Legal historians and the Chaucer-Cecily Chaumpaigne Case

CW: rape

(A few short points arising from the recent developments in Chaucer studies: see the special edition of The Chaucer Review.)

It is striking that by far the greatest contribution – for good or ill – to scholarship and comment on the very legal matter of the Chaucer-Chaumpaigne case has been by those from outside the field of legal history, and particularly legal history of the ‘classical legal history’ tradition of Maitland-Milsom-Baker and the Selden Society. In general, the luminaries of this school have not considered women, and raptus, central to their mission, to their subject. To regret that lack of interest in this specific case is not, however, to assume that legal historians would have been likely to be any less influenced by the prejudices of the men of their age with regard to women and rape than were those working in literary studies. Those who did venture into this territory did not necessarily cover themselves with glory.

One of the quotations which is used in descriptions of the unedifying rape-apologism of many past Chaucer scholars is from a legal historical luminary, and Selden Society man, Theodore Plucknett.[i] Plucknett’s short article, in the 1948 volume of the Law Quarterly Review, starts off jarringly, with its title: ‘Chaucer’s Escapade’.  The overtones of ‘escapade’ surely do not need to be spelled out, and a general air of not taking the whole thing terribly seriously is reinforced by his explanation of why he is tackling the topic – it was prompted by an ‘entertaining article’ in the previous year’s LQR, by one P. R. Watts.

Plucknett reconstructs legal events in what was, overall, a not unreasonable way, given the evidence then available, but there is some falling into patterns and tropes which many of us will recognise, e,g, suggesting that Cecily ‘wanted money’ (34), and that she was ‘indignant (or repentant, or just hard-headed)’ and so refused to have dealings with Chaucer himself over the compensation. There is a bit of reconstruction from what he presumably considered common sense: ‘That he seduced Cecilia we may well believe; that she was angry with him, and still more with herself, is extremely probable. She may have honestly thought that because it all happened against her better judgment, that therefore it was without her consent.’ (35-6). Hmm. Women not able to tell their feelings from the truth? Then there is ‘Her scandalised family would naturally treat that as an irrebuttable presumption.’ Would they really? And what would modern criminal law scholars make of this: ‘Rape is a brutal crime and implies a degree of depravity which should make us cautious in fixing such a charge.’ (35-6).

I also had a look at the article which Plucknett found so ‘entertaining’ and stimulating, P.R. Watts, “The Strange Case of Geoffrey Chaucer and Cecilia Chaumpaigne,” Law Quarterly Review 63, no. 4 (October 1947): 491-515. This, too, has some lines which do not bear scrutiny, e.g. calling rape a ‘crime of passion’ (496). And Hale’s old fear about false accusations of rape lying too heavily on the innocent defendant is trotted out (496, citing 1. Hale P.C. 685, as is the very nasty passage from Don Quixote in which a woman is criticised for failing to defend her body sufficiently vigorously, when, on another occasion, she was vigorous in pursuing her financial interests (504, Don Quixote c. 45). Perhaps the part which would have seemed ‘entertaining’ was Watts’s speculative reconstruction of events which might have given Chaucer a defence to a felony prosecution. This involved a story that Cecily might have become pregnant following the rape, which would have been a defence (probably true that it would have been a defence, had it happened, but this really does get speculative. A flavour from p. 509: ‘So far as Cecilia Chaumpaigne is concerned, we have no evidence of pregnancy, and in the absence of evidence we are not justified in assuming it. Nevertheless … [yes we are going there]. And even more … ‘[If it becomes clear that Chaucer did impregnate Cecily through rape, and she had the child, and it was the Lewis to whom he dedicated a book on astrolabes – what every child wants – …] ‘we may be able to close our record of an unedifying chapter in Chaucer’s life with a scene not without some redeeming aspects of tenderness and grace-the poet devoting himself, in the full maturity of his powers, to the inditing of a scientific treatise for the instruction of Cecilia’s son’. [So, right, yeah, I raped your mother, but here – book about astrolabes – OK, bye!].

And now?

The world of legal history has, of course, moved on. Maybe not as quickly as other areas of scholarship, but there are glacial signs of change, of interest in perspectives other than that of the socially and economically fortunate white male, of openness to the insights of feminism and other critical fields. We should certainly note the questionable content in the past of our own discipline, but then we need to pick up the pace, and engage with other scholars, as we can see different groups coming together in this recent Chaucer project. There really is plenty which could be contributed to wider fields of study by legal historians.

