Tag Archives: Gwen Seabourne

‘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

‘If you’re going to write [legal] histories … you have to do the research’

Weird when what seemed to be disparate bits of life come together, isn’t it? Just happened to me when scrolling through Twitter. Context: off (Covid and travel chaos permitting) to the British Legal History Conference in Belfast next week, and the Irish Legal History Society is sending helpful suggestions as to touristy things which conference-goers might do. The latest was highlighting the fact that parts of the TV series ‘Game of Thrones‘ were filmed in Northern Ireland, and there is stuff to see. A comment was made about GoT not being legal history, and I was reminded of the fact that I did once do a bit of a LH analysis of it (based on the books, not the series, granted, but it counts …). Time to collect and stick them up again, I think.

So, here, here, here,  here, here, and here for your delectation, are my pontifications on the subject. Clearly I was living a fulfilling and happy life in 2014 …

Now wondering how to find a tie-in for my similar great works on Star Trek, The Vampire Diaries and Lord of the Rings … (would work if next BLHC were to be at the University of Mordor, I suppose …). And possibly a few more thoughts on Derry Girls leading up to the SLSA conference there next year?

GS

2/7/2022

[And the quote, if you are wondering, is, apparently from s.7 of the TV series, to Tarly, by Ebrose. Thank you internet. May have altered it for added topic-relevance).

Picture: adding general royal vibe – Photo by Ashton Mullins on Unsplash

Veins, venom, a ‘leech’ and a canon: suspicions in medieval Cornwall

[This is a slightly updated version of an earlier post, from 2020, which had the same name]

This one is relevant to my continuing investigations in ‘petty treason’, as well as medical history, history of crime, religious houses and medieval Cornwall…

In 1431 (reign of Henry VI), a ‘leech’ (medical practitioner) and a canon of the Augustinian Priory of St Stephen at Launceston fell under suspicion following the death of John Honylond, who had been prior of the same house. As indictments and two plea roll entries show, the accusation was that John Leche, also known as John Lowell, leech, of Launceston, had killed the prior, both by poisoning his food and drink and also by a cutting procedure (per succisionem), aided and abetted by Richard Yerll, one of the canons of Launceston Priory. The killing was described as false, felonious and treacherous. It was also explained that Leche had been retained by the prior since 1427, after he had performed a surgical procedure on the prior’s leg, presumably giving satisfaction on that occasions. No reason was given for the alleged homicide, in regard to Leche or to Yerll.

The allegation that the killing was done treacherously (proditorie) is interesting (for those of us who like that sort of thing), in that it hints at even more disapproval than the usual description of such actions as ‘felonious’. It does not really say anything about the subjective intention or state of mind of the alleged offenders, but it shows that there is a possibility that this might be regarded not ‘only’ as felonious homicide (which would be punished by hanging), but as ‘petty treason’ under the 1352 Statute of Treasons (the punishment of which would include ‘extras’ in the shape of being ‘drawn’ as well as hanged). The statute singled out for specially brutal and spectacular treatment homicides which offended against particular hierarchical relationships: wives killing husbands, servants killing masters, religious killing their superiors. Women in these categories would be burnt, men drawn as well as hanged.

The common lawyers did not get a chance to sink their teeth into the thrilling areas of potential legal squabbling about categorising the relationships, or benefit of clergy, since the case never really got anywhere. Yerll appeared as required, but, since Leche, the principal, did not turn up, the case was delayed. Matters went on in the usual desultory fashion until 1438. Leche was acquitted in 1431, but, for reasons which are not clear, process against Yerll was not officially stopped until 1438. This anticlimactic dribble of an ending is not unusual: it was rare indeed for plea rolls to show convictions in this period. Correlation between the findings of juries and the facts of any case is not to be assumed. We will never know whether there was a conspiracy to bump off the prior, which is frustrating, but it is interesting to note the raising of suspicion against the medic and his alleged religious accomplice in this case.

So what?

