Category Archives: Medicine and law

Bumbling, Bitchiness and Cruelty at Queen Victoria’s Court

This is dangerously late for my tastes, but a serendipitous choice of podcast to accompany me on a walk the other day (something by Lucy Worsley on Queen Victoria) brought me to a story I had never known. Undoubtedly those who work on the 19th C know all about it, as may others with a better all round general knowledge, but I had not heard of the episode, and, as it happens, it has some relevance to a project I am just finishing (the one on ‘unknowns at the start of life’, inc. bastards and the beginnings of human life).

The episode involved a young(ish) aristocrat, Lady Flora Elizabeth Hastings (b. 1806), who occupied the position of Maid of Honour to the Duchess of Kent (Queen Victoria’s mother). She died in 1839, after something of a scandal, which does not make Queen Victoria and her court look at all good.

Briefly, the problem arose because Flora had a swollen abdomen, and of course it was rumoured that she was pregnant (no doubt euphemistically whilst being – shock – unmarried …. She denied it, but the rumour went round the court, and was enjoyed by those – including the Queen – who were at odds with the faction represented by the Duchess of Kent, and so, by extension, by Flora. A physical examination was insisted upon, and Flora agreed to it, despite the humiliation, because she wished to end the scandal and rumour attached to her name. The examination came back negative (though there is some suggestion that the doctors, despite having certified non-pregnancy, were suggesting to Queen Victoria that Flora might still be pregnant). Flora got very ill and died, however, and public opinion was against Victoria and her doctor. After Flora’s death, it was made clear that she was not pregnant, but had had cancer. The matter was much discussed in the press, and it did nothing for the reputation of court or medical profession.

Using a letter she had written to her uncle, Mr Hamilton Fitzgerald, published in the Morning Post (2) supplemented as to dates from the other sources below, the following timeline can be constructed:

 

  • January 1839. Flora comes to London, and has already ‘been suffering for some weeks from bilious derangement, … pain in the side and swelling of the stomach’
  • 10th January, 1839. she consults Sir James Clark, who, physician to the Duchess of Kent and the Queen. Clark’s treatment is unsuccessful, but Flora’s self-care remedy of ‘walking and porter’ results, she reports, in an increase in strength amd reduction of the abdominal swelling.
  • 16th February 1839. Clark comes to Flora’s room, accuses her of being pregnant and tries to get her to confess that this is the case. His sources are ‘the ladies of the palace’. Flora denies being pregnant. Clark says that the only way Flora can ‘remove the stigma from [her] name’ is to ‘[submit] to a medical examination’. The Queen was in on this plan, and effectively ordered the examination. Flora named some other ladies of the court as having been particularly active in setting this up, though the Duchess of Kent is exonerated.
  • 17th February 1839, the examination went ahead (interestingly, the consent of the Duchess of Kent was required, while Flora ‘submitted’ in order to clear her name.  What followed she described as ‘the most rigid examination’, at the end of which ‘her accuser’, Sir James Clark, and Sir Charles Clark, signed a certificat ‘stating, as strongly as language can state it, that there are no grounds for be[1]lieving that pregnancy does exist, or ever has existed’.
  • 8th March 1839 Flora writes to her uncle, setting out her story.
  • 5th July, 1839. Flora dies. Post mortem examination, at Flora’s request, by Sir Benjamin Brodie and Sir Astley Cooper,  which published its findings officially, and found that she had died of ‘long standing disease of the liver’, and that ‘The uterus and its appendages presented the usual appearance of the healthy virgin state.’ (1)

As the Lancet put it,

 ‘The publication of this post[1]mortem examination is the best reply which could have been given to the slanderers of an illustrious personage, and of a distin]guished physician. No mental emotion could have produced, or even considerably accelerated the progress of the diseaae from which Lady FLORA HASTINGS died ; and if the symptomatic swelling of the abdomen were, by some, mistaken for pregnancy, it could not have been by one who knew that in pregnancy the swelling is developed from below upwards.’ (1)

There were, shall we say, differences of emphasis in terms of whether it was an outrage or a rational scientific thing to insist on examining Flora’s abdomen. Guess which side the Lancet was on … want a clue?

 ‘Had Lady Flora Hastings permitted her physician to have made an accurate external examination of the abdomen, at an eurly stage of her complaint, she would probably have been spared the pain and humttiation to which she was subsequently exposed. Many a female has undermined heutth and compro[1]mised existence, through similar feelings of mistaken delicacy’ (3)

(translation: ‘The ladies, eh – what are they like! It was her own silly fault!’]

