Tag Archives: Gwen Seabourne

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

Approvers, abjuration, accessories and adultery allegations: a Lincolnshire petty treason saga

 

I had left off from the petty treason work for a bit, and was looking for mayhem stuff today, but somehow petty treason doesn’t seem keen to leave me alone – and this one caught my attention, in the Easter 1377 E KB plea roll: a Lincolnshire case involving an approver (i.e. somebody telling tales in an attempt to save his own skin) and an accusation of husband-killing, with a dash of adultery…

The roll notes that Peter de Walworth of Winterton became an approver before the king’s coroners,[i] and acknowledged that, on Thursday 30th January, 1370, he had feloniously killed Geoffrey de Stokes at Winterton, and appealed Robert de Nafferton, vicar of the church of Winterton, and Thomas, Robert’s servant, of being accessories, and also appealed Katherine, Geoffrey’s wife, of having consented to the killing, and abetted it.

Before another coroner, it was presented that Robert de Nafferton, and Peter, here said to have been his servant, had confined Geoffrey in the vicarage, in relation to a loan of money, and, on the aforesaid Thursday, murdered Geoffrey (it uses this word) with a hatchet to the head, and then buried the body in the vicarage pig-sty, to hide the murder.  This presentment also apparently accused Katherine of consent and help.

The matter now came before KB, but it was said that Katherine had already been acquitted before GD Fri 28th February 1371 (and furthermore that she was ill now).  A search was made, and the relevant GD entry found, which showed that a jury had indeed acquitted her.

This entry put the narrative of the offence in similar terms, though there are some nice touches, such as the phrase on intention/malice aforethought, an area of much debate in modern scholarship, which is ‘ex malicia longo tempore pr[a]ecogitata’, and a bit of scandal-mongering, or mud-slinging, accusing Katherine of adultery with Robert the vicar.

The coroner’s rolls were also examined, and these showed that Robert de Nafferton, alleged naughty vicar, had abjured the realm for this offence. Here and here are records of this abjuration – he was sent off to go to foreign parts via the port of (Kingston upon) Hull. Katherine had been charged and found not guilty. This can be confirmed by cross-referencing the gaol delivery roll entry here.  She was now acquitted (again).

So what?

Well, briefly, there is an interesting narrative, with resort to an adultery story to tie in the woman. It is also interesting procedurally and socially, in terms of the long exposure of Katherine to the risk of being found to have killed her husband: if nothing else, it should show the extent of the impact of the law of petty treason on individual women – the apparent inability of the system to put an end to potential liability meaning that a substantial number of years of Katherine’s life are likely to have been affected. Pretty terrifying.

 GS

12/3/2022

[i] On Peter’s wider career as an approver, see this GD entry.

Casting the first stone, and then a few more: contemptuous trespass in Westminster Hall

A very brief comment this time, but this Middlesex entry from the King’s Bench plea roll for  has got me thinking …

It’s one which has some bearing on my mayhem project, but also resonates with other areass which interest me – women, assessment of injury, and no doubt more.

The entry notes that Katherine de Coresle was attached to answer the king and Thomas de Slene in a plea of contempt and trespass. Thomas complained that, on the Saturday after the feast of the Ascension, 31 Edward III, attacked Thomas with force and arms, i.e. with stones etc.,[i] in Westminster Hall, in the presence of the king and his justices, hurting him (Thomas, not the king), in contempt of the king and damaging Thomas to the extent of ten pounds.

Katherine denied everything, pleaded not guilty. She put herself on the country. Thomas did likewise. The jury said that Katherine was guilty of the trespass, and set damages at 6s 8d. Having viewed Thomas’s wounds, the court decided that the jury had been very mean, and raised the damages to 20s. Katherine was to be taken into the custody in the Marshalsea prison.

I have not found any additional information on this, so far, but it certainly seems an arresting incident (assuming that it happened … obviously, we can never be sure, but this does sound like something which was supposed to have been done in such an open manner that a lot of people would have to have been lying through their teeth – or something else fairly outrageous would have to have been going on – for the jury to come to the conclusion that Katherine was guilty of inflicting the wounds Thomas was confirmed to have sustained). If it is true, then, we have to get our heads around the idea of a woman lobbing stones at a man, hard enough to cause serious harm, within Westminster Hall, apparently without concern for the august personages also present there.

Another thing which leaps out is the differences between the various sums put forward as appropriate damages for Thomas’s injuries. We have:

  • the sum Thomas claimed – ten pounds
  • the sum awarded by the jury – six shillings and eight pence
  • the sum awarded to Thomas after the court inspected his injury – twenty shillings.

… or, if we feed this information into the National Archives currency converter (one of my absolute favourite things …) that would be (roughly …): (i) 27 cows/50 days of wages for a skilled tradesman; (ii) no cows but 16 days of wages for a skilled tradesman; (iii) 2 cows/50 days of wages for a skilled tradesman. (I assume that the reason that the maths looks a bit odd is that it is assumed you would not be able to buy seven tenths of a cow …). It does suggest a high degree of both over-claiming and under-valuation by juries. There is so much to think about, in terms of how sums of money were attached to particular offenders, victims and injuries – hard to say much at the moment, but I am compiling a bit of a database … slowly! It does always strike me as interesting that there is a level of confidence amongst common lawyers that a court is capable of assessing somebody’s level of injury. Worth bearing in mind in the history of the development of medical expertise/ forensic medicine.

