A birching churchman

Not an earth-shattering legal point in this one, but some nice detail…

In the King’s Bench plea roll for Michaelmas term 1428 (KB27/670 m.76d) , there is a case from Devon, alleging a beating. John Langeley, parson of the church of Combe Martin, was the defendant, accused of a trespass, by Walter Elyot. In the standard wording, John was said to have beaten, hurt and mistreated Walter so that his life was despaired of, against the king’s peace, at [Ashburton]. Walter was represented by his attorney, William Elyot – a relation? and claimed that his damage was £40 – so quite a severe beating was being alleged. Boiling the pleading stages down to essentials, John said that he was not guilty of a trespass, because, long before the point in question, and at that time, he was a grammar master, living there and teaching (docens, erudens, informans – nice rule of 3-ing there) those who came to him to learn. And at the time in question, John found Walter deficient in his knowledge, and all he did was to impose reasonable chastisement and correction with a stick called a Byrchynyerde. Walter disagreed, and the case was kicked on to the next term.

It is interesting how far back the case stretches – the beating was supposed to have been in 1405, so the peace which was breached was that of Henry IV, not Henry VI, who was (technically) on the throne in 1428. So a long-borne grudge, and no idea of limitation of actions, by the sound of it.

I was also quite interested in the naming of the stick (which it is tempting to equate with the more modern birch) and in the admission that the beating was imposed because of a failure in academic standards – not any clear misbehaviour on the part of Walter. The implication is that that would have been acceptable, if true. Clearly important to get your grammar right, in late medieval Devon.

 

GS

29/3/2024

Image: birch, innit? Photo by Thomas Drouault on Unsplash

More mayhem matching

The attempt to ‘stitch together’ the severed members of Year Book and plea roll mayhem cases goes on … (yes, I am pleased with that stretch of an image …) with a possible identification, from the reign of Richard III. It’s not exactly a body in a Leicester car park, but I think it solves a smaller-scale mystery, as far as we ever will.

The Year Book report, YB Mich. 2 Ric. III pl. 38 f.13b, noted here in Seipp,  has ‘a man of Devon’ bringing an appeal with regard to an alleged mayhem, involving the knocking out three of his teeth,[i] and the breaking of his nose, so that he lost his sense of smell. There was some debate as to whether this (presumably the nasal aspect) amounted to mayhem: the rules did seem to suggest that neither nose injury nor loss of the sense of smell would fit those standard definitions of mayhem which tied the offence to loss of fighting capacity. As is frequently the case, we do not get a final outcome in the YB.

Looking at the relevant King’s Bench plea roll, I found a possible contender for a match, though only if we are prepared to assume that there was some change in pleading (or some alteration in the tale of sensory deprivation, as well as the county, between the court-room and the report …

This is in the KB plea roll for 1484 Michaelmas, KB 27/893 m. 69 and 69d (here and here, courtesy of AALT). It is a case from Middlesex rather than Devon, and is an appeal brought by Thomas Gate against Sir Oliver Mannyngham. The allegation was that, on Tuesday 13th February, 1481, a certain William Palmer had lain in wait for Thomas at Westminster, and had assaulted Thomas with a knife called a ‘hanger’, held in his right hand, hitting him in the head (all of his actions, naturally, being done ‘feloniously’).[ii] It was claimed that this blow had damaged the ‘veins and nerves which illuminated the right eye of Thomas’, so that he lost sight in that eye, and that, as a result of the violent blow, one of Thomas’s upper front teeth had also fallen out. Oliver Mannyngham was, so it was said, an accessory to this felonious conduct by Palmer.

Oliver’s defence was that there had actually been an arbitration and a settlement, at Westminster on 13th February 1483, with both Thomas and Oliver submitting to the judgment of Sir William Hastings and Sir William Huse. The (English language) arbitration award is copied, and involves a payment of 100 marks from Oliver to Thomas, for the ‘trespasses, offences and hurts’, and no further trespass action, the money to be paid in two years. So, was Thomas trying to pull a fast one, and get double recovery, making Oliver pay up for mayhem as well as the trespass settlement, or had Oliver not paid the money? There was disagreement as to whether he had paid in an acceptable way, and the case was kicked on into the next term.

It is not impossible that that case had some influence on the YB report, even if it is not ‘the one’, as it had a sensory deprivation idea, though admittedly not the sense of smell.[iii] Probably the better match, though, is one which can be seen in the next KB plea roll, KB 27/894 m. 36, here.

