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.

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

Is this burning an eternal flame? Probably not, no, or: the shearman’s mysterious appeals

A case to round off January, which turned up in today’s file sorting. I think I came across this when I was writing about dwale a few years ago, and have never found a place for it, so here’s a bit of a weird one, from a King’s Bench roll of 1346: KB 27/343 m. 28 and m. 28d (AALT IMG 8042, 8397)

It’s a record of the accusations made by an approver – i.e. a man who confessed his own felony, but brought accusations (appeals) against another or others, in the hope that he could secure a conviction and be spared execution. Clearly, this process is likely to have encouraged a certain degree of untruthful accusation, so that, even more than usual, we can make no deductions about truth in these cases. Nevertheless, in an ontological-argument-for-God’s-existence fashion, there is something of value to learn in accounts of what the human mind could imagine.

Our approver was William de Ludham, shearman, and he was doing his approving in Bishop’s Lynn (now King’s Lynn) in Norfolk. Before the coroner, he recognised that he was a thief and a felon, and made a number of accusations – some fairly run of the mill robberies, But William’s appeals also included accusations against a clerk called Robert of Leicester, clerk, and Bertram of St Omer, Fleming. They had, he said, been part of a gang wandering about, in London, Bristol, Sandwich, Norwich, and elsewhere in cities and boroughs of England, and in Norwich at Trinity 1346, they had planned to follow the king as he went abroad, to burn him and his household, when an opportunity arose, either in England or abroad. Perhaps in connection with this fiendish plan, William said that Bertram carried with him sulphur and other materials to set off an inextinguishable fire, and Robert carried with him two containers, one full of poison, and another full of a powder which would make men sleep for three days, or else kill them, at the user’s choice.

[As so often, the ending is delayed – I am yet to find any sort of resolution]

So what?

Come on – treacherous plots, eternal flames and three day sleeping powder: obviously interesting. Working out what the flamey bit might have been does not seem impossible (firearms/artillery were just coming in at this point, remember … Greek fire … etc.), the sleeping/killing powder is a bit more mysterious. At first, I was thinking along the lines of blowing it under a door (clearly reading too many mystery novels) but I suppose it is more likely to mean something to put in a drink. What would that be? Some poppy product, perhaps? Processed dwale? I am intrigued at the idea of expertise implicit in William’s accusation – he assumed that a dodgy clerk would be in a position to understand the dosage which would work to cause sleep (and for how long) or death. All a bit wizardy, isn’t it?

Very much hoping to come across William, Robert and Bertram once more, and see whether this did ever go to proof.

GS

31/1/2021

Photo by Rahadiansyah on Unsplash

The price of contempt? Menacing a King’s Bench jury

It has been a while since I managed to marry up a record and report, but I am sure this is a Yearbook/Plea Roll match, despite some details which differ – and it’s quite a case! The Yearbook, is Seipp 1345.237rs, and the Plea Roll entry is KB 27/341 Rex m. 30 (AALT IMG 334) (roll of Trinity 1345, with later additions).

The case involved the misdeeds of (according to the YB) ‘N. the tailor of Carlisle’, and (according to the Plea Roll), Richard de Karliol of London, tailor, and Alan of Cambridge, tailor, with others unknown. They were in serious trouble for having menaced and hit inquest jurors in front of the royal justices. The Plea Roll has details: there had been a trespass case in the King’s Bench in June 1345, Alice de Legh of Tottenham v. William Brangwayn. [This is on the main roll at m. 48d,  at AALT IMG 99 – a short entry about a break in at Alice’s place, and removal of goods – with William obliged to pay damages and a fine to the king] Richard de Karliol of London, tailor, and Alan of Cambridge, tailor, with others unknown, threatened the jurors when the jurors were at the bar before the king’s justices, in order to give their verdict, and, when the verdict had been given, pursued them to the gates of the king’s palace of Westminster towards the Thames, and beat up and mistreated the jurors (one is named – John de Edelmerton) against the king’s peace and in contempt of his court, to the hurt and nullification of the laws of the land, and the king’s people. The sheriff was ordered to have Richard and Alan before the court. Richard was there in Michaelmas 1345. At first, he pleaded not guilty of all of this, and the matter was set to be put to a jury, but Richard (either because he realised that there were quite a few credible witnesses to what had happened, or else because he JUST REALLY HAD A THING ABOUT JURIES, OK?) then changed his plea and admitted that he had done it after all. He put himself on the king’s mercy. He was imprisoned while it was decided what to do with him, and the sheriff of London was ordered to take his land and chattels into the king’s hand. He was brought back into court a few days afterwards, to hear his doom. The Plea Roll notes that there had been discussions in the Chancery with the justices of Common Pleas and King’s Bench, and other faithful men of the king, while the Year Book says it was ‘the Council’ [quite what the difference was at this point, I leave to those who know their way around these royal institutions rather better than I do]. The court was sure that the trespass had been in great contempt of the king and his crown, to the injury of his peace, in prejudice of and detraction from the laws and statutes of the land, (iuris et legis), and the manifest terror of the population. The Year Book attributes the pronouncement of judgment to Thorp J. There is agreement in both sources that the sentence passed was that Richard would have perpetual imprisonment, and would be committed to the king’s prison in the Tower of London, to remain there as long as he lived. In addition, his right hand would be amputated, and his land and chattels would be seized for the king (‘into the king’s hand’, as this is put – perhaps somewhat tactlessly in the circumstances). He was committed to the constable of the Tower’s deputy/locum. The judges put off execution of the amputation, however, to check with the king what his will was.

