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.

Priors, Promises and the Proper Observation of Old Books

As a Land Law teacher with a research interest in medieval legal history, I am always interested to see the two parts of my academic world coming together. Sometimes this can be frustrating, when lawyers, judges or others misrepresent the law of the past, or throw around ‘medieval’ and ‘feudal’ in an inaccurate fashion (see the sniffy references by Laws LJ to ‘medieval chains’ in Manchester Airport plc v Dutton [2000] QB 133, at 148A – while in fact describing actions which were around far later than  the medieval period – and the many references to rapacious practices with regard to ground rents and service charges on long leaseholds as ‘feudal’, which they aren’t). I also get exercised by the practice of relying on partial evidence about an old case, by citing a Year Book (medieval to ‘early early modern’ law report) without cross-referencing with the relevant plea roll (official record). Traditionally, doing a proper job of tracing the plea roll entries would have been massively time consuming, but, although it is still not easy, the advent of digitisation of many legal records (especially by the Anglo-American Legal Tradition project) has certainly speeded up the process.

Why bother? Well, it is always good to have as much information as possible about a case, if it is to be cited, and the record can fill in details of procedure and pleading not fully noted in reports. The main thing, though, is that law reports of the past, and especially the deep, medieval past, were not like modern law reports, and treating them as if they are just like something from modern reports, or indeed modern published judgments, is something of a distortion. We may find, for example, that what is relied upon as authority for a proposition of law was actually rather less definitive than would appear. The charm and frustration of early reports is that reporters were often more interested in noting lines of argument, and opinion, than in giving a clear ‘ratio’, (and frequently do not tell us what was the outcome of a case). If at all possible, then, it seems sensible to try to find both record and report, where these exist.

And so to the case I wanted to discuss. It is one which is frequently cited in texts on a tricksy part of Land Law: (freehold) covenants. I was first introduced to it as a second year undergraduate student, when our textbook referred to it in semi-anonymous terms as The Prior’s Case (1368). Clearly a proto-medieval-legal-historian even then, I wanted to know more, but nobody seemed to be able to tell me anything about it. I was given the strong steer that there was no need to ask questions. I did get as far as tracking it down in the printed Year Books, but struggled at that stage both with the black-letter printing and, of course, with the Law-French and peppering of Latin. I did learn something though – a truth about history and the doctrine of precedent in English law: people cite things they haven’t read; which they couldn’t have read. It was rather unsettling.

Now, years later, when I have got to grips with the old languages and scripts of the law, and learned a thing or two about modern lawyers and judges as well, I can take it all a bit further.  As ever with historical study, one notes that some things change, and others stay the same. I checked the Year Book report once more (with the aid of the extremely useful Seipp’s Abridgement) and then tracked down the plea roll entry relating to the case. You can see the YB report here {Seipp 1368.013; YB 42 Edw. III f. 3 pl. 14) and the plea roll entry is at CP 40/430 m. 60.

What do these tell us, and does it add to, or alter, the conventional view of the case? Well, the first thing to note is that the names of the parties have become woefully garbled over the centuries. The printed YB version of events has it as Laurence Pakenham v. a prior (anonymous), and it is as Laurence, or Lawrence, Pakenham’s case that Coke cites it: Co. Litt. 385a. In fact, the plea roll shows that the case was not brought by a man with a surname tying him to Suffolk, but was, in fact brought by Laurence de Pabenham. This Laurence was a man with ties to Bedfordshire and Northamptonshire, Pabenham (now Pavenham) being in the former county. Now, a b and a k can be hard to distinguish in certain scripts, so some slippage here is not massively surprising. An additional garbling crept in, however, at some point, renaming the case ‘The Prior of Packenham’s Case’.[i] This might seem like a small thing, but its mixing up of plaintiff and defendant means that it  is not a version of the case name which would have been given by anyone who had actually gone and had a look at either the YB report, or the passage from Coke’s First Institute, which is usually cited with it. It is all rather indicative of (a) sloppiness; and (b) a casual attitude towards the truth. Alternative facts, anyone? I would certainly not be impressed by one of my students citing – and therefore claiming to have read – something which they clearly had not read. It reminds me a little of some of the nonsensical footnotes which give away the more inept Chat GPT user.

The plea roll tells us that the defendant prior and convent were from Canons Ashby (Essebi) in Northamptonshire. This was a house of Augustinian canons. The manor to which the covenant was attached was Hinwick),[ii] and Laurence claimed that the covenant was an old one – made with his great grandfather, Hugh, by the prior and convent of Canons Ashby back in the reign of Henry III (14 Henry III, which was a LONG time before – by indenture, formalities fans – wouldn’t it be great to find that, to understand the detail of the deal?). The covenant allegedly laid down that the canons should be singing three times per week in the chapel of Hinwick, in perpetuity. Laurence claimed, further, that, though they had massed away for almost a hundred years, they had not done it for twenty years, and he had not been able to get the prior and convent to keep the covenant. Just why the canons were holding out against keeping the bargain, who knows. I imagine it might be a bit of a pain. Laurence claimed 40 l damages for their failure, anyway.

All very interesting, and serving to highlight some of the changes between the PR and YB versions, but what about the past/present question – does the case, in either version, unequivocally stand for the proposition(s) for which it is now cited?

How is it now used? We can see a modern citation of The Prior’s Case in Bath Rugby v Greenwood and others [2021] EWCA Civ 1927,[iii] Nugee LJ, at 37, referred to it as an ‘example of noticeable antiquity’, and quoted Clauson J, in In Re Ballard’s Conveyance,[iv] who was, in turn, coming at The Prior’s Case through Coke in Spencer’s case (1585),[v] was a case which might bear further scrutiny in terms of its accuracy and relevance.  Anyway, the Spencer version of the point of the case is given as follows:

 The Prior’s case was one where the prior of a convent had covenanted that he and his convent would sing all week in the chapel of a manor for the lords of the manor. … a successor in title to the manor was able to enforce the covenant: “for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor, as it is there said.

