Prophecy, ‘pagan’ magic and promises of wealth in medieval Devon

Here’s a colourful tale from fourteenth century Devon, showing an apparent scheme to fleece the locals using exotic claims to magic power, and playing on their greed.

The story comes out in the King’s Bench plea roll of Michaelmas term 1374,[i] though it refers to events of quite some years earlier – in 1345, and a presentment before justices in Devon in 1354. The tale was that  Gervase Worthy, Geoffrey Ipswich and William Kele had come to the home of Rouland Smallcumbe at Barnstaple, and had spun a yarn to his wife. Their patter was that they were rather more exotic than the sort of people she was likely to have met, being converted pagans (pagani – I’ll have to look into just what that word signifies at this period, but it’s clearly some sort of ‘non-Christians’). Presumably as a result of their claimed questionable past religious status, they were believed when they claimed special powers: they could tell fortunes, including how long a person would live. They also said that they had other gifts, and worked on Rouland’s wife in such a way as to get her to believe that they could make precious items reproduce themselves. They got her to give them all her gold, silver and jewels, and other valuables. When she handed them over, Gervase convinced the gullible woman that he had put these in a chest, but in fact, it would seem using some sleight of hand and misdirection,  he had made off with them. Getting her ‘invested’ in the magical process in a way modern magicians (or fraudsters) would appreciate,  Gervase locked the chest, and took away the key, instructing Rouland’s wife that every day for nine days she should go to the church for three masses, and that she should not open the chest, When he returned, as he promised to do after that, with the key, her jewels, in the box, would have doubled! The rogues did not come back though, and the desperate woman broke open the chest. Sadly, she did not find the promised increased hoard, but a piece of cloth full of lead and  (non-precious) stones. The presentment did not stop with this, however, but ascribed to the gang’s fraud another serious outcome: as a result of this deception, the woman became ill and soon died.  It was also noted that the gang had made 200 marks across Devon by similar ruses. There does not seem to have been a conviction, however, and who knows whether there was any truth in any of this, but there is always something to take away from these unusual entries.

The elaborate ruse, with the idea that people (women in particular?) might be bamboozled by tales of exotic magic,  says a lot about popular ideas of the existence of magic, but also its association with trickery. The combination of ‘pagan’ magic with Christian practices (note the masses), and the fact that the rogues claimed only to be former pagans – they were now safely Christian, so had the powers of the exotic pagan, but not the untrustworthiness – gives clues about ideas on non-Christians, and also their limitations. The idea of precious things breeding more precious things puts me in mind of usury (money breeding money – which was bad). And finally the idea that the poor woman’s death was thrown in as a bit of an afterthought – caused by the fraud in a sense, but not the main complaint – and the deceased never is named beyond the labelling as some absent man’s wife –  is something of a comment on the place of women in the medieval common law, isn’t it? If only somebody would write a book about that …

GS

4/4/2021

[i] KB 27/455 Rex m.29 (AALT IMG 340).

 

 

Photo by Roman Kraft on Unsplash

Less of a ‘honey trap’, more of a cake trap? Bakes and fakes in fourteenth century Essex

Possibly due to the presence of all sorts of lovely baked goods and confectionery in the post-term exhaustion/lead up to Easter, this intriguing little allegation jumped out at me today – from the Rex section of the King’s Bench Michaelmas 1367 Plea Roll. For once, it’s not some piece of egregious and grievous violence – violence there is, but that’s not the main thing to think about: this is one to direct the mind towards far more interesting things –  love and relationships, vocabulary …  and cake.

The allegation in question was one amongst several indictments against a certain Robert Sterlyng or Starlyng of Essex,[i] also, in this case, involving the participation of his wife, Margery.

According to the indictment, back in 1362, Robert had had his  wife secretly get Roger, rector of the church of Little Birch, to come to Robert’s house, also in Little Birch, to eat a turtellum or cake [there are different wordings in different versions of the charge] pro amore. There was not much amor for the foolish Roger, however. He came as he was bidden, and once he was in the house, in the company of Margery, Robert popped up, waving a sword, and beat Roger. He also menaced Roger into cancelling a debt which Robert owed him, and handing over to Robert and his wife the 40d which Roger had on him. It was also alleged that Margery, on Robert’s order, asked Roger to come to a secret place called ‘Everardesdossous’ [one to think about – tempting to think ‘doss house’, but surely that’s far too late]  in the vill of Copford, that Roger came along and surprise, there was Robert! The latter drew his sword and attacked Roger. Roger, fearful of death, agreed to pay Robert 40s. [There were also other, unconnected allegations against Roger, of a more normal beating and robbing type.]

