Tag Archives: Gwen Seabourne

Contract, coercion and concubinage: a rape case from medieval Westmorland

On the Michaelmas 1402 plea roll of the King’s Bench, there is a case with things to say about both ‘criminal’ law with regard to sexual offences, and also the commercial/contractual aspects of sexual misbehaviour in the medieval period.

The case, from Westmorland in the north of England, is to be found at KB 27/566 m.21 and, via AALT, here. It is an appeal of rape, brought by Joan London of [Maulds Meaburn] against Henry del Croft of Westmorland, Sir William de Threlkeld,[i] and John his son, and Thomas de Faucet, together with John Williamsservant Threlkeld, William Cook de Threlkeld, Thomas de Bowes, chaplain, and William Aliceson de Threlkeld.

Joan said that she had been in the king’s peace at [Maulds Meaburn] on 19th April [1402], when Henry came at about 11 pm and raped her, feloniously, deflowering her of her complete/pure virginity, and, feloniously, having carnal knowledge of her. The others were accessories.

There are a lot of standard form elements to the entry (the usual statements about pursuit etc.) and I will pass over these. What is unusual, however, is the defence. Rather than just saying ‘Not guilty’, Henry said that he and Joan, after discussion, agreed that Joan would be his concubine, in return for 6s 8d, he paid her this sum, and slept with her. He denied felony. All of the defendants were acquitted.[ii]  Despite the utterly predictable outcome, (for those of us who are familiar with these cases, anyway), there are a few of interesting points:

 

  1. The wording of the accusation

This is of interest for those who look at crime/sexual offences in historical context, There is one slightly unusual word here – the accusation is not just the usual rape/deflowering/virginity vocabulary, but adds pura to virginitate. ‘Purity’ is more commonly found next to ‘widowhood’, in ‘civil’ cases in which there is some argument about whether a woman did something during her marriage (and thus bringing in the ‘coverture’ rules) or afterwards, when she was able and obliged to take legal responsibility for her own actions. An interesting variant, then, and one which we might just take as suggesting some general ideas about women at different stages of life. That needs some further thought, but it’s worthy of note.

 

  1. The defence

Note that this is not the familiar ‘she must have consented this time as well’ defence based on previous sex with the defendant: it is ‘she did consent in advance, and so cannot use the common law to complain about having been penetrated’.

 

  1. The alleged transaction

On a more ‘crime meets contract’ theme, there is something to say about the alleged bargain here,

The narrative about the agreement between Henry and Joan has the role, in the context of the appeal of felony, of defending Henry against the allegation that he raped her (modern sense) thus the reference to her assent and her will in this matter. We might note that the assent and will are ranged with an agreement to be his concubine, not with the particular penetration with which the appeal charges Henry. This raises the issue of just what it meant to be a ‘concubine’. It is a word which comes up from time to time in legal records, often in connection with ‘priests’ women’. It is not inevitably sexual, though clearly, in this context it is. It is something which could bear greater scrutiny in terms of its implications and its interesting location on the borderline between status and contract, as this case seems to illustrate.

We must pass over the question of whether there actually was a ‘deal’, between Henry and Joan, but, as ever, even if the story was a lie, it must at least have been a plausible lie, so, what can we learn?

The deal was said to have been reached between Henry and Joan. There is no hint of the involvement of a pimp, bawd, madam, or even a family member negotiating on her behalf. It was, therefore, considered plausible for a woman to strike her own bargain with a man, to become his concubine. The entry portrays an orderly, businesslike, procedure: Henry and Joan discuss the matter (they have a colloquium about Joan becoming Henry’s concubine), and reach agreement, Henry gives her 6s 8d and Joan agrees to be his concubine (the term is not given, but this surely represented the price of more than one encounter). The deal is expressed in both unilateral and mutual terms: Joan se aggreavit and they had an agreement (concordati fuerunt). Henry took Joan as his concubine with her assent and will, and [‘only then’ is, it seems to me, implied] slept with her.

It is interesting to see the use of this businesslike, contractual, narrative in this context. Two things, in particular, strike me. First of all, to work as a defence, the story really has to place Joan as being on a level playing field with Henry, able to strike a bargain. We would need more facts about the parties to know whether that was remotely likely to have been true, though I do wonder about the tension between the two-parties-bargaining-freely version of events in Henry’s defence and the allegation by Joan that there were rather a lot of other people involved, before, during and for a month after the event. Secondly, although we are deep in the period of central regulation of ‘contracts of employment’ and wages, the terms on which a ‘concubine’ might ‘work’ were clearly not part of this area of legal prescription and enforcement. It is interesting to reflect on what this meant. Although they were ‘free from the red tape’ of the labourers legislation, and did not have to sign up to fixed terns, so that one might have thought they could leave their ‘employment’ at any time (and so refuse sex), this was not, apparently, the case. Whether or not developments towards the more coercive in employment which was covered by the labour laws had an impact upon areas like this, not covered but possibly analogous, must, for the moment, remain in the realms of speculation – but it isn’t particularly fanciful to imagine that it might have done. I note that sometimes, women may be described in legal records as ‘servant and concubine’ (e.g. here, from 1399), which may well indicate an idea of ‘concubine as employee’.

Anyway, this record suggests that a deal, even a sinful deal, was not something that could be called off, at least once money had been handed over. While I presume the common law would not have enforced such a deal in a straightforward ‘contract law’ manner, we can see that the way in which the law of felonious rape was treated in practice meant that it afforded no protection for a woman who might want to get out of such an arrangement.

 

Some tentative conclustions: ‘free’ contracts and contracting unfreedom

Joan’s disadvantageous position bears obvious comparison with another ‘freely contracted’ status, that of marriage, with its consequences under the emerging rules of ‘coverture’. Just like a wife, a concubine would seem to have bound herself for the future in terms of sexual compliance, so that she would not be able to succeed in an appeal of rape. The way in which Henry’s case was put – admitting sex and founding his defence on the alleged concubinage agreement – is strongly suggestive of this being accepted.