 

The resonances this episode has for me, and my projects, concerns detection of pregnancy and the role of medical expertise in this. One of the things which comes out of an examination of the history of pregnancy detection in the more strictly legal context (for deferral of execution, or for the purposes of succession disputes) is that there was quite a difference between England and Wales on the one hand, and the rest of western Europe, on the other, in terms of who was given the task of saying whether a woman was, or was not pregnant. In England and Wales, the use of women – the jury of matrons, or jury de ventre inspiciendo – continued long after it was phased out in other jurisdictions, in favour of (male) medical professionals. Instinctively, we may see the medical professional model as preferable. This case troubles those waters somewhat – since it seems to bring home the questionable nature of medical expertise (and ethics?). It certainly damaged the reputation of Sir James Clark himself. It does make me wonder whether, at that stage in the history of medical research and education, there might have been some over-claiming of expertise.

To somebody coming from a modern Law School, the case also, of course, raises the hackles, in that it seems to amount to the forcing upon a (very sick) woman of an unpleasant and humiliating examination. For all that Flora agreed to the procedure, after her initial horror, this appears very much to have been something she thought she had no real option not to suffer: the rumours and scandal were bad enough, but she was also told that she would not be allowed to attend court functions if not ‘cleared’ of being pregnant (and thus a total, hopeless, sinner …) Neither Flora nor contemporaries seem to have gone down a ‘coerced consent’ line in their objections, but there was certainly outrage at the gossip and the persecution of this poor woman, and the rough, questionably competent and generally unpleasant conduct of the doctor.

Queen Victoria not at all nice – official.

GS

1/1/2022

 

Image – Flora, from source 4, below. Not a very good drawing, I must say.

 

Sources:

  • ‘Lady Flora Hastings’, Lancet, 32, no. 828, 1839, pp. 587–587
  • ‘The Late Lady Flora Hastings’, Lancet, vol. 32, no. 833, 1839, pp. 762–763.
  • ‘Sir James Clark’s Statement of the Case of the Late Lady Flora Hastings’, Lancet, vol. 33, no. 842, 1839, pp. 126–126.
  • Horace Wyndham, The Mayfair Calendar : Some Society Causes Célèbres. (Hutchinson, 1925).
  • D. Reynolds, ‘Hastings, Lady Flora Elizabeth (1806-1839) courtier, ODNB.

Bleeding Legal History

Rather later than many people, I have finally had a chance to have a good look at the latest delivery from the Selden Society – A.H. Hershey (ed.), Special Eyre Rolls of Hugh Bigod 1258-60 Selden Soc vols 131 and 133. These have been waiting for me in my pigeon hole at Bristol for a while, but I have only just been able to get into the Wills Memorial Building, after returning from my travels, to get my paws on them. As you will see from the image above, in my clumsy eagerness, I managed to injure myself during the ‘unboxing’ process. I managed to leave some blood spatters on one of the books, so my DNA is now on them, I suppose. Hard core legal historian or what?

The volumes are editions (and translations) of some eyre records (JUST 1/1187, JUST 1/1188 JUST 1/1189, National Archives fans) from sessions by Bigod, the justiciar, just after the big King-barons upheavals of Henry III’s reign, and they are well worth a look for anyone interested in this period, or in legal history generally.  From the point of view of my research, there are some interesting entries on non-fatal injury, and on pregnancy/foetuses, and, as ever, I remain interested in seeing the extent to which women are dealt with in the commentary, index etc.