It is all fairly low-level, small town bullying by the sound of it, but there are a couple of interesting points. First, there is this business with cake, tarts and love. Was it just an offer of free cake (tempting enough, obviously)? Was the suggestion that Roger was being invited for some sort of sealing or mending of friendship ceremony, with Robert (in the manner of a ‘love-day’ – but with cake)? Was there a particular tradition of cake-sharing at the Feast of the Invention of the Holy Cross, which was the nearest big holiday to the first alleged incident, or is the ‘pro amore’ thing about something a bit steamier (yes my mind did just go to steamed puddings) between Margery and Roger? Obviously, it would also be good to know what sort of baked item it was supposed to be, and what difference there might be between a ‘cake’ and a ‘turtellum’ (tart? tartlet?). The other thing which interests me is the role of Margery. We may note that the indictment is brought against Robert alone, despite the fact that Margery seems to have taken a quite active role, at times including taking action when Robert was not present. This choice, bringing the indictment against Robert alone, is a tiny piece in the puzzle of the development of the ‘doctrine of marital coercion’, something I dealt with to some extent in Women in the Medieval Common Law, and which was still very much under construction (or being baked?) in the fourteenth century. On that front, this is a good example of the husband’s orders (as opposed to his immediate presence and active pressure) apparently sufficing to shield the wife from joint responsibility, as far as those drawing up indictments were concerned. There is definitely room for further work on this issue. (My working theory is that there were rather different ideas in different sorts of offence, rather than one general doctrine, at this point in time).

We should return to the adventures of Robert Starlyng. Eventually, the Plea Roll entry tells us, Robert was acquitted on all charges, via a combination of jury verdicts and technical failings in the indictments. So, I can’t help but wonder, did Robert and Margery get away with extortion (have their cake and eat it?) or were the accusations a lot of ‘half-baked’ nonsense?

GS

27/3/2021

[i] KB 27/428 m17, AALT image 249.

Image: Reconstruction – a cakey/tartletty thing with raspberries. No idea what sort of tempting foodstuff I should have in my mental picture of this case, but this one looked rather desirable. Photo by Alexandra Kusper on Unsplash

A Bad Man called Bonehomme? Crime and non-punishment (?) in medieval Yorkshire

This snippet from the 1360s has some interesting sub-snippets relating to crime, (non-) punishment, marriage, women and pardons. (Great build-up, I know, but stick with it…)

The patent rolls for May 1364 contain a pardon for one Master Hugh Bonehomme of Bugthorpe (Yorks). The Rex roll of the King’s Bench for Trinity term 1364 shows that Hugh had been indicted (under slightly different versions of his name) on some serious charges – the homicide of Gilbert son of John Grayve of Bugthorpe, and the ravishment/abduction (raptus) of Agnes, daughter of John Gyles of York, as well as allegedly having committed a currency export offence, and having challenged another man to a duel, or perhaps attacked him (there is mention of a shield and lance).[i]

The homicide is interesting in that the KB entry has a variety of different charges, with different variations of the alleged victim’s name – at first sight, it seemed to be suggesting that Hugh was something of a serial killer, but there seems to be some repetition. Otherwise there is nothing noteworthy in it. It is the abduction of Agnes which is my focus It was alleged that Hugh had acted with others in this, that it had happened in Lent 1362, at York, and that the abduction had been part of a dastardly plan. The offenders had used coercion and threats to make Agnes consent to marry a man called Simon Porter. Forced marriage is not unknown in this period (I have at least one example in Women in the Medieval Common Law (c.6), and it was enough of a perceived problem, at least in so far as it concerned well-off women, that there was specific legislation on the matter in the fifteenth century (which I considered somewhat in Imprisoning Medieval Women). This was not just any forced marriage, however, it was, allegedly, a forced invalid marriage – since Agnes already had a husband: Thomas Gillyng. Thomas was allegedly down some goods as well as a wife, because the entry and the pardon on the patent roll both note that Hugh and his associates removed some of Thomas’s chattels.[ii]

In the case of Agnes, there is, for once, no suggestion of ‘not unwillingness’ or complicity with regard to the leaving of her husband. In the plea roll, we have the allegation that the offenders took, ravished and abducted her with force and arms, and then used compulsion and threats: per cohercionem et minas, they made her consent (consentire) to contract an unjust marriage (matrimonium iniustuminiustum because of ‘the other husband’, presumably).[iii] I think it is very much worth noting that ‘consent’ here is used to mean something far from free, far from voluntary. It should be a further warning against assuming we know what these words apparently denoting an exercise of free will mean, when we see them used in shorter, less contextualised, entries.

I have not come across quite such an outrageous forced ‘marriage’ before – and it will be interesting to see whether there is any further information to be had from the perspective of the Church – did any sort of matrimonial proceedings follow, to ensure that the position was clear? Did she get back to her real husband, or did he die too soon? Did she actually end up with (apparently) dodgy Simon?