GS

11/3/2022

 

Image: some stones. In case anyone is not sure what they look like …

Photo by Michael Surazhsky on Unsplash

[i] The stones might have been fictitious/conventional, but they were not the usual weapons/projectiles encountered in trespass weapons lists, so I don’t think it’s too much of a stretch to think that they actually meant that stones were involved.

Oral mayhem and legal memory: interim thoughts on non-fatal injury

One of the areas which I am investigating this year is the appeal of mayhem, a particular form of ‘criminal’ procedure in English common law, from the medieval period (13th C) to the early 19th C, dealing with non-fatal physical injury. I gave a bit of an introduction to the project in this post. I am still working away at this, and this post is part of the process of making sense of some of the points which are emerging.

Some of the biggest ‘headlines’ so far are:

  1. The appeal of mayhem emerges in what looks like a rather messy and fitful way, in the 13th C, from a combination of pre-existing ideas about compensation for non-fatal injury and an excuse made by men who were at risk of having to engage in trial by battle, but who were not in a fit state to fight in this way.
  2. Certain sorts of injury were regularly noted as ‘counting’. These included fairly obviously hampering ones – loss of hands, arms, legs … but also (some) teeth and testicles … apparently directly linked to fighting ability.[i]
  3. The roots in fighting struck deep in the legal imagination, with accounts in ‘textbooks’ and judgments regularly featuring a nod to reduction in ability to fight as the thing defining the sorts of injuries covered by mayhem. This was the case down to the 20th C, in criminal cases which purported to summarise the old law. (It was, however, soon forgotten that we were talking about a particular sort of fighting, and this came to be expanded to a ‘defence of the realm’ idea, from the early modern period).[ii]
  4. Despite this persistent link with fighting in accounts of mayhem, plea rolls and law reports tell a different story. Women (who did not have to/ could not fight trials by battle) are occasionally to be seen bringing appeals of mayhem, either alone, or in conjunction with a husband, for injuries to themselves, and there does not seem to be any objection to this.

Adding to point 4, there are some cases from the 14th C which do two interesting things:[iii] They show that it was thought possible to base an appeal upon injuries which could not really be presented as having a link to fighting of any sort, and they were sometimes explicitly linked to some other functional damage. This post will introduce this group of cases: the ‘oral mayhems’.

The wrong sort of injury?

I should say straight off that some oral injuries were included in the standard lists of mayhems in treatises – Bracton, Fleta etc. did say that (some) teeth (i.e. the bitey ones as opposed to the grindy ones) were covered. They definitely did not include tongues, however. This makes a degree of sense in the fighting context: hard to see how a tongue would be particularly useful in combat (except in so far as it enabled the fighter to engage in provocative and destabilising insults, or to ‘cry craven’). Even so, there are 14th C cases involving tongues, including an appeal of mayhem which forms part of the mass of litigation surrounding the alleged attack on Agnes de Haldenby in the reign of Edward II.[iv]

Perhaps this was (or became?) controversial – certainly, there was a piece of legislation from the early 15th C which made intentional/malicious tongue-removal a statutory offence (with ‘the pains of felony’).[v] Nevertheless, it rather muddies that nice, clear, fighting-related list of injuries acceptable as foundations for an appeal of mayhem.

 

The wrong sort of justification?

I have found a couple of cases so far (both from the 1340s) which move us even further from the mayhem/fighting nexus. These involve men being bashed in the face, and suffering injuries to their teeth and mouths. Rather than attempting to present them as ‘loss of fighting teeth’ scenarios (the wrong teeth, perhaps?) they both reinforce the claim that the injury damaged the claimant by stating that it has impaired his ability to eat and to communicate.

For example, a set of entries relating to a Northamptonshire incident show that John Hunt of Stoke brought an appeal of mayhem against William de Duncote, alleging that William, on 22nd August, 1345, in the fields of Duncote, with a pikestaff. feloniously hit him in the mouth, knocking three front teeth out of his lower jaw  so that he lost much of his ability to chew, eat and talk.[vi] This was, arguably at least, ‘the right sort of injury’ – no doubt one could explore whether or not lower incisors counted, as well as upper ones, but let’s not – but the explanation was not in accordance with an idea of loss or reduction of fighting ability (except in so far as a person who can’t eat very well, or talk very well, will probably be undernourished and may be isolated and depressed – but that is all a bit indirect). I think we are seeing a wider conception of mayhem here – one which, if we extended it into the ‘public’ sphere, would end up looking rather more like a ‘burden on society’ type of damage  as opposed to the ‘loss of a defender of the realm’ line which has been picked up in modern commentary.

The other example so far found is in very similar terms,[vii] suggesting that this claim of impairment of communication and eating was ‘a thing’ in contemporary mayhem. It really does take us some way away from the idea that fighting ability lay behind this category and procedure, as actually used.

 

So what?

Ah, the eternal question … Well, it does ‘trouble’ the existing encapsulations of mayhem which one encounters in criminal law cases (like R v Brown),[viii] and which trace their roots in early modern accounts which themselves took medieval treatise accounts, as opposed to what actually happened, as ‘the law’.[ix] This matters from a ‘purist’ point of view, and for understanding of medieval history, ensuring it is not misrepresented to make ourselves feel better and less brutal etc. It may also matter from a more instrumental/practical point of view. The way in which the slightly mythologised view of mayhem comes up in modern law discussions tends to be in the ‘back to front’  context of the possibility of exculpatory consent to objectively physically damaging practices such as S & M sex or permanent body alteration. These may use arguments based on old statements that one could consent to low-level injury, but not to mayhem. Leaving aside the fact that some of the injuries involved would not have qualified as mayhems even if the treatise accounts represented ‘the law’,[x] it is notable that the ‘fighting’ line is maintained very strongly. These medieval cases seem to me to show that mayhem was not all about damage to fighting prowess. Now, I am not especially in favour of dredging up historical concepts to support modern policy decisions, but, if you are going to throw them into the mix at all, you should probably avoid over-simplification and comforting othering and contempt of the brutalised past. There was clearly rather more to the medieval law and practice on mayhem than fighting. Or testicles.