So, a few points …

  1. There is some interesting stuff here about the use of querela procedure – complaints without the usual formal requirements. These are always really interesting, in that they feel like a bit of a window on to what people actually want the law to do. Obviously not unmediated, but less mediated. I have noted in the past that they are particularly useful for women, whose routes to justice were generally rather more constrained (e.g. I have mentioned this in relation to sexual abuse of various sorts, see here). The introduction to SS 131, at xxvii makes a good point about the limits to the freedom which was allowed when bringing this sort of action – clearly not possible wholly to contradict common law rules by going down the querela route. Still, they can be pretty informative.
  2. The introduction does also make special mention of women’s use of this process – see xlv – which is good to see. Dower/freebench features pretty heavily, and I found particularly interesting the section at xlvi relating to  Cecilia widow of William son of Roger of Hatfield and her freebench claim. Her case – no. 24 – engages with a manorial custom relating to freebench in Hatfield. The ‘upside’ was that it was relatively generous in extent – a qualifying widow became ‘life tenant’ of all of the lands her husband had held in the manor. The ‘downside’ was that the qualifying test was pretty strict. Not only did the widow have to remain chaste (which Cecilia claimed she had) but there had to be a surviving legitimate child with the dead husband. This is where Cecilia fell down: her son had died. Conceptually, I suppose I ‘get’ the rule: freebench was something of a ‘dower meets child maintenance’ concept here, it would seem. Still, though, it would presumably mean compounding the tragedy of a woman who had lost both husband and child. Interesting to see that in this case, she seems to have cut a deal with the other claimant to the land, and was not left with nothing. Manorial equity?
  3. There is some very interesting material relevant to pregnancy and foetuses. Intro p. xlvii and entry no 141 relate to a Bucks complaint of Sibil, wife of Roger Grey, knight, that she had been assaulted, in an attack on her husband, leading her to miscarry the child she was carrying, and to be unwell enough to have to stay in her bed for some time afterwards. There is a lot which is interesting about this case. First of all, the blows she suffered were alleged to have happened while she was trying to protect Roger, the main target of the beating – interesting from a gender roles POV, even if the editor is not convinced it is realistic in this particular case. Secondly, the miscarriage was alleged to have happened not at once, but three weeks after the attack. Very interesting in terms of causation, which is one of my current concerns. Apparently that was thought to be a plausible claim, despite what one imagines would have been the relative frequency of pregnancies ending badly. As Hershey notes, this is all quite interesting in terms of its relationship to the sorts of cases women were allowed to bring by appeal, but there is also more to unpack, I think, in terms of what it means for our understanding of contemporary views on pregnancy and the foetus. I am wondering what to make of the ‘confined to bed’ claim – was there a doubt that loss of the foetus in and of itself was the sort of harm which ‘counted’, and it felt safer to emphasise the harm to the woman?
  4. Also fascinating (and horrible) on pregnancy, foetuses etc is no. 126 at p. 120 ff: amongst the accusations against William of Rushton of Oxfordshire (and some henchmen) is the accusation of wrongful execution of a woman. Sarah of Islip was said to have been hanged for theft, without proper judgment, when she had a good explanation for her possession of the allegedly stolen goods (cloth) and when she was very pregnant. All sorts of interest here. Hershey concentrates in the introduction on the wrongful execution point, but the entry itself has some really useful passages describing late pregnancy, and, incredibly chillingly, on the idea that a woman facing execution might be resigned to her own death, but plead for those threatening her to cut her open (presumably after death?) and save her child. What an appalling scene that conjures up – and what a priceless insight into more than one issue relating to law, medicine and the (plausibly set forth) emotions and attitudes of a medieval woman.
  5. There is also some useful stuff on the mayhem/non-fatal injury front, including a case of partial blinding with, shall we say, an interesting alternative portrayal of causation (woman alleges she is thumped, causing her to lose sight in one eye; jury alternative explanation is that fumes associated with her brewing blinded her in one eye, and only one eye …am I wrong to be unconvinced at their good faith?) – p. 297 no 349.

 

(There are also lots of general land cases, procedure etc, for those who like that sort of thing, preferring their legal history a little less bloody …)

14/12/2021

GS

 

‘Lunacy’, lucidity and the extent of exculpation

Continuing my off-and-on consideration of ‘lunacy’ and mental incapacity in the medieval criminal law, I’d like to note another case which expands a little on our knowledge in this area (or mine, anyway).

The case comes from a 1315 gaol delivery roll, from a session at Norwich castle (see it here). It is a grisly double homicide – and there seems to have been no argument about the basic facts: a man called Robert Angot had killed two others, William Maille and Thomas de Riston. Nevertheless, Robert pleaded not guilty, and all the signs are that he was not going to suffer the standard penalties for convicted felonious killers.

The jury gave a comparatively lengthy account to explain why this was not an appropriate case for capital punishment – Robert was a lunatic. More specifically, they explained, he enjoyed lucid intervals, but, for twenty years and more, he had become ‘furious’ at the start of a new moon. Over this long period, his family and friends had worked out a way to cope, and regularly confined him. On the fateful date of 3rd December (1314), at the beginning of a new moon, Robert was in Thomas’s custody. Somehow, he got hold of Thomas’s knife and stabbed him in the hand. Thomas (understandably) cried out. The noise brought William to his aid, and there was an attempt to restrain Thomas. This failed, however, and Thomas stabbed William in the breast and Thomas in the testicles. You know the outcome – both Thomas and William died. The jury, however, saw the fact that, at the relevant time, Robert was detained by fury, as exculpating him (though he was sent back to prison to await a royal decision – I am yet to find a pardon, but it would seem unlikely that this would not have been forthcoming).

