Category Archives: medieval

Burn Books and Year Books: Mean Girls in the medieval convent?

A Selden Society volume from several decades ago noted the Year Book treatment of an interesting case, Wakefield v. Prioress of Hampole (1318) and a matching plea roll entry, and commented on its importance in relation to the medieval ‘law of contract’. I have just come across another entry on a plea roll relating to this case, which was not mentioned in the Selden Society volume, which I thought I would note, for those who like such things (massive global audience, I am sure), and have a little recap and reconsideration of this case, which is interesting both in relation to the ‘law of contract’ and also to investigations with a focus on social and gender history. And religious women being, well, mean.[i]

 

The nerdy bit, a.k.a. ‘You can’t join Mathletes, it’s social suicide! [but still a rung above being a medieval legal historian]’[ii]

The Year Book references can be found here, (Seipp 1318.099ss) and the case is included in SS 65, J.P. Collas and T.F.T. Plucknett (eds), Year Books of 12 Edward II (Michaelmas A.D. 1318) (London, 1950), p. 58,  and discussed by Plucknett at p. xlvii. The plea roll reference given is quite correct: (translated into modern format) TNA CP 40/225 m 250, which you can see here, but the case did not finish at that point, and to have a proper match, covering the ground seen in the YB, you would also need this entry, from CP 40/231 m. 221.

 

The basics, a.k.a. ‘Get in loser, we’re going [legal history]ing’

The case was, at its root, a dispute about money. It was said that money (20 marks)  had been paid over by a man called Robert le Botiller to Christine, prioress of Hampole,[iii] in 1294, in relation to Robert’s daughter, Eleanor, who was intended for the cloister. The nuns at the convent in question did not, however, accept her. Not surprisingly, given the way things didn’t work out, There was an attempt to get the money back, but the new prioress resisted this. The prioress won. This may well seem questionable, but the explanation lies in the rules about proof and evidence which prevailed in the medieval ‘old personal actions’, i.e. the available modes of proceeding in the area occupied by modern contract law.

 

The law bit: ‘Stop trying to make debt happen. It’s not going to happen.’

There was some quibbling over whether a debt action of this sort could be brought by a person other than the person who had paid the original sum (Robert had died, and the current claimant was William de Wakefield, the executor of Robert’s executor) , but in the end that was not the thing which killed it: the real problem was that it was brought against somebody other than the original recipient (a new prioress had succeeded). William’s side clearly saw that this might be a difficulty, as they tried to make a connection via benefit to the convent as a whole, as a result of the money handed over. This didn’t work, though – in this case, a ‘debt on a contract’ case without a specialty (deed), a defendant was allowed to proceed by ‘wager of law’ or compurgation (swearing that the money was not owed and bringing along 11 oath-helpers to support credibility). This could not work (according to its own logic) for somebody other than the original contracting party – only the former prioress herself would have been able to wage her law and make statements about whether or not the money was owed. A successor could not do so.

One might think that the appropriate response to that would have been ‘well, let’s find another mode of proof then …’, but no – that’s not how these thngs worked. Forms of action came with a particular set of procedures attached, and in this sort of action, the defendant had to be capable of waging his or her law. This meant that William could not get as far as an inquiry about the terms of the deal, whether the money was in fact paid over, or what was supposed to happen if the other side of the agreement was not fulfilled. In the world of of medieval common law litigation, he was indeed … a loser.

 

The human bit: ‘On Wednesdays, we wear habits’

Well, what is better than a story about medieval nuns? Obviously one about medieval nuns being less than obvious embodiments of Christian charity. Here, we appear to see them rejecting a candidate for nun-hood, and then finding a reason not to pay back the money intended to help that happen. This may be a false picture of course – Eleanor may have been ‘evil [taking] a human form’, or she may have been unwilling to join the convent – there was no chance for the facts alleged by the claimant to be interrogated. Whatever the truth behind this allegation of rejection, however, it is certainly not implausible that a prioress, with the aid of her legal advisers, would stand by her strict legal rights. The plea rolls are full of actions in which heads of religious houses seek to use the law to secure their house’s economic position (and, as much work on nunneries has shown, this position was not infrequently rather precarious). One thing which occurs to me is that the changing of heads of house might be rather useful, as a way of making actions like that of William incapable of success. Surely medieval religious would never be so sneaky as to do this deliberately?

Shut Up!

GS

24/7/2021

 

(Image – as you can gather, the convent isn’t visible above ground – there are remains, but it’s a private site and I couldn’t find a free image …thus this unevocative view ,,,]

 

 

[i] I am sure I don’t have to say this, but, you know, classic teen film, 2004. Regina George, Plastics, L. Lohan before it all went wrong …

[ii] Latter clause inexplicably cut from the line.

[iii] Hampole was a Cistercian priory, in Yorkshire, see this outline.