GS

7/3/2022

 

Image – OK a bit tenuous: a pike rather than a pikestaff, as is featured in the John Hunt case. But it does have teeth … This is a photograph from the Freshwater and Marine Image Bank at the en:University of Washington. Details here.

 

[i] That’s a bit glib, I know – definitely need to think about the testicle issue some more. Can’t say it’s one of my areas of expertise.

[ii] Big parallel with Krista Kesselring’s excellent Making Murder Public (2019) to be drawn, I think.

[iii]… well, I think they are interesting, anyway … yes, undoubtedly should get out more …

[iv] SC 8/83/4109A; CPR 1317-21 p. 292 (etc.); KB 27/241 Rex m. 2 (etc.); KB 27/244 Rex m. 5d. For more on this, see my book, Women in the Medieval Common Law – yes, shameless.

[v] st. 5 Henry IV c. 5. Note that the tongue cutting itself is not called a mayhem here – it is seen as more of a thing done after a ‘real’ mayhem, presumably to stop the victim from speaking out about it.

[vi] KB 27/344 m. 18d  (AALT IMG 8893) This trundles on until Michaelmas 1346, when John Hunt was ‘done’ for a false appeal (NB this does not necessarily imply that there was anything wrong with his cause of action, and, had that been the case, it would be odd to find other, strikingly similar, allegations).

[vii] TNA KB 27/346 m. 38d (AALT IMG 9774)

[viii] R. v. Brown (Anthony) [1994] 1 A.C. 212, at 231, 262.

[ix] Yes, I want to make it Coke’s fault again …

[x] Without going into it in detail, the nettles, hot wax and fish-hooks in Brown would hardly work, would they?

Suspicion in Sussex: dower v. ‘petty treason’

Here is another case to add to the bit of my petty treason project which considers potentially instrumental use of allegations of husband-killing, as a way of clearing the widow out of the way of those whose interests would be reduced, if she was alive and able to claim her dower (or analogous interest) in the land he held. It is an early one, from the Curia Regis Roll of Easter term 13 Henry III (1229).[i]

Joscea, widow of Walter Josep sued Robert and Adam, sons of Walter Josep for land in Steyning, Sussex, as her dower. [In a primogeniture-based land system, one wonders why both sons had land, but who knows – perhaps one had alienated to the other in some form. Robert seems to be the elder son. The other thing to wonder about is whether Robert and Adam were Joscea’s sons or stepsons – it would be simpler if they were stepsons, and the way some of this is put might seem to suggest that, but, again, who knows!]. Anyway, so far, so predictable – dower disputes were very common in the 13th C. Happy families, eh?

The unusual thing about this dower dispute was the argument made for why Joscea should not have her dower. Given the topic I have trailed, it is probably obvious – Robert and Adam said that Joscea and her two brothers had killed (occiderunt)  Walter. To back this up, they said that Robert had appealed Joscea of this death in the county, and this had led to her arrest. This was a big claim, obviously, and there was a need to check it out. The sheriff was ordered to produce the record of this alleged appeal before the king’s justices at Westminster.  He did not do so, however, and Robert did not go ahead with his appeal. Was he ever serious about it, or was it just a way of hassling Joscea and disrupting her dower claim? If it was a ‘tactical appeal’, Robert and Adam might have thought that they were being clever, but the tactic backfired, because of the ‘rules of the game’ of medieval legal pleading. They had founded their case on the ‘she killed our dad’ plea, but to do that, they had effectively conceded that Joscea was Walter’s wife (something they could have challenged – this was a more common approach) and that the land in question was the right land for her dower. Once the appeal pleading fell apart, then, they had to lose, because they had conceded the things Joscea had to show, in order to get her dower. Joscea, therefore, got the rights in land which she claimed. Adam was taken into custody and Robert was in mercy for not prosecuting his appeal.

The allegation of husband-killing might still have caused Joscea some problems – the plea roll entry orders that it should be inquired into before the justices in eyre. I am not quite sure how to interpret this: was it the alleged killing which was to be investigated, or was it the bringing of the appeal?[ii] Something to think about and investigate before my summer paper on all of this.

One thing I do note is that there does not, at this point, seem to have been any difficulty with an heir bringing an appeal against his father’s wife, for (participation in) the killing of his father. Another one to throw at the puzzling issue of the relationship between the wife’s right to bring an appeal in relation to the death of her husband and the right of the heir to bring such an appeal, which I have written about in relation to later cases, e.g. here.

GS

1/2/2022

Image: St Andrew’s Church, Steyning.

[i] CRR vol 13: 1227-30 no. 2091; CRR 101 E 13 H III (1229) m 12.

 

Bumbling, Bitchiness and Cruelty at Queen Victoria’s Court

This is dangerously late for my tastes, but a serendipitous choice of podcast to accompany me on a walk the other day (something by Lucy Worsley on Queen Victoria) brought me to a story I had never known. Undoubtedly those who work on the 19th C know all about it, as may others with a better all round general knowledge, but I had not heard of the episode, and, as it happens, it has some relevance to a project I am just finishing (the one on ‘unknowns at the start of life’, inc. bastards and the beginnings of human life).

