Category Archives: Legal Historical Methods

Manicules and many hands: a little musing on the wonders of AALT

Like just about everyone who writes about the early history of the common law, I am a heavy user of the digitised manuscripts on the Anglo-American Legal Tradition website. They were especially valuable during the worst of the pandemic, of course, but many of us had been using them regularly long before that. Even for people living in the UK, it is often not feasible to get to the National Archives (ludicrously expensive and time consuming getting to central London by rail, and then out to Kew) and that is as nothing compared to the fun and games which researchers from other parts of the world must encounter. That being so, easy online access has been an enormous bonus. I realised just how much I had come to rely upon it, when AALT was unavailable for a few days last academic year, and I felt decidedly panicky. This morning, I have been doing a bit of leisurely searching in AALT plea rolls (I know it’s Saturday, but I definitely need a distraction from the ominous sounds of offspring packing for imminent departures to university… ) and, in best Carrie Bradshaw fashion (if the ever-profound lead of Sex and the City had been a legal historian), ‘got to thinking’ about the changing experiences of legal historical research which I have had, since I started out in the 1990s.

My first real encounter with medieval manuscripts came as a PhD student – up to that point, it had mostly been transcribed and translated things in the Selden Society volumes and similar publications, with a few early modern bits and pieces to do with the Bank of England when I had a job as research assistant at the Law Commission, including working on the repeal of parts of the early legislation regulating the Bank. I designed a project for the Ph.D., making the somewhat arrogant assumption that I would be able to just bowl up to the Public Record Office (as it then was) and read eyre rolls, to locate presentments and prosecutions of usurers and offenders against price regulations. Obviously, it soon became apparent that it would take quite a while to get to grips with the great and contrary membranes, the script and the abbreviations (not to mention the springiness of some of the tightest rolled ones, and the fear of handling some of the crumblier-edged ones). It is odd to think that just about everything I traipsed down to Chancery Lane to examine is now available with a few clicks on the AALT site. Just as well for the state of the records that present day versions of Ph.D.- me can have their clumsy hands kept off precious pieces of legal heritage to a great extent.

The experience of looking at the rolls online is, of course, not quite like ‘the real thing’. There is something special in making physical contact with the work of long-ago clerks. But there are also positives in using the scans. It is possible to expand the picture, to help make out more obscure words (or make a better guess, at least…). It is easier to go back and check something than is the case when using physical records. And then there is a certain charm in the online site itself. I am sure that others could add to the list, but there are two things that strike me about it, quite regularly. The first, and  more trifling, is a by-product of frequent use of the site – the odd misfire in searching for the site means that I have become unusually well acquainted with: (i) Aalto University in Finland and (ii) a Dutch serial killer nicknamed ‘Aalt’.  The second is to do with hands.

‘Hands’ can mean different things to people in the nerdy manuscript-fancying community, of course: perhaps first of all we’d think of writing styles and individual quirks. A lot of puzzle-solving entertainment to be had there, for those who like that sort of thing. Then we might think of manicules – the little pointing hands we see in the margin of manuscripts, indicating cases or things that the clerk thought might need to be found again, or which should be noted. What I am mostly thinking about, though is actual, present day hands: the springy nature of the rolls sometimes makes it necessary to hold them down whilst they are photographed, with the result that the AALT shots contain numerous images of the hands of those creating the digital archive – shots like this one.  That is going to be a sort of manual immortality one day, isn’t it? (Especially if the MSS themselves become more frail and less accessible). It certainly gives an inkling of the general effort involved in making these images available to anyone who wants to see them, and I find it a really interesting additional piece in the story of the handing on (!) of the information contained in the rolls, from one generation to the next.

