Category Archives: Marriage

Covered in translation

Quick snippet: given my background as a native of Abergavenny (‘Mountains, Markets and More’… top tourist advertising, eh?) I am always keen to understand how bits of ‘the common law of England’ have applied in the Land of My Fathers, and so, whilst working on coverture, I have been interested in the question of how the relevant terms: ‘coverture’, ‘feme covert’, etc., would have been translated into Welsh.

This turns out to be slightly complex.  The origin of ‘coverture’ etc. is clearly French, and English language sources continued to use feme covert into the twentieth century (there are even some pieces of legislation which use the term still ‘on the statute book’ – e.g. Prescription Act 1832 s.7 – so, in a sense, it is still part of English common law, offensive though that is). Add to that the fact that ‘coverture’ is not a concept which was known to ‘native’ Welsh law,[i]  so that there is not a ready-made traditional word to use, and we end up with the apparently messy translation issue I have encountered.

The modern specialist Welsh-English legal dictionary,[ii]  has, for ‘coverture’, bod yn wraig briod, i.e. ‘to be/being a married woman’. And I suppose for most modern purposes, that would do, though it does not quite capture the abstract nature of coverture, nor its oppressive implications. What other possibilities might there be? I have done a little digging in old newspapers, and in older dictionaries. This seemed a sensible move because, although ‘coverture’ was not a Welsh law thing, following the 13th C conquest,[iii]  and 16th C union, it was part of the law applied in Wales as in England. That would mean that Welsh speakers could be expected to discuss it. How would they do so?

 

The answer seems to be ‘in English or French, or, if in Welsh, in a variety of different ways’  The big old 1852 (general) dictionary of Daniel Silvan Evans has seven different terms for feme covert. Some, like the modern law dictionary’s version, are essentially ‘married woman’ (gwraig briod, gwraig briodol… ) but there are a couple which are, perhaps, to be trying to link back to aspects of Cyfraith Hywel, and others which have a slightly different feel, adding an extra layer to ‘coverture’. Some link to the old idea of cowyll may be seen in ‘gwraig gowyllog’ and ‘gwraig dan gowyll’.[iv] Others emphasise the concept of nawdd – protection or patronage. Thus, we have the wordy ‘gwraig dan nawdd ac awrdurdod gwr’ and snappier ‘gwraig wrnawdd’.[v] It would certainly be interesting to consider the differences of nuance between the ‘English’ (well, French, but you know what I mean) version (no active party indicated, rather abstract, somewhat neutral in terms of hierarchical positioning) and the masculinity-emphasising, hierarchically positioning Welsh versions (dan is very much ‘under’, by the way).

 

For ‘coverture’, the dictionary goes for ‘gorchudd’, which might be understood more like ‘veiled’, or a series of more generally applicable words to do with lids etc. ‘Cowyll’ gets a mention. It also has ‘bod dan orchudd, nawdd, neu awdurdod gwr’ and ‘cyfiwr neu ansawdd gwraig briod, gwrnawdd, gwrnoddiad’.  Both the protective, patronage-indicating nawdd and the emphasis on the masculinity of the protector are seen in the usage dan nawdd ei gwr which is the translation in an 1882  Welsh language newspaper of ‘under coverture’.

 

So – preliminary investigations suggest that this is a bit involved. The politics of translation, especially as between the languages of a conqueror and the conquered, are pretty complex, and this, I suppose, is an area which will have seemed obsolete before the renaissance of legal Welsh, and technical translation, in the twentieth and twenty-first centuries. There may not be one answer, therefore. But an interesting question, on’d ife?

 

GS

17/04/2022

[i] That sounds positive, doesn’t it, but in fact it’s not because life was great for medieval Welsh women under Cyfraith Hywel – it’s because women just generally could not hold real property, so there was no need to create that sort of abstract idea to handle their status. Weirdly, it is probably the less discriminatory nature of English common law land rules – women disadvantaged but not disqualified – which contributed to lawyers coming up with ‘coverture’. So an oppressive idea arose from a situation of marginal advantage … Women’s history is twisty!

[ii] Robyn Lewis, The New Legal Dictionary (English-Welsh) Gomer Press, Llandysul, Ceredigion, 2003, p.266. Thanks to Gwilym Owen for putting me on to this!

[iii] (still time to pull it back … Owain will come again etc. etc.)