GS

16/10/2022

 

 

[i] Samantha Katz Seal; Whose Chaucer? On Cecily Chaumpaigne, Cancellation, and the English Literary Canon. The Chaucer Review 1 October 2022; 57 (4): 484–497, at 493-4, noted as ‘One of the most frequently quoted statements on the matter’; Theodore F. T. Plucknett, “Chaucer’s Escapade,” Law Quarterly Review 64 (1948): 33–36

Swords, shields and female servants

I note from the statistics update from this blog that there have been a fair few consultations of my old post on a 14th C employment/harassment case (this one). I presume that this is a result of the recent publicity around new discoveries relating to the Chaucer-Cecily Chaumpaigne case, and the new spin on the case which brings to the fore its labour law context. I thought I would just repeat the key points on ‘my’ case, and make a few additional comments on the whole area of law, labour and sexual misconduct in the medieval period, for anyone who is interested in this area, as a result of the general excitement over the new evidence, set out in the special edition of The Chaucer Review.

So, here is the relevant text from that old post:

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 if he was more concerned to question causation of her departure, rather than with 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?).

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.]

 

How does it relate to the new work on Chaucer and Chaumpaigne?

Only in rather general terms. It is evidence that:

  1. It was plausible that an medieval male employer might pester a woman for sex (not exactly a massive revelation …)
  2. Such pestering would not be seen as entirely acceptable, and might be raised at law.

It highlights the range of potential routes to bringing up sexual misconduct in common law. The literature surrounding Chaucer-Chaumpaigne does, of course, have to engage with the vexed issue of what raptus means, and generally it is grasped that this is a broad concept, with meanings which can be tilted towards rape (modern sense) or abduction, towards an idea of harm/offence to the person said to have sustained the raptus or towards a focus on the damage/offence perceived to have been done to others (husband, wider family, guardian, employer) by the alleged act. One thing which is added by this case is the idea that an allegation of sexual misconduct may have been accommodated within the common law as a shield rather than a sword – i.e. as a ‘defence’ as opposed to a cause of action in itself: medieval women, including servants with abusive masters, had a number of possible routes to bring the matter up in a court. Not all of them used the word raptus. So it is worth saying that raptus includes more than sexual offences, but allegations of sexual offences are not only to be seen in raptus allegations.

GS

16/10/2022

[Image, some clouds, because … well … what do you use here? And, general overtones of uncertainty … Photo by Barry Simon on Unsplash )

[On the Chaucer-Chaumpaigne issue, I am just thinking through its connection to a trend in legal history scholarship – a return to the use of biography – which, by chance, was the topic of my recent round of seminars with the Bristol undergraduate LH students. So I may be back to that shortly, if the current mental swirling resolves itself into anything useful … No doubt the world is waiting for my thoughts on this. (Disappears into own delusion)].

A poem by a judge … about slate …

A short post, this one, just inviting the world to marvel at the forgotten literary greatness of the nineteenth century legal profession. Here we have a creation in rhyming couplets, from a report in 1850, in which a deceased judge of the North Wales circuit, shared with the world, and with posterity, his amusing thoughts on slate. Yes, slate. Now, I suppose that is not quite as random as it might seem, given that the slate quarrying industry was very big and important in North Wales at this point. (It is still a very big deal in North Wales, got a UNESCO heritage site and everything). Still, a whole poem about slate? And not only that, but about the supposed humour of the fact that slates are classified on a system using female social ranks (Queen, Duchess, Countess, Lady …).

We are told that this is a ‘witty turn’, just in case it would not otherwise have been obvious … And we could certainly ask questions about some of the imagery about peasants getting their grubby paws on various degrees of noble ladies, but still, here it is, enjoy it and ponder on the mirth and literary skills of judges.

 

 

GS

13/10/2022

Suitably slatey image: Blaenau Ffestiniog, Photo by Jack B on Unsplash

Poetry of the prison

Well it’s legal history of a sort – a penal poem from Welsh newspaper Y Drych. Felt like a bit of amateur translation. Can’t reproduce the effect of formal Welsh verse, but a rough and ready translation of this 1893 poem by Hugh Jones (Vet) would, I think, be …

The Gaol

The gaol: an old, bare, tight locked house,

with a dreadful look about it;

destination of criminals, traitors

and the torturer.

 

I think we are getting the convict-gaoler all trapped together, matter of chance which side of the bars one is on vibe, well known to watchers of gritty modern police/detective shows.

There is another layer to poems about prison in Welsh, which is that strict-rules poetry writing (so, so hard!) is called canu caethcaeth referring to confinement or chaining.  So rather appropriate for such subject matter.

GS 10.10.2022

Photo by Tim Hüfner on Unsplash

‘Convulsing the court’: laughter and litigation?