Medical history

This bundle of parchment entries gives us a bit of a glimpse into the hiring of medical men by religious houses. It seems interesting that the prior apparently entered into a long-term arrangement with John Leech, for his benefit alone (not that of the house) and the description of the terms is also quite instructive: it sounds as if there was a particular condition which was the focus of Leech’s work, rather than a general idea of keeping the prior in good nick, but that this condition was regarded as potentially amenable to a cure.

It also gives rise to questions as to whether the accusation might have been due to a general suspicion of what was in fact standard practice, or criticism of what may have been aggressive or experimental medical and surgical interventions.

‘Petty treason’

Much of the work I have done on PT has looked at the ‘wife kills husband’ subspecies, since I am interested in women. It is beginning to dawn on me, though, that there are some big and engaging questions to consider, in relation to ‘the other sorts’, i.e. ‘servant kills master’ and ‘person owing faith and obedience kills prelate’. This case touches on both of these subspecies. The description of John Leech’s contract with the prior can only be in there to suggest that he is a ‘servant’ of the type covered by the ‘master killed by servant’ subspecies of ‘petty treason’ – I can’t see that it has any other relevance. We are even given the detail that he has an initial one-year contract, then it rolls on from year to year. It may be that this was how the agreement was actually set up, but I would say that it is interesting that these one-year periods are very reminiscent of standard ‘labourers’ contracts – so their inclusion does seem to be angled towards associating a ‘medical professional’ of some sort with the ploughmen, masons etc. of the 14th century labourers legislation, giving a clearer idea of hierarchical relationship. I do find myself wondering just who was covered by the ‘master-servant’ subspecies of petty treason – and perhaps fifteenth century people were unsure about this too. The canon-prior relationship between Yerll and Honylond is rather more obviously covered by the ‘prelate’ subspecies of ‘petty treason’, unless we want to get into just what the differences might be between different forms of religious organisation. (I do have questions about that – though will leave them for another time. Suffice it to say that I would love to find a case involving nuns, but not holding my breath on that).

 

References: scans brought to you by the magnificent AALT …

KB 27/680 m. 1R; KB 27/681 m. 6R; KB 27/686 m. 4dR.

KB 9/225 mm. 39, 39d, 40, 40d.

GS

18/6/2022.

Endangering life and making sure of death: lessons from a medieval indictment

Today’s rather late case note comes from the King’s Bench file for Hilary term 1467.[i] A jury in Sussex reported to justices at Lewes a serious assault upon a man called Richard Broun, which was said to have happened in 1465.

The story was that, on Wednesday 16th October, 1465, Thomas Balbyn, lately of Balcombe, Sussex, clerk, along with Ralph Canon, also lately of Balcomne, boatman (I think!) and other unknown malefactors, acting with force and arms, i.e. bows, arrows, bills, glaives, and staves,[ii]  lay in wait to assault, wound, kill and murder a certain Richard Broun, attendant (famulus) of  Thomas [Bourgchier], Archbishop of Canterbury, near Lewes. They took, assaulted, wounded and mistreated him, giving him a very serious (gravissima) head wound, and completely breaking his left arm and his right leg, deeply injuring his head, arm and leg, leaving him lying on the ground, as if dead. Wanting to find out whether he actually was alive or dead, they stuck their daggers in his leg, dreadfully (horribiliter), and, feloniously, robbed him of his goods, worth 3d, i.e. a staff called a ‘warderer’.[iii] Their actions, it was noted, caused the Archbishop to lose the services of his attendant for a long time, i.e. for a year and a half after the attack. All of this was ‘ against the peace of the lord king etc.’

So what?

Well, a few things leap out at me, no doubt based on current research obsessions as much as anything else. Here are the main ones …

The injuries

I am looking at mayhem, so the use of mayhem language in the description of Richard’s injuries drew me in. There may be a point to make about permanent and temporary injury – it appears that Richard recovered (since there is a time limit on the Archbishop’s loss, and since there is no mention of his death) so would that have been a mayhem such as might be appealed? I presume not, and that the word is being used in a more general sense, but I would be happy to take correction, if that is not right. Further thought required!