Following the case through to its bitter end at common law, though, surprise, surprise, there are no serious consequences for Hugh. Clearly a man with influential friends, his pardon is said to have been granted after requests by  John II of France (d. April 1364) and by certain cardinals. He was a man of some learning – called ‘Master’ (sometimes), and the Plea Roll describes him as a proctor/procurator. He had, perhaps, endeared himself to the hostage king in this capacity. The pardon – again, surprise, surprise – has absolutely nothing to say about Agnes. Jurisdictional responsibilities would, of course, dictate that the (in)validity of her marriage to Simon was something for the Church to sort out, if there was a dispute about it. Nevertheless, the entries on the patent roll and plea roll relating to Hugh and Agnes do underline the gendered nature of the concerns of common law, and its exercise.

GS 18/3/2021

[i] CPR Edw III 1361-4, 515; KB 27/415 m. 35d (IMG 455)

[ii] He is described as having been her husband ‘then’ – so possibly he also lost his life after these events.

[iii] Roman law has much to say about matrimonium iniustum, but I think the intention here is simply to call it against the rules, because of the existence of a husband.

Discourtesy about curtesy: land squabbles in Victorian ‘Brecknockshire’

Another set of documents on the list for the next National Archives trip involves a raid into the nineteenth century, to tie up some loose ends relating to tenancy by the curtesy (widower’s right to hold land after wife’s death, which, at common law, depended on the birth of a living child to the parents). (It may also involve a pleasant field-trip to Powys). I need to know more about the case of Jones v Ricketts (judgment: 5th May, 1862).[i]

This was a case with two main points, and seems to have drawn contemporary attention principally for the ‘other point’, i.e. the one not relating to curtesy. This concerned sale at an undervalue of an interest in land. It seems to me, though, that there are probably some interesting gleanings to be had, on attitudes to curtesy, and the big question of life, and how to prove it, in the case, and the papers relating to it, which seem to be available in the National Archives.[ii]

The case involved a farm. Its recent history was that, in 1850, one Catherine Jones had been the freeholder. She had then married Ricketts (the defendant in this case).  In August 1852, it was said that they had a child. (The report, in slightly judgey fashion, sniffs that ‘one child only’ was ‘born of the marriage’). This alleged live birth was disputed by the plaintiff, Jones. The plaintiff, according to the report ‘insisted [that the child] was not born alive’. The defendant, on the other hand, claimed to be tenant by curtesy by virtue of this birth, and said that the child was ‘born alive but died shortly after its birth’. It was not disputed that Catherine had not lived very much longer – dying in April 1853, nor that, at that time, the right to the remainder was with Thomas Jones, Catherine’s father.

Not long after his wife’s death, Ricketts bought Thomas Jones’s interest for £ 200, and it was conveyed to him (using the correct formalities: by deed, on 11th June, 1853. Clearly not too deep in grief to be unable sort out his property rights … I am rather taking against Mr Ricketts …)

The next relevant point with regard to the interests was in December 1859, when Thomas Jones died. He died intestate, and the plaintiff, Jones (a Jones in Wales – that’s going to be a fun search …) was his heir under the intestacy. Jones the Plaintiff then sued Ricketts, challenging his right as tenant by the curtesy (on the basis that there was never any live issue of the marriage), and alleging that the sale had been at a serious undervalue, so should be set aside.

On the undervalue point, the plaintiff stressed that, in 1853, Thomas Jones was ‘in reduced circumstances’ and was ‘living with the defendant in a dependent position’, and, furthermore had had no independent professional advice (all sounds a bit Barclays Bank v. O’Brien/undue influence, doesn’t it, Land Law fans?). He claimed that the freehold of the property, Brechfa-Isha, was worth at least £1000, and the reversion much more than £200. He also suggested that the £200 had not actually been paid. He asked that the deed conveying Brechfa-Isha to Ricketts ‘might be declared fraudulent and void, that the Plaintiff might be let into possession, and that the Defendant might account for the rents’.

There was, apparently, evidence for and against the live birth, though the court came down in favour of it. (This is where I am hoping the papers will give some more information as to just how the argument went, and what sort of proof was regarded as sufficient). Ricketts was tenant by the curtesy.

On the undervalue point, the court agreed with Jones the Plaintiff that the reversion had been undervalued – it was worth £238. There may be something of interest in the method of valuation of the land, and on the costs points, for those who like that sort of thing, but I am not sufficiently ‘up’ on either aspect to make any informed comment.  It does seem to have been the ‘sale at an undervalue’ aspect which got the attention of the press in Wales (including one of my favourite publications, The Merthyr Telegraph and General Advertiser for the Iron Districts of South Wales – sounds a jolly paper, doesn’t it?).[iii] The curtesy point seems to have been uncontroversial, which is interesting for the common narrative of dower and curtesy being rather irrelevant, and perceived as a silly hang-over from the past, at this point. The question of ascertaining whether there had been life, or not, in the unfortunate child of Catherine and her husband really does not seem to have grabbed people’s attention. It is a lesson, I suppose, in the distance there may be between the questions we find important, and those which engaged the interest and critical faculties of lawyers, and journalists, of the past.

