Paul Brand (2016) ‘Judges and Juries in Civil Litigation in Later Medieval England: The Millon Thesis Reconsidered’, Journal of Legal History, 37:1, 1-40.
Professor Brand takes a less pessimistic view than did Millon of whether medieval juries actually followed what appeared to be the ‘official’ legal rules (as seen in legal texts) as opposed to making decisions based on their own discretion. Looking at plea roll cases c. 1300, he finds a clear connection between what the rules appear to have said should happen, and what did happen. Judges and courts helped keep decisions consistent with the rules, and the pleading process, in framing issues sent to the jury, also ensured some control.
Impeccably argued and bristling with hard-won documentary evidence, this needs the reader’s full attention, but is worth the effort. It will be an important point of reference for anyone looking at medieval law, and a check on the common temptation to look for exceptions to rules, to emphasise dissent and resistance, in legal history. This article is a powerful reminder that medieval judges and juries often pulled together, and law texts might be reflected in practice.
Eleanor of Brittany (1182×1184-1241) is somebody who kept popping up in my research on female imprisonment, and I tried to draw together some thoughts about her in an article back in 2007: ‘Eleanor of Brittany and Her Treatment by King John and Henry III’, Nottingham Medieval Studies 51 (2007): 73–110. Given this, I was very interested to see a very good new article focusing on this unfortunate and under-explored Angevin princess – Stephanie Russo (2016) ‘The Damsel of Brittany: Mary Robinson’s Angelina, Tyranny and the 1790s’, English Studies, 97:4 (2016), 397-411. This looks at the creative use made by the late 18th century novelist Robinson of the story of Eleanor of Brittany. Eleanor – or a fictionalised version of her – features as part of the mental world of the more modern characters in the epistolary novel Angelina, and as a point of comparison for some of the characters’ own situation.
Robinson’s Eleanor gets a bit of a romance – wouldn’t it be good if that was actually true, if there had actually been some such highlight in her life? But sadly very unlikely! It is rather intriguing that Robinson was a Bristolian by birth – did the story of the princess imprisoned in Bristol castle linger even in her day?
Anyway – good to see some attention being paid to Eleanor. I am secretly hoping that the current craze for digging up lost royals (Richard III, Henry I etc.) might mean an increased chance that somebody might have a go at locating her in Amesbury, and maybe find some clues to why she was apparently so keen to be buried there rather than Bristol (or why Henry III chose to say that she was).
There is a very thought-provoking and bold legal history related article in the latest Past and Present: R. A. Houston, ‘People, Space, and Law in Late Medieval and Early Modern Britain and Ireland’, Past and Present 2016 230: 47-89
The article argues for a significant difference between English law on the one hand and the laws of Wales, Scotland and Ireland on the other, based on the relative importance attached to personal and territorial jurisdiction. In brief, it is contended that territoriality was more important in England, while the other parts of the British Isles emphasised jurisdiction based on personal links.
The argument is made with spirit (and is rather more nuanced than might seem from my summary above) and there is a lot in it to interest legal historians from all parts of these islands. As a good article should, it also leaves room for debate in several areas – e.g.
To what extent would it upset the argument to factor in gender (since women in all areas were arguably more affected by personal links with male family members and their powers and rights than they were by territorial jurisdiction)
Are territorial jurisdiction and personal jurisdiction best considered as a linear ‘continuum’ (p.89) or as something more 3D?
Exactly how does the common law ‘doctrine of estates’ relate to the idea of territoriality? (I have been teaching Land Law too long …)
J.M. Moore, ‘Reformative rhetoric and the exercise of corporal power: Alexander Maconochie’s regime at Birmingham prison 1849-51’, explores the wide gap between what was said and what was actually done by this former Australian penal settlement gaoler in the new prison at Birmingham, and provides an important correction to the former positive view of his practices. Maconochie’s ‘mark system’ ideas of task-based sentences leading to mental submission are quite well known. The lack of political approval of a trial of the mark system in the domestic context is interesting, however, and the evidence on actual practice in Birmingham given here is, however, illuminating (in a dark way). Unable to link tasks/behaviour and length of sentence, Maconochie linked these things to food and conditions in a very harsh way, and was rather keen on flogging boys and imposing lengthy physical restraints on women. A lack of respect for the need to record such punishments, and the use of his family members in various unofficial roles in the prison combine to give the impression of an arrogant man who did not respond well to frustration, and was determined to try and push through his theories, despite opposition. (I would like to hear more about his wife’s attempts to use mesmerism and homeopathy in the reform of prisoners though).