Whose damage matters?

Of course Richard Broun himself could have brought a trespass action against the perpetrators, and maybe he did, but it is quite hard not to take away from this document the impression that his interests are subordinated to those of others: the general interest of the king in maintaining his peace, and the specific economic interest of the Archbishop of Canterbury, who lost the services of his ‘famulus’, for a time.

Testing for death/life

This prodding with swords is nasty, but interesting in underlining the difficulty of working out whether or not life was present. I have looked at the other end of this quite a bit (the ‘has a child been born alive?’ point) but determination of death was clearly something which could be tricky as well. Presumably, the point of the prodding would be to see whether there would be a reaction. It might seem a slightly risky thing to do – why not just run?

Other medical aspects

It is most interesting that the story is that Richard survived, though he was out of action for 18 months. It does suggest that he might have had access to above-average care, as a member of the household of the archbishop, and perhaps, further, that he was in high favour.[iv]

GS

12/6/2022

[i] KB 9/315 m.5 – via AALT

[ii] You know the drill, not necessarily meant to be taken as true, but may have been partly true in this case, if it happened at all.

[iii] I feel unable not to direct you to the additional smutty nuance associated with this word.

[iv] Rather a shame that he has a pretty run-of-the mill name, and would probably be quite hard to track down. Planning to have a look in the relevant C & Y Soc register next week.

Image – just in case anyone does not know … arms of Canterbury impaled with those of Thomas Bourgchier, c/o Wikimedia Commons  – a little fussy, it seems to me – and, yes, I do reaslise that, in choosing this picture, I am lazily emphasising the loss to the Archbishop, just like this case! It’s all planned and not at all through laziness.

Labour law and extremely small medieval Londoners

I have noted a few cases on labour/employment law over the years, but this is a new one for me, and a fairly secure Year Book-Plea Roll match[i] – names almost line up, though there are some changes of story …

Let’s go to the London area, in the 1350s, and observe what is clearly a fairly extreme shortage of workers …

The entry, labelled ‘Middlesex’, sets out the case against Robert Brewer de Holborn and Elena his wife, and Matilda daughter of Philip de Cornwaile, recently servant of Thomas Cheris, cutler. These three were sued on behalf of the king, and himself, by Thomas Cheris, on a writ founded on the recent labour legislation (Statute of Labourers (1349), 23 Edw. 3, ch. 2). Robert and Elena had allegedly admitted Matilda into their service before her term of service with Thomas was up, and Matilda had left Thomas’s service before the end of her term, without licence or reasonable cause. Both offences were ‘in contempt of the king’, to the damage of Thomas, and contrary to the legislation.

Thomas’s contention was that Matilda had been in his service, in St Stephen’s parish, Coleman Street ward, London, under a contract which ran from 21st June, 1349 for the next seven years, but left before the end of that term. without licence, on 5th October, 1354, and was taken on by Robert and Elena in the St Andrew’s parish, Holborn, Farringdon ward, and retained, (in contempt of the king,  to the damage of Thomas – to the tune of 20 l., according to Thomas – and against the form of the ordinance.

Robert and Elena’s answer to this, as far as the plea roll was concerned, was that they had done nothing wrong, since Matilda was too young to have made a binding contract to the effect alleged by Thomas. Having examined Matilda in court and inspected her body, the court decided that she was within age, and could only have been about three years old when Thomas said she was initially retained, so that she could not then have contracted with anyone, or entered into a covenant. As far as the case against Matilda was concerned, Thomas lost – he would take nothing and was in mercy for a false claim. We might think that the case against Robert and Elena would have to fall too, given the problem with Matilda’s ‘covenant’ with Thomas, but not so: that case went on, and Robert and Elena, in the end, put themselves on a jury on the issue of whether or not Matilda was retained by Thomas as he stated in his writ. [Here, the entry ends].

The Year Book tells a broadly similar tale. One character is called William Brewer of Holborn, rather than Robert, and he is bringing, rather than defending the suit, and Matilda is said to be the defendants’ daughter rather than the daughter of somebody else entirely (though possibly that relationship is forgotten later on in the report – it certainly seems odd that it is not used in argument) but still, I think this is the one.