One might also compare the ‘concubine’ with the prostitute/whore  (the terminology here is very difficult, but I mean somebody entering into one-off transactions). Bracton II, 415 lumps these together to some extent, as women who can be raped (albeit that this will attract a less serious punishment than rape of a virgin). Though the ‘concubine’ seems to be less disapproved of than the prostitute here, it may be that the common law’s increasing interest in and respect for contractual bargaining, possibly reinforced by ideas about ‘making the lower orders stand to their obligations’, as Robert Palmer had it,  even if not strictly covered by the labour laws, left the concubine in a rather worse position than the ‘common whore’, free to transact her business on an encounter-by-encounter basis, and presumably not obliged into the future to do the bidding of her customer/master.

This case should, if nothing else, remind us: (a) that it is essential not to tell ‘de-gendered’ stories about the development of legal categories and doctrines; and (b) that material from what is now generally seen as one discrete area of legal doctrine and practice may be relevant to another. Here, we have the use by a man, against a woman, of the idea that the common law should take account of, and accord force to, private contracts. The negative effect of contract ideas upon ‘criminal’ law protections for women is not something which should be ignored by legal historians. For all of the ‘rises’ and ‘triumphs’ of the history of the law of contract, we should remember that the impact of legal development is not to be measured only with regard to the experience of (free, capable) men.

 

GS

16/6/2024

[i] Could this be this man?

[ii] Joan was said to have brought a false appeal, for which she was financially liable. A jury found that she was not able to pay the damages assessed, and the former defendants now went after a man, Richard de Threlkeld, said to have helped her bring the allegedly false appeal.

A vicious beating or a vicious lie? A fifteenth century Somerset case

Content warning: infant death

Carrying on the occasional posts relating to medieval ideas about the foetus, and about pregnancy (you can follow back from here to see earlier ones, should you so desire), here is an accusation within an accusation, which might have a couple of things to say to us on this topic.

There is an entry on the King’s Bench plea roll for Michaelmas term 1412 (KB 27/606 m. 20d – here via AALT – which concerns an alleged piece of malicious prosecution, in which a group of people, including Thomas Morle and his wife, Elizabeth, accused John Cokkes and others of having taken the opportunity of Thomas’s absence on business in Bristol to break into his house in Milverton, Somerset, drag Elizabeth, who was pregnant, out by the legs and then beat her up. This beating was said to have injured her ‘so that her life was despaired of’, a detail so common as to be ‘boilerplate’. Far from ‘boilerplate’, however, was the elaboration of the damage said to have been caused: some time after this, she gave birth to her twins, who were severely injured by the beating (the back of one, and the legs of the other being broken), and died shortly after they were born. For good measure, perhaps, it was also alleged that a significant amount of property had been taken from the house, and that there had been threats against Thomas and Elizabeth, so that they dared not go about their business.

Back to the pregnancy/foetus/newborn angle, however … let’s note some interesting aspects of this…

  1. Language

There is a ‘backdating’ of terminology here: before the birth, the twin foetuses are described using a word usually associated with post-birth life: infans. They are infantes in utero suo existentes. This does give a sense of blurring of pre- and post-birth life, I would say.

  1. Ideas about gestation

This may not be terribly surprising, except to those who have seen the sometimes preposterous ideas about the length of human gestation in later cases on adulterine bastardy, but medieval people had an idea of the right length for a pregnancy – and it was said that the twins were born before their time. It would be nice to know if they had any idea about how a multiple pregnancy would affect length of gestation, or likelihood of survival, but, of course, that would be expecting a lot of such records.

  1. Suggestion of post mortem examination

We know from coroners’ records that there could be an examination and description of a deceased baby or foetus, at least in terms of size, but this seems to suggest some touching and feeling to ascertain that bones were broken, which is grimly informative.

  1. ‘Spin’ strategy

We cannot, of course, know what was the truth of this tale. Was it a complete fabrication, entirely true, or something in between? If it was made up, then we must assume that throwing in the details about the damage to the foetuses, and loss of viable foetuses, would have been seen to make John Cokkes and his associates look more culpable. So – not something confirming ‘personhood’ in the foetus, by any means, but certainly suggesting value.

 

GS

8/6/2024

 

 

Offensive weapons: some thoughts on a violent image

Content warning: concerns historical records relating to sexual violence, and historical attitudes to such violence which are, without question, offensive. 

An entry on the King’s Bench plea roll for Easter 1435 tells us about proceedings against a Norfolk clerk, Thomas Hervy of Testerton.[1] Amongst other things, he was alleged to have broken into the house of John Serjeant of Colkirk, on 1st October 1433, and to have wounded Margaret, John’s wife, by stabbing her with a lance or dagger. He was, eventually, acquitted. So far, so run-of-the-mill: medieval legal records are full of accusations of non-fatal injuries of one sort or another, comparatively few of them resulting in conviction, and we know that carrying a knife or dagger (if not a lance) was commonplace. The reason for drawing attention to this case, is that it is one in which it really is neither a dagger, nor yet a lance, that we should see before us, and that may have some important implications.

Allegations of misconduct involving the use of weapons are strewn through the records of the medieval English central courts, even when we can be fairly sure that nobody thought they had actually been used. They appear as ‘boilerplate’ text, in litigation relating to what a modern common lawyer would regard as torts, a fearsome list of swords, staves, bows, arrows and sometimes other weapons featuring, routinely, and often incongruously, in allegations of trespass of even a relatively mild sort, as a means of gaining entry to the king’s courts.[2]  Given this background, it may appear rather banal to point out that I do not think anybody ever believed Thomas had actually attacked Margaret with a bladed implement, but this short record does take us in a disturbing new direction. The entry is not an embellished version of a lesser offence, done for jurisdictional reasons, but one offence presented as another, for what we must probably see as entertainment, for the real allegation was not one of stabbing, but of a sexual offence.