The episode involved a young(ish) aristocrat, Lady Flora Elizabeth Hastings (b. 1806), who occupied the position of Maid of Honour to the Duchess of Kent (Queen Victoria’s mother). She died in 1839, after something of a scandal, which does not make Queen Victoria and her court look at all good.

Briefly, the problem arose because Flora had a swollen abdomen, and of course it was rumoured that she was pregnant (no doubt euphemistically whilst being – shock – unmarried …. She denied it, but the rumour went round the court, and was enjoyed by those – including the Queen – who were at odds with the faction represented by the Duchess of Kent, and so, by extension, by Flora. A physical examination was insisted upon, and Flora agreed to it, despite the humiliation, because she wished to end the scandal and rumour attached to her name. The examination came back negative (though there is some suggestion that the doctors, despite having certified non-pregnancy, were suggesting to Queen Victoria that Flora might still be pregnant). Flora got very ill and died, however, and public opinion was against Victoria and her doctor. After Flora’s death, it was made clear that she was not pregnant, but had had cancer. The matter was much discussed in the press, and it did nothing for the reputation of court or medical profession.

Using a letter she had written to her uncle, Mr Hamilton Fitzgerald, published in the Morning Post (2) supplemented as to dates from the other sources below, the following timeline can be constructed:

 

  • January 1839. Flora comes to London, and has already ‘been suffering for some weeks from bilious derangement, … pain in the side and swelling of the stomach’
  • 10th January, 1839. she consults Sir James Clark, who, physician to the Duchess of Kent and the Queen. Clark’s treatment is unsuccessful, but Flora’s self-care remedy of ‘walking and porter’ results, she reports, in an increase in strength amd reduction of the abdominal swelling.
  • 16th February 1839. Clark comes to Flora’s room, accuses her of being pregnant and tries to get her to confess that this is the case. His sources are ‘the ladies of the palace’. Flora denies being pregnant. Clark says that the only way Flora can ‘remove the stigma from [her] name’ is to ‘[submit] to a medical examination’. The Queen was in on this plan, and effectively ordered the examination. Flora named some other ladies of the court as having been particularly active in setting this up, though the Duchess of Kent is exonerated.
  • 17th February 1839, the examination went ahead (interestingly, the consent of the Duchess of Kent was required, while Flora ‘submitted’ in order to clear her name.  What followed she described as ‘the most rigid examination’, at the end of which ‘her accuser’, Sir James Clark, and Sir Charles Clark, signed a certificat ‘stating, as strongly as language can state it, that there are no grounds for be[1]lieving that pregnancy does exist, or ever has existed’.
  • 8th March 1839 Flora writes to her uncle, setting out her story.
  • 5th July, 1839. Flora dies. Post mortem examination, at Flora’s request, by Sir Benjamin Brodie and Sir Astley Cooper,  which published its findings officially, and found that she had died of ‘long standing disease of the liver’, and that ‘The uterus and its appendages presented the usual appearance of the healthy virgin state.’ (1)

As the Lancet put it,

 ‘The publication of this post[1]mortem examination is the best reply which could have been given to the slanderers of an illustrious personage, and of a distin]guished physician. No mental emotion could have produced, or even considerably accelerated the progress of the diseaae from which Lady FLORA HASTINGS died ; and if the symptomatic swelling of the abdomen were, by some, mistaken for pregnancy, it could not have been by one who knew that in pregnancy the swelling is developed from below upwards.’ (1)

There were, shall we say, differences of emphasis in terms of whether it was an outrage or a rational scientific thing to insist on examining Flora’s abdomen. Guess which side the Lancet was on … want a clue?

 ‘Had Lady Flora Hastings permitted her physician to have made an accurate external examination of the abdomen, at an eurly stage of her complaint, she would probably have been spared the pain and humttiation to which she was subsequently exposed. Many a female has undermined heutth and compro[1]mised existence, through similar feelings of mistaken delicacy’ (3)

(translation: ‘The ladies, eh – what are they like! It was her own silly fault!’]

 

The resonances this episode has for me, and my projects, concerns detection of pregnancy and the role of medical expertise in this. One of the things which comes out of an examination of the history of pregnancy detection in the more strictly legal context (for deferral of execution, or for the purposes of succession disputes) is that there was quite a difference between England and Wales on the one hand, and the rest of western Europe, on the other, in terms of who was given the task of saying whether a woman was, or was not pregnant. In England and Wales, the use of women – the jury of matrons, or jury de ventre inspiciendo – continued long after it was phased out in other jurisdictions, in favour of (male) medical professionals. Instinctively, we may see the medical professional model as preferable. This case troubles those waters somewhat – since it seems to bring home the questionable nature of medical expertise (and ethics?). It certainly damaged the reputation of Sir James Clark himself. It does make me wonder whether, at that stage in the history of medical research and education, there might have been some over-claiming of expertise.

To somebody coming from a modern Law School, the case also, of course, raises the hackles, in that it seems to amount to the forcing upon a (very sick) woman of an unpleasant and humiliating examination. For all that Flora agreed to the procedure, after her initial horror, this appears very much to have been something she thought she had no real option not to suffer: the rumours and scandal were bad enough, but she was also told that she would not be allowed to attend court functions if not ‘cleared’ of being pregnant (and thus a total, hopeless, sinner …) Neither Flora nor contemporaries seem to have gone down a ‘coerced consent’ line in their objections, but there was certainly outrage at the gossip and the persecution of this poor woman, and the rough, questionably competent and generally unpleasant conduct of the doctor.

