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.

A place of safety? Unconventional use of a convent in medieval Lincolnshire

I am supposed to be checking proofs and engaging with the horrors of the online proof-reading tool, but somehow am not, because I found something maddeningly fabulous and tantalising in a plea roll, which just needs a quick comment. I don’t think I can sneak it into the book (Women & Medieval Common Law – out scarily soon – dread, dread) at this stage – definitely no more than a surreptitious additional reference, if it doesn’t mess up the page layout – though it could be relevant in a couple of ways (and indeed also links up with both my last book and also a couple of blog posts for more respectable places which I have ‘on the go’ at the moment).

The entry is on the Rex roll of the KB for Trinity term 1331,[i] and it relates to the case of a woman called Agatha, who was indicted for the homicide of her husband, William del Cote. So it looked as if it might have been going in the direction of several ‘petty treason’ cases which I have found, and would end with a laconic little ‘comburr’ in the margin, indicating that the woman had been sent off for burning, but no! There may well be an entry which says just that – I have not tracked down the relevant gaol delivery roll entry, if it exists – but this King’s Bench roll is at one remove from the homicide case itself, and is a presentment by jurors from Kesteven in Lincolnshire of an alleged conspiracy to stop ‘justice’ being done.

The Kesteven jurors stated that John de Camelton, until recently prior of Sempringham, John de Irnham and Hugh de Swafham, fellow canons of the said prior, and John de Nevill of Stoke, had conspired together in relation to Agatha. She had been indicted, arrested and held in Lincoln prison, until she was brought before the justices of gaol delivery at Lincoln castle. (There are no dates for any of this – helpful!) At the gaol delivery session, she remained ‘mute’ – i.e. did not plead. She was remitted to prison by order of the justices, presumably to be ‘encouraged’ to speak via the harsh regime imposed upon such accused as ‘stood mute of malice’. It was at this point that the conspiracy allegedly sprang into action. John de Camelton and the others brought a writ to have the indictment and Agatha brought before the king’s court, and, in the meantime, she was taken to Sempringham, amongst the nuns, and the jurors reported that she was still living there, and the crime remained unpunished. They had some thoughts on why the intervention had occurred: John de Camelton had been paid 200 marks and two bottles of wine.

The sheriff was ordered to summon the alleged conspirators. John de  Irham and Hugh de Swaffham came and pleaded ‘not guilty’, and put themselves on the country. The jury of knights and others said that Hugh was not guilty, so he was acquitted, but they said that John de Irnham was guilty, so should be committed to prison. (Logically, this meant that one of the others had to be guilty as well, as John de irnham could hardly conspire with himself). The new prior of Sempringham came and made a fine for John de Irnham.

Still pretty much locked down, and supposed to be doing other things, there is a limit to how far I can take this at the moment, but it does seem interesting, in at least two respects. First, there is the possibility of it representing a show of sympathy with a woman facing the awful prospect of being burnt for the killing of her husband, and who had not managed to speak for herself at her trial. Assuming that the Kesteven presentment is not a complete lie, it may be interpreted as an instance in which the accused decided, for noble, family-saving reasons – not to co-operate with the trial, in the knowledge that she might die a mistreated prisoner, or else as a situation of such trauma that it left her unable to speak up or make a defence. Alternatively, if they are right about the money and wine, it might just have been a case of corruption (albeit one with an outcome which modern readers are likely to prefer).

The second reason for my particular interest in this is that the action allegedly concerned the priory of Sempringham, a Gilbertine house in Lincolnshire, which, at this very time, was the place of effective incarceration of a figure of my obsession –Gwenllian ferch Llywelyn, daughter of Llywelyn ap Gruffudd, ‘banged up’ in this flat-land, English, convent, at a distance from her father’s power-base in Gwynedd. I delved into her history in my last book, Imprisoning Medieval Women, and have always hoped to find out more. (I also have a ‘very back-burner project’ about the many and various ways in which clerks writing records for the English crown managed to mangle ‘Gwenllian’ – the inability to handle the magnificent Welsh LL has a long history).[ii] This entry, of course, does not touch her directly, and yet it is an interesting hint both at the possibility of dubious security at Sempringham (in the sense of the crown, or royal justice, not being entirely in charge), and also at the sort of company she might have been keeping in the small community there.

The limited poking about that I have been able to do suggests that John de Camelton was an interesting fellow. He comes up in complaints and petitions suggesting further undutiful behaviour.[iii] And there seem to have been various disputes involving the priory and its (male) officials, at this point, and earlier in the century.[iv] By the time the 1331 entry was made, however, ex-prior John was described as debilis, so perhaps his rebellious days were over.[v] As for the silent centre of the story, I wonder whether I will ever find out what happened to the unfortunate (or fortunate?) Agatha. Proofreading has to come first for now, then marking, and writing other things on the January ‘to do’ list, but I will definitely be making further efforts to flesh out this story.