Let us take a closer look at the record of the Hervy case. It gives more specific names to the weapons alleged to have been used, breaking from Latin into English as it does so. Hervy ‘wounded’ Margaret with a ‘carnal lance, called in English a ballokhaftitdagher’, (a ‘bollock-hafted dagger’ in more modern English). I believe that this would have been understood to be neither a lance nor a dagger but a penis: the offence was not a ‘wounding’ in the conventional sense, but sexual penetration of John’s wife.[3]

This position needs some justification. Lances, of course, were real weapons, though a ‘carnal lance’ seems rather obviously phallic. As for the dagger, while there was a real weapon called a ‘bollock-hafted dagger’ (also known as a ‘ballock dagger’ or ‘ballock knife’) in medieval and early modern Europe, named for its distinctive two-lobed hilt, [4] I do not think that this was understood as a real bladed implement either. The juxtaposition of a ‘lance’ and a dagger (which would seem to be things of rather different dimensions) suggests that there has been a slip into a metaphorical mode, and the equation of the ‘carnal lance’ and ‘bollock-hafted dagger’ is hard to explain other than in their common representation of male genitalia.

There are a few cases mentioning ‘carnal lances’, unaccompanied by reference to ‘bollock-hafted daggers’ (though sometimes they are accompanied by a reference to ‘stones’, strongly suggesting testicles).[5] An indictment which mentions the ‘bollock-hafted dagger’ alone, and which discloses that the allegation is one of sexual violation, can be seen in a 1454 file. This states that a certain William Shepley, tailor, on 31st October 1453, broke into Henry Smith’s house near Campsall, Yorkshire, stole some items, and raped Henry’s wife, Agnes, ‘with force and arms, i.e. with a … ballokhafted dagger’, penetrating her ‘secrets’.[6] This does all seem to make a good case for saying that both ‘carnal lances’ and ‘bollock-hafted daggers’ were meant to be understood as penises. Further support might be derived from the additional details in the Shepley record: it notes that William’s ‘bollock-hafted dagger’: is ‘a large instrument of very little value’, putting that low value at one penny (much lower than the values assigned to most real weapons of the time),[7] and elaborating on the length of the ‘instrument’. We might wonder whether it is conceivable that the allegation is one of violation with a real knife, but there is no sign that violation with an object would have been labelled raptus in medieval England. Those familiar with literary history will be aware of the long tradition of imagery centring on fighting and weapons, in connection with sex and with male genitals: medieval people were likely to have been used to this switching back and forth between body part and weapon, in the sexual context.[8]

We cannot be sure by what route this imagery came to be included in the record: was it a transcription of the initial accusation, or an elaboration by the clerk who recorded it? We can be sure, though, that it was a choice: most medieval rape or sexual offence entries do not include such material, so clearly it was not a requirement. If it had no formal function, though, why include it? Highly questionable as it seems to us, these accounts of ‘carnal lances’,‘bollock-hafted daggers’ and ‘large instruments’ were probably included in the record because they were considered humorous. Discussion of penis size and quality, as well as the connection between penis and suggestive dagger form, in the context of sexual offences, would certainly seem to have something in common with the tone of some of the ‘jokes’ about women, sex and rape seen in the clubby, men-only conversations reportedly carried on by serjeants and judges at Westminster, and passed down to legal posterity, in the Year Books.[9]

What more does the inclusion of this inessential material tell us about attitudes to the accused men? Although we may detect some ridicule of the defendant in the ‘low value’ part of the 1454 description, the ‘large instrument’ is presumably not similarly negative, and, taken overall, the use of the ‘penis-as-weapon’ image is not likely to have been damaging to an alleged offender; perhaps quite the reverse. In a world in which even socially-acceptable sex was seen as something a man did to a woman, in which a degree of male aggression was expected,[10] which knew ‘playful’ combat imagery in discussions of sex, and in which men carried real and aggressively suggestive ‘bollock-hafted daggers’, an image of unlawful sex as wounding with a weapon would be far less damning of the alleged perpetrator than it now appears.

Some of the ideas incorporated in these records are certainly offensive from the point of view of the modern scholar, but they may also be illuminating, in the quest to understand the mental world of medieval men, and the attitudes faced by medieval women in their encounters with the legal system. Much scholarly attention has been paid to the interpretation of entries relating to raptus, and whether or not particular allegations so designated concerned rape as we would understand it today, but cases such as that of Thomas Hervy, with which I began should alert us to the possibility that there are also cases not labelled raptus, which may, in fact, have involved allegations of sexual misconduct. Beyond that, though the number of cases which mention these suggestive weapons seems, thus far, to be small, the insights they can provide for our understanding of the interplay between wider culture and legal proceedings, in this difficult and important context, may prove to be of more than minimal value.[11]

 

Gwen Seabourne

11th May, 2024.

 

 

[1] KB 27/697 Rex m.5. All linked scans are from AALT.

[2] See, in particular, S.F.C. Milsom, ‘Trespass from Henry III to Edward III,’ Law Quarterly Review 74 (1958), 195-224; 407-436; 561-590.

[3] In this instance, the suggestion is that this was with some degree of consent on her part.

[4] See Ole-Magne Nøttveit, ‘The kidney dagger as a symbol of masculine identity – the ballock dagger in the Scandinavian context’, Norwegian Archaeological Review 39 (2006), 138-50. Note that the dagger’s ‘bollocks’ were renamed as kidneys by nineteenth century-antiquarians.

[5] See, e.g.: KB 9/359/mm. 67, 68KB9/363 m. 2; KB 9/363 m.3  Sometimes there is additional information linking the lance to penetration of a woman’s body: see, e.g. KB 27/725 m. 31d For the stones-testicles link, see, e.g., W.J. Whittaker (ed.), Mirror of Justices (London: B. Quaritch, 1895), book I c. 9.

[6] KB9/149 m. 21

[7] The offence was committed ‘[cum] … magne instrumento minime valoris’. For the use of instrumentum for the penis, see Dictionary of Medieval Latin from British Sources (Brepols, 2018), s.v. ‘instrumentum’, 6c.

[8] See, e.g., D. Izdebska, ‘Metaphors of weapons and armour through time’, in W. Anderson, E.  Bramwell, C. Hough, Mapping English Metaphor Through Time (Oxford, 2016), c. 14; Robert Clark ‘Jousting without a lance’, in F.C. Sautman and P. Sheingorn (eds), Same Sex Love and Desire Am407-436ong Women in the Middle Ages (New York, 2001), 143-77, 166; Dictionary of Medieval Latin from British Sources, s.v. ‘hasta’, 6.