Queen Victoria not at all nice – official.

GS

1/1/2022

 

Image – Flora, from source 4, below. Not a very good drawing, I must say.

 

Sources:

  • ‘Lady Flora Hastings’, Lancet, 32, no. 828, 1839, pp. 587–587
  • ‘The Late Lady Flora Hastings’, Lancet, vol. 32, no. 833, 1839, pp. 762–763.
  • ‘Sir James Clark’s Statement of the Case of the Late Lady Flora Hastings’, Lancet, vol. 33, no. 842, 1839, pp. 126–126.
  • Horace Wyndham, The Mayfair Calendar : Some Society Causes Célèbres. (Hutchinson, 1925).
  • D. Reynolds, ‘Hastings, Lady Flora Elizabeth (1806-1839) courtier, ODNB.

‘No Freman …’: Frank Herbert’s Dune Novels, the Updated Unofficial Legal Historical View

 

It has long struck me that science fiction/fantasy is an interesting source for submerged ideas about the legal past. Many of them have ‘sort-of-medieval’ societies, which are set up using assumptions and constructions about medieval law, and other legal ideas can be detected too. The Dune novels of Frank Herbert[1] cover a great sprawl of imagined time and space, in a far-future in which there are multiple planets with human(oid) civilisation. There are various massive changes over the six books in terms of forms of government and social organisation, and focus changes between various groups and individuals. They include numerous references and clues to the legal underpinnings of the various societies involved. These come from a particular perspective – that of the ‘western’ male of the mid-twentieth century, and from a society in which Anglo-American law is a formative influence. Whatever is the equivalent of the ‘Overton window’ for imagination is limited for all of us by such a background, and it is possible to see numerous debts to ideas about law which are clearly based on popular perceptions from Herbert’s own time, as well as that time’s popular perceptions of the legal past. I have enjoyed thinking about this, and I think that there is scope for much further consideration of sci-fi/fantasy as a source or prompt for Legal History.

Here, for what they are worth, are my thoughts.

In the period of the first book, the main systems of law/norms which we see are (i) what I would call the ‘general law’ – overarching rules applying to the Imperium and its constituent parts; and (ii) the specific laws/customs of the Fremen of Arrakis, a.k.a. Dune, a desert-living people, the conception of whom owes much to a 1960s US conception of Arab peoples, viewed through the lens of the film Lawrence of Arabia (1962).

The basic constitutional set-up is that there is an emperor, and a set of hereditary rulers of planets, or planetary systems, owing allegiance to the emperor (leaders of the Great Houses and the Minor Houses). We don’t hear much about the lower orders – though there are definitely slaves.[2] In Dune, the ‘basic law’ governing relationships here is the Great Convention (GC), a ’universal truce enforced under power balance maintained by Guild, Great Houses and Imperium’.[3] It is not quite clear how detailed this is: is this a ‘codified’ legal world’ – should I be thinking of sometihng the length of Magna Carta or something more like the Code Napoléon? Another source of law is legislation by the Landsraad, which seems to be a sort of parliament.[4] There are also imperial Orders in Council.[5]  And public law fans everywhere will be thrilled to learn that there is some rumbling about wanting a proper written constitution.[6] After the first book, things get a bit messier, and there is much more tyranny, much less in the way of widely-agreed rules.

An aspect of the system-building in Dune that I like is the mixing of ideas of hereditary rule with those of corporate law and structure. The relationship between the emperor and the Great Houses is complicated by the presence of a corporate vehicle, CHOAM. Shares, and corporate roles, in this huge development company go along with position in the hereditary structure. I suppose what appeals to me about this is the idea that the crown and hereditary power organisational model is not some sort of high-minded ‘noble’ thing, above the fray capitalist structures: it is all about the money, and employs whatever legal vehicles maximise profits for a limited group of people.[7]

Law and tyranny:  ‘Law is the ultimate science’[8]

It would be safe to say that there is not a particularly positive view of law, overall. We have various statements to the effect that law does not work, or is counter-productive (often, it must be said, from those who would rather not be fettered by any silly rule-of-law nonsense …) Thus, once he is emperor, Paul Atreides is not very keen on the idea of a constitution (which would of course, tie his hands somewhat): ‘Constitutions become the ultimate tyranny’.[9] Convenient. Just begging for a ‘discuss’, isn’t it?  Jessica and Alia agonise over the law/religion/government relationship.[10] The Bene Gesserit Sisters also have an idea that they are above the law, obeying a higher morality.[11]

More general and unfocused law-slagging-off can be seen, e.g. here: ‘What is law? Control? … Law – our highest ideal and our basest nature/ Don’t look too closely at the law. Do and you’ll find the rationalized interpretations, the legal casuistry, the precedents of convenience. You’ll find the serenity which is just another word for death’.[12]

Often, a dim view is taken of the utility of law (which, in a slightly inexact/lazy twentieth century view seems to mean positive, statutory, criminal, law): ‘Laws to suppress tend to strengthen what they would prohibit.’[13] This is coupled with a slur against the legal profession (otherwise notably absent) which seems a bit lazy and out of place – ‘…This is the fine print on which all the legal professions of history have based their job security’.[14]

The rather limited view of law on display clearly does not involve any room for discretion, mercy, equity. These things have to be supplied from without: ‘Laws are dangerous to everyone – innocent and guilty alike… They have no human understanding in and of themselves … Laws must always be interpreted. The law-bound want no latitude for compassion. No elbow room. The law is the Law!’[15] Apparently legal history scholarship on mercy, pardons, equity, will not survive into the time of the Duniverse …

The God-Emperor Leto II rather gives up on law as a tool of control, preferring religion as a way of keeping people occupied and in order.[16] He sees a need for (civil) law in cities, where ‘many injuries occur’, but there is a significant ‘downside’: ‘ The law develops its own power structure, creating more wounds and new injustices’.

