Category Archives: Women

Two sorts of labour: maternity and employment, medieval style

Officially not ‘work’: this is a contribution to solidarity with workers everywhere, and everywhen…

[This one seems an interesting case to note today, somehow, as my union, the UCU, is striking once more to try and do something about deteriorating working conditions, and the pitiful progress on gender and other equalities issues which appears to satisfy university management.]

The plea rolls of the fifteenth century Court of Common Pleas have a lot of ‘labour law’ cases, based on the post-Black Death labourers legislation. Although each concerns a dispute which mattered massively to the individuals involved, the records are mostly fairly repetitive: parties argue as to whether there had been an agreement to serve, or a leaving without permission, or a removal or enticing away of a servant by another employer. Occasionally, though, there is one which stands out and lets slip something which goes a small way to illustrating the world of employment relations. Such a case is that of Nicholas Welkys and Geoffrey Molde, cleric, of Royston, Hertfordshire, at CP 40/645 m.39, from Easter term 1422.

Nicholas alleged that Geoffrey had stolen away his servant, Alice Valentyne. Nicholas said that she had been employed by him, at Royston, on a one year contract, as a domestic servant (ancilla). Geoffrey’s action, on the feast of St Stephen, in the king’s eighth year,[i.e. 26th December 1420] had caused him to lose her services for ‘a long time’ (in fact 6 days) which had damaged him to the tune of ten pounds. There were the required allegations of force and arms and the whole thing being against the king’s peace, though whether or not there was likely to have been any sort of force depends on whether one believes the story of Nicholas or that of Geoffrey.

Geoffrey’s story was that he had done nothing wrong because he had actually retained Alice, from the feast of the Nativity of St John the Baptist in year 8 [i.e. 24th June, 1420?], for a year, as an ancilla. According to his version, on the feast of [the translation of ] St Edward, King and Confessor [13th October, 1420], Alice had left Geoffrey’s service without licence or just cause, had gone to work for Nicholas until [26th December], then, of her own free will, returned to Geoffrey, who had the better right to be her employer, and had, consequently done Nicholas no damage.

Nicholas agreed that Alice had been hired by Geoffrey earlier on, but claimed that, on the feast of St Edw Conf yr 8, because Alice was heavily pregnant, near to giving birth and unable to serve Geoffrey as envisaged, Geoffrey had given her permission to leave his service, and Nicholas had hired her from that day, for the following year. She had served him in Royston, so he said, until Geoffrey had abducted her with force and arms.

Geoffrey said he had not allowed Alice to leave his service. A jury was ordered to be summoned to decide whether there had, or had not been such permission, and so whether Geoffrey could be guilty of the abduction offence alleged.

I have not yet tracked down the outcome, but, as is often the case, the pleading itself discloses some interesting nuggets about medieval employment and attitudes to women, and pregnancy. Whatever the truth as to whether Geoffrey gave Alice permission to leave, it is very clear that being heavily pregnant was seen as a reason to end the employment relationship. We would not expect a medieval employer to have much of a maternity leave policy, perhaps, but it does raise questions about how working women coped with late pregnancy and birth. If Nicholas’s story is true (and it was presumably seen as at least plausible) the implication seems to be that Alice had to, and was able to, find a new place while at an advanced stage of pregnancy. That struck me as both sad (in terms of the apparent desperation on her part) and also interesting (in the sense that Nicholas seems to have been willing to take her on whilst pregnant and unable to do much, if any, work).

There are, of course, all sorts of other questions – such as who was the father, and what happened to the baby. Inevitably we will wonder whether Alice had been subjected to abuse, or whether she might have had some sort of approximately consensual relationship with Geoffrey. Might her surname, ‘Valentine’, even indicate some involvement in sex work/concubinage? No answers to those, but intriguing all the same.

25/11/2019

Matrons, medicine and maternity

This morning, I have been listening to a podcast of a late-2017 seminar paper from the Institute of Historical Research Late Medieval seminar:

Zosia Edwards (Royal Holloway), ‘Pregnancy diagnosis in the later Middle Ages: medical methods and courtroom procedures’

https://www.history.ac.uk/podcasts/late-medieval-seminar/pregnancy-diagnosis-later-middle-ages-medical-methods-and-courtroom

This was of interest to me in relation to two projects/areas of on-going research: my monograph on women in the medieval common law and my work on curtesy and live birth/still birth.

Its central focus was the divergence between a rich textual tradition of learned medical writing on techniques of diagnosing pregnancy and the common law’s approach, apparently scorning such learning, or the use of (male) ‘medical experts’ in favour of the judgment of ‘lay persons’: mainly ‘matrons’, though with some involvement of knights (in land cases). It includes some very good examples of both medical diagnosis and common law practice.