A few years ago, I wrote a paper about reports, in the medieval Year Books, of humour, jokes, laughter and levity in court.[i] Although I have never had ambitions to ‘do comedy’ myself (probably a good thing, as those who have been subjected to my attempts to liven up Land Law teaching will attest) I do find humour fascinating as well as enjoyable. Maybe it began when, as an impressionable and angsty teenager learning French, I came across a line in a Georges Brassens song, Le Vieux Léon, about people masking their sadness with jokes and laughter – some old friends, broken-heartedly (le coeur serré)  following a coffin, laughing and joking around so as to pretend not to be crying ( en rigolant, pour faire semblant de ne pas pleurer). It has stayed with me all these years, along with the idea of the use of humour and laughter for various purposes other than pure enjoyment. Additional layers were added to this interest, once I got involved with research in law and history, and saw the references to laughter and smiles and jokes and so on in the Year Books, and suggestions in various translations that certain passages were intended to be humorous. Out of that came the humour paper, which allowed me to work through various ideas about the use of humour in court – real or imagined. There are examples of ‘clubby’ humour (strengthening bonds between the members of the common law legal profession, perhaps by picking on outsiders of some sort), and of slightly bullying humour (judges being rude about those pleading before them) as well as occasional obvious and rather charming delight in words and word-play, and perhaps genuine smiles and laughter.

Perhaps that paper should have got it out of my system, but I do still find myself looking out for, and noting examples of humour in court, wherever they come up.  Recently, I have found myself drawn to reports of humour in court from a very different time and source: journalistic reports of the late nineteenth and early twentieth centuries. Those of us lucky enough to have a university affiliation can often get access to extensive databases of newspapers, but everyone with a computer and internet connection can look at the fabulous Welsh Newspaper Archive to get a flavour of these reports.

The headline (see how on-theme I am …) is that it is not at all uncommon to see reports which note laughter or ‘humorous’ exchanges or remarks in court, occasionally also the court being ‘convulsed’ at the hilarity of it all.[ii] Very few of them would strike a modern reader as being particularly funny, and some certainly make me annoyed or uncomfortable on behalf of the butt of the jokes. Still, there is some interest here, both in terms of what might have been going on in court (we cannot, surely, assume that the reports are complete nonsense) and also in terms of the ideas and attitudes which are reflected in the reports, and the reporting, of such instances.

Some such reports might be categorised as the humour of sycophancy – with both the conversation in court (assuming it happened) and the fact of reporting giving a judge a chance to display his marvellous wit. We might see this in a report from the Evening Express of 29th November 1906 in which we are told of the humorous remarks of Darling J, in an aside  about the letters sent to him by ‘lunatics’.[iii] The stage direction ‘Laughter’ is included six times in a short report in playscript form (shades of the Year Books …). It was just as well that a story from 1898 was headed ‘A Funny Judge’, because the reported exchanges between judge (here, Kekewich J) and lawyers, about getting married, were … not obviously amusing.[iv]

At other times, the apparently humorous exchanges recorded involve interactions with non-lawyers, very often people of a lower social status than lawyers. Sometimes, there is an attempt to show judges getting on with their inferiors, as in some judge-cabby banter in a case of 1897,[v] and the ‘banter with recidivist’ reports, which makes the whole process  seem a bit cosy, and the judge a good sort.[vi] More often, we are generally being encouraged to laugh at these lowly laypersons. There was the ‘big rough man’ who dropped himself right in it by saying he had stolen a broom, innocently. Ho ho – working class people are stupid![vii] And they lack taste – like the silly woman who thought Brighton, Broadstairs and Southend were ‘fashionable resorts’ – how we laughed![viii] There was the man who couldn’t say ‘sciatica’ Hahaha!; and another exasperated at being unable to find a tenancy.[ix] Women, surprise, surprise, are another group of ‘others’ regularly mocked. There is gender-based humour in a situation in which a judge has to deal with allegedly defective corsets, in a civil case. The very idea! Cue much blushing from the ladies, and laughter.[x] Poking fun and ‘tittering’ at a defendant’s incongruous name (a Newport man, William John Heaven, who had been convicted of being D & D and assaulting a constable) certainly seems very unprofessional and inappropriate.[xi]

The most protracted account of ‘banter’ is in an earlier report of a low level land case in Ireland, with much literary and other pontificating, between lawyers and a witness, with the judge laughing too, during the discussion of wigs and phrenology and all sorts. I am not sure how much of it to believe.[xii] Possibly the weakest joke I have seen is from a QC sitting in judgment in 1898, in Clerkenwell County Court – examining a party who said he was a journeyman, HHJ Edge QC asked where the man was going [Groan!]

