Tag Archives: bastard

‘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

Legitimate distraction

In today’s between-marking interludes, doing a case-search for something I am writing on ‘bastardy’. This keeps turning up 19th C cases with Bastard as a surname (Polden v Bastard; Nicolls v. Bastard…). Would have thought that would be a pretty mortifying surname in the days of Dickens and Wilkie Collins, with all of their illegitimacy-related plots, and all of the very real legal implications and social stigma of ‘bastardy’. Seems odd that it was not jettisoned. (Is it still with us? Can’t say I have ever been introduced to a Mr Bastard, Ms Bastard or Professor Bastard).

(Top prize for the most Blackaddery sounding ones, though, must go to some earlier examples – so we have Bastard, Administrator of Bastard, who was Executor of Bastard v [disappointingly not Bastard, but] Jutsham 94 E.R. 996 1 Jan 1738  Barnes 444 | [1738], and the simple but classic Bastard v. Bastard 89 ER 807| (1690) 2 Show. K.B. 81.)

GS

6/5/2021

Image: Wikimedia Commons.

(PS Fans of the author, Mr Collins, ought to have an information site about him called Wilkiepedia, oughtn’t they? Maybe they do.)

From Wikipedia.

Loss of entitlement

Continuing to research the weird and wonderful world of ‘adulterine bastardy’, including some interesting claims for very long pregnancies, and some questionable treatment of women, as witnesses and as possible ‘adulteresses’, I have been reminded of the recent run-out of this area of law, in relation to the holding of peerages. The Pringle case,  In the matter of the Baronetcy of Pringle of Stichill [2016] UKPC 16 https://www.bailii.org/uk/cases/UKPC/2016/16.html featured the displacing of a line which had, since the early 20th century, been in possession of the title. Then DNA testing revealed that there was no chance that the person presumed to be entitled in the current generation was actually a lineal descendant of the first grantee (which is the requirement in this sort of case). The case gave rise to some interesting and humane comment – I particularly valued G. Black, ‘Identifying the legal parent/child relationship and the biological prerogative: who then is my parent?’ Jur. Rev. 2018, 1, 22-41, and B. Häcker, ‘Honour runs in the blood’, L.Q.R. 2017, 133(Jan), 36-41, which explored comparative rules on challenging paternity, and considered the problems associated with upsetting family units in situations well beyond that of peerages. My own thought, though, was that, while, in general,  it is absolutely right to be cautious about wholly prioritising genetic over social relationships, especially if the latter are long-lasting, in the context of hereditary titles, a strong focus on DNA could serve a very useful purpose. I have no time for the whole business of hereditary entitlement to ‘specialness’, from the monarchy downwards – it is embarrassing, babyish nonsense – but even those who shut their critical faculties down with ideas about the magical powers of particular families would have to think again if they were confronted with the likely fact that they were no more immune from infusions of unexpected genetic material than anyone else’s family. A respectable Legal Historian cannot of course suggest that it would be worth a thought for anyone invited to a royal garden party or the House of Lords bar, who has the opportunity to collect a DNA sample.

29/11.2020.

Bastardy, Presumptions and a Plague of Beatrixes

(Sheldon arms, apparently: see VCH reference, below)

I am writing something about difficult questions at the start of life – determining whether (legally recognised) life is present in a foetus or newborn, and determining legitimacy – from periods before the development of some important medical techniques and instruments (to c. 1900 –  in 10,000 words …). One of the aspects I am investigating is the use of presumptions, to help come to an answer, when everyone accepted that there was a high level of uncertainty. An important presumption in the area of determinations of legitimacy was the common law’s long-lasting and rather strong presumption of legitimacy for a child born to married parents. I have just spent quite some time chasing down a Year Book/Plea roll match for an interesting case from the later years of Edward III, which has a bearing on this, and, since it won’t get more than a short mention, perhaps no more than a footnote, in the paper itself, I thought I’d write it up here.

The Year Book report is Seipp 1370.044 or YB Pasch. 44 Edw. III pl. 21 f. 12b. The Plea Roll record is CP 40/438 m. 370d (AALT IMG 5516). It is a Common Pleas case. As is often the way, the names in YB and PR don’t match up, but I think we can be pretty certain that these documents refer to the same case. There is also  information in other sources which gives some indications about the people involved in the case.[i] This is my reconstruction of the whole story, based on all of this.

There was a need to determine whether or not a girl was to be classed as ‘legitimate’ or ‘a bastard’ at common law, in order to deal with a land dispute. The land in question was in the West Midlands of England, in Warwickshire, centred on the manor of Sheldon, and included different parcels of land and associated rights. Once upon a time, it had been held by Henry de Sheldon and Beatrix his wife (HS and B1) and John Murdak had been granted an interest which would come into play if HS and B1 died without heirs of their bodies.

This had all happened in the 1330s. The central characters in the 1370 dispute were Thomas Murdak, knight (TM), son of John, who claimed that he should hold the land, and  a married couple, (Sir) John de Peyto and Beatrix his wife, who  were in fact holding some of the relevant land and rights. John and Beatrix (JP and B2) argued that they held a tenancy for life in the land, from one Beatrix (B3), eventual successor of HS (as daughter of John de Sheldon, JS, who was HS’s son and heir). When they wished to use B3’s superior right as the foundation of their own right, and against TM’s claim to it, TM made the argument that they could not do so, because B3 was a bastard. (And bastards were outside the scheme of succession at common law).

