Category Archives: Medicine and law

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 her 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.

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

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

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

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

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

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

Charles Mansfield Clarke, accoucheur

Ralph Blegborough, M.D.

Robert Rainy Pennington, Esquire, accoucheur

Robert Gooch, M.D., accoucheur

David Davis, M.D.

Dr. Augustus Bozzi Granville, physician

Dr J. Conquest, physician

John Sabine, Esq. surgeon and accoucheur

Dr. Samuel Merriman physician and accoucheur

Dr. Henry Davis, physician

Dr. Richard Byam Denison,physician

Dr Edward James Hopkins accoucheur

Henry Singer Chinnocks, Esquire, surgeon and accoucheur

Dr. James Blundell, physician

Dr. John Power, physician accoucheur

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

 

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

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

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

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

 

GS

30/11/2020

Updates:

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

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

From Wikipedia.

Loss of entitlement

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

29/11.2020.

Veins, venom, a ‘leech’ and a canon: suspicions in medieval Cornwall

Something interesting turned up in my plea roll trawling today (or at least it is interesting if you are interested in medieval crime, medicine, religious houses or Cornwall). …

In 1431 (reign of Henry VI), a ‘leech’ (medical practitioner) and a canon of the Augustinian Priory of St Stephen at Launceston fell under suspicion following the death of John Honylond, who had been prior of the same house. As two indictments and two plea roll entries show, the accusation was that John Leche, also known as John Lowell, leech, of Launceston, had killed the prior, both by poisoning his food and drink and also by a cutting procedure (per succisionem), aided and abetted by Richard Yerll, one of the canons of Launceston Priory. The accusation described the killing as false, felonious and treacherous. It also explained that Leche had been retained by the prior since 1427, after he had performed a surgical procedure on the prior’s leg, presumably giving satisfaction on that occasions. No reason was given for the alleged homicide, in regard to Leche or to Yerll. The allegation that the killing was done treacherously (proditorie) is interesting (for those of us who like that sort of thing), in that it hints at even more disapproval than the usual description of such actions as ‘felonious’. It does not really say anything about the subjective intention or state of mind of the alleged offenders, but it shows that there is a possibility that this might be regarded not ‘only’ as felonious homicide (which would be punished by hanging), but as ‘petty treason’ under the 1352 Statute of Treasons (the punishment of which would include ‘extras’ in the shape of being ‘drawn’ as well as hanged). The statute singled out for specially brutal and spectacular treatment homicides which offended against particular hierarchical relationships: wives killing husbands, servants killing masters, religious killing their superiors. Women in these categories would be burnt, men drawn as well as hanged. Richard Yerll, if guilty, would seem to fit reasonably snugly into the category of ‘monk and abbot’ – perhaps there might have been some scope to argue differences in the relationship between monk and abbot in other orders and canon and prior in the Augustinian order. John Leche is a bit more difficult to see as falling into the category of ‘petty traitor’. He was, in modern parlance, more of an ‘independent contractor’ than a ‘servant’ of the prior.

The common lawyers did not, however, get a chance to get their teeth into either of these thrilling areas of potential legal squabbling, since the case never really got anywhere. Yerll appeared as required, but, since Leche, the principal, did not turn up, the case was delayed. Matters went on in the usual desultory fashion until 1438. Leche was acquitted in 1431, but, for reasons which are not clear, process against Yerll was not officially stopped until 1438. This anticlimactic dribble of an ending is not unusual: it was rare indeed for plea rolls to show convictions in this period. Correlation between the findings of juries and the facts of any case is not to be assumed. We will never know whether there was a conspiracy to bump off the prior, which is frustrating, but it is interesting to note the raising of suspicion against the medic in this case. Obvious questions arise: was this part of a more general suspicion or criticism of what may have been aggressive surgical interventions? Was there personal animus against Leche, Yerll or both? It may be that there is more which can be found out about the leading players, but, at the moment, during our own health emergency, the records relating to the priory, in Oxford and Cornwall, which might help here, are beyond my reach. I will, therefore, have to leave it there for now, in the hope that I will be able to flesh it out in the future.

References

KB 9/225 mm. 39, 40 (AALT IMG 77, 79)

KB 27/681 m. 6R (AALT IMG 161); KB 27/686 m. 4dR.

GS 14/6/2020