This one is a Devon case, and we see Edward Rudmore bringing his appeal of mayhem against John Bell, lately of Parkham, Devon, clerk, Baldwin Seller of the same, husbandman, and six others, husbandmen, a yeoman and a ‘gentleman’ (John Colebroke, lately of Chittlehampton, Devon, who might be more likely to be traceable than the ‘lesser’ folk). The allegation was that they had lain in wait for Edward at Parkham on 1st June 1483, at about 10 a.m., and that John Colebroke had hit him across the face with a sword (worth 2s, all, as ever, ‘feloniously’). Six teeth (front ones) were said to have fallen from his mouth from the violence of the blow. The ‘across the face’ stroke in the story, as well as the Devon location, and the teeth (if we skate over the difference in number), would seem to make the identification stronger. And, though there is no mention at all of the nose/smell issue, surely a good whack across the face with a sword would be likely to strike the nose.  The YB report also mentions accessory issues, which are present here – the others, apart from the sword-swinging ‘gentleman’ were present, encouraging and helping etc., in the plea roll account.

The likeliest reconstruction would seem to be that the nose/smell issue was severed (sorry!) from the rest of the appeal at some point during the pleading game. Since six front teeth would certainly work for a mayhem, on the classic definitions, the other part was not really needed. So, reasonably confident of the identification, and things to think about, both with the characters involved, and also with what to make of the attempt to include the olfactory aspect in the appeal. One for the mayhem book.

 

GS

26/3/2024

[i] Despite the translation in Seipp, these are ‘anterior’ teeth.

[ii] The site of the blow brings one of those interesting insights into ‘educated lay’ knowledge of anatomy – with a translation of anticipem as ‘the fore part of the hed’.

[iii] Certainly some of the trespass/mayhem language and the arbitration procedure will be worth some further excavation.

Criminal Chaplains in Yorkist Yorkshire?

A very nasty case from the late 15th C here, but one which gives a few half-clues to medieval English attitudes to pregnancy and the status of the foetus, an area which has interested me for a long time,[i] and which has received attention in recent years, as a result of the appeal to medieval law by US Supreme Court justices, in justification of their stance on abortion.

The case is to be found on the King’s Bench roll for Michaelmas term 1484,[ii] so during the reign of Richard II, but concerning events from the reign of his brother, Edward IV. West Yorkshire jurors had presented, in 1483, that one William Turnour, lately of Kirkby Wharfe, Yorks, chaplain, a.k.a. William Neweland of Kirkby Wharfe, chaplain, and John Atkynson of Tadcaster, Yorks, chaplain, on Friday 27th September, 1482, came with force and arms and entered the house, in Kirkby Wharfe, of Katherine Raner, widow of William Raner, and there beat Katherine and William Rayner’s daughter, Cecilia, who was the wife of William Wright of Kirkby. Cecilia was pregnant (prignant, gravida). William Turnour beat and mistreated her, and feloniously killed and murdered her. Cecilia’s body was taken away and buried in the middle of the night in the cemetery at Kirkby Wharfe, without the coroner’s view, a piece of misconduct said to be against the king’s crown and dignity. There is also material on the fate of the foetus, though it is not entirely clear what the order of events was – did Cecilia give birth and then die after a while, or did all of this happen closely together? – in any case, the record mentions the child as Cecilia’s (puerum eiusdem Cecilie) with which she was pregnant at that time (cum quo adtunc gravida erat), and that it was separated from its mother, one way or another, and then taken away by Atkynson to an unknown place. It is not made clear whether or not the child was born alive. We get the neutral ‘after the child was brought into the world from the womb of the said Cecilia’ (postquam ab utero predicte Cecilie in hunc mundum product’ fuit …). It sounds to me as if this means that she gave birth before dying, but the slightly evasive phrasing could mean removal from Cecilia’s womb, as opposed to her pushing the baby out. Given that we are not told whether or not there was a live birth, it is not possible to know whether this report should be taken as one in which (a) both mother and foetus were killed as a direct result of William Turnour’s beating, but the felony and murder words are attached only to the killing of the mother (in some contrast to the case I mentioned here) or, (b) a live child was born, and, whatever became of it – and, frankly, its prospects do not look to have been too good, in the hands of these apparently malicious chaplains – its fate could not have been considered part of the felony being presented here. In either case, we have an indication of the (all male) jurors’ knowledge of, and interest in, the pregnancy and the foetus/baby, but on their perception of its value or status, it is more equivocal. There are unanswerable questions, too, about why such an attack might have taken place – part of wider disturbances, or something more personal? Where was William Wright in all of this – it does not sound as if Cecilia was a widow, but there is none of the half-expected involvement of her husband in pursuit of the offenders.

The usual tantalising uncertainties, then, and also the almost inevitable postscript – the allegedly murderous William Turnour (or whatever his name was) walked,  as a result of a rather general pardon from Richard III, and a promise of future good behaviour. So that was all right then.

 

23/3/2024

GS

 

[i] Another post on this area can be seen here.

[ii] KB 27/893 Rex m.4, which you can see here, courtesy of AALT.