But there it ends. Did Richard lose his hand in the end, or had he chosen wisely in recognising his misdeeds and asking for mercy? No news on that one yet! Perhaps he might have had reason for optimism – at least one other roughly contemporary episode of rowdiness in court had ended up in a pardon.[i]

There is a reference to the background of this incident in a roll for 1346 – KB 27/344 m. 2d (AALT IMG 9147). Here, William Brangwayn (who is identified as a vintner) is accused of having been behind the misconduct of Richard and the others. While it was found that Richard was working with or for William, and was in his pay, and it sounds as if there might have been some attempt at influencing the the jury in the earlier case, the later jury acquitted him on the charge actually brought here – which was to do with the assault outside court, saying that this was not on William’s orders, but on Richard’s own initiative. I wonder whether they might, perhaps have been a little scared to do anything else,

So what?

It seems to me that the two big (and intertwined) aspects of medieval law to which this speaks are (i) offences against the crown/justice and (ii) punishment.

This is all going on just before the big restatement/reorganisation of the law of treason which would take place in the Statute of Treasons 1352, and it shows some interesting thought around which offences should be considered so closely associated with the king/crown that they must result in particularly notable and symbolic punishment. This case does not use ‘treason words’, but it does include an unusual sentence of imprisonment for life, and the amputation. Why amputation of the right hand? Well, clearly this was a seriously damaging thing to do to somebody, but presumably there was some symbolism going on there too – he raised his hand against royal justice and the law, so off the hand must come.

We should bear in mind that, in terms of the offences themselves, considered apart from their setting, this does not sound especially serious violence – no ‘maiming’ wounds, no deaths, as far as the details tell us. Context, therefore, is all, and both proximity to royal justices, and to royal justice, are seen as serious aggravating factors, as well, presumably, as proximity to the king as represented by the judges, and the common law. The conversations between judges and other advisers suggests a high degree of concern, and a fair amount of doubt as to what to do with those who would disrupt legal proceedings in the king’s courts. Richard of Carlisle and his case probably deserve some more attention.

 

29/1/2020

[i] CPR 1343-5 p 270.

Discord, fraud and an attack of conscience? Some dodgy dealings with land in the fourteenth century 

As I prepare materials for modern Land Law teaching, it is interesting to think of the potential difficulties medieval people might have in guarding against losing their rights in land, in a world without the sort of registration and record-keeping which my students love hearing about so much …

The source: a 1339 King’s Bench plea roll. KB 27/315 m. 13d (AALT IMG 262)

The scene: mid-fourteenth century Cambridgeshire (and, as all pretentious reviews of films and books say, the land itself is a sort of character too. And the law. And the plea roll. Enough – on with the alleged facts …)

In Michaelmas 1338, jurors of various hundreds presented that John Allberd and his wife Nicolaa[i] held 20 acres of land in Hokyton, in right of Nicolaa, but there was discord between them, and Nicolaa went away from her husband and the area. [Alas, as our esteemed PM would say] John then died. [At this point, Nicolaa should have had the land back, or, if she had died, as seems to have been the case, then it should have gone to her heir, BUT… there was a conspiracy between an observant/nosy local and some ‘incomers’, from Norfolk, and even that London]: John son of John Riston of Hokyton, John Godefeld, citizen of London, and a certain Margaret of Norwich conspired together and in 1334, Margaret was passed off as Nicholaa (de Kelm, wife of John Allberd of Hokyton) and, acting as Nicolaa, Margaret had a false charter drawn up in favour of John son of John Riston, transferring the land to him, not to William de Kelm, nephew and heir of Nicolaa. John Riston entered by virtue of this false feoffment. [And he would have got away with it, if it hadn’t been for her meddlesome conscience]. Confessione ducta, she had gone along to the church of Hokyton and coughed to her misconduct. After this, William de Kelm had got the land as the result of a concord (no details), and the law was put on to the two male alleged conspirators.

The sheriff was ordered to bring the parties into court to hear about the misconduct. John Riston and John Godefeld pleaded not guilty (and things are still rumbling on, trying to get these two into court in 1347 – KB 27/348 m.32d (AALT IMG 1590) – I am yet to get to the end of the matter.

So what?

I know – just another unfinished case, but …

Well, you have to admire the cunning of such a plan, if it happened. It does rather point to a weakness in the system of land holding: identifying individuals who had not been seen for some time. Presumably it was plausible that one woman might be passed off as another, even in relatively close-knit areas with small populations.

I am also quite taken by the throwaway line that there was discord between the spouses and Nicolaa just exited the scene. Seems somewhat at odds with what we think we know about conjugal debts and the need to get a divorce a mensa et thoro before doing this. I suppose we would have to presume that women could leave if men were not bothered. As this case shows, though, there might be a cost to them, in terms of the risk of losing rights to the land they left behind.

(All rather far away from the bureaucracy and formality of modern Land Registration schemes, to which, I suppose, I had better return …)

GS

28/1/2021

 

[i] A moment of appreciation, please, for this fabulous medieval spelling, and I take my hat off to anyone who is able to resist pronouncing it pirate-style as NicholAAAAAAH!