GS

2/1/2021.

 

[i] KB 27/285 Rex m. 14 (IMG 461).

[ii] The account of Sempringham in the in VCH calls her ‘Wencilian’.

[iii] TNA SC 8/34/1671; CPR 1330-34, p. 60.

[iv] See, e.g., Joyce Coleman, ‘New Evidence about Sir Geoffrey Luttrell’s Raid on Sempringham Priory 1312’ (1999) The British Library Journal; KB 27/278 Rex m. 27 (IMG 403); KB 27/285 Rex mm. 6, 14 (IMG 444, 462).

[v] KB 27/285 m. 12 (IMG 456-7).

‘Lunacy’ and legal records

Deep in ‘the Before Times’, back in 2019, I posted something on a medieval ‘criminal’ case with a specific and detailed ‘defence’ of lunacy, that of Alice Brytyene, from 1309. Since I have just found another one, it seemed a good opportunity to revamp and update the post, adding in the new case.

See the source image

Alice’s case is in a Suffolk Gaol Delivery Roll,  JUST 3/63/4 m.6 (AALT IMG 136). The record tells us that Alice Brytyene of Lawshall appeared in a session in Suffolk in September 1309, before William de Ormesby and William Inge, royal justices. She had been arrested because, so it was said, she had: (i) feloniously burnt the home of Simon Brytyene, her husband, in Lawshall, meaning to burn Simon in the house; (ii) broken into the barn of Pymme Brytyene in Lawshall and taken away sheaves of wheat worth 13d; (iii) broken into the oven of Ralph del Peke and taken away seven loaves of bread worth 6d. Alice pleaded not guilty to these charges, and accepted jury trial. The jurors said on oath that she was not guilty of the burglary of the barn or of the oven, nor of taking away the wheat or bread. As for the burning of the house, they said that, for seven years and more, continuously,  Alice had been furia vexab[atur] in incremento lune so that lunatica[m] infirmitate[m]  patit[ur], i.e. she had been tormented/bothered by madness with the waxing of the moon so that she had suffered from the disease of lunacy. And they said that on the seventh of July last past, Alice had been suffering from this condition [predicte infirmitate vexabatur] when she burnt down the house in question, in her insanity and not feloniously [furiose & non per feloniam] as had been charged against her. Alice was therefore acquitted of the burglaries, and (presumably in respect of the arson, though this is not stated) was to be returned to prison, (presumably in the expectation that she would be pardoned by the king).

The second case comes from the King’s Bench plea roll of Trinity term 1328 – in the ‘Isabella and Mortimer’ period of Edward III’s reign. It is to be found at KB 27/273 Rex m. 29d (AALT IMG 318), and is from a gaol delivery session at York castle, on Monday [13th June, 1328].

The report tells us that Agnes, wife of Roger Moyses was on trial for the killing of Adam son of William Moyses, at Harwood [Dale?] on Monday [16th May, 1328], having been indicted for this at a coroner’s inquest. She was asked how she would defend herself, and said that she was not guilty, putting herself on a jury. The jurors said that, for a long time before the incident, and after, and at the time, Agnes had suffered from a mental illness linked to the waxing and waning of the moon, which caused her to lose her mind to such an extent that she acted without being able to tell the difference between right and wrong (sepius prout luna crescit & decrescit tali infirmitate consueta est gravari quod ipsa amens sepius devenit penitus ignorans quid agit non discernendo malum et bono). They said that on the day in question, Adam, a 12 year old, came into the house in Harwood where Agnes was on her own, and she was suffering from the condition at that time. (laborans in infirmitate). When Agnes became aware that Adam had come in, she grabbed him by the throat and held him so tightly that he died. Afterwards, Agnes simply remained in the house until the constable and bailiffs came and arrested her. The jurors were asked whether Agnes had killed Adam felioniously and with malice aforethought, or without intention (ex amencia … vexebatur), and responded that Adam was killed through per amenciam and not through felony or malice/intention. Agnes was therefore to be sent to prison to await the king’s grace.

So what?

It is already well-established that medieval common law and communities did not hold those with obvious and serious mental disorder responsible for their actions as a matter of felony, I have not turned up a pardon for either Alice or Agnes, but I am reasonably hopeful that they would indeed have been pardoned. This would not necessarily mean a ‘happy ending’, however, since closer confinement by family members might well have been their fate after these grisly episodes.