Nugee (38) thought that it was fairly obvious that the benefit would be annexed in this sort of case because it is ‘usually obvious which land such a covenant benefits … a covenant to sing for the lord of the manor in the chapel of the manor benefits the lord of the manor as owner of the manor,..’ There is probably scope for interrogating that sort of benefit, but let’s leave it at that. It is about passing of benefit of covenants, including positive covenants, by annexation to land/property rights.[vi] The Prior’s Case is also used as authority for the idea that there is no need for a servient tenement, in covenants, unlike easements.[vii]

The case itself was a little less clear cut. It featured quite a lot of argument as to whether Laurence had made a fatal error by claiming as the heir of Hugh. The thing was that there was another person who seemed to have a better claim to be Hugh’s heir – a young girl called Margaret, a minor, who was descended from Hugh via a senior branch to that from which Laurence sprang. (In the YB, Coke and ever thereafter, Margaret is written out of the story, which becomes one of an older and younger brother: interesting in its effacing of females, but ultimately not crucial to the legal argument). The prior’s side made a lot of this in argument. Laurence and his lawyers tried to get around this by basing his argument on his land rights: he was tenant in tail of the land to which the chantry was appurtenant (Hinwick), so, while Margaret might be ‘senior’ in terms of blood, he had the link via the land, and that meant that only he could in fact sue on this. Both YB and plea roll suggest that the court found the answer far from obvious, and it was repeatedly delayed, and adjourned.[viii] Coke seems to have skated over that aspect of things, and stated that there was a straightforward finding for Laurence, and so a decision that the covenant was annexed to the manor, so that it could be enforced by Laurence, as the person holding it.

The YB suggests that things were going in Laurence’s favour, but I have not yet turned up a final decision, and I am not sure that we can take it on trust from Coke that there was a definite decision that looks like annexation of the benefit to land (let alone to an estate) prevailing. As is often the case, Coke may have tidied things up rather, bringing an older legal world within the norms of his own day, and effectively making substantive rules out of a dispute about pleading. This passage rather sums up his approach:

Observe reader your old books, for they are the fountains out of which these resolutions issue, but perhaps by these differences the fountains themselves will be made more clear and profitable to those who will make use of them’.. [ix]

Even taking this as a definite judgment, it is very much something to which some context would need to be added and questions asked. There is at least potentially something of a mismatch between the idea of the attachment of a benefit to a manor and attaching it to land, or an ‘ordinary’ estate in land.

So, long story short, I am not sure The Prior’s Case quite stands for the straightforward proposition for which it tends to be used, and there is room for improvement in the way in which lawyers use old cases in new cases and practitioner texts. It strikes me as interesting that legal practice has created its own rewritten versions of the past, for use in modern law. Who would have thought that stereotypically pompous and conservative lawyers would actually be happy working in a post-truth environment? Aside from the questionable implied claims to scholarship and a basis in authority which are embodied in garbled citations of this case, there is something decidedly odd about purporting to respect precedent whilst not actually making an effort to look up records or reports. To the extent that all of this suggests an idea of historical scholarship, it is the historical scholarship of several generations ago, with its passing acquaintance with documentary sources and its reliance on the words of great men (Coke, Blackstone, others, but mostly Coke).

GS

4/12/2023

[DRAFT: DO NOT CITE WITHOUT PERMISSION; This is a ‘work in progress’ and the search for the end of the case goes on!]

Update, 7/12/2023

Two more things:

  1. the case is mentioned in Simpson. As Pakenham’s Case (with YB ref) and there is an explanation of the extension of the running of the benefit of covenants in land, beyond basic warranties, in this case.[i] It rather assumes – perhaps because of the date of the case, that this was about a post-1290 arrangement, but that is not what the plea roll implies.
  2. I am still waiting for a chance to check the plea rolls thoroughly, but there is a hint in a secondary work that the case was not in fact simply decided in favour of Laurence, as modern accounts assume. Now, I confess that I have not yet managed to get to the British Library to check out the manuscript cartulary (see how easy it is to admit that!), but it looks very much as if there was a settlement, with Laurence agreeing to pay the canons for their services: see G. Baker, History and Antiquities of the County of Northampton  2 vols (London, 1822), II, 10, citing Ashby Cartulary in possession of R Orlebar esq of Henwick co Bedford, fo. 204. This is MS Egerton 3033. Sadly, the current disruption at the BL is keeping me from getting my eager little hands on it. 

[i] A.W.B. Simpson, A History of Land Law, 2nd ed. (London 1986), 116-18.

Image: This, I think is the church in question. Note absence of singing canons. Proves my point, I think.

 

[i]  Preston & Newsom: Restrictive Covenants Affecting Freehold Land, eleventh edn (London: Sweet & Maxwell, 2020), Table of Cases and 1-023.

[ii] Inquisition Post Mortem of Laurence’s father, with the right lands. Inquisitions Post Mortem, Edward III, File 78 | British History Online (british-history.ac.uk)

[iii] This case involved rugby rather than singing masses. (I will hold back from making points about the similarity between religion and sport, sport as the modern Opium des Volkes, etc., though I may just be thinking it). Basic issue: did a covenant from 1922 against particular commercial uses mean that Bath Rugby (Club) could not develop the land in question as they wished, to which the answer would be yes, if the benefit of the covenant had been annexed to identifiable land.

Covenants superfans will note at once that, because of the date, there was no tangling with s. 78(1) LPA 1925 or the top fun which is the case of  Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594. If you know, you know.

In the end, the answer was that the land was not identified precisely enough, so the covenant did not work to stop the development.

[iv] [1937] 1 Ch 473 at 482.

[v] 5 Co Rep 17 b

NB – Spencer’s case is about the passing of the burden: Ps are original lessors, so not passing of benefit.

[vii] L. Turano, Intention, interpretation and the “mystery” of s. 79 of the Law of Property Act 1925’, Conv. 2000 Sep/Oct, 377-97, 379; Megarry, Robert, William Wade, Stuart Bridge, Elizabeth Cooke, and Martin Dixon. 2019. The Law of Real Property Ninth ed. London: Sweet & Maxwell, 31-014. ‘in an old case a Prior covenanted with the lord of the manor that he and his convent would sing divine service in the chapel of the manor. It was held that the lord’s successors in title could sue the Prior for non-performance.’

[ix] Co Rep at 17b, p 76.

Positively charged easements? A few thoughts on Gosling v Bradbury [2023] EWHC 199 (Ch)

TW: modern land law, not legal history …

Still with me? OK. This recent easements case is quite interesting (to those of us who like such things) in its treatment of a slightly involved easement.[i] It takes us into a bit of thinking about classification of easements as positive or negative, and into the issue of ancillary easements/rights. It also hints at a rather intriguing question with regard to accommodation and change from supply of something positive to the dominant land, to allowing the continuance of something potentially negative in effect.

The action took place in rural Worcestershire, near Droitwich. Simplifying the facts to their essentials, there were two adjacent pieces of land, Ford Farm (FF) and Rashwood Lodge (RL). It was claimed on behalf of RL that RL had an easement over FF, to obtain water from a borehole on FF, using an electrical pump, located in a barn on FF. The right to the water was fairly uncontroversial – there was an express grant of such a right, from 1982. The issue concerned the electrical pumping. Bradbury had interrupted the electricity supply to the pump, and this meant that the water was no longer pumped to RL. This only came to the attention of the occupant of RL, Ms Dawe, when her supply dried up, so that she could no longer water her horses. [Note to self, insert picture of sad horse here].