That which we call ‘rhosyn’ … names and language in medieval common law records

A question which has often occurred to me is how medieval criminal justice managed to confirm people’s identities, in a world without ‘identity documents’, and with a wide margin of error (or a lack of a definite concept of error) with regard to spellings. This is probably hugely anachronstic, and no doubt the answer has something to do with small communities and good memories, but I came across a case today (after a period of rather slim pickings in my searches) which suggested another angle to this question of identity.

In a King’s Bench roll of 1368, there is a short entry relating to a homicide case in Gloucestershire. It notes that the roll of one of the Gloucestershire coroners recorded that one John Penres had been indicted for the felonious homicide of Gerard Walyssh[i] at Ockington, arrested and sent to the gaol at Gloucester castle. John Tracy, sheriff of Gloucestershire, was now ordered to bring this man before the court, to answer the charge. No John Penres could be produced, however. The sheriff contended that somebody had been executed for this crime already – he was a Penres, but his first name was not the Anglo John but the Welsh Yeuan (Ieuan as it is in modern Welsh). There was an investigation, referring to a particular previous session, at which Ieuan was said to have been tried and executed, and it was confirmed that a Ieuan Penres had been executed for the homicide of Gerard Welssh [sic]. The sheriff was off the hook therefore.

This shows that the identity question was solved in part by documentary searches, and it is a little comfort to see that care was taken to check these things. It probably also has things to say about physical and linguistic borderlands. I have noted the fun and games clerks of the English bureaucracy had with some of the more ‘difficult’ Welsh names, especially Gwenllian, but did they really find Ieuan difficult? Or would somebody of Welsh background, living or working in Gloucester, have adopted an English name as a matter of routine, for his dealings with non-Welsh-speakers? There is definitely scope for further digging and thought on this issue. Nice little research project for somebody?

Update/addition

And this one jumped out at me just the other day – not a Welsh one, but another apparent ‘mistaken identity’ case, from a gaol delivery session at Newgate on Wednesday 17th March 1316, A certain Ralph le Leche was in jeopardy – he was said to have been appealed by an approver of involvement in a robbery and a homicide in Northamptonshire. His story, though, was that the original accused man was some other Ralph le Leche of London – let us call this alleged miscreant Ralph 1 – while he, Ralph 2, had been in London all the time, and at the relevant period, he had been ill. A jury of London citizens confirmed his story, so Ralph 2 was saved. Does make you wonder whether less ‘together’ defendants might have ended up being executed by mistake in this way, though.

GS

3/7/2021, updated 7/7/2021

[i] This sounds like a ‘Welsh-on-Welsh’ crime, from the names, doesn’t it? Or at least ‘Welsh-extraction on Welsh-extraction’.

Image – your actual Offa’s Dyke – symbolic border etc. etc.

Penalising medieval poetry

The other day, whilst looking through the scanned plea rolls on the AALT website, I thought I might have made a bit of a discovery – a long poem in English, in the midst of a Latin entry. Probably unsurprisingly, it had long since been discovered and written up, more than a hundred years ago, in fact. Nevertheless, I think it deserves another outing.

The case concerned some Yorkshire men who had come to the attention of the authorities for their disruptive behaviour. It was written up from the indictment, and commented upon, by a man with more titles than one might consider strictly necessary – ‘the Reverend Professor Skeat Litt. D’,[1] in the Yorkshire Archaeological Journal vol. 15 for 1900.[2] The indictment is here, and the corresponding plea roll entry here.[3] The indictment is from 1392 and the plea roll entry from 1393, both in the latter part of the reign of Richard II.

As indictment and plea roll entry note, jurors of Yorkshire wappentakes made a number of accusations, including various sorts of disorderly conduct. Those accused included John Berdwald of Cottingham, and at least 31 others, said to have formed some sort of organisation to support each other in litigation and quarrels, six years previously, contrary to laws against maintenance, and some of them had been unruly and violent. The specific poem-related accusation was that John Berwald junior composed a rhyme in English, and had it spoken in public at Beverley on Sunday 21st July 1392, and at Hull the following Sunday, and at various other places in Yorkshire that year. The rhyme was set out in the indictment and the plea roll, going like this,[4]  …

‘In the countrè heard was we that in our soken shrewes shuld be, with-al for to bake.

Among this Frer[e]s it is so, and other ordres many mo, whether they slepe or wake.

And yet wil ilkan hel[d] up other, and meynten him als his brother, bothe in wrong and right.

And so will we in stond and stoure, meynten oure negheboure, with al oure myght.

Ilk man may come and goo among us both to and froo, I say you sikyrly.

But hethyng wil we suffre non, neither of Hobbè ne of Johan, with what man that he be.

For unkynde we ware yif we suffird of lesse or mare any vilans hethyng.

But it were quit double agayn, and [he] a-corde and be ful fayn to byde oure dressyng.

And on that purpos yet we stand; who-so do us any wrang in what plas [that] it fall,

Yet he might als[o] wel, als[o] I hap and hele, do a-geyn us all.’

 

The overall sense is that these men want to behave like friars and stand together against all comers, taking each other’s part in quarrels.