[9] See, e.g., G. Seabourne, ‘Et Subridet etc.’: smiles, laughter and levity in the medieval Year Books. In T. Baker (ed.), Law and Society in Later Medieval England and Ireland: Essays in honour of Paul Brand (London: Routledge, 2018), 201-224, which you can see here. See also the contention that the inclusion of a particularly detailed fourteenth century rape case in medieval lawyers’ instructional manuscripts indicates that it was seen as having ‘titillatory’ value: B.A. Hanawalt, ‘Whose story was this? Rape narratives in medieval English courts’, in her ‘Of Good and Ill Repute’: gender and social control in medieval England (Oxford University Press: New York, 1998), 124-141.

[10] See, e.g., R. Mazo Karras and K. Pierpont, Sexuality in Medieval Europe: Doing Unto Others, 4th edn, (Routledge: London, 2017).

[11] There is a copious literature on the medieval literature of sexual misconduct. For those new to it, S. McSheffrey and  J. Pope, ‘Ravishment, legal narratives, and chivalric culture in fifteenth-century England’, Journal of British Studies 48 (2009), 818-836, and references therein, would be a good entry point.

Procedure and pregnancy: a Middlesex appeal

 

The question of how medieval people regarded and valued the foetus, and whether they saw abortion as being homicide or not, was raised, and debated, quite a lot, following the Dobbs case in the United States. The opinion of those who know about medieval law has generally come down against the selective and otherwise questionable use of medieval English authority by judges in the case.[i] I have many issues with the ways in which judges in the common law world cherry-pick and simplify past legal materials, or accept without appropriate questioning the contentions of advocates regarding their meaning: the misuse of such materials in modern courts is a multi-faceted problem. One aspect of the problem, when it comes to the foetus/pregnant woman issue is the failure to take seriously the impact which procedural matters might have on the way a case appears in the remaining documents. It is all too easy to conclude that we are seeing a substantive rule, when, in fact, the ‘rules of the game’ of pleading, or ‘form of action’ may actually have dictated what could be argued or included.

A nice example (in the legal sense, thoroughly nasty if the things described actually happened) is in a 1454 King’s Bench plea roll: KB 27/771 m. 35 (see it here on AALT). This concerns an appeal (individual prosecution) against Walter Fairstede lately of London, a yeoman or glover, Agnes his wife, and William Couper, a London yeoman, brought by John Stanford, for the death of Margaret, widow of John Henry.

The accusation was that, on 26th October, 1452, somewhere in Westminster, Walter and Agnes had assaulted Margaret and killed her. The attack was not, for once, said to have been carried with weapons, but with punches to the belly of Margaret, who was pregnant, or ‘great with child’. Both Walter and Agnes were accused of punching Margaret, Walter going first, with a right-handed punch to the left part of Margaret’s belly, and then Agnes punching her in the middle of the belly. Each of the blows was alleged to have been sufficient to kill Margaret (meaning that both assailants were ‘principals’). William was an accessory: said to have  assisted but not said to have thrown any punches. Margaret was said to have died following the assault, but not immediately: she ‘languished from 26th Oct to 7th December, 1452, and then died, in Westminster.

All of the accused were found not guilty by a jury – as ever, who knows about the truth of any of this, and who knows what the accusation was supposed to indicate, in terms of motive – a random stranger attack, robbery gone wrong, abortion (whether consensual or not) … much is beyond us. Nevertheless, there are things to consider. While we are told, more than once, that Margaret was pregnant, and visibly so – showing that this was something seen as important – nothing direct is said about the fate of the foetus. We may imagine that it would be unlikely that there would be a live birth, in the circumstances, however, and may deduce that there was no live baby, from the fact that the man bringing the appeal, described as Margaret’s relation (in fact an uncle on her father’s side), was also stated to be her heir. That would not have been correct, presumably, had she had a living child (assuming it would have been legitimate – we do not know how long Margaret had been a widow, of course)..[ii] What can we read into the non-mention of the foetus/baby? One view might be that the foetus was unimportant, so not worth mentioning. I think that the better view is that the loss of a niece’s baby would probably not have been something for which an uncle could bring an appeal, since it would be too far removed from him to be seen as his loss.[iii]  So, an example of ‘form of action’ setting the limits of what might be alleged, and not necessarily saying anything about the value, or not, of a foetus, in the medieval period. This remains a very difficult question – and I do not think that there was one clear ‘medieval legal view’ (let alone ‘medieval view’) on this.

One last thing which seems to me to hint at the complexity, and perhaps tensions, of medieval views in this area is the interesting difference in the way in which the two relevant dates are given. The date of the attack is given by day, month and regnal year, but the date of death is given in the old-style ‘by reference to a holy day’ manner – as ‘the following Thursday next before the Conception of the Blessed Virgin Mary: a complicated maternity-and-foetus-related feast if ever there was one. Simply indicative of a transitional period in legal dating, or something more interesting, in terms of attitudes and concerns?

GS

6/5/2024

 

[i] See this, for example.

[ii] It is possible that she did have a live-born child, which died before the proceedings were brought: I am not sure that we know the critical date for appeal right. This case is quite interesting from the appeal right point of view too.

[iii] In this case, I suppose he is the heir because there was no living child, so in a sense he gained from these events. That is not unique to uncle appeals, however.

Had Margaret’s husband not been dead, perhaps he might have brought an appeal framed in a different way.

 

Image: Westminster – yes, I am embracing radical anachronism. It’s symbolic of past-present confusion, or something.

Most recent publication: touch and pressure

New publication here: 

‘Touch and Pressure:  Sensing Sexual Harassment in Medieval Common Law Sources’

Glad to see this out – a short piece on trying to get at something which medieval common law records are not inclined to disclose: sexual harassment which is not rape. It came out of an invitation from a Paris-based project, the AVISA project, and a paper delivered in the depths of Covid lockdown, and I think that the invitation came, directly or indirectly, from the things I have published on this blog – so, nice to know that somebody out there is getting something from it!