There is much that is interesting here. We see the extension of a merciful/ understanding attitude to very serious offences against more than one person, committed by the defendant. I was also struck by the lengthy provision of care – or at least containment – of this man by those in his community, and also by what the record reveals about contemporary understanding of the causes of ‘lunacy’ and ‘fury’. There may be something to probe in terms of just which part of the lunar cycle was thought to be the problem – other cases mention waxing, whereas this pinpoints the new moon – I have to confess I am not quite sure whether those would have been understood to be different things, or how long such a condition would be expected to last. I will, I hope, at some point, get round to checking (there must be a way to do this!) what the state of the moon actually was on the date given. I assume that Robert’s friends and neighbours would have had to be more than usually conscious of the moon’s phases, so my guess is that this the assessment here is probably accurate.

One other tiny snippet is less to do with ‘lunacy’ and more to do with lay (in the sense of non-lawyer) understanding of ‘criminal law’: I note that the jury refer to the killings as ‘felonies’ even though are also saying that Robert was not really culpable. Is that a little sign of an instinct to focus on damage rather than the guilt or innocence of the mind? Many fascinating puzzles – I am sure I will be coming back to this.

GS

9/7/2021

Photo by Sanni Sahil on Unsplash

Extra memoriam existens: investigating the mental state of a medieval Gloucestershire killer

Today’s find is another for my growing collection of posts on medieval common law, felony and mental disorders.[i]  This time, we are in Gloucestershire, looking at a case in the King’s Bench plea roll for Michaelmas term, 1378,[ii] and the accused is a certain John le Botyler.

John was indicted as having committed two recent, violent and disturbing homicides. On the same day in 1378, he was said to have killed Elianor, daughter of Agnes Sheppester of Gloucester, at Hardwicke,[iii]  and Nicholas Roger at Haresfield. The story was that both killings had been carried out using the same sword. He had hit Elianor in the back of the head with the sword, and, when she fell down under this blow, had stabbed her in the back. In the case of Nicholas, it had apparently been a face-to-face attack, as John stabbed Nicholas in the right hand part of his abdomen. It was noted, however, that John had done all of this whilst out of his right mind (extra memoriam existens).

Before the royal justices, John was asked how he pleaded, but he did not respond. The record noted that he appeared to be insane (tanquam furiosus & omnino extra memoriam apparet). An inquiry was ordered to be made into the matter of his mental state, using a jury made up both of those in Gloucester castle who had had charge of John following his arrest, and also of those from the locations of the two homicides. These jurors said that John was furiosus and extra memoriam. He was sent back to prison, in Gloucester castle, and the sheriff was responsible for his safe-keeping.

In the next Hilary term, the court was informed that John had become sane – devenit sane memorie – so the sheriff was ordered to bring him to court to answer the charges. After various delays, he came and seemed sane (apparet sane memorie). He pleaded not guilty and accepted jury trial. He was bailed to appear for the trial, with four men, including a ‘knight’ acting as security for his reappearance and good behaviour in the interim (on pain of losing £10). Eventually, there was a jury trial before assize justices, and the jury said he was not guilty of the felonies charged, so he was acquitted.

So what?

It’s hardly news that somebody rated mentally incapable would not suffer the punishment of a felon, nor, that, by this point, mercy would be delivered via a ‘not guilty’ verdict rather than going through the process of waiting for a pardon, as would have been the case in previous generations. Still, though, there are a couple of points of interest here.

As ever, we have the puzzle of just how disturbed a person would have to be before he would not be held liable for his crimes. In this case, the language is almost all about ‘memory’, and not being of sane/healthy ‘memory’. There is a bit of ‘fury’ talk as well, but the main impression relates to being in or out of ‘sane memory’. Retrospective diagnosis is both pointless and beyond me, but I do note this variation in the language used in these cases, the fact that there does seem to have been some ability to form a plan – in the first case, he did not just lash out wildly once, but hit the girl or woman when she was down from his first blow – and the interesting idea of his restoration to full ‘memory’ at some point after his killing spree and imprisonment. There is no suggestion that somebody is appointed to keep him under surveillance, or under lock and key, afterwards – he is simply free to go, assumed to be able to be reintegrated into Gloucestershire life. One wonders what would have been the view on this of the victims’ families.