GS

25/9/2021

Photo by Sebastian Dumitru on Unsplash

‘Four seas’ and an island delusion: some thoughts on ‘bastardy’ doctrines

[This was also posted last week on the Centre for Law and History blog]

In August 1850, a jury in Liverpool heard the case of Wright v. Holgate. The jurors’ job was to make a decision about the ‘legitimacy’ of a child, Tom Wright. Was this three-year-old the ‘lawful’ offspring of Thomas Wright, butcher and cattle dealer, and his late wife, Susannah, or was he another man’s son, and thus a ‘bastard’ (specifically, an ‘adulterine bastard’)? The question had arisen during a dispute about property of the Holgates, Susannah’s family, who were cattle dealers of some standing in the Halifax area. If Tom was ‘legitimate’, he had a share; if he was a ‘bastard’, he did not. The jury heard a selection of views on the former spouses from acquaintances and neighbours, brought in to comment on whether they had had the opportunity to have sex at the relevant time, so that Thomas might be Tom’s biological father, and on the character of Susannah. She was portrayed, in the somewhat gossipy testimony,  as ‘no better than she ought to be’, and given to entertaining a variety of men other than her husband at her house. After only a short discussion, the verdict of the twelve male jurors came back: ‘bastard’.[1]

 

As far as the law of the time was concerned, that was the end of Tom Wright’s importance, and, since the relevance of ‘bastardy’ in legal and social terms diminished massively over the course of the twentieth century, this case might well raise in the minds of modern legal scholars that cold dismissive phrase: ‘of no more than antiquarian interest’. Even so, I am going to use this post on our newly-launched blog to suggest that there are, in this case, and in this area, some things which are worth the attention of thoughtful legal scholars of the twenty-first century, as well as those of us who are unashamed of our antiquarian tendencies.

 

‘[B]ound in with the triumphant sea’ [2]

Though the case ended up in a common law court in the port city of Liverpool, much of the action had taken place inland, in Halifax and Rochdale. That being so, my maritime references might seem a bit inappropriate, but there is a justification for getting a bit nautical when considering the law of adulterine bastardy. Accounts of it often mention a particular test for whether or not a husband would be presumed to be the father of the child: had he been ‘within the four seas’ at relevant times for procreation? The phrase was mentioned in the judge’s summing up to the jury in Wright v. Holgate:

‘When a married woman has a child, the presumption is in favour of its legitimacy. Formerly, indeed, the presumption was, that if the husband continued within the four seas, and was alive at the child’s birth, such child could not be a bastard. But now the law allows inquiry…’

 

Here, we see the splendidly named judge, Sir Cresswell Cresswell, taking a moment to contrast the enlightened times in which he and the jurors were living with what he saw as the less perfect doctrine of former times. He felt it important to tell them that the question as to whether a husband was, or was not, ‘within the four seas’ at relevant points was once  something close to being decisive of the legitimacy of a child borne by his wife: if the opportunity of access was shown, using this criterion, no further inquiry as to the probability of there having been sex between the spouses, or the likelihood of somebody other than the husband being the child’s father, would be permitted. As well as the touch of self-satisfaction that things were so very much better in the world of 1850, we may note that there is something of a lack of specificity as to just when ‘formerly’ was. The legal past is an undifferentiated mass, unworthy of closer consideration.

In fact, the law on adulterine bastardy in general, and the place of the ‘four seas’ idea within it, had been far from unchanging over previous centuries. My research in this area has led me to conclude that the question of whether or not the husband was ‘within the four seas’ was not always – perhaps not usually – quite as central as Cresswell’s statement implies. The treatment of the ‘four seas’ phrase, from its first appearances in medieval cases,  shows different levels of emphasis, as well as movement between less and more literal understandings, and between geographical and political interpretations of the ‘seas’ and the land they were taken to enclose.

There were always difficulties with delineating the ‘four seas’. Despite Shakespeare’s best efforts to suggest that it was a ‘precious stone set in the silver sea’, England never has been, an ‘isle’ (‘sceptred’ or otherwise). The inconvenient existence of a land border, rather than a sea, between England and Scotland was never quite overcome, there were complications to the west: was Ireland ‘within’ or ‘without’ the western sea, and what of more distant ‘possessions’ of the English crown? The neat phrase ‘within the four seas’ did not make a very sure foundation for a rule about presumed legitimacy, and it was de-emphasised, and weakened in practical importance, from the eighteenth century onwards.