It seems interesting to me in a number of respects. First, it is clearly not a vote of confidence in the system of justice generally available: such alliances would not be needed if normal legal processes were considered appropriate. Secondly, assuming that there is some truth in it, the declaration of mutual support is an interesting counter-current to the anti-maintenance views of more literary authors, noted in Jonathan Rose’s book on maintenance.[5] Here, the confederacy is announced, celebrated, justified in terms of its similarity to the behaviour of friars and in terms of a positive idea of natural solidarity.

Secondly, there is the matter of the authorities’ strategy. It seems to me that they may have run into what might be termed the ‘Mike Read/Frankie Goes To Hollywood problem’, after a notable incident in the 1980s when a BBC Radio 1 presenter drew everyone’s attention to the rather rude words of the song ‘Relax’  – promptly helping the song to rise to chart domination. Was it really necessary to give the whole rhyme in indictment and plea roll? Could some phrase like ‘seditious rhyme’ not have been sufficient? The inclusion of the rhyme does make me wonder what would have been the reaction to it amongst those involved in making these records – did they repeat it to each other, or tap a foot along with its rhythm? I have to say, as a complete non-expert (I actually find medieval literature a bit scary, always feeling that I am missing allusions, references, the point …) that I think it’s quite catchy.[i]

GS

26/06/2021

[1] (‘So you’re a cleric and a leading academic …’ as I believe H.R.H. Shania Twain had it, in an early iteration of country-pop classic ‘That Don’t Impress Me Much’, before going for the Brad Pitt verse …).

[2] (a journal which manages expectations of readers by including in its preface the following slightly gloomy line: ‘It is hoped that the contents of the volume are not inferior in interest to those of its predecessors.’)

[3] The front of this membrane is here.

[4] (after Skeat, checked against the plea roll text – there are only very small differences).

[5] Rose, J. (2017). Maintenance in Medieval England (Cambridge Studies in English Legal History). Cambridge: Cambridge University Press. doi:10.1017/9781107358324, c.7,

Image – Beverley Minster, which must be somewhere near the site of the alleged naughty poetry reading. And, OK, some of that is post-Ric. II, but it’s very pretty, isn’t it? Never been. Hope I can visit it one day.

[i] and rather better than this effort at political protest which an anonymous bard of our own days was unable to suppress, on the subject of more recent political events  …

Unhealthy ministrations

He’s come to a sticky end, Matt

the pound-shop BJ, pant, slip, splat;

his back-hand- jobs sleaze –

the old Tory disease –

just how could anyone fancy that?

Presenting (and Indicting): talk on medieval sexual offences

In between the marking and admin today I am getting ready for a talk tomorrow (online, of course – in this case, with academics from various European universities, and nominally ‘in’ Paris – may purchase a croissant and coffee to get in the mood, since it starts relatively early). The topic is sexual offences, and the overall topic of the project, historicising sexual harassment. It is a challenge, to present the oddities of medieval common law to a mostly non-common-lawyer audience, but it has also been interesting preparing this, with a slight external perspective, thinking about what will be unfamiliar, and where the audience will probably know rather more than me (e.g. presenting on law-French to a ‘room’ full of French scholars is a new one on me).

I am looking at ways of making this available beyond the seminar itself, though I am not sure I want to go on with my experiment in YouTubing. Sticking it up on Mediasite and sending links on request might be the answer, should anyone be interested.

GS

3/6/2021

Conjugal juxtapositions: petty treason and prosecution strategy in medieval Leicestershire

After many years of comparative neglect, medieval married women (of a non-queenly, non-noble sort) have been considered with much greater care, in the historical studies of recent years.[i] It has, I think, become clear that not even classical legal historians – with their customary focus on doctrine and procedure, rather than people – ought to be muttering ‘coverture’, as if that magic word gave a straightforward answer to all possible questions relating to wives and common law, and then moving back to writs and institutions.

A glimpse of the complexity, and perhaps contradictions, involved in common law construction of the married woman can be seen in a remarkable pair of entries on a Leicester gaol delivery roll from the reign of Henry V.[ii] These entries, from a session in 1419, revolve around the death of a certain John Chaloner of Leicester, and those found to have been involved in that death. John’s wife, Margery, had brought an appeal (individual prosecution) against John Mathewe of Leicester, tailor, accusing him of killing her husband in his bed, on a Saturday night in November 1418, and accusing Richard Bargeyn as an accessory to this offence. These men were found guilty, and they were ordered to be hanged.

So far so not very surprising: bringing appeals for the deaths of husbands was an acceptable role for a wife. By this time, they no longer had to claim that they had held their dying husband in their arms, in order to justify their prosecution of his alleged killers: it was simply uncontroversial that a wife could bring such an appeal, despite the general restrictions on prosecutions by women. They had their uses.