Equitable joint tenancy, I presume?

(Modern Land Law post alert. Some readers may be disturbed by graphic scenes of real property disputes).

There may be some points of interest for Land Law students in a Court of Appeal judgment handed down last month: in particular, with regard to co-owned real property beyond the ‘family home’ context.[i]

Williams v Williams [2024] EWCA Civ 42 was about rights in Cefn Coed Farm, near Neath. It was uncontroversial that this had been held at law by a married couple and one of their sons: Lloyd Williams (father, now dead); Catherine Williams (mother); Lloyd Dorian Williams – who were registered as proprietors – as joint tenants. The dispute was about the structure of their holding in equity. There was no express declaration as to how the equitable interest should be held, so were they joint tenants or tenants in common? This mattered, because they needed to know whether or not survivorship had occurred (given that Lloyd Williams was dead).

Given how much attention has been garnered by ‘the big cases’ on co-ownership, Stack v Dowden and [2007] UKHL 17, [2007] 2 AC 432 and Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776, students may be ‘programmed’ to jump in favour of joint tenancy in equity here. Certainly, there are suggestions there that this should be the answer in ‘quasi-matrimonial home’ cases.

Here, though, the judge at first instance went for TICs in equity, and the appeal against this failed. Why? Nugee LJ gave the leading judgment (and the other two judges agreed – to the relief of law students everywhere, who are also cheering the relatively short judgment: this is no Guest v Guest).

Nugee considered just what was said in this context in Stack and Jones. There was Lady Hale’s statement (Stack, 58) that:

“at least in the domestic consumer context, a conveyance into joint names indicates both legal and beneficial joint tenancy, unless and until the contrary is proved.”

And the approach from a slightly different direction, in Jones, in which Hale and Walker started from the resulting trust v. constructive trust analysis debate. This is not the same as JT v TIC in equity, but the focus on contribution found in the RT analysis does have an affinity with one justification for equity’s preference for a TIC – that unequal contributions make a JT undesirable, or not what we can imagine parties would generally intend.

One strand of argument in Williams was about the applicability of a presumption of equitable joint tenancy, when there was a legal JT, and no express declaration of equitable interests, to a non-‘domestic couple’ context. Nugee noted that some of Lady Hale’s statements did seem to take the presumption of equitable JT beyond the domestic context, but thought that there was a significant difference.

It is useful to be reminded, at 53., that the JT/TIC issue is not simply a matter of intoning ‘equity follows the law’ – there are, as Walker and Hale stated in Jones [19], other reasons for the strong preference for a JT in equity in the ‘couple home’ context. In their words,

‘a challenge to the presumption of beneficial joint tenancy is not to be lightly embarked on’,

because

‘If a couple in an intimate relationship (whether married or unmarried) decide to buy a house or flat in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise.”

The fact that this justification is tied to that particular context means that it needs re-examination for fact situations outside that type of domestic setting and intimate partnership. Here, although Cefn Coed was a place to live, it was very much a farming business. Nugee noted [55] that

‘However close they were as a family, the relationship between Dorian and his parents cannot be equated to that between a married or unmarried couple.’

They were business partners, making decisions, including this property purchase, for commercial reasons. This, then made the trial judge’s decision to prefer the old equitable idea that, in business cases, co-owners don’t intend survivorship, and thus that they will hold as TICs in equity. This is reconciled with the Stack/Jones statements by saying [63] that there is some presumption that the starting point, even in commercially-inflected cases is JTs in equity, but it is not too hard to make out a case for TIC, in those cases (unlike the situation in couple-home cases):

‘Where such property is acquired for business purposes, the Court will very readily assume that survivorship, and hence joint tenancy, was not intended.’

A strong point here is that, while putting property in joint names

‘no doubt … raise[s] a powerful inference that the legal owners were intended to be beneficially interested in the property’’, 

the next step, the presumption that this means the equitable interest is held as a JT, is weaker, because the only available structure for a legal title is JT, so no real choice has been made here. ‘In those circumstances, the inference that they thereby intended a beneficial joint tenancy with its right of survivorship rather than a tenancy in common seems to me likely to be in many contexts a much weaker one, and in the case of land bought for business purposes one that is easily and normally displaced by the presumption that such property is intended to be held in common.’

Also worth noting, for students, is the useful explanation, at 49, of why it is not always going to be necessary, in answering a problem question involving co-ownership, to discuss the structural JT/TIC/severance issues:

…[the right of survivorship] is not usually an issue in most cases of the Stack v Dowden type. Most such disputes are disputes between two co-owners who are still alive and whose relationship has broken down, and in such circumstances if there is any possibility of a beneficial joint tenancy one or other of the parties is very likely to be advised to serve a notice to sever any joint tenancy that exists, something that can be done very simply. The dispute will almost always therefore not be about whether they own the property equally as joint tenants or equally as tenants in common, but whether their shares are equal or not.