Its day was long over by 1850, yet it continued to hold the imagination of those discussing this area. Sir Cresswell Cresswell was not alone in his reference to ‘the four seas’; they continued to echo in commentary into the twentieth century. This lingering is probably due, in part, to the power of a well-turned phrase on the mind and memory of common lawyers. An attractive image or phrase may draw attemtion to one part of a more complex area of doctrine, at the expense of inconsistent or qualifying factors which are less amenable to neat encapsulation.[3]

That leads me to ask why ‘within the four seas’ was an attractive concept to common lawyers of the ninetennth and twentieth centuries. I would like to suggest that its appeal lay in its fitting in with broader currents in the self-image of the common law, as a robust, independent, intellectual ‘island’, keeping at bay the ‘foreign’ forces of civil law and canon law. The law on bastardy was marshalled as an example of the distinctive nature of common law, holding back the tide of other ideas. An account of another, more prominent, nineteenth century ‘adulterine bastardy’ case was, for example,  at pains to point out England’s defiance of attempts to introduce ‘foreign’ rules with regard to legitimation:

‘In England the sturdy independence of our ancestors soon checked the encroachments of the priesthood. Neither the civil nor the canon law ever formed part of the law of the land.’[4]

Perhaps it is not too much of a stretch to imagine that there was mutual reinforcement between the idea of the common law as an intellectual island, aspects of its idiosyncratic and precocious centralised development acting somewhat as  ‘a moat defensive to a house, against the envy of less happier lands’, and the idea of the pre-eminence of a test founded upon the assumed existence of England as a discrete and identifiable sea-bordered landmass.

 

Concluding and continuing thoughts: a father for ‘no man’s son’, dried up doctrine and Doggerland

I started with a young child, his future prospects apparently settled by a brief jury discussion and a stark verdict of ‘bastard’. Another phrase which will be familiar to those who have looked at this area, (or, indeed, at nineteenth century literature), would seem to apply: as a bastard, he was filius nullius – no man’s son. If he really was regarded as not having a father, we might have expected his care to be left to the local workhouse. I am cautiously optimistic, however, that entries I have found on the census for 1851 and 1861 show that Thomas Wright, despite having been found to be a ‘cuckolded’ husband, and not to be the father of Tom, did look after the child, providing a home for him in Rochdale, and setting him on his way to receiving at least some education. As with ‘within the four seas’, so with ‘filius nullius’:  too great a focus on a well-turned phrase, taking as literal what was understood to be at least partly metaphorical, could divert us from a more complicated reality.

Like the ‘four seas’ idea itself, much of the law which obtained in the case of Tom Wright has now been swept away, and, if we want to know who is a child’s biological father, then DNA testing can give a virtually conclusive answer. Nevertheless, I think these remnants have much to tell us about lives and thought of the past, about solutions to what seemed to be matters beyond human knowledge, about proof and policy, about how common lawyers of one era thought of and used the law of the even deeper past. Since we know that a vivid maritime image can stay with us, I will end with the one which always comes to my mind when dealing with such material: it is that of Doggerland – an area formerly of considerable human activity, now beneath the sea as a result of climate change. Most of us will never visit it, but it is important to know it is there, both for practical modern purposes, and also for deeper understanding of those who have navigated these spaces before us.

Thank you for your company on this brief voyage.

Gwen Seabourne

August, 2021.

[1] See, e.g., Times  20th July, p. 7 and 20th August 1850, p. 7, Manchester Guardian 21st August 1850, p.6. Halifax Guardian  24th  August 1850, p. 3,  27 July 1850, p. 7; Globe 20th  August 1850, p. 4; Evening Mail 22nd  July 1850, p. 3. Report: ER 175 503; 3 Car. & K 158.

[2] Shakespeare, Richard II, Act II, Scene 1, John of Gaunt.

[3] See, e.g., Andrew Culley and Michael Salter, ‘Why study metaphors?’,  K.C.L.J. 15 (2004), 347-366.

[4] Denis Le Marchant, Report of the Proceedings on the Claim to the Barony of Gardner (London, 1828), xxx.

Images – the watery one is from the port of Liverpool, ft. a dock of the period and some water, which seemed appropriate. The bovine one is a nod and a moo to the trade of the Holgates and Wrights – cattle in the Halifax area).