Particularly jarring across the years is the inclusion of ‘humorous’ reports when the subject matter of the case would seem to the modern reader to be anything but funny. Mental illness or alcoholism,[xiii] deafness,[xiv] domestic cruelty,[xv] child support,[xvi] the death of a child,[xvii] The one which seems hardest to understand (both in terms of goings-on in the case, and in reporting) is the report concerning an inquest in Southwark in 1899.[xviii] The newspaper report sets the scene of a mother attending the inquest, and being examined by the coroner about ‘her deceased child’. The coroner mocked her for the length of the girl’s name, and a juror joined in, causing laughter. Men teasing and laughing at the mother of a recently deceased daughter. Certainly challenges my abilities to understand the people of the past.

Those, then are a few thoughts on this fascinating (if not entertaining as such) subject. I expect I will be back to it from time to time, as I find further examples. At the moment I am wondering when this sort of reporting came to an end – because, dreadful as they are at times, modern British tabloids do not have such reports. When did the new solemnity start? Not even something like the Wagatha Christie trial generated reports of hilarity in court. It would be very interesting to pinpoint that change.

I would like to end with what seems to be a much more pleasant account of the matter of laughter, from a case in 1904. The Weekly Mail of 17th December 1904 reported a case in a London police court, before a magistrate, Plowden. An unnamed ‘young man’ was up before the magistrate for ‘disorderly conduct’ – a vague category of offence, but apparently not one that Plowden considered sufficiently wide to embrace loud laughter and ‘larking’ with a young woman in Ladbroke Grove. The constable who had arrested the defendant thought that this amounted to disorder because it took place at 1.30 and in a ‘respectable neighbourhood’. Plowden asked the fairly deep question of whether a neighbourhood could be altered by laughter, and proceeded to tease the constable about whether or not he ever laughed (OK, I expect there is some pleb-bashing going on there … the constable is likely to have been at a lower social position than the magistrate). It did end rather nicely, with the magistrate saying to the prisoner, as he discharged him …

‘Laugh as long as you can in this world!’

 

GS

8/10/2022

[i] ‘Et Subridet etc.’: smiles, laughter and levity in the medieval Year Books — University of Bristol

[ii] See this from 1915.

[iii]Lunatics’ Letters to Judges

[iv] Evening Express 17th November 1898

For more of Kekewich J’s humorous adventures, see this from 1897.

[v] This.

[vi] See, e.g. this one from 1910.

[vii] 1898.

[viii] 1908 – and I do wonder how this played with a Welsh readership. Did they like to hear about London lawyers being snotty about British resorts?

[ix] 1900.

[x] 1899.

[xi] See this from 1910.

[xii] 1852.

[xiii] 1903.

[xiv] 1909.

[xv] See, e.g. ‘A Collier’s Appetite’, Evening Express, 8th September 1900 and this from 1909. An assault allegation from 1900. And this, in which laughter is directed against married women in an especially pointed way.

[xvi] 1908.

[xvii] Evening Express, 13th September, 1899.

[xviii] ‘A Study in Nomenclature’, Evening Express, 13th September, 1899.

 

Photo by Tim Mossholder on Unsplash

Slick advertising copy

Can only apologise for this .. absolutely no legal-historical justification, nor academic merit, just a collection of adverts from old newspapers (Welsh Newspaper Archive – thank you!) which made me smile for one reason or another. There is something utterly charming about the clumsy earnestness of a lot of late 19th-early 20th C advertising, and somehow that is intensified in papers from well outside London and its orbit.

First off, here is a rather scary lingerie/scaffolding ad from 1918 … definitely no suggestion of comfort …

Still with clothing, this one from 1910 has all sorts going on … I like the slick ‘for the million and the millionaire’ line, and the name of the shop – they definitely had a brand strategy. And the concept of a ‘holiday suit’ is rather interesting …

And this one from 1908 speaks for itself (snigger …)

Smiled at the clumsy chirpiness of a couple of ads from the Cambrian in 1907: first, we have the classic advert non sequitur, pushing toffees

and then a bouncing bit of alliteration to encourage us in the direction of ‘bile beans’ (mmmm!)

A bit of verse is always nice – we can see a fine example in this bread ad from 1906:

 

The extra layer in some of the adverts is the provision of either a full translation, or else just a line of Welsh. Somebody was probably very satisfied with this, in a tea advert of 1906 – this was ‘the best (tea) under the sun’, for example …

 

Could go on and on, but we’ll end with my favourite, a cracker from 1908 – a ‘Wenglish’ classic –  ‘What about Knickers?; Well, indeed. What about them? Sadly it is not your actual underwear – or presumably not, since there is mention of cord and tweed. I mean, no doubt the people of the early 20th C were tougher than the likes of us, but I don’t think even they would want smalls made of tweed. I am assuming that it’s some sort of trouserage.