All in all, a case which does a bit of clarifying of this area, up to a point, and which might be finding a place on my reading list next year.

 

GS

11/3/2024

 

Image: some mud. I think it is a safe bet that there would be some mud on the farm in question. Photo by Matt Seymour on Unsplash

[i] No doubt there will be some more considered discussions of this. For early comments, see, e.g., this, which also considers the constructive trust v. resulting trust issue.

Recent reads, March 2024

When I started this blog, I meant to use it to note down the latest publications in legal history, rather than being all ‘me, me, me and my work’ – didn’t last, did it? Well, it feels like time to go back to that original plan a little, and, with that in mind, here is a quick note of an article in the recently published American Journal of Legal History (53:4, December 2023) which interested/filled in some gaps for me.

This one: Charles S Bullock, The Abolition of the Right to Trial by Jury in Civil Cases in England, American Journal of Legal History, Volume 63, Issue 4, December 2023, Pages 281–299,  covers that period I always think of as rather ‘betwixt and between’ for legal history: the late 19th and early 20th C. Having learned in a law school atmosphere in which Land Law textbooks might well begin a chapter, ‘Now, since 1925 ….’ as if that was recent, and in the territory of ‘just law’ rather than legal history, it was never quite ‘other’ enough to be historicised. The owl of Minerva had not flown etc. Those wings have now flapped, however, and it is high time that more attention was paid to this era. I was glad, therefore, to see it.

I knew, of course, that there had been a great decline in civil jury availability, and there have been some other accounts, often focusing on the 19th C, but I found this a useful overall view of a classic English common law system process of change (don’t actually abolish things outright, just discourage incrementally and provide the circumstances for them to wither away …).

It gives some interesting insights into the attitudes of those seeking and opposing abolition/reduction of the use of juries in this context. There is certainly a fair amount of snotty putting down of the ‘lower orders’ to be seen in the comments of the legal profession’s views of ‘lay’ participation. And there is some material here on the way in which the struggle for women’s full participation in civil society influenced views on civil juries (see pp. 295-6). It is, of course, an essential part of thinking about juries and their history to factor in their exclusive nature. Though sometimes condemned for including too great a proportion of the population in difficult, technical, proceedings which were far too hard for their little heads to cope with, it does need to be remembered (and, depressingly often, is not) that the jury was, for most of its existence, an exclusively male body, with added ‘Keep Out’ notices for other undesirables. On the subject of women and the civil jury, we should note that the history was very short, with women admitted only in the last few years of the civil jury as anything other than an occasional oddity.

(Two more, slightly disconnected comments:

  • See the side-splitting example of legal humour in footnote 39. For those of us who like a weak legal joke, worth a look.
  • Interesting example of the perils of the sweeping statement without evidence – at p. 295, the author notes a mistake by Roscoe Pound, dean of Harvard Law School, published by the Law Times (which, surely should have known better?) in 1928. Pound had announced the near-extinction in England of the civil jury, ‘despite the fact that upwards of 35 per cent of civil trials in the King’s Bench were by jury in that year’. A clear warning that academics should do their homework, and that periodicals should not be over-awed by ‘great men’?)

GS

International Women’s Day, 8/3/2024

 

Also in the latest AJLH is one I will use in future teaching on the history of marriage and divorce, and particularly the changes in the mid-19th century: Penelope Russell, ‘Brave New World? Care and Custody of Children at the Court for Divorce and Matrimonial Causes in Mid-Victorian England’, American Journal of Legal History, Volume 63, Issue 4, December 2023, Pages 300–322.

 

I confess that child custody has often been a bit of an afterthought in the section of my Legal History unit on marriage and divorce, mostly for reasons of time, but also for reasons of my own period of research interest – medieval ‘child custody’ disputes were rather different in nature, and, obviously, in a world without divorce as we know it, there was nothing analogous to the legal regime which was being developed in the 19th C. Anyway, this article makes it clear that child custody was a bit of an afterthought in the Divorce and Matrimonial Causes Act 1857  as well – so I am no worse than a Victorian legislator …

 

It gives the findings of a well-thought-out study of the working of the very broadly drafted child custody order powers of the new Divorce Court, focusing on the first two years of the court’s operation, and tracing what actually happened to the families, and children, involved in cases from that period. It was particularly useful to highlight the various factors which told against women wanting to, or attempting to, gain custody of their children, from economic matters, to the court strategies of barristers and the self-imposed restrictions of the new jurisdiction’s judges (especially the ‘innocence rule’, and general lack of emphasis upon the interests of the child.