There is some accessible evidence about the characters involved. The Welsh census of 1851, shows an entry for ‘Llandefalley, Breconshire’, (now Llandefalle) with a household including John Ricketts, aged 45, a farmer, Catherine Ricketts, 27, his wife, her father, Thomas Jones, widower, 62, labourer, plus four Ricketts sons and several servants, and a visiting elderly stocking-knitter.[iv] The name of the house is Trebarried, and it looks to have been a very substantial place.[v] There is also a record of Catherine’s burial, in April 1853, at the church in Llandefalle, in ‘Brecknockshire, Wales, Anglican Baptisms, Marriages and Burials, 1538-1994 (p. 39).  I am yet to find a record of the child’s birth or burial – which is not to say it does not exist (just – lockdown). And there may be a cemetery tourism trip on the cards, to see if I can track down any of the adults involved (would the birth be mentioned on Catherine’s gravestone, if it exists, I wonder). Also not irrelevant to this plan is the fact that the relevant church in Llandefalle (St Matthew’s or St Maelog’s according to allegiance) has medieval paintings![vi] Now I’m definitely going to have to persuade somebody who can drive to take me there, when all this is over.

GS

13/3/2021

[i] Jones v Ricketts (1862) 31 Beavan 130; 54 E.R. 1087  Curtesy case, Brecon. investigate. S. C. 31 L. J. Ch. 753; 8 Jur. (N. S.) 1198 ; 10 W. E. 576.

[ii] Cause number: 1860 I/J96. Short title: Jones v Ricketts. Documents: Bill,… | The National Archives

[iii] ABERDARE.|1863-03-20|The Cardiff Times – Welsh Newspapers (library.wales)

OUTLINES OF THE HISTORY OF POLAND.|1863-03-21|The Merthyr Telegraph and General Advertiser for the Iron Districts of South Wales – Welsh Newspapers (library.wales)

[iv] subdistrict of Merthyr Cynog, 6b piece 2489, folio 669, p.1, household 1,

[v] Trebarried, Llandefalle | Coflein I have not managed to turn up ‘Brechfa Isha’ as a place name in the area – though we do see upper and lower Brechfa (Uchaf and Isaf – lit. superlatives, but would translate as comparatives) on this map: Brechfa-isaf – Recorded name – Historic Place Names (rcahmw.gov.uk) ‘Isha’ is, presumably a corruption of the latter.

[vi] Llandefalle | Felinfach Community Council St Maelog, Llandefalle © Philip Pankhurst :: Geograph Britain and Ireland

The Barmaid’s Belly: a late case of de ventre inspiciendo

Today, I am researching (in so far as it is possible, without usual access to libraries, archives etc.) a late instance of the writ de ventre inspiciendo – ordering the inspection of a woman claiming pregnancy, by women, in civil proceedings. It has come up in my research on ‘Unknowns at the Start of Life’ for a swiftly approaching paper (April), and needs a bit of thought.  The case was heard in Knight Bruce VC’s court, on 8th May, 1845.[i]

It involved a dispute about a trust. A ‘gentleman of the name of Blakemore’ had some property – he held it as tenant for life, and the remainder was held by trustees on a thousand year term, on trust to provide money for Blakemore’s issue, and the remainder was for the people bringing the action here.

The petitioners were not able simply to have the property, however, because there was a competing claim, from the ‘gentleman of the name of Blakemore’s wife: this woman claimed to be pregnant with Blakemore’s child, and, if that was so, then the child would be entitled to money from the trust. It was therefore in the interest of the petitioners to cast doubt on this claim to be pregnant with Blakemore’s child.

The petitioners proceeded with the doubt-casting by portraying both Blakemore and his widow as dubious characters. It is not altogether clear why they needed to have a go at Blakemore himself, but apparently there were affidavits which ‘represented [him] to have been a man of dissolute and intemperate habits’. It was probably with a view to having a go at both of the spouses that they stressed that he had ‘married the barmaid of an inn in Wales’ (not just some barmaid, but a Welsh barmaid – just at the time that Welsh women were about to be insulted quite horrendously in the treacherous Blue Books, as being of extremely easy virtue). Blakemore had, so they said, come to London, leaving his Welsh barmaid wife behind, and died in January 1845. He was dead then, so the petitioners couldn’t have a go at him any further, but they had not finished with the widow Blakemore. They said that she had ‘carried on adulterous intercourse’ with the groom of her husband, during the latter’s absence before his death, and after she was widowed, had started to live with the groom ‘as man and wife’ (and as if that was not bad enough ‘at a certain public-house in Wales’, and the ‘subsisting connection’ was ‘one of sin’ (rather than there having been a second marriage).