GS

23/9/2022 (and later updates)

Daggers, lances, secrets, puzzles

(CW: sexual offences, rape)

The issue summarised

There are occasional late-medieval allegations of sexual offences – rapes in modern terminology – which include references to what appear, on the surface, to be weapons, but this talk of weapons may have been understood as a metaphorical way of referring to male genitalia. It is hard to be certain, at times, whether we are looking at an allegation of rape (modern sense) plus additional assault with an actual weapon, penetration with a weapon (probably not, but just about possible) or rape with a penis described in metaphorical weapon terms. The whole business is made more complicated by the fact that one medieval weapon was actually called a ‘ballock-hafted dagger’ or ‘ballock dagger’, because it was thought reminiscent of the obvious (the hilt – you can imagine … no, really, it’s a real thing – even mentioned in Piers Plowman …). I have written a couple of previous posts on this topic, but it’s time for another one, as I have found yet another relevant indictment.

 

Where I had got to with this …

In a previous post, I noted an entry on the King’s Bench plea roll for Easter 1435 relating to proceedings against a clerk, Thomas Harvy, for alleged offences in Norfolk, including a sexual offence (which was probably understood to be ‘consensual’ – at least in contemporary terms of an absence of overt physical struggle).[i] Jurors had presented before the justices of the peace that, on 1st October 1433, Thomas Harvy of Testerton, clerk, … broke into the house of  John Serjeant of Colkirk, at Colkirk, and attacked Margaret, John’s wife,  wounding her shamefully (turpiter) with a certain carnal lance called, in English, a ‘ballokhaftitdagher’, and so he continued to do until that day, setting a bad example etc., to John’s great damage and against John’s will.’[ii]

I did, at first, question my reading of the carnal lance/ ballokhaftitdagher’: could the lance perhaps have been some sort of butchery implement? Was the dagger just an actual dagger regarded as having a genital-like appearance? But both terms being used together made a pretty strong case for seeing the ‘carnal lance’ and ‘ballock hafted dagger’ as evoking not actual weapons but metaphorical weapons, and, given the context, to refer to male genitalia. It is worth noting that a resort to metaphorical language is unusual within the generally unfanciful context of medieval plea rolls, but that the use of weapon-imagery is a well-known practice in literary sources.[iii] Obviously, I am not a scholar of literature, and it seems to me that there is a definite need for some interdisciplinary discussion of this, but this is where I am at the moment …

I had come across the ‘carnal lance’ image on its own in a very small number of other cases.iv] Sometimes there is additional information linking the lance to specific parts of a woman’s body which appear to make a sexual penetration meaning most likely (though these might be interpreted as penetration with an actual weapon, just about). For example, a case going back to the 1440s shows a Kent jury swearing that Richard Kay, parson of the church of Hartley, on 20th November 1439, broke into and entered the house of Thomas Cotyer in Hartley, with force and arms, and, in a barn, assaulted Rose, Thomas Cotyer’s wife, beat and wounded and mistreated her, and hit her so severely with a certain carnal lance between her thighs, that she fell to the floor onto her back, and then he lay with her, against the king’s peace. They added that Richard was ‘a common adulterer etc.’[v]

A ‘carnal lance’ reference, in a 1483 Devon indictment,[vi] does seem to separate the attack with the lance and the sexual penetration, so did make me wonder once more whether I might be talking fanciful nonsense, but yet another, from the same county and roll, mentions the use in an attack on a female servant of both ‘carnal lance’ and two ‘stones’.[vii]

Another reference to carnal lances and stones, from Devon, from an indictment file for Hilary term 1482 – does, I think, confirm that carnal lances were not actual lances, and stones were not actual stones, in some legal records. It is a deeply unpleasant sexual assault accusation, in which a certain William Gamon, clerk, was accused of what would now be called  a rape (though no ‘rape term’ is used, and neither are words of felony) on Joan, wife of John Stonehewer, on two separate occasions.[viii] A rough-and-ready translation of the case would be:

‘[A Devon jury on 12 October 1480] said on oath that William Gamon, [ff] recently of [Denbury], Devon, on 2nd July and 10th October 1479, with force and arms and against the peace of the lord king, with staves and knives and also a carnal lance, broke and entered  the houses of John Stonehewer at Denbury and Ottery St Mary, hit John’s wife, Joan, several times, and then hit and penetrated her with the aforesaid lance and two stones hanging in the said William’s nether regions, in a certain hairy opening between her two thighs, in the rear, so that her life was despaired of and against the peace of the lord king.’