Immediately after this un-astounding entry, there is, in fact, something of a surprise. Margery, formerly appearing as the wronged and avenging widow, is cast in a different role entirely.  She herself was the subject of an appeal, by the self-declared brother and heir of John Chaloner, John Smyth of Moreton, and was accused of participation in the death of her husband. A jury found her guilty of this and she was ordered to be burned. Presumably rather desperate, Margery then asked for a respite of the execution, claiming to be pregnant. The usual procedure was performed, with the ‘jury of matrons’ assessing Margery’s body. They adjudged her not pregnant, however, so the burning was ordered to go ahead.

This second case would be grim, but not in any sense odd, were it not for the fact of its association with the first appeal, and the role-switching which all of this involved. A woman was seen as an adequate bringer of an appeal against others, despite herself being the subject of an appeal for the same offence. In some ways this looks a little like an analogue of the approver appeal, in which one member of a criminal gang turns on the others and accuses them. Unlike the successful (male) approver, however, Margery was not immune from the consequences of her alleged actions. The idea that a woman suspected to have participated in her husband’s killing, could bring an appeal against her fellow-felons is one which was put forward in a judicial aside by William Babington, one of the justices of gaol delivery in this session, just a couple of years later, in a case in the Exchequer Chamber. It seemed rather unlikely to me, until I saw this case (and I am afraid I said so, in my recent book).[iii] I still find it a bit odd, but, clearly, it happened. It shows the ‘double edged’ effect of marriage – it was her marriage which gave Margery standing to pursue her appeal, but it was also her marriage which laid her open to especially spectacular punishment, when she herself was  convicted.

I note that Margery had, as pledges for the prosecution, John Smyth and Robert Chaloner, and then John Smyth had Robert Chaloner and one other man as his pledges. This suggests that the double appeal strategy was no accident, and that there was a very strong idea that if there was a wife, she was the one who had to bring an appeal for her husband’s death.  There was, presumably a reason why John Smyth could not simply appeal against Margery, and then, once she had been burned, as heir, appeal against the other alleged perpetrators, if he so desired – I imagine that this was to do with principal/accessory issues (the entries are not very detailed on this). I am yet to work out why Margery might have been co-operating with the man who was about to prosecute her to her fiery destruction. Was force involved, or trickery, or did she think she might somehow escape conviction and execution? In any case, the moving force in the legal process seems to be John Smyth, the heir to John Chaloner, who comes out at the end of the grisly story rather better off and not under suspicion … officially.

GS

10/5/2021.

(Image: Photo by Adam Wilson on Unsplash. It’s not actually John Smyth watching, obviously).

[i] See references in GS, Women in the Medieval Common Law, c. 2. Anyone new to the area would be well advised to start with Married Women and the Law: Coverture in England and the Common Law World  ed. by Tim Stretton and Krista Kesselring (Montreal, McGill-Queen’s UP, 2013) and Married Women and the Law in Premodern Northwest Europe. edited by
Cordelia Beattie and Matthew Frank Stevens (Woodbridge, Suffolk: Boydell Press, 2013).

[ii] JUST 3/195 m. 72d.

[iii] GS, Women in the Medieval Common Law, 99.

Passion, poison, pardons … and pins: law and death in medieval London

When looking through medieval records, it is especially interesting to see the many occupations by which people (mostly men) were identified. Noting a man’s trade or position becomes essential in the fifteenth century, but is normal before that, and so we learn of various agricultural and industrial specialisms – some which seem very ‘niche’ to the modern reader. Such a specialised trade is that of ‘pinner’. The pin-making industry (pindustry?) is not something to which I have ever given much thought, though I have been doing some quick research on it today, in connection with an interesting case from the reign of Richard II, about a London pinner and his household.

This case can be seen in entries on a King’s Bench plea roll for Michaelmas term 1386, telling of an inquiry which the London civic authorities were ordered to carry out, by a writ dated 20th August 1386, and which took place in the Guildhall on 27th September 1386.

From this material, we find that our pinner, Hugh Bromhill, was married to a woman called Margery, and was employer to the other main character in the story, John de Shrewsbury. Hugh, perhaps, seemed to outsiders to be well-placed both in his trade and his domestic life. That, though, was not the truth of things, at least not according to a jury of London men. Yes, it was an inquest jury. Yes, he ended up dead. And yes, those of a suspicious nature, given to salacious speculation, there was allegedly something going on between Margery and John.

The story, as told by the London jurors, went like this. The pair had killed Hugh in the parish of St Martin Pomary in Ironmonger Lane in the ward of Cheap. Why? Well – John, at that time Hugh’s employee, a cardmaker (there’s another niche trade for us)  and Margery had been involved in an illicit relationship. They had slept together often, both at Hugh and Margery’s house and also in other secret locations. Not secret enough, however: Hugh learned what was going on, and threw John out.

We do not know why, but Hugh took John on once more. This makes me warm to him rather – but it was a mistake. John and Margery now, according to the jurors,  plotted Hugh’s death. On Thursday 1st September 1384. They put arsenic powder and realgar (arsenic sulphide, according to the internet – well actually it said ‘arsenic sulfide’, but I just can’t …cool alternative name – ‘ruby of arsenic’) in Hugh’s food and drink. The unsuspecting Hugh ingested it and fell ill, declining over a period of days, and dying early in the morning of 3rd September, in his house.

