Category Archives: Marriage

Less of a ‘honey trap’, more of a cake trap? Bakes and fakes in fourteenth century Essex

Possibly due to the presence of all sorts of lovely baked goods and confectionery in the post-term exhaustion/lead up to Easter, this intriguing little allegation jumped out at me today – from the Rex section of the King’s Bench Michaelmas 1367 Plea Roll. For once, it’s not some piece of egregious and grievous violence – violence there is, but that’s not the main thing to think about: this is one to direct the mind towards far more interesting things –  love and relationships, vocabulary …  and cake.

The allegation in question was one amongst several indictments against a certain Robert Sterlyng or Starlyng of Essex,[i] also, in this case, involving the participation of his wife, Margery.

According to the indictment, back in 1362, Robert had had his  wife secretly get Roger, rector of the church of Little Birch, to come to Robert’s house, also in Little Birch, to eat a turtellum or cake [there are different wordings in different versions of the charge] pro amore. There was not much amor for the foolish Roger, however. He came as he was bidden, and once he was in the house, in the company of Margery, Robert popped up, waving a sword, and beat Roger. He also menaced Roger into cancelling a debt which Robert owed him, and handing over to Robert and his wife the 40d which Roger had on him. It was also alleged that Margery, on Robert’s order, asked Roger to come to a secret place called ‘Everardesdossous’ [one to think about – tempting to think ‘doss house’, but surely that’s far too late]  in the vill of Copford, that Roger came along and surprise, there was Robert! The latter drew his sword and attacked Roger. Roger, fearful of death, agreed to pay Robert 40s. [There were also other, unconnected allegations against Roger, of a more normal beating and robbing type.]

It is all fairly low-level, small town bullying by the sound of it, but there are a couple of interesting points. First, there is this business with cake, tarts and love. Was it just an offer of free cake (tempting enough, obviously)? Was the suggestion that Roger was being invited for some sort of sealing or mending of friendship ceremony, with Robert (in the manner of a ‘love-day’ – but with cake)? Was there a particular tradition of cake-sharing at the Feast of the Invention of the Holy Cross, which was the nearest big holiday to the first alleged incident, or is the ‘pro amore’ thing about something a bit steamier (yes my mind did just go to steamed puddings) between Margery and Roger? Obviously, it would also be good to know what sort of baked item it was supposed to be, and what difference there might be between a ‘cake’ and a ‘turtellum’ (tart? tartlet?). The other thing which interests me is the role of Margery. We may note that the indictment is brought against Robert alone, despite the fact that Margery seems to have taken a quite active role, at times including taking action when Robert was not present. This choice, bringing the indictment against Robert alone, is a tiny piece in the puzzle of the development of the ‘doctrine of marital coercion’, something I dealt with to some extent in Women in the Medieval Common Law, and which was still very much under construction (or being baked?) in the fourteenth century. On that front, this is a good example of the husband’s orders (as opposed to his immediate presence and active pressure) apparently sufficing to shield the wife from joint responsibility, as far as those drawing up indictments were concerned. There is definitely room for further work on this issue. (My working theory is that there were rather different ideas in different sorts of offence, rather than one general doctrine, at this point in time).

We should return to the adventures of Robert Starlyng. Eventually, the Plea Roll entry tells us, Robert was acquitted on all charges, via a combination of jury verdicts and technical failings in the indictments. So, I can’t help but wonder, did Robert and Margery get away with extortion (have their cake and eat it?) or were the accusations a lot of ‘half-baked’ nonsense?

GS

27/3/2021

[i] KB 27/428 m17, AALT image 249.

Image: Reconstruction – a cakey/tartletty thing with raspberries. No idea what sort of tempting foodstuff I should have in my mental picture of this case, but this one looked rather desirable. Photo by Alexandra Kusper on Unsplash

A Bad Man called Bonehomme? Crime and non-punishment (?) in medieval Yorkshire

This snippet from the 1360s has some interesting sub-snippets relating to crime, (non-) punishment, marriage, women and pardons. (Great build-up, I know, but stick with it…)

The patent rolls for May 1364 contain a pardon for one Master Hugh Bonehomme of Bugthorpe (Yorks). The Rex roll of the King’s Bench for Trinity term 1364 shows that Hugh had been indicted (under slightly different versions of his name) on some serious charges – the homicide of Gilbert son of John Grayve of Bugthorpe, and the ravishment/abduction (raptus) of Agnes, daughter of John Gyles of York, as well as allegedly having committed a currency export offence, and having challenged another man to a duel, or perhaps attacked him (there is mention of a shield and lance).[i]