The divergence between learned texts and common law practice is striking divergence, and has been commented upon to some extent (e.g. by S.M. Butler). There is much to be said about the common law’s emphasis on jury findings as opposed to those of ‘experts’, not just in the medieval period and not just in medicine. In addition, it seems to me that there are also other particular  explanations for the difference in procedure in relation to pregnancy which would be worth consideration. First, the medical texts and the investigation in common law felony cases were directed at slightly different questions. In the case of the medical texts, the search (however dubious we might find the methods) was for the presence of any pregnancy. At least in the case of the ‘pregnant felon’ cases, it was a search for confirmation of a woman’s claim that she was pregnant with a ‘quick’ child: thus a less ‘expert’ and sensitive test might be thought to suffice. In addition, there does not seem to have been a desire to avoid all possible killings of pregnant women: witness the approach to those claiming a second pregnancy, the possible presence of a foetus not being sufficient to defer execution. Views on the value to be accorded by the law to the foetus at various phases of existence were in a state of development/flux in the medieval period, and trying to bring together the attitudes encapsulated by legal texts and plea rolls relating to foetuses in homicide, abortion, curtesy and other land cases is a task with which I am wrestling. A paper on determinations of live birth in relation to curtesy temp. Edward I is on its way to publication, but I would love to expand into a more general overview of ideas about the foetus/newborn in different categories of legal case. One of these days.

13/1/2019.

Judging the feelings of women

[see also my blog on this for the Bristol Law School: https://legalresearch.blogs.bris.ac.uk/2018/11/the-all-women-jury-in-r-v-sutton-1968-of-no-more-than-minor-interest/ ]

Centenary commemorations of an important step towards inclusion of women in the legal system of England and Wales will soon be upon us: it is almost 100 years since the Sex Disqualification (Removal) Act 1919 removed sex as a disqualifying factor for participation as a juror. Obviously, and importantly, this did not lead to equality either between men and women, or between women in different categories in terms of wealth, class, education or ethnicity. Nevertheless, it was a significant victory, won by persistent and righteous effort, and it deserves to be marked.

 

While the Act meant that women could be jurors, it also gave judges a discretion to choose a single sex jury (s.1)[i] This power could be used to exclude women from cases thought inappropriate for them. Excluding women was its usual function, but the section does envisage women-only juries too, ‘as the case may require’. Cases, it seems, were not thought to require women-only juries, for almost half a century following the act, but there is an interesting case from the late 1960s in which a judge decided to use it in an unexpected way, excluding all males from a jury. It is with this case that this post is concerned.[ii]

 

The case concerned the death of a small child: Miya Bibby Ullah  – a girl of three – in South Wales, in February 1968. The girl had died after having been scalded in a bath by her aunt, the accused, Margaret Ann Sutton, of an address in Cardiff.

 

The decision to order a women-only jury was made by Thesiger J when he heard the case at the assizes, in Swansea. Both the reasons for his decision and the responses to it are interesting. There are slightly differing accounts of Thesiger J’s reasoning, but there seem to have been two things which pushed him to insist on a female jury: (i) this was a case about child care, and women would know more about that than men, and; (ii) there was a need to have some insight into the feelings of women. “The judge said he felt that this was essential because it involved the bathing of a baby and the feelings of women were concerned.”[iii]

 

Leaving aside the gender stereotyping involved in this, it might seem that, if this was a matter of ‘expertise’, then witnesses, rather than jurors, would be able to provide it. It shows a strange lack of faith in male jurors to imagine them incapable of weighing up evidence relating to child care or feelings. The actual reasoning might have been a little different: it was not that men could not understand these matters – indeed, it was not that there was actually a need for an entirely female jury, but Thesiger wished to ensure there was a significant female presence in the jury, and the Act did not allow him to stipulate quotas of males and females, only all one or the other.

It is clear that the decision was Thesiger J’s own – in fact both the prosecution and the defence objected to his order, and the defence used it in an appeal. These objections are worth some consideration, as the lawyers do rather tie themselves in knots.

 

According to the Times report,[iv] Sutton’s counsel, Aubrey Myerson QC, said that making the order for an all-women jury would be an abuse of the judge’s discretion. What was his objection? The case was too emotive for a jury of women to be able to hear and decide without the steadying influence of a man or men: “this was a case which was emotionally power-packed, and to empanel a jury solely of women would present great problems because of that. It was going to be very difficult for 12 women without stability of any man being present, to apply an objective mind without partiality to the evidence in the case”. This says interesting things about women’s perceived inability to function rationally when faced with upsetting circumstances, if not helped by a man. There are, of course, implications in terms of what was supposed to happen when juries included both men and women. Myerson also made a comment straightforwardly denigrating women’s intelligence: [any jury of women was] not going to apply to the facts of this case the breadth of vision normally given by a jury in which there were men.” There we are – men: breadth of vision and their presence serving to broaden the vision of poor, narrow-visioned women. It might of course be that women in a mixed jury should just shut up and let men give full expression to their breadth of vision.

