Rough and ready music: listening to the records

Expectation management: this is not very profound, just something I saw today which struck a chord, resonated, etc. [insert other music-related references …]

It’s a line in a plea roll entry from the reign of Edward IV, from Easter term 1482.[i] The case is not a pleasant one (well, it is in a ‘criminal’ roll …). You know it’s going to be serious when the word ‘coroner’ appears early on – and this starts with an account of an inquest, on 10th January 1482, before Suffolk coroners, at Halesworth, on the body of John Hensted, who had been killed there.

John Hevnyngham, knight, and William Jenny, sjt at law, had been at Halesworth on 29th December, 1480, on a royal commission, dealing with a case about land rights, between John Laveraunce and William Goderyche, and were in a room of an inn called the Hart, in Halesworth.[ii] The inquest jury (and an indictment founded upon their narrative) said that  a certain William Wingfeld, recently of Spexhall, Suffolk, got together a group of malefactors [6 men named, no amusing names, so I shall omit them – all grooms, tailors and similar] and attacked John Fayrechild, servant and clerk of William Jenney, as he was coming towards the room. They would have killed John F, had he not defended himself with a small ‘daggarr’ (note contrast with their swords and other not-small weapons …).  Despite his heroic defence against the odds, the group overpowered John F and ‘decked’ him. Again, he was in peril of death, and would have been a goner, but was rescued in the nick of time by loyal types, ripped from the hands of the ne’er-do-wells and taken into the room.  Wingfeld and his gang then started on John Hensted (who was in God’s and the king’s peace – it doesn’t actually say whether he was involved in the John F episode, but I imagine that is the idea …) and wounded him multipliciter et crudeliter, so much so that they killed and murdered him [never use one word where two will do …].

Afterwards [and this is the bit that grabbed me] one of William Wingfeld’s men, the groom Nicholas Petyt. celebrating John H’s death, said, in his native tongue, ‘I shall blowe a mote[iii] for his deth’ and straight away blew a high (or loud?) blast on a certain horn [which he  happened to have about his person – though I suppose that is plausible …and rather appropriate with the whole hart/white hart theme …]. William Wingfield said, also in English ‘a man of Jenneys is slayn. I wold it had lighted upon his master’, and afterwards, William W and gang fled. William W received the others, knowing what they had done.

Later, in the King’s Bench, William W and four of his men turned up, waving a royal pardon which said the charge had been malicious. Who knows whether that was true or not, or what happened to Nicholas Petyt, who was not included in the pardon.[iv] An interesting bit of creative dialogue creation (‘verbals’ is the word that comes to my mind – have just been watching a rather good documentary series about ‘bent coppers’ in London in the 1960s-80s, who favoured this sort of elaborate lie when ‘framing’ individuals ..) anyway. Whether or not these words were spoken, why would they be included in the narrative? Is Petyt’s supposed remark, and celebration, about indicating definite guilt, inconsistent with the sort of hot-blooded, hot-headed killings which might be passed over as undeserving of capital punishment?[v] Might the words attributed to Wingfeld have been an attempt to suggest that he had wished to strike at a royal official, and get him into more trouble?

No answers to those at present, but here’s one I might do better with: why did this entry appeal to me? Well, I think there is something engaging, for the modern reader, in the ‘code-switching’ between Latin record and English reported speech in these records: it almost feels a bit comic, despite the situation, and it gives a sense of performance, of throwing the hands up and saying ‘do you know what, this is not going to work in scholarly Latin, here’s what was actually said …’ I know that there is a lot of work on this in literary studies – macaronic works etc. – but I think that plea rolls are a bit neglected as a linguistic/literary production, and that it would be very interesting to get legal historians and lit. scholars together to look at what these sources can tell us about English, and the sound of medieval England (or plausible versions thereof) at some point. It has been done to some extent with defamation, but there is a lot more in there, if you have the patience to do a bit of ‘listening’.

GS

29/8/2021

 

[i] KB 27/882 Rex m.9; AALT IMG 173,

[ii] Excitingly, there is an old pub called the White Hart in Halesworth. A quick scan shows claims that it goes back to the 17th C – could it be the same one? Image above is its sign.

[iii] According to the ME Dictionary online, a ‘mote’ is one note on a hunting horn. New one on me.

[iv] The pardon is calendared: CPR 1476-85 p. 242

[v] Note that Petyt is accused, alone, of the offence, here (and next membrane) and here. And he is called a ‘vagabond’ rather than a groom … interesting ‘spin’ going on somewhere … This one is v. close to the story on the plea roll, but implicates the others, and doesn’t call him a vagabond! The matter of ‘vagabond’ as an ‘addition is debated in a (connected?) YB report here.

Canons and knives: death (and treason?) in a medieval priory

A ‘query petty treason’ case today – while I am most interested in the ‘husband killed by wife’ cases, it is worth remembering that the Statute of Treasons 1352 gives other examples of ‘sort of treason because against the natural hierarchical order of things’ cases. I do have some ‘servant kills master/mistress’ cases on my ‘table of doom’, but there is much less available in the other category – killings of abbots by their monks. Here, though, on two Cambridgeshire gaol delivery rolls,[i] is a case from 1403 which is, if not quite ‘monk on abbot’, tantalisingly adjacent to that. Having been very pleased with myself for finding it, I discovered that those hard-working early 20th C local historians had been there before me: there is a one-page account of the documents (complete with old style roll numbering) in The East Anglian vol. 13.[ii] Slightly miffed for a moment, but then, actually, I quite like making this sort of connection. Maybe one day somebody will do the same with this post … (delusions of being Emily Dickinson, or something, there …).

Anyway, on with the story. The deceased in this case was William Gilbert, priory of a rather small foundation in Cambridgeshire (I confess I had never heard of it) called Spinney. A bit of basic research reveals that this was a house of Augustinian canons, and, at the relevant time, had only a handful of residents.

The inquest before a coroner was held ‘ on 19th May, 1403. The story noted down from the twelve inquest jurors[iii] was that three canons of Spinney (also said to be confratres – ‘brothers’ of the deceased), John Lode alias John Catesson, Thomas Smyth, and William Hall, had killed him that same day (note speedy start to proceedings!). The killing, as described, was fairly drawn out. John Lode stabbed William Gilbert under the left arm, Thomas Smyth stabbed him in the back. William Gilbert then managed to get away into a different room, but the trio broke the door, and Thomas stabbed William Gilbert through his left arm, and his side, to his heart. It is carefully specified that each of the first two stab wounds would have sufficed to kill WG, had there not been another one.[iv] The geographical as well as physical locations are specified – the initial stabbing was said to have taken place in the priory church, and the final wound, in the priory’s hall, to which William Gilbert had fled in his failed escape bid.

The three were found guilty by a jury, at the gaol delivery session on 20th  July 1403, but escaped execution because they were able to take advantage of benefit of clergy, and were ‘claimed’ by the ecclesiastical authorities.

Petty treason: teasing out the definitional implications

What does all this tell us about petty treason? The account does use the language of treachery or treason – the trio had risen up like traitors, but note that the bond highlighted is not that between the killers and their prior, but between the killers and the king (tanquam proditores domini regis manu forte proditorie). If they were really seen as traitors against the king, it seems surprising that they were allowed benefit of clergy. What am I missing? And does this case show that canon-prior just was not seen as analogous to monk-abbot in this context? The reference to ‘fellow brethren’, as Palmer translates it, suggests a less ‘vertical’ relationship, doesn’t it?