The homicide is interesting in that the KB entry has a variety of different charges, with different variations of the alleged victim’s name – at first sight, it seemed to be suggesting that Hugh was something of a serial killer, but there seems to be some repetition. Otherwise there is nothing noteworthy in it. It is the abduction of Agnes which is my focus It was alleged that Hugh had acted with others in this, that it had happened in Lent 1362, at York, and that the abduction had been part of a dastardly plan. The offenders had used coercion and threats to make Agnes consent to marry a man called Simon Porter. Forced marriage is not unknown in this period (I have at least one example in Women in the Medieval Common Law (c.6), and it was enough of a perceived problem, at least in so far as it concerned well-off women, that there was specific legislation on the matter in the fifteenth century (which I considered somewhat in Imprisoning Medieval Women). This was not just any forced marriage, however, it was, allegedly, a forced invalid marriage – since Agnes already had a husband: Thomas Gillyng. Thomas was allegedly down some goods as well as a wife, because the entry and the pardon on the patent roll both note that Hugh and his associates removed some of Thomas’s chattels.[ii]

In the case of Agnes, there is, for once, no suggestion of ‘not unwillingness’ or complicity with regard to the leaving of her husband. In the plea roll, we have the allegation that the offenders took, ravished and abducted her with force and arms, and then used compulsion and threats: per cohercionem et minas, they made her consent (consentire) to contract an unjust marriage (matrimonium iniustuminiustum because of ‘the other husband’, presumably).[iii] I think it is very much worth noting that ‘consent’ here is used to mean something far from free, far from voluntary. It should be a further warning against assuming we know what these words apparently denoting an exercise of free will mean, when we see them used in shorter, less contextualised, entries.

I have not come across quite such an outrageous forced ‘marriage’ before – and it will be interesting to see whether there is any further information to be had from the perspective of the Church – did any sort of matrimonial proceedings follow, to ensure that the position was clear? Did she get back to her real husband, or did he die too soon? Did she actually end up with (apparently) dodgy Simon?

Following the case through to its bitter end at common law, though, surprise, surprise, there are no serious consequences for Hugh. Clearly a man with influential friends, his pardon is said to have been granted after requests by  John II of France (d. April 1364) and by certain cardinals. He was a man of some learning – called ‘Master’ (sometimes), and the Plea Roll describes him as a proctor/procurator. He had, perhaps, endeared himself to the hostage king in this capacity. The pardon – again, surprise, surprise – has absolutely nothing to say about Agnes. Jurisdictional responsibilities would, of course, dictate that the (in)validity of her marriage to Simon was something for the Church to sort out, if there was a dispute about it. Nevertheless, the entries on the patent roll and plea roll relating to Hugh and Agnes do underline the gendered nature of the concerns of common law, and its exercise.

GS 18/3/2021

[i] CPR Edw III 1361-4, 515; KB 27/415 m. 35d (IMG 455)

[ii] He is described as having been her husband ‘then’ – so possibly he also lost his life after these events.

[iii] Roman law has much to say about matrimonium iniustum, but I think the intention here is simply to call it against the rules, because of the existence of a husband.

Discourtesy about curtesy: land squabbles in Victorian ‘Brecknockshire’

Another set of documents on the list for the next National Archives trip involves a raid into the nineteenth century, to tie up some loose ends relating to tenancy by the curtesy (widower’s right to hold land after wife’s death, which, at common law, depended on the birth of a living child to the parents). (It may also involve a pleasant field-trip to Powys). I need to know more about the case of Jones v Ricketts (judgment: 5th May, 1862).[i]

This was a case with two main points, and seems to have drawn contemporary attention principally for the ‘other point’, i.e. the one not relating to curtesy. This concerned sale at an undervalue of an interest in land. It seems to me, though, that there are probably some interesting gleanings to be had, on attitudes to curtesy, and the big question of life, and how to prove it, in the case, and the papers relating to it, which seem to be available in the National Archives.[ii]

The case involved a farm. Its recent history was that, in 1850, one Catherine Jones had been the freeholder. She had then married Ricketts (the defendant in this case).  In August 1852, it was said that they had a child. (The report, in slightly judgey fashion, sniffs that ‘one child only’ was ‘born of the marriage’). This alleged live birth was disputed by the plaintiff, Jones. The plaintiff, according to the report ‘insisted [that the child] was not born alive’. The defendant, on the other hand, claimed to be tenant by curtesy by virtue of this birth, and said that the child was ‘born alive but died shortly after its birth’. It was not disputed that Catherine had not lived very much longer – dying in April 1853, nor that, at that time, the right to the remainder was with Thomas Jones, Catherine’s father.