The YB story is that a  writ on the Statute of Labourers is brought against ‘a man and his wife’ (Ds) and their daughter, ‘M’. M had allegedly covenanted to serve P for seven years, but left without reasonable cause, before the end of her term. The Ds had then retained her, contrary to the statute. As with the plea roll version, there was an inspection of the girl, and it was decided that she was too young to have made a binding contract as alleged, so that part of the case failed, but the case against the Ds continued. Year Books being Year Books, we get more of an account of the sparring before the eventual issue was reached, and it is pretty interesting.

There was, apparently, some argument about the interpretation of the Statute of Labourers: the Ds’ counsel  argued that the statute concerned covenants for usual terms, i.e. one year, not seven. Essentially, the point was that it was incorrect to build a case on the statute here. Expanding upon this, it was argued that, if this was allowed, a writ on the statute could be used for a covenant for a lifetime of service, or for a thousand years – which was clearly regarded as ridiculous.

Counsel for the Ds also, we are told, had a go at making  something of a coverture point – the writ was against both H and W, but a feme covert could not employ anyone, as ‘all would be said to be the act of the husband’, and, clearly, it would be wrong for the wife to end up in prison for her husband’s act – so using the statute, which did prescribe imprisonment for this offence, would certainly be inappropriate. Willoughby JCP was not entirely in agreement with the coverture argument, and made quite an interesting intervention, to the effect that ‘common understanding’ was that, if somebody was retained in the service of one spouse, s/he was regarded as being in the service of the other too. (So, coverture fans, I suppose that indicates more of a unity approach to coverture than a domination approach – or, indeed, just something a bit more practical and a bit less in thrall to any particular theory; something which showed an understanding of employment in small scale ‘family business’ situations).

The YB has a little more on the question of M[atilda]’s age. It was a serjeant, Finchden, who showed her to the court, asking them to observe that she was nine, and so could not bind herself contractually. The court, we are told, both ‘saw’ and ‘examined’ her (luy vist & examina – let’s hope that this was nothing traumatic, eh?), and agreed that she was nine, so not bound by a covenant. They also made the faultlessly logical comment that she would have been younger when the covenant was actually made (‘a long time past’).

That sorted out the case against Matilda, but, agreeing with the plea roll, it didn’t mean that the Ds were off the hook. Argument clustered around (i) whether M could be regarded as having been in P’s service, despite not having been working there on the basis of a binding covenant, and (ii) whether or not there was a difference between removing M from P’s service and retaining her after she had left P’s service. Both pleading and statutory interpretation aspects of those questions came into play. Sensing that the court was not on their side, the Ds were scared off these legal issues, and just went to more general pleading,[ii] though there is a slight difference here from the ending of the plea roll entry. That had made the issue for the jury one of denying that Ds had retained M. Here, it is whether or not Matilda was retained by Thomas as he stated in his writ. This does seem to me quite an important difference, but I suppose that it indicates that the YB report writer had lost interest once the thing seemed to take this more factual turn, and so was not really bothered about what it was exactly that the jury was to decide. What he cared about was the cut and thrust of discussion in court, rather than the lives of little people outside the ‘Westminster (Hall) bubble.’

So what?

Well, there is all sorts here – pleading and statutory interpretation for those of a technical persuasion, employment practices and the treatment of children for those with more soc. and ec. hist. interests, and some chat about coverture for gender hist. types. I am struck, as ever, by the differences between PR and YB – it really does seem, sometimes, as if there is immediate and deliberate distancing of the material put into reports from the actual case involved. Perhaps needs a warning at the start like TV shows loosely based on true historical events.  (And no, let’s definitely not get into ‘what is truth?’ … )

 

GS

18/4/2022.

 

[i] YB Pasch. 29 Edw. III f. 27 p. 29;  Seipp 1355.085  = CP 40/381 m. 59d or a hat will be consumed … The YB account here is, of course, founded upon David Seipp’s work.