Canon to the right of him, canon to the left of him … thoughts on the social implications

Assuming this is anywhere near true, it does make life at the priory of Spinney sound rather grim – a conspiracy against its leader involving what was probably the bulk of the others in the house. Note, though that one person did rather nicely out of it all – the sub-prior, who escaped indictment, and stepped fairly seamlessly into the top job once the dust settled …

 

GS

22/8/2021

 

[i] JUST 3/8/6 m.58 (AALT IMG 106);  JUST 3/190 m. 5 (AALT IMG 13).

[ii] W.M. Palmer, ‘Murder of the Prior of Spinney’, p. 104.

[iii] (who, I note, included a certain ‘Willamm Schakespeare’ … there you have it – evidence that W. S. was actually a member of the Undead …).

[iv] I am by no means an expert, but that third wound, right through an arm and side, into the heart, sounds as if it would have had to be particularly forceful. I also note that William Hall is not reported to have struck a blow at all. But then accessory liability – or treating as principals all with any sort of participation in the killing – was certainly ‘a thing’ in these cases.

Image: where the priory would have been if it was still there, but it isn’t. All sorts of symbolic ..

No, no, no, no, no, no, no, no, no, no, no, no, there’s no Limit[ation of Actions volume]

A bit out of date, surely, referring to a Euro-dance classic by 2Unlimited? Yes, but … that’s sort of the point of this particular ‘blog as therapy’ post.

Sorting out some long-overdue personal and work admin matters, I came across an email exchange from 2013 (yes I am a digital hoarder/archivally oriented/keeper of proof) about a volume on Limitation of Actions which a former colleague was putting together. I was to write ‘the historical bit’ and various other thrilling chapters would follow. Of course I did my section. Then, for whatever reason, the project ground to a halt.

It is not the greatest piece of legal scholarship, by any means, and it didn’t take me that long, but still … it is a shame to have bothered and never to have seen the thing come out. I have had such varied experiences with edited collections – nothing but good to say about some of them (esp. Weikert/Bennet Hostages Book – that was extremely efficient) but others  … I actually have another, more substantial thing for an edited collection which has a number of years of ‘forthcomingness’ behind it, which I hope is actually going to appear very soon … otherwise this may become a series of ‘things I was asked to do, and did, which somehow never got published’ …

The limitation thing, though – I think it’s time to put it out there, for what it is worth, and (shudder) move the email exchange from the ‘to do’ folder to the outer reaches of the ‘archive’ folder. There comes a point when hope and dutiful waiting reach their limitation period, after all.

So here we are, for anyone who wants a quick introduction to the ideas behind limitation of (civil) actions  – and bear in mind it is from 2013!

GS

20/8/2021

 

Gwen Seabourne, Historical Introduction to Limitation of Actions

 

I: Antiquity and rationale of the limitation idea

 

The idea of setting some temporal limit to the right to bring a legal action is very ancient, with antecedents in both Old Testament law and Roman law.[1] It is a concept long established in English law and exported to the common law world.

 

Various reasons have been put forward for having a limit to the right to bring an action. Some of these focus on the claimant, expressing a reluctance to support a person who ‘sleeps on his rights’, [2]  or a suspicion that such a claimant may be a perjurer.[3] Others focus on the defendant, and the perceived unfairness of leaving people vulnerable to legal action without temporal limit.[4] A third explanation concerns the legal process itself, the fairness of which might be compromised by allowing ‘old claims’, since evidence may deteriorate or disappear, and memories may become unreliable. Fourthly, there are wider justifications based on claims that not limiting actions would be deleterious to the economy (by discouraging enterprise) or to public order.[5] Finally, specifically in the context of land actions, it has been suggested that, if a claimant brings an action long after a defendant’s alleged wrong, it should be presumed that at some point during this long period of delay, the defendant in fact did gain proper title to the land in question.[6]

 

 

II: The English Context

 

(i) to 1540

English law has had two differing ways of meeting the concerns noted above. One has been to limit actions when the individual claimant’s delay is seen as unconscionable. The central example of this is the equitable doctrine of laches, though some forms of estoppel could also be seen in this way. The other response has been to provide that, in all cases of a particular type, actions shall be barred after a certain period, without the necessity of referring to individual conscience or circumstances.

 

From the twelfth century onwards, there was royal intervention, setting limitation dates in relation to certain types of legal actions.[7] The strategy was to use as a cut-off point some significant and well-known political event, such as the death or accession of a king, or the return of a king from an overseas expedition.[8] There was a lack of articulation of the reasons for limiting actions in such a way, and it is likely that the concern was with establishing stability of land-holding after a period of uncertainty as much as with fairness to the parties in individual cases. After the the reign of Edward I, the twelfth and thirteenth century dates were not further adjusted, so that the effective limitation period for those actions covered by earlier statutes grew in length each year. Blackstone called this situation ‘absurd’.[9]

 

As well as the statutes, the medieval common law set temporal limitations in other ways. The related idea of prescriptive acquisition had some role in relation to the acquisition of franchise rights, common rights and perhaps personal freedom.[10] Human lifespan was sometimes a limiting factor, since some forms of action did not survive the parties.[11] For evidential reasons, some criminal cases were required to be brought within a short time limit – notably rape accusations.[12] In addition, within the legal profession, there are hints of a general principle of limitation in the view that ‘every writ has its limitation period’, given in a case of 1285.[13]

 

(ii) from 1540: ‘another and more direct course which might endure for ever’[14]

 

The policy of setting by statute a fixed number of years as a limitation period for (some) actions was first introduced in 1540.[15] This legislation of Henry VIII was concerned with land actions.[16]

 

The statutes’ coverage was relatively narrow. The medieval legislation and the act of 1540 concerned only land actions,[17] and, even within the category of land actions, they were not comprehensive.[18]  It was not until the 1623 act that the first limitation periods were set for tort actions,[19] and, for example, contractual suits in which there was a sealed deed were excluded. No general limitation was placed on the bringing of criminal proceedings.[20]

 

The thirty to sixty year periods fixed in 1540 appear comparatively long, but were a considerable reduction from the effective limitation period in the years immediately preceding the act.[21] Adjustments were made in an act of 1623-4,[22] revising some periods downwards, beginning a trend which has continued into modern times.

 

It was clear from the start that fixed limitation periods would be a problem for those labouring under some disability in person or at law, and efforts were made to minimise unfair disadvantage in such cases. The statutes therefore included provisions allowing extra time for those in such a position: initially covering those under the age of majority, married women, those in prison or outside England, and in 1623 extended to cover those who were non compos mentis.[23] Other matters of detail and interpretation were worked out in supplementary statutes or in common law cases,[24] and the Chancery and ecclesiastical courts elaborated their own parallel doctrines in the limitation area.[25]

 

III: More recent history

From the nineteenth century to the present, both statute and case law made adjustments to the law on limitation.[26] The related laches principle continued to develop in the nineteenth century court of Chancery,[27] and, since the merger of common law and equitable jurisdictions in 1873-5, became available in all courts.[28]

The Chancery had long taken notice of the statutory limitation regime – applying limitation periods in connection with actions against trustees, by analogy with statutory provisions.[29] The subject of limitation began to attract treatise writers in the nineteenth century, examining statutes and case law, and sometimes comparing the situation in other jurisdictions.[30]

 

The trends in statutory limitation have been towards simplification (reduction of numbers of categories – in line with the common law’s general move away from the dominance of forms of action); increase in the scope of the limitation rules,[31] reduction of the length of the limitation period and some erosion of the principle that time does not run against the crown.[32] England and Wales, unlike some other legal systems, have not embraced general principles of limitation with relation to criminal prosecutions.[33]

 

The matter has not often formed part of undergraduate law studies, with the exception of consideration of adverse possession and limitation in the context of land. It has, however, remained a crucial topic for practitioners and litigants, and has been considered by bodies dedicated to reform and rationalisation of the law on a number of occasions, from the 1820s onwards.[34]

 

IV: Conclusion

Limitation of actions, then, is an ancient idea. The history of limitation in England and Wales shows a range of different justifications for it and a range of techniques for achieving what is regarded as a fair limitation period in different types of case. It is clear that ideas of appropriate temporal limitation of actions – and which actions should be so limited, and who should and should not be subject to such limitations – has varied considerably over time, and no doubt the rules will continue to evolve with economic and political conditions.

