrs Read tried to plead justification, and failed, and that then there was the issue of whether she could have said the words in question (those pleas seem rather contradictory to me, but perhaps I am missing something!). The point was made that Mrs Read came from Cheshire, and that, despite living for 30 years in what was a seriously Welsh-speaking part of the country she had not learned any Welsh, or at least not enough to speak the words in question (were they particularly challenging to a non-native speaker? Lots of Ll and Ch? Had she allegedly described young Williams as the worst thief in Llanfairpwllgwyngyllgogerychwyrndrobwllllantysiliogogogoch?). The jury didn’t accept this anyway, and Mrs Read was found to have defamed the infant Williams. (I am definitely going to have a poke about to see if there are other, more informative, reports: nothing so far!)

There are a number of leads like this to follow up, but also some wider contexts and trends to consider. I do wonder whether there is a particular vehemence to the condemnation of defamation in a community condemned in the way suggested by the quote at the head of this post, but which emphasises, in one of its central cultural institutions, the Eisteddfod, its own heroically truthful tradition: Y Gwir yn Erbyn y Byd (‘[The duty to uphold] the truth against the world’). It is interesting to note how regularly the Welsh language papers seem to leave ‘defamation of character’ in English – a nasty Saxon practice? Also, my superficial perusing has me musing (going a little bardic there?) about the regular mentioning of slander and defamation in relation to the bitter fighting over the position of the Anglican church, and native dissent, in the later nineteenth century and early twentieth century. From a modern, secular, viewpoint, this sometimes looks like a battle over trivial differences, but the feelings were very deep and real, and accusing the Tory/high church powers of defamation against the Welsh in general, and their dissenting churches and their ministers in particular, was a complaint which seems to have been something of a rallying cry.  One example gives a flavour – ‘The Church Times has out-Heroded HEROD in its superfluity of libellous traducement. We have occasinally noticed the sluice of persistent slander against the Welsh people which this High Church paper keeps continually open’.[iv]

Much to ponder, and to investigate further, when it becomes possible. I am encouraged, though, that there is something here. It just might be less the one painless article I had looked forward to, after more or less escaping the long pressure of the Women and the Medieval Common Law book, and more a set of linked pieces of a rather amorphous blobby nature. Ah well – Wales, Welsh and the Welsh never have been straightforward. Croeso i Gymru.

 

GS

7/2/2021

 

 

[i] North Wales Chronicle and Advertiser for the Principality, 22nd February, 1848, p.2. Letter from ‘A Loyal Welshman’.

[ii] D.W., The Cambrian, 16th June, 1821, Letter, ‘The Welsh Language’, p.3,

[iii] North Wales Gazette, 24th November, 1808, p. 3, dealing with proceedings in ‘Carnarvonshire’ County Court.

[iv] South Wales Daily News, 22nd December, 1896, p. 4.

Photo by Patrick Hendry on Unsplash

Plague, fire and ‘lunacy’: arson and acquittal in medieval Yorkshire

Here is another record which has something of interest to say on lay and legal ideas about mental capacity and responsibility.

We are in 1349 – all a bit plaguey, not though you would always know it, since the rolls are still rolling, with many of the usual sorts of litigation – in the King’s Bench. On the Rex section of the roll, there is a case of arson, from a gaol delivery at York, in which mental state becomes crucial. (KB 27/355 Rex m.29d; AALT IMG 8327).

The jurors of Harthill wapentake presented that John son of William son of Henry of Nafferton was indicted before Thomas de Rokeby, sheriff of Yorkshire, that on 10th January 1349, he feloniously burned the house of Robert Dreng of Driffield, along with 40s worth of goods which were inside it. He pleaded not guilty and put himself on the jury. The jury stated on oath that John was a lunatic, and that, three or four times a year, he was troubled (vexatus) by a disease of the mind (infirmitate demencie), and that he had been affected by it on the day in question, and for eight days before and eight days afterwards, so that he was not aware of the difference between good and evil, nor of his own actions. They found that he had burned the house in question during this period, and had not done so feloniously or by ‘malice aforethought), as was alleged against him, and nor had he fled. And because the jury held that John had been non compos mentis at the relevant time, he was acquitted. Four named men came forward as security for his good behaviour.

So what?

It is not unexpected that somebody with a severe mental problem, defined as lunacy’, would avoid the severe penalties for felony, and that, by this period, this would not be by the cumbersome method of waiting for a royal pardon, but would be a straight acquittal. There is, though, some interesting detail here, in terms of the apparent understanding of mental capacity and the conditions which might affect it. John’s disordered states appear to have been noted, and their frequency was a matter of community knowledge. We do not have the link to the moon made in other cases of ‘lunacy’, but there is a suggestion that the disorder recurred on a more or less regular pattern (was it almost seasonal?). There is also a good explanation of the effect of the disorder on his responsibility – specifically, it diminished his ability to tell right from wrong, and even his awareness of his own acts. The jurors were making a very strong case for his acquittal. The fact that they mentioned that the incapacity had lasted from eight days before the incident to eight days after it could almost sound as if they want to leave no room for argument that John might, in fact, have been experiencing a lucid interval (though I wonder whether this information was elicited by questioning by the court, or whether it was volunteered).

Finally, it is interesting that this is not – as most ‘lunacy’ cases seem to be – a homicide, but a case of arson (in which nobody died). What role might have been played by the nature of the offence? I found myself wondering whether it took more preparation and forethought to burn down a medieval house, or to stab or beat somebody to death, but I am not sure that an answer to that could be obtained easily. As with so much else on medieval ideas of mental capacity and disorder, our understanding is very incomplete, and needs to be built up piece by piece. I find, in this area as a whole, it is a big challenge to think myself back into a world in which mental disorders were not seen as a matter for ‘expertise’,  but one on which ordinary, respectable, jurors could be expected to make a definite judgment. That, though, is my problem rather than theirs.

GS

3/2/2021