John and Margery then ran off, and were received by William Coventry, pinner, in the parish of St Mary le Bow, Ward of Cheap, Robert Byssheye in the parish of St Michael Bassishaw,  Nicholas Luffenham, wiredrawer, in the parish of St Benet Fink in the ward of Broad Street. These receivers were said to have known just what Margery and John had done. An innkeeper John de Harwell had also accommodated John de Shrewsbury, at his inn in the parish of All Hallows, Bread Street ward, but the jurors were careful to say that he did not know about the felony his guest had committed.

This all looked as if it might be heading for a burning for Margery, and a drawing and hanging for John de Shrewsbury, as the wife and servant of Hugh respectively, and so petty traitors both. But no.

Margery came to court in January 1389, and produced a pardon for offences between 1st Oct 1382 and 31st May 1388. This is CPR 1385-9, 519. (We have to wonder what else she had been up to! One suggestion is that is was really concerned with the Brembre/Northampton kerfuffle. Could it be that Margery was ‘repurposing’ a pardon to cover things it was never intended to cover?). She was also waving another letter, dated 2nd December 1388, telling the justices not to molest her, which I have not yet managed to track down. This all worked to ward off the possibility of conviction and punishment. She used her status as a citizen of London to get out of jail. John was, apparently dead by the time proceedings came to an end, and the people who had received the pair walked free.

All a bit anticlimactic perhaps, but still, some things to think about.

 

Points (!) of interest

  1. Margery

I think we have to conclude that Margery was somebody with a bit of clout in the pinning/wiredrawing community, since she got the support of a number of people, who sheltered her and John S, and helped out as sureties during the court cases. (Either that or all of the pinners just hated poor Hugh). Amongst a slightly less pin-focused group of Londoners, the evidence about Margery is equivocal. The inquest jurors were not backward in pinning (!) the blame on Margery and John S, leaving them open to the death penalty, with the extra relish of punishment for ‘petty treason’. On the other hand, however, Margery was acknowledged to be a citizen of London. If this  was a case in which she took over the status of citizen following the death of her husband, then it does seem interesting that a suspected husband-killer would not have been blocked from this, in some way.  In any case, she had enough money or (p)influence to obtain a pardon, during a period when the killing of husbands does seem to have been a particular concern to ‘the authorities’, which seems noteworthy. There is some easily-found evidence about the property interests of Hugh and Margery. Hugh had an interest in, and perhaps lived in, a tenement and shop in the parish of St Martin Pomary. Margery was his executor (which does suggest that he trusted her). I wonder if there is any more information on her, lurking about anywhere.

  1. Relationship drama

A woman committing adultery with her husband’s servant was fairly transgressive. The entry shows some interesting hints of the thinking of medieval (male) jurors about gender and hierarchy. It is one of those situations in which two different hierarchies collide – John S is the man but he is also the employee, so on the one hand he was the superior, on the other hand, the inferior, of Margery. How was the jury to understand the couple’s interactions in that case? Well, they seem to have gone with an unusually equal portrayal. As far as the sex was concerned, the pair ‘slept together’ and Margery is given some of the initiative at least. As far as the killing went, rather than the more usual story which is given in such situations, of the male doing the killing while the female procures or encourages, this was very much a joint venture. They acted with ‘unanimous assent’, and the poisoning activity is described in the third person plural.

  1. Cause of death

Poisonings – or alleged poisonings – are always interesting. The type of toxin used is not unusual really, but perhaps the separation of arsenic and realgar says something about popular understanding of poison, and we do have a few more details than usual on how it was administered, and the length of time it took to act and to prove fatal. Another one for my ‘lingering death’ spreadsheet and considerations of causation.

  1. Petty treason

How does this affect the picture of attitudes towards petty treason which I have been building up? It does trouble things a little, doesn’t it? Although wives killing husbands certainly had to be scared of being consigned to the flames, and the troubled state of England in the later fourteenth century did push authorities at various levels towards exemplary burnings of husband-slayers, not even this was immune from the prerogative of mercy. Thus Margery was left to enjoy her pins and presumed relative prosperity after the demise of her apparently unlamented spouse.

GS

7th May, 2021.  

(Image, Photo by Lisa Woakes on Unsplash – and yes, I know they aren’t medieval – just going for a general essence of pin).

To Marry and to Burn: punishing domestic treachery in medieval England

(A version of this was posted on the Bristol Law School Blog on 24th May 2021.  I will continue to update this version, including adding to the ‘grand total’ mentioned in the sixth paragraph below, as I find new instances).

One of the less enthusiastic endorsements of marriage is to be found in the words of St Paul’s first letter to the Corinthians: ‘it is better to marry than to burn’. His point was that celibacy was the best way to live, but those too weak to resist the temptations of the flesh could take the second best option of monogamous marriage. Before the Protestant Reformation in England, there were those who followed what this passage portrayed as the higher path, dedicating themselves to a life of celibacy and the service of God in monasteries and convents, but for most people, the expectation was marriage. Marriage and fire were, however, not as distant, one from the other, as St Paul’s words would imply.