 

 

 

[1] See, e.g., P. du Plessis, Borkowski’s Textbook on Roman Law 4 ed, 76-7, 167;  Dig. 41.3.1; A.M. Prichard, ‘Early usucapio’ (1974) 90 LQR 234-45; R.W. Lee, The Elements of Roman Law 4 ed 1956, 125.

[2] YB Trin. 34 Hen. VI, pl. 27; Bl. Comm. bk III c. 10.  A’Court v Cross [1825] 3 Bing. 329 at pp. 332, 333;  Board of Trade v Cayset, Irvine & Co. Ltd [1927] AC 610 at p. 628; Thomson v Eastwood (1877) 2 App Cas 215, 248; Mountstephen v Brooke 3 B & Ald. 147 106 ER 614; Cholmondeley v Clinton (1920) 2 Jac & W 1, affirmed 4 Bligh 1, 130 ER 540; Doe d Duroure v Jones (1791) 4 TR 300, 308; 100 ER 1031.

[3] See. e.g., H.J. Stephen et al., Mr Serjeant Stephen’s New Commentaries on the Laws of England, , 14th ed., 1903), 541.

[4] Law Commission Consultation Paper no. 151, 1.27; Thomson v Eastwood (1877) 2 App Cas 215, 248-9.

[5] See. e.g., Cholmonderlet v Clinton (1820) 2 Jac & W 139, 37 ER 527, 577; H.J. Stephen et al., Mr Serjeant Stephen’s New Commentaries on the Laws of England, , 14th ed., 1903), 541. Note also contrary views, condemning the idea of limitation of actions, Reeves v Butcher [1891] 2 QB 509. but that, while there are certainly live debates about the detail of limitation periods and their application, the idea that there should be limitation to at least some legal actions is entrenched in the law of England and Wales.

[6] W. Blackstone, Commentaries on the Laws of England (Oxford, 1765-9) four volumes, vol. II, book III, ch 10  p.189; Thomson v Eastwood (1877) 2 App Cas 215, 248 per Lord Hatherley; Mountstephen v Brooke 3 B & Ald. 147 106 ER 614, per Abbott CJ.

[7] P & M II, 51, 81. See, e.g.; the statute of Merton cc.8, 9, statute of Westminster I c. 39 in Statutes of the Realm I, pp. 3, 36. Note that, even before intervention by statute, certain land actions required that action should not be delayed too long. In particular, the action of novel disseisin implied that the claimant had been dispossessed ‘recently’. P & M II, p. 51; Glanvill xiii, 32, 33. Co. 1 Inst. 153.

[8] The practice of dating by association with other events made sense in a less reliably documented world, and was a characteristic practice in medieval law, also seen, for example, in assessments of the age of minor heirs in inquisitions post mortem.

[9] W. Blackstone, Commentaries on the Laws of England (Oxford, 1765-9) four volumes, vol. II, book III, ch 10  p.189. Note however, that the popularity of novel disseisin, which Blackstone was discussing, was in decline from the later medieval period, (see, e.g., W.S. Holdsworth, History of English Law IV, 484) and that limitation statutes did not cover many other important common law forms of action. The position may, therefore, have been somewhat less ‘absurd’ than he thought.

[10] See, e.g., J.H. Baker, Introduction to English Legal History 4th edn (London, 2002), 470-1; P & M  1 p. 425; YB 6 Edw. II Quo Warranto pl. 5 and pl. 6.

[11] See, on debt and trespass, Baker, Introduction, 326, 345, 401. S.F.C. Milsom 77 LQR at 264; Martell’s Case (1382) YB M 6 Ric II pl 33, per Belknap CJ; and on actions for seisin of land when the defendant died and was succeeded by an heir: Littleton’s Tenures, 421 ff.

[12] See, e.g., G.D.G. Hall (ed.), The Treatise on the Laws and Customs of England commonly called Glanvill, book 1, c.6; statute of Westminster I (1275) c. 13.

[13] Prior of Launde’s case (1285), P.A. Brand, The Earliest English Law Reports vol. II (London, 1996), 205-9.

[14] Bl. Comm. vol. II, book III, ch 10,  p.189.

[15] 32 H VIII, c. 2 (1540); Statutes of the Realm III, 747. There had been an attempt at something similar in 1529, though this was part of a set of proposals which failed due to parliamentary opposition: W.S. Holdsworth, History of English Law vol. IV 451, 484, 572-4. Note that the statutes’ strategy was to bar the action, rather than the right: Bevil’s Case (1573) Co. Rep. at ff. 11b, 12a. Wainford v Barker (1698) 1 Ld Raym 232.

[16] Its promulgation at that time is likely to have been connected to the upheaval and uncertainty caused by the 1535-40 attempts by Henry VIII to enforce royal claims to feudal revenue by rendering wills of land held to uses (on trust) first totally and then partially invalid. Baker, Oxford History of the Laws of England vol. VI, p. 725 notes that some lawyers were expressing views that this was something which should be reformed.

[17] The early concentration on land actions can be explained, first, by the common law’s particular concern with land law, and, secondly, by the room for genuine doubt as to title to land in a system with surprisingly few formalities for acquisition. In this context, refusing to go too far back into the history of the tenure of a particular piece of land meant that there was a reasonable chance of producing oral testimony if documentary evidence were absent or unsatisfactory.

[18] The statute did not, for example, apply to advowsons and wardships: st. 1 Mar. (1553) session 2 c.5. It did not apply to writs of formedon nor actions involving rights of entry: Holdsworth, History of English Law, 484; 1623 act s.1.It did not apply to the king – only in c.2 of the Jacobean statute was the royal right included, and then a period of sixty years was deemed appropriate.

[19] Significant areas were still not covered by the limitation legislation: see Civil Procedure Act 1833.

[20] This was, in part, explained by the maxim nullum tempus occurrit regi (Co Litt 90b: no time runs against the king), though, given the ‘private’ nature of many prosecutions, this is not a full explanation. There were, however, limitations on some prosecutions from the Tudor period: Holdsworth, History of English Law IV, 499, 525; st.7 Henry 8 c.3, st. 31 Eliz c 5. In addition, many early modern statutes, particularly those dealing with (private) criminal prosecutions, included a specific limitation period.

[21] 32 H VIII, c. 2 (1540); J.H. Baker, Oxford History of the Laws of England vol. VI, p. 725

[22] 21 Jac. 1 c. 16 (1624); Statutes of the Realm IV, 1222; W. Ballantine, A Treatise on the statute of Limitations (21 Jac. I c. 16., (1810)

[23] Section 2 of the 1623 act added those who were non compos mentis to the list of those regarded as having disabilities. Ideas about persons and disability have evolved and other circumstances have had to be taken into account – see, e.g., Limitation (Enemies and War Prisoners) Act 1945.