B. Lambert and W.M. Ormrod, ‘A matter of trust: the regulation of England’s French residents during wartime, 1294-1377’ looks at the treatment of suspect aliens during periods of uncomfortable relations with France, under the first three Edwards. The article notes the flexible response of government at various levels to the ‘problem’ of aliens. ‘Nationality’ was not regarded as a simple or conclusive matter at this point, before the late-14th C introduction of the formal process of ‘denization’ became established. Important differences between the treatment of ‘alien priories’, nobles and those of lower social rank are noted here, with the suggestion of a move from heavy to more flexible regulation in the case of the last group which may be at odds with expectations from earlier research on alien priories and nobles. The central argument is well made and there is much hard-won and useful detail on practice. From a local point of view, it is interesting to see the lack of desire to aggravate foreigners evident in the report of a mayor of Bristol, asked in 1337 to assess and identify the property in the city which was held by Frenchmen, for purposes of confiscation, who chose to say that there just wasn’t any (which was surely untrue) (p.12). Thinking more widely, this article provides very useful ideas and material to include in historical (and current political) work on the nature of nationality and allegiance, and on immigration, beyond the medieval period.
First of all, we have Helen Killick, ‘Treason, felony and Lollardy: a common petition in the hand of Richard Osbarn, common clerk of the chamber of the Guildhall’ This makes interesting points about the role of scribes in the petitioning process, so supplementing the interesting work done by several scholars (particularly Gwilym Dodd) in the area of petitioning in recent years. For legal historians,and in the year of Magna Carta’s 800th anniversary, a particular interest will be in the light thrown upon the problem of long imprisonment without trial. There are also some good points in relation to the mechanics of imprisonment and its organisation, and on perceptions and treatment of accused felons, traitors and heretics.
Then there is Francis Calvert Boorman, ‘The “stormy latitude of the law”: Chancery Lane and street improvement in late Georgian London’. This is a period and topic with which I am less familiar, but which will certainly be useful for setting the scene – complete with runaway oxen, bad cart-driving and the crazy paving of London local jurisdictions – for my students as they consider the world of the legal profession in this era.
Finally, and of particular interest to those of us who have contributed to the forthcoming collection, M. Bennett and K. Weikert (eds), Hostage-Takingand Hostage Situations: The Medieval Precursor to a Modern Phenomenon(Routledge, 2016/2017) is Jacqueline Bemmer, ‘The early Irish hostage surety and inter-territorial alliances’. This is a very scholarly treatment of a complex, and very old, body of law on relations between different polities, and methods of securing peace between them. (It also brings up the very intriguing figure of the ‘lord of slaughter’, an official enforcer of vengeance).
An area in which many legal historians have become increasingly interested in recent years is the visual composition of legal records. I gave a paper on this at the British Legal History Conference in 2013 (http://www.gla.ac.uk/media/media_282282_en.pdf ), highlighting the need to integrate the images from the Common Pleas rolls into the King’s Bench-dominated view acquired from Erna Auerbach’s work, and have also made some comments on visual material in this blog (https://vifgage.blogs.bristol.ac.uk/2013/04/07/p-is-for-profile-henry-viii-in-the-rolls-of-the-common-pleas/ ). The appearance of a thought-provoking study of the visual material in the CP rolls in the fifteenth and sixteenth centuries is a welcome addition to this area, and certainly one for reading lists in medieval legal history.
Elizabeth A Danbury and Kathleen L Scott, ‘The Plea Rolls of the Court of Common Pleas: an unused source for the art and history of later medieval England. 1422-1509’. The Antiquaries Journal, 95 (2015), 157-210 looks at the rise of decoration and illustration in the CP rolls in this period, and explored the iconography of the images and the meanings of words and mottoes associated with them. There is much of interest in the identification of particular kings and other characters, and the discussion of the way in which particular images fit in with contemporary political events. I am also intrigued by the mysterious popularity of dragons in these records. Helpfully, there are several good-quality photographs of key images.