Marriage in medieval England was understood to be hierarchical, with the husband expected to control and correct the wife, and the wife to obey the husband. He was (again in words attributed to St Paul), ‘the head of the wife’.  No doubt, as a great deal of historical research over the past few decades has shown,  there were many variations in practice, with more and less amicable situations, more and less mutual respect.  Even so, the husband’s authority over the wife was a fundamental principle, with real consequences; and one of these was connected with fire.

We can see an example of this connection between marriage and fire in an entry on a medieval legal record from the late fourteenth century. This notes a case from Essex, dealt with by John Cavendish and others, sent to the county as royal justices, in 1378. An indicting  jury of twelve men had said that, when John Trilly junior was lying in bed one Saturday night, his wife, Margaret, and a certain  John Robat of Walden, killed him with an axe or hatchet. The suspects were arrested, brought to court, pleaded not guilty, and accepted jury trial. Unfortunately for them, the trial jury said that they were both guilty, as well as noting that, at the time of the killing, Margaret was John Trilly’s wife. It was ordered that John Robat should be hanged. Margaret, however, was to be burned.

From at least the first half of the fourteenth century, and probably from the thirteenth century, the accepted punishment for a wife who killed her husband was death by burning. This was an unusual mode of execution: most convicted felons (including husbands convicted of killing their wives) faced the rope rather than the fire. For those of us for whom capital punishment of any sort is entirely abhorrent, it may be difficult to feel particularly exercised about the use of one method of ending a life rather than another, so long ago. (We may, though. note the reference, in a document relating to the execution of Anne Boleyn, of the move from burning to decapitation as a matter of royal mercy, as some sort of indication that there was seen to be a difference, at least in the sixteenth century), and it is certainly the case that, for a legal historian, it is important to try to look into the flames, and see what can be learned from past law, past practice.

Why burn husband-killers? Three overlapping factors were relevant: sex/gender, marital status and nature of the offence. This was not, in fact, the only type of offence in which a woman might be burned while a man would face a different penalty. The same applied to counterfeiting offences, and to killings of one’s employer, and there are occasional, earlier, examples of women being burned for other felonies. The use of burning for husband-killers is, however, clearly connected with a wish to make a particular example of those who transgressed against the hierarchical understanding of marriage. For a wife to kill her husband was not simply homicide, but a form of rebellion against her natural superior. It was mentioned in the Statute of Treasons 1352, and from the fifteenth century onwards, it came to be called ‘petty treason’.

The burning of husband-killers has tended to be minimised in classical accounts of legal history, and is sometimes assumed to be associated with the Statute of Treasons. My research in this area has, however, highlighted both the longer, deeper association of husband-killing and fire, and also the greater number of examples of women consigned to the flames for this offence than had previously been suggested. While they were never numerous, there were certainly enough of them to confirm in the minds of lawyers and the population more generally, that this was the expected outcome, in the event of a conviction for husband-slaying. I have discussed the matter in a chapter of my recent book on women and common law in medieval England, and continue to collect examples of women sentenced to death by burning, from the vast corpus of medieval legal records which remain to us. The current total on my ‘spreadsheet of doom’, compiled from work on records of late medieval criminal sessions (13th-15th Cs, the majority being from the late 14th C and early 15th C), stands at 65 burnings ordered for women convicted of husband-killing. While it is not possible to elicit comprehensive, reliable, statistics from such searches, it may be of interest to note that this is considerably higher than the number of executions for rape which I have seen in the same records, though considerably lower than the number of executions for theft, for example. It is certainly high enough to be worthy of attention.

The idea that the offence was particularly heinous and should be punished in this spectacular and symbolic way was not something which was being imposed on communities by ‘the powers that be’: it was something much more pervasive. In some contrast to other areas of crime, in which jurors were willing to bend facts to let defendants avoid punishment, trial jurors, and those men in local communities in a position to initiate prosecutions by indictment or presentment, seem to have been keen to ensure that husband-killers would be burned. On occasion, we see them making it clear that a woman charged with homicide was married to the deceased at the time he was killed, though this might be obscured by the fact that she was now married to somebody else. This was done so that conviction would lead to burning, not hanging. There seems to have been no doubt in the minds of the leading men in medieval communities that it was right to mark out husband-killers in this way.

The fact that the penalty was used, and accepted as appropriate by men at different social levels, over a long period of time, would seem to make it likely to have exerted an influence on the minds and behaviour of married women. This is particularly so, if we add in other things which I have noted emerging from my archival work: accusations were sometimes made on what looks like a relatively slender basis, with rather quick leaps to an accusation that a woman whose husband was killed by somebody else was ‘in on it’, and even over-zealous prosecution when the husband was not, in fact dead at all. These findings do tend to suggest that the threat of fire as a judicial penalty, as well as an eternal punishment, is something which should receive further consideration in studies of medieval marriage and gender, as well as law.