Why was there a doubt about B3’s legitimacy? Well, it seems that the circumstances of her birth were slightly unusual: she was said by JP and B2 to be the posthumous child of JS, born to his wife after a short marriage (at most fifteen days), though conceived before the marriage. TM told it rather differently: in his version, there had been some very dubious behaviour, which could mean that there was no real marriage, and so no presumption of legitimacy, and also, in fact, B3 was the child of another man entirely. His tale was of a very unwell JS, sick to death with plague, and not in his right mind, being physically carried to the church in Yardley, to marry (desponsare de facto) ‘some woman’ (not named – the odds seem to be in favour of her having been called Beatrix, like everyone else …) who was, at the time ‘grossly pregnant’.  As he told it, this was part of a fraudulent plan, essentially to do him out of his rights, which, remember, would come into play on the death of HS and B1 and their legitimately procreated heirs, and to protect the holding of JP and B2. JP and B2, however, expanded on their version, stating that B3 was in fact the biological child of JS: he and B3’s mother had been lovers (and had had two previous children) and he had promised to marry her, then impregnated her with B3 before going off to Calais for three months, and, on his return, he had fulfilled that promise. Though he had been ill, he had been sane and had married her at the behest of his conscience (presumably wishing to ‘make an honest woman of her’, and secure her future provision). They had lived together for a fortnight, then he had died. B3 had been born afterwards (interestingly, neither a date of birth, nor a gestation period, is included). Essentially, their tale denied both the ‘not JS’s biological child’ and the ‘not a valid marriage’ aspects of TM’s case.

Argument continued, with the aim of narrowing things down to one issue which could go to proof. According to the Year Book report, there followed some back and forth about exactly how pregnancy, espousals and legitimacy worked together, as far as the common law was concerned. TM’s side had a go at saying that the fact that it was accepted that B3’s mother was very pregnant before the espousals meant that Alice was a bastard. This seems to imply an argument that pregnancy had to start, as well as end, after espousals had been made.  This argument did not prevail, but it is interesting that it could be made, since it suggests the possibility of insisting on very exacting standards of continence and of ‘bastardising’ quite a number of children born within a marriage. The orthodox, less exacting, rule was stated by Fyncheden JCP: a child would be found to be legitimate, if the mother was pregnant by the man she then married, and she married him before the birth. Interestingly for my investigation, though, his reported words also suggest that a child conceived in the period between promise to marry and actual marriage (I have been doing too much Land Law because I automatically think of this as ‘conception between contract and conveyance’) does not automatically get the benefit of the strong presumption of legitimacy which would have applied to a child conceived after marriage.

In the end, rather than deciding B3 was definitely a bastard, (either because she was admittedly conceived before marriage, or because the marriage was invalid), or deciding that the conclusion would rest upon her presumed legitimacy as a result of having been born after the espousals, it was decided that the issue to be put to a jury was to be (effectively) whether the biological father of Alice was HS or the ‘other man’. This strikes me as a rather difficult thing for a jury to conclude upon, and it is interesting that it was thought feasible that they could do so. Also of interest is the point that the fact of there having been espousals did not blot out the possibility of B3 being found to be a bastard. My inquiries into later versions of the presumption of legitimacy within marriage show some interesting ups and downs in terms of its strength, and what sort of doubts might be entertained about paternity after the mother’s marriage, but it seems that, at least at this point, challenging legitimacy in these circumstances was a real possibility: if the ‘unloaded’, neutral, question ‘was X or Y the biological father of Z’ could be left to a jury, there would seem to be a fairly even chance of a finding of bastardy or of legitimacy. I am also pondering the issue of there having been a particular fascination amongst common lawyers at this point for the question of bastardy/legitimacy within marriage – another project I have done looked at a case from just before this one, Tyryngton v Beauchamp (1369),[ii]  the report of which saw common lawyers introducing a gratuitous discussion of just this issue (that case did not concern a child whose legitimacy was in dispute, but the report shows lawyers ‘going off on one’ about this).

The reporter loses interest once the issue is identified, as is usual, but the record tells us (some of) what happened in the end. The record includes later stages of procedure, which went on for some terms, and, to cut a long story short, TM dropped out, and so the case came to an end, leaving JP and B2 in possession of the land. There never was a jury verdict. It may be that some deal was struck, or it may be that TM decided that a jury would not have believed that B3 was the biological child of the mysterious ‘other man’.

So there we have it – for my immediate purposes, it represents an interesting stage in the development of doctrine around determinations and presumptions of legitimacy. More broadly, it is fascinating both legally and socially. The legal structure is set up so that it is in order – and perhaps it is an early resort – for claimants to land to cast aspersions about the sexual behaviour of non-party individuals. We see insights into a plausible story of a long term non-marital relationship which might be regularised on the point of death, and also a deep-seated suspicion of deathbed marital dealings (generally of the ‘woman as gold-digger’ variety: given the unequal system of real property, such marriages would tend to be for the benefit of women rather than men). If the background to this case was indeed a recurrence of plague, it is also interesting to ponder the effects of such crises of mortality on law and practice with regard to marriage, legitimacy and succession.

[And then of course there is the oblique evidence provided for the otherwise unknown ‘Statute of Beatrixes’ (or should it be ‘Beatrices’?), under which all female children in the West Midlands were required to be called Beatrix.]

GS

23/10/2020

(For more on bastardy in common law and canon law, and jurisdictional issues, in medieval England, including a 1364 case which might also support the idea of particular attention on this issue in this era, see, e.g. R. H. Helmholz, ‘Bastardy Litigation in Medieval England’, American Journal of Legal History 13, (1969): 360-83).

[i] VCH Warkwickshire (not going to pretend I can get to libraries at the moment): https://www.british-history.ac.uk/vch/warks/vol4/pp200-205

[ii] William de Tyryngton and Johanna his wife v. John Beauchamp del Holte and Joan his wife (1369).CP 40/435 m.387, 387d (IMG 773 and 1857(; Seipp 1369.059; YB 43 Edw. III Trin. pl. 5.