[iv] Cowyll was a payment to a new wife, after consummation of the marriage, a recognition of her (now ‘lost’) virginity. (It’s gowyll here due to a soft mutation following dan, in case you are wondering …)

[v] Extra bonus find on this trawl – the existence of something called a ‘cover-slut’ – some sort of apron to hide one’s dirty clothes (in Welsh, bryntgudd). Definitely one to introduce into everyday conversation wherever possble…

Image: ragged dragon flag … I am sure it says something profound about nations, language etc. etc., but will leave you to draw your own conclusions … Photo by Chris Curry on Unsplash

Coverture points in a cause célèbre

As I have been mentioning (rather a lot!) in recent posts, I am currently pulling together a few thoughts on coverture for what one might generously describe as ‘a paper’, for a conference on that topic.[i] The content will be mostly medieval, with a few links to the law and legal history of the present.[ii] I do enjoy delving into a bit of 19th and early 20th C ‘public awareness’ stuff too though,[iii] and the thing which really strikes me about discussions of coverture in that period is the level of opposition based not on ideas about oppression and limitation of women’s lives, but about the ill effects coverture might have on men, or the ways in which women might use it to their advantage (unfairly, of course …) to escape some liability. I have touched upon this sort of thing in a previous post concerning the deployment  of coverture as a (sneaky) way of escaping debts. Another implication of coverture, which seems to have caused exaggerated fear amongst Victorian newspaper readers and writers, arose in a more felonious context: there was concern that women might take advantage of ‘marital coercion’ to weasel out of the consequences of serious crime.

Since well before the Norman conquest, English law has had some idea of taking into account the possibility that a wife might participate in offending conduct not because she chooses to do so, and is generally a bad lot, but because her husband forces her to offend, or to join in his misconduct in one way or another.[iv] Early accounts are focused upon theft, and to suggest that there was ever a broad ‘doctrine of marital coercion’, such as might be used to avoid the consequences of homicide, would be a fairly large exaggeration. This spectre was, however, raised in the 19th C press. We can definitely see it in accounts of ‘The Bermondsey Murder’ and its aftermath in newspapers of 1849.

The story of this much-discussed homicide was as follows:[v] a man called Patrick O’Connor had been shot with a pistol, and bashed over the head for good measure, in Bermondsey. Result: death. His ‘mutilated remains’ were found in August 1849, (and the corpse’s false teeth seem to have played some part in identification). Suspicion fell upon a married couple, the Mannings.[vi] Mrs (Maria) Manning was caught in Edinburgh and Mr (Frederick Charles) Manning was caught in Jersey.[vii] He then said that Mrs Manning had instigated the whole thing and fired the shot to the head of O’Connor (as he went down some stairs).  Amongst the general enjoyment of a horrible crime, and the potential of a bit of scandal, there was, apparently, some concern that ‘the law of coverture’ would let Mrs Manning off the hook (or the gallows …). That people might be concerned about this was implied by a letter to the Times by one ‘W.E.K.’ of Lincoln’s Inn Fields.[viii] Was this a response to genuine concern or a gratuitous display of having read a bit of obscure law? I am not sure. In any case, W.E.K., plonking down the authority of Hale, reassured Times readers that ‘the plea of “coverture” being urged as a shield over the acts of Mrs Manning’ would not actually work in this context. As he put it, ‘The public may rest satisfied that the plea of coverture will not shield Mrs Manning from the sword of offended justice.’  Phew – so that was all right.  The pair, having sold a lot of newspapers, were convicted and executed.[ix]

The ’marital coercion’ point was not the only ‘coverture’ point relating to this case. We also have discussion of property and allegiance aspects. The property point arose once both the Mannings had been apprehended, when there was something of a dispute as to how to deal with the money found on Mrs Manning at her arrest. Could Mr Manning have it (at least, some of the money not obviously pinched from Mr O’Connor) for his defence, because … coverture and all …[x] That whole ‘man gets all the personal property’ part of coverture could certainly be a bit of a problem in the situation in which spouses were both accused of a crime and were going a bit ‘cut throat’ in their defence, with separate representation to fund … The allegiance point related to jury composition.  ‘Coverture’ meant Mrs Manning was unable to secure a trial by a jury made up half of aliens, as she wished, because she had married an Englishman.

Finally, and more of a ‘women in general’ point than a coverture point as such, there is endless fascination in the gendered nature of reporting of criminal defendants. Far more attention is paid to the clothes and appearance of Maria Manning than is the case in relation to her husband. It also seems very important to know how attractive she was (woman accused of murder: hot or not?). The authoritative view given in the Times of 24th August, 1849 was that, while she was ‘very neatly dressed’, and had ‘easy and graceful manners’, she was not ‘by any means what may be styled beautiful, as some of the papers have asserted’. Ah, glad we cleared that up. Obviously deserved to hang then.

GS

16/4/2022.

 

Image: Maria Manning, from this.  Officially not beautiful, right?

[i] Still looks more like a collection of individual points as opposed to a coherent whole – hey, a bit like coverture itself … and I have in no way just gone in my head from the idea of a paper on coverture to the fact that, in ‘rock, paper, scissors’, paper covers rock ….

[ii] Sorry, early modernists, once again your period is being treated as ‘the flyover centuries’ … love you really …

[iii] i.e. doing lazy online searches of old newspapers …

[iv] Shameless self-citation – see c.6 of my Women in the Medieval Common Law. Other accounts are available.