I am sure there is more to say about this, and maybe I – or others – will turn up further relevant things in common law records. I was left with two abiding thoughts, though:

  1. It is far from ahistorical to look for this sort of material in legal sources – it’s not as if there was no concept of it as wrong, or not a fit subject for legal intervention, before the 19th or 20th C (check out the English pre-Conquest stuff, and the Welsh stuff);
  2. It is worth taking a bit more seriously those actions of males for damage to ‘their’ women through rape or harassment etc. – I know that the immediate visceral response is negative – it’s about a man having property rights in a woman – but, just as the better view in legal history is now that the ‘women were property’ encapsulation is inaccurate, so, I think, we might consider the (small) upside of seeing harm to a woman as not just something she is left alone to deal with in the legal context – as remains the case with modern English rape etc. trials – and we know how badly that works. Obviously patriarchal in terms of who it is, but … worth a thought? It struck me, when ‘launching’ the very recent book by Joanne Conaghan and Yvette Russell, on Sexual History Evidence, which is positive towards the idea of giving an independent legal representative to rape victims/survivors, that the older pattern, of giving some responsibility to another person might be seen as having a little in common with this: making it all less one lonely woman against a defence lawyer trying to tear her reputation and credibility apart, and ‘backed’ by the impersonal force of the police and CPS. Not that I am a ‘coverture apologist, or suggesting that husbands and fathers should take the lead, but, looking at the independent legal adviser/representative suggestions might cast a new light on the way we consider these actions which do not leave the woman quite so exposed. One to think through, anyway.

GS

10/11/2023

Positively charged easements? A few thoughts on Gosling v Bradbury [2023] EWHC 199 (Ch)

TW: modern land law, not legal history …

Still with me? OK. This recent easements case is quite interesting (to those of us who like such things) in its treatment of a slightly involved easement.[i] It takes us into a bit of thinking about classification of easements as positive or negative, and into the issue of ancillary easements/rights. It also hints at a rather intriguing question with regard to accommodation and change from supply of something positive to the dominant land, to allowing the continuance of something potentially negative in effect.

The action took place in rural Worcestershire, near Droitwich. Simplifying the facts to their essentials, there were two adjacent pieces of land, Ford Farm (FF) and Rashwood Lodge (RL). It was claimed on behalf of RL that RL had an easement over FF, to obtain water from a borehole on FF, using an electrical pump, located in a barn on FF. The right to the water was fairly uncontroversial – there was an express grant of such a right, from 1982. The issue concerned the electrical pumping. Bradbury had interrupted the electricity supply to the pump, and this meant that the water was no longer pumped to RL. This only came to the attention of the occupant of RL, Ms Dawe, when her supply dried up, so that she could no longer water her horses. [Note to self, insert picture of sad horse here].

What possible argument did Bradbury of FF have for interrupting the electricity supply? Well, the argument made for this not being contrary to an easement in favour of RL was that, although the easement created in 1982 included a right to receive water from the borehole via pump and pipes, and, indeed, a right to go onto FF to check and maintain the equipment, it did not say anything about a right to a supply of electricity.

The judgments suggest that Bradbury, who had acquired FF recently, was well aware of the existence of an easement, but wanted to ‘take back control’ of the land, stop others coming onto it, and perhaps renegotiate the deal with RL so that it was more along the lines of a licence. If this was the plan, it did not work, however.

The right to have the pump powered by electricity, with wiring and apparatus on FF, was held to be a right ancillary to the explicit easement relating to the water received by means of the pump. There was an attempt to argue that, because an ancillary right could not impose a positive obligation on the servient owner,[ii] Bradbury could not be obliged to pay for and allow the supply of electricity, via apparatus on his land. Essentially, Bradbury was trying to say that the interruption of the current was not a positive interference with a genuine easement, but a cessation of positive action to support a claimed but invalid easement. This did not work. Zacaroli J ruled:

‘28. The ancillary right, as declared to exist in this case by the judge, is defined as the right to enjoy the passage of electricity across [FF], including, the right for [Bradbury] to arrange for the supply of electricity onto [FF], the right to make use of infrastructure already in situ on [FF] or to install their own infrastructure and apparatus, and associated rights of access. These impose no positive obligations on [Bradbury or successors in title], but merely require them to suffer things to be done on Ford Farm. They do not, as [counsel for Bradbury] contended, require the appellants to provide and maintain electric wiring and arrange a supply of electricity.’

I think it is quite interesting for easements in general, because it does show the room for disagreement around positivity and negativity. We tend to treat them as clear and distinct, but are they always? That construction of a requirement ‘to suffer things to be done’ is so beautifully liminal in its positioning between active and passive. Not to mention its biblical resonances. The whole situation was also made a little vaguer by the fact that RL and its occupants had not been asked to pay a share of the electricity for some time, though it was maintained that they would have been willing to pay. This non-demand/non-payment circumstance allowed Bradbury to suggest that FF was being burdened with the cost of the electricity, as well as having to ‘host’ the machinery, cables etc. That, of course, would tend to make it look a little more like a requirement for positive input on the part of the servient owner, and so less like a legitimate easement. If we think about Regency Villas, it would tend to take us into the territory that so concerned Lord Carnwath.

It is worth mentioning a couple of other unsuccessful lines of argument which were run on behalf of Bradbury. First of all, there was an attempt to suggest that the easement was to receive water, and that did not actually require the pump, or the electricity, because water would naturally flow from the borehole onto RL anyway. This was ruled out partly because it was an attempt to introduce a line of argument by the back door on appeal, contrary to general rules on appeals which I won’t discuss here, but mostly because the easement was actually in terms of receiving water through the pump and pipes on FF. The fact that it might be possible to get it in some other way was neither here nor there.  Secondly, there was a disallowed argument about the alleged unsafe condition of the water which was coming up from the borehole: apparently it was contaminated by arsenic. This was ruled out of order, again, because it was being brought in in a procedurally inappropriate manner. An interesting potential issue though: what if something which starts off as clearly ‘accommodating’ the dominant tenement turns nasty and damaging? Does ‘accommodation’ cease then, bringing down the whole easement? Not according to  Zacaroli J: even if this had been shown, he did not think that the easement ‘fell away’. It was not necessary to get into this in great detail (sadly for Land Law fans!) but he suggested, almost in passing, that it would be particularly unlikely to change our view of whether the easement ‘accommodated’ in these circumstances:

‘37. …I do not need to decide this point, but I doubt that this requirement is intended to impose a further qualitative or quantitative requirement that the right granted in the particular circumstances is one which does in fact provide a benefit. Moreover, if (which is not disputed) there was a benefit to Rashwood Lodge when the water easement was granted in 1982, it is difficult to see why, assuming there are now unacceptable levels of arsenic in the water – the validly granted easement will have for that reason fallen away, particularly if the problem with arsenic in the water is temporary or can be got around.’