This material comes from a current project on bastardy, I will be presenting a fuller version as a paper at the Society of Legal Scholars conference in September 2021 (paper all written and recorded in case of emergency – so I did something useful in recent self-isolation!), and some of it will probably feature as part of a chapter I am writing for the ‘Known Unknowns’ project, headed by Dr Andrew Bell and Dr Joanna McCunn

Ending on a high note? The travails of conclusion-writing

It seems to be a time of difficult endings: last day of July, last day of the academic year and I am currently having a bit of a struggle to conclude a paper. This may well reveal some underlying problem with the paper’s themes or the way I set up the question it was going to address, but it is at least as much a result of the fact that (deep breath) I don’t really know what I want from a conclusion.

I have tried thinking about it from various points of view, comparing the conclusion of an academic article to the end of a race (Olympics are on), the landing of a flight, the last group confrontation scene of a detective novel, but none of that quite fits or helps. Perhaps it is an idea to think about it in musical terms, with the conclusion as a sort of cadence. In my far-off youth, I went through the hoops of the Associated Board exams and A level music, so picked up some basic harmony, including the main different ways in which a piece of music might come to an end, with a perfect, plagal, imperfect or interrupted cadence. I also listened to a wide range of less classical music, good bad and indifferent, and formed some ideas about what I liked and didn’t like in an ending. How would some of these musical conclusions map on to academic papers I have written, read or heard?

The perfect cadence

I suppose this is what I aspire to, instinctively, in a paper: the definite ‘here it is, all tied up in a bow and aren’t I clever’ of cadences. V to I, from the dominant to the tonic; here’s my evidence, this is the brand new thing I draw from it, and you have to agree with me. In reality, few academic papers have a perfect cadence, and it may well be beyond me.

 

The plagal cadence

This is still quite a definite conclusion, but perhaps on a smaller point, and perhaps with less of a claim to field-redefining originality. It is the ‘Amen’ cadence, after all, with all of the orthodoxy that that implies; IV to I – subdominant to tonic. Maybe I have done a few of these over the years. Might just about get there with current paper.

 

The imperfect cadence

I to V, with a strong sense of incompleteness. Is that a good thing or a bad thing in an academic paper? I think it can work, if is ‘owned’, i.e. the conclusion calls itself ‘concluding thoughts’ and makes a point of saying that this is leaving some thoughts for others to build on, or for the author to come back to in future, but it can also be a bit weak and unsatisfying.

The interrupted cadence

V-VI and flipping between major and minor (in either direction). Hmm. I think this could work in an oral paper, in the hands of somebody very self-confident and where the paper was on a specific point but then drew back to make a few comments about a wider field. Could definitely look bad on paper (and attract the condescension of Reviewer 2) if it was an unexpected move within the same specific area, with no lead up in the preceding sections of the composition.

The fade-out

This is the one to avoid most of all – though I think I probably did it quite a lot in oral presentations in the first 10 years of my career. I shudder to think of all of those papers ending with a limp ‘I think I’ll leave it at that’ or similar, rather than a nice, planned out, pithy last sentence. It was often the result of having too many points, and just hoping that I could work out, live, which to keep and which to skip over. The end result was something like one of those deeply unsatisfying old pop tunes that doesn’t conclude at all, the sound engineers just turn down the volume until it ends (‘Hey Jude’, amongst others – wouldn’t that have been better with a proper finish, and minus about three minutes?).

It’s not a perfect analogy, of course, but maybe it’s something to bear in mind in attempting to craft a satisfying ending to this latest paper.

Which I should be getting on with …

Though, actually, isn’t a well-crafted conclusion more like the end of a limerick, or a sonnet … but which kind of sonnet … ah, needs more thought. Can’t possibly write that conclusion until I get that straight …

 

GS

31/7/2021

 

Photo by Tadas Mikuckis on Unsplash

Discerning paternity: James Percy and his moon-mark

And today in bastardy studies …

I have been mostly looking at an odd little area: the use of evidence of resemblance in assigning paternity of ‘bastards’. This has taken me down an another interesting little side-road, to the story of a trunk-maker called James Percy or Piercy (1619-c. 1690), who claimed to be related to the powerful Percy family (earls of Northumberland, wardens of the March, general top-dogs in the north of England over several centuries ….), and, indeed, to be entitled to inherit the earldom This will not be new to Early Modernists, or peerage fanciers, I dare say, and JP even made it into the ODNB, but I had not come across the story before.