[24] See, e.g. Anon (1552) Brooke Abr., s.v. ‘Limitations’ pl 2; Prideaux v Webber (1661) 1 Lev. 3; Hyleing v Hastings (1699) 1 Ld Raym 389.

[25] See, e.g. R.H. Helmholz (ed.),Three Civilian Notebooks 1580-1640, Selden Society vol. 27 (2010)., 64, 95, 101, 108; R.H. Helmholz, Oxford History of the Laws of England vol. I, 570, 584-5; W.H. Bryson (ed.), Cases Concerning Equity and the Courts of Equity 1550-1660 vol 2, Selden Society 118 (2001), no. 207, Randall v Tyrney (1612); D.E.C. Yale (ed.), Nottingham’s Chancery Cases (1954, 1961-2) Selden Society 73 and 79, xcv, 448, xcvii, 505; Holdsworth, History of English Law V, 329 Blackwell v Simpson (1582-3) Choyce cases 163; Clench v Tomley (1603) Cary 23; Porter v Pretty (1604) 1 Choyce cases 105-6; Sedgwick v Evan (1582-3 Choyce Cases 167] Sibson v Fletcher (1632-3) 1 Ch Rep 59, 60; Hales v Hales (1636-7) ibid. 105. Garford v Humble (1628) Tothill 26; Moyle v Lord Roberts (1629-30) Nels. 9, 10;.Smith v Clay (1767) 3 Bro CC 639; Pickering v Lord Stambrod (1793) 2 Ves 272 at 280.

[26] See, in particular: Civil Procedure Act 1833, Real Property Limitation Acts 1833 and 1874, Limitation Act 1939, Law Reform (Limitation of Actions) Act 1954, Law Reform Miscellaneous Provisions Act 1971, Limitation Act 1975, Limitation Act 1980. Courts of Chancery worked out the applicability of statutes of limitation in their jurisdiction – see, e.g., Foley v Hill (1844) 1 Phil 399.

[27] Holdsworth, History of English Law V, 329. See also, e.g., Cox v Morgan (1801) 2 Bos and P 368 at 412; Marquis of Cholmondeley v Lord Clinton (1820) 2 Jac & W 1 at 140; Rochdale Canal Co v King (1851) 2 Sim NS 78 at 89; Penny v Allen (1857) 7 De GM & G 409 at 426; Archbold v Scully (1861) 9 HL Cases 360 at 383; Lindsay Petroleum Oil Co v Hurd (1874) LR 5 PC 221 at 239; Re Baker, Collins v Rhodes, Re Seaman, Rhodes v Wish (1881) 20 ChD 230, CA; Re Maddever, Three Towns Banking Co v Maddever (1884) 27 ChD 523, CA.

[28] Judicature Acts 1873-5, 36 & 37 Vict. c. 66 and 38 and 39 Vict. c. 77; Holdsworth, History of English Law XVI, 165; J.E. Martin (ed.), Hanbury and Martin Modern Equity 19th edn 2012, p. 717, Knox v Gye (1872) 5 App Cas 656 at 674; Lindsay Petroleum Co v Hurd (1874) LR 5 PC 221 at 239-41 Re Sharpe [1892] 1 Ch 154 at 168; Weld v Petre [1929] 1 Ch 33 at 51, 52; Re Pauling’s ST [1964] Ch 154 at 168; Alec Lobb (Garages) Ltd v Total Oil GB Ltd [1985] 1 WLR 173.. Laches retained under Limitation Act 1980 s36(2).

[29] Knox v Gye (1872) 5 App Cas 656 at 674. Claims against express trustees became subject to statutory limitation in 1833 (Real Property Limitation Act 1833 s. 25) and those against trustees under implied or constructive trusts became subject to limitation in the Trustee Act 1888.

[30] See, in particular, J.J. Wilkinson, A Treatise on the Limitation of Actions as affecting Mercantile and other Contracts (London, 1829); W, Blanshard, A Treatise on the Law of Limitation (London, 1833), G.B. Mansel, A Treatise on the Law of Limitation (London, 1839), H.T. Banning, A Concise Treatise on the Statute Law of the Limitation of Actions (London, 1877); L.M. Lightwood, The Time Limit on Actions (London, 1909).

[31] For example in the field of debts backed up by a bond or ‘specialty’ was given a limitation period in the Civil Procedure Act 1833.

[32] See, e.g. G. Sharp, A Short tract concerning the doctrine of nullum tempus occurit regi (London, 1779). Nullum Tempus Act, 9 Geo. III c. 16 s 1.J. Chitty, A Treatise on the Law of the Prerogatives of the Crown (London, 1820),  379-80, Holdsworth, History of English Law X, 355

[33] See Note,‘ The statute of limitations in criminal law: a penetrable barrier to prosecution’, University of Pennsylvania Law Review 102 (1954) 630-54; Archbold 2013 ed 1-270; 4-74.

[34] Real Property Commissioners, First Report,  Parliamentary Papers vol. X(1829); Law Revision Committee, Fifth Interim Report (Statutes of Limitation) (1936); Law Reform Committee Twenty First Report (Final Report on Limitation of Actions) 1977) Cmnd 6923; Law Commission Consultation Paper no. 151, Limitation of Actions (1998); Law Com. no 270, Limitation of Actions (not taken forward by the government); N.H. Andrews, ‘Reform of the limitation of actions: the quest for sound policy’, CLJ 57 (1998) 589-610. Note the interesting suggestions concerning moving away from an ‘all or nothing’ to an ‘incremental’ approach to limitation which is described in A.J. Wistrich, ‘Procrastination, deadlines and statutes of limitation’ William and Mary Law Review 50 (2008) 607.

Image: a fence – sort of limit, innit? Photo by Markus Spiske on Unsplash

Neither loving, nor honouring, nor obeying the law on petty treason?

Today’s tale of less-than-happy relationships comes to you courtesy of entries on legal records from   1439.

A record of the Inquest at Bromham, Bedfordshire, on 18th May, 1439, on the body of Alice wife of William atte Halle of Bromham, labourer, notes the jurors’ view of events leading up to Alice’s death. They said that Alice had been pregnant, and suffering from a variety of complaints (whether pregnancy-related or not is unclear), and William had made the decision to kill her. On 7th May at Bromham, he had a certain dish (a posset? it would seem to involve milk curds – the word is balductam) made, and put various venemous powders in it, i.e. arsenic and resalger),[i] and gave the dish to Alice to eat, saying that it would make her well, and, believing his words, she ate, and was immediately poisoned, swelling up, being ill until 17th May, and then dying of that poisoning. He had, therefore, feloniously killed his wife. There is more: a record relating to the gaol delivery at Bedford on 30th July, 1439 notes that William was there because he had been indicted for having feloniously killed Alice, by putting poison (arsenic and resalgar) in her food on 7th May, so that she had died on 18th May. Above the entry, unless I am misreading it, we see a note that he was found guilty, and ordered to be drawn and hanged.

So what?

  1. The medical and personal information

There are some nuggets in the inquest record which are worth noting.

The account of the poisons used suggests a knowledge, and an availability, of these substances, down to a relatively lowly level. As for the swelling effect, and the lingering for 10 days, that is something which might be of interest to medical historians – is that plausible? Can we say anything about that without knowing how much was allegedly used, and how would one know that swelling was due to poisoning as opposed to pregnancy or other pre-existing conditions?