As well as telling other people what they ought to think is worthy of investigation,  a post on a research blog  is a good place to include a little reflection on the process of conducting research. I began looking at this area as a result of being unconvinced by the accounts I had read in secondary sources, and suspicious that they were over-simplifying matters, in a way which played down the importance of the executions of women by burning. To understand what more there was to say, and how accounts might need to be adjusted, it has been necessary to trawl through a very large number of pages of medieval manuscript (in recent times, this has been via the magnificent Anglo American Legal Tradition collection of scanned images), looking for accusations of husband-killing, and orders that somebody should be burnt. Finding a needle amongst the fields of haystacks does sometimes feel like a bit of a ‘win’, each instance strengthening the emerging argument. Nevertheles, each time I come across one of the Latin abbreviations indicating that a burning has been ordered, in the margin of a roll, there is the realisation that it indicates a terrifying end to a real person, as human as the rest of us. I have come to recognise that that feeling, that discomfort, that connection, is itself important in an investigation of the people whose lives and deaths are noted in the rolls.

 

Here endeth the lesson.

GS

1st May, 2021.

(Photo by Zachary Kadolph on Unsplash)

Minor discrepancies: crime, confession and capital punishment in medieval Cambridgeshire

This one is on a new topic for this blog, I think – ideas about minority in relation to medieval ‘criminal’ law and procedure.

It’s from a gaol delivery roll for a session in Cambridge castle, on Wednesday 24th September 1354,[i] and it tells us that John le Northerne had been arrested at the suit of Margaret, widow of John Andreu of Little Wilbraham. She accused him of  having, on Monday 9th December 1353, at Little Wilbraham, feloniously robbed her of money and a variety of valuable (yet conveniently portable) goods. Margaret appealed John of this felony, before a coroner. Later, John confessed before the same coroner, that he had in fact committed this felonious theft, and the coroner recorded this confession. The entry notes, however, that, at the gaol delivery session, the court saw that John was clearly under age, so that his confession was of no effect at law. Did that end matters? No, it did not. John was then asked how he pleaded to the appeal of Margaret, and he pleaded not guilty. The jury on which he put himself said that he was guilty, and so it was ordered that he be hanged. Margaret was to have her chattels back, and John’s other chattels, valued at 6d, were forfeit.

 

So what?

In terms of fixing of the boundary between minority and majority, we might want to note that the judges of gaol delivery thought that John was manifestly under age, whilst the coroner had not seen a problem. This might of course mean that the coroner was dodgy in some way, or else ignorant of a rule known to others, but it seems most likely that there was not a settled rule on the matter. In a world in which there could be doubt as to somebody’s chronological age, perhaps definite ‘cliff edges’ would not make sense.

In my view, the main point of interest is what feels like an inconsistency between, on the one hand saying that, however old John was thought to be, that was too young to confess to the theft, and yet old enough to stand trial and face execution by hanging. What am I missing, and why the difference? Should I be seeing an idea that confession of an offence requires a higher level of maturity and capacity than that required for the assignment of responsibility, and prescription of punishment, for felony? And if that is the case, where does that leave us with ideas about intention and culpability for these purposes? What differences might there have been between the sort of intent, and capacity, required before a homicide would be regarded as felonious, and that required in relation to a theft offence? (I note that there are other instances of people found to have confessed and abjured at too young an age for it to count – see, e.g. JUST 3/141A m. 18d (AALT IMG 143), though there the consequence of a court finding that the young man in question must have been too young to abjure was that he was acquitted).

Whatever might be the theory of the thing, John did not seem to be in line for mercy – there is no suggestion by the jury of a lack of felony,  nor of awaiting royal mercy and a pardon (and no later intervention and pardon on the Patent Roll, as far as I can see). I think we have to assume, then, that this young offender did go to the gallows as a result of the decisions made at the gaol delivery. Allow me an anachronistic “Grim!”.

GS

24/4/2021.

 

 

 

 

[i] JUST 3/139 m. 12d (AALT IMG 100).

 

Fatal peacemaking: a self-defence story from medieval York

Human minds being the odd, pattern-seeking, things they are, I expect that this one leapt out at me today because I am a little preoccupied with a recorded interview I am doing on Monday, for a podcast about rape and sexual consent. The entry is not just about sexual offences, though, but also about the composition of defences to homicide, and, perhaps, master-servant and more positive male-female interactions as well.