[v] Times, 18th August, 1849  onwards: there seem to be daily reports,

[vi] Mrs Manning, nee Maria Rue/ de Roux,  was ‘a native of Geneva’, or of Lausanne, though I am sure that her foreignness had nothing to do with the negative attitude of the press …The suggestion was that O’Connor and she were ‘at it’.

[vii] Lots of detail on detectives, police co-operation etc., for those who like that sort of thing; also note that Mr Manning, on the run,  was tucked up in bed by 9.30 – a slightly incongruous touch?

[viii] Times, 29th August, 1849.

[ix] Times, 14th November, 1849. I am, no doubt, sounding rather flippant, but, as well as acknowledging that this is all grim beyond words, I do have a serious academic concern relating to this material, It is this – I note that a fair amount of modern scholarship on coverture takes the line that women (implicitly a fair number of them), rather than being ‘helpless victims’ of coverture rules, managed to use their artificial relegation from full personhood to their own benefit. We should, I think, at least pause to note that this idea of flipping an oppressive doctrine to one’s own advantage was present in the minds of those deeply invested in maintaining discriminatory structures.

[x] Times 5th September, 1849.

Looming deadline …

Currently working on this, for a conference at the beginning of May. Fingers very much crossed that nothing comes up (Covid, incompetence about some paperwork or other …) to stop me going, because the conference looks great, and it is so long since I have been away from the UK. Writing the paper is proving a bit challenging though – in my efforts to avoid duplicating things others will be discussing, or have discussed, I have somehow ended up going very high concept, not to say …. a bit more pretentious than usual … with rather a lot of textile and bedlinen imagery … hmm – a triumph or a disaster???

GS 14/4/2022.

Update, 22/4/2022 – I have dropped the weaver, in favour of something smuttier, (see below) but don’t think that that means it’s less pretentious – no, there is now an additional layer of embracing images … may well be about to disappear up own backside … Ah well, go big or go home, I suppose …

Wedding un-dress: a ‘vulgar error’ occupying Victorian men of letters

No doubt people who know more about the 18th and 19th Cs would be familiar with this, but it was a new one to me …

Whilst continuing my investigations of coverture, I came across [dis-covered?] a rather scandalous supposed marriage custom, which was considered to ward off some of the obligations which a husband would incur, in the normal course of things, in relation to his wife’s debts. The generally sensible C.S. Kenny notes the existence of ‘an old legal superstition … that a man does not become liable for his wife’s debts if she marries him in her shift’.[i] The idea was that this practice of turning up for the wedding without much in the way of clothing showed that the bride was not bringing property to the groom, and, since his obligation to pay her debts could be conceived of as a consequence of, or some sort of balance to, the property she brought to him, he was not undertaking to pay the debts. Kenny, in an essay published in 1879,  tells us that ‘old newspapers’ give examples of such marriages. Checking that up sounds like an enjoyable little project for a less busy time.

For now, I note that there are some exchanges on this in Notes and Queries in the 1850s, referring to these events as ‘smock marriages’ or marriages ‘en chemise’ (in French, so much posher – or more sexy and salacious?) all started off by a question by one J. Eastwood, who found a ‘Curious Marriage Entry’ in the ‘register books of a small village in Wiltshire’ (frustratingly not named! – though there is mention of a parish, Chiltern All Saints! – which presumably = Chitterne, near enough to Warminster), to the effect that Anne Sellwood, who was married to John Bridmore ‘in her smock, without any clothes or head-gear on’, on 17th October, 1714’. [ii] Another correspondent, C.H. Cooper, noted that this business of smock marriages and their supposed effect had been pointed out as a ‘vulgar error’ in a work of 1842, but also that it was ‘still prevalent at Cottenham [Cambs]’.[iii] The field of operation of the ‘vulgar error’ was extended north and west by a further letter from one Shirley Brooks, who reported it in Shropshire, and also came up with an ingenious interpretation of its supposed justification: the bride was conceived of as purchasing her husband’s protection – so entering into a contract – but if she came to him with nothing, then there was no consideration for that purchase of protection. Clever, eh? Mad, but clever.[iv]

It is also said to have been known at Kirton, Lindsey (Lincs) – possibly in even more scandalous form: there is mention of ‘a state of nudity’. As ‘K.P.D.E.’ puts it, on the authority of  ‘a venerable person’, there had been an example of the practice, in that ‘highly civilised town’, in his lifetime, the bride to be leaving her home ‘from a bedroom window’ and putting some clothes on while on the ladder, coming down.‘[v]

It is mentioned, in historical scholarship, in the context of whether or not it preserved a woman’s financial independence.[vi] (Contrast this context with the concerns of the Notes and Queries letter writers, who were really bothered about the other side of the coin: the husband’s independence of claims relating to his wife’s debts).