James was not a bastard, but he is relevant to investigations of paternity more generally, in that part of the case was a physical resemblance, to wit, … a mole in the shape of a half-moon, which was the emblem of the earls of Northumberland:

‘God hath been pleased to make a true decision himself, which may be a president, for he sent the claimant from his mother’s womb with a crescent into the world, which is God’s ensign of truth, and the very badge belonging to the Percies, earls of Northumberland.’ (The case of James Percy, the true heir male and claimant to the earldom of Northumberland (London, 1680) p.7)

This mole/birthmark seems not to have made it into the ODNB’s telling of the tale, which outlines James’s relatively humble upbringing and the fate of his claim to the earldom, launched in 1671, the previous (11th) earl having recently died, without a living son (his wife having given birth to a stillborn posthumous child in 1670/71). Not hugely surprisingly, the dowager countess, mother of the 11th earl, was not having it. She went hard on behalf of Lady Elizabeth Percy, the more expected contender, and used all sorts of procedural and practical tactics to make it hard for James to make out a case. There were proceedings in the House of Lords, petitions to the king and other recipients. James’s story was not constant. Things dragged on for about 20 years, with James publishing his argument in an attenpt to gain support for the claim, and the case was only finally kicked out by the HL in 1689, with more than a little cruelty (see the ODNB entry for the ‘public humiliation’ which was ordered for poor old James, but probably not carried out).

So – an interesting story, but one which has been somewhat twisted in its reception in some legal sources. My route into the story was via 19th and 20th C reports of bastardy/exhibition of child cases from US jurisdictions, which were concerned with whether or not it was appropriate to give any weight to resemblance between a child and the man alleged to be its father. Percy’s story reaches the American cases via citation to a slightly throw-away footnote in Howell’s State Trials 12, p. 1199,  in the report of another case entirely. Some of the US reports make fairly expansive claims about what the law was, or had been, in England, and the case of James Percy is cited as uncomplicatedly showing that evidence of resemblance as an indicator of paternity was perfectly fine, and that this applied to bastardy cases (despite the fact that James was claiming not to be a bastard – otherwise of course he could not feasibly have claimed to be earl of Northumberland, entitiled types being rather strict on this point). I have more to do on resemblance evidence in paternity cases, but am not convinced that the crescent moon mole in Percy could really support the conclusions which seem to have been drawn from it.

GS

19/7/2021

 

Image – a crescent! c/o Wikimedia Commons. Really wanted to find a proper Percy moon and shackle, but best I can do is this slightly banana-esque number. Odd shape for a mole, isn’t it?

 

Byways and rabbit holes in ‘bastardy’ research

Today, I have mostly been creating a very interesting internet search history by looking up variations of the word ‘bastard’ in various legal and historical databases. I have a legitimate (!) reason to be doing this , as I prepare a paper on such things for the SLS conference, but it does still feel a bit like being back at school and looking up rude words in the big German dictionary in preparation for an (eventful) exchange trip to Hamburg.

Anyway, all of this searching revealed some interesting uses of ‘bastard’ – the expected ones (status, insult) plus some more metaphorical, with various products and concepts described this way (not always with the same implications). This will all be useful stuff for the SLS paper. But I spent a happy few minutes going off down another path, when a ‘bastard’ reference brought me back to questions of sex and gender, and the way in which they were understood in different historical and cultural contexts. This is something I touched on in c. 1 of Women in the Medieval Common Law, but I had more notes on it than I could use in the book, and it struck me that there are aspects of the area which I’d like to revisit.