What possible argument did Bradbury of FF have for interrupting the electricity supply? Well, the argument made for this not being contrary to an easement in favour of RL was that, although the easement created in 1982 included a right to receive water from the borehole via pump and pipes, and, indeed, a right to go onto FF to check and maintain the equipment, it did not say anything about a right to a supply of electricity.

The judgments suggest that Bradbury, who had acquired FF recently, was well aware of the existence of an easement, but wanted to ‘take back control’ of the land, stop others coming onto it, and perhaps renegotiate the deal with RL so that it was more along the lines of a licence. If this was the plan, it did not work, however.

The right to have the pump powered by electricity, with wiring and apparatus on FF, was held to be a right ancillary to the explicit easement relating to the water received by means of the pump. There was an attempt to argue that, because an ancillary right could not impose a positive obligation on the servient owner,[ii] Bradbury could not be obliged to pay for and allow the supply of electricity, via apparatus on his land. Essentially, Bradbury was trying to say that the interruption of the current was not a positive interference with a genuine easement, but a cessation of positive action to support a claimed but invalid easement. This did not work. Zacaroli J ruled:

‘28. The ancillary right, as declared to exist in this case by the judge, is defined as the right to enjoy the passage of electricity across [FF], including, the right for [Bradbury] to arrange for the supply of electricity onto [FF], the right to make use of infrastructure already in situ on [FF] or to install their own infrastructure and apparatus, and associated rights of access. These impose no positive obligations on [Bradbury or successors in title], but merely require them to suffer things to be done on Ford Farm. They do not, as [counsel for Bradbury] contended, require the appellants to provide and maintain electric wiring and arrange a supply of electricity.’

I think it is quite interesting for easements in general, because it does show the room for disagreement around positivity and negativity. We tend to treat them as clear and distinct, but are they always? That construction of a requirement ‘to suffer things to be done’ is so beautifully liminal in its positioning between active and passive. Not to mention its biblical resonances. The whole situation was also made a little vaguer by the fact that RL and its occupants had not been asked to pay a share of the electricity for some time, though it was maintained that they would have been willing to pay. This non-demand/non-payment circumstance allowed Bradbury to suggest that FF was being burdened with the cost of the electricity, as well as having to ‘host’ the machinery, cables etc. That, of course, would tend to make it look a little more like a requirement for positive input on the part of the servient owner, and so less like a legitimate easement. If we think about Regency Villas, it would tend to take us into the territory that so concerned Lord Carnwath.

It is worth mentioning a couple of other unsuccessful lines of argument which were run on behalf of Bradbury. First of all, there was an attempt to suggest that the easement was to receive water, and that did not actually require the pump, or the electricity, because water would naturally flow from the borehole onto RL anyway. This was ruled out partly because it was an attempt to introduce a line of argument by the back door on appeal, contrary to general rules on appeals which I won’t discuss here, but mostly because the easement was actually in terms of receiving water through the pump and pipes on FF. The fact that it might be possible to get it in some other way was neither here nor there.  Secondly, there was a disallowed argument about the alleged unsafe condition of the water which was coming up from the borehole: apparently it was contaminated by arsenic. This was ruled out of order, again, because it was being brought in in a procedurally inappropriate manner. An interesting potential issue though: what if something which starts off as clearly ‘accommodating’ the dominant tenement turns nasty and damaging? Does ‘accommodation’ cease then, bringing down the whole easement? Not according to  Zacaroli J: even if this had been shown, he did not think that the easement ‘fell away’. It was not necessary to get into this in great detail (sadly for Land Law fans!) but he suggested, almost in passing, that it would be particularly unlikely to change our view of whether the easement ‘accommodated’ in these circumstances:

‘37. …I do not need to decide this point, but I doubt that this requirement is intended to impose a further qualitative or quantitative requirement that the right granted in the particular circumstances is one which does in fact provide a benefit. Moreover, if (which is not disputed) there was a benefit to Rashwood Lodge when the water easement was granted in 1982, it is difficult to see why, assuming there are now unacceptable levels of arsenic in the water – the validly granted easement will have for that reason fallen away, particularly if the problem with arsenic in the water is temporary or can be got around.’

Anyway, Bradbury was found to have been in the wrong, and to have interfered with an easement which did bind FF and its owners. And, just in case anyone was still fretting about positivity and negativity, and the fact that the outcome would be likely to be that Bradbury would have to take positive action, Zacaroli reassured us that:

  1. Although an easement does not impose positive obligations on the servient landowner, if the owner of the servient land is found to have wrongly interfered with a negative easement, it may be open to the Court to require it to take some positive action to undo that which it did via its wrongful interference.’

 

So there we are: positively crystal clear, and without a trace of arsenic; a case about boreholes which is not wholly boring.

 

GS

15/11/2023

 

[i] First instance: [2020] EWHC 3906 (Ch) DJ Shorthose.

[ii] True: ‘14. Any ancillary right must itself, however, be capable of subsisting as an easement: William Old International Limited v Arya [2009] EWHC 599 (Ch), per HHJ Pelling QC at §31.’

Image – general suggestion of electrical power: Photo by Frames For Your Heart on Unsplash

‘Frenzy’ and Fatality in Fourteenth Century Flore

Here ( JUST 1/635 m. 38 (1MG 0745)) is an interesting case from the Eyre of Northamptonshire, 1329-30, which I saw in passing today, and which seems worth noting for that niche demographic of people who are interested in women, things medieval and things legal. Somebody may have discussed it, but in case they have not, this is what the record says, in quick and dirty translation …

The jurors of the hundred of N[ewbottle Grove], Northants, presented to the eyre the following story: Walter Bunt, who was not in his right mind, as a result of frenzy [infirmitate frenetica detentus], hit Leticia Bellawe at Flore in the head, and she died fifteen days later. Walter was arrested and brought to trial. He pleaded not guilty. The jury said that, on the day in question, which was very recent, Walter was affected by this ‘frenzy’ [infirmitate frenetica laborans], and he was alone in his house at Flore with Leticia, who had charge of him [que ad custod’ ipsius Walteri extitit deputata]. Walter, in his madness [in furiositate sua], grabbed Leticia by the head and threw her to the ground, then took up an iron candlestick, and hit her on the head with it, while so afflicted [in infirmitate sua predicta], and she died of it in this way, not through felony nor malice aforethought. Walter was sent back to prison, in the custody of Thomas Wake, to await the king’s grace.