I find myself wondering how this particular myth might have grown up. What conversations might there have been in the lead-up to a marriage, with brides being persuaded to eschew dressing up, in favour of a spot of streaking? And what place might there have been for the desire to see – and write about  – [more or less] naked women?

GS

8/4/2022

Image – no, not a naked woman. Nor some sort of racy undershirt, of the sort to quicken the pulse of a Victorian Notes and Queries reader. We are sticking to safer ground here, with a general suggestion of love and such … using swans. Things are much simpler for swans … Photo by Wolfgang Hasselmann on Unsplash

 

 

[i] C.S. Kenny, The History of the Law of England as to the effects of Marriage on Property and of the wife’s legal capacity (London, 1879). 94.

[ii] Notes and Queries, 1st ser, vol VI, 485, 561; (1852)

[iii] N & Q 1st ser. vol. VII, 163 (1853).

[iv] ibid.

[v] N & Q VII, 17. Further 18th C examples are given, from Kent and London, and a later query mentions an early 18th C instance from Yorkshire: N & Q vol. 152 (1927) p 169, by P.D.M. See also R. Chambers, Book of Days vol. 1 (London and Edinburgh, 1863), 259, cited in Erickson, below.

[vi] e.g. A.L. Erickson, Women and Property : In Early Modern England, (London,  1995( 146.

‘A buxom dame’ playing coverture games?

On a bit of a fishing trip for coverture snippets in 19th C newspapers (diolch unwaith eto,  Welsh Newspapers Online), to get a sense of ‘lay’ understanding of the law in this area, it came home to me how interested, and how frequently disapproving, 19th C newspapers were when use was made of coverture as a defence to a claim for payment – i.e. when a woman said that she was not obliged to pay a sum of money, because she was married at the relevant time. The tone of reports is very much that this is something of a dodge. My instinct is always to be on the woman’s side (not an academic article, so I don’t have to pretend to be all neutral observery) since she is there existing within a system which does not work in her favour on the whole, and why should she not use this defence, which comes as the logical consequence of discriminatory property rules? She might well be married, so why should she not use that fact?

There is what struck me as a slightly unusual report of this sort in the Pembrokeshire Herald and General Advertiser for 15th February 1850. This tells of a case in far-away Warwick, at the county court. There, the ‘buxom dame’ of my title, a certain Mrs Knowles, was facing one Mr Tidmarsh, a draper. The woman was dressed in mourning clothes, ‘weeds’, to mark the passing of her recently deceased husband, and the draper was trying to make sure that he was paid for supplying them: ‘£5 17s. for funeral articles of female attire’. The potential problem for the likes of Mrs Knowles was one of timing: we would imagine that the mourning attire would be ordered after her husband’s death, and that, therefore, she would be a widow. That, in turn, would mean that she was not a feme covert any longer, and could not use the coverture defence to a claim for payment for the clothes. Mrs Knowles, however, had an answer to that: she had, she said, ordered the clothes during her husband’s life, at his command. She thought that that would put the deal safely back into the ‘during coverture’ time-frame, and let Mrs Knowles off the hook. It didn’t work, however – coverture did not cover what was thought to be ‘too ready compliance’ with a request to get the mourning clothes sorted. Drapers and suppliers of gloomy black things across the country probably breathed a sigh of relief. Had it gone the other way, they might have had real problems getting paid when a husband died.

Maybe Mrs Knowles was ‘trying it on’, but the idea that Mr Knowles had in fact given a ‘dying command’ of this sort isn’t entirely impossible, is it? The Victorians were so very formal and maudlin about death ritual that I can just about imagine some expiring bloke obsessing about what his (buxom) wife would wear at the funeral, and trying to get it all organised ahead of time.

Anyway, as it turned out, Mrs K would have had to stump up for the deathwear – but at least the prevailing custom of remaining in black for quite some time would have meant that she would get a decent amount of use out of it, I suppose.

 

GS

4/4/2022

Image: some black fabric, such as might be supplied for funereal purposes. Photo by Julissa Santana on Unsplash

Coverture, consciousness and chocs

I am looking forward to going to a conference on coverture, in a few weeks, and trying to find a few new angles on the topic. I am interested in the medieval aspects, obviously (Bracton’s sister, not Coke’s or Blackstone’s, right?). But also rather intrigued by the other end of things – the dwindling and shadows left behind in the twentieth century in particular, though there are still a few neglected survivals in ‘the statute book’ which could and should be extirpated.

A smile was raised when I came upon a late (1945) manifestation of unity-of-persons coverture theory, via a Modern Law Review article, and then some newspaper reports. It came up in a criminal case, but we are not talking about the higher end of criminality … the heinous offence was that of a man travelling using the return part of his wife’s ticket.