A metaphorical link between testicles and stones was certainly present in the medieval period, and appears, for example, in the Mirror of Justices, in a discussion of mayhem (Book I c. 9). It is, of course, still hard to be sure that this was not a real lance and real stones, but the more examples I find of the link between weapon-talk and sexual offence cases, the less likely that seems.

Aside from confirming the lance/stones metaphor usage, the Gamon case introduces further examples of figurative language for body parts in the sexual context. The woman’s body is discussed in particularly demeaning terms here, which is not very surprising really, but it reinforces the everyday misogyny which would have pervaded the atmosphere of medieval courts.

Recently, I came across a relevant indictment in a file from Yorkshire, from 1454. KB9/149 m. 21 contains the allegation that William Shepley of ‘Wymbursley’ (Wimberley?), Yorkshire,  tailor, on 31st October 1453, came with force and arms (i.e. with swords, bows and arrows), broke the close and house of Henry Smith of Norton nr Campsall, Yorkshire,  feloniously took seven marks in money, and other utensils to the value of six marks, from the goods and chattels of Henry, and (the relevant bit for me) assaulted Agnes Smith, wife of Henry, with force and arms, ‘i.e. with a large instrument of small value called a ballokhafted dagger, of length of approximately one hand and a half (longitudinis unius manip’li & di’) worth one penny, and pierced and entered her ‘secret parts’, raping the said Agnes then and there. William had been outlawed, but, thus far, I have found no further proceedings.

What exactly was the alleged offence against Agnes? There are several mutually reinforcing layers of mud here: the euphemistic reference to secreta, the well-known obscurity or breadth of raptus, the fact that there actually was a sort of dagger with that suggestive name, and the conventional lists of weaponry commonly seen in allegations of assaults or forceful wrongs, but no imagined by anyone actually to have been used.

There are new complications with this new content, relating to the ‘large instrument of small value’ line, the length cited, and the price cited.

While it is usual to include the value of a weapon or item which caused a death (because it, or its value, would be forfeit) and other items are sometimes listed with a price, in allegations of crime, I have never seen this phrase about something being ‘a large instrument of small value’. It seems an unnecessary piece of verbiage, when the price of 1d is also included. Unless it is not an actual dagger, but a penis-as-metaphorical-dagger. But then why include a price – one presumes that there would be no question of a forfeit. Unless this is either satirical, or just an unthinking, instinctive inclusion on the part of the clerk.

On the question of size of the dagger (or not-really-a-dagger), there is also room for debate. The hand, handsbreadth or ‘handful’ as a unit of measurement was certainly ‘a thing’. We know the ‘hand’ as a unit of measurement for the height of horses. There are other overlapping, if not necessarily identical concepts – the handsbreadth, the shaftment, the pes manualis.[ix] A quick, inexpert, survey suggests that these range from about 4 to 13 inches; 10 to 33 cm (so it’s related to an idea of an average – male, adult – hand, but varies in terms of how you measure it, and whether the extended thumb is included or not). This rather large range of possibilities means that, on the hypothesis that the thing being measured is not really a dagger, it is quite difficult to understand whether the ‘instrument’ is really being presented as large (implications of force, damage, perhaps?) or small (implications of ridicule). If the unit of measurement to be understood here is the 13.1 inch pes manualis, then that is on the large side (that conclusion brought to you by some rough sums and quick and possibly dubious internet information). The horse-measuring hand of 4 inches seems rather more likely (giving us an overall length of about 6 inches?). If we are actually talking about a dagger, a quick search brings up lengths of c. 13-14 inches/35-36 cm.[x] Anyway, I don’t think I can say anything very definite here, but others may be able to.  

I have not gone out looking for references in a systematic way, and it seems unlikely that I have, by chance, found all of them. The best view which I can give at the moment is that this weapon/penis association was a known idiom/image in later medieval England, and an unusual, but not unknown, inclusion in legal records.

 

Why is this interesting, and what does it all mean?

Let us assume, for a moment, that the ‘weapons’ are metaphorical. What then?