 

There is no particular surprise in the fact that Walter’s mental disturbance was regarded as likely to result in a pardon from the king, nor in the jury’s apparent determination to move the authorities to mercy in this case, with their repeated insistence that actions were done whilst Walter was not mentally competent.[1] (We will leave the interesting distinction between an ‘infirmity’, ‘frenzy’ and ‘fury’, and the linking verbs about being ‘detained/held’ by a condition of the mind, labouring under such a condition and just being in a condition). What I want to draw out is, rather, the role of the unfortunate Leticia. I am intrigued by the description of her as deputata – assigned, ‘deputed’ – to take care of Walter. This strikes me as a rather official-sounding description: she was not merely looking after him, but she had been appointed to do so. If we take it at its most formal, could this be an example of a woman having some sort of court-mandated appointment? We know that those with mental disturbances were committed to their families at times, but it is not apparent that Leticia was related, or married, to Walter (and this is the sort of detail which is usually mentioned, in relation to women). So – an intriguing possibility with regard to women’s legal roles, even if far from clearly proven. Even if this is not any kind of official appointment, it does look as if somebody thought that Leticia was capable of taking care of a man suffering from some sort of mental health problem, which probably says something about wider ideas of women’s capacities. I am left wondering how such positive views might have been affected by the tragic outcome of this particular case of a woman being put, or left, in charge of a male detainee?

 

GS

12/11/2023

 

[1] There are other references to the effects of insanity on liability – including some interesting material on the effect of fluctuating insanity – in Sutherland’s Eyre of Northamptonshire 1329-30 (1981), 188, 196, 215-6. Note also what might have been a less kind attitude to those with mental disturbance in the same eyre, here: JUST 1/632 m.40d IMG 0926 – a man who was accosted by a woman who was not in her right mind, whose attack seems only to have been verbal, and who was accused of throwing a stone at her head, killing her, was found not guilty. Of course, perhaps the whole thing was untrue, but if not, interesting.

Written on the bodice: judicial scorn for, and salivation over, the secrets of women

The Western Mail, 14th August 1899 carried a story which says much about the press and the legal profession of the period. The account of a relatively small-value case in the county court at Cardiff bears the headline ‘Judge Owen and the ill-fitting bodice’. This manages, by juxtaposing a (male) judge and clothing assigned feminine, and fairly intimately feminine at that, to provide a certain amount of transgressive titillation. There is more excitement at the sub-heading, ‘Cardiff high bailiff called in as expert’ – another man, of course, and why, we are supposed to wonder, is he an expert: a certain fondness for ‘the ladies’, or further suggestion of gender transgression?

We are left in no doubt at the reporter’s view of the whole thing as a joke by the opening of the report itself: ‘Nothing in the county-court is productive of so much fun as a case in which the parties are a lady dressmaker and customer, and the subject of litigation an alleged ill-fitting dress.’ Ho ho: ‘the ladies’ – what are they like? Squabbling about dresses, indeed! The reporter certainly seems to enjoy himself, reporting the banter of the judge – Judge Owen, a favourite of the Welsh press of the time – and other men in court especially the high bailiff, whose view of the work on the dress in question is requested, the judge claiming ignorance of such things. While a modern reader would not (I would hope) be as impressed with the clubby misogyny and trivialisation of women which the case reportedly embodied (or embodiced?), one aspect of the banter is of some legal historical relevance: when the case requires him to decide on the quality of the dress, the judge drew laughter from those present in court by saying that he ‘considered that they should have a jury of matrons for these cases’.

Now, the jury of matrons was a group of women tasked with ascertaining whether or not a female convict  who had been found guilty of a capital felony was pregnant enough for her foetus to have quickened, this being a reason to defer the execution, or, latterly, to commute the sentence.[i]  It was still in use, though criticised as inappropriate in a world which put ever greater trust in professionalised, mostly male, medical practitioners. This report of the case, in its joking suggestion that there should be a jury of matrons for issues regarding womanly attire, reflects both knowledge of the institution, and also perhaps an idea that the proper sphere for the expertise of women was located in a less important area than the presence or absence of life: frothy superficiality, rather than deep and hidden truths.

In fact, this jokey script of a judge throwing his hands up in the air at the mysteries of women’s clothing,[ii] and suggesting that a jury of matrons would be a good idea in such cases, can be seen in other reports. I cannot claim to have made an exhaustive search, but there are certainly earlier examples of it, not infrequently stitched together (yes, I was pleased with that imagery!) with rather creepy judicial comment or behaviour which, in fact, suggests that women, and their secrets, are, in fact in the male domain.

An 1864 edition of The Illustrated Usk Observer and Raglan Herald carried a report of a London Sheriff Court case involving a disputed millinery bill (were the hat prices ‘reasonable’ or ‘exorbitant’? Only ‘the ladies’ could say … thus we have a humorous call for a jury of matrons). A slightly different story was the South Wales Echo report in 1887 of an English case involving bridesmaids’ dresses. In this case, the ‘humorous’ wish by Judge Turner, in Ripon, for a jury of matrons was to sort out the custom with regard to whether or not bridesmaids were expected to pay for their own dresses to be made up.[iii] Tame enough, if trivialising.

We get into more leering territory with the Weekly Mail of 9th July 1887 which reported a similar remark from Kekewich J, when faced with a case involving ‘dress improvers’ (that’s bustles to us) but also features some icky banter about garters. The South Wales Echo elaborated, noting  ‘the Attorney General’s eloquent description of “the human frame divine”, and the appearance of the bench covered with bustles and dress improvers of every conceivable shape and size’.[iv]  Similar need-for-a-jury-of-matrons things were said by Hawkins J in 1893, according to a report in the South Wales Echo (which enjoys telling us -or not quite telling us – that the case involved some sort of women’s underwear). Then there is a report in a 1902 edition of the Cheshire Observer, relating to a Birmingham case on the quality of work on women’s clothes. This trotted out the ‘we need a jury of matrons here’ line, but also showed the judge (Judge Whitehorne) airing a few judgey views on women’s fashion – the front of the coat in question (a plush sac-coat … no, me neither) was ‘vulgar’ because of its hooks (No idea – too revealing? Too shoddy-looking? Certainly suggests a questionable fixation with women’s … fronts … on the part of the judge).

In 1905, Judge Owen was, reportedly, at it again. The Cardiff Times reported another of his cases, involving allegedly defectively made women’s clothes, under the evocative/emetic headline ‘A Patchwork Skirt: Judge Owen sighs for a jury of matrons’. As well as making the matrons comment, we are ‘treated’ to the judge’s banter about just how long or short the skirt is, with rather excited questioning about whether it covered her knees, whether she wanted to show her ankles etc.