I am also interested in the process of using John’s gaolers as well as other local men, as a sort of special jury, to give a view on his mental state. This process is reminiscent of both the ‘jury of matrons’ in claims of pregnancy, and also that used for people who stood mute when charged with a crime, to say whether they were unable to speak, or were ‘mute of malice’. It is an interesting hybrid of – in modern terms – witnesses and neighbours. It is probably not a surprise that there is no trace of an ‘expert’ assessment of John’s condition – this case is a good reminder that varied mental states were something assumed to be understood by, and clear to, ordinary men.  For all that is difficult and disturbing about the treatment of those with mental disorders in the past, that idea that such problems were seen as an expected part of everyday experiences is a stimulating point of contact between people of the deep past and the present world in which we are (gradually) becoming a little more open to the idea of the normality of mental difference.

GS

7/4/2021

 

 

 

(image courtesy of Gloucester castle and gaol © Pauline E :: Geograph Britain and Ireland )

[i] (see also:  Plague, fire and ‘lunacy’: arson and acquittal in medieval Yorkshire | Bracton’s Sister (bristol.ac.uk)

Categories of incapacity in medieval common law: the ‘fatuous’ Warwickshire killer | Bracton’s Sister (bristol.ac.uk)

‘Lunacy’ and legal records | Bracton’s Sister (bristol.ac.uk)

‘Lunacy’ in a Legal Record | Bracton’s Sister (bristol.ac.uk)

Medieval mental health: describing, explaining and excusing a ‘furiosus’ | Bracton’s Sister (bristol.ac.uk) )

[ii] KB 27/471 m. 13 d (AALT IMG 362).

[iii] ‘the Hollywood of Gloucester’, so Wikipedia says – will have to visit once we are free again and I can cadge a lift.

Photo by Patrick Hendry on Unsplash

Plague, fire and ‘lunacy’: arson and acquittal in medieval Yorkshire

Here is another record which has something of interest to say on lay and legal ideas about mental capacity and responsibility.

We are in 1349 – all a bit plaguey, not though you would always know it, since the rolls are still rolling, with many of the usual sorts of litigation – in the King’s Bench. On the Rex section of the roll, there is a case of arson, from a gaol delivery at York, in which mental state becomes crucial. (KB 27/355 Rex m.29d; AALT IMG 8327).

The jurors of Harthill wapentake presented that John son of William son of Henry of Nafferton was indicted before Thomas de Rokeby, sheriff of Yorkshire, that on 10th January 1349, he feloniously burned the house of Robert Dreng of Driffield, along with 40s worth of goods which were inside it. He pleaded not guilty and put himself on the jury. The jury stated on oath that John was a lunatic, and that, three or four times a year, he was troubled (vexatus) by a disease of the mind (infirmitate demencie), and that he had been affected by it on the day in question, and for eight days before and eight days afterwards, so that he was not aware of the difference between good and evil, nor of his own actions. They found that he had burned the house in question during this period, and had not done so feloniously or by ‘malice aforethought), as was alleged against him, and nor had he fled. And because the jury held that John had been non compos mentis at the relevant time, he was acquitted. Four named men came forward as security for his good behaviour.

So what?

It is not unexpected that somebody with a severe mental problem, defined as lunacy’, would avoid the severe penalties for felony, and that, by this period, this would not be by the cumbersome method of waiting for a royal pardon, but would be a straight acquittal. There is, though, some interesting detail here, in terms of the apparent understanding of mental capacity and the conditions which might affect it. John’s disordered states appear to have been noted, and their frequency was a matter of community knowledge. We do not have the link to the moon made in other cases of ‘lunacy’, but there is a suggestion that the disorder recurred on a more or less regular pattern (was it almost seasonal?). There is also a good explanation of the effect of the disorder on his responsibility – specifically, it diminished his ability to tell right from wrong, and even his awareness of his own acts. The jurors were making a very strong case for his acquittal. The fact that they mentioned that the incapacity had lasted from eight days before the incident to eight days after it could almost sound as if they want to leave no room for argument that John might, in fact, have been experiencing a lucid interval (though I wonder whether this information was elicited by questioning by the court, or whether it was volunteered).