Anyway, Bradbury was found to have been in the wrong, and to have interfered with an easement which did bind FF and its owners. And, just in case anyone was still fretting about positivity and negativity, and the fact that the outcome would be likely to be that Bradbury would have to take positive action, Zacaroli reassured us that:

  1. Although an easement does not impose positive obligations on the servient landowner, if the owner of the servient land is found to have wrongly interfered with a negative easement, it may be open to the Court to require it to take some positive action to undo that which it did via its wrongful interference.’

 

So there we are: positively crystal clear, and without a trace of arsenic; a case about boreholes which is not wholly boring.

 

GS

15/11/2023

 

[i] First instance: [2020] EWHC 3906 (Ch) DJ Shorthose.

[ii] True: ‘14. Any ancillary right must itself, however, be capable of subsisting as an easement: William Old International Limited v Arya [2009] EWHC 599 (Ch), per HHJ Pelling QC at §31.’

Image – general suggestion of electrical power: Photo by Frames For Your Heart on Unsplash

‘Frenzy’ and Fatality in Fourteenth Century Flore

Here ( JUST 1/635 m. 38 (1MG 0745)) is an interesting case from the Eyre of Northamptonshire, 1329-30, which I saw in passing today, and which seems worth noting for that niche demographic of people who are interested in women, things medieval and things legal. Somebody may have discussed it, but in case they have not, this is what the record says, in quick and dirty translation …

The jurors of the hundred of N[ewbottle Grove], Northants, presented to the eyre the following story: Walter Bunt, who was not in his right mind, as a result of frenzy [infirmitate frenetica detentus], hit Leticia Bellawe at Flore in the head, and she died fifteen days later. Walter was arrested and brought to trial. He pleaded not guilty. The jury said that, on the day in question, which was very recent, Walter was affected by this ‘frenzy’ [infirmitate frenetica laborans], and he was alone in his house at Flore with Leticia, who had charge of him [que ad custod’ ipsius Walteri extitit deputata]. Walter, in his madness [in furiositate sua], grabbed Leticia by the head and threw her to the ground, then took up an iron candlestick, and hit her on the head with it, while so afflicted [in infirmitate sua predicta], and she died of it in this way, not through felony nor malice aforethought. Walter was sent back to prison, in the custody of Thomas Wake, to await the king’s grace.

 

There is no particular surprise in the fact that Walter’s mental disturbance was regarded as likely to result in a pardon from the king, nor in the jury’s apparent determination to move the authorities to mercy in this case, with their repeated insistence that actions were done whilst Walter was not mentally competent.[1] (We will leave the interesting distinction between an ‘infirmity’, ‘frenzy’ and ‘fury’, and the linking verbs about being ‘detained/held’ by a condition of the mind, labouring under such a condition and just being in a condition). What I want to draw out is, rather, the role of the unfortunate Leticia. I am intrigued by the description of her as deputata – assigned, ‘deputed’ – to take care of Walter. This strikes me as a rather official-sounding description: she was not merely looking after him, but she had been appointed to do so. If we take it at its most formal, could this be an example of a woman having some sort of court-mandated appointment? We know that those with mental disturbances were committed to their families at times, but it is not apparent that Leticia was related, or married, to Walter (and this is the sort of detail which is usually mentioned, in relation to women). So – an intriguing possibility with regard to women’s legal roles, even if far from clearly proven. Even if this is not any kind of official appointment, it does look as if somebody thought that Leticia was capable of taking care of a man suffering from some sort of mental health problem, which probably says something about wider ideas of women’s capacities. I am left wondering how such positive views might have been affected by the tragic outcome of this particular case of a woman being put, or left, in charge of a male detainee?

 

GS

12/11/2023

 

[1] There are other references to the effects of insanity on liability – including some interesting material on the effect of fluctuating insanity – in Sutherland’s Eyre of Northamptonshire 1329-30 (1981), 188, 196, 215-6. Note also what might have been a less kind attitude to those with mental disturbance in the same eyre, here: JUST 1/632 m.40d IMG 0926 – a man who was accosted by a woman who was not in her right mind, whose attack seems only to have been verbal, and who was accused of throwing a stone at her head, killing her, was found not guilty. Of course, perhaps the whole thing was untrue, but if not, interesting.

From ‘forthcoming’ to ‘coming forth’: a long chapter in academic life

A chapter I wrote quite a while ago, on the legal history of rape in western Europe, has just come out in a collection about medieval crime and deviance.

‘Rape and Law in Medieval Western Europe’ looks at the ways in which different medieval jurisdictions approached rape. The records on which it is based are not straightforward (languages, handwriting, changing meanings of words, and more …), but, carefully examined and considered, they do give at least a sketch of the ways in which rape was thought about, and treated, in medieval law.

There are comparisons and contrasts to be made with regard to the ways in which a case might be brought before a court, the factors which would make sexual misconduct seem to those [men] trying a case more or less serious, and the consequences of a finding of guilt. It is easy to find statements about the serious nature of rape, but often – and this is certainly the case in English records – difficult to find examples of completed, ‘successful’, prosecutions of offenders. This should lead us to ask why that might have been the case, but also to question what we mean by ‘success’ in this context. In medieval English law, if felonious rape was prosecuted through to a conviction, the consequence would be a sentence of death by hanging, and forfeiture of property. The vast majority of rape cases stalled or were diverted at some point before this fatal outcome, however. It seems likely that a significant proportion of them were settled, so as to give some financial assistance to a woman who would now, perhaps, face significant difficulties. No doubt in some cases a complainant simply gave up.

