Category Archives: medieval

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)

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

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

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

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

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

So what?

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

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

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

GS

7/4/2021

 

 

 

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

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

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

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

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

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

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

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

Photo by Sophie Mikat on Unsplash

Arrest, authority and a poisoning allegation: excusing trespass in fourteenth-century Leicestershire

Here is what looks like a YB-Plea Roll match. It took some finding, in a long roll with lots of very dull, terse, entries in writing which is on the turn towards (shudder) early modern style (a little enlivened, it is true, by some great footnote doodles). The case is Richard Wynslowe v. John Cleypole (1489),[i] a Common Pleas trespass case which starts off in fairly banal fashion, but gets quite intriguing, quite soon.

We are in Leicestershire, and John Cleypole, of Halloughton, gentleman, is answering a case of trespass. It was alleged that, on 4th March 1488 he had broken into the house of Richard Wynslowe, clerk, of Halloughton, and assaulted and threatened his servants, Robert Tyrlyngton and Isabelle his wife; whose services Richard lost for a month, which, so he claimed, caused him loss of 10 marks). Thus far, this is fairly common-or-garden stuff. The interesting bit comes with the defence argument.

John denied most of the allegations, except for the part about entering Richard’s property. As far as this was concerned, however, he argued that Richard should not succeed in bringing this action, because his entry had been to arrest a felony suspect. He explained that Isabelle was suspected of poisoning one Thomas Shepherd at Houghton. According to John, ‘long before’ the day of the alleged trespass, Thomas had been poisoned (intoxicatus), and Thomas, languishing on his deathbed at Halloughton, had contacted John and had told him, openly, that Isabelle had given him a poisoned draught (potum venenosum), of which he died, before the alleged trespass, at Uppingham in Rutland. John said that, after that, suspecting Isabelle of causing the death, he had gone to Richard’s property, had entered to arrest Isabelle, and had then taken her to the king’s gaol of Leicester. The thrust of his argument was that this was not the trespass alleged by Richard, and Richard should not succeed.

There are small variations in the Year Book. For example, the report simplifies the facts, making the allegation that it was the plaintiff (Richard) who was suspected of the poisoning, rather than a servant of his. Both Robert and Isabelle disappear from view. In addition, there is some difference in the way the two sources deal with the way the poisoning allegation was supposed to have reached John. The YB describes this as coming via ‘common voice and fame’. There seems to have been some dispute as to whether this was sufficient (perhaps leading to the version we see in the plea roll, with the idea of a specific report by Thomas to John).

The YB deals in more detail than does the PR with the question of authority. In the YB there is discussion of the fact that John was acting on the orders of the sheriff, which does not appear in the PR. The YB shows discussion of whether John should be allowed to interpose the sheriff and his command here, and apparently it was resolved that he needed to remove the sheriff from the equation, basing his conduct on his own suspicion of Isabelle’s felony. There is also discussion of the way in which the poisoning allegation itself should be handled: was it acceptable to use it as a basis for John’s conduct, without allowing an opportunity for it to be denied? Here, discussion in the YB suffers from its simplification: having treated the plaintiff and the alleged poisoner as identical, this distorts what appears to have been the true situation – a justification of conduct complained of by X, on the ground of a serious allegation against Y. Basing themselves on their simplified model of the case, so the YB tells us, ‘All the Court’ thought that John ought to have put the poisoning allegation in such a way that Richard could have traversed it: he had to be given the opportunity to say it simply did not happen. It is not clear, though, that they agreed on what this meant: did it need to be amenable to a traverse under normal pleading rules  within this case, or was it enough that there was a theoretical possibility of bringing a separate writ de odio et atia, as one judge was reported to have said?

The PR entry ends with Richard’s final gambit. Careful not to admit that Thomas had been poisoned as John alleged, he made the argument that Thomas did not notify John that Isabelle gave him the potum venenosum, as John had said, and that John had trespassed in the way he, Richard, had stated. This was the issue which went to the jury.

 

So what?

In terms of Legal History, and the development of law, I think there are a couple of Interesting points. I have noted above some of the differences between YB and PR. Looking at them together gives snapshots of the process of formulating issues, and the way in which medieval lawyers worked by simplifying complex facts – sometimes, we might think, over-simplifying them.

It is worth thinking about what all of this reveals about attitudes to ‘policing’ and (massive anachronism alert …) ‘civil liberties’. In relation to the arrest power which features in John’s defence, the thinking does not seem to be that a person could not arrest another on the (to us, nebulous) ‘fame of the country’, even though, in the end, John conveniently seems to find that there was actually a direct communication to him from the languishing poison victim, but that, for ‘common fame’  to be an acceptable basis for arrest, defeating a claim of trespass, the person doing the arresting had to take responsibility, as an ordinary citizen, rather than shielding behind the authority of the sheriff. We see, I think, co-existing ideas of community and official responsibility, and perhaps some tension between them. Richard certainly decided to proceed with caution, in framing a narrow issue based on John’s claim of actual notification by the deceased.