Finally, it is interesting that this is not – as most ‘lunacy’ cases seem to be – a homicide, but a case of arson (in which nobody died). What role might have been played by the nature of the offence? I found myself wondering whether it took more preparation and forethought to burn down a medieval house, or to stab or beat somebody to death, but I am not sure that an answer to that could be obtained easily. As with so much else on medieval ideas of mental capacity and disorder, our understanding is very incomplete, and needs to be built up piece by piece. I find, in this area as a whole, it is a big challenge to think myself back into a world in which mental disorders were not seen as a matter for ‘expertise’,  but one on which ordinary, respectable, jurors could be expected to make a definite judgment. That, though, is my problem rather than theirs.

GS

3/2/2021

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

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

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

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

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

So what?

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

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

GS

31/1/2021

Blood and Brothers

 

One of the matters I touch on in the forthcoming Women and Medieval Law book is the basis for the right to bring an appeal – an individual prosecution – in the medieval period. Appeals are important in a consideration of women and the common law, because they were a way that women could initiate a ‘criminal’ case, though they were shut out from participation in other methods – especially presentment/indictments. To cut a long story short, there are various statements which purport to set out accepted limitations on the matters women could appeal (most prominently mentioned as allowed are homicide of a husband and rape) but there are also many, many examples of women bringing other appeals; and a little study makes it apparent that the ideas about why women can ever bring appeals (in a system which prevents them from other routes of prosecution) are not at all clear. There are a number of different ideas floating about, including revenge, particular damage and likely physical proximity to the offence.

Because the book was about women, I did not get into a related issue: if a single man is killed, who has the right of appeal? This is an interesting one, partly in terms of the ‘answer’, but mainly in terms of the way arguments are made about it, so it deserves a short exploration here (no doubt to be updated as and when I find new cases on it).

At least in 14th and 15th C cases, a definite ‘pecking order’ was understood, as between the brothers or sons of a slain man, and somebody accused by the appeal of a younger brother could legitimately say that this was invalid, because this was the wrong person to be bringing the appeal: the right lay in the older brother.  In a case in 1314, for example, (KB27/218 Rex m. 10 (IMG 24)) from Worcestershire, a woman, Margery, wife of John I,  and John II, were accused by one William of killing his brother, Thomas. Margery was accused of killing Thomas by hitting him in the head with a stone, while John II held him by the throat. Apart from denying wrongdoing, Margery argued that she should not have to answer the appeal, because William had an older brother, John III , and it was this John III  who should have brought the appeal. It ‘naturally pertained’ to John III to prosecute it, and he was ‘nearer in blood etc.’  It seems to have been another point on which the appeal failed, but it was at least an outing for this idea about ‘the wrong brother’.

It is not proximity, but ‘worthiness’ of blood which is the justification given for preference of the elder over the younger brother in cases from the 1330s:  KB 27/310 Rex m. 6d (AALT IMG 333), KB 27/311 Rex m. 1d (AALT IMG 245)  and KB 27/312  m.3 (AALT IMG 290). (KB 27/311 Rex m. 1d (AALT IMG 245) features an argument as to whether the alleged elder brother exists (was inventing an elder brother a tactic which might, or buy some time?). The matter was raised in some later Year Book reports too. Seipp 1467.041 and 1468.007 – and Markham J was apparently concerned about whole blood and half blood relationships (only the former would do, so must be mentioned, tracing the blood of victim and prosecutor in the appeal).

An earlier fifteenth century case showed a difficulty which could arise for younger brothers – what if there was an older brother, but he was not interested in bringing an appeal, or not able to do so? Seipp 1412.047abr notes a case in which the older son of an allegedly murdered man was a monk, and the upshot seems to have been that there was nothing to be done – the younger son did not have a right to appeal here.

So what?

Well – as a younger sibling, I am not happy at the idea that the older sibling has ‘worthier blood’ (though would that work with women, or would they have some coparcenry-equivalent pattern, with any sister being as good as any other?).

Less self-centredly, it has got me thinking about blood, and how it figures in different areas of law (free/unfree status, bastardy, succession more generally, attainder and ‘corruption of the blood’, rape, assault and ‘drawing blood’ as a threshold or evidential requirement… probably more).  And how does ‘blood’ relate to ‘flesh’: how do lineal and matrimonial relationships interact one with another? Maybe one day this will all fall into place in my mind and end up as a paper on ‘The Law of Blood’. Interesting, anyway to try and work out what ideas about blood were present here. Clearly it would need to bring in theological and medical ideas too. But probably not vampires.