[ii] The YB report is interested, too, in the technical pleading point that this had moved from a purely legal argument to an issue of fact.

Image – site of St Stephen’s, Coleman Street … not very atmospheric, or suggestive of medieval labour law, I admit.

The charms of Cambridgeshire? An indictment for ignoble quackery

Here’s an interesting little story which caught my attention this morning …

It comes from the record of a gaol delivery at Cambridge castle, on Monday 25th February,1387, and the narrative emerges from an indictment before justices of the peace. The story was that a certain John de Toft had, on Thursday 26th April, 1386, come to Elsworth (apparently a ‘small and lovely south Cambridgeshire village’) to the house of a man called John Cowhird. John Cowhird was probably not able to hird any cows at that point, as, we are told, he was very ill (maxima infirmitate detentus fuit). John Toft allegedly said that he could and would cure John Cowhird of this illness. What was more, he would do this ‘for the love of god and for charity’. A good deal, so John Cowhird probably thought … all he had to do was let John Toft borrow two golden nobles (coins as opposed to those with inherited titles, you understand …). These were not for John Toft’s personal use – perish the thought – but to make a charm. He said that he had enclosed the two nobles in a sheet of lead, and made a charm which he hung around John Cowhird’s neck. In reality, it was said, John Toft had taken the nobles.

The jury found him not guilty, so matters end abruptly, and we hear no more of poor John Cowhird and his malady (nor of how it was that a ‘cowhird’ – if, indeed that was JC’s actual job – had gold coins lying about the place). Did John Toft ‘get away with it’ and live to cheat another day? As ever, we can’t know.

We legal historians are used to such frustrations, and have to be fairly ‘glass half full’ types in research, taking what we can from the provoking records left so us. In that spirit, here are a few quick observations:

  • On offences: this seems a rather interesting example of indictment for an offence of dishonesty beyond the usual mundane robberies and breakings and entries which are ten a (stolen) penny in these rolls. It is not dressed up as felony, despite the fact that two golden nobles would undoubtedly take it over the line into capital punishment territory: worth considering what that says about the contours of the various theft/fraud-adjacent offences in medieval common law.
  • On ‘medicine’: well, there is a lot going on here! We don’t find out what poor old John Cowhird’s illness was, but we do see something about beliefs and practices relating to medicine at a fairly low social level. It is not hugely surprising that it was thought plausible for serious illness to be cured by charms and masses, or the intervention of an individual who is not described as having any sort of ‘professional’ qualification. The complaint here is not that JC was tricked by a clearly fraudulent promise, it is that JT did not create the charm in the way he promised, and in fact made off with the nobles. It would seem to have been seen as a plausible method of securing a cure, to hide away some valuable for a period of time. This sort of trick has come up in another 14th C magic/fraudulent practice case I spotted a while ago – and clearly this sort of ruse depended on people accepting the idea of a ‘hide something valuable’ route to a (miraculously!) positive outcome. From an amateur psychological point of view, that seems fascinating – in the context of this case, it tells us something about medieval ideas relating to ill health and recovery from it, doesn’t it? It seems to me as if the idea is that the supposedly temporary renunciation of contact with one’s valuable chattels  is thought to have some influence over the course which the illness will take. Is this because it is a sacrifice/offering, or a demonstration of faith, both, neither? It also, perhaps, says something about medieval people’s attitude to their personal property: if being separated from it for a period, being unable to touch or see it,  was a significant sacrifice, then doesn’t that tell us that they felt a very strong link to it? One of the things in legal history about which I often wonder is whether we underestimate the intimacy of the loss felt by those of past societies whose personal property was stolen: it is easy to read back the strict distinction now felt between offences against the person and against property, but is that accurate, when we travel back to earlier periods? I do wonder about this for various reasons. This case may well demonstrate a blurring of the border which modern lawyers and others would see between bodily harm and harm to property: somebody like John Cowhird might well accept that his  physical wellbeing was linked to chattels, and, of course, there is a sense in which bodily survival and thriving is linked to the chattels which can be traded for food and shelter, even leaving aside the whole question of charms, magic and religion.