The first step from ‘bastard’ searching to issues of sex/gender was coming across a case of mistake as to whether a ‘bastard’ child was male or female, in an article in the excellent Welsh Newspaper Archive. It caught my attention because of its Bristol context (I am very aware that, though I have lived here for ages, I have not really made an effort to write about it, so it is always good to find something with a local angle). The case was an attempt by the mother of a child to enforce maintenance payments for the child by the man she claimed was the father (this is all long before DNA tests or even blood tests, so in a world of extreme difficulty in pinpointing paternity). It took place in Bristol, before the local magistrates, in 1869. The Western Mail of 10th June, 1869 notes that there had been an ‘EXTRAORDINARY MISTAKE IN THE SEX OF A CHILD’. The defendant, Daniel Williams was charged with failure to pay sums due under a ‘bastardy order’ (i.e. an order that the man said to be the father of a child should pay towards its maintenance). The mother in the case was the splendidly named ‘Jane Vulture’. On the defendant’s behalf, it was argued that the order in question had specified that he had to pay to support a male child, born on 9th November, 1866, but the child now brought for inspection was female. Ms Vulture may, perhaps not have been able to read, since the story seems to have been that she signed statements about the child which were read out to her – and now claimed that she had never said it was a male, and that that must have been a mistake by the clerk. Sadly for her, this did not sway the court, and the case against Williams was dismissed. Who knows the rights and wrongs of it – was this a different Baby Vulture from the one initially the subject of an order, or did Williams take advantage of a clerical error to weasel out of his responsibilities? The case was not, however, quite what I had thought on seeing the headline. Given current controversies about the validity of biological sex and gender identity, I jumped to the conclusion that this was a case of ‘intersex’ or something similar. Wrong, I think. There is no suggestion of the possibility of doubt here.

And where did that lead me next? Well, I did wonder what contemporary ideas were about this now-contested borderline, so I had a little search for that odd old term ‘hermaphrodite’. That came up a fair bit in my medieval investigations, and I had already had glimpses of its later uses, so it was interesting to probe a bit more in easily-accessible online archives of newspapers from the 19th and early 20th Cs. This turned up two definite but unequally sized strands of material – a few cases of what do look like possible cases of ‘intersex’, but far more metaphorical uses of ‘hermaphrodite’.

On the ‘factual’ side, there are newspaper reports which seem remarkably like medieval/early modern ‘prodigy/monstrous birth’ stories. Note, for example, tales of ‘hermaphrodite’ babies in Llanfynydd in 1851 and  Cardiff in 1906. There are certainly things to consider here, in relation to tone of report, and the apparent response of parents and medics. It is the more metaphorical usage of ‘hermaphrodite’ which particularly interests me, however. This comes up in relation to transgression of gender norms – such as a female cyclist wearing some form of trousers, in a ‘funny’ article from 1896. It is also used in relation to linguistic gender, in relation to bardic expression, in articles from the Welsh-language press, e.g. in 1851. Interestingly, it also crops up in areas with little to do with gender, even in its linguistic form, simply denoting an idea of mixture, or odd/uncomfortable/inappropriate mixture. Thus we have ‘moral hemaphrodisim’, ‘political hermaphroditism’ and even nautical and military hermaphroditism (mixed types of rigging and mixed army-navy organisation respectively). In many ways, there is an overlap with the metaphorical use of ‘bastard’ for mixed concepts, which is coming up in the SLS paper I am writing (‘bastard feudalism’, ‘bastardy’ in relation to the Scots ‘not proven’ verdict, amongst other usages). I am yet to work out when it would have been appropriate to use ‘hermaphrodite’ and when ‘bastard’ – presumably the latter is a little more critical than the former, though both are somewhat critical. More work to do!

 

GS

13/7/2021

Image – a rather gratuitous bunny. Yes I did choose the title to enable me to use it …

Photo by Quinn Secker on Unsplash

 

“Bastard Pauper Lunatics” and Victorian establishment values

Slightly listlessly looking for a bit of inspiration for SLS paper on bastardy etc., I was drawn into references in 19th C numbers of the British Medical Journal. This really is ‘foreign country’ territory – despite not really being so very long ago.