Arthur Donald Floyd was hauled up before Tonbridge magistrates in 1945, accused of an offence under the Regulation of Railways Act 1889 s. 5(3)(a) and by-law no. 6 of the Southern Railway Co, in having used the return portion of a ticket which his wife, Doris, had bought, and which was, explicitly, non-transferable.

 

Floyd was found not guilty.

 

So far, so banal (and so, so trivial …). The interesting part is that some  newspaper reports stated that the reason for the not guilty verdict was based on the unity species of coverture, i.e. it did not matter that the ticket was non-transferable, since it had not been transferred: husband and wife were one person in law. Now, it seems that this unity view was aired in the case, but it was not the reason for the decision. While the Times report of 5th December  1945 puts the observation that a man and his wife were one person at law in the mouth of the Chairman of the Bench, Mr H.Vivian Phillipps, it seems that this unity point was made by or for Mr Floyd, not by the magistrates. Mr Phillipps wrote to the Times, and his letter was printed on 8th December. It insisted  that the not guilty finding was based not on a deduction from coverture/unity, but on the view that Donald Floyd had not in fact intended to defraud the Southern Railway Company.[i][ii] The unity idea seems to have come not from the magistrates but from Floyd himself. who, in the account of the Sevenoaks Chronicle and Kentish Advertiser, said he thought – indeed, was sure – the rule about not using somebody else’s ticket did not apply because spouses ‘became as one in the eyes of the law’  when married.[iii]

 

It seems rather an interesting example of the absorption into general consciousness of the possibility of using a unity conception of marriage as a way out of a legal difficulty (and, note, by a man rather than a woman …).

Possibly even better was discovering a usage of coverture hitherto unknown to me at least – in relation to cakes and chocolates! At times indicating ‘icing’, at times ‘coating’, it comes up in a number of (amusingly non-slick) advertisements, and the odd account of the food rationing rules of the 1940s. In the 1920s, Clifton’s chocolates (‘the chocolate with an unconditional guarantee’) had ‘the finest coverture’ (as well as ‘intriguing’ flavours – not sure I want my chocs ‘intriguing’, really)[iv] In the 1930s, Warren Chocolates had ‘good’ coverture as well as ‘original’ centres (sardine? mustard? Again, I am not sure I really want originality as opposed to loveliness in a choc, though, to be fair, we do get the sharp claim that they are ‘very enjoyable’ – got to love 1930s advertising … ).[v]

In the 1940s, as we get into rationing, there is much concern about the future of cakes – especially wedding cakes. In July 1940, there was reassurance by the Ministry of Food that chocolate coverture would not be prohibited (unlike some other cake adornment options).[vi]

 

Obviously, I am now

 

  • trying to see a way to use chocolates with original and/or intriguing centres in a pretentious way to illustrate coverture in law and practice
  • wondering whether Donald and Doris Floyd became more hardened criminals, slipping down the enticing slope from railway ticket offences to … whisper it … the wrong sort of cake icing ….

 

GS

31/3/2022.

 

[i] Williams, G. L. (1947). The legal unity of husband and wife. Modern Law Review, 10(1), 16-31; Times, 5th and 8th December, 1945, 9th May, 1846.

[ii] Poor old Mr Phillips: trying to make sure things were correct … in fact the lack of intention was later found to be irrelevant, since the offence under the Regulation of Railways Act 1889 s. 5(3)(a) and no. 6 of the by-laws of the Southern Railway Co, was constructed in such a way that a lack of intention did not mean a lack of guilt.

[iii] Sevenoaks Chronicle and Kentish Advertiser, 7th December, 1945, ‘Man Can Use Wife’s Railway Ticket’.

[iv] Scotsman, 12th  April, 1924

[v] Waterford Standard, 17th April, 1937

[vi] Scotsman, 15th July, 1940; Daily News (London), 26th  September, 1941 – this one is headed ‘Iced Cake Law’ – how has this not become a sub-discipline in Law Schools???

Image: Photo by Jessica Loaiza on Unsplash

Who is feeling peckish?

 

Courtesy, curtesy and houses of cards

In a few weeks, I will be amongst the speakers at an online launch for the collection of papers by the late David Sellar, edited by Hector MacQueen. My job is to give some thoughts about the importance of Sellar’s work and ideas, from the perspective of English legal history.[i] There is a great deal in the book which would be of relevance to this theme, but one thing which leapt out at me at once was an old friend – his article on courtesy.[ii] Courtesy, or ‘tenancy by the courtesy of Scotland’ was the life interest (liferent) which a widower might acquire in land brought to a marriage by his wife, on certain conditions, and was part of Scots common law from the medieval period onwards. A very similar institution existed in the common law of England: ‘tenancy by the curtesy of England’. The reason this Sellar article is an ‘old friend’ is that it is something I have consulted in at least two different projects of my own. The first of these was work leading to an article on medieval English curtesy; the second a very recent project  – a chapter on intractable factual uncertainty in the early stages of life, for a collection on intractable factual uncertainty more generally. Sellar’s article was very useful for both of these projects.