What are the implications of this weapon imagery in the legal context?  Several things occur to me, all a little tentative just now – I would certainly be interested to know what others think. Here are some of them:

  1. I wonder whether we can read into the occasional intrusion of this sort of imagery in entries on the legal record something of the mood of discussion about such offences, amongst the men involved in making records, or those in court. Is there validity to my intuitive reaction that it sounds like joking about and diminishing the seriousness, or the wrong, of sexual assault and rape? Might it be argued to show the exact opposite: since we know that these prosecutions almost never ‘succeeded’ in the sense of ending with a conviction and punishment according to secular law, aligning it more closely with the ‘ordinary’ sort of violence (and especially categorising the harm as a ‘wound’, as in ‘ordinary’ batteries etc.) showed a greater-than-usual degree of concern. The ‘rape: an offence (predominantly) of sex or violence?’ question is something of an ‘old chestnut’ in modern legal scholarship, but I think that there is some worth in considering linking up those debates with the work on rape/sexual offences in historical studies, which does not always deal with this point.
  2. What does the weapon imagery say about ideas of men, rape and sex?
  • Does associating offending sex with a weapon in some sense dissociate man and penis, and, if so, is this something which serves to minimise – or ‘outsource’ – culpability?
  • How does the association work with ideas/reality of rape as a weapon in (medieval) warfare?
  • What does it all say about contemporary ideas of (socially sanctioned) sex? We are well used to the medieval idea of heterosexual encounters as asymmetrical, perhaps with a ‘playful’ combat aspect. Does using the weapon idea in sexual offence cases suggest an acceptance of a continuity between offending and non-offending sex?
  • If weapon-imagery is to be used, what is the reason to choose one type of weapon rather than another? What implications might there be in choosing a lance rather than a dagger, a Latin/French term or an English one?

As ever with medieval legal records, far more loose ends and questions than concrete findings, but, it does seem to me that one thing the use of weapon-words must have done was to reinforce the connections between the men involved in the legal process (jurors, clerks, those in court) and place them in opposition to the woman against whom, or with regard to whose body, the offence had, allegedly, been committed. The wielding of such weapons was a thing clearly gendered male, and, as such, something drawing men together in exclusion of women. What hints might there be there about gender, law and justice? Apart from anything else, it does suggest great complexity.

 

GS

This version 20/09/2022

 

Photo by Annie Spratt on Unsplash (Going for a general idea of fog/uncertainty here – get it?)

[i] KB 27/697 Rex m.5 AALT IMG 0183. You can see a scan of the record here on the AALT website.

[ii] For the ‘ballock hafted dagger’ (a real weapon), see the earlier post, and Ole-Magne Nøttveit, ‘The Kidney Dagger as a Symbol of Masculine Identity – The Ballock Dagger in the Scandinavian Context’, Norwegian Archaeological Review 39, no. 2 (2006), 138-50.

[iii] See, e.g., D. Izdebska, ‘Metaphors of weapons and armour through time’, in W. Anderson, E.  Bramwell, C. Hough, Mapping English Metaphor Through Time (Oxford, 2016), c. 14; C. Saunders, Rape and Ravishment in the Literature of Medieval England (Woodbridge, 2001), 42; R. Mazo Karras, Sexuality in Medieval Europe: Doing Unto Others, third edn, (Abingdon, 2017), 26, 151, 172; Robert Clark ‘Jousting without a lance’, in F.C. Sautman and P. Sheingorn (eds), Same Sex Love and Desire Among Women in the Middle Ages (New York, 2001), 143-77, 166. The Dictionary of Medieval Latin from British Sources (Brepols, 2018) suggests this meaning too, in its sixth variation on ‘hasta’.

[iv] KB 9/359/mm 67, 68 (these two also mention stones); AALT IMG 141 (1482). There are two on KB 9/359 m.3

[v] KB 9/293 m. 2 This also appears on the KB plea roll: KB 27/725 m. 31d; AALT IMG 567 (1442), in which Richard pleaded not guilty, but made fine, ‘in order to save everyone trouble’.[ The fine was 40s, according to the roll.

[vi] KB9/363 m. 2

[vii] KB 9/363 m.3

[viii] KB 9/359 m.2

[ix] See R.D. Connor, The weights and measures of England (1987), esp. at pp. 2, 29.

[x] I am sure somebody can do better – amateur hour. Looked at, e.g. Ballock Knife | Western European, possibly Britain | The Metropolitan Museum of Art (metmuseum.org) Ballock Dagger – Hundred Years’ War – Royal Armouries coll

‘Poetry in the Dock!’ in the dock

As a dabbler in poetry as well as a legal historian (I know – as if I could not be any less cool …), this one grabbed me as a bit of a sad incident. (It is in the Welsh newspaper archive, though the story is from England).