On a more technical legal-scholarship level, I am not sure what public lawyer colleagues would make of the attempts to differentiate ‘law’ and ‘regulation’ in a discussion between a BG sister and the chief Honoured Matre in the last book: ‘If you do not see the difference between regulation and law, both have the force of law/’[17] (Eh?) The following account definitely does not fit in with ideas about Law in historical context: ‘Laws convey the myth of enforced change. A bright new future will come because of this law and that one. Laws enforce the future. Regulations are believed to enforce the past’.[18] Another relevant distinction is that between law and custom. In the first book in particular, we see customary law amongst the Fremen (more below). There is even the odd bit of jurisprudence – an undead philosopher trashes natural law and has a go at classic seminar question ‘What is justice?’.[19]

Substantive legal rules

Many of these are alluded to through the series. I will note just a few here.

In terms of content, the GC includes rules, each beginning ‘‘the forms must be obeyed’.[20] The chief rule is that no atomic weapons to be used against a human target. The penalty for transgression is planetary obliteration.[21] A much later summary of the rule is ‘You blast anyone and we unite to blast you’.[22] Some weapons appear to be on the edge of legality under this rule, particularly the ‘stone-burner’ (radioactive, deadly, blinding …).[23] There is also the Dictum Familia – setting up the rules on non-prohibited assassination (because informal treachery would be really bad …) and strict rules about kanly (feud or vendetta), involving swearing kanly, and then being entitled to kill all agents of the House against which it has been sworn.[24]

The general thrust, then, seems to be an agreement which does not aspire to genuine peace, but tries to keep a lid on excessive disorder by setting a few rules. The kanly idea has certain resonances with ideas about the early medieval period, and the assumed ubiquity of the ‘blood feud’, but with no real central effort to channel people’s grievances towards compensation rather than vengeance (as we see in many compensation-tariff codes set out by central authorities across western Europe in this period).[25]

The GC also includes rules against computers (artificial intelligence having somehow sparked off the ‘Butlerian jihad’, a major upheaval …) and there is an exhortation to ‘Make no device in the likeness of the mind’.[26] Rather of its time in terms of Legal History – the genie is rather too far out of the bottle for this to be a possibility in our future.

Other aspects of organisation are not explicitly tied to the GC or particular legislation, but seem to have the status of law. Family law and succession are clearly important. There is an idea of monogamous marriage, but also other forms of relationship amongst the ruling classes. Baron Harkonnen seems to favour young male partners, and nobody seems to be bothered.[27] The series generally portrays heterosexual pairings, which, I suppose, is characteristic of limits on imagination at this period, as well as being tied to its disturbing obsession with breeding (eugenics really).[28] There is a hint of rape-myth thinking in a statement about submission ‘to a form of rape at first only to convert this into a deep and binding mutual dependence’.[29] Don’t think so, though such views can certainly be dredged up from any study of the history of rape. Probably the most disturbing aspect of sexual behaviour which appears in the series is the not-really-condemned ‘initiation’/ abuse of a male child by an older woman in book VI – perhaps we are supposed to think that this is not wholly abusive and grim because the child is a reincarnated version of somebody who was previously mature. Clearly terrible. A reminder that there were some very wrong ideas about this sort of thing floating about in the not-too-distant past.

Powerful men may have a concubine, and this is a relatively respectable position. Jessica is described as the concubine, or formal concubine, or bound concubine  of Duke Leto (who is unmarried, for political reasons).  As concubine, Jessica has a degree of power and respect, and her son, Paul, is regarded as legal heir to the Dukedom, and then rightful Duke, and Alia Leto’s legal daughter.[30] Still, it is a bit of an unsatisfactory position, even if Leto charmingly tells her that she is actually better off because he hasn’t married her (it seems to be his choice …) as that means she doesn’t have to eat formally with him every night.[31] The pattern is repeated in the next generation: Paul is ‘with’ his Fremen woman, Chani, but is going to marry the Emperor’s heiress, Princess Irulan. It’s OK though, because ‘this is a political thing … [and] that princess shall have no more of me than my name.’ [no sex, no kids – and the name thing shows that gender trumps rank …][32]

There are a few statements about property which are worth noting, in particular in the last book. In a fascinating exchange between the BG Mother Superior, Odrade, and a ghola (much reincarnated being), Teg, the view is expressed that ‘Ownership is an interesting question’, and it is asked  ‘Do we own this planet, or does it own us?’[33] Not a million miles away from some of the discussions arising in modern, thoughtful, Land Law work, which takes in the perspectives of indigenous peoples. Likewise the interpretation of the relationship between the BG and the planet they inhabit as one of ‘stewardship’.[34]

Fre-dom

We are invited – implicitly – to contrast the laws and treachery of the rest of the universe with the honour and law of the semi-nomadic Fremen. There is more than a touch of orientalism/romanticising the ‘primitive’ about this (and before we dismiss the latter as a term we would never use now, I did notice ‘ancient and primitive law’ as a heading within the classification system at a library last week). The laws and customs of the Fremen are strange to outsiders at first, but the suggestion is that they are logical responses to their unforgiving environment, with its extreme shortage of water. I don’t think we are supposed to see the Fremen as misogynist, but some of their rules definitely show the perspective of a man of the mid-20th C. No hint of Frewomen’s Liberation …