 

A point which seems to me to be of interest beyond this particular subject matter is the issue of age. Russell notes at 305 that the relevant provision (s.35) did not give a maximum age for orders of custody, but that 14 seems to have been a limit in practice, in the period examined. It is something to feed into the lively debates about majority for various purposes, which were going on in the 19th century.

 

Also of interest (and, I confess, unknown to me before reading this) is the point made at p. 314, that there was not, initially, a way of varying a custody order once made, so that there was some fear that circumstances might change, but custody would remain where it was awarded, once and for all. This had to be amended in 1859, but it is a strong indication of this aspect of the legislation being a bit of an afterthought.

 

Finally, and living down to my usual standards of triviality, I will note another new nugget – the article  introduced me to the intriguing occupational description of a woman as a  ‘professional rubber (p. 311)’. Slightly disappointingly, It’s nothing to do with memorial brasses, nor massage (my two best guesses).

 

GS

9/3/2024

Another ‘recent read’ this month, which was noted on Twitter/X and which I have just read for some inspiration for my last, ‘round-up and suggestions for further reflection’ lecture for my undergraduate Legal History unit was this ‘forthcoming’ piece:

Michael L. Smith, ‘History as Precedent: Common Law Reasoning in Historical Investigation’, University of Pennsylvania Journal of Constitutional Law 27 (Forthcoming 2025) SSRN-id4751819.pdf

The context is the US Supreme Court’s use of history, in its constitutional jurisprudence. Now, clearly, US constitutional cases have particular reasons and needs to consider history which are not present in quite the same way in the English/Welsh context, and I certainly have absolutely no claim to expertise in US constitutional law, but, even so, it seemed worth a look, first, because I am always happy to broaden my horizons, and, secondly, because I thought it would be interesting to see how these US discussions might possibly have some application or relevance to the problems I have seen in the ways in which modern E/W lawyers use older authorities.

The main point is a consideration of the questionable ways in which the US Supreme Court uses history, whether it favours an ‘originalist’ or ‘traditionalist’ stance on constitutional interpretation, and, in particular, a nice contrast is drawn between the relatively predictable and rule-based use of precedent and the much less confined and less consistent use of historical evidence. Those of us of a medievalist bent will have followed the dubious use of medieval sources and ‘history’ in the Dobbs abortion case, but this puts that in a useful, wider context. The case studies chosen (closest attention being paid to gun law and abortion cases) show the playing down of evidence contrary to the favoured result, and the narrowing of questions to be investigated historically, when that suits a particular outcome.

A particularly nice contrast is drawn at p. 25, between the handling of historical evidence in, on the one hand, Dobbs v. Jackson Women’s Health Organization 597 U.S. 215, 242 (2022) and, on the other hand, the gun control case of New York State Rifle & Pistol. Assoc., Inc. v. Bruen, 597 U.S. 1, 40-41 (2022), noting that, in Bruen ‘six Justices had signed a majority opinion questioning the relevance of medieval-era restrictions to determining the scope of Second Amendment protections’, while, a day later, in Dobbs, ‘Five of those Justices then signed onto the Dobbs majority opinion, which began its historical analysis of the scope of abortion rights and restrictions with “[t]he ‘eminent common-law authorities (Blackstone, Coke, Hale and the like),’” along with other treatises dating back as far as the 13th century’. If a non-US-expert’s view is of any account, that seems rather a good point.

Not all of it is directly applicable to the England/Wales context, but it is certainly true here as well that ‘most legal actors … lack the expertise, resources, and incentives necessary for rigorous historical analysis, increasing the probability of mistaken conclusions’. This is something which has been obvious from my work in Land Law in particular, and is not confined to history, seen as something apart from the law, but also to the use of older legal cases themselves (I have a project on this ‘on the go’ at the moment, if I might just trail that!).

How to improve things? Smith suggests, for the US problem,  either the development of rules for the use of historical evidence ‘including rules for sufficiency of evidence, relevance, and persuasive value’, or else ‘taking history seriously’ and coming up with ways to foster ‘more rigorous analysis, using discovery mechanisms, expert testimony [perhaps court-appointed experts – he suggests later] and cross-examination, and a recognition of complexity’. In some ways, coming up with some sort of check on the proper use and interpretation of older legal materials in the E/W context would be simpler – we could go with expert testimony of some sort, or perhaps just train judges in how to handle these things rather better. What would be the outcome of taking history, and skills around the use of older legal sources, more seriously in this way? Well, my prediction would be that a lot of the expertise would point lawyers away from the nice crisp yes/no, black/white answer they probably want, and would introduce qualification and nuance which they might find tiresome. It might, however, at least be a useful check on over-claims for older materials, as support for modern positions. As Smith notes at 58, ‘Taking history seriously requires a frank recognition of historical complexity, institutional limitations, and the limitations of historical fact for modern disputes’. The same is true for the use of older law reports in the English/Welsh context.