Medieval criminal records referring to ‘lunacy’ as an explanation/excuse for violent or otherwise offensive activity are not hard to find, but usually they do little more than stating that the accused is deemed a ‘lunatic’, and it is easy to assume that the word is regarded in a mundane way, as a general label for people with some obvious mental disorder, and was rather cut off from its etymological association with the moon. These two records, however, show at least some people going further into the matter, and emphasising the lunar explanation of (some, episodic) mental disorder, explaining odd, violent, behaviour on the moon’s baleful influence upon the mental state of susceptible individuals. They make the definite and dramatically or poetically satisfying link between the waxing moon and the growing disorder, and the (sophisticated and observant) comments about the killers having suffered over a long period with a fluctuating condition.

There is food for thought about the place of the ‘insane person’ within the community as well. In the case of Alice, her community, which was conscious of Alice’s long-term disorder, would appear to have allowed her a degree of freedom, before the incident in question. Agnes was alone in a house – was this some sort of precautionary confinement, or did she live alone?) It is interesting to note that a woman was assumed capable of throttling a twelve year old male, and that Agnes’s condition must have been well enough known and accepted for it to be regarded as having persisted during the killing of Adam, despite the fact that it would appear that there were no immediate witnesses (since we are told she was alone in the house).

It is also worth pondering the fact that these were both women. My impression has been that ‘violent insanity words’ are more usually found in relation to males – furiosus, freneticus etc. are more commonly found than their female equivalents. These two ‘violent insanity’ cases which bring in the moon, are, however, about women. Now, two cases hardly amount to a basis for a theory, but it is hard not to start going off on a train of thought concerning ideas about women, the moon, menstrual cycles etc. Worth bearing in mind, and seeing whether future finds fit in with it at all. [Oh, and if we want to get really spooky and conspiracy theoryish about it, we might note that … everything seemed to happen on a Monday in these cases, that I am writing about it on a Monday, and I am .. OK, too far. But interesting, no?]

28/12/2020

Untruth in wine: a snippet of medieval medical thinking

 

See the source image

On a King’s Bench roll from Michaelmas 1434, there is an entry telling of accusations made against James Gentill or Gentyll, a broker of London [though perhaps he was a native of Genoa rather than London].[i]

The entry is an ‘error’ case – roughly an appeal in the modern sense – and notes that, in In Trinity 1432, a presentment had been made, accusing Gentyll of offences relating to the illegal export of gold to Bruges, and also with an offence involving the adulteration of wine. The latter accusation was that James and others had conspired to damage the king’s people and inflict a variety of illnesses upon them. Specifically, on 6th October 1431, and various days before and after, in the parish of St Clement Danes outside Temple Bar and elsewhere in Middlesex, they had mixed and brewed up twenty tuns of Rumney wine and twenty tuns of Malmsey wine with other corrupt wines  – Osey and other wines –  and with pitch and resin, producing 100 tuns of corrupt and unhealthy wine. They took some of it this to Westminster and Shoreditch on the 6th October, and on various days afterwards sold it to various lieges of the king, including John Taverner, John Boysse, John Bramsston, Margaret Bosworth, fraudulently affirming it to be good and healthy,  causing those who drank it to be troubled and damaged by various afflictions (diversis perpetuis langoribus), and it was particularly noted that pregnant women drinking it were harmed, their children (pueri – foetuses, presumably) poisoned and rendered putrid (extoxicati & corrupti) and then destroyed, to the great deception and destruction of the king’s people.

And …?

As ever, who knows whether the allegation was true, mistaken or vexatious, but, leaving that aside, this has a number of possible points of interest. It illustrates the action taken locally in London, and at the ‘national’ level, against dishonesty in sales, and the sale of dangerous, as well as substandard, food and drink. This took me back to long-ago research for my PhD, during which I learned some good wine vocabulary, and took a few detours away from usury and pricing laws, and into the colourful world of London punishments for the sale of dodgy food and drink (they went in for ‘educational’ and shaming penalties such as having somebody stand with a rotten fish around his neck for selling putrid produce). The suspicion that wine-merchants or wine-sellers would pass off lower quality wine as something with a higher price and reputation, perhaps disguising their misconduct by introducing other substances, in order to mimic the colour of the supposed type of wine, can be seen in London and royal regulations and pronouncements.[ii] There are some references to the fear that this sharp practice could damage health in general. This is the first time, however, that I have seen the specific allegation about damage to pregnant women and the foetuses they were carrying. There is no reason to think that medieval people would have been unable to make a link between the ingestion of contaminated nutrients and foetal damage and death, but this fleeting reference is the first I have seen specifying damage to foetuses through pregnant women’s consumption of adulterated produce as a concern for the common law.  It is one I will ponder in two of my 2021-2 research leave projects: on legal ideas about pregnancy, foetuses and newborns, and on causation of death or bodily harm.