Not long after his wife’s death, Ricketts bought Thomas Jones’s interest for £ 200, and it was conveyed to him (using the correct formalities: by deed, on 11th June, 1853. Clearly not too deep in grief to be unable sort out his property rights … I am rather taking against Mr Ricketts …)

The next relevant point with regard to the interests was in December 1859, when Thomas Jones died. He died intestate, and the plaintiff, Jones (a Jones in Wales – that’s going to be a fun search …) was his heir under the intestacy. Jones the Plaintiff then sued Ricketts, challenging his right as tenant by the curtesy (on the basis that there was never any live issue of the marriage), and alleging that the sale had been at a serious undervalue, so should be set aside.

On the undervalue point, the plaintiff stressed that, in 1853, Thomas Jones was ‘in reduced circumstances’ and was ‘living with the defendant in a dependent position’, and, furthermore had had no independent professional advice (all sounds a bit Barclays Bank v. O’Brien/undue influence, doesn’t it, Land Law fans?). He claimed that the freehold of the property, Brechfa-Isha, was worth at least £1000, and the reversion much more than £200. He also suggested that the £200 had not actually been paid. He asked that the deed conveying Brechfa-Isha to Ricketts ‘might be declared fraudulent and void, that the Plaintiff might be let into possession, and that the Defendant might account for the rents’.

There was, apparently, evidence for and against the live birth, though the court came down in favour of it. (This is where I am hoping the papers will give some more information as to just how the argument went, and what sort of proof was regarded as sufficient). Ricketts was tenant by the curtesy.

On the undervalue point, the court agreed with Jones the Plaintiff that the reversion had been undervalued – it was worth £238. There may be something of interest in the method of valuation of the land, and on the costs points, for those who like that sort of thing, but I am not sufficiently ‘up’ on either aspect to make any informed comment.  It does seem to have been the ‘sale at an undervalue’ aspect which got the attention of the press in Wales (including one of my favourite publications, The Merthyr Telegraph and General Advertiser for the Iron Districts of South Wales – sounds a jolly paper, doesn’t it?).[iii] The curtesy point seems to have been uncontroversial, which is interesting for the common narrative of dower and curtesy being rather irrelevant, and perceived as a silly hang-over from the past, at this point. The question of ascertaining whether there had been life, or not, in the unfortunate child of Catherine and her husband really does not seem to have grabbed people’s attention. It is a lesson, I suppose, in the distance there may be between the questions we find important, and those which engaged the interest and critical faculties of lawyers, and journalists, of the past.

There is some accessible evidence about the characters involved. The Welsh census of 1851, shows an entry for ‘Llandefalley, Breconshire’, (now Llandefalle) with a household including John Ricketts, aged 45, a farmer, Catherine Ricketts, 27, his wife, her father, Thomas Jones, widower, 62, labourer, plus four Ricketts sons and several servants, and a visiting elderly stocking-knitter.[iv] The name of the house is Trebarried, and it looks to have been a very substantial place.[v] There is also a record of Catherine’s burial, in April 1853, at the church in Llandefalle, in ‘Brecknockshire, Wales, Anglican Baptisms, Marriages and Burials, 1538-1994 (p. 39).  I am yet to find a record of the child’s birth or burial – which is not to say it does not exist (just – lockdown). And there may be a cemetery tourism trip on the cards, to see if I can track down any of the adults involved (would the birth be mentioned on Catherine’s gravestone, if it exists, I wonder). Also not irrelevant to this plan is the fact that the relevant church in Llandefalle (St Matthew’s or St Maelog’s according to allegiance) has medieval paintings![vi] Now I’m definitely going to have to persuade somebody who can drive to take me there, when all this is over.

GS

13/3/2021

[i] Jones v Ricketts (1862) 31 Beavan 130; 54 E.R. 1087  Curtesy case, Brecon. investigate. S. C. 31 L. J. Ch. 753; 8 Jur. (N. S.) 1198 ; 10 W. E. 576.

[ii] Cause number: 1860 I/J96. Short title: Jones v Ricketts. Documents: Bill,… | The National Archives

[iii] ABERDARE.|1863-03-20|The Cardiff Times – Welsh Newspapers (library.wales)

OUTLINES OF THE HISTORY OF POLAND.|1863-03-21|The Merthyr Telegraph and General Advertiser for the Iron Districts of South Wales – Welsh Newspapers (library.wales)

[iv] subdistrict of Merthyr Cynog, 6b piece 2489, folio 669, p.1, household 1,

[v] Trebarried, Llandefalle | Coflein I have not managed to turn up ‘Brechfa Isha’ as a place name in the area – though we do see upper and lower Brechfa (Uchaf and Isaf – lit. superlatives, but would translate as comparatives) on this map: Brechfa-isaf – Recorded name – Historic Place Names (rcahmw.gov.uk) ‘Isha’ is, presumably a corruption of the latter.