GS

22/1/2021

Categories of incapacity in medieval common law: the ‘fatuous’ Warwickshire killer

As small footnotes to the work of others on medieval law and mental capacity, I have noted a few interesting cases of medieval individuals being excused or pardoned their felonies by reason of their insanity – most recently focusing on a couple of cases of ‘lunacy’ which were expressly linked to the waxing and waning of the moon. Here is another case which goes a little outside the usual categories and vocabulary of lunacy, idiocy, fury and frenzy, which came up in a Plea Roll search today.

The King’s Bench plea roll for Easter term 1334 incorporates, in its Rex section, the gaol delivery pleas from the session in Warwick. One of the Warwickshire cases,[i] from the hundred of Kington has in the margin beside it not one of the usual process notes – acquitted, hanged, sent to prison etc. – but the big, bold, word ’fatuus’. The entry states that Richard Kyng of Herberbury (Harbury?) chapman, was arrested for killing Robert Deyvilla at Moreton (Daubney) at some point earlier in 1334. He had been indicted for felony before the coroner. He was brought into court by the sheriff and asked how he wished to plead, he answered ‘fatuously’, his speech and actions showing diversa signa fatua. Enquiries were made, so the entry tells us, as to whether the accused had been ‘fatuous’ at the time of the killing, and before, subsequently and now, whether he was feigning this in order to excuse himself from a finding of felony, whether he might get better (‘fury’ is mentioned here). The jury responded that Richard had become ‘fatuous’ two years before the killing, he was ‘fatuous’ at the time of the killing, and still was, and had been consistently ‘fatuous’ for the whole period, and his apparent ‘fatuous’ state was neither feigned nor the result of some other infirmity. Richard therefore went ‘without day’ (i.e. he was not found a felon). His relations were told to look after him (that tricky word custodia is used here, with all of its potential for confinement as well as care) with dark hints that it would not go well for them if his custody was neglected (so that he caused further danger).

Points of interest

Well, it is no surprise that a medieval court would not regard as a felon one who was not mentally capable, nor, really, that he would be entrusted to the care (or ‘care’?) of his relatives, but it is interesting to see some of the vocabulary and ideas here.

I have mentioned that ‘fatuus’ is not common. What did it mean? It is almost impossible to equate with modern ideas – either legal or medical – in this area. I was proceeding on the basis that it was a similar idea to ‘idiocy’ (very roughly, learning disabilities) rather than lunacy/fury/frenzy (which seem to indicate violent, flaring, conditions), but then there was use of ‘fury’ as well, and the fact that the jury said that the ‘fatuity’ had come on at a particular time, rather than having been present throughout life, as one would perhaps expect with ‘idiocy’. The lack of information in the entry about the homicide itself makes it more difficult to get an idea of how Richard was being perceived. So, for the moment, big question mark, and a slight suspicion that these words and ideas were not as neatly separated as I would like to make them. Instructive in itself, I suppose.

I was also interested to note the questioning as to whether the condition might be feigned, in order to avoid a finding of felony, and the awful consequences of that. There is a parallel here with questions which were asked about people who said nothing at all, when they were asked to respond to a charge of felony. Jurors would be asked whether this was because they were unable to speak, or whether they were perfectly able to speak, but were keeping silent in an effort not to allow the case to proceed to a conviction (‘standing mute of malice’, in later parlance). In both cases, juries were considered able to weigh up the reality of the apparent affliction. To a certain extent, this can be explained in terms of the jurors’ identity as some sort of neighbour-witnesses (yes, I know there is a debate about that, but they were at least able to bring in outside knowledge) in that they would be likely to be aware if the accused had suddenly and suspiciously become mentally incapable, or unable to speak. Another way of looking at it is that mental incapacity was considered something fairly ordinary and apparent to one’s community.

So – another little puzzle-piece in to add to the heap. Off went Richard to the tender care of his relatives, and the court went on to the next case.

GS

9/10/2021

 

 

 

[i] KB 27/296 m. 13d (AALT IMG 331)

‘Lunacy’ and legal records

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

See the source image

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

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

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

So what?

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

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

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

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

28/12/2020

Untruth in wine: a snippet of medieval medical thinking

 

See the source image

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

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

And …?

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

GS

23/12/2020

 

 

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

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