The report is a little telegraphic (v. much the latest thing – see how on point my tech reference is?) but it is clear that an order was made for an inspection of the widow, by a ‘jury of women’. Although some of the evidence on behalf of the petitioners seems to have been not that the widow was not pregnant, but that she was not pregnant with her dead husband’s child, the inspection would not have been of any value in relation to that issue. Perhaps the point is that they were trying to discredit both the existence of a pregnancy which had begun during the marriage, and also, if that failed, to do the more difficult job of rebutting the presumption that the child of a married woman was her husband’s issue. This had become a little less difficult in the first part of the 19th C, but very strong evidence was still required.

So, the petitioners’ case can, perhaps be understood. The puzzle, from my point of view, is that there does not seem to have been much interest in the press. Why did I expect that there would be? Well, sex, adultery, class, bashing the Welsh – good ways of getting people to read your paper, I would have thought. Then there is also the de ventre inspiciendo process itself – now something of a rarity in civil cases, and, when it was proposed in a case in 1835 (of which more in a later post) it was considered quite, quite scandalous, and cruel. Could the difference possibly have been that between a respectable English tradesman’s wife – easily believed to be too delicate to be poked and prodded (the situation in the Fox case of 1835)– and a Welsh barmaid, who could not be imagined to have any finer feelings? Surely not.

Further details on the parties, the story, and whether there ever was an inspection of the body of the much-maligned Welshwoman will have to await the great re-opening of the archives. Another one for the pile!

GS

12/3/2021

(Photo by Blake Cheek on Unsplash)

[i] Blakemore v Blakemore 1 Holt Eq. 328; 71 ER 769; In re Blakemore, 14 L.J. (NS) Ch. 336 (1845).

Towards a Theory of Vampire Property Law

I can’t believe that it has taken me until now to bring together two important themes in my life: Land Law (taught it almost my whole academic career) and vampire stories (Dracula, Buffy, more versions of Dracula, the Vampyre, Carmilla, even Twilight – despite Bella Swan). What is there to say about Land Law and Vampires? Well, it dawned (!) on me as I watched an episode of latest fun trashy binge-watch The Vampire Diaries, (no, not even mildly embarrassed … vampires are cool and sexy and fascinating, especially when not the tortured goody-goody type, and obviously beat werewolves any day) that there are lots of unanswered points in relation to the Undead and their interactions with systems of property.

 

Can I come in? Yes, that one. It’s a common ‘rule of the game’ that a vampire cannot come into a home unless invited. From the point of view of suspense and narrative, it’s great – because often the person in the house doesn’t know the stranger on the doorstep is a vampire, and we groan at the uninformed acquiescence (because there’s no idea of informed consent here, is there?) as the vampire gains freedom to enter at will. Also, there is the comedy potential of a vampire denied entry walking into an invisible barrier.

The Vampire Diaries, however, has had a couple of scenes playing with this whole idea, with resonances for those of us involved in another area regarded as a little … undead … – Land Law. In series one, Damon (everyone’s favourite evil-but-good-but-evil vampire) and Alaric (slightly Harrison Ford-ish human with a magic ring) banter about the rule, revealing that there are some doubts as to exactly who has the right to invite somebody in, in particular with regard to short term lets, motels etc. It’s not fully fleshed out, but it hints at one of the issues. There is much that we need to know:

To which buildings does the rule apply?

  • The stories are mostly, if not all, about homes. So are commercial premises ruled out (along the lines of rules restraining mortgage repossessions etc.? And what of a ‘mixed use’ property? Vampire story writers, I encourage you to look up the case law on ‘dwelling house’ under the Administration of Justice Act 1973 s.8.
  • And what of static caravans? These might be regarded as chattels rather than fixtures. Does the rule apply?

Who has the right to invite?

  • Is legal title required before a person has the right to invite?
  • Can one of two co-owners invite a vampire in? (This, shockingly, is not mentioned in the Trusts of Land and Appointment of Trustees Act 1996 – unless we consider it to come under ‘powers of an owner’. Surely it would be a breach of trust, though.
  • Given Manchester Airport v. Dutton [1999] EWCA 844, can a mere licensee invite a vampire in?
  • What happens when the house is sold, or if the ‘inviter’ dies and the property passes to a donee? Is a new invitation required?
  • Can conditions be placed upon an invitation?