[vi] Llandefalle | Felinfach Community Council St Maelog, Llandefalle © Philip Pankhurst :: Geograph Britain and Ireland

Photo by Hendrik Schlott on Unsplash

Slow Burn to No Burn: sex, death and survival in fourteenth century Somerset

How nice it is to be able to get at the treasure trove of scanned plea rolls on the AALT website (AALT Home Page (uh.edu) ) once again, after the storm/power disruption of recent weeks. Back I go to my searches of KB 27 plea rolls. I am looking for information on my projects for this year and next year, but, from time to time, other things pop up, and seem worth a brief word.

Today’s plea roll fun comes to us courtesy of the King’s Bench roll for 1359H.[i] (So we are post-appearance of Black Death, pre-royal decline and war with France going poire-shaped). It is a record of a presentment by jurors from different hundreds in Somerset, and deals with quite a long-running case.

The jurors, in summer 1358, before royal justices at Yeovil, presented that Philip de Clyfton had been involved with (adulteravit cum… carnaliter cognovit) a married woman: Joanna, wife of Philip Maubaunk[ii], during Philip M’s life. Sinful and scandalous, obviously, but the main offence which was relevant to a secular jurisdiction was the next bit: Philip C and two servants of Philip M, whose names the jurors said they did not know, had killed Philip M. Specifically, Philip C and the servants had ‘intoxicated’ Philip M, at Yeovil, with poison (unspecified, let’s be honest, it was probably supposed to be something in his food rather than the old snake in the bed, but nice pic, isn’t it? And it fits in with the whole poison-woman-Eve-serpent-sin vibe).

This, so the story went, had all been done with the encouragement and assistance of Joanna. It had, allegedly happened a long time previously, in June 1342. Joanna had been arrested and appeared in court before the King’s Bench at Westminster, in early 1359. She was asked how she pleaded to the charge of aiding and abetting the felonious homicide, and said she should not be obliged to answer until proceedings were (re)started against the alleged principal, Philip C. She was bailed to appear in the KB at Michaelmas. Proceedings against Philip C were then resumed, until, at Easter 1360, the sheriff of Somerset reported that Philip C had died in his custody at the beginning of the year. As far as the court was concerned, the fact that Philip C, who was indicted as principal, was dead, meant that he could not be convicted according to the law and custom of the realm, and that, in turn, meant that Joanna had to be acquitted.

 

So what?

Well, there are a number of things to think about here.

  1. The slow burn… If this is not a complete fabrication, it looks as if we are seeing action being taken against alleged killers (or some of them) 16 years or more after the alleged killing. Why? Had Joanna and Philip C gone off to a happy life of carnal knowledge somewhere else? Did nobody care about Philip M? Was there some late confession or slip, spilling the (poisoned) beans? The allegation in 1358-9 was one of poisoning, with the involvement of both wife and servants – the sort of thing which, generally, was taken extremely seriously, with added extras to the execution of convicted offenders (drawing as well as hanging for male servants, and burning for wives who killed their husbands) and which, of course, had been confirmed as a sort of treason by the Statute of Treasons 1352. It is puzzling that it took so long to be resolved (to the extent it was resolved).The passing of time allowed Joanna to avoid trial and possible conviction, and, in fact nobody actually stood trial for this alleged offence.
  2. The accessory/principal issue. It is interesting that a rule was upheld, allowing accessories a ‘get out of jail (and the risk of execution) free card’, if the principal died. It doesn’t seem entirely logical to me, and seems rather to encourage a certain amount of bumping off amongst former partners in crime. That’s one to investigate/ponder on some more. Just what was the relationship between the amenability to conviction of the principal and of the accessory?
  3. Venomous words. A smaller thing, but an interesting one. I note that ‘to poison’ and’ to intoxicate’ are used fairly interchangeably here, whereas we would now differentiate between them somewhat, in terms of deadliness, intention or focus. Another matter to bear in mind, and one which may have some bearing on the interpretation of other records which include only one of the two terms. We cannot necessarily assume precision and set boundaries of meaning in the use of these ‘medical’ terms.
  4. Oh yes, sex. The words describing sexual acts or relationships are always interesting. Here we have a description slightly different to those I usually encounter in common law records of offences: carnaliter cognovit is familiar enough (and rather unilateral), but adulteravit cum suggests bilateral activity. All rather more complex, or equivocal, than the idea that the medieval concept of sex was a man doing things to a woman. Then again, there might just not have been the words in the clerk’s Latin vocabulary to translate what was actually said (let alone what was actually going on – if anything was).