The page I alighted upon was one which promised something with a title making up a  full bingo-row of cold-hearted dismissive Victorian vocabulary: ‘Bastard Pauper Lunatics’. This (it was a letter) was indeed chilling – eugenic theory in full throated cry, despite the ‘civilised’ nature of expression, medium and audience. It was part of what was said to be a debate about what to do with the apparently frightening numbers of young pregnant ‘imbeciles’ turning up at workhouses. Solutions seem to have been at least as much concerned with condemnation and cost as with help and protection.

Just this one page (The British Medical Journal, Vol. 2, No. 1868 (Oct. 17, 1896), p. 1153 ) shows a lot about middle and upper class Victorian attitudes. On the one hand we have thinly veiled loathing for those in poverty or with mental incapacities, and also racism (including two-for-the-price-of one gratuitous racism): on sanitation in Egypt, it is stated as fact that ‘Sanitation in Egypt, as in India, has to contend with an ignorant, apathetic, and obstructive population …’ On the other hand, there is sympathy – rather gushing sympathy – for a recently deceased Archbishop of Canterbury and headmaster of Wellington College (an socially exclusionary  school) and an ailing prominent surgeon.

I can’t help but remember that this comes from the same world as the early Selden Society, and the ‘fathering’ (observe scare quotes – don’t like this usage at all) of English Legal History. It really seems like time to give some serious thought to the ways in which the discipline may have been influenced by its early environment. I know I am not alone in thinking this. Possibly some of that might make its way into the paper.

GS

10.7.2021

Owning words: some musings on categories and captivity

I have had cause to think quite a lot about the idea of people as property. Amongst other places in which this has come up in my teaching and research have been: medical law (yes – once upon a time used to teach that) where it features in relation to embryos and organs, for example; property law (can you have property in a corpse?) and of course legal history. In thinking about the history of women and the law, it is not uncommon to see references to the effect that ‘oh well, of course women used to be the property of their husbands/fathers etc.’. I have never been very happy with this line – apart from anything else, it often seems to be something of a device to encapsulate and dismiss a whole messy and uncomfortable area of historical (mis)behaviour, a somewhat ‘othering’ tendency too (for, if older dispensations can be seen as stark, and starkly different from present ideas, any nasty continuities and analogies of injustice can be ignored). I made some comments on the ‘women as property’ idea in the recent book on Women in the Medieval Common Law. It continues to bubble away in my mind, and here are a couple of other thoughts on it.

  1. Working with words and processes

One of the reasons why it might feel right to make a link between legal treatment of women and property in chattels is the recurrence of words in legal process relating to both categories. Thus abduxit would be used in relation to both the removal of a woman and the removal of a sheep, and relevant legal processes might also bear some resemblance, one to another. I am not sure, though, that that can be taken to indicate that ‘women were property’ in any meaningful sense.[i] The truth is that there were limitations of both linguistic and procedural sorts which go quite some way to explaining why there would be such similarities. The linguistic issue is that those choosing words for legal process and its records had a limited selection from which to select, and we should be slow to infer from the use of a term in two different legal contexts that it was understood in an identical sense in both. To take a possibly silly example, just because the verb used in relation both to wrongful cutting of a tree bough, and also to wrongful removal of a person’s arm in a sword fight would be amputavit, it does not mean that medieval common lawyers thought people and trees were the same. Likewise, the ‘vocabulary’ of legal process was finite, and the fact that a husband’s action with regard to the removal of his wife looks a bit like an action for the removal of a chattel cannot be taken too far. As students of legal history will know, the process of putting a set of facts into a few pre-existing procedural patterns is one of the hallmarks of common law development. Of course, the fact that the husband is accommodated in seeking legal action in relation to wrongs to his wife shows that he was seen as, and made, her superior – but I am not convinced that this should be seen as ‘property’ rather than ‘power’.