And may I just put out there the fact that I am available, should a National Legal History Service be set up to deal with all of this. Could be a vote-winner, surely, in the next UK elections ….

 

GS

17/3/2024

 

Image: Photo by Sincerely Media on Unsplash – ‘reading’, innit?

To all inTENTS …. (oh, come on – that’s a good one!)

Could this be the ‘Supreme Court TV’ event of 2024 (or 2025 … these things take time!)? Darwall v Dartmoor National Park Authority, the big Dartmoor ‘wild camping’ case has not quite gone away: leave to appeal to the Supreme Court has been granted. Get the snacks ordered!

If you need a bit of a memory-refresh, this was the case about camping on Dartmoor, and whether access on foot or horseback for the purposes of outdoor recreation also meant that one could do a spot of wild camping. (And, if you need help with the terminology, Underhill LJ informed us, in the CA, that ‘wild camping is …a modish phrase which I understand to mean camping overnight in a place which is not a dedicated campsite.’ Not often that I could be described as ‘modish’, but there we are.

Anyway, the case is obviously a big deal, in terms of the limits on landowners’ powers to exclude, and people’s rights of access to the countryside and nature (albeit one which was in fact argued on the less-inspiring ground of statutory construction/interpretation, and not the big principles).

In between the Court of Appeal decision (a win for those wanting wild camping to be allowed) and the present, we have had some fluctuation in the political will to change the law on this more generally: Labour had been in favour of expanding access in England and Wales in this way, but has now retreated on it, concerned, presumably, about possible impact upon electoral chances, and not wanting to appear too radical.

I called the CA decision incorrectly, so am wary of trying with this one… we shall see. It has all become very much tied up with questions about what information about the background of statutes can be brought into consideration, and how to deal with provisions which cut down the rights of the landowner.

I see that the Darwalls’ top barrister remains the same – will we see further poetic allusions? Will there be judicial sniffing at ‘modish’ terminology, and further debates as to whether a person in a tent is indoors or outdoors …?

And who will be protesting at the end of this final round of pheasant v. peasant?

GS

7/3/2024

 

Image: a tent with an open door – indoors, outdoors … you decide!

Photo by Samuel Girven on Unsplash

Listening to legal history: the broadcasting endeavours of T.F.T. Plucknett

For reasons connected to the British Legal History Conference, I recently had reason to look into the life of noted early 20th century legal historian Theodore F.T. Plucknett. Plucknett was born in Bristol, and that seemed like something we should include on the historical/legal historical highlights map which is in preparation for the big event. I had the idea that he had been born in Clifton (the posh part of Bristol), though that was incorrect, and the truth seems to be that he was in fact born in the St Paul’s area. More on that at some other time, perhaps, but enquiries turned up another interesting aspect of Plucknett’s career, which I thought worth noting: as well as his academic work, Plucknett also did a bit of public engagement, making broadcasts to the general public on legal historical matters.

As was pointed out to me on Twitter (yes, I know it now has a silly wannabe macho/wannabe porny official name, but nobody can make me use it),[i] the text of radio lectures would often be published in The Listener after the broadcast. Actually, I should have thought of that, as, in much younger years, my father was a Listener subscriber, and although my periodical of choice was, at that time, The Beano, I was aware of this rather serious radio and TV-focused magazine.

So … a quick search in the online Listener archive came up trumps, with the text of lectures by Plucknett on legal history topics, from the 1940s, ‘50s and ‘60s. Especially worth a look are the talks from 1949: ‘Law in the Middle Ages’, ‘The Spectacle of the Law’, ‘Finding the facts’ and ‘Finding the Law’ (Listener, 24th March 1949 p 483; 24th November, 1949, p. 21; 1st December, 1949, p. 25; 8th December, 1949, p. 22.

A comment on some of Plucknett’s broadcasts in the 1950s is a little inconsistent, describing them as both ‘dry, strictly matter-of-fact’ but also ‘extremely interesting’,[ii] but the fact he was asked back does suggest that some people found them interesting. I was rather tickled by the fact that the talks sometimes appeared in a very varied programme, including light and serious music, drama and comedy. Odd to think of people listening to ‘The Frogmen’ or ‘Ray’s a laugh!’ (weak pun award) and then settling down for a bit of medieval legal history.

Interesting, too, to think about why Plucknett wanted to speak to a broader audience, and how this all went down with his Selden Society and other academic colleagues. I do not get the impression (though I may be wrong) that public broadcasts on legal history were undertaken by other legal historical luminaries of the time. Perhaps as an early holder of a specific chair in legal history, he was something of a ‘voice of legal history’ for the general public.[iii]

All a little insubstantial, but, as a bit of a listener to historical programmes myself (realising that the apple does not fall too far from the tree …) and a legal historian, it is quite interesting to me to see this early attempt at connecting the public with academic work on legal history. I am not sure it would be my particular forte, though I can think of quite a few colleagues who would put on a very good and interesting turn for a radio broadcast on their work – so if there are any radio producers reading this …  And what about bringing back ‘Ray’s a Laugh’ and/or ‘The Frogmen’ too?