GS

23/12/2020

 

 

[i] KB 27/694 m. 7d (AALT IMG 327). See CCR 1447-54, 517, though this is some years later, in 1454.

[ii] For a 1419 London proclamation on adulteration of wines, see H.T. Riley (ed.), Memorials of London and London Life in the 13th, 14th and 15th Centuries, (London, 1868), 669.  [Hoarderish policy of not throwing away old notes hereby vindicated]. For ‘national’ concern, see e,g, CCR 1302-1307 , 526.

Stabbing stories: a Lincolnshire brawl

Travelling justices in Lincolnshire in 1287 dealt with a complaint of violent misconduct brought by Robert Salemon or Saleman, against Hugh de Mixerton (Misterton?).[i] This rough translation [Covid, no access to the big Medieval Latin dictionary …] gives an idea of how matters proceeded.

See the source image

Robert’s story was that, on a particular day just before the hearing,  he had been on the royal highway in the parish of St Benedict, Lincoln, when Hugh had got in his way and first abused him,  then he had taken out his knife and given Robert a really large wound in the arm, in contempt of the king and his justices, who were in the town, against the king’s peace and damaging Robert to the tune of £40.

Hugh denied that he had done anything which amounted to force and injury, anything in contempt or against the king’s peace, and any trespass against Robert. He said that it was in fact Robert who blocked his way and abused him, rather than the other way round. Robert, he said, had threatened to kill him and had drawn his knife, knocked him to the ground and attempted to stab him in the neck, but the knife thrust had failed to hit flesh, instead ripping Hugh’s hood. Hugh said that while he was being held down on the ground, he stabbed Robert to avoid being killed, this stab being quick and barely scratching Robert. He insisted that he could not have avoided his own death in any other way.

Both men put themselves on the jury.

The jurors (including, it is noted, some who had seen and heard the brawl) gave, on oath, a third version of the events in question. They said that Robert was on the high road and found Hugh’s wife standing with Hugh, that Robert lifted this woman’s clothes up, part of the way up her lower leg (usque ad dimidiam tibiam). At this, Hugh asked him to stop, and Robert grabbed Hugh by the arms, threw him to the ground, slashed at him with his dagger and ripped his hood, but did not wound him. Hugh, getting up, wounded Robert with his own dagger, but he could have got away without using his dagger on Robert, if he had wanted. The justices examined the wound in court and decided that it did not amount to a mayhem, and could easily be healed.

For this reason and also because the jury found that Robert had started the fight, it was decided that both Robert and Hugh should be custodiatur for a trespass done while the justices were present in town. Afterwards, both Hugh and Robert made fine with a mark (each).

 

And this is interesting because ….?

Well, it is always instructive to see records in which we actually get a flavour of opposing cases being put. Here, the two protagonists presented opposed versions of events (Hugh attacked Robert, Robert attacked Hugh) but neither told a tale much resembling that of the jurors. Both men left out the involvement of Hugh’s wife and Robert’s apparently predatory behaviour towards her. It is easy to see why Robert left it out – he wanted the story to be about a totally unprovoked attack. Perhaps the reason why Hugh left it out is a little less obvious – it would seem that he felt it was a safer bet to construct a story of self defence against Robert’s attack on him, rather than suggesting that he was acting in defence of his wife’s reputation. The law on self-defence pleas in homicide was by no means settled at this point (see, e.g., Green, Verdict According to Conscience), and it seems likely that the contours of self-defence as a saving plea in other areas was at least as unsettled. The simple, two-man, story may have seemed the best tactic. Alternatively, we might speculate as to whether the jury might have considered Hugh’s wife to be ‘no better than she ought to be’ one way or another. In any case, it was a bold strategy to tell a story contrary to events which had taken place in the sight and hearing of jurors.

I also find interesting the way in which the wound is discussed here. One of my projects for next year’s study leave will involve mayhem offences, so I am on the lookout for references to it. Here, we have an inspection in court, in which judges seem perfectly happy that they can determine whether or not a wound will easily be cured (no idea of ‘expert’ assessment) and a sense that the borderline between mayhem and trespass is defined partly in terms of permanence, as well as seriousness, of injury.

Finally, it shows the difference in outcome, depending when an offence occurred: Robert and Hugh were in particular trouble because all of this happened while the royal justices were in town, and was therefore worse than an everyday low-level brawl, since it was taken to be a contempt of the justices, and, through them, the king whose law was being administered.

 

GS

21/12/2020

[i] JUST 1/503 m. 37 (IMG 7961). Mettingham’s Lincolnshire assize roll 1285-9, hearing in 1287.