The entry relates to a case at a York gaol delivery session on Sat 27th July, 1364.[i] John de Skydbrok of York, had been indicted and arrested for having feloniously killed John Dees, tailor, on the night of Monday 17th July 1363. in Goodramgate, York. He pleaded not guilty and the case was tried by a jury. The jury said that things had gone like this on the day in question: John Dees came to John de Skydbrok’s house, in order to have sex with a female servant (ancilla) of JS. She had made a great noise, which had brought JS into the room where it was happening, and there ensued a classic ‘self defence fight’ in which JS ends up in a corner, and with a choice between being killed by JD’s knife, or defending himself with his own knife (having done nothing at all aggressive up to this point). Having drawn his knife, JS struck JD once in the chest, and JD died. The jury stated that the killing had occurred in self defence rather than with malice aforethought, so unsurprisingly, JS was sent off to prison to await a pardon (and this duly came).[ii]

The self defence story is all very stereotyped, but the prelimnary events are a bit more interesting. The description of the encounter between John Dees and the ancilla is not termed a rape or attempted rape, but volition is mentioned on JD’s side and objection on the ancilla’s side. I think we can rule out the idea that the noise mentioned was enthusiastic participation – it is clamor, which is exactly what a respectable woman is supposed to emit, when protesting against a rape or other attack. Note the response of John de Skydbrok: the jury says that he came in, from his part of the house, ‘to make peace’, or ‘to calm things down’. No doubt things are put this way in order not to contradict the self-defence narrative of one-sided violence. This, perhaps, is an instance of the accepted narrative of self-defence in fact effacing what we would see as commendable behaviour – intervening to help a servant, whether protecting her as a person or as an asset. If there was not any force on JS’s part, it does not really make sense that JD would attack him. If JS was so very pacific, surely making a run for it would have been the sensible option.

Medieval gender relations and sexual misconduct meeting the distorting filters of legal procedure and jury practice; intriguing and frustrating as ever.

GS

23/4/2021

[i] JUST 3/95 m. 43 (AALT IMG 97)

[ii] CPR 1364-7 p. 27.

 

The grim tale of a Lincolnshire tailor: sin and crime in a medieval gaol delivery roll

Well, this one’s very nasty (be warned – violence, and abusive sexual behaviour), but also interesting from a legal history point of view, so worthy of a quick note.

It’s in the gaol delivery roll for a session at Lincoln castle on 1st August, 1392, which contains a series of allegations against Robert de Spalding, tailor, living in Horbling.[i] Sadly, the roll has a big chunk missing from the right hand side, but there is still enough to reconstruct the charges.

In July 1391, Robert had been arrested for homicide, in relation to a newborn (and unbaptised) child, in a house in Horbling. That in itself is pretty horrible, but there was more. The entry notes that Robert had two (apparently living) wives, the first somewhere in Holland (Lincs, not Netherlands) and the second at Folkingham (also Lincs), but even so, on a Sunday in November 1390, he had taken his biological daughter Agnes, shut all of the windows and doors and raped her [the entry on the roll mentions force and the fact that this was conttrary to Agnes’s will]. It goes on to say that he  continued in this sin [it’s definitely singular] with the result that Agnes became pregnant. When the time came for the baby to be born, on Wednesday 28th June, 1391, in a house at Horbling, Robert shut all the windows and doors again, and drew his knife on the prostrate Agnes, swearing by the body of Christ that if she made any noise, he would kill her (so that nobody would learn of his misconduct). In this way, Agnes gave birth to the ‘creature’ which on that day, Robert killed and buried at the same house.

Robert was found ‘guilty of the felonies’ with which he was charged, and was hanged.

Points of interest

It often seems to me that the most surprising and interesting material comes out of situations like this, when we are dealing with a bit of ‘freestyling’ on the part of those who drew up the accusations. There is a fair bit here which goes beyond what was legally necessary – if we strip it all down, all that was needed for a capital trial in this case was the allegation that Robert had killed the baby, or a charge that he had raped Agnes (though, if you’ve spent any time with medieval records, you’ll know that that does not tend to end with a conviction). The rest of it – the two wives, the incest, the swearing and the threats – was not really needed. For some reason, though, those drawing up the indictment, and the clerk recording the session, decided to give us the whole story, granting us unusual access to the thoughts of medieval laymen. We see disapproval of bigamy and incest – and despite the fact that there seems to have been continuing sexual activity, only Robert, and not Agnes, is blamed for it (I don’t think that would have been the case in non-incest situations, and it is rather at odds with other statements in common law sources in which pregnancy was said to be impossible without the woman’s consent/pleasure).

Although the bigamy and incest were not strictly the felonies which ended up ending Robert, it is interesting that they were brought up. Each year, rather glibly perhaps, in the part of the Legal History unit dealing with sexual offences, I tell my students that bigamy and incest weren’t within the scope of the medieval common law: they were left to the church. It looks as if medieval people did not always make that neat jurisdictional distinction. Certainly something to think about.

From a human point of view, I do hope that things improved for Agnes after this – but rather fear that she would have been left in a poor position. She did not even get Robert’s property, for his chattels (1 mark) were forfeit, as was usual after a felony conviction.

GS

11/4/2021

 

Picture: Lincoln Castle, Lincoln © Dave Hitchborne cc-by-sa/2.0 :: Geograph Britain and Ireland

[i] JUST 3/177 m. 83 (AALT IMG 179) which you can see at AALT Page (uh.edu)