The article concerns a particular dispute at the highest levels of fourteenth-century Scots society, the opposing parties being James Douglas and Thomas Erskine. James Douglas (JD), one of the many holders of that name who crop up in the history of Scotland, would later be known as Sir James Douglas of Dalkeith. He was nephew and heir-male of William Douglas of Liddesdale (WD: there are quite a few William Douglases to deal with as well, our William was killed by another William Douglas, one who would later be first earl of Douglas. The fact that JD was heir-male meant that on WD’s death, he acquired the lands which were limited to the male line. The other lands went to WD’s daughter, Mary. Mary’s marital history is quite interesting (there was an annulment in there) but the key fact for these purposes is that she was married to Thomas Erskine (TE), at some point before 1367. Mary died giving birth to their child, and the child – to put it neutrally – did not survive. JD was Mary’s nearest heir (and if this took full effect, he would ‘scoop the pool’, taking all of the land previously held by WD. TE, however, had different ideas. He claimed to be entitled to a life interest in the unentailed lands, which Mary had held, on the basis of tenancy by the courtesy of Scotland. This claim could only succeed if TE passed the test of having produced a child with his wife, Mary, the child having been born alive. TE said that this had happened; JD said it had not. The case, then, came down to a dispute over whether a child, now dead, and certainly dead soon after its birth,  had ever been alive. This was not an easy matter to determine – what was ‘alive’, and how could the presence or absence of life be proved? You can see why this sort of question has featured in my contribution to the ‘intractable factual uncertainties’ project. Different legal systems came up with different answers to this question, if it could not be avoided, but the way that Scots law dealt with this one is both unusual and more exciting than one might expect: the thing was to be tried by judicial combat, and this was ordered in 1368.

Trial by battle has long been a favourite topic for my undergraduate (English) Legal History classes. It garnered even more attention than usual, recently, as a result of the film The Last Duel. Generally, it is discussed most often in the ‘criminal’ context, but it was also a possibility in relation to certain land actions. The idea, of course, was that the truth of a matter was submitted to the judgment of God: God would favour the person[iii] with the just cause.

Those working on the history of English common law are familiar with the idea that trial by battle might apply in the old, formal writ of right, though there was a generally-more-palatable alternative in the grand assize. It does not seem entirely surprising that it was thought that the solemn question of entitlement to land could be decided by battle – after all, land disputes in a non-judicialised setting would quite probably be sorted out in this way. The use of battle to determine a more limited factual question, such as whether a child was ever alive, is, however, unfamiliar. Evidence relating to such determinations in English common law comes from the less solemn ‘petty’* or ‘possessory’  assizes, which did not purport to make a holistic decision about the ‘right’, but to resolve a more limited dispute. This English evidence  shows the use of groups of jurors, perhaps drawing on the expertise or observation of those present at the birth (who might even be – shock, horror – women!). The Scots difference is, therefore, really interesting. The case was a little anti-climactic, in that, although there was serious preparation, and purchase of all manner of warlike equipment, in the end the dispute was settled. Nevertheless, the fact that battle was even in the running as a way of deciding such a delicate question of newborn life is instructive.[iv]

As well as this big difference between systems on the matter of battle, the similarities between the English and Scots law in this area should be borne in mind. The structure of courtesy/curtesy was broadly similar in both jurisdictions, both named it in ways which ascribed particular generosity to their own system, and both made the widower’s right depend on having fathered a live, legitimate, child. Furthermore, in both cases, the test for live birth was expressed in terms of hearing the newborn cry ‘within four walls’. This does not come up directly in the Erskine-Douglas documentation, but there is a splendid quotation in Sellar’s article, from Skene, which mentions the need for the child to make a sound, using some fantastic language – ‘cryand’, ‘brayand, squeiland, or loudlie cryand’.[v]

Such similarities point to a common origin, and a degree of borrowing (the likelihood being that the smaller Scots system was influenced by the larger English common law system, as Sellar argued). Questions of origin of rules and institutions are certainly important and interesting, but comparison beyond the point of origin is at least as crucial. In the area of c[o]urtesy, as in many other areas, there are large gaps in our knowledge. Despite the relative wealth of records of practice for England as opposed to Scotland, my study on curtesy still left me with substantial uncertainties as to what was going on between the end of the thirteenth century and the early modern period. In particular, what was the status of the sound test during this period: at what point did a less prescriptive requirement for evidence of such signs of life as would satisfy the jury become usual? Where there is an analogous piece of law in Scotland, as is the case here, in a case of insufficient evidence, it seems not inappropriate to consider it as something which can help us to ‘fill in the gap’. In doing this, we must, of course, be alive to differences in social and legal context, and the task of using two less-than-secure sets of evidence to hold one another up can be a delicate task, reminding me of the process of creating a house of cards, leaning one card against the other so that both stay up, at least for a while (a favourite childhood activity of mine). Nevertheless, there are books and articles enough on Scots legal history to put a decent understanding within the reach of the most insular (if England was an island …’precious stone set in the silver sea’ and all that)[vi] English common lawyer. Not making the effort is not only ‘missing a trick’, but, frankly …

discourteous.