Possibly most creepy of all is the combination of ‘we need a jury of matrons’ plea plus judicial over-involvement of an actual gropey nature, seen in a report of a case of 1907, appearing, for example, in the Evening Express. This was a case involving a woman, Marion Draughn, who was something of a celebrity, due to her involvement in an earlier breach of promise case. It was, again, about whether or not somebody had to pay, if clothing was supplied, and was not what the customer wanted. We are informed that Deputy Judge Bevan, in the Westminster County Court, had Miss Draughn go off and change into the ‘costume’ in question, and proceeded to run his hands over her to determine the fit or lack of it. Eurgh.

So what? Well, it is not very surprising that women were treated with scorn, with regard to their capacity as jurors or the clothing they wore. Assuming that the reports are not completely inaccurate, however, they do seem to me to give some interesting glimpses of judges flashing to posterity rather more of their innermost thoughts about women, their bodies and their fascinating garments than they might have meant to expose.

GS

10/11/2023

[i] There is a lot of good work on this area. A very good place to start on the institution in its later years – covering this period – is K. Crosby, ‘Abolishing juries of matrons’, OJLS 39 (2019), 259–284.

[ii] (resonating, to the medievalist, with the ‘secrets of women’ idea)

[iii] Added hilarity was provided by the fact that the bridegroom was 73 years old (no mention of the age of the bride, but the word ‘elderly’ did appear to apply to her too).

[iv] It is worth noting that this intellectual property case was not all that trivial in financial terms: the owners had sold £1,500 worth of the items in a year. There was some joking about ‘prior publication’ involving ridiculing of bustles too. It is, of course, quite hard not to see them as preposterous, but, equally of course, ridiculing women’s fashions can have a profoundly misogynist tone. See also the reference to this case in another relating to ‘trouser-stretchers’ in the same year, which reported that one of the lawyers, Mr Aston KC, had suggested that a ‘jury of mashers’ might be used here. I had remembered this (from, I believe Tipping the Velvet), as a male-impersonating-female, but the OED suggests that we should translate it as a jury of leering, creepy men, or at least dandified men.

 

Image – phwoar, eh? Get a load of this – it’s a bodice, courtesy of Wikimedia Commons

Feu[dal] and [not] far [enough] between

I know that there are much bigger issues out there at the moment, and that there are even bigger problems with leasehold itself, but, politicians and journalists covering planned leasehold reforms, can we STOP CALLING LEASEHOLD FEUDAL?!. Accepting (as some historians don’t) that ‘feudal is a useful term, the lease isn’t, and never was. Yes, there were leases in the medieval world being referred to in a vague, flabby, days-of-yore, way, but they just didn’t occupy the same position as they have done in more recent times. ‘Medieval serfdom’ did not involve leases in anything much like the 1925 Law of Property Act s. 1 sense. ‘Capitalist’ is the word you are looking for.

I had high hopes that somebody had had a word, when I saw the Observer headline for the story – OK, they were pushing the ‘antiquated’ line, despite the fact that the worst abuses seem to be relatively modern, but ‘unfair’ is appropriate, but reading on, we have the full package of ‘feudal’ and William the Conqueror. How is this, from that piece, for a bit of not-joined-up history:

This is a form of rentier capitalism that dates back to the 11th century, when the feudal system was enshrined in law by William the Conqueror. Before the Second World War, almost all flats were rented rather than owned. The number of properties owned on a leasehold basis expanded hugely from the 1970s onwards as large houses were broken up into smaller flats and buying flats to live in became commonplace.

Nothing much happened in relation to leases, nor to land tenure, nor property practices in general, between 1066 and 1939 … ???

There is, I suppose, a little more justification for the ‘feudal ground rent clauses’ variation, in spirit, if not in letter, if the idea is that they are within the control of one party, and can be varied, in the manner of medieval villein services (though, even here, a decent medievalist could tell us that, while there might not be much in the way of common law control on services at a very early point, custom did rather a lot to curb arbitrary changes). And, usually, the ‘feudal’ label seems to be attached to leasehold in general, rather than this aspect of it. (Forfeiture is also picked out as having feudal associations at times: again, not terribly accurately).

And yes, it matters – both in terms of history and in terms of the present. In terms of history, it is a classic example of contempt for the people of the past.  As others have pointed out with regard to the tedious descriptions of violence or barbarism as ‘medieval’, this chronological ‘othering’ trick is a way to avoid seeing the wrongs and problems of the present. Ludicrous ground rent clauses are not the fault of greedy modern landowners out to exploit those not in a position to refuse, they are all down to medieval legal structures and William the Conqueror. Lazy.

Good to get that out of my system!

GS

5/11/2023

Image – in honour of the date, but also, the state of my head when confronted with another ‘leasehold is feudal’ reference. Photo by Jonas Frey on Unsplash

 

Judges, character and credibility

We legal historians have occasion to look at an array of different sorts of reports and records of cases, from the terse medieval plea rolls, via Year Books with their play-like format, through the slightly anarchic years of printed reports of varying standard and reliability, to the fuller, somewhat more easily understandable, reports of the nineteenth and twentieth centuries. There have been developments in recent years, however, which will one day need to be considered as part of a full history of the communication of legal decisions, via ‘official record’ and report. I am thinking of the huge expansion of material relating to cases which is now recorded and published in an easily accessible way. I think that it is arguable that the advent of the prepared essay style judgment, published online, has brought with it legal historically important changes,

One development which has impacted upon my professional world is the practice of publishing fuller and fuller judgments. This expansion is very noticeable in my main ‘day job’ legal subject, Land Law. I presume that, in the case of judges at lower levels in the hierarchy, the trend to longer judgments is prompted, at least in part, by a wish to ensure that, should a case be appealed, the lower-level judge would not be accused of having dealt with some point inadequately. Clearly, we are not the main consideration of judges, in their decisions to be more or less verbose, but it is something of a pain for those of us who want to encourage students to read cases (good luck with some of the massive proprietary estoppel ones in particular!).

It is not just length and the problems that presents for law professors and law students which is worthy of note, though: it is what is included. An issue I have mentioned before is that of judicial comment on witnesses, and the practice of judges including in written judgments and putting out into the public domain their views on the witnesses who appear before them. While judges in cases in which they sit alone, and in which there is a need to decide between different versions of the facts, must clearly make a decision as to which witnesses to believe, and should, in order to give a reasoned judgment, state which witnesses they regarded as more accurate, I am not convinced that it is necessary to go further into character assessment, publishing to the world comments on parties and non-party witnesses which might be hurtful, offensive or damaging to the individuals who have given evidence, and may well (I imagine) not have been expecting this sort of material to be disseminated.