 

Myerson had a better point in relation to the judge’s assumption that just by being female, women jurors would be able to understand the accused: they were not, he said, going to be “a jury of women in the same age group as Sutton, or with the same background or intellectual capacity of the accused”.

 

The prosecution (T. E. Rhys Roberts) also objected to the order, on the ground that the subject matter was too upsetting for women: “the emotive value of injury or death to a child on a woman … would take it outside the bounds one expected of a jury”.

 

There was an attempt by the defence to change the jury by way of multiple challenges, but they were simply replaced by other women. The case proceeded.

Myerson, having lost on the question of an all-women jury, attempted to use the sex of the jurors to his (client’s) advantage, exhorting them: “In your historical role, the part you have to play is to show, in the discharge of the duties you have undertaken, that you can demonstrate to one of your own sex that high degree of fairness, that high degree of impartiality, and a complete lack of bias that reflects on your part an understanding of the mind of this woman in circumstances that can only be reflected by the acquittal of this woman.” An interesting, cajoling, tactic, but one which did not work for him: Sutton was convicted and sentenced to five years in prison.

 

Although the law reports do not mention this, newspaper sources all describe the child as ‘coloured’. Clearly, this seemed to them a relevant fact. Nobody else is described in racial terms. It looks as if  the inclusion of the child’s ‘colour’ is less about diminishing the loss or offence, and more about building up a picture of what many readers would consider the undesirable and disorderly family life of the Suttons. Thus, the accused was a ‘spinster’ mother of two, with another on the way, from Splott (a poor part of the city) and there were hints that she had been moved to treat the child unkindly because her television watching had been interrupted. The fact that she was ‘unemployed’ was noted. The ‘mixed race’ of her sister’s child might well also have suggested to some that the Sutton sisters were ‘no better than they ought to be’.

 

There is also some comment on the female jurors: newspaper reports tell us that one of them could not read the oath; that they were “middle aged”, and that half of them had changed outfit from one hearing date to the next. Whether that last point is emphasising the frivolity of the outfit-changers or the poverty of the re-wearers is not clear (but the attire of male jurors is not much commented upon).

 

Sutton appealed against conviction and sentence, in part based on an argument that there should not have been an all-women jury. Her counsel at the appeal argued that having an all-women jury had been unfair to her, because the details of the case were “so harrowing that prejudice was likely with an all-women jury”.[v] No prejudice in that remark at all.

 

The Court of Appeal (Lord Parker LCJ; Ashworth J; Davies LJ)[vi] expressed disapproval of the use of the all-women jury ‘even if the case was highly emotional’. (There is some disagreement in the establishment as to whether women’s ‘emotional’ ‘nature’ is a good or a bad thing in terms of fitting them for jury service. I may not have the breadth of vision to understand it, of course). The court did not agree that Thesiger J had acted beyond his powers or in an arbitrary way, however. The conviction and sentence stood and the possibility of all-women juries remained in theory, though Sutton did not lead to a flood of similar orders for all-women juries.

Two things would be interesting to know: (i) why did this suddenly crop up so long after the Act; and (ii) what sort of cases were originally envisaged as likely women-only jury cases? In addition, it would be interesting to see the papers relating to this case which are in the National Archives, but not due to be opened until 2044. One for legal historians of the future.

 

Sources:

R v Sutton (Margaret Anne) (1969) 53 Cr. App. R. 128

Times Tuesday, April 30, 1968, 4; Wednesday, May 01, 1968, 4; Thursday, May 02, 1968. 5; Friday, May 03, 1968, 3; Tuesday, Nov 19, 1968, 7;

http://discovery.nationalarchives.gov.uk/details/r/C4630609

Guardian 19 Nov 1968, 5.

Daily Mail 3 May 1968, 4.

Anne Logan (2013) ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70, Women’s History Review, 22:5, 701-716.

[i] Anne Logan (2013) ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70, Women’s History Review, 22:5, 701-716

[ii] Logan, 705, 706.

[iii] Times (London, England), Apr 30, 1968, 4.

[iv] Ibid.

[v] Guardian 19 Nov 1968, p. 5.

[vi] R v Sutton (Margaret Anne) (1969) 53 Cr. App. R. 128

Coke fanboys and a cheer for F. Pollock!

I recently had occasion to go over the report of Bebb v. Law Society [1914] Ch. 286 (woman wants to be solicitor; not allowed to; takes legal action; loses, because obviously women can’t do such things – they should know their place), and, apart from its steam-from-ears-inducing unfairness,  it has some interesting material for those of us who are not fans of Sir Edward Coke (some might find the words ‘over-rated ruff-wearing misogynist’ spring to mind – I could not possibly comment).