They may be Fre, but the Fremen are not individualistic. It is all about the group’s survival, and getting and retaining water.  The overall rule is: ‘A man’s flesh is his own; the water belongs to the tribe’.[35] Leading on from this, those who are net takers of water without providing anything to the group may be sacrificed, and rendered down for their moisture,[36] and the blind ought to be abandoned in the desert, presumably for similar reasons.[37] Taking it a step further, in a sense, it was, at least at one time, the case that ‘someone caught outside the sietch without a stillsuit was automatically killed. To waste water was to endanger the tribe.’[38]

Despite the whole group thing, there is also some sort of individual property right in water. Paul is entitled to the water of a defeated adversary, and Jessica retains rights in the bottled water she brought with her. Giving some of it up to the others whilst in the desert will be compensated tenfold when they get to the Fremen settlement.[39] There are also tokens for water from the common stock, which are involved in courtship (I love you so much I am giving you the moisture captured from somebody’s squished flesh ..). There also seems to be a limited idea of property in chattels – so things belong to people, but are shared out by the leader when somebody dies.[40]

Keeping one’s word is a big deal, and there is a consciousness of being especially honourable in this respect. Contracts are, of necessity, oral.[41] [No specialty rule for the Fremen …]

The Fremen use trial by combat not (just?) for things we would think of as legal, but to determine truth, under the ‘amtal rule’.[42]  Combat seems to be an all male affair,[43] and is to the death. Intriguingly, there is an echo of medieval trial by combat procedure, in that it has to be ensured beforehand that Jessica, who has the special powers of a Bene Gesserit ‘witch’, will not put a spell on a combatant.[44] There is also some form of ordeal – as when Jessica shows she is fit to be a Reverend Mother (this ordeal rather resembling the ordeal of the bitter waters, Numbers 5:11-31).[45] Ordeals are not confined to the Fremen: Paul is also tested by a Bene Gesserit Reverend Mother, to check his humanity (didn’t quite get that …) in a fancy process involving a poison needle and a box of (artificial) pain (if you can have artificial pain ..physiological/philosophical rabbit hole there …). Bit of a step up from hot iron, ploughshares and holy morsels of medieval European ordeals. Interestingly this is not founded on an appeal to God, but on psychological understanding of what humans and animals would do differently.[46]

Anyway, back to the Fremen. Combat is also the way one leader takes over from the last. The Fremen do not have hereditary leadership, but rather the strongest person (well, man) leads: ‘the one who brings water and security’.[47] Paul manages to change the rule, so he doesn’t have to kill Stilgar to lead. Instead, he has Stilgar go through what looks like a homage ceremony, kneeling, handing over his knife, swearing fealty.[48] Hmm – doesn’t sound that Fre to me …

Except there is relatively Fre love. For the men anyway. And assuming that they like women. At least there is a convention that women ‘are not taken against their will’.[49]  Nevertheless, there are certainly situations in which men get to do the choosing as to relationships – we see this after (15 year old) Paul beats Jamis in combat, and gets to decide whether to have his widow as his woman or his servant, or free her.[50] And families appear to decide who a Fremen woman will marry (relatively young).[51] So – not as fre-ly consensual as all that. Another aspect of Fremen Family Law which emerges is that there is a rule against incest: the death penalty (hanging on a tripod) applies to incest.[52] Exactly what amounts to incest is unclear, beyond the example of brother and sister which is the matter in hand in the passage relating to this law. One would have thought that the structure of society would have meant quite a lot of in-marriage within tribes, so the rules would have to be restricted to a small number of banned relationships.

One practical issue which is not addressed is how exactly initmacy works – I don’t mean the complex business of getting into somebody’s stillsuit, but the water issue. They are all so cautious about losing moisture, but there is the issue of, well, fluids involved in ‘the huddlings of sex’,[53] isn’t there?

Law, religion, witchcraft and eugenics: the Bene Gesserit

One of the groups involved in power and overthrow of power is called the Bene Gesserit. Not quite clear to me why that name would have been chosen – it alludes to good behaviour, and for legal historians has resonance with the commission to judges that they shall keep their role as long as they do not misbehave (as opposed to serving as long as the monarch pleases, the older, pre-17th C, rule which made it simpler to remove them). This has been taken to be important for judicial independence (though it can be exaggerated, because it does nothing to ensure that those who are appointed in the first place are independent types rather than subservient ones). I am not quite sure what that has to do with the Bene Gesserit in the Dune books, who are an order of women with highly trained physical and especially mental capacities. They are associated repeatedly with another rather 17th C-resonant thing, though: witchcraft. They are forever being called witches, and we even get a very witch-hunty citation of ‘Thou shalt not suffer a witch to live’ at one point.[54] They have a sort of ‘evil twin’ organisation – the Honoured Matres – in later books, these women being possessed of various skills including deadly foot-fighting abilities and extraordinary sexual abilities, but not particularly interesting from a legal/historical point of view. The BG are supposed to be sort-of sympathetic, but manipulative in terms of religion and mad-keen on eugenics (even though the little ladies don’t always get this right …and it is slipped in that their massive breeding programme apparently involves killing some children).[55]

 

History

Some glimpses of modern popular attitudes to history come through as well. There is a nice episode involving the emperor/tyrant/ weird wormy slug man, Leto II and some historians: he executed them, he said, ‘because they lied pretentiously’.[56] This was not your actual vivicombustion[57] though, so that was better than it might have been, he tells us. Not quite clear what was wrong with their work, but I might be able to think of one or two historical works which might conceivably fall into the category ‘pretentious’ … will say no more.