 

Miscellaneous

  • Does an invitation to a vampire to enter amount to severance of an equitable joint tenancy (as well as likely severance of a carotid artery)?
  • Can vampires keep their own homes, i.e. the ones they had prior to being ‘turned’? This seems to be assumed, but why is it that they do not lose their rights on becoming technically dead, the right passing to the (living) person entitled under a will or intestacy, enabling that person to shut them out?
  • Could a vampire ever be ‘in actual occupation’ for the purposes of Sch. 3 para. 3 of the Land Registration Act? It doesn’t specifically say that life is required …
  • What happens if a vampire is granted a life interest in land?
  • Could a vampire ever acquire an easement by prescription, or would it always fall down on the nec vi, nec clam, nec precario thing (since any prescribing would be done at night, with force, and possibly with (compelled/sneakily acquired) permission?
  • Finally, bringing in Legal History as well … Given that the undead ‘live’ (exist? un-die?) rather a long time (as long as they avoid staking etc.), and that regimes of property law can change, how do we decide what is the correct set of Land Law rules to apply to all of this. Is the critical date that of the vampire’s turning, of the building of the house, or the current date?
  • And where would any disputes be taken? I am sure there is a whole issue about standing of and jurisdiction over the undead which needs to be sorted out.

There’s just so much, isn’t there? And oddly, not much in the way of existing scholarship (honourable exceptions in terms of general law/vampire study: Anne McGillivray’s ‘”He would have made a wonderful solicitor”: law, modernity and professionalism in Bram Stoker’s Dracula‘, in Lawyers and Vampires : Cultural Histories of Legal Professions, edited by David Sugarman, and W. W. Pue, (2004), c. 9; Anthony Bradney . ‘Choosing laws, choosing families: images of law, love and authority in “Buffy the Vampire Slayer” Web J.C.L.I. 2003, 2 – the abstract of which looks promising, and which I’m trying to find). It’s a shame I am on study leave next year, or I would definitely be suggesting this for a Final Year Research Project. Ah well, like the undead, it will keep (as long as it avoids direct sunlight, decapitation, or a stake through the heart …)

GS

11/3/2021

And an update, 15/3 – the latest episode of VD (yes, we are using that) which I saw (s.2 ep. 18) went totally for the Venn diagram overlap between Vampires and Land Law, by having a conveyance of a house to (slightly drippy but alive and human) Elena, so that she could use her right to invite/refuse to keep out undesirable vampires, but let in her paramour, Stefan (he of the tortured soul, frequently demonstrated by moping in a tight vest) and other vampire allies.

(Image – what is very obviously a vampire, from an AALT scan of a Common Pleas roll of 1489: ‘vampires and legal history’ is a thing.)

Emasculating emasculation

For a long time, I have been conscious of an odd habit amongst many of those writing about law: referring to the weakening, diminution or nullification of laws and institutions as ’emasculation’. After doing some pre-tutorial reading for a cycle of Land Law tutorials on proprietary estoppel some time ago, I could contain my annoyance no longer: why are academics and lawyers so keen on this imagery of emasculation, and why they are not more frequently ‘called out’ on the implications of using a word which assumes that that which is good and useful has male genitalia, and that its goodness and usefulness are located in the aforesaid genitalia? I started collecting examples, and have updated this a number of times. It came up once again in my Land Law preparation this week (Human Rights & Land Law, What is Property?) so it felt like time to revamp and re-post.

The one which started me off was a well-known case comment entitled ‘Emasculating Estoppel’ ([1998] Conv 210), but I soon saw that it really is pretty common, and is often used in rather odd ways. A quick database search threw up examples relating to the emasculation of:

  • Fundamental human rights. These are ‘at risk of emasculation’ in Lord Neuberger’s judgment in Mayor of London (on behalf of the Greater London Authority) v Hall and others [2010] EWCA Civ 817 at [37]. This is the one that got to me today: something which is explicitly non-gendered being considered as a default-male body, at risk of having reproductive bits chopped off. Grim.
  • various statutes and statutory sections (including a section of the Equality Act – particularly inappropriate?:  The Queen on the Application of Mrs JH, Mr JH v Secretary of State for Justice [2015] EWHC 4093 (Admin) at [22]; See also, e.g. Gold Nuts Limited and others v. Commissioners for Her Majesty’s Revenue & Customs [2016] UKFTT 0082 (TC) at [218])
  • ‘all the provisions of the statute’: Hudson v Parker (1844) 1 Robertson Ecclesiastical 14; 163 E.R. 948 at 40.
  • Possibly the most incongruous use of the language of emasculation in the context of legislation relates to the eventual Sex Disqualification (Removal) Act 1919– an important Act which, however, did not go as far as an earlier version, the Women’s Emancipation Bill. As was pointed out in A. Logan, ‘Building a New and Better Order’? Women and Jury Service in England and Wales, c.1920–70’, Women’s History Review, 22 (2013), 701-16, at 702, ‘Cheryl Law claims the Act [Sex Disqualification (Removal) Act 1919] was an ‘emasculated’ version of the Labour-sponsored Women’s Emancipation Bill’. [C. Law,  Suffrage and Power: the women’s movement 1918–28 (London, 1997), 97.] Another author preferred the ‘broken reed’ metaphor for the Act’s subsequent effectiveness [M. Pugh, Women and the Women’s Movement in Britain, 2nd ed. (Basingstoke, 2000), 90.], which might just about be construed as a touch phallic, but is certainly an improvement.
  • other regulations (‘Emasculating TUPE: transfers of undertakings and the concept of the “economic entity” L.T. 2002, 3, 23-28
  • a tax (The Queen on the application of: Veolia ES Landfill Limited et al.[2016] EWHC 1880 (Admin) [182]
  • the beneficial principle of proprietary estoppel: Thompson’s article, and also Thorner v Major [2009] UKHL 18 at [98](Lord Neuberger combines an emasculation image with ‘fettering’ here – all a bit S & M sounding).
  • the doctrine of restraint of trade (‘EC competition policy: emasculating the common law doctrine of the restraint of trade?’R.P.L. 2007, 15(3), 419-431
  • the doctrine of legitimate expectation (R v IRC ex p MFK [1990] 1 WLR 1545 at 1569–70
  • the option (‘Emasculating the option VAT Int. 1997, 15(1), 1380-1383).
  • a regulation’s purpose (M v W [2014] EWHC 925 (Fam): [34]
  • a sanction (JKX Oil & Gas Plc v Eclairs Group Ltd [2014] EWCA Civ 640 [124] and [126]
  • a right (Neil Pattullo v The Commissioners for Her Majesty’s Revenue & Customs [2014] UKFTT 841 (TC) [85].
  • ‘the meaning of the deed’ (meaning to distort? Westlaw Case Analysis, Adedeji v Pathania, Chancery Division 22 April 2015).
  • the concept of ordinary residence (Regina (Cornwall Council) v Secretary of State for Health and another [2015] UKSC 46 at [145]
  • incentives (Lloyds Bank Leasing (No 1) Limited v The Commissioners for Her Majesty’s Revenue and Customs [2015] UKFTT 0401 (TC) at [14])
  • the High Court’s role: Ghosh v GMC [2001] 1 WLR 1915 at [34]
  • obligations in a mortgage deal (Mark Robert Alexander (as representative of the “Property118 Action Group”) v West Bromwich Mortgage Company Ltd  [2016] EWCA Civ 496 at 81).
  • warranties (P &P Property Limited v Owen White & Catlin LLP, Crownvent Limited t/a Winkworth [2016] EWHC 2276 (Ch) at [101])
  •  An act ‘emasculating’ a doctrine (the Land Registration Act 2002 and adverse possession, respectively) in: M Dixon, ‘The reform of property law and the LRA 2002: a risk assessment’ (2003) Conv. 136, at 150 and again at 151, See also Conv. 2005, Jul/Aug, 345-351; Conv. 2011 335  at 338 and (on prescription this time) Conv. 2011, 167 at 170. The use of ‘emasculation’ in relation to adverse possession has a slightly different character to many of the uses noted above, at least 2003 Conv 136, 151, the emasculation of the doctrine by the LRA scheme ‘does of course, mean the end of adverse possession as a threat to the security of registered title.’ So removal of the doctrine’s metaphorical male genitalia = removal of a threat/danger. Intriguing.
  •  An ‘emasculation’ in an account of alterations in the role/power of juries: J. Getzler, ‘The Fate of the Civil Jury in Late Victorian England: Malicious Prosecution as a Test Case’, in J.W. Cairns and G. McLeod, The Dearest Birth Right of the People of England : The Jury in the History of the Common Law (Hart: Oxford and Portland Oregon, 2002), c.11, p. 218: ‘The emasculation or diminution of the civil jury was then followed in the second stage by its elimination.’ So – emasculation is more or less synonymous with diminution (and a preliminary to elimination. Nice imagery. What are the implications for the study of early women jurors, I wonder: was their inclusion actually all about some long-drawn- out phobia of jury male genitalia?
  • The risk of ‘the emasculation of fiduciary duties’ (Mrs Justice Cockerill, para. 72 of Recovery Partners v Rukhadze [2018] EWHC 2918 (Comm) [because trust and trustworthiness are male-genital related, and there’s no particular reason that women should know better …]
  • The danger of ‘the total emasculation of the civil law’ (HHJ Saffman, para. 9 of Durham County Council v James Bradwell 2018 WL 05823332 [because private law is characterised by its possession of male privates …]
  • The worry that a previous case will be ‘emasculated’ (with diminution of particular rights) if this case goes a certain way (counsel in Goddard-Watts v Goddard-Watts [2016] EWHC 3000 (Fam), mentioned at para 73 [because more male = more expansive, better etc …]And one which jumped out in my sifting of articles for ‘Blended Learning’ preparation for undergraduate Legal History … W. Swain, ‘The classical model of contract’ Legal Studies 30  (2010) 513-32, 532  the emasculated law of restitution.’ Always did find restitution a bit of a macho thing …A competition lawyer talks about a conclusion being ‘emasculated’, and couples it with an image of a snake eating its own tail – The Competition and Markets Authority, Flynn Pharma Limited, Flynn Pharma (Holdings) Limited (“Flynn”) v Pfizer Inc., Pfizer Limited (“Pfizer”) v The Commission of the European Union [2020] EWCA Civ 339, 2017 WL 11508568, at 232. One for the Freudians, I think. The protective nature of male genitalia: men’s bits must be understood as somehow protective, since we have a nice reference to ‘emasculating’ protection in Mr Lee Walsh v CP Hart & Sons Ltd [2020] EWHC 37 (QB), 2020 WL 00137207, at 53.The concern that a proposed solution is based on the ‘emasculation’ of a statute section (Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust  [2016] EWCA Civ 607, para. 56) [because there is no special inappropriateness in using male-genitalia based imagery in a SEX DISCRIMINATION CASE …]
  • Regina v “RL” [2015] EWCA Crim 1215 in which a barrister is said to have indicated (at [12]) that ‘the combined effect of the judge’s rulings was so to emasculate his cross-examination of boys A and B that he was in effect reduced to putting a bald proposition and having to accept the answer given by the boy concerned without further elaboration.’ Hard to know what to say to that – just – really? Best choice of words?
  • Counsel general of Wales, Jeremy Miles on Tory plans to ‘emasculate’ the devolution settlement.https://www.theguardian.com/politics/2020/jul/12/boris-johnson-accused-of-plan-emasculate-uk-devolutionMust we? Must we read about weird metaphorical portrayals of good legislation as having male genitalia, weakened legislation as lacking them? Grim. Sexist. Nonsense. Also in the context of ‘union’, (and indeed Boris Johnson) getting into genital metaphor mode brings up all sorts of unpleasant images and consequences. Best not. The level of distraction (from an entirely plausible and righteous objection) is not helped by the additional corporeal metaphor of Brexit, or the UK government, bringing a big fist down on devolution – fist or men’s bits, make your mind up. Or is the ‘emasculation’ being done (somehow) with a ‘big fist’?
  • Those academics, lawyers and judges who care about such things might consider the many alternatives to ‘emasculating’ language – why not try ‘evisceration’ (we all have, and need, viscera) or nullification (because – big news – it isn’t actually necessary to use a violent physical metaphor at all!). For a more traditional and picturesque feel, at least in relation to legislation, why not go back to the old favourite ‘driving a coach and horses through [insert name of Act]’? Daft but at least not sexist-daft. And you may be able to style it out as knowing and retro.