On the depressing side, it is an example of just how ludicrously deferential judges of this period were to Coke: even when he was citing the dodgy Mirror of Justices. Cozens Hardy MR at 293, ‘[T]he opinion of Lord Coke on the question of what is or what  is not the common law is one which requires no sanction from anybody else …’ while Swinfen-Eady LJ, at 296 goes with ‘It is said the authority of the Mirror is impugned. But the authority of Lord Coke is not …’ and Phillimore LJ 298 ‘Lord Coke … is only a witness, no doubt, as to the common law, but he is a witness of the highest authority’. Creepy, craven stuff. Still, I suppose the deification of Coke meant there was no need to do proper Legal History research.

Pollock, editor of the Law Reports, however, had Coke’s number, noting in a footnote that his citation was incorrect and that there was some corrupt spelling (fn on  p. 292) and in a footnote on p. 295 that ‘Coke, according to his frequent habit, felt bound to support his living knowledge of  practice by citing an apocryphal authority’. Quite right too, F.P.

All of which has left me wondering:

(1)    When did the Coke-idolisation thing end’; and

(2)    What is the most Coke-worshipping statement in a law report? I will be looking out for this from now on.

Coke’s Marriage and Treatment of his Wife and Daughter

Those writing about Coke have generally given him a rather easy ride in relation to his treatment of his wife and daughter. It is hard not to find his ‘gold digging’ matrimonial conduct and his swift and secret second marriage anything other than discreditable and distasteful, but Baker’s introduction goes no further than saying that he ‘later had cause to regret’ i: Baker, Introduction to English Legal History, 4th edn 2002, 480t). No mention of the whole abduction of daughter to force her into obviously unsuitable marriage for his advancement in the favour of important people …

‘The second Mrs Coke’, a.k.a. Lady Elizabeth Hatton is subject to straightforward, and deeply gendered, insult elsewhere: being called a ‘harridan’ in Barnes and Boyer,  Shaping the Common Law from Glanvill to Hale 1188-1688 (Stanford CA, 2008) p. 120. The abduction of his daughter is mentioned here, at p. 127.  but there is not any real criticism and nothing on the lack of suitability of the groom.

Mephitic metaphor

I am not sure we really want the mental pictures conjured up by the idea of the common law as Coke’s ‘jealous mistress’ [A.D. Boyer,  Sir Edward Coke and the Elizabethan Age (Stanford UP 2003), 32. There are all sorts of dubious metaphors about the common law, or justice, as a woman, but does it need to be a ‘mistress’, with all that that imports, and does it need to assume that there is a recognisable, accepted idea of ‘the jealous mistress’. Just unnecessary.

 

 

 

 

 

Early modern medical snippet

I am neither an early modernist nor a medical historian, but came across an early modern medical case recently and thought it was worth sharing, for the benefit of those who know more about these things.

Brashford v. Buckingham 79 ER 65 and 179 , Cro. Jac. 77 and 205, is a King’s Bench case from 1605-7 (Trinity 3 James I, and Hilary 5 James I),  concerning a promise to pay a healer £10 for healing a wound, and then a dispute as to whether payment was due. It is not especially surprising to see an action of this sort in this context (it is an ‘action on the case’, not unexpected in the medical context), and the main legal point which was of interest to the reporter concerned a technical issue of the appropriate parties, but it did strike me as slightly unusual in that the ‘medical practitioner’ was a woman.  Curing a wound which was worth £10 does sound like fairly serious medical treatment, and being trusted to do so by somebody who can pay £10 suggests a high reputation for healing. The woman in question deserves some attention from early modern medical historians.  Sadly, this will mean trawling through four KB plea rolls: KB 27/1391, 1392, 1403 and 1404, since the report (annoyingly) does not give a roll or membrane number. One day …

Another triumph of legal science from Sir Edward Coke: the Great Lady and the Baboon

Despite his high reputation, there is a lot not to like about Coke (gold-digger, involvement in some very abusive trials and persecutions,  tendency to misrepresent and mis-cite medieval cases …). It is, therefore, always satisfying to be able to point out his grosser follies in the field of ‘legal fake news’. They don’t come much grosser than his much-quoted tale of the Great Lady and her sexual relationship with a baboon.

This comes in his discussion of buggery. [3 Co. Inst. 59] From buggery, he goes on to bestiality (grudging admission that this is justified by the statute he is discussing, which also does so), and this is illustrated by the story of the Great Lady who manages to become pregnant by a baboon. Coke places this some time before the passing of Henry VIII’s act against buggery  [25 Henry VIII]. Neither the lady nor the baboon is named, and it is not clear whether a human-baboon baby was supposed to have been produced. Obviously this is biological nonsense, and it looks as if Coke is caught out either making things up or not checking his plea rolls to confirm the facts. Nevertheless, it is quoted over and over again, without any doubt being cast upon the tale – such was his canonisation.  [E.g. in Anon., A Treatise of Femes Coverts or the Lady’s Law (London, 1732), 52; and there are examples at least into the 1820s].