Yesterday, I was reading a particularly interesting example of the genre: Gilpin v Legg [2017] EWHC 3220 (Ch). In this case, which concerned leases, licences and beach huts, the judge (HHJ Paul Matthews, sitting as a Judge of the High Court, in Bristol) commented in the following way, on various witnesses:

The father of a claimant was a ‘careful witness, who gave clear evidence. He accepted on occasion that his memory was at fault and accepted correction when it was shown that he was mistaken. He was doing his best to assist the court.’ (7)

A male claimant (a doctor) was ‘a slightly nervous but clear and straightforward witness. His memory appeared to be good. Once he got into his evidence he became more relaxed and comfortable. He was obviously truthful in the evidence he was giving.’ (8)

A female claimant was ‘a quiet and nervous witness, but rather prickly and apt to put up a barrage of words, often putting matters obliquely, and shying away from confrontation. Whilst I do not think that she told me any deliberate untruths, indeed was trying to help the court, I think she has convinced herself that she has been hard done by, that she is in the right, and so she interprets everything in that light.’ (9)

Another male claimant ‘gave clear and straightforward evidence, and was obviously trying to assist the court.’ (10)

A male defendant was ‘an intelligent and quick, even feisty, witness who saw the point of the question immediately, and gave clear evidence in response. Although he too believes strongly that he is in the right, and that does colour his evidence to some extent, he sometimes gave evidence against his own interest. On one occasion his tone became rather aggressive, perhaps through exasperation. I accept that he was otherwise trying to help the court and that his evidence was truthful.’ (11)

A male solicitor (the defendant’s litigation solicitor) ‘was a professional but slightly excitable, even enthusiastic witness.’ (12).

Another witness was ‘an elderly lady’. (13)

Though there was a need to express a view on the parties’ evidence, I am not sure that anyone needed the comments about a defendant’s ‘feistiness’ or why he might have adopted an ‘aggressive tone’ at some point’ or a claimant’s ‘prickliness’. I have to say that I would be fairly nervous – and quite possibly ‘prickly’ – if I had to speak in court, and knew that comments about me were going to be published in this way. And I am not sure that the ‘elderly’ or ‘excitable’ comments, in particular, were at all useful.

It does not seem to me that this sort of material helps anyone involved in modern legal practice, or that proper transparency and reasoning requires it. Of course, I am not just thinking about the present, and whether this is a good way of handling the assessment of credibility. There are legal history angles! The inclusion of this sort of material makes for an interesting comparison/contrast with some of the early reports of medieval common law cases, in which there are personal comments, but these relate to serjeants pleading before the Common Pleas or King’s Bench, rather than witnesses or parties. I do wonder what legal historians of the future will make of this sort of commentary. It does strike me that they might find it interesting to survey this sort of comment, cross-matching with characteristics of the commenting judge, and such matters as gender, age and professional status of the witnesses being subjected to these published assessments. They might well conclude that early 21st century judges were – in the formulaic incantation – ‘doing their best to assist’ legal historical scholarship.

GS

4/11/2023

Image – I am going with ‘prickly’ …. Photo by Klara Kulikova on Unsplash

Sankey Doodle

Looking for an article in the same volume of a journal, I stumbled upon this article, and it seemed worth reading and noting, for future legal historical thought. It is the text of a speech by Viscount (John) Sankey, delivered to an audience of historians, entitled ‘The Historian and the Lawyer: their aims and their methods’.[i]

Who was the author? Well, he is a familiar name to me from long-ago undergraduate legal studies, as a judge and Lord Chancellor of the past, and further details of his life (‘public’ school, university, prominence in the legal profession, politics, his long bachelor life and oddities, including something of a tendency to sulk and cry, in the face of professional setbacks, for example) can be found in the entry in the Oxford DNB.[ii]

He had studied history as well as law, and not long before this speech was published, he had made a very famous decision and pronouncement on burdens of proof in criminal law in Woolmington v. DPP (1935)[iii] – a case which required engagement with the law and legal writings of the past in some detail. Not a great deal of this comes through, however – and much of the material is more of a confident rehash of the sorts of material a reasonably well-informed general reader of his era, and with his schooling, might have known (see: tendency to equate history with war, and scattering of classical allusions).

He does note the existence of academic legal studies, and mentions Holdsworth and Maitland, but is really interested in the comparison between legal professionals and historians. Legal history seems to be an instrumental thing, rather than a pure academic pursuit:

‘one of the most important branches of history is history of the law itself, without which no lawyer’s knowledge can be really complete’ (97).

He presents some (rather banal) similarities and differences. Similarities include the idea that: both the lawyer and the historian are ‘taking part in an investigation of facts … to establish … truth’ (98);[iv] and also engaged in constructing a narrative (102); both are likely to have ‘stumbled into’ their profession, and to desire ‘the reputation which attends upon superior excellence’ in their chosen profession (98 – and note that everyone is assumed to be male); both have to find facts (99).  Differences include the fact that historians tend to be looking at documents while lawyers have to deal with living people’s evidence (99).

There are a few random throw-aways which give a little insight into his attitude to the law of his own time. Litigants in person are ‘generally tiresome’ (100) for example. I am also intrigued by the way of thinking displayed in one of his more unusual flights of fancy, trying to imagine historians being more like lawyers,[v] suggesting that it might be worth trying to get at the historical truth around the Great War and its effects by having a rich American[vi] fund a collection of chapters by people from various countries involved/affected. This is conceived to be something along the lines of a jury (101). To be fair, he does not actually think it would produce a useful ‘verdict’. His view of both law and history is that they should eschew ‘partisanship’, but not ‘avoid the pull of personality’ (106 – great men then!).

It ends strongly (in my view), though, with a more interesting distinction between the importance of the influence of historical and legal endeavours, (noting that much damage can be done by blinkered, nationalist, interpretations of history, particularly since historians, unlike lawyers ‘address a jury of the young’ – 107) and, perhaps with a certain wistfulness, as he contemplated his recent demotion from the Woolsack, a final distinction between the historian, who ends his working life with the ‘friendship’ of the books he has written, and the lawyer who has no such companionship.

 

GS

21/10/2023

 

[i] History 21 (1936) 97-108.

[ii] R. Stevens. ‘Sankey, John Viscount Sankey, 1866-1948, lord chancellor’, ODNB online.

[iii] [1935] AC 462 – if you’ve studied criminal law, you know it … at 481: ‘Throughout the web of the English criminal law one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’ Looking this case up, I was reminded (a) that it was tried (on one occasion) in Bristol and (b) that it was a wife murder case with a rather unconvincing-sounding defence. There was some appeal to historical legal texts in the case – and Sankey discussed these, Coke, Foster and Blackstone in particular: see 474 – 480. I was also surprised to see that it was not seen to merit its own chapter in P. Handler et al. (eds), Landmark Cases in Criminal Law (Hart, 2017). I see, though, that there is a very interesting recent treatment here: K. Crosby, “‘Well, the Burden Never Shifts, but It Does’: Celebrity, Property Offences and Judicial Innovation in Woolmington V DPPLegal Studies, 43: 1 (2023), 104–121.