The narrative of William’s lies about the food being likely to help Alice get better also tells us something about plausible relationship dynamics: a wife would be likely to trust her husband; a husband of ‘labourer’ status might be involved in his wife’s care. I suppose it also tells us something about accepted nutrition for sick pregnant women.

  1. The sentence

Drawing and hanging was the classic punishment for ‘petty treason’. I have been collecting examples of spousal homicide for quite a while and I had got used to seeing a nice (well, not nice at all, but you know what I mean) neat distinction between the treatment of W kills H (= petty treason, those convicted are burnt) and H kills W (= ‘just’ homicide, those convicted are hanged). This looks like a court – or somebody – ‘getting the law wrong’ then. Maybe it’s just a ‘blip’, or maybe it shows us particular distaste for this offender, or these facts. On the face of it, it is presented as a ‘normal’ homicide – all we get in terms of motive is the usual ‘malicia’. There is no use of ‘treason words’ like proditorie, as we might see in a servant kills master, or W kills H case. There is the idea of William ‘imagining’ Alice’s death, which is something of a link with ‘high’ treason jurisprudence. Other factors which might be relevant are (a) the poisoning and (b) the pregnancy. Poisoning would be singled out as particularly worthy of spectacular punishment in the next century.[ii]  Might this suggest a whisper of a previous connection between treason and poison? As for pregnancy – well, the question of the common law’s attitude to the foetus, and its possible ‘rights’ is a huge topic, which I plan to get into rather more in the coming year, but suffice it to say at this point that, while it was thought worth mentioning by the inquest, the pregnancy is not mentioned in the gaol delivery entry, which, I think, is some indication that it was not considered to be the key to the raised level of offence.

An interesting oddity then, and I will have to work out how to fit it into my ‘spreadsheet of doom’ on petty treason.

GS

17/8/2021

 

[i] We’ve come across this combination before in the lore of spouse-offing: see this post.

[ii] ‘Acte for Poysoning’ (22 Hen. VIII c. 9; SR 3, p. 326).

Image: general theme of love and such … this one is clever but just a little sinister. Or maybe that’s just me …

Photo by Tim Marshall on Unsplash

‘Four seas’ and an island delusion: some thoughts on ‘bastardy’ doctrines

[This was also posted last week on the Centre for Law and History blog]

In August 1850, a jury in Liverpool heard the case of Wright v. Holgate. The jurors’ job was to make a decision about the ‘legitimacy’ of a child, Tom Wright. Was this three-year-old the ‘lawful’ offspring of Thomas Wright, butcher and cattle dealer, and his late wife, Susannah, or was he another man’s son, and thus a ‘bastard’ (specifically, an ‘adulterine bastard’)? The question had arisen during a dispute about property of the Holgates, Susannah’s family, who were cattle dealers of some standing in the Halifax area. If Tom was ‘legitimate’, he had a share; if he was a ‘bastard’, he did not. The jury heard a selection of views on the former spouses from acquaintances and neighbours, brought in to comment on whether they had had the opportunity to have sex at the relevant time, so that Thomas might be Tom’s biological father, and on the character of Susannah. She was portrayed, in the somewhat gossipy testimony,  as ‘no better than she ought to be’, and given to entertaining a variety of men other than her husband at her house. After only a short discussion, the verdict of the twelve male jurors came back: ‘bastard’.[1]

 

As far as the law of the time was concerned, that was the end of Tom Wright’s importance, and, since the relevance of ‘bastardy’ in legal and social terms diminished massively over the course of the twentieth century, this case might well raise in the minds of modern legal scholars that cold dismissive phrase: ‘of no more than antiquarian interest’. Even so, I am going to use this post on our newly-launched blog to suggest that there are, in this case, and in this area, some things which are worth the attention of thoughtful legal scholars of the twenty-first century, as well as those of us who are unashamed of our antiquarian tendencies.

 

‘[B]ound in with the triumphant sea’ [2]

Though the case ended up in a common law court in the port city of Liverpool, much of the action had taken place inland, in Halifax and Rochdale. That being so, my maritime references might seem a bit inappropriate, but there is a justification for getting a bit nautical when considering the law of adulterine bastardy. Accounts of it often mention a particular test for whether or not a husband would be presumed to be the father of the child: had he been ‘within the four seas’ at relevant times for procreation? The phrase was mentioned in the judge’s summing up to the jury in Wright v. Holgate:

‘When a married woman has a child, the presumption is in favour of its legitimacy. Formerly, indeed, the presumption was, that if the husband continued within the four seas, and was alive at the child’s birth, such child could not be a bastard. But now the law allows inquiry…’

 

Here, we see the splendidly named judge, Sir Cresswell Cresswell, taking a moment to contrast the enlightened times in which he and the jurors were living with what he saw as the less perfect doctrine of former times. He felt it important to tell them that the question as to whether a husband was, or was not, ‘within the four seas’ at relevant points was once  something close to being decisive of the legitimacy of a child borne by his wife: if the opportunity of access was shown, using this criterion, no further inquiry as to the probability of there having been sex between the spouses, or the likelihood of somebody other than the husband being the child’s father, would be permitted. As well as the touch of self-satisfaction that things were so very much better in the world of 1850, we may note that there is something of a lack of specificity as to just when ‘formerly’ was. The legal past is an undifferentiated mass, unworthy of closer consideration.

In fact, the law on adulterine bastardy in general, and the place of the ‘four seas’ idea within it, had been far from unchanging over previous centuries. My research in this area has led me to conclude that the question of whether or not the husband was ‘within the four seas’ was not always – perhaps not usually – quite as central as Cresswell’s statement implies. The treatment of the ‘four seas’ phrase, from its first appearances in medieval cases,  shows different levels of emphasis, as well as movement between less and more literal understandings, and between geographical and political interpretations of the ‘seas’ and the land they were taken to enclose.

There were always difficulties with delineating the ‘four seas’. Despite Shakespeare’s best efforts to suggest that it was a ‘precious stone set in the silver sea’, England never has been, an ‘isle’ (‘sceptred’ or otherwise). The inconvenient existence of a land border, rather than a sea, between England and Scotland was never quite overcome, there were complications to the west: was Ireland ‘within’ or ‘without’ the western sea, and what of more distant ‘possessions’ of the English crown? The neat phrase ‘within the four seas’ did not make a very sure foundation for a rule about presumed legitimacy, and it was de-emphasised, and weakened in practical importance, from the eighteenth century onwards.

Its day was long over by 1850, yet it continued to hold the imagination of those discussing this area. Sir Cresswell Cresswell was not alone in his reference to ‘the four seas’; they continued to echo in commentary into the twentieth century. This lingering is probably due, in part, to the power of a well-turned phrase on the mind and memory of common lawyers. An attractive image or phrase may draw attemtion to one part of a more complex area of doctrine, at the expense of inconsistent or qualifying factors which are less amenable to neat encapsulation.[3]

That leads me to ask why ‘within the four seas’ was an attractive concept to common lawyers of the ninetennth and twentieth centuries. I would like to suggest that its appeal lay in its fitting in with broader currents in the self-image of the common law, as a robust, independent, intellectual ‘island’, keeping at bay the ‘foreign’ forces of civil law and canon law. The law on bastardy was marshalled as an example of the distinctive nature of common law, holding back the tide of other ideas. An account of another, more prominent, nineteenth century ‘adulterine bastardy’ case was, for example,  at pains to point out England’s defiance of attempts to introduce ‘foreign’ rules with regard to legitimation:

‘In England the sturdy independence of our ancestors soon checked the encroachments of the priesthood. Neither the civil nor the canon law ever formed part of the law of the land.’[4]

Perhaps it is not too much of a stretch to imagine that there was mutual reinforcement between the idea of the common law as an intellectual island, aspects of its idiosyncratic and precocious centralised development acting somewhat as  ‘a moat defensive to a house, against the envy of less happier lands’, and the idea of the pre-eminence of a test founded upon the assumed existence of England as a discrete and identifiable sea-bordered landmass.