 

So – Joanna was ‘one who got away’ from the medieval common law; but was she also ‘one who got away with it’? As ever, we’ll never know.

 

GS

28/2/2021

[i] KB 27/394 Rex m. 16; http://aalt.law.uh.edu/E3/KB27no394/AKB27no394fronts/IMG_2821.htm

[ii] There is a Maubaunk family of a fairly high social status, appearing, e.g. in the Inquisitions Post Mortem: see TNA C 134/82/4 (earlier). There is a Philip Maubank of Dorset, whose full age is being proved in 1333: TNA C 135/35/1.  CIPM vol. 10 no. 530 (Edw III File 147) has Philip M and Joan – in summer 1333 Joan, late the wife of Philip M, is in trouble for not turning up to the proof of age of a young man whose lands she has in wardship.

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

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

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

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

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

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

So what?

I know – just another unfinished case, but …

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

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

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

GS

28/1/2021

 

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

Truth and (a sort of) reconciliation? Scenes from a medieval Suffolk marriage

A plea roll record of a land case from the end of the reign of Edward I gives an interesting view of medieval marriage (or one particular medieval marriage at least), gender and families of different types.

JUST 1/1323 m 77d sets out an assize case heard by Retford and Spigurnel, justices of assize in various southern counties of England, in summer 1303 (with updates until 1304). It concerned land in Suffolk, in Somersham and Nettlestead, and the question was whether Ralph Norreys and his associates had been within their rights to eject John Dunning from the land, or whether John had the better right to hold the land, so that their actions had been an unjust ‘disseisin’ (more or less ‘dispossession’).

Both men’s cases involved telling the story of dealings with the land in recent times, so as to establish their family connection and right to it. Part of this story was the tale of the marriage of Alan de Bosco and Agnes Norreys. Putting together the story they told and the facts found by the jurors, this is what happened … (and yes, usual warnings about not believing everything which appears in the record applies, but there is no obvious reason to doubt this) …

Alan was married to Agnes when he (at least) was below the age of majority (this was 14 for boys, and the jurors say, very precisely, that he was 13 years and 7 weeks old at the time). They lived together for a short period – quarter of a year – and then Alan suddenly left, going off to Cambridge for three years. While he was away, Agnes took service with Robert, parson of the church of ‘Flokton’ (Flixton?). Robert and Agnes had a child, William. Then Alan came back from Cambridge. As soon as she found that he was back in Suffolk, Agnes went to Alan’s house, with the infant William, but Alan would not let her in, and swore that William was not his son, since, so he said, he had never had sex with Agnes. Agnes then sent William back to Robert, who acknowledged him as his son. Afterwards, Agnes went straight back to Alan, who took her back in as his wife kindly (benigne) and in due course, they had a child, called Geoffrey.

The key issue for the land case was whether or not William was Alan’s son. To cut a long story short, Ralph traced his right through William while John traced his through Geoffrey. If William was not Alan’s son, Ralph would have no chance of success. Although that might seem an easy legal issue, if this story is the truth, or something like it, there were complications. The rules about legitimacy, and who was to be regarded as a man’s legitimate son, were not entirely biological. In a world which had no blood or DNA testing, a lot of reliance had to be placed on probability, reputation and presumption. The starting point was that, if a child was born during the course of a marriage, then that child was the legitimate child of the spouses (with associated property rights after the death of the parents). As the common lawyers charmlessly, and repeatedly, put it ‘Whoever bulls the cow, the calf is yours’ – meaning that, even if a wife had been impregnated by somebody else, the child would be presumed to be the husband’s legitimate issue. The presumption could be rebutted, however, if it was completely impossible for the husband to be the father – e.g. if he had been imprisoned abroad for years and came back to find a child. Thus careful questions were put to the jurors to ascertain whether Alan had come back from Cambridge during the three years, or whether Agnes might have gone to meet him somewhere. Apparently not. They were also asked about local opinion – who was reputed to be William’s father (answer: Robert and not Alan). Things would seem to have been going John’s way, on the whole, though clearly this was not as watertight an ‘impossibility’ case as the ‘husband abroad in prison’ scenario. But here the legal procedure ground to a halt, and all there is is a series of additional ‘court dates’ and an instruction to the judges to get on with it. It may be that there was some uncertainty as to whether John had managed to rebut the presumption of legitimacy. Leading common lawyers had been prepared to accept some fairly fanciful suggestions as to how an apparently distant husband might have managed to father a legitimate child, in a case from an earlier term in the same year (Seipp 1304.027rs; https://www.bu.edu/phpbin/lawyearbooks/display.php?id=1531 ) opining that he might have come to the county in which the wife lived, by night, without anyone knowing, so that John might not have been regarded as ‘home and dry’. I hope to track down more on this litigation, but it may take some time.