 

GS

3/3/2024

[i] I record my thanks to Gary Phillips for the tip.

[ii] Listener, 22nd  November, 1956, p 34.

[iii] I have had occasion to comment less favourably on another of his forays into what might have been thought ‘popular’, or slightly humorous, content.

Images: Times, 22nd November, 1949 p 7, and Photo by Samuel Regan-Asante on Unsplash

A princess, a tower and storming the great citadel of legal history

Something for International Women’s Day 2024

In 1241, a woman of royal descent died in Bristol castle. She was Eleanor of Brittany, granddaughter of one king of England (Henry II), niece of two more (Richard ‘the Lionheart’ and ‘Bad’ King John), and first cousin of the man on the throne at that point (Henry III), not to mention daughter of a duke and duchess of Brittany. She had spent a lot of her last two decades in Bristol, a city on the rise, with an imposing castle, but Eleanor’s prolonged stay here was very much not her own choice.

 

She had been born between 1182 and 1184, and, with her pedigree, would have expected a big dynastic marriage, life at one of the great courts of Europe, a position of respect as wife and mother, frequent travel, extensive lands, and a life of some influence. None of this happened: she ended up a prisoner of the kings of England for much of her life, a situation which only ended with her death in captivity in Bristol.

 

Eleanor had not, as far as we know, committed any offence which might justify this unusual treatment, however: she was confined not for what she had done, but for who she was. After the death of her uncle Richard, it might have been argued that the right to the throne of John, and his line, was weaker than that of the children of his older brother, Eleanor’s dead father, Geoffrey. It was in the interests of John and his son Henry III to keep her unmarried and under control, and that is what they did.

 

Eleanor’s story may strike us as sad, or cruel. Or we may not be moved by her difficulties and disappointments, when we compare them to the sharper suffering of many of her contemporaries: she did, after all, have food to eat and clothes to wear, the occasional royal gift, and lived out a fairly long life. Whatever may be our emotional response, I think that Eleanor’s treatment tells us some important things about women, law and legal history.

 

Eleanor’s lifetime was a period often associated with important early steps towards legal guarantees of ‘civil liberties’, with moves in Magna Carta (1215) to set down limits upon royal power to imprison without trial. As its most famous clause states,

‘No free man is to be arrested, or imprisoned … except by the lawful judgment of his peers or by the law of the land.’

There is room for debate as to just who was a ‘free man’, and whether ‘man’ was thought to include ‘woman’, but whatever the technicalities of language and gender, it is very clear that this rule – confirmed by John’s son Henry III – did not help her. We could interpret that as meaning that successive kings overrode the law, but we do not need to: the truth is that ‘the law of the land’ gave male kin wide and vaguely-drawn rights over their female relations, so that they could plausibly portray their custody of Eleanor as legitimate. My point here is not that women had a raw deal in the medieval period (certainly there were rules which put them in an inferior position in many ways, though we might argue about the situation of different disadvantaged groups, and note the fact that Eleanor’s brother, Arthur, ended up dead rather than imprisoned). What I want to stress is that, when we discuss the development of law, we need to be aware that there is not just one story to tell, not just one time-line to set out: the law’s impact on men and women might be very different, even when that is not spelled out. It is extraordinary how often this fact has been ignored.

 

Legal history, as it developed in the English law school, has been slow to move away from an assumption that the concerns of (free, white) men of the past should shape our study and our time-line of legal development. It is now doing so, and this summer’s British Legal History Conference in Bristol will contribute to the broadening of perspective, with presenters considering our theme, ‘Insiders and Outsiders in the History of Law’, with the ‘outsiders’ including, but by no means limited to, women.

 

Another trait of ‘classical’, or ‘law school’ legal history has been its sometimes odd, stereotypically masculine, warlike imagery, with accounts of ‘triumphs’ of particular types of legal action (and, in one case, memorably, one sort of legal action ‘storming the great citadel’[i] of another). I can never help being struck by the contrast between this fondness for military metaphor in discussion of legal procedure and the frequent lack of interest in Eleanor of Brittany, confined in her more solid, and emphatically non-stormed, castle.

 

GS

29/2/2024

 

This post is based upon work undertaken for a biographical article on Eleanor of BrittanyImprisoning Medieval Women and Women in the Medieval Common Law

 

[i] J.H. Baker, Introduction to English Legal History, fifth edition (Oxford, 2019), 363.