If it is not absolute fabrication, the story might have its origin in some very unfortunate and misunderstood birth of a very disabled baby, given a back-story blaming the mother. We know such tales were told. If it is a fabrication, that fits in all too well with Coke’s striking, and sadly influential, misogyny, which damaged women’s chances of improving their legal position for centuries after his death: cases on areas including dower and the right to practise law frequently cited Coke to the disadvantage of women. And yet this was a man who alleged that a woman and a baboon could conceive a baby.

The anti-Coke backlash starts here!

Shaming and sheep (Baa baa black … ram?)

Reading some early modern material, in the (forlorn) hope that I might find something useful on tenancy by the curtesy (a recent obsession), I came across more than one reference to a strange procedure allegedly used in relation to free-bench (the equivalent to dower, for land held by ‘unfree tenure’, according to various manorial customs.

The procedure was allegedly used in cases in which a widow, who would, in the usual course of things, be entitled to free-bench, had had an illegitimate child after her husband’s death. ‘Incontinence’ (and, indeed, remarriage) would often mean that she lost the right. But there was, apparently, a way out: all she had to do was present herself in the manor court, riding (possibly backwards) on a (possibly black) ram, (possibly holding its tail) and reciting the following verse:

“Here I am

Riding upon the back of a black ram,

Like a whore as I am;

And for my Crincum Crancum

I have lost my Binkum Bankum;

And for my tail’s game

Have done this worldly shame;

Therefore pray, Mr Steward, let me have my land again.”

 

This would, so we are told, act as condign penance, and she would not be forfeited.

The sources in which I have seen this are 17th and 18th C, and the procedure is sometimes linked to particular manors in Berkshire, Devon and ‘parts of the West’. [See, e.g., Anon., A Treatise of femes coverts or the Lady’s Law (London, 1732), 128; G. Jacob, A New Law Dictionary 6th ed. (London, 1750) under ‘free bench’; G. Williams, A Dictionary of Sexual Language and Imagery in Shakespearean and Stuart Literature vol. I (London, 1994), 333].

Is this just ‘horrible legal history’ or was it really ‘a thing’? It does chime in with various rough music and carnivalesque/misrule practices, but it is hard to see that performing a humiliating verse in this manner would have been thought to cancel out the ‘shame’ of producing an illegitimate child, evidence of sexual misbehaviour by a widow which was frequently seen as serious and deserving of severe property consequences. (And is it actually possible to ride backwards on a ram?) Early modern England – bit of a mystery.

 

 

The other disadvantage of excommunication…

A Cambridgeshire case from the early part of the reign of Edward III shows the other disadvantage of excommunication (apart from the whole ‘no communion, going to Hell…’ side of things, that is) and also contributes to the rich and fascinating picture of women’s participation in medieval ‘criminal justice’.

The case was an appeal of robbery, brought by a woman, in which an objection was raised by the accused man, contending that he should not have to face such an accusation brought by a woman he claimed to be in a state of excommunication. It qualified for Year Book reports – it is both YB Pasch. 3 Edw III pl 33 f. 19a;  Seipp 1329.072  and also 3 Edw. III Lib. Ass. 12 f. 5b; Seipp 1329.171ass; http://www.bu.edu/phpbin/lawyearbooks/display.php?id=6228 https://www.bu.edu/phpbin/lawyearbooks/display.php?id=6327,

and I have found the plea roll entry in the King’s Bench roll for Easter term 1329: KB 27/276 Rex m.9; see also m.9d.

As is often the case, the reports are light on, or inconsistent as to, details. Putting it all together allows us to get a little nearer to what was going on.

The plea roll entry clears up the reports’ disagreements on the parties: it should be Margaret le Hornere v. Master Richard Badowe, Stephen Bedel and Thomas Bedel. It tells us that this is an appeal of robbery and breach of the king’s peace. It seems to be from Cambridgeshire rather than Kent, as the reports suggest (‘Cant.’ for Cambridgeshire could easily be misread as indicating ‘Canterbury’). Margaret had brought a trespass case against Richard, alleging that he had locked her up and taken some goods from her, and she had been faced with the argument that she could not do this, as she was an excommunicate, an official ecclesiastical letter to this effect (from John [Hotham] Bishop of Ely) appears to have been produced, and that put a stop to the action (at least until Margaret’s status should be improved.  Not to be put off, Margaret also tried the ‘criminal’ procedure available for ‘theft’ facts – the appeal of robbery – as noted. The KB record of this action gives a more detailed account of the robbery – which she said took place on a stretch of water between Barnwell and Cambridge – and a longer list of the items allegedly taken (much of it fancy  clothing). But the defence and the outcome were similar to the trespass case: Margaret could not pursue the case in her current state of lack of grace, and so the appeal could not proceed.