As interesting as the legal point, if not more so, is the ‘social’ material here. The early marriage is not particularly surprising, perhaps, nor the young husband’s departure (did he go to Cambridge University? I am put in mind of the folk song ‘The Trees They Do Grow High’ …) but what happened afterwards is less predictable. We cannot know anything about the willingness or otherwise of Agnes in relation to the sexual relationship with Robert the parson, but we can say (i) that it seems to have been well-known in the area; and (ii) that Robert was willing to acknowledge William as his son, and take him in. William would go on to have descendants of his own. The reconciliation of Agnes and Alan is fascinating: she was prepared to give up her child and he was prepared to take her back if she did so, despite the fact that all the neighbours knew him to be a ‘cuckold’. No pressure from the Church seems to have been involved. It seems to me that this story has interesting things to say about medieval men, women and communities, and the importance of engaging with initially off-putting and ‘dry’ sources like land law cases, if we want to learn all we can about medieval families and attitudes.

GS

28/1/2018

A Liverpool Elopement

An issue I looked at in a couple of articles, and which remains of interest to me, is the use of allegations of elopement and adultery to oppose medieval widows’ attempts to claim dower (a life interest in an allotted proportion of land), following the death of their husbands. When a widow made a dower claim in a common law court, those holding the land could form an ‘exception’ to the widow’s claim based on c.34 of the Statute of Westminster II (1285), arguing that the widow’s action should not be allowed, because, during her former husband’s life, she had left him of her own free will, and had gone to live with the adulterer, and there had not been a freely agreed reconciliation between husband and wife before the husband’s death.

This area is important from both legal and social history points of view. Legally, it illustrates the difficulties lawyers saw in applying a statutory provision with a number of sub clauses (on leaving, staying away, and there not having been a voluntary reconciliation), within the rules of the game of common law pleading (with all the delights of general and special pleading, and such splendid vocabulary as traverses, demurrers, rejoinders and surrejoinders). This was not just a clever intellectual pastime, however: the conclusions which lawyers reached as to exactly what each side had to allege and prove could have a great impact on the chances of a widow obtaining the important resources of dower, to support herself in widowhood, or to bring to a new marriage. One issue which could have an important impact was that of the widow who had left not of her own free will – having been abducted or forced out. If she later lived with another man, did that mean that the c.34 exception could be used, or was it necessary, in order to succeed under c.34, for her opponent to be able to say both that she had left of her own free will and also that she had then lived in adultery?

Another possible argument about the correct use of c.34 was whether it was necessary to allege that the wife had left the husband with her adulterer (rather than just having left him, and then later on lived with ‘her adulterer’): the Latin of the chapter leaves both possibilities open. A Lancashire case which I have recently found in the Common Pleas plea roll for Hillary term 1363 Maria, formerly wife of Thomas Breke of Liverpool v. Robert de Sefton,  Margery his wife and another,  CP 40/413 m. 193, gives an example of use of the exception without suggesting that the wife left with ‘her adulterer’. A free translation follows:

 

“Lancashire

Maria, formerly wife of Thomas Breke of Liverpool, pleaded against Robert de Sefton and Margery his wife, for a third part of two messuages and six acres of land plus appurtenances in Liverpool, and against Hugh son of William le Clerk of Liverpool for a third part of two messuages and six acres of land plus appurtenances in the same vill, as her dower, from the endowment of her former husband, Thomas.

And Robert and Margery and Hugh, by John de Blakeburn, their attorney, said that the same Maria should not have dower in these tenements, because they said that, long before the said Thomas, former husband etc. died, the said Maria had eloigned herself from her husband, and lived with William de Maghell, chaplain, her adulterer, in adultery, in Liverpool in the same county, without ever being reconciled with her said husband, from whom she is claiming dower etc., and they are ready to prove this, and ask for judgment etc.