Private compensation and fear of castration in medieval Nottinghamshire

An entry on the Nottinghamshire trailbaston roll for 1305-6 tells an intriguing tale of certainly illicit, possibly unwelcome, advances made by one Master William de Newark, to a girl or woman called Beatrix, daughter of Walter Touk, the response of Beatrix’s family to this, and the way in which this was eventually resolved.[i] Once I am free to get to libraries once more, I look forward to being able to check up on some of the personalities involved, but, for now, the entry itself is worth noting.

In the trailbaston session (an ad hoc, mostly ‘criminal’ judicial session, one of several sent out at this time), jurors of the wappentake of Newark presented Walter Touk, Henry his son, and others, for an assault on Master William de Newark, parson of the church of North Muskham. They were accused of having imprisoned and detained him with force and arms and against the king’s peace until he made fine with them for 50 marks, and of having made off with two swords, worth four shillings, belonging to Richard Cauwode, a servant of Master William.

Walter and Henry told a different story, denying that they had committed any trespass against the king’s peace. Exactly how the more detailed tale came out is unclear – was it volunteered by Walter and Henry, who thought that there was nothing wrong with what they had done, or did the jurors learn about it in some other way? Anyway, the jurors told it this way …

Walter Touk, his wife (who doesn’t get a name here), his daughter (Beatrix), and Henry, went to Master William’s house, in North Muskham, to ask him to eat with them. (The Touks and Master William would therefore seem to have been on good terms, but it was not to last …) William spoke secret and unseemly words of love to Beatrix (oculta et indecentia verba de amore), and then he came to Walter’s manor of Kelham at twilight. Secretly, William entered the house. Henry (Walter’s son, Beatrix’s brother) became aware of this incursion. Henry and John de Dunwyche, his groom, followed William, and entered the room where he was, to find William and Beatrix sitting together (with Richard Cauwode, William’s servant, there as well). Henry and John took out their swords and hit William and Richard. John wounded them both. Walter heard some shouting. He came and did not allow any more damage to be done to the intruders. Nevertheless, the Touks made it clear that they thought William had wronged them in a serious way, and had, in particular, damaged Beatrix’s reputation (enormiter defamavit & … scandalizavit) and they demanded that he compensate them at once for this with 50 marks, or else he would face serious consequences (not exactly specified, but sounding severe and physical). William, terrified by these threats, and fearing that they would otherwise castrate him,  agreed to pay. Henry wrote in his own hand a document obliging William to pay him 50 marks. William authenticated it with Henry’s seal, because he did not have his own seal there, and delivered the deed to Henry. The document was made in the presence of Walter, Henry’s father, who, according to the jury,  consented to the requiring of emends and the making of the document of obligation. On the matter of the alleged taking of two swords, the jurors said that John took from Richard a sword, a bow and arrows (worth 9 ½ d) so that Richard did him no damage with them, and that, if Richard had asked for their return, this would have happened.

Rather than continuing to a straightforward finding of culpability or acquittal, the roll notes that the matter was referred upwards to Parliament, and, on a date in 1306, Henry Touk came to Westminster before the council and made a fine for himself and Walter with £20. It says no more of Master William, nor of the two servants, nor of Beatrix.

 

So What?

Well so quite a lot. This case has several interesting or suggestive legal historical nuggets.

I have found that these trailbaston rolls are particularly rewarding in their illustration of the location of certain borderlines, uncertainties and arguable issues in the common law. To a greater extent than in ordinary plea rolls, in these rolls, we often see people bringing cases, and jurors, showing what they thought the law should be, or where they were unsure as to what it was. Here, it would appear that there was some doubt as to whether the tale of the events of that evening in Nottinghamshire was enough to mean that the defendants were not guilty of an offence. The jurors clearly did not dismiss it, and the whole thing was sent off to be dealt with by a higher power, rather than by the common law. This may have something to do with the relative wealth of the defendants, but the nature of the case itself was probably also debatable. It seems likely that there was considerable sympathy with the efforts of the Touks to make Master William pay for his misconduct – clearly seen as a grave wrong against them all. At what point did forceful action against somebody who had sneaked into one’s house and was perhaps making moves towards violation of a daughter  cross the line into (social or legal) unacceptability?  Castration of sexual offenders was not an unknown response (and may have been official policy in some earlier periods, though not by this point), and settlement of quarrels by financial payment was likewise often tolerated. In a world which assumed a certain degree of self help, was the ‘privatised compensation plan’ thought up by the Touks completely indefensible?

The roll deals with the criminal assault side of things, and so does not go into the question of the compensation agreement. Presumably Master William would have been able to avoid paying by claiming duress of imprisonment. As a social fact, though, it is quite revealing. First, we should note the degree of literacy and technical skill which is implied in Henry’s ability to draw up an obligation, to insist on its being sealed (even if, surely, having William use his seal would have invalidated it) and delivered.