The case is interesting in a number of respects. In terms of jurisdiction and spiritual-temporal procedural matters, it is worth noting as an example of the effects of excommunication on ability to litigate in the secular courts. If one were able to have potential accusers excommunicated, that might be a very good way to hold them up, or even discourage them from pursuing their suit. In terms of the law on appeals, it looks as if there was some doubt about what should be done with the defendant in a case like this, once it was established that the woman bringing the appeal was excommunicate. The record shows a slightly makeshift looking series of securities being used, while Margaret was allowed time to show she had been absolved.

Things trundled on, with requests for Margaret to produce evidence of absolution, security for Richard’s appearance and several court dates, but in the end, Margaret seems to have given up, and never did manage to show that she had been readmitted as a communicant. Richard prevailed in the end. Nevertheless, Margaret did show an interesting flexibility in what action to bring, as well as clearly being rather keener to bring Richard to justice than to make sure that her soul was safe.

GS

25/1/218 (Dydd Santes Dwynwen!)

 

Medieval mayhem: the correction of wives, rather hard bread and ‘stupid jumping’

Here is a striking story from the plea rolls of the time of Henry IV, which throws a few glimmers of light on several shadowy areas of medieval law and social history: the law of mayhem, domestic relations and domestic violence, and the consistency of medieval bread.

Alexander Dalton v. John Barnaby  is an appeal of mayhem (private prosecution for infliction of certain sorts of wound) appearing in the King’s Bench plea roll for Easter term 1400. The parties were both described as tailors, and the location is London (more precisely, ‘in the parish of St Gregory in the ward of Baynard’s Castle’). The other character appearing in the record is John Barnaby’s wife, whose name is not given.

Dalton brought the case against Barnaby in relation to an injury to his (Dalton’s) right eye. The accusation was that Barnaby had hit him in the eye, leaving him with complete lack of sight in that eye. Thus far, this is all quite standard: true, most mayhem actions seem to be about injuries to arms and hands (with no end of ‘mortified nerves and veins’), but loss or diminution of sight fits within the overall idea of a mayhem as a serious injury, perhaps to be understood as centring on the concept of damage to a man who might potentially fight for the king. Things swiftly become a bit odd, however, as the ‘weapon’ which Dalton alleges Barnaby used against him was not the usual knife, sword, pole-axe etc., but … half a loaf of white bread. Dalton said that Barnaby had thrown this at him, hitting his right eye and causing his injury.

Barnaby told things somewhat differently, denying that he had done anything felonious. He described events from a slightly earlier point, saying that, on the day in question, Dalton and Barnaby’s unnamed wife had been in the city together. As soon as they got back to Barnaby’s house, Barnaby ordered his wife to sort out the dinner, which involved laying out a tablecloth, and putting the bread (and presumably other items) out. Barnaby said that he intended to chastise his wife for having been out in the city, and away from home, for a long time. This chastisement was supposed to take the form of Barnaby throwing bread at his wife’s head, and this was what he was trying to do. He threw the bread at his wife, and Dalton stupidly got up and jumped in the way of the flying half loaf, so ending up with his injury, through his own stupidity (rather than through Barnaby’s wrongdoing, as had been alleged).

Predictably, we do not get a straightforward conclusion to the case – a jury was to be summoned, matters dragged on for another couple of terms, and then we see Dalton being fined for failing to turn up and press on with his case.  Nevertheless, what we have in the record is quite interesting in a number of ways.

As far as the law relating to mayhem is concerned, Dalton v Barnaby provides: a good example of a defence of ‘your own stupidity caused the injury’and an unusual weapon. Unfortunately for medical historians, there is no questioning about the medical care which was, or could have been provided after Dalton was hit by the loaf-projectile, but the rules of medieval common law procedure meant that Barnaby had no need to go into that.

There are also some interesting nuggets with regard to marriage, domestic relations, domestic violence. It is well known that husbands were allowed and, indeed, expected to correct their wives’ misbehaviour, but this episode, at least as Barnaby tells it, shows something a little different to the standard examples of beating (with fists, sticks, clubs). If Barnaby was telling anything like the truth (and that’s debatable – I can’t stop thinking that this was all a food fight which got out of hand) then he thought it a plausible view of ‘reasonable chastisement’ that it might include throwing bread at his wife’s head – was this humiliatory and.or regarded as humorous? Within his story, there is also the germ of a contradictory idea – perhaps Dalton, if he did jump in front of the loaf, was demonstrating that he thought Barnaby was going beyond appropriate husbandly correction. Also on the marriage front, it is interesting that Mrs Barnaby and Dalton appear to have been out and about in London together – the more suspicious reader might wonder whether there was something going on there, and if there was an extra-marital relationship, it might make Dalton’s ‘stupid jumping’ seem rather less of a general intervention to stop a colleague from abusing his wife, and more of a personal  defence of somebody to whom he was devoted. Much to ponder. ‘The wife’ of course, apart from not being named, is not allowed much action in either man’s version of events.