And Maria said that she should not be excluded from her action by virtue of this allegation, because, at the time of the death of the said Thomas, and long before, she was living with him, and reconciled without the coercion of Holy Church. And she prays that this be inquired of, and the said Robert, Margery and Hugh similarly. So the sheriff is ordered to make 12 [jurors] come etc., by whom etc., a month after Easter, to [swear to the truth] etc.”

 

Aside from its legal interest in terms of the elements of pleading, two further points are worth mentioning. First, it is noteworthy that the alleged ‘other man’ is a chaplain: a great deal of suspicion seems to have existed in relation to the sexual mores of chaplains, with their supposed celibacy and their privileged access to women, and this is not the only chaplain/adultery case in the c.34 jurisprudence (see, e.g., CP 40/192 m. 233d), Secondly, the idea that a woman might leave her husband to live with another man for a time, and then might be reconciled – whether or not true in this case, it must at least have seemed a plausible set of circumstances – raises some interesting queries with regard to medieval marriage and gender relations. As the statute itself suggested, it does seem that at least some medieval men might be prepared to forgive and take back their wives, and we see this being claimed here. Why might men do this? The statute suggests that some reconciliations were achieved through the Church’s coercion of the husband. The coercion of others – family, neighbours – would be another possibility. But it is also conceivable that at least some strands of medieval thought took a rather less ‘once lost, always lost’ (T. Hardy, Tess of the D’Urbervilles, c. XV!) view of chastity than would come to be the case in later eras.

GS 22/5/2017.

 

See on this area of medieval law:

P. Brand, ‘“Deserving” and “undeserving” wives: earning and forfeiting dower in medieval England’, Journal of Legal History, 22 (2001), 1-20.

G. Seabourne, ‘Copulative complexities: the exception of adultery in medieval dower actions’. in M. Dyson and D. Ibbetson (eds), Law and Legal Process: substantive law and legal process in English Legal History (Cambridge: CUP, 2013), 34-55.

G. Seabourne, ‘Coke, the statute, wives and lovers: routes to a harsher interpretation of the Statute of Westminster II c. 34 on dower and adultery’, Legal Studies 34 (2014), 123-42.

Adultery and violence in the medieval West Midlands

Here’s a case I found in a roll relating to theWorcestershire trailbaston sessions of 1306 (JUST 1/1032), when looking for something else entirely – so interesting it deserved a blog post.

On m. 4d (AALT image 2700), we are told that Johanna, wife of Edmund Sneed was indicted for having gouged out (extraxit) the eyes of Christiana daughter of Thomas de la Twychene at Hampton Lovett. The sheriff of Worcestershire had been ordered to have Edmund and Johanna before the Justices ‘to respond to the King for this trespass’, but he had to report that Edmund had not been found. The coroner and several credible members of the county community gave evidence that Edmund was on his way to the Curia in Rome. Johanna came, though, and was asked how she wished to plead to the trespass. She said that she was not guilty and submitted to a trial by jury.

Many medieval records are less than expansive after this point in proceedings, but, here we get some interesting material from the jury, rather than the all-too-frequent blank ‘guilty’ or ‘not guilty’. It is reported that the jury said Edmund Sneed had been involved in an adulterous liaison with Christiana (tenuit … in adulterio) and often withdrew himself from  Johanna, beat and mistreated her, and moved her from the house in Worcestershire to another house he had in Warwickshire. There seems to have been a partial reconciliation, since they said that Johanna came back to Edmund and lived with him at Hampton Lovett, but Edmund was still involved with Christiana. Johanna was said to be aggrieved and provoked (gravata et commota) by this state of affairs (as it were) that, on a day which the jury could not specify, but which was in the year 30 Edward I (i.e. 1301-2), she asked Christiana around to Edmund’s house to discuss the adultery. Christiana came as requested, but rather than a civilised discussion of their situation, a fight broke out between them. Johanna is said to have hit Christiana and put out her eyes. (I am a bit puzzled as to exactly how to imagine that happening: surely actually removing somebody’s eyes requires something other than a blow? How inappropriate would it be to ask about this next time I am at the Eye Infirmary?)

The jury also felt moved to say that Edmund and Johanna had always provided for Christiana, and continued to do so, (which would indicate a fairly long term commitment, considering the date they said the eye-gouging had occurred) but noted the insecurity of Christiana’s position. This is certainly an interesting passage in relation to provision of care for those with disabilities and impairments. It suggests some form of informal taking of responsibility by Edmund and Johanna, outside legal proceedings. We might wonder, however, just how desperate Christiana must have been, to accept help from the very person who had caused her very serious injuries.