[iv] Note the queasiness-inducing quotation about the search for truth, from Bacon’s ‘Essay of Truth’ which mentions the ‘wooing or love-making of it’, cited with apparent approval at 98.

[v] To me, it feels as if the energy is a little bit this.

[vi] Reference is made to Maecenas – look! I went to that sort of school – aren’t I great?!

 

Image: the man himself, smouldering to camera, if being slightly disrespectful to that law book under his elbow – I am, naturally, wondering what it is …  c/o Wikimedia Commons.

a shadow

Take cover[ture]

CW: Yes, I am going to talk about patriarchy again. Any delicate little flowers liable to stamp their feet/roots at that should look away now.

While my mind is on coverture, let me add this – a bit of thinking about the way in which patriarchal ideas continue to exert influence long after the point at which it is generally supposed that they were abandoned. Despite assumptions that the doctrine of coverture was killed off with the changes brought in by late 19th C women’s property legislation in particular, the idea of coverture continued to dribble its poison into the law and life of the twentieth century, and beyond.

With my modern law lecturer hat on, I want to confirm that today’s law students, if they follow their reading lists, will encounter the idea. There are statements about the doctrine being ‘defunct’,[i] but though much of its former substance is gone, coverture has never been abolished in explicit terms in England and Wales. And that matters.

There are some surviving statutory provisions which refer to it. The one I come across every year when I am preparing my easements teaching in Land Law is the Prescription Act 1832 s.7. It is true that this statute is rarely used, but it remains grating and insulting to see the continued promotion of this language in an official source. It would probably also surprise people to learn that it is still felt that there is a need to define ‘coverture’ in the glossary of very recent current government guidance on matters of tax. There is also one attempt to use a (thinly disguised) coverture argument which I come across every year in Land Law, in the leading case of Williams & Glyn’s Bank v Boland. There was an attempt to argue that a wife’s presence in a house was not to be taken as ‘actual occupation’, but as a ‘shadow’ of the occupation of her husband. So now he is some solid object interposed between her and the sun (the law?), rather than a smothering blanket (well, that is how I have always visualised coverture), but Lord Wilberforce made the connection between this argument and the coverture-as-unity idea.[ii] More modern legal arguments in England and Wales do not seem to approach coverture reasoning quite so closely, but it is interesting to see coverture being brought up in a slightly different way, as ‘historical background’ to modern decisions, and perhaps with an undertone of the present elite congratulating itself by reference to (a simplified view of) the past. Thus, in  A NHS Trust v X [2021] EWHC 65 (Fam), in the Family Division of the High Court, in a case which was not anything to do with marriage and its effects, but was about whether a Jehovah’s Witness child could refuse a blood transfusion, a judge, at 56 nevertheless shared with his audience the statement that ‘Once upon a time the [feme covert] …, by reason of her coverture, was treated as lacking the capacity she had had as a spinster and only recovered as a widow or on divorce (feme sole).’ This, it seems to me, shows a lasting fascination with the idea of coverture, and also suggests that modern lawyers are not so far away from medieval lawyers, who, if the reports which made it into the Year Books are concerned, certainly enjoyed talking about coverture, even in cases in which it was not strictly relevant.

And so to the usual question – so what? Well, in my view, the fact that there are these lingering shadows of the diminishing and discriminatory doctrine of coverture still to be seen should spur legal historians on to explore its history, to show its continuities and discontinuities, to resist easy narratives of progress: we are fooling ourselves if we think that there is such a thing as a ‘clean break’ from the patriarchal (yes, said it again!) institutions of the past.

 

GS

1/10/2023

[i] See, e.g., Armstrong v Onyearu and another [2017] EWCA Civ 268; [2018] Ch. 137, argument of  Simon Passfield.

[ii] [1981] A.C. 487.

 

Image – a shadow, probably not in actual occupation. Photo by Rene Böhmer on Unsplash

St Dwynwen's Church, ruined. If you know, you know.

The embraces of the past

(I am not sure that this one is ever going to see the light of day as a proper REF-able ‘output’, but I enjoyed writing something on aspects of the common law’s treatment of married women it for a conference on coverture in 2022, and I feel moved to put some of it ‘out there’, for anyone who feels inclined read it, so here we are: some marital musings)

‘Coverture’ is a word well known to legal historians: the explanation for many limitations placed upon married women, and sometimes something of an excuse to leave them out of consideration, and get on with telling the more agreeable story of rises, triumphs and men. Nevertheless, the last decade or so has seen some particularly keen excavation and questioning of the nature and place of ‘coverture’ in legal history. Building on that work, I have a few thoughts.

I am going to start in what might seem like fairly unpromising territory to anyone but the most obsessive medieval property law fan: pleading in relation to voucher to warranty. And if anyone needs a refresher on what voucher to warranty is, this is something which might happen in a land dispute: a defendant is calling on somebody to back him up, and say that he does actually have a claim to the land in question. Sometimes that backer-up, the ‘vouchee’, does not want to take on this potentially onerous responsibility, and might ‘counterplead’ (i.e. argue that he should not have to) and so there would be a trial within a trial, to sort out that matter.

We can see an example of this counterplea to voucher to warranty in a land case from Herefordshire from 1292 – a mort d’ancestor case, in which one party (Ralph de Toni) claims that he should have [seisin of] some land, currently held by Roger son of Richard de Hereford, because it was held by his (Ralph’s) aunt Margery at her death, and he is next in the conventional line of inheritance. Roger was not having it, and vouched to warranty Thomas, son and heir of William de St Omer. Why should Thomas have to warrant? Well, the story was that Roger’s father, Richard, had been granted the land by William de St Omer and Petronilla his wife, by a charter with a clause which said that William, Petronilla and their heirs would warrant Richard and his heirs – so they committed themselves and their heirs to supporting Richard and his heirs if the latter faced a legal challenge of this sort. Thomas did not want to warrant, though. He found fault with Roger’s pleading: pointing out that the charter was in the names of William and Petronilla, and though William was dead (and so was represented by Thomas), Petronilla was alive, and should also have been vouched, but had not been. Roger tried to say that it was fine to leave her out, and he had not made the sort of mistake which would mean his case could not succeed. His argument was that even though the charter was under names of both William and Petronilla, it only ‘had vigour’ under William’s name. Why? Because [and here comes the ‘coverture’ bit at last] Petronilla could not oblige herself by charter, as, at the relevant time, she fuit inter brachia Willelmi viri sui’ (was within the arms of William, her husband). It was found, however, that, in this case, the ‘‘in his arms so effaced and irrelevant’ argument did not win. At law this was a joint transfer, so both William’s representative and Petronilla should have been included. The immediate outcome was that this was a bad voucher and Thomas did not have to warrant Roger.[i]