There is some more general comment on history. Partly it’s a bit trite (and borderline Toryish grumbling about historians revising things …in the wrong way):

‘Historians exercise great power and some of them know it. They recreate the past, changing it to fit their own interpretations. Thus they change the future as well.’[58]

I do think that there is a nice bit of insight/prescience about the way a lot of popular history has gone in a quotation put into the Chronicles of the Bene Gesserit Chapterhouse, which seems a fitting place to end:

‘The ease with which historians can be captivated is explained in part by the fact that bloody events exert a magnetic attraction on humankind. Historians … cater to that ancient human desire you see manifested in the mobs gawking at executions or pepople stopping to stare at the scene of an accident. Historians have the added incentive that catering to this bloody attraction often produces wealth and power. It is popular. Digging deeply into obscure events and the secret machinations of unknown people is not only more difficult, it is observably dangerous to careers’.[59]

I cannot say that working on some of the more grisly aspects of medieval law has brought me wealth or power, but there is some truth here, and it is certainly worth bearing in mind, as I return to the other thing I promised myself I would finish off today, on medieval petty treason (ft. burning at the stake) …

 

A Better New Year to us all: repeat it with me …

“I must not fear. Fear is the mind-killer. Fear is the little-death that brings total obliteration. I will face my fear. I will permit it to pass over me and through me. And when it has gone past I will turn the inner eye to see its path. Where the fear has gone there will be nothing. Only I will remain.”

GS

31st December 2021.

 

 

Photo by Ryan Cheng on Unsplash (Disclaimer – I admit that this is not actually the planet Dune …)

[1] I have read only the six novels by Herbert himself: Dune (1965) = I, Dune Messiah (1969 = II); Children of Dune (1976) = III; God Emperor of Dune (1981) = IV; Heretics of Dune (1984) = V; Chapterhouse Dune (1985 = VI). One day I may get around to reading the various sequels and prequels by others, but there is a limit to my current capacity for nerdery.

[2] I: 39. And obviously he does say ‘slaves’ rather than ‘enslaved people’. 1960s.

[3] I: 596.

[4] II: 75

[5] II: 76.

[6] II, 76.

[7] CHOAM rather fades from view in later novels, I am afraid, fans of company law/legal history.

[8] I: 252 ‘Thus it reads above the Emperor’s door’.

[9] II: 76.

[10] II: 252.

[11] VI: 154, Lucilla.

[12] II: 249.

[13] VI, 119.

[14] ibid. ‘Bene Gesserit Coda’. Sounds more like a grumpy, easy, 20th C thing to say, lashing out at ‘the lawyers’ .. might do as an exam question though!

[15] VI: 154, Lucilla. See also Odrade, 237.

[16] IV: 225.

[17] VI: 152, Lucilla, not really answering the question, it seems to me …

[18] Ibid., and Lucilla again.

[19] II: 151 – Duncan Idaho, a fighter turned zombie type of thing (generally positive character) says of natural law that it is a ‘myth’ that ‘haunts human history’. II: 156 is his go at justice. Fair to say he has no problem with dictatorial power.

[20] I: 596.

[21] I: 514.

[22] VI: 134.

[23] II, 55.

[24] I: 100, 161, 517.

[25] See, e.g. Lisi Oliver, The Body Legal in Barbarian Law (Toronto, 2011).

[26] IV:32.

[27] Duncan Idaho is a big old homophobe though: IV:321.

[28] Limits on the imagniative treatment of scientific development are always interesting – it seemed more likely that a massive, slow, eugenic breeding programme obsessed with ‘Atreides traits’ would be allowed to develop, rather than the ability to alter people more quickly, once born, to get desired characteristics, apparently. The development of living furniture (the ludicrous and unnecessary ‘chairdogs’ was more imaginable than gene-editing …).

[29] IV:209.

[30] I: 54, 57, 589.

[31] I: 54.

[32] I: 561.

[33] VI: 14.

[34] VI: 15.

[35] I: 241.

[36] I: 238, 316-7.

[37] II: 242. Cue a nice bit of legal tricksiness from Paul – he loses his eyes, but initially argues that because he can see with his mystical powers, he doesn’t have to be desert-ed. In the end though, he surrenders to the law, to become properly Fre (though also, to be fair, properly dead). The Fremen Law about sending the blind off into the desert is expressed as consigning them to Shai-Hulud (the great worm) in III:39.

[38] III: 286.

[39] I: 349, 351.

[40] I: 354.

[41] I: 320.

[42] I: 337.

[43] Possibly a little inconsistent with the existence of Fremen amazons – II: 111?

[44] I: 340.

[45] I: 401.

[46] I: 6-9.

[47] I: 328.

[48] I: 489.

[49] I: 330.

[50] I: 389.

[51] III:290.

[52] III:113.

[53] I: 332.

[54] III:58.

[55] V:29.

[56] IV, 70, Year 3508 of reign of Lord Leto, BG Chronicle reports execution of nine historians ‘who disappeared into his Citadel in year 2116 of Lord Leto’s reign… the nine were rendered unconscious then bound on pyres of their own published works.’ See also V:6.

[57] Yes, I have all the vocab – a result of my petty treason work …

[58] V: 403.

[59][59] V:6, Bene Gesserit Chronicles of the Chapter House, from Mother Superior Darwi Odrade’s Argument in Council.