And finally, there is that bread! It was part of a white loaf – the more expensive type of wheaten bread – rather than the poor person’s darker fare. Nevertheless, it clearly can’t have been a light and airy creation, if it was thought plausible that it was capable of causing this sort of injury. Again, however, the ‘rules of the game’ would have meant that nobody would have had the opportunity to ask questions about this: since the argument was framed as ‘You injured me with bread’ v. ‘You may have been injured with bread, but it was your own fault’, there was no space within which to test the question of whether that loaf could have caused that injury, or whether, in fact, it did cause the injury. Such are the joys and frustrations of medieval legal records.

GS

6/10/2017

 

References

Alexander Dalton v. John Barnaby KB 27/556 m.12d (The National Archives); see this online, AALT image 0163 via the Anglo-American Legal Tradition website at http://aalt.law.uh.edu/AALT.html ). Further stages of proceedings can be seen at: KB 27/557 m. 54 and KB 27/557, fine roll.

On medieval domestic violence, see, in particular S.M. Butler, The Language of Abuse: Marital Violence in Later Medieval England  (Leiden, Boston, 2007).

Those whose appetite for medieval bread has been whetted may wish to see (ahem), G.C. Seabourne, ‘Assize matters: regulation of the price of bread in medieval London’, Journal of Legal History 27 (2006), 29-52.

Afterthought

Finding myself wondering whether that proverb about half a loaf being better than no bread was current in medieval London …

Medieval employment law: workplace sexual harassment in fourteenth-century Yorkshire

Years ago, I wrote my Ph.D. on economic regulation in medieval England, eventually turning it into my first book, Royal Regulation.  In both thesis and book, I decided to concentrate on sales and loans, and left out an obvious area of royal intervention in ‘the market’: regulation of wages and employment, especially under the Ordinance of Labourers 1349 and the Statute of Labourers 1351. This omission was due, in part to the vast body of evidence which would have had to be examined, in order to do a proper job of assessing the legislation and jurisprudence. There was also the fact that the area seemed to be well covered by works such as Bertha Haven Putnam’s still-splendid Enforcement of the Statutes of Labourers, and some of the ideas to be found in Palmer’s English Law in the Age of the Black Death. Working through medieval plea rolls these days, I frequently come across ‘Labourers’ cases, but, all too often, the dispute boils down to ‘You were my employee and you left before the contracted term was up’ v. ‘I was never your employee’ ‘Let’s go to proof’ ‘OK then’. and the roll says little more about the matter. Occasionally, however, there is a case in which we actually see a bit more, and learn a bit more about understanding and interpretation of the law in this area. That is certainly so with a case I turned up yesterday in the Common Pleas plea roll for Michaelmas term 1363.

Thomas de Queldale v. William de Ramkill and Elena de Hustwayt (1363) CP 40/416 m. 128d is a case brought by the former employer of Elena de Hustwayt against Elena and a chaplain, William de Ramkill. Thomas claimed that Elena was his servant, employed under a contract for one year, but left his employ before that time was up, without permission and without reasonable cause, and was thus guilty of an offence under the Ordinance of Labourers. William de Ramkill was accused of having committed another offence against the same legislation, by hiring Elena while she was under contract to another employer. Rather than the usual denial of having been employed by Thomas on the terms which he had stated, however, Elena argued that she had had reasonable cause to leave.

It was certainly possible to argue ‘reasonable cause’ on the basis of excessive beating or failure to provide for a servant, and Putnam’s book has examples of both. Elena’s objection, however, was different: Thomas, who was, she stated ‘a married man’, had often pestered her for sex. (The Latin of the text is ‘frequenter solicitavit ipsam ad cognoscend’ ipsam carnaliter contra voluntatem suam’ – which is rather intriguing in terms of ideas about gender, will and sexual consent, and I plan to consider it at greater length elsewhere). Thomas denied that she had left for this reason. It appears as though he is more concerned to question causation of her departure, rather than denying that there was such lecherous behaviour on his part, but this could be a result of common law pleading rules. In any case, he managed to convince a jury that she had left without cause, and that the pestering had not happened. So Elena’s defence failed, and she and William were held both to have damaged Thomas and also to have acted in contempt of the King (because of the breach of royal legislation). It is not very surprising that this was the outcome – juries, made up of local men of some property, were not at all inclined to find in favour of employees in these Labourers cases. It may, however, be rather unexpected – bearing in mind the general difficulty in securing any kind of redress for or recognition of sexual offences – to see pestering which apparently fell short of rape or attempted rape being acknowledged to be a possible ‘reasonable cause’ for a female servant to leave her position, which could absolve her from liability under the Ordinance and Statute of Labourers.  Unfortunately, there does not seem to be a Year Book report of this case, so there is no evidence of the sort of conversations which lawyers might have had about the acceptability of the plea. Nevertheless, it is another piece in the very complex puzzles of (a) the attitudes of medieval men towards medieval women and (b) the ‘position of medieval women’ (e.g. should we choose to play up Elena’s ‘agency’ or her claimed victimisation?), and I will certainly be looking out to see if I come across any other comparable cases.