In terms of the background, it is impossible not to be frustrated at the lack of information about Beatrix and her role. We do not know Beatrix’s age, but can assume that she was unmarried, and therefore probably quite young. Was she in any sense a willing participant in events with Master William? Did she understand what was going on? How did she come to see things after the intervention of her brother and father? Perhaps all that can be deduced is that the evidence about the secret and indecent words of love must have come from her (otherwise they would not have been secret, would they?) so that suggests at least a later preference for family and reputation over an involvement with Master William. To a modern reader, it is difficult not to see this as something of a ‘grooming’ situation – man of God and trusted friend of the family, ‘our little secret’, etc. The truth, however, cannot be judged at this distance.

GS

20/12/2020

[i] JUST 1/675 m. 2 (AALT IMG 4702).

A Planetary Kiss Goodbye to 2020

https://twitter.com/gcseabourne/status/1340346637957427200

Gwen Seabourne on Twitter: “Jupiter and Saturn thinking about getting friendly.#GreatConjunction #Kiss https://t.co/m9qRX5KRBB” / Twitter

Tonight, I finally found a good place to go and look at the night sky event of 2020, the Grand Conjunction of Jupiter and Saturn. Semi-confined as we still are, here in Bristol (now Tier 2 rather than Tier 3, but, apart from it still not being OK to lick doorknobs, or indeed people, I have lost track of what that means…) it took a bit of thought to come up with a decent lookout spot, and it started to … persist … down with rain just as I was setting off, but the view from the Downs was not bad at all.

Of course, apart from just enjoying the phenomenon, with my birdwatching binoculars (I am a strictly part-time stargazer) my mind could not help but run over various DEEPER MEANINGS: about things appearing to be touching, but in fact being spectacularly distant, about human longing to see and feel connections – life, the universe and everything.  (Never quite left the angsty sixth form phase).

And then, equally ‘of course’, off my thoughts went to LEGAL HISTORY – because one of the reasons this celestial event is so cool is that it comes around very infrequently. What, I asked myself, was going on in the world of history/legal history at other points when this conjunction could be seen? Which historical heroes and villains might have seen it? Well, my old chum Edward Coke (ruffs, bad temper, casual relationship with the truth …) was around the last time the internet says it happened (in 1623) but would not have been able to see it, since on that occasion, it was too close to the sun. We are told that the last time it would have been possible to see the event was much further back, on 4th March 1226. The resonance which this has for me, and where I am now, is that, at this date, Eleanor of Brittany, unfortunate Angevin noblewoman and subject of an article I wrote long ago (Gwen, Eleanor of Brittany and her Treatment by King John and Henry III https://ssrn.com/abstract=3609270) as well as cropping up in other works, was involuntarily resident in Bristol, confined in the castle, and, not that she knew it, never again to be allowed her liberty. No doubt other interesting things were going on at the time (Carpenter’s Henry III Part I is earmarked for reading when I get a bit of spare time over the holiday, so I will be better informed shortly) but that rather self-centred connection is the one which suggests itself this evening.

Anyway, it seems appropriate, somehow, that 2020 should be rounded off by a celestial marvel, the ‘purblind Doomsters’ putting piffling humans in our rightful place good and proper. Here’s hoping that 2021 becomes calmer and less interesting for historians of the future.

 

GS

19/12/2020.

Star Trek: The Legal Generation?

There are a fair few trials in the original incarnation of Star Trek, but it is in The Next Generation that we really get legal. It kicks off with a trial (camply omnipotent villain Q puts on a trial of humanity, dressed up as a rather Civil Law looking judge),

See the source image

https://larryprevost.com/wp-content/uploads/2017/07/star-trek-TNG-judge-q1.jpg

and continues in a very law-focused way, before coming back to the idea of Q trying Picard as representative of humanity, in the very last episode – pronouncing that ‘The trial never ends’. Captain Picard being rather more of a thinker than Captain Kirk, there is more scope for quite involved legal issues, and it is arguable that law and trials are major themes of TNG – even more so than poker and detective-fantasies, the tedious holodeck and Deanna Troi’s expert jumpsuited counselling (‘But what do you think?’; ‘I think you know the answer to that’ and similar insights). Anyway, I think there’s enough of a pretext for a Star Trek post on here, so here are some of the legal and law-adjacent bits I found interesting. (There is also all sorts of slightly ponderous stuff about the Prime Directive, and treaties, but those don’t float my space-boat to the same extent).

 

Crime, trial  and punishment

Q’s trials of humanity are, to say the least, questionable in terms of the vagueness of the charges (‘being a grievously savage race’…) and the procedure. They are far from the only ‘criminal’ cases in TNG. These also jumped out at me as interesting.