 

GS

25/3/2022

 

Image: more relevant than my usual efforts, isn’t it? It’s your actual noble, from the time of Richard II, courtesy of Wikimedia Commons.

The miller and his (alleged) killers: an approver’s appeal of petty treason

A little bit more petty treason trivia In this case from a gaol delivery roll for a delivery at Warwick, Wednesday 20th February, 1381, and subsequent proceedings…

The entry tells us that John Basset of Huntingdonshire had come before the sheriff of Warwickshire and one of the coroners, on Wednesday 6th February, 1381, and confessed, with details, to relatively small scale theft. and to being ‘a common thief’. He turned approver – accusing others of offences, in order to try and save his own skin –  and appealed John Wright of having been involved, with him, in attacking and killing one Ralph, miller of ‘Hulle Mulle’[i], on Saturday 20th February, 1378. He also appealed Juliana, Ralph’s wife, of consenting to this killing. John Wright and Juliana were therefore arrested. All three were brought before the court, by the gaoler. John Basset repeated his appeal. John Wright pleaded not guilty and declared himself ready to defend himself by his body, as was usual in approver appeal cases. Battle was to be at Warwick, Monday 22nd July, 1381. In the interim, both men were sent back to gaol.

Juliana also pleaded not guilty, but battle was not seen as a fit form of trial for women, so jury trial was agreed to there. Jurors were summoned for the same day as the battle. Juliana, too, was sent back to prison until then. It did not in fact go on on the day in question, for technical reasons, but it is noted that, on Monday 21st July, 1382, the two Johns were brought to court by the gaoler, all ready for the fight. They fought, and John Wright won. The approver, John Basset, was therefore hanged,[ii] and John Wright acquitted. Juliana was also acquitted (without jury trial) de accessorio.

This confirms, rather neatly, that, despite being later called ‘petty treason’. and being, from the mid-14th C, called ‘a sort of treason’, the allegation that a wife had killed her husband was treated more like a ‘regular homicide’ than treason, in so far as the non-principal was concerned. In treason, we would expect each person to be treated more or less separately – at least as far as the law was concerned. In homicide, though, a difference was made between the killer and those who assisted in some way, or agreed to the deed. Clearly, this is the way Juliana’s alleged offence was treated – as dependent upon that of John Wright – so that, when he was acquitted, she had to be, too.

It does add a bit of a footnote to my thinking on petty treason, in the context of approver appeals, and joint participation petty treasons. When women are accused of involvement in the killing of their husbands, it is quite often as accessory rather than principal, and such accusations, depending, as they did, on actions which might be read in different ways, or even just on ‘consent’, were relatively ‘easy to make’, at least the woman accused in this way by an approver would be acquitted if the ‘principal’ could beat the approver in battle. If the ‘principal’ was a strapping chap, that might feel like a bit of a better bet than trusting the case to the decision of a jury – the process in regular indictments. For a woman wanting to ‘bump off’ her husband, it might be quite a good strategy to work with a pair of assassins, one beefy and the other scrawny, to ensure that the scrawny one was caught, and rely on him turning approver against the beefy one, losing, and then logic dictating that you would be off the hook, if the principal ‘walked’.

No doubt I read too many twisty mysteries and detective novels and should get out more.

GS

23/3/2022.

 

[i] Feels as if it should be ‘Mill Hill’, but I am not wholly confident. Said to be near Castle Ashby, anyway.

[ii] We might wonder whether John Basset in fact made a very serious error here – he admitted involvement in a homicide, which put him at risk of execution, when it is not clear he needed to do so, since, if there was such a homicide, it seems to have been a bit of a ‘cold case’. And the value of his admitted thefts was not huge …

Image – some grain. Such as might be milled. Yes, a bit desperate/lazy, but nice picture, with, for me, suggestions of the fine ‘death by grain’ scene in the film Witness, Photo by Lutz Wernitz on Unsplash