 

Concluding and continuing thoughts: a father for ‘no man’s son’, dried up doctrine and Doggerland

I started with a young child, his future prospects apparently settled by a brief jury discussion and a stark verdict of ‘bastard’. Another phrase which will be familiar to those who have looked at this area, (or, indeed, at nineteenth century literature), would seem to apply: as a bastard, he was filius nullius – no man’s son. If he really was regarded as not having a father, we might have expected his care to be left to the local workhouse. I am cautiously optimistic, however, that entries I have found on the census for 1851 and 1861 show that Thomas Wright, despite having been found to be a ‘cuckolded’ husband, and not to be the father of Tom, did look after the child, providing a home for him in Rochdale, and setting him on his way to receiving at least some education. As with ‘within the four seas’, so with ‘filius nullius’:  too great a focus on a well-turned phrase, taking as literal what was understood to be at least partly metaphorical, could divert us from a more complicated reality.

Like the ‘four seas’ idea itself, much of the law which obtained in the case of Tom Wright has now been swept away, and, if we want to know who is a child’s biological father, then DNA testing can give a virtually conclusive answer. Nevertheless, I think these remnants have much to tell us about lives and thought of the past, about solutions to what seemed to be matters beyond human knowledge, about proof and policy, about how common lawyers of one era thought of and used the law of the even deeper past. Since we know that a vivid maritime image can stay with us, I will end with the one which always comes to my mind when dealing with such material: it is that of Doggerland – an area formerly of considerable human activity, now beneath the sea as a result of climate change. Most of us will never visit it, but it is important to know it is there, both for practical modern purposes, and also for deeper understanding of those who have navigated these spaces before us.

Thank you for your company on this brief voyage.

Gwen Seabourne

August, 2021.

[1] See, e.g., Times  20th July, p. 7 and 20th August 1850, p. 7, Manchester Guardian 21st August 1850, p.6. Halifax Guardian  24th  August 1850, p. 3,  27 July 1850, p. 7; Globe 20th  August 1850, p. 4; Evening Mail 22nd  July 1850, p. 3. Report: ER 175 503; 3 Car. & K 158.

[2] Shakespeare, Richard II, Act II, Scene 1, John of Gaunt.

[3] See, e.g., Andrew Culley and Michael Salter, ‘Why study metaphors?’,  K.C.L.J. 15 (2004), 347-366.

[4] Denis Le Marchant, Report of the Proceedings on the Claim to the Barony of Gardner (London, 1828), xxx.

Images – the watery one is from the port of Liverpool, ft. a dock of the period and some water, which seemed appropriate. The bovine one is a nod and a moo to the trade of the Holgates and Wrights – cattle in the Halifax area).

This material comes from a current project on bastardy, I will be presenting a fuller version as a paper at the Society of Legal Scholars conference in September 2021 (paper all written and recorded in case of emergency – so I did something useful in recent self-isolation!), and some of it will probably feature as part of a chapter I am writing for the ‘Known Unknowns’ project, headed by Dr Andrew Bell and Dr Joanna McCunn

‘Lyvelode’ and imperfect living: a fretful family in the 1450s

I came across an interesting story whilst on one of my ‘bastardy’ trawls today – something in the Close Rolls for March 1459 which has things to say about bastardy but also about other things, including marriage and mental incapacity.[i] Read on if that sounds like your sort of thing …

By his own account (in English!), Edward Sely of Ditton,[ii] husbandman, had got himself into a bit of trouble. He had allowed himself to be drawn into some litigation, fomented by a London mercer, Rauf Marche. Rauf, using Edward’s name, had gone to law, to try and disinherit a relative of Edward’s, one Simon Sely, of London. Rauf had been putting forward the claim that the rightful heir to property once held by Laurence Sely of London, a claim to which passed, indirectly,  to the late John Sely of Chiseldon (JS1),  was Edward, rather than Simon, because, so he said, Edward’s father (JSA) rather than Simon’s father, John Sely of London (JS2), was the legitimate heir of JS1. This, however, was not trewe.

In Edward’s narrative, JS1 had had a rather eventful life. He had fled his original home after having killied a miller ‘by ‘infortunat case’, and lived as a labourer in Cranford, Middlesex. Perhaps concerned that the law would catch up with him, he had used different names during his time in Cranford, and was known as both ‘John Bartholomew’ and ‘John Sely’. He never felt safe enough to claim his rights in the family property either. He did have a family of his own, however, albeit not in the most straightforward way. He had two sons, both called John (thank you so much for that!) – with a woman called Dionise Cranford, sister of a squire. These sons (JSA and JSB) were ‘bastards’, since JS1 and Dionise were not married. They then did get married, and had a son, called (of course) John – this was JS2, eventually to be the father of Simon. So, under the rules about legitimacy and inheritance, JS2 and then Simon were the rightful heirs to JS1, rather than and JSA (and Edward) or JSB.

It is possible that JS2 never really knew about his claim to property formerly belonging to Laurence – the narrative tells of an occasion late in JS1’s life (when he was over 80) when he tried to get the help of JSA’s wife Christian (Edward’s mother) to encourage his ‘childerne’ to ‘laboure to have recovere’ of the ‘lyvelode’ (property) to which he was entitled in London and Bristol, and to get him in contact with JS2, who was his ‘rightful here’. Christian dutifully reported to JS2 what JS1 had said, and the father and son discussed it. JS1 laid upon JS2 the responsibility of suing to recover it, giving him all of the proof he had of his entitlement, and telling him where there was further evidence. He also told JS2 what he wanted to happen to the property, if he recovered it and then JS2 had no issue – he would prefer it to go to JSA and JSB than to ‘any other straunge persones’.

JS2 does seem to have made efforts to recover the property, but it is not clear what the outcome was. What seems to come out of Edward’s narrative, however, is that there were some tensions in the relationships between the three sons of JS1: JS2, JSA and JSB. JS2 needed money to get his lawsuit(s) going, and asked for the help of his ‘bastard’ brothers. JSA – despite his wife’s earlier co-operation with JS1 and JS2 – refused outright. He would neither give nor lend JS2 any money, despite the offer of a share in any winnings. JSB, however, was prepared to make a sacrifice to help out JS2 – he sold two of his plough-oxen and gave JS2 the money.

By 1457, JS2 seems to have died, leaving Simon as the potential heir. At some point before 1459, however, Rauf Marche had entered the picture, seeking out Edward and trying to find (or concoct) a claim on his behalf (searching in ‘frary books’ to sort out JS1’s children). He also had an accomplice/partner, one ‘John Squery late of London, gentleman’. As Edward told it, Rauf and Squery (we are not going with another ‘JS’…) badgered him on different occasions, using a ‘carrot and stick’ approach – he was entitled to property in and around London (nice) and since he didn’t sue to recover it, he was ‘accursed’ (a bit nasty). Rauf, somewhat in the manner of a dodgy PPI mis-selling recovery company – told Edward he couldn’t get the property without Rauf’s help. This, of course, would not come free – thus the deal which Edward suggests he was manoeuvred into: if the claim was successful, Rauf would keep the property until he got back his expenses. Edward claimed that he had not really understood it all – ‘for as moche as he is a lewde man and not lettered’.