1:8 features the hapless Wesley Crusher in danger of being put to death by lethal injection for a trivial infringement of a law he didn’t know about on a planet of irritatingly physically perfect dimwits. Cue some argument about the Prime Directive and the nature of law. Bad knitwear fans everywhere can breathe a sigh of relief – Crusher lives to wear terrible jumpers another day. And let’s not mention the quilted waistcoat monstrosity of 7:20 – nearly as ‘criminal’ as the faux-Scots accents and geography featured in 7:14).

3:14 has a long drawn out trial to determine whether Riker can resist extradition to Tanuga IV to face charges of murder and perhaps attempted rape, under a system which presumes a person guilty until proven innocent (obv. Prime Directive would mean he’d have to be tried in that way if he was extradited). There is much on hearsay evidence and its acceptability (fine as far as the Tanugans are concerned, not as the Federation sees it), and a reconstruction is important in exonerating Riker.

3:17 has a lot of content involving Klingon law and customs. Lt Worf’s father is falsely accused of treason – of having betrayed a Klingon colony to the Romulans (they of the shoulder pads, Mary Quant hairdos, Warbirds and cloaking devices). He is dead, but this doesn’t matter much, as a finding can still be made, and it will stain the name of the whole Mogh family, including Worf and his brother. The Klingons are clearly very cool (best boots in space, and those groovy sashes .. ) and their legal procedure involves challenges and battle. We don’t get all the way through a case, sadly, as Worf nobly accepts disgrace, despite his father’s innocence, for the good of the Klingon empire, set to be blown apart if the truth emerges (that the actual traitor was somebody very powerful). 4:7 has more Klingon law – Lt Worf exercises the right of vengeance, challenging the killer of his mate, and killing him. Bit of an echo of the medieval appeal perhaps? Starfleet, of course, is not pleased, but Worf is entirely justified under Klingon law.

4:21 has a trial of a medical officer, Simon Tarses, for sabotage. Tarses, though innocent of that, is part Romulan and has concealed this. It is used against him by a rather crazed prosecutor/investigator. We see that the Federation has a ‘right to remain silent’ so as not to self-incriminate, just like 20th/21st century Anglo-American systems, and Tarses uses this at one point.

4:22 has resonance in relation to suicide and euthanasia, depicting Kaelon II, a society with a custom of requiring suicide (‘the Resolution’) when a person reaches 60, so that they do not decline. There is a clash between the Prime Directive and the magnificent Lwaxana Troi (Daughter of the Fifth House, Holder of the Sacred Chalice of Rixx, Heir to the Holy Rings of Betazed) over whether to stop nice almost-sixty-year-old scientist Timicin from going back to his planet to kill himself in accordance with the custom. In the end, he goes back, and she rises to the occasion, to go and be with him at the end.

5:12 has a novel crime – rape by invading the mind – perpetrated on Counsellor Deanna Troi by Jev, a telepathic Ullian, who hijacks a memory of her and Riker, and intrudes himself into it. There is no justice here, however. Showing the limits of law?

5: 16 – more Klingons, more suicide. Worf is paralysed after a rather ignoble accident, and wants to kill himself, asking Riker to assist. The method to be used is (of course) both ritualised and bloody – a jagged dagger to the heart. A combination of hope of medical help and a wish not to desert his slightly troubled son Alexander turns him away from this decision. Interesting absolutist/relativist discussion of suicide and disability for Klingons by Riker and Picard.

 

Persons

Personhood v. property comes up in relation to Lt Commander Data (an android), in 2:9.  There is a highly charged court scene in which Capt. Picard has to argue what is apparently a novel point. Of course, he prevails, and Data is ruled not to be property (and so cannot be experimented on contrary to his will). Data also features in an interesting discussion in 6:9 ‘The Quality of Life’ (20:20-22:30) about what life is. I am seriously thinking of using this in a forthcoming paper on the beginning of life in medieval law. That would cause amusing confusion in an audience of legal historians.