There seem to be traces of sympathy for Johanna (and lack of sympathy for Christiana as no better than she ought to be?) on the part of the tribunal, and perhaps an effort to find a way to excuse Johanna’s actions. The report tells us that the jury was asked how old Johanna was at the time of the eye-ripping, and whether she had been in her right mind. The jury, however, did not take the opportunity to engage in a bit of ‘pious perjury’ to let her off the hook: they said that she was twenty years old, and sane. Johanna was therefore committed to jail, with the instruction that the case was to be heard at Westminster on Monday in Pentecost week.

Most unfortunately, I have found no trace of the case in the relevant plea roll, so, unless and until some other evidence turns up, the story ends there, with no answer as to how the justices at Westminster would have handled it. Nevertheless, there is a lot to think about here. There is a fair amount of reported sexual misbehaviour in medieval legal records, but the story of the supposed summit meeting between two women who had been involved with the same man, and then the extreme violence, is very unusual. In relation to Johanna’s violence, there is thinking to be done about what was expected, and countenanced, in terms of the behaviour of a wronged wife towards ‘the other woman’. Interesting that the medieval Welsh legal triadic literature suggests some leeway for wives hitting ‘the other woman’ (though certainly not eye-gouging).

Then there is also the report that the married couple were in some sense looking after the ‘other woman’ in her impaired state, and the intriguing story of Edmund’s trip to Rome – not, we might note, some sort of repentance pilgrimage to Rome in general, but specifically to the Curia. Something matrimonial seems most likely – though going in person to the Curia would not be standard practice.

So – lots of loose ends, but, apart from anything else, this record shows just how useful trailbaston (and plaint) rolls of this period can be in giving glimpses of a world of facts and legal ideas often effaced in the increasingly standardised forms in King’s Bench and Common Pleas rolls.

 

Postscript

Allegations of women being hit so that their eyes are said to fall out can be seen in S.M. Butler, The Language of Abuse: marital violence in later-medieval England (Leiden, 2007), e.g. at 161 and 177-8. While some descriptions of such extreme and horrifying episodes may have been somewhat exaggerated attempts to portray a woman in conformity with saintly models, this case, with the subsequent apparently impaired and needy state of Christiana, probably records a genuine incident of eye-gouging.

GS

8th May, 2017.

New work on removing the marital rape exception

Worth a look, new and interesting article: Adrian Williamson (2016): The Law and Politics of Marital Rape in England, 1945–1994, Women’s History Review, online early release. Discussing the slow move to change in the law. If this is taken along with the article about the use of wives’ adultery in homicide cases, by Kesselring, (see my recent blog post) it reinforces the message that one of the biggest things which has to be overcome, when trying to improve the lives of women, has been – and is – the misinterpretation of history, to give some spurious form of legitimacy to rules which disadvantage women (‘look – this has long historical roots: that has to mean something, doesn’t it?). Kesselring pointed out the relatively short and somewhat shaky background to the idea that husbands who killed wives caught in adultery should receive lenient treatment. Here, Williamson deals with the marital rape exception, including the way in which Matthew Hale’s remarks on the subject were transformed into holy writ.

From the point of view of my own research, this is something to link into the work on suffrage campaigns (thinking about tactics for changing law, and about tactics used to resist improvements for women) and, more widely, it is something to bear in mind when looking at the extent to which legal history can be misused in the interests of dominant groups of various sorts. Some of the material here is well known to legal scholars – e.g. the material on low reporting and conviction rate in rape – but there are some interesting reminders of 19th and 20th century case law in this area, and of the pronouncements of different politicians, judges and academics (Lawton, Fairbairn and Glanville Williams in particular – a very topical Trump reference in the conclusion), and the point about there being a struggle right to the end to get rid of the exception, rather than there being any inevitability about it, is an important one.

There is often a strange amnesia, or instant mythologising, which occurs after a progressive change. Opposition is de-emphasised, everyone was somehow always in favour of the change, and it was always only a matter of time before things were put right. As the discussion here shows, change needs dedicated action from people who are prepared to be opposed, belittled and ridiculed.

26/2/2016

Seventeenth century domestic violence

The Daily Mail, not at all my cup of tea politically, does seem to break the odd Legal History story. Today’s is the release of an interesting-sounding account of domestic violence in the 17th C. See http://www.dailymail.co.uk/femail/article-2586091/Harrowing-story-17th-century-battered-wife-uncovered-1684-pamphlet.html

Perhaps a legal historian of the future will examine the interesting contrast between the Mail’s interest in the downtrodden of the past and its somewhat less sympathetic treatment of the downtrodden of the present.

GS 22/3/2014