All of this does make Edward sound a bit ‘lewde and not lettered’, or at least unwise, since he is, essentially, admitting to having taken part in a dishonest agreement to try and disinherit his relative and the rightful heir to the property in question. Would there be mercy for him? Would there be come-uppance for Rauf? Would Simon get his inheritance? Would anyone remember poor, virtuous and self-sacrificing JSB (now, apparently, dead)? As so often, it’s a big ‘I don’t know’ on all of that. The entry is, however, still interesting in numerous respects, several of which come out in the discussion above, and one which I have kept as a bonus, because it is very interesting, though I am not quite sure what to make of it, and also because it is not entirely necessary to the tale Edward told about property and dubious litigation.

  1. JS1’s lengthy period as a fugitive

We could see this as an indication of the lack of efficacy of the machinery of ‘criminal justice’ at this point – since JS1 clealy lived for decades without being brought to trial for the death of the miller. However, another view is possible – note the lengths he went to, to avoid being tried: distance, name change, keeping his identity and family connections secret from his own sons until he was close to death. All of that suggests a degree of fear that he might be found.

  1. Property matters[iii]

The reason I looked at this was the ‘bastardy’ and inheritance angle – and that is relatively straightforward. The entry confirms contemporary lay understanding that subsequent marriage did not legitimate pre-marital children as far as inheritance to land was concerned. There is interesting material on property, though, in the interactions of JS1 and his family, and Edward and Rauf with regard to the recovery of the property. I note the argument based on a duty to try and recover family property (and the ‘accursed’ position of the person who does not do this). That strikes me as an interesting point of view to consider. Was that just flannel – a way of dressing up self interest? Or was it a real feeling that this was something owed to one’s lineage?

  1. Marriage and mental incapacity

This is the bit I held back, though it comes up quite early in the narrative. Edward’s story about his father’s early days living in Cranford has something more to say about the relationship between JS1 and Dionise, the squire’s sister. According to the story, after the (‘illegitimate’) birth of JSA and JSB, Dionise’s brother, and other people made JS1 marry her. They were, apparently unhappy at the irregular state of this union – ‘their imperfite lyvyng’. JS1 was not at all keen – he was ‘right loth’ to marry Dionise. Why? Because she had some sort of mental incapacity. In the now-jarring language of the times she was (so it is said here) ‘an idiotte’. There is a tiny bit of additional information about this judgment, though, to be honest,  it is not exactly … informative (to me at least). Dionise ‘knewe no worldly reason in so moche that she wolde calle a noble a nubble’. That does seem rather a problem with pronunciation than anything else, but I may well be missing something. Is it perhaps a vague echo of some of the older medieval tests of capacity which involve basic financial acuity – since a ‘noble’ was a unit of currency – or is the problem with a lack of respect for the entitled? I am imagining various mildly racy meanings for ‘nubble’ but haven’t found anything to back them up … Or is that some sort of proverbial expression which would convey a lot more to contemporaries? I do hope somebody better-informed will clear that up for me one day.

Finally, Edward’s choice to include this material about Dionise (his grandmother) is interesting – why would he do that? Perhaps the most obvious implication is that he was trying to justify JS1’s tardiness in getting married to Dionise. It doesn’t really make him look too good, though, to suggest he thought Dionise was fine for sex but not for marriage, does it?

 

GS

7/8/2021

[i] CCR 1454-61, 355-7. There is one other easily accesible (from home – general pandemic issues and also currently under specific order to stay at home as a close contact of an infected person … with that infected person … viral sword of Damocles or what?) record which corroborates parts of this story: it’s from 1457.

[ii] Dinton, Bucks?

[iii] (I am using ‘property’ like a modern lawyer – note that that word is not used once in the entry itself – which is quite interesting in itself, but concepts of property in the medieval common law is probably a bit too big a topic for a quick blog post).

Image – tree, family, complexity and stuff … Photo by Lucas van Oort on Unsplash

Tragedies and miracles: snippets on improbable problems

Battling on with the bastards  – today, a couple of gems from an early modern text which raised an eyebrow and a smile.

The book is William Sheppard, Epitome of All the Common & Statute Laws of This Nation, Now in Force (London, 1656) – quite an ambitious task our William set himself – all of the law – and we have to salute the creative thinking behind some of the entries. Like some modern exam-setters, the author seems to have liked thinking up slightly unusual scenarios, to test to their limit the propositions of law he laid down.

c . 33. includes some thought about a very unfortunate set of circumstances:

(p. 179) ‘If one marry a Woman, and die before night that he lie with his Wife, and 6be have a Childe after, it seems it shall be accounted his Childe, and Legitimate.’

Even more … niche … is the possibility of virgin birth in the discussion at p. 181 of what to do when somebody married ‘a virgin* with childe’ (apparently legitimate too).

It’s good to know these things.

GS

4/8/2021

* No, don’t tell me he is using ;virgin’ in some other non-technical sense. I am sticking with poking fun at early modern lawyers.

Photo by Gabriella Clare Marino on Unsplash

Justice for Maud! A message from the rapid rebuttal unit for possibly maligned medieval women …

This morning, a blog about medieval divorce was drawn to my attention by Twitter. Much of it was interesting – including an account of the matrimonial misadventures of the last Warenne earl of Surrey which I have long used as an example for my Legal History students, when we look at matrimonial law. There was one point that raised the hackles a little, though: the unqualified statement that Maud Neville, wife of William de Cantilupe, had killed her husband in 1375. This is a bit questionable – but note my maturity in not blasting off a comment on Twitter, but instead noting the difficulty here, where, given the obscurity of the location, it is unlikely to cause a heated debate.

The death of Cantilupe has aroused the interest of a number of historians, and Maud was indeed accused of involvement. She was, however, acquitted (KB 27/459 Rex m. 39). While an acquittal clearly does not ‘prove innocence’, and while one can certainly interpret the documents in a way which makes of them a good story, including a bit of illicit sex and a dash of duplicity, and suggests a plausible scenario involving Maud’s guilt, however, it is questionable simply to ignore the fact that she was acquitted and to treat her guilt as obvious. Does it matter, all this time later? Well yes, I think it does.  It is worth asking why the narrative of the adulterous and schemingly murderous wife, which is  suggested by the reconstructions of modern historians, is so much more … seductive … than the evidence of a contemporary acquittal that the latter is given absolutely no weight.

Right. That needed to be said. Now I can get on with what I am supposed to be doing today.

GS

3/8/2021

Photo by Thomas Ashlock on Unsplash

“Whoso[ever] bulleth my cow …”; of beef and ‘bastardy’ in nineteenth-century Halifax

My current obsession is Wright v. Holgate, a case from 1850 (I know – ludicrously up to date …!). It is going to form part of a paper I’m giving at the SLS conference in Durham at the beginning of September. In fact, I have got so into it that I might use it as a sort of framing device for the whole thing.[1] The paper is about fairly doctrinal legal things (though I’d like to think that there are some deeper insights too) but there is certainly more to the case than I will have time to deal with there, so I think it deserves a bit of a blogging as well.