There are, of course, questions about the real story, and how it ended. It may be possible to find out whether Isabelle was convicted of the poisoning, and it may be possible to find an ending for this trespass case. I will certainly be looking. Other things may well remain murky – in particular, why was Richard so keen to protect an alleged poisoner, what was the role and relevance of Robert, and was there some other ‘beef’ (poisoned or otherwise) between Richard and John lying behind this?

GS

 

6/3/2021

 

 

[i] CP 40/910 m. 340 (IMG 665) http://aalt.law.uh.edu/AALT3/H7/CP40no910/aCP40no910fronts/IMG_0665.htm; Seipp 1489.041; BU Law | Our Faculty | Scholarship | Legal History: The Year Books : Report #1489.041

Photo by Hendrik Schlott on Unsplash

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

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

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

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

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

 

So what?

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

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

 

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

 

GS

28/2/2021

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

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

Friar Tuck in the Fifteenth Century

Here is a by-catch snippet from a King’s Bench plea roll which might appeal to the more train-spotting completist type of Robin Hood fan (not judging you!) … what seems to be an additional reference to Robert Stafford, naughty Sussex chaplain, who conducted a life of crime under the alias Friar Tuck (or, at least, a reference to a Friar Tuck being up to no good in Sussex).[i]

The name of Stafford (if that’s who this was – as seems likely) is not mentioned, but the description of the offence in the KB plea roll for Michaelmas term 1421 (KB 27/642 m. 32 (AALT IMG 305) might be of interest: at Lewes in 1420, it was presented that Robert Southe of Laughton in co. Sussex, gentleman, Thomas Wodhacche of Horsham, yeoman, and John Pyttekene of Laughton, yeoman, on February 1417, at Plumpton in a place called Lynterygge, with weapons including bows and arrows, their faces hidden, and painted with various colours (make up or camouflage paint? RuPaul’s Drag Race or Celebrity SAS: Who Dares Wins?) beat up Walter atte Brome and Simon Martyn, shouting, amongst other things, that they were the servants of their reverend master, Friar Tuck – and they rampaged around the countryside for some time, terrifying the populace.

There is something of the carnivalesque about this, and perhaps the presence of the ‘gentleman’ amongst the gang suggests that this was not quite a band of desperate starving men. Nevertheless, this seems to be a tale of violence, at some distance from the true story of Robin Hood (which, as we all know, is about cute Disney animals in a forest).

Anyway – hope that is useful to somebody. Off to ride through a glen … or would be, if Covid permitted.

GS 13/2/2021

[i] See Holt, Robin Hood (London, 1982) 58, for reference to this man and his band of followers in 1417 and 1429 (CPR 1429-36, 10) Note that current circumstances mean no library access, so I am fairly sure I haven’t seen this reference before, but that doesn’t mean it isn’t already ‘out there’ somewhere! For more Robin Hoody goodness from the same time – clearly a key point in the Robin Hood myth-making – see Seipp 1429.051  http://BU Law | Our Faculty | Scholarship | Legal History: The Year Books : Report #1429.051 For another 15th C emulation of Robin Hood and co., see TNA SC8/27/1317A

Taking the long and winding road to mercy? A Norfolk woman’s route through medieval criminal justice

In the middle of the reign of Edward III, Margaret Clerk of Norfolk found herself in deep trouble with the law. She appears in an entry on the King’s Bench plea roll for Easter 1353.[i] This, though, was not her first encounter with medieval criminal justice. As the entry makes clear, she was in peril at this point as a result of an alleged breach of rules relating to abjuration of the realm, a process by which a person in danger of being convicted and executed for a serious offence could stay alive, at the cost of agreeing to leave the country swiftly, and according to particular instructions. Margaret had agreed to abjure after confessing to offences of theft, committed alongside a male offender. She had not, however, left the realm.

The entry states that there had been an indictment relating to Edward Clerk of Caston, parson of the church of Lingwood, and Margaret Clerk,of the same place (their relationship, if any,  is unclear) for various felonies. The sheriff of Norfolk had brought them before the king’s justices and John atte Wode, the king’s coroner of Norfolk, came and said that Edward and Margaret had confessed to him, in the church of St Peter at Lingwood, that they were thieves, and so abjured the realm of England. Apparently, he produced a record of this abjuration, which is copied down, and dated [5th April 1353]. The offences confessed to were burglaries at two houses, making off with a quantity of grain and pulses, and bread, worth 18s and 5s 15d respectively. They were asked if they abjured, and assented, Edward being assigned the port of Sandwich to depart within 15 days and Margaret was assigned Dover, to depart within 12 days. Edward’s chattels were forfeit, Margaret had no chattels.