Here is a free translation of the case:

William de Ramkill, chaplain, and Elena de Hustwayt, recently servant of Thomas de Queldale of York, cutler, are attached to respond both to the King and also to Thomas, in a plea of why, whereas the same King and his council, for the common utility of the King’s realm, ordained that if any servant of whatever status or condition, retained in anyone’s service, should leave the same service before the end of the contracted term, without reasonable cause, or permission, s/he should be punished with imprisonment, and that, under the same penalty, nobody should receive into their service or hire such a person, William retained Elena, who was in the service of Thomas, at York, and who had left the same service before the end of the contracted term, and without reasonable cause or permission, to go into the service of William, despite William having been asked to restore her to Thomas, in contempt of the King and to the great damage of Thomas, and contrary to the form of the Ordinance. And of a plea why Elena left the service of Thomas before the end of the term contracted between them, without reasonable cause and his licence, to the contempt of the lord King and the great damage of Thomas, and contrary to the form of the Ordinance etc. And, in connection with this, Thomas complains that whereas Elena, was retained at York on the eighth October, [1362], to serve Thomas from [11th November 1362] for the whole year following that, taking for her salary 12 shillings, and, before the end of the term, i.e. on [2nd June, 1363], without cause etc, left for the service of William, who took her on and retained her, in contempt of the lord King, and to the great damage of Thomas, and contrary to the form of the Ordinance etc.

And William and Elena come in person, and deny all force and wrong etc. And William says that he did not take in and retain Elena contrary to the form of the Ordinance etc., as is supposed above, and puts himself on the country as to this. Thomas does the same. And  Elena says that she accepts that she was retained to serve Thomas for the aforesaid term, but she says that Thomas is a married man and often tried to persuade her to let him have sex with her against her will (frequenter solicitavit ipsam ad cognoscend’ ipsam carnaliter contra voluntatem suam) so, for this [good] reason, Elena left the service of Thomas. And she asks for judgment as to whether Thomas can maintain this action against her, in this case etc. And Thomas says that Elena left his service before the end of the contracted term, going into the service of William as counted above etc., and that she did not leave his service for the reason she alleges above. And he asks that it be enquired of by the country. And Elena does the same. So the sheriff is ordered to cause 12 [men] … [On we go through the process – pledges for Wiliiam and Elena’s appearance, the case goes off to York, to be heard at Easter time,  … we get to the jury] And the jury found that William had taken in and retained Elena contrary to the form of the Ordinance, as supposed above, and that Elena left her service before the end of the contracted term, entering William’s service, without reasonable cause, and without the cause alleged by her, as Thomas complained above. And they assess Thomas’s damages caused by William’s admission and retention of Elena at 60s. Elena is amerced a mark for her [illegal] departure. Therefore it is decided that Thomas shall recover the aforesaid 60s damages against William, and 1 mark from Elena. [More process – we learn that William and Elena are to be arrested, and that William does pay Thomas the 60 s – in autumn 1369, via Thomas’s attorney, Robert de Acaster – and is acquitted. No word on Elena though.]

 

GS 27/05/2017

 

If you liked this, why not try:

B.H. Putnam, Enforcement of the Statutes of Labourers during the first decade after the Black Death, 1349-1359 (Columbia, 1908). https://archive.org/details/enforcementstat01putngoog

L.R. Poos, “The Social Context of Statute of Labourers Enforcement.” Law and History Review 1 (1983), 27-52.

R.C. Palmer, English Law in the Age of the Black Death, 1348-1381: A Transformation of Governance and Law (Chapel Hill, 1993).

G.C. Seabourne, Royal Regulation of Loans and Sales in Medieval England: Monkish Superstition and Civil Tyranny (Woodbridge, 2003).

For concern about sexual misbehaviour from the other side, i.e. attempts to ensure that young employees behaved appropriately, see Rh. Sandy, ‘The us of indentures to control apprentices’ behaviour in medieval England’, Gotffennol  5 (2017), 23-26.