Jurisdictions showed variation in terms of who was seen as a possible victim of rape (Only women? Only or particularly certain sorts of women/girls?) in terms of procedures and in terms of the consequences of a finding of guilt. As we might expect, there were some very negative attitudes towards women embedded in law and practice, though there are also intriguing occasional examples which seem to show sympathy and significant support for women and girls who had been raped. Much of what we would probably like to know lies hidden behind the terse records of cases which remain, and some insights can be gained by considering medieval literary treatments of rape (even though somebody like me, with no real expertise in literature, should tread very warily here). The one law-literature matter which I was, sadly, unable to treat here was the recent developments in the Geoffrey Chaucer-Cecily Chaumpaigne case, which became big academic news long after I actually wrote the chapter (which, I think, was in 2018 … academic publishing can be slow …) and too close to the date of publication to allow for an addition to the text. I intend to write a little more about that soon, as I think there are a couple of ‘legal historian’ points which people might find helpful/interesting).

The overall message of the chapter, I suppose, is one of competing, sometimes contradictory, ideas at play, coming out in different ways in different systems, and even within the same system at different times. Fitting the chapter into a book on the construction of crime and deviance, I would say that the job I hope it does is to warn against seeing medieval rape law as something which can be understood as showing a contrast between ‘the law’ – something stark, simple and clear – and ‘practice’ – which very frequently departs from ‘the law’ so as to let men off with their sexual misconduct. Certainly, a lot of rapists (in our terms) will have ‘walked’, but the ‘escape routes’ were not wholly external to legal doctrine, and legal doctrine was far from the clear, ‘worked out’ and comprehensive thing it is sometimes assumed to have been. Here, as in several other areas of ‘criminal’ law, ‘the law’ is, at least in part, constructed by practice.

Stepping back from the chapter itself, it strikes me that it would have surprised my past self, starting off in the 1990s as a new lecturer and trainee legal historian, that I was working on this area at all. My Ph.D. was on economic regulation, and my early research projects were not focused on women, nor on matters of gender. Not looking into women’s history was a very self-conscious choice, stemming from the opinions of others, influential in the world of legal history, and also from my own thoughts about what it meant to be an academic. The ‘opinions of others’ point was that the legal history tradition in the institutions where I had taken my first steps in the discipline was not given to much consideration of such matters, regarding them as peripheral, trivial, ‘trendy’. The internal inhibitor was that I had drunk in the idea that academics were supposed to be neutral, completely external to the material which they studied. Taking such an approach was the way to win the pat on the back of a good exam grade at school, and at university, and the way to avoid the sniggers and suggestions of ‘stridency’ or ‘special pleading’ from a predictable portion of the department, should there be any suggestion that a woman was focusing her attention on women. To get past that internal inhibition took me quite some time, and the kick up the backside of a combination of  factors.

One shaping factor was where I ended up working. After leaving full-time study, I got a job at Bristol. Arriving here, I was treated with great generosity by the resident co-ordinator of both Roman Law and Legal History, Andrew Borkowski. He made room for me and my interests in the Legal History unit, and the unit he had developed was already rather less private law focused, and rather more open to issues of family law and gender than were those which most undergraduates would have been taught (and still are taught in some places). Initially, I came on a one-year teaching contract, and had every intention of going back to study full time for a Ph.D., in a Law department, where, I would imagine, I would have been immersed once more in the traditions of internal, ‘classical’ legal history, never more to look to matters dismissed as (shudder) ‘social history’ . Bristol made it hard to leave, however, offering both a permanent contract and assistance with doing my Ph.D. part time. A particularly important aspect of this offer was that I could seek supervision from the School of Historical Studies. This, I think, was crucial for the path I have taken. While my Ph.D. thesis was not about anything particularly gender-focused, it did, incidentally, lead me to acquire an additional set of skills and perspectives, which, I think, helped me to break down my own inhibitions against ever, in any way, talking in my academic work about things which were connected to myself. On a less positive note, another factor in the path from economic regulation to a focus on women came in the form of personal experiences of various kinds, including being taken aback by the ways in which institutions and their senior management treated those who took maternity leave or had childcare responsibilities (not so long ago as all that …). (And yes, saying that ‘out loud’, I see how far I have come from the ‘got to look objective’ stance: hinting at some of the less-than-optimal experiences I had with university promotions procedures and those who operated them at key points in my career …). My second monograph, about the many and various ways in which medieval women might be confined marked something of a shift of orientation, as well, perhaps, as something of a burning of bridges. A very influential law-department-based ‘classical legal historian’ was incredulous that I could plan to write a book which would place women to the fore. What about the men?! It felt, though, like something I had to do. Then there were a couple of lucky archival finds (on ‘drug rape’ and ‘work-based sexual harassment) and I began to be known (in certain small and dusty academic corners) as somebody who ‘did women’, and to be asked to write things in this area, including the chapter which has just come out.  So there we are: I am now proud to embrace it, but I think today’s lesson is that it isn’t just academic publishing that can be …

a bit slow.

GS

6/5/2023

 

 

Photo by Melissa Keizer on Unsplash – tortoise, slow, etc etc.

Roman castration pliers

Thoroughly modern mayhem?

There is a story in the UK news[i] which is of potential interest to those of us who like a bit of mayhem. One Marius Gustavson appeared in Westminster magistrates court on Wednesday 22nd March, charged with offences including GBH for removing body parts from other men (those parts including penises, testicles,[ii] nipples, as well as damaging legs beyond healing, requiring amputation …). Other men, allegedly involved in the same activities, appeared in other courts. The chopping of bodies is portrayed in reports as perhaps being consensual, and part of a ‘nullo’ subculture (a new thing to me), and the whole process also involved filming, streaming and charging people to view the footage.

It is the suggestion of consent which caught my attention. It is unlikely that a defence based on consent could succeed in this situation, following, in particular, the decision with regard to less extreme injuries in R v Brown back in the 1990s (gay S & M-inflicted injuries, Lancs; consent defence to offences under ss. 47 and 20 of the Offences Against the Person Act 1861 – ABH and wounding – does not work)[iii]. However, I wonder whether it will reignite people’s interest in the law which lies behind Brown, and, in particular, its discussion of mayhem/maim. Whether or not there is a full, discursive, judgment to pore over, I think we can probably anticipate some commentary which takes a bit of a wander through the weird and wonderful world of mayhem.