GS

3/2/2022

 

 

The image is from Wikimedia Commons.

[i] I confess to enjoying the fact that the person invited to talk about English law is, in fact, a bit of a Cymraes.

 For England, see Wales, for once …

[ii] W.D.H. Sellar, ‘Courtesy, Battle, and the Brieve of Right, 1368’, in H. MacQueen (ed.), Continuity, Influences and Integration in Scottish Legal History (Edinburgh, 2022), c. 14, originally ‘Courtesy, battle and the brieve of right, 1368: a story continued’, in W.D.H. Sellar (ed.), Miscellany II (Stair Soc. vol 35, 1984) 1–12.

[iii] Well, ‘man’ – this was a ‘men only’ procedure.

[iv] It is important to bear in mind, also, that the high social status of the parties contributed to what was seen as the acceptability of trial by battle. As Sellar noted, this combat was to take the form of a ‘duel of chivalry’, albeit over a question of land rights.

[v] Sellar, 301-2; Skene, De Verborum Significatione (1597)  sv “Curialitas”. Quite fascinatingly, the Skene quotation makes mention of non-human noises, just as a passage in Bracton IV:361 does, but, while Bracton distinguishes the sound of a human child and a monster quite clearly, Skene muddies the waters a little, musing that the same word is used for both children and horses, harts ‘and uther beastes’.

[vi] Richard II, Act II, Scene I.

Death and betrayal amongst the medieval ‘Chipping Norton set’: (yet) more on petty treason

Not too long ago, I noted a case from 1418/19 in which a woman called Marjory appealed two men of offences relating to the death of her husband, John Chaloner, only to be appealed herself for this same death, and being convicted, and, apparently, burned, for ‘petty treason’ (see this blog post). Well, now another of these double appeals has turned up: cue a bit of comparing and contrasting!

A pair of entries on an Oxfordshire gaol delivery roll for 1407 tell us that Emma, widow of John Handes, had come and appealed Roger Sutton of the death of John her husband, giving the required pledges for prosecution. Her appeal alleged that, on Wednesday  6th July 1407, at Chipping Norton, Roger had killed John with a dagger (price 1d), feloniously. Rather than pleading guilty and going to jury trial, as I was expecting, Roger decided not to put up a fight – he said he could not deny this, and so all that was left for a jury to do was to appraise his assets. There was not much to appraise: there were, apparently, some clothes, worth 20d, but no land or other goods or chattels beyond the clothes. The man himself was to be hanged.

The second appeal was by William Handes, brother and heir of the deceased John. He appealed Emma of the death of John, and his pledges to prosecute were noted. His appeal explained that Roger had done the actual killing, but Emma advised and ‘consented’ to it. She was also alleged to have paid Roger for his felonious work (2s). Unlike Roger, Emma was ready to fight. The jury found her guilty though, and sentenced her to burn. Emma had no assets, it was recorded. She did not burn, however: first she had the sentence deferred, by claiming pregnancy, and having this confirmed by a ‘jury of matrons’. Generally, deferral means deferral, but, in this case, this period seems to have given Emma a chance to seek a more permanent way to avoid execution: according to the patent roll, she was pardoned.[i]

Spot the differences?

Clearly, the later Chaloner case and this one share a basic pattern: W appeals X for the death of H; H’s brother and heir appeals W. X and W are both sentenced to death; W claims pregnancy. There are obvious differences, in that the pregnancy claim is accepted in Emma Handes’s case, but not in Margery Chaloner’s, and in that Emma manages to secure a pardon (whereas, as far as my investigations have been able to establish) there was no such pardon for Margery.

Another difference is that there is not the intriguing overlap in personnel in the Handes case which we see in the Chaloner case: in the latter, both of the widow’s pledges to prosecute were apparently relatives of the deceased husband, including the brother who would appeal her; in the Handes case, that is not obviously the case. Following on from this, while I do wonder whether there might have been some pressure or deception in the Chaloner case, helping Margery to bring an appeal against others, and then appealing her too, to ensure that everyone involved was convicted, or, indeed, to get rid of somebody who would have had claims on the deceased’s property) it is harder to see that in Emma’s case. It is still hard, however, not to be suspicious that the motives of her brother in law in appealing her might not have been entirely about getting justice for his brother.