Pinning down a promising prioress, or, the mundane business of divine service

Who doesn’t like a nice bit of Year Book/Plea Roll matching? Today’s ‘snap!’ moment comes to you courtesy of the year 1293 and the Common Bench/Court of Common Pleas. It is one which came up in my searches connected with The Prior’s Case (1369) and the interesting borderland between ‘property’ (or ‘feudal’ rights) and covenant/contract. And there are nuns.

YB Trin 21 Edw. 1 pl. 16 (Seipp 1293.217rs) is the case found in the plea roll CP 40/101 m. 32.[i]

It’s a case from Sussex. William de St Georges sued the prioress of Esseburn (Easebourne) to try and enforce their covenant, from ten years previously, made at Todham,[ii] under which she and the nuns of Easebourne were obliged to find suitable chaplains to celebrate divine services in the chapel at Todham before William and his wife and their heirs (number of times per week varying, depending on whether the couple were or were not present), for ever. William said that he had had these services for a short period of time, but after that, the Prioress had refused to do them when asked. There was, in the Year Book, some discussion of whether William had made some errors in his pleading – he had mentioned that he had received the services (been ‘seised of’ them), which sounds closer to the cessavit de cantaria type of action, based on the stopping of ‘feudal’ services previously performed, as opposed to covenant:  it does not just rely on ‘you made a covenant that you would provide this service, and you didn’t’. The Year Book suggests that this manner of pleading was somewhat foolish.

The Prioress – or her legal representative – can’t deny that there was a covenant, as it was all formalised nicely, and so settles on a plea of ‘yes we are obliged to find the chaplains but you were supposed to provide ecclesiastical kit – chalice, vestments, missal –  and you didn’t’. This was the issue that went to a jury, and the plea roll tells us that the jury found that William had done his duty with regard to the ecclesiastical kit. The final outcome was that the prioress had to perform her covenanted obligations, and William got damages for the non-performance.

Not having looked much at churchy aspects of law in the past, it did strike me as interesting to see litigation in secular courts about the provision of divine services, but I suppose that is anachronistic, seeing these things as clearly separate. Not having somebody to sing mass would, presumably, have involved William in expense, in terms of hiring a substitute. I presume that is what the damages represented, rather than (and admit it, this would have been cooler) a calculation of the amount of spiritual damage done to him and his family by missing out on mass.

It is clear that this was not ‘just’ a contract case: there were land dealings and warranty involved in the William-Priory relationship as well. Teasing out ‘property’ and ‘contractual’ aspects of these cases is not straightforward, and it does look to me as if a not dissimilar deal and relationship lay behind The Prior’s Case, rather complicating it in terms of it really being comparable to modern ‘horizontal’ freehold covenants contexts, or really standing for the legal principles assigned to it. But more of that another time.

GS

20/02/2024

 

 

[i] (Even nicer: there is another, connected piece of evidence – a count in Novae Narrationes. See 80 Selden Soc p. 103).

NB the WAALT shows that this was still problematic in 1309: KB 27/195 m. 25d.

[ii] Tuddenham, Suffolk seems closest to this name, but not geographically! Todham seems to be the correct reading: see this account.

Shave a prayer? A chaplain’s excuse

OK, this one is not going to advance the cause of knowledge very much, but I just like it: it’s one of those little passages that somehow seem to bring medieval people off the page for me.

It comes in an entry on the King’s Bench plea roll for Easter term 1476 (KB 27/859 m. 23d).  This notes that a certain John Stokys had brought an action (by bill) against William Yorke, lately of Southwark, chaplain, alleging trespass (to land and goods). Specifically, John said that William had, on 3rd September 1476, broken into John’s home in Southwark, and made off with household goods (including linen, candlesticks, and some fancy rosary beads) worth 20 marks, plus some money – £7 6s 8d.

It’s William’s defence that interested me: rather than just denying it all, as most defendants are reported to have done, he had a more specific story. The place he was alleged to have broken into was, he said a communis shopa barbitonsoris – so he was not burgling, but going to the barber’s (and so one of the allegations in John’s bill was untrue, since anybody was allowed to be there – it was a ‘common’ shop, i.e. one open to all). William claimed that he was there to get his beard shaved. We will note that he did not specifically say that he did not take the loot, though pleading rules meant he did not have to.

Presumably William thought the shaving story was plausible. The jury brought in to try the case, however, disagreed, finding him guilty, and liable to pay John £15 6s 8d, probably leaving him unable to afford professional attention to his facial hair for quite some time, if he complied.

So, a bit of fluff (not to mention stubble) from the famously dodgy area of Southwark, and, of course, questions – as to truth, the character of medieval chaplains, and the security issues involved in running a medieval barbering business.

GS

11/2/2024

 

Image (yes, I know: anachronistic …) photo by Tim Mossholder on Unsplash