In a previous iteration, I had noted the odd rays of hope suggesting that people are beginning to see that this language might be best avoided, and tipped my hat to the appearance of a set of scare quotes around the word in  Miss S C Hall v Chief Constable of West Yorkshire Police 2015 WL 5202319, before Mrs Justice Elisabeth Laing DBE, at [32] in her judgment. Perhaps other judges, academic commentators, barristers, might try out ‘undermine’, ‘weaken’, ‘render useless’ or some such non-violent and not unnecessarily gendered phrase? Surely it wouldn’t ’emasculate’ their arguments? But no, ’emasculation’ remains a metaphor of first resort for many people. A cursory look suggests that there’s most waving of ‘emasculation’ in commercial cases these days, but it’s not only the more traditional, hide-bound areas in which it crops up – e.g. we see a sneaky ‘emasculation of the State’s health and safety enforcement agency’ in K.D. Ewing and John Hendy, ‘Covid 19 and the failure of labour law Part I’, Industrial Law Journal 2020, 49(4), 497-538, note 105. Depressing.

Until ‘the penny drops’, I will be watching out for more, and would specially like to find the casual sexism bingo row of ‘emasculation’ plus a ‘mistress’, plus a cricketing metaphor in the same case or article.

GS

(various times, updated 11/3/2021)

(Image- a tasteful picture of medieval underwear: File:Braies 14th century.jpg – Wikimedia Commons It was difficult to find an appropriate, but not too rude, picture for this. I have gone with ‘pants’, which has a certain connection with the subject at hand, and also has the benefit of bringing to mind a slangy metaphorical usage of its own, used as it is – in the UK at least – to denote something which is not very good at all … Take that as you will.)

 

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

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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.