Clearly, given that they were in court now, Edward and Margaret had not in fact departed the realm. They were asked if there was any reason why the law should not be carried out on them (i.e. why they should not be executed). Both told a tale of having set off properly for their ports, but being captured by their enemies at Swardeston, with force and arms, and asked to be put back on the road, to continue to the ports and leave the realm. The court sought the view of a  jury as to whether this story was true, and a jury from Swardeston said it was not – they had left the king’s highway for Swardeston of their own free will. (The record does not state what was so great about Swardeston…).

After that, Edward said that he was a clerk, and passed a reading test to demonstrate this to the court’s satisfaction. A local churchman came and asked the court for him. He was delivered into ecclesiastical custody. Margaret then said that she was pregnant, and inspection and examination by a jury of matrons confirmed this. Her hanging was ‘put in suspense’ as the Calendar of Patent Rolls has it (slightly tactless – let us say ‘respited’) ‘until etc.’ and she was to be held in the Marshalsea prison.

Later, in early 1354, Margaret showed a royal pardon, letting her off the execution. This is dated 20th  November 1353.[ii] The reason given for the grant of the pardon is interesting – those who had had custody of her in the Marshalesa  – Robert Bullore, deputy of Walter Mauny is named – testified that she was lunatica and that she had made a false confession because of her disturbed mental state.  As a result of this intervention, Margaret was allowed to go free.

 

So what?

This set of proceedings tells us a lot (including, for once, an outcome of sorts) but also raises numerous questions.

I would pick out for notice the fact that there was a significant difference between the ways in which the two co-defendants escaped execution. For Edward, the route to safety was via ‘benefit of clergy’. Off he went to the ecclesiastical jurisdiction and custody once he had passed the reading test and secured the support of local ecclesiastical authorities. This was simply not available to Margaret. She pleaded her pregnancy – the plea which later commentators called ‘benefit of the belly’. The plea of pregnancy would not have provided as permanent an escape from capital punishment as would Edward’s benefit of clergy plea: it gave a respite, not a cancellation of the execution at this period. There was no automatic pardon – and we should note that the pardon secured for Margaret had nothing to do with her pregnancy or maternity, nor was it some sort of favour to her as a woman – the reason was her current ‘lunacy’ and the statement that this condition was the cause of her making a false confession to crimes she had not committed.

I suppose this says something quite interesting about pardons as well – this, essentially is a pardon being used as a (modern sense) appeal on the facts: she was in fact not guilty of even the acts complained of. A little different to the ‘average lunacy pardon’, in which X has killed Y, but is held to have done so whilst a ‘lunatic’. It illustrates rather well the fact that the medieval  pardon performed a variety of functions.

In addition, it is an interesting illustration of the plausibility of disruption of abjuration. Although it was not believed here, presumably it was not out of the question that annoyed neighbours or victims of the abjurers’ crime might attempt to cause them problems by ensuring that they broke the rules. Those bound for these assigned ports were supposed to go straight there, via the king’s highway (and in prescribed outfits and manner).[iii] Leaving the king’s highway was a move outside the prescribed route, and could end with the imposition of the death penalty, if it was not merely trivial. In this case, the suggestion is that Edward and Margaret were indeed making a break for it, preferring a Norfolk village to ‘abroad’, probably not a surprising preference in medieval English people.

As for the questions, well, there are many. Uppermost in my mind are three sets of questions, relating to the relationship between Edward and Margaret (kin, lovers … both …? Neither?); to the pregnancy, and to whether she was in fact ‘a lunatic’ (and, of course, rolled up in that one is ‘and what exactly did that mean’)? Upon the answers to these questions depends any real evaluation of just how ‘merciful’ all of this was. I am left wondering, in particular, about  the role of the various juries and officials involved in the abjuration saga – if Margaret was indeed a ‘lunatic’ at the time of the confession and abjuration, why did nobody notice, and why was there no provision for her future custody, as one might expect (perhaps because there is no suggestion she was violent, in contrast to the usual ‘insane homicide’ cases?). On a more selfish note, I am getting a little ‘what might have been’ (personal superpower) about not having found this before finishing the Women and the Medieval Common Law book – not that it would have brought entirely new points, but it would have been a nice opening case for a chapter. It was a nice one to ponder on a cold and locked down morning today, however. For once, a (sort of) happy ending – and nobody died!

 

[i] KB 27/371 m. 41 (AALT IMG 544).

[ii] This pardon can be seen in CPR 1350-4 p. 535.

[iii] Karl Shoemaker, Sanctuary and Crime in the Middle Ages 400-1500 (Fordham UP, 2011) c7, especially at p. 121.