  1. Women/slaves/property

The links between ‘women as property’ and the explicit treatment of enslaved people as property are potentially problematic. Those noting the difficulities of women, or involved in campaigning for improvements in women’s rights have long made the connection (see also Jacobites, American independence fighters). It is particularly hard, now, to understand the viewpoint of those who talked of the injustice of women’s position in terms of ‘slavery’, while living in an age which did not reject the slave trade or the material benefits derived from such exploitation. See, for example,these lines from  a poem which makes this analogy:

 

Lady Mary Wortley Montagu (1689-1762),

Epistle from Mrs Yonge to Her Husband (1724)[ii]

 

All bargains but conditional are made;

The purchase void, the creditor unpaid;

Defrauded servants are from service free;

A wounded slave regains his liberty.

For wives ill-used, no remedy remains,

To daily racks condemned, and to eternal chains.

O’er the wide world your pleasures you pursue.

The change is justified by something new;

But we must sigh in silence – and be true

 

It did strike me today, however, when reading a review of a new publication on resistance by enslaved women, that, if we proceed with extreme caution, there could be some useful transferring of ideas for modern scholars of women’s history from the growing body of work done on enslaved people. In particular, I was arrested by the observation of the author, Rebecca Hall, that slave traders, afraid that there would be resistance by those being shipped into slavery, insured against cargo insurrection, and noting the complete contradiction between (explicitly) calling something a cargo (and really treating it as such – see the Zong Massacre) and yet admitting that there is a human will there. The point which is useful, from the point of view of women’s history, is not exactly the ‘persons as property’  part, it is the ‘subordinated persons as amenable to being put into whichever legal class we want, maybe even two arguably contradictory classes at the same time’ idea which is implicit. That unrepentant mental gymnastics point certainly applies to the history of women’s legal treatment (see one of my recent posts, on petty treason) , and I think deserves some further thought.

GS

16/5/2021

[i] Let’s leave aside the difficult question of defining ‘property’, and comparison of ‘property words’ and expressions in different languages. I am sure a better linguist would be able to do more with the comparative aspect of this, though I do enjoy this distinction between English and colloquial Welsh: ‘I have a cat’ v. ‘Mae cath gyda fi’ (= ‘There is a cat with me’). If you will excuse a reference to extreme high culture, it is somewhat reminiscent of the distinction between ‘You belong to me’ (Police, The, ‘Every Breath You Take’) (stalky and unacceptable) and Swift, T. ‘You Belong With Me’ (a touch desperate, perhaps – the object of Ms Swift’s affections in this classic work clearly not being worth it – but both ‘relatable’ and acceptable).

[ii] Norton Anthology of Poetry, p. 580, footnote – ‘In 1724, the notorious libertine William Yonge, separated from his wife, Mary, discovered that she (like him) had committed adultery. He sued her lover, Colonel Norton, for damages, and collected £1,500. Later that year, according to the law of the time, he petitioned Parliament for a divorce. The case was tried in public. Mrs Yonge’s love letters were read aloud, and two men testified that they had found her and Norton “together in naked bed”. Yonge was granted the divorce, his wife’s dowry, and the greater part of her fortune’. I have long used this as a source in my undergraduate legal history teaching.

Image: Photo by Junbeom Ahn on Unsplash Clearly not a medieval sheep, but there to show property rights – indication of ownership in its ear-tag, see.

Not diverse? But we had a lady lecturer once …

Lectures | Centre for English Legal History (cam.ac.uk)

15/3/2021

 

 

See also: 2021_03_HISTORIC AND LITERARY CONVERSATION LAW_NICOLINI_M (univr.it)

I

 

Main mage information: Men Only © Paul O’Farrell :: Geograph Britain and Ireland

 

Update, 18/8/2021

Hegal Listory?

This strikes me every time I open one of these Oxford History of the Laws of England volumes …. interesting use of surnames only … All very eminent. All (I believe – correct me if I am wrong) male. Even if several of these are only projected volumes, and – who knows – may end up picking up a collaborator or substitute, the fact that the series appears to have been projected as a men-only endeavour, is, in 21st century academia, astounding.

 

 

Photo by Sophie Mikat on Unsplash

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

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

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

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

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

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

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

 

So what?

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

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

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

GS

 

6/3/2021

 

 

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

Photo by Klim Musalimov on Unsplash

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

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

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

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

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

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

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

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

GS

26/2/2021

Update 4/3/2021

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

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

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

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

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

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