The date, 1910; the location, Yorkshire. A certain Benjamin H. Swaffield was in court on a D & D (drunk and disorderly) charge. The newspaper reports spell out clearly the particulars of neither the drunkenness nor the disorderliness – all that we are told is that he was allegedly found reciting poetry, and that the alleged recitation was ‘for butchers’ (no doubt there is something snobby going on here – butchers? Poetry? How very incongruous!). Swaffield denies that he had opened his mouth, but the prosecution included, and we are treated to, a couple of the lines allegedly declaimed:

‘He sells one kind only, and that’s delicious

It would not make a king feel vicious.’

Found guilty, the court would have none of the prisoner’s pleading for another chance, or claim to have been converted (from drink? From poetry? To Christianity?). Down he was sent for a month (though at least without hard labour).

Somebody was probably quite pleased with finding this oddity, and with the grand title ‘Poetry in the Dock!’. It struck me, though, as both harsh and poignant. And rather an interesting indication that, if we want to think about legal control of public expression, we would do well to think not just of the usually-headline-grabbing offences and mechanisms (defamation laws, laws on sedition of various sorts, obscenity laws etc.) but of this low-level ridicule and sousing of what seems to have been the humble attempting to put thoughts about their own world into poetry – however clumsily.

I was also struck by the thought that, had he had a way of getting a foot in the door, B.H. Swaffield might well have made a decent living as an advertising copywriter. After all, his competition in 1910 was not exactly bardic (see this fine ad.

– bet that got them flocking in!)

 

GS

19/9/2022

 

Photo by Jonathan Taylor on Unsplash

What the catafalque

Well, I meant to leave the whole royal death well alone (even though it is obviously legal history adjacent), but goat has been got by the coverage of ‘the queue’, and the idea that it is only those who perform in particular ways who are ‘part of history’. It feels important to challenge that, to disagree both with the prevailing narrative of this event (we are all in it together, Blitz spirit , etc. etc.) and also with the idea that history is predominantly about monarchs and battles, and with acts rather than omissions or choices not to act. This chimed in with a tweet this morning by an eminent history professor, and I am afraid I was tipped over into limericking (yes, that is a verb …).

 

The Lying in State

News bulletins beat a tattoo

of a long loyal royalist queue

but they don’t choose to say

vast crowds stayed well away

And that that’s part of history too.

 

GS

16/9/2022

Photo by Nathan Mcgregor on Unsplash

The test(icles) of time

Just doing a little preparation for a forthcoming paper, on mayhem (roughly, wrongful, serious but non-fatal permanent injury) and reminding myself of the relevant parts of everyone’s favourite thirteenth-century treatise, Bracton.

There is one truly bizarre section which I had forgotten all about. It is at II, 409, and it is tacked on to the end of a discussion of appropriate modes of proof in an appeal of wounding and mayhem. The discussion deals with one likely scenario, in cases of alleged serious but non-fatal injury, i.e. the case in which the defendant cannot defend himself by battle, because the person bringing the appeal is, of course, claiming a serious injury – which might be supposed to put him at such a disadvantage in terms of fighting, that even the God who fixed matters so that little, badly-armed David beat strapping man-mountain Goliath would consider it a bit tricky to let right prevail over might. So far, so unsurprising. Equally unsurprising is the explanation that, if trial by battle is ruled out, then the usual substitute would be trial by jury.  Getting towards the odd bit, but still not especially odd, is the suggestion that, sometimes, jury trial itself will be unnecessary – i.e. when the defendant has made a confession of guilt to somebody in authority. In such a case, the record of the confession suffices to dispose of the case. But then we get into it, with the example of this which is given:

‘as may happen where one castrates another and acknowledges that he is seised of he testicles; he cannot make any further denial of the deed contrary to their
record.’[i]

It is not completely gratuitous testicle-talk: there had been a discussion (rather indebted to Roman law sources) of the wrongs of castration just a few sections earlier on (at II, 408). It is, though, hard to understand why anyone would ‘acknowledge that he is seised of the testicles’.  This strikes me as strange as a matter of language – seisin [and the Latin does use exactly this concept too] is a term and idea more regularly encountered in the context of land. It is certainly interesting to see (real) property words being used in relation to a pair of removed testicles, and brings to mind all sorts of interesting modern legal debates about the possibility of property in human bodies and body parts and products. Stranger yet, though, is the underlying idea that a person castrating a man or boy would keep the testicles. Should we be thinking about a bit of gloating immediately after the mutilation, or some sort of preserved trophy? Bracton, annoyingly, gives us no more. Not quite sure what I am going to do with this in my paper, but I don’t suppose I will be able to restrain myself from making some allusion to it. Never said I was classy.

 

GS

10/9/2022

 

Image – come on, what image would you choose? I think this is a relatively tasteful choice …  Photo by Juliana Romão on Unsplash

 

 

[i] Thorne’s translation