It does strike me that the injuries in this new case are actually much more clearly within the traditional bounds of mayhem than were those in Brown (or indeed the tongue-splitting etc. in  R v. BM).[iv] Statements on the law of mayhem, and its application, required permanent damage, loss of function or total loss of a ‘member’, which I am not sure was present in Brown, though it certainly is here.[v] They are also very much tied to the male body – so damage to testicles in particular is specifically mentioned in the masculine-focused medieval definitions of mayhem. Leg-removal would also be a clear mayhem. Nipples I am less sure about. And Bracton completely failed to anticipate live-streaming, though it did predict one other aspect of this case – keeping the removed bits

We await the next part of the legal process – apparently due for the 19th April – and further enlightenment.

Updates

19th April: further proceedings: two men plead guilty to removing the nipple and penis of the alleged ringleader (GBH); there is also information about the procedure, in that lidocaine seems to have been used for anaesthesia, and about other offences,

There are set to be further court dates in May and June, and a provisional trial date in March 2024.

 

 

GS

27/3/2023

[i] See, e.g. the Guardian report, though it is in many other places.

[ii] Apparently this is done with something called a ‘burdizzo’. I now know 100% more about how this all works than I did 15 minutes ago. I am not sure that that is a good thing. None of the reports make it clear whether anaesthesia was involved. For castration in Bracton, see this post.

[iii] [1994] AC 212.

[iv] [2018] EWCA Crim 560.

[v] Some of the journalism also draws us into a story from Japan of a man who had his genitalia removed, cooked and eaten … Definitely beyond my mayhem-centric remit. I don’t think this was what Bracton had in mind in its passages on castration and mayhem.

Image: Roman castration pliers, obviously. Courtesy of Wikimedia Commons.

Causing, confusion? A medieval case from the Isle of Wight

[Warning: This post concerns an instance of sexual violence]

Documents in the King’s Bench indictment file for Hilary term 1448, and an entry on the King’s Bench plea roll, deal with the death of a woman, Joan wife of John Couke, and with accusations against a vicar on the Isle of Wight, with regard to Joan’s last few hours.[i]

Joan’s death had been the subject of a coroner’s inquest at Newport on the Isle of Wight, on Tuesday 12th September, 1447. At this inquest, the twelve jurors said on oath that John Hunter, vicar of the chapel of St Nicholas within the castle of Carisbrooke,[ii] came to Newport with force and arms (sample arms specified), against the peace of the lord king, and broke into and entered the close of a certain Edward Brutte, wrongfully, between the hours of nine and ten at night on Monday 11th Sept, 1447. There and then, he raped[iii] Joan, feloniously, and lay with her carnally. On encountering the pair in the act of intercourse,[iv] John Couke raised the hue and cry. At this, Joan fled, for shame and fear,[v] through the street called Holyrodstret, to the stream called Douks Brouke. She was found dead, with her throat cut, in this stream at around 7 a.m. on 12th September, by one John Mabyll of Newport, glover. The jurors did not know who had killed her. ‘Therefore  they said that John Hunter had caused her death.’[vi]

The matter was brought before the King’s Bench fairly swiftly – in late January, 1448, for once, an accused person who did not attempt to delay things. John Hunter said that he did not need to answer this accusation, because the indictment was not sufficient in law: the coroner did not have the power to inquire into such a matter. The court agreed that it was insufficient, and John Hunter was acquitted.

So what?

Following the usual monotonous pattern, we see yet another man (and yet another churchman) accused of sexual misconduct going free. It is important to register that. There are, however, some quite unusual aspects, hints of thinking by those involved in medieval ‘criminal justice’ which seem worth pointing out.

First, there is the narrative around the sexual offence. It features that lack of conformity with modern, consent-based, definitions of rape, and that disturbing tendency towards assigning culpability to the penetrated woman, through linguistic implication of willed action on her part. Joan is portrayed – presumably with some plausibility – as having been shamed as well as afraid, and running from the hue and cry, as if to suggest that she would be held to have been at fault.

Then there is the causation point, and it could be argued that this goes against the ideas of ‘victim-blaming’, or adoption of the rape myth that all or most women actually are complicit in their own violation. Although their attempt to form a workable indictment was, in the end, rejected by the court, the inquest jurors did choose to tell the story of the rape of Joan, in a forum which was, strictly, supposed to be confined to ‘how the deceased came by her death’ – i.e. the immediate context of that throat-slitting which occurred some hours after the rape, and which was perpetrated by person or persons unknown, and they did attempt to place blame for the death on the rapist, John Hunter, not in the sense of saying that he slit Joan’s throat, but in the broader sense that he had been culpable in creating the situation which led to her death. Ideas about causation are often rather hard to discern in the brief records of the medieval common law, so it is very interesting to see them emerging above the surface here. Causation is far from a straightforward issue, and continues to be debated in criminal law, and in tort. In truth, there is a large degree of moral choice as opposed to clear, logical, inevitability, about decisions that A caused B. This does seem to be something of an outlier, in arguing that a person should be held culpable in relation to a death perpetrated by another, on a person he harmed in a terrible but non-fatal way, at some distance in space and time from the scene of his crime. Wouldn’t it be good to be able to see how they arrived at this interpretation?

Of course, it is possible to reconcile these two apparently inconsistent aspects of the case, by imagining that, although the jurors would often in fact have been unsympathetic to a woman who was raped, their allegation that Hunter had caused Joan’s death was caused by the fact that they were really, really hostile to this particular vicar, and wished to do him a bad turn.

GS

2/7/2022

 

[i] Completists may also want to see this.

[ii] As pictured – sort of – the medieval chapel was demolished and rebuilt, as can be seen from  this,.

[iii] It’s a rapuit, with all of the potential uncertainty of that word. It seems appropriate to me to translate it as ‘raped’ here.

[iv] carnaliter communicantibus, I think.

[v] pro pudore et timore

[vi] fuit causa mortis prefate Johanne