The case, which appears in contemporary newspaper reports and a law report,[2] starts with a will, that of a cattle dealer from Halifax (West Yorks) a certain Jonas Holgate. Let’s call him JH 1, since, as you might guess, what with naming of sons being a bit conservative at this point, there is also another Jonas Holgate who is relevant here, the less than lovely JH 2. Anyway, JH 1 owned some property in the Halifax area. There were several Holgate offspring, including JH 2 and a daughter, Susannah. JH 1’s will left shares of his property to each of the children, and after them, to their lawful offspring (i.e. legitimate children). By 1850, both JH 1 and Susannah were dead, and there were disputes about the property. The whole thing was in Chancery, under the name Patchett v Holgate, and there is more to it than this question, but one thing which did come up for argument was whether Susannah had lawful issue. A Master in Chancery reported in the affirmative: there was a son, Tom Wright, who was born to Susannah whilst she was married to one Thomas Wright (butcher and cattle dealer). So, young Tom would succeed, we might think. Easy. But no.

It was objected that the child was not the lawful issue of Susannah and Thomas, but was in fact a bastard (specifically an ‘adulterine bastard’): another man was the child’s biological father. Bizarre and cruel as it now seems, this question of legitimacy/bastardy was a crucial one at the time: if Tom was legitimate, he would get the property, but if he was a bastard, he would get nothing. It would be good for the other descendants of JH 1 – JH 2 amongst them – if he was found to be a bastard, since that would make their shares in the old man’s property bigger.

Why did the question of illegitimacy arise here, and how was it solved? Well, it is worth rewinding a few years and filling in some key details of the less-than-happy family life of the Holgate-Wright dynasty.  Susannah and Thomas had married in 1836. In 1839, however, they had separated ‘by mutual consent’. Tom was born on 7th March 1847.  At this point, Susannah and Thomas were still legally married: their separation appears to have been private or informal. There were allegations that Susannah had been having sex (or ‘connection’ as they prefer to say) with people other than Thomas during this separation. As the lawyers in the case make clear, however, the fact that other men might be the biological father of a child was not enough for the child to be held a ‘bastard’ at law – if there was some prospect that the husband was in fact the father – i.e., if he had had ‘access’ to Susannah at the relevant time – then the law was supposed to make it hard to ‘bastardise’ the child, deploying a presumption of legitimacy.

Thomas gave an affidavit, swearing that he had in fact had ‘connection’ with Susannah on a number of occasions since 1839. Both had remained within the same area, sometimes both in Halifax, and at other times Thomas went as far as Rochdale (Boobdale as one of the newspaper machine-transcribed accounts has it – foxed by a smudge along the bottom of the row – and I know I shouldn’t chuckle at breast-related slips, but, clearly, still got some growing up to do …) but actually that is not so very far from Halifax, and his cattle-focused work meant that he had to come to the cattle market at Halifax every so often. He stated that, on these occasions, he and Susannah had indulged in bouts of  outdoor connecting. This did not pass the lawyers without objection – one apparently finding Thomas’s claim that he had ‘had  intercourse with Susannah a number of times, in open air, within half a mile of Halifax’ ‘utterly incredible’.[3] There was some wrangling over what sort of evidence could be used to get to the bottom of paternity disputes like this. I will get into that a bit more in the SLS paper, but for now, let’s just say that it was decided to send the dispute about (il)legitimacy over to a common law court for determination, so off it went to Liverpool, to a hearing before Cresswell J (the marvellously named Sir Cresswell Cresswell) and a jury. It now goes under the name of Wright v. Holgate (or Holdgate), or in the English Reports, as Tom Wright (an infant) v. Jonas Holdgate and Others.

After the disputes about whether it was acceptable to hear Thomas Wright’s affidavit about bouts of spontaneous al fresco connecting with Susannah, one might have thought that care would be taken to ensure that only unimpeachably fair and relevant evidence was allowed to reach the jury’s ears. Not at all. There was a great deal of gossip about the deceased Susannah, who, clearly, was not able to defend her own reputation or her son’s interests. She was no better than she ought to be, and violent with it. It is hard to see how violence could be relevant to the issue, as opposed to simply being a bit of additional mud-slinging. More prejudicial than probative, anyone?  Probably not surprisingly, a jury of Victorian men who passed a cetain property qualification, decided to withdraw from her, from Tom and from Thomas the benefit of the doubt. A bastard Tom was found, and that was the end of his participation in the Chancery suit.

There is certainly much here which seems deeply questionable from a modern, liberal, perspective, in any case deploying the concept of ‘bastardy’. I think that there are also relevant criticisms of this particular case within its own time and terms – thus, I think that the interpretation of rules of evidential exclusion were inconsistent, and the summary of the law on bastardy prior to 1850 certainly included inaccuracies. More on all of that in the SLS paper.

The thing I want to finish on here is a little reflection about the role of Thomas Wright, and the fate of Tom Wright. As noted, following the decision in Liverpool, Tom Wright disappeared from the property case. He was a bastard, as far as the law was concerned. The case was focused on his status with regard to his mother’s family, but the finding also implied, as a matter of logic, that he was not the legitimate child of Thomas Wright either. Thomas would have been entirely within his rights to leave the child, and his maintenance to others, such as the local workhouse, or one of Susannah’s alleged ‘paramours’. Apparently he did not do this, however. I checked census returns for 1851 and 1861 and turned up something which struck me as a bit heart-warming. ‘Thomas Wright’ is not, of course, the rarest of names, but when I found a pair of Thomas Wrights living in Rochdale, with a man named Wilkinson (the same surname as of one of our Thomas Wright’s employers, in Rochdale), with young Tom having the right place and year of birth, and Thomas senior and John Wilkinson described as ‘butchers’, I think I can be cautiously optimistic that I have found a less-than-miserable ending for our pair. Thomas the elder has gone by 1861, but 14 year old Tom is now a ‘pupil teacher’, living with John Wilkinson and others, which does seem to indicate a degree of fortune greater than one might have imagined. Thomas Wright comes out of the story rather well, I think. He swooped in after Susannah’s death, when JH 2 had put Tom into the local workhouse, had paid for his care, and clearly had taken him off to try and make a life together in Rochdale. I suppose that, up to 1850, we might have interpreted this as an attempt to keep control of a potential cash-cow (sorry) – as Thomas did involve himself in the litigation surrounding JH 1’s property. After the finding of bastardy, however, any such ungenerous interpretation has to be abandoned. I think it’s hats off to Thomas Wright. Perhaps he was ‘in a low condition of life’, as one newspaper sneered,[4] but he comes across as rather less mean-spirited than others in the tale, and, in particular, the charmless uncle of young Tom, Jonas Holgate 2.

GS

1st August, 2021.

 

 

 

 

[1] It is a bit of a gift that the case has a heavily bovine context, since there is a frequently-trotted-out proverb about legitimacy and marriage in medieval and later sources, ‘Whoso bulleth my cow, the calf is mine’ – grim but memorable, isn’t it? Will be working with that, though have rejected a more elaborate metaphorical structure running that proverb together with another common tag in adulterine bastardy, relating to the husband’s presence ‘within the four seas’. May have looked up ‘sea cows’ at one point, and toyed with the idea of finishing with a picture of a Steller’s sea cow (extinct), but luckily realised that that was too pretentious even for me.

[2] Newpapers, see, e.g., Times  20th July, p. 7 and 20th August 1850, p. 7, Manchester Guardian 21st August 1850, p.6. Halifax Guardian  24th  August 1850, p. 3,  27 July 1850, p. 7; Globe 20th  August 1850, p. 4; Evening Mail 22nd  July 1850, p. 3. Report: ER 175 503; 3 Car. & K 158. (There are also potentially relevant papers in the National Archives: TNA C 14/847/H142, but I am still not able to get at those).

[3] Evening Mail 22nd  July p. 3.

[4] Northern Star and Leeds General Advertiser, 24th  August 1850 p. 8.

Photo by Quaritsch Photography on Unsplash