It is worth a brief word about the pregnancy deferral-pardon element of the Handes case as well. Here we see the jury of matrons in action. The fact that they found her to be pregnant suggests that she was in a fairly advanced state of pregnancy, but the months allowed to her presumably gave her a chance to make her request for a pardon. Just what lay behind that is unclear – was the allegation of her involvement found to be trumped-up nonsense, or was there some other reason for the exercise of mercy? The short note of the pardon does not tell us, unfortunately.

A final intriguing element is that, as well as her pardon for the conviction on the appeal brought by her brother in law, Emma Handes also received a pardon for another appeal, in this case brought by a certain Roger Taillour of Chipping Norton. Could this be the same man as Roger Sutton? And where is this approver appeal? I haven’t turned it up yet, though it seems unlikely that it is made up. If it does exist, it brings in yet another dimension to the case – some sort of odd vicious triangle, which certainly needs some more thinking about. There may be another instalment, if I find more …

 

GS

12/9/2021

[i] CPR 1405-8, pp. 371, 470, 10 Oct 1408.

Image – slightly gratuitous church. It’s St Mary’s Chipping Norton. Well somebody probably went there at some point, in between all of the killing and accusing, didn’t they?

Neither loving, nor honouring, nor obeying the law on petty treason?

Today’s tale of less-than-happy relationships comes to you courtesy of entries on legal records from   1439.

A record of the Inquest at Bromham, Bedfordshire, on 18th May, 1439, on the body of Alice wife of William atte Halle of Bromham, labourer, notes the jurors’ view of events leading up to Alice’s death. They said that Alice had been pregnant, and suffering from a variety of complaints (whether pregnancy-related or not is unclear), and William had made the decision to kill her. On 7th May at Bromham, he had a certain dish (a posset? it would seem to involve milk curds – the word is balductam) made, and put various venemous powders in it, i.e. arsenic and resalger),[i] and gave the dish to Alice to eat, saying that it would make her well, and, believing his words, she ate, and was immediately poisoned, swelling up, being ill until 17th May, and then dying of that poisoning. He had, therefore, feloniously killed his wife. There is more: a record relating to the gaol delivery at Bedford on 30th July, 1439 notes that William was there because he had been indicted for having feloniously killed Alice, by putting poison (arsenic and resalgar) in her food on 7th May, so that she had died on 18th May. Above the entry, unless I am misreading it, we see a note that he was found guilty, and ordered to be drawn and hanged.

So what?

  1. The medical and personal information

There are some nuggets in the inquest record which are worth noting.

The account of the poisons used suggests a knowledge, and an availability, of these substances, down to a relatively lowly level. As for the swelling effect, and the lingering for 10 days, that is something which might be of interest to medical historians – is that plausible? Can we say anything about that without knowing how much was allegedly used, and how would one know that swelling was due to poisoning as opposed to pregnancy or other pre-existing conditions?

The narrative of William’s lies about the food being likely to help Alice get better also tells us something about plausible relationship dynamics: a wife would be likely to trust her husband; a husband of ‘labourer’ status might be involved in his wife’s care. I suppose it also tells us something about accepted nutrition for sick pregnant women.

  1. The sentence

Drawing and hanging was the classic punishment for ‘petty treason’. I have been collecting examples of spousal homicide for quite a while and I had got used to seeing a nice (well, not nice at all, but you know what I mean) neat distinction between the treatment of W kills H (= petty treason, those convicted are burnt) and H kills W (= ‘just’ homicide, those convicted are hanged). This looks like a court – or somebody – ‘getting the law wrong’ then. Maybe it’s just a ‘blip’, or maybe it shows us particular distaste for this offender, or these facts. On the face of it, it is presented as a ‘normal’ homicide – all we get in terms of motive is the usual ‘malicia’. There is no use of ‘treason words’ like proditorie, as we might see in a servant kills master, or W kills H case. There is the idea of William ‘imagining’ Alice’s death, which is something of a link with ‘high’ treason jurisprudence. Other factors which might be relevant are (a) the poisoning and (b) the pregnancy. Poisoning would be singled out as particularly worthy of spectacular punishment in the next century.[ii]  Might this suggest a whisper of a previous connection between treason and poison? As for pregnancy – well, the question of the common law’s attitude to the foetus, and its possible ‘rights’ is a huge topic, which I plan to get into rather more in the coming year, but suffice it to say at this point that, while it was thought worth mentioning by the inquest, the pregnancy is not mentioned in the gaol delivery entry, which, I think, is some indication that it was not considered to be the key to the raised level of offence.

An interesting oddity then, and I will have to work out how to fit it into my ‘spreadsheet of doom’ on petty treason.

GS

17/8/2021

 

[i] We’ve come across this combination before in the lore of spouse-offing: see this post.

[ii] ‘Acte for Poysoning’ (22 Hen. VIII c. 9; SR 3, p. 326).

Image: general theme of love and such … this one is clever but just a little sinister. Or maybe that’s just me …

Photo by Tim Marshall on Unsplash