There are other quite interesting aspects to this case, but let us focus on this idea, this formula, of a wife being ‘in her husband’s arms’, and unable to do things. It seems that this was not a complete ‘one-off’, nor a factual statement about Petronilla actually being within William’s arms at the key moment, but a juridical term: there was a similar usage in a French-language Year Book report, attributed to 1311, and to everyone’s favourite cantankerous early 14th C judge, Chief Justice Bereford. This was another voucher to warranty case, and, once again, a husband and wife had transferred some land to X, defendant in a land action, and X vouched only one party – here, the wife’s heir, the wife now being dead but the husband alive. It was argued – successfully – that both the husband and the wife’s heir should have been vouched, because the wife, who was, at the time, ‘enter ses bras’ could not make a transfer of land on her own.[ii] [Substantive point QI – both parties needed].

That is a lot of land law to get to [a fairly arcane legal point and] two little phrases. Why do I think these cases, and this ‘within his arms’ business, are interesting? Well, first of all, I think these examples show something of the contexts in which ‘coverture’ type questions could arise in medieval common law. These are hardly big, exciting cases dealing head-on with the patriarchy and the rights of women: the reports show us that these are instances of men arguing about land, looking for a technical mis-step in pleading or procedure. Nobody really cares about Petronilla in that 1292 case: she is a device. It seems important – telling – that ‘the coverture stuff’ quite often comes up on very small pleading points, not big ‘rightsy’ questions.

Secondly, there is the image itself: the wife in the husband’s arms. What does that specific image suggest, and how does it relate to existing scholarship on ‘coverture’? It seems to me to be very ambiguous: should we be seeing it as an embrace or a restraint? Should we be thinking vertically or horizontally? There are resonances with the formula in medieval ‘criminal’ law, in appeals (individual prosecutions) brought by a widow for the killing of her husband: until the later 14th century, she had to claim that he had died ‘in her arms’. The ‘in his arms’ formulation is a bit different to the better-known expressions relating to married people in medieval and later legal sources, with their ideas of unity or domination. ‘Within his arms’ seems to me to be more complex, and more obviously temporary. In my view, it reinforces the argument – made by others[iii] that the central idea of ‘coverture’, or the husband/wife relationship at common law was unsettled in the medieval period (though within male control, since the power in that embrace, to contain, or to release, was all with the man).

And does it matter, this argued-for unsettled nature of medieval ‘coverture’? Is this just some academic navel-gazing, disappearing up her own backside and furiously ‘nuancing’ things long gone? It does seem to me that it is important to keep making the point that some of the apparently monolithic, unchanging, institutions and ‘doctrines’ of the common law were not inevitable, nor did they descend, fully formed, without being adopted and adapted by individuals and groups with influence over the content of the law, who saw in them some advantage to themselves and their view of the way things should be. Throwing back the sometimes lazily-arranged covers, exposing the complexity the common law’s treatment of women, appears necessary, both to do what we can to understand the conditions (physical, legal, cultural) in which countless women lived their lives, and also to recognise the continuation into our own lives and times of some ways of talking about, thinking about, and behaving in, marriage and other domestic relationships.

And so, dearly beloved, will I continue on my obscure little way, going on about this women stuff, and possibly even using the word ‘patriarchy’ from time to time?

I will.

 

GS

30/9/2023

 

[i] JUST 1/303 m.21.

[ii]Seipp 1311.21

[iii] See, in particular, Married Women and the Law : Coverture in England and the Common Law World, edited by Tim Stretton and K. J Kesselring, McGill-Queen’s University Press, 2013 (editors’ very helpful introduction, and c. 2 (S.M. Butler).

The nun and the notary

A while back, I wrote a short piece about medieval nuns being abducted, and/or eloping from their convents (you can see it here). A small footnote to that is this case, from the King’s Bench roll of Michaelmas 1442, which tells a nun-abduction story with some interesting variations in the narrative.

An entry on KB 27/726 Rex m.4 (AALT image 0275), which you can see here,[i]  notes that a Middlesex jury made a presentment (accusation) in relation to a certain John Andrew of Huntingdon, notary. They said that, on 1st May 1441, John had feloniously raped/ravished[ii] and abducted Elizabeth, a nun of the house of Fynchyngbrook, Hunts, [Hinchin(g)brook(e)] in the Strand, and, having abducted her against her will, he kept her for the following year, living an immoderate (or wanton?) life (luxuriose vivendo), reducing the level of divine service in the said church (or that’s my best effort!). In a familiar pattern, a great deal of procedural toing and froing follows, and in the end Andrewe is acquitted.

An anticlimax, but so many questions!

First of all – we can’t help but ask ourselves, can we? – what was the truth of the matter? Complete pack of lies? Abduction and then some sort of acquiescence? Abduction and continued objection? Elopement? If this whole story had any truth in it, was she meeting the notary on some official, legal business? If Elizabeth was indeed a nun of the Benedictine priory of Hinchin(g)brook, her convent seems to have been in a bit of a sorry state in the 1440s, and the possibility that it might go out of business seems to have been recognised in a royal grant later in the decade. As ever, we will never know.

Secondly – what is going on with that narrative? Why tell us about the alleged style of life of Elizabeth, post-abduction? Why mention the bit about diminution in divine service as a result of the abduction? This all seems to be a muddle. The abduction of nuns was an offence under the statute of Westminster II 1285, c.34, in any case – there was no need to give an account of the damage caused by the nun’s absence. The immoderate living part here seems to be a matter of general misogynist mud-slinging, rather undermining the apparent fair-mindedness of the statement that that the abduction was contrary to Elizabeth’s will. Can a person can live luxuriose without their co-operation? And the bit about diminution in divine service is worth some thought: I would imagine that it was influenced by several decades of bedding-in of the Labourers legislation, focused as it was on withdrawal of services which were due, and loss caused thereby. But a nun was not really equivalent to an ordinary labourer (for who was her employer?), nor (I think) to a male cleric who had covenanted to sing. So perhaps this was a bit of a non-starter, and that was recognised. There does not seem to be a connected law report, sadly, so there is no sign that this issue got the full court-room debate treatment. So off it goes onto the intractable mystery pile –  I will be interested to see whether there is any other information out there on either of the alleged parties, or the events in this story, but sometimes you just have to let things go.

 

GS

23/9/2023

 

 

Image, Wikimedia Commons

[i] See also the King’s Bench Indictment File for Trinity 1442, here.

[ii] rapuit