There are bits and pieces on sex and gender – and, while some of it is a bit more progressive than Kirk-era stories, there are some curious failures to imagine that things could change. On the prescient side, we have, e.g., 5:17 which introduces us to the J’naii, a people who have (almost entirely) evolved past the idea of sex/gender. One of them, Soren, falls for Riker, of course (he is, apparently, irresistible – just don’t see it myself …) and comes out as ‘really female’. There is a trial of a sort, ending with some sort of treatment which removes this aberrant feeling of sexedness, leaving Soren content and Riker sad (as he has fallen in love with her within half an hour’s acquaintance – not saying the man’s shallow, but …). On the ‘aren’t aliens backward about these things’ front, we have the Ferengi, who apparently don’t let their women do much, or, indeed wear clothes (1:5), and the Klingons seem mostly to favour men in public functions (though the women do get clothes). There are also arranged marriages –  as in the ill-fated union planned for everyone’s favourite Betazoid/Human Wellness-Adviser-Before-Wellness-Was-A-Thing, Deanna Troi and some drippy doctor bloke 1:11, and in the story of the metamorph woman bred and trained as a peace-weaver in 5:21. (The former marriage does not work out, leaving Troi to have a complicated and wide-ranging love life, but the second goes ahead (non-interference and all that) despite the fact that the (hot) woman ends up ‘bonding’ with Picard, and will now have to spend her life with a deeply unattractive and unworthy politician). Curiously un-prescient (I hope), however, is the assumption that, in the 24th C,  somebody as high-powered and independent as Beverly Crusher would have taken the name of husband 1, and not only taken the name of husband 2, but kept it after a divorce (7:26).

 

Misc.

A couple of others worth mentioning …

We get legal again in 4:13 with an attempt to enforce a very old contract between a supposed deity/ demon, Ardra, and the people of a planet (Ventax II) she allegedly helped to sort their planet out, in return for a promise that the people’s descendants would submit to serve her in a thousand years’ time. Top legal strategy here from Data and Picard, using a Ventaxian precedent to demand arbitration. We then have an ‘arbitration’ which looks very much like a US style trial, complete with ‘objection!’ etc., and some pretty good arguments as to performance, but then goes off on a more sci-fi path with some flashy demonstrations of Ardra’s powers, debunked when our heroes get control of her boxes of tricks. She is confounded and imprisoned as a fraud.

6:10 and 11 are the place to go for those who like a bit of international/intergalactic law. Picard is captured by the evil lumpy Nazi-ish Cardassians (yes, the name-similarity with the not-at-all-crass-and-charmless family of reality TV fame is quite funny – this is where excessive plastic surgery could lead) and tortured, but not without getting out an objection that this is contrary to the Seldonis Convention – sounds v like Geneva Convention (crossed with the Selden Society???). There is a bit of a legal issue though in terms of him possibly being a spy rather than a POW.

There is also a lot to think about in terms of colonisation: this is treated as almost entirely unproblematic, which is all very of its time, though generally what is being colonised (by the Federation at least) is uninhabited planets, and at least Picard seems to be very open-minded about what amounts to ‘life’ and should be left alone.

 

‘The Trial Never Ends…’

But the show did. Now I have finished filling in the gaps of my viewing of both Original Star Trek and The Next Generation, and Netflix is pushing Deep Space Nine on me. I am not sure whether I am ready to ‘boldly go’ there yet. There seem to be a lot of episodes and I am not convinced it’s worth the commitment. On the other hand, I do fancy Voyager, and may miss some important lore by not following things through .. maybe in Stardate 2021?

GS 12/12/2020

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

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

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

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

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

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

Charles Mansfield Clarke, accoucheur

Ralph Blegborough, M.D.

Robert Rainy Pennington, Esquire, accoucheur

Robert Gooch, M.D., accoucheur

David Davis, M.D.

Dr. Augustus Bozzi Granville, physician

Dr J. Conquest, physician

John Sabine, Esq. surgeon and accoucheur

Dr. Samuel Merriman physician and accoucheur

Dr. Henry Davis, physician

Dr. Richard Byam Denison,physician

Dr Edward James Hopkins accoucheur

Henry Singer Chinnocks, Esquire, surgeon and accoucheur

Dr. James Blundell, physician

Dr. John Power, physician accoucheur

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

 

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

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

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

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

 

GS

30/11/2020

Updates:

NB – the Gardner/Jadis case was mentioned in a ‘Who Do You Think You Are’ investigation on Frances de la Tour: Frances De La Tour – Who Do You Think You Are – Society scandals, an illegitimate child, and a landmark divorce… (thegenealogist.co.uk)

By the evil magic of the internet, I have been linked up to this – Isabel Davis, The Experimental Conception Hospital: Dating Pregnancy and the Gothic Imagination, Social History of Medicine, Volume 32, Issue 4, November 2019, Pages 773–798, https://doi.org/10.1093/shm/hky005 – dealing with disturbingly rapey 19th C sci-fi writing sparked off by the Gardner case. What an interesting article (and especially the Gothicism and balloon-related bits). Law, sci-fi and Gothicism (and a couple of well-judged points about the limitations of the blessed Foucault): if it could just include a vampire or two, it would tick all of my boxes.

From Wikipedia.

Loss of entitlement

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

29/11.2020.

Detriment, conscience and the fine art of judicial shade

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

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

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

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

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

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

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

GS

29/11/2020