Medieval historians are naturally drawn to the political ramifications of the images. I think that legal historians can and should also consider the implications of the illustration and decoration which relates to the image or self-image of particular courts. Auerbach’s work saw the inclusion of loyal, royal pictures in the KB rolls as something which flowed from the particular connection of the monarch with that court. Noting that the CP also included such images makes that conclusion less secure. There is also the issue of the inclusion of decoration and mottoes associated with the names of judges, which deserves some consideration in connection with the image they were trying to project. Finally, there is the intriguing issue of the expected ‘consumers’ of these images: who would have seen them? Did our ‘clerk-illustrators’ imagine that they were drawing only for their immediate colleagues and contemporaries, or for posterity?
Selden Society vol. 132 has arrived with a hefty thump on the doormats of Selden Society members and libraries. It is, of course very timely, given this year’s 800 year commemorations of the 1215 treaty/statute/event/totem. This volume provides some very interesting comments on parts of Magna Carta, from common lawyers of the later medieval and early modern periods. They are shown in parallel texts, original law-French and modern English. I am sure we will be using this for a considerable number of years. There are certainly a number of nuggets which I have already found useful, including some classic misogyny (however ‘disappointing’ the editor finds this – lxx – it is hardly a surprise). Sadly for Magna Carta nerds, there is nothing about fish weirs or weights and measures, but otherwise another impressive volume.
There is an interesting article in the newest Historical Research, which adds to scholarship on mid-fourteenth century law and legislation on treason: D. Crook, ‘The seditious murder of Thomas of Sibthorpe and the Great Statute of Treasons 1351-2.’ Historical Research 88 (2015) deals with the killing of a prominent royal servant, who had occupied the positions of Chancery clerk, clerk of Parliament, justice of assize and justice of the peace. Sibthorpe was found to have been crushed or smothered in bed, by a group including a man who was supposed to be rendering an account to him. Because of his status as a sworn royal officer, this was treated as sedition, with consequent upping of the penalties of some of the homicides from hanging to hanging plus the extras associated with the traitor. Crook makes a convincing case for the likely influence of this case (and that of Sir John de Eland) on those drawing up the Statute of Treasons, thus supplementing the account in J. G. Bellamy, The Law of Treason in England in the Later Middle Ages (Cambridge, 1970).
A new article concerning the denization process in medieval England has appeared in the English Historical Review: B. Lambert and W.M. Ormrod, ‘Friendly foreigners: international warfare, resident aliens and the early history of denization in England c. 1250-1400’ EHR 130 (2015), 1-24. A major question which the article addresses is why royal intervention in this area, granting denizen status to aliens, began when it did, in the late fourteenth century. Disagreeing with previous suggestions of Romanist influence in the Chancery, legislation and long-term developments, the authors make out a case for the influence of practices in the late 1370s, connected to dealing with citizens of enemy countries during times of hostility. Interesting reading, particularly in the current climate of heated debate about immigration.
A Year Book note on curtesy, and the requirements which a man must meet in order to claim to hold by the curtesy of England (proof of a live birth to his wife – specifically a baby’s cry being heard) YB Trin. 20 Edw I pl 39; Seipp 1292.88 refers to the case of Richard Danyel v Richard de la Bere (Herefordshire Eyre 1292) JUST 1/303 m. 6. Richard Danyel, claiming the land formerly held by his mother, argued that Richard had not had qualifying issue with Cecily. De la Bere claimed that Cecily had given birth to his (qualifyingly noisy) child at Bishopston. A jury was summoned (the Year Book has some comments on the appropriate place from which to draw a jury when the alleged birth was in one place and the land in another). The jury told a sad tale of a very sick baby and an emergency baptism at home, then a brief visit to the church, after which it died, without having qualified, in auditory terms, as the right kind of offspring to give the father a right to curtesy. The crying test for curtesy is being taken seriously – and, as this case shows, could be used to exclude severely unwell children, even if they appear to have been viewed alive by at least a priest. Richard Danyel did not pursue the case, and should have been amerced for this failure, but was forgiven because he was a minor. Exactly what his role was in this story is unclear, but it does not suggest a happy family.