Tag Archives: Gwen Seabourne

Canons and knives: death (and treason?) in a medieval priory

A ‘query petty treason’ case today – while I am most interested in the ‘husband killed by wife’ cases, it is worth remembering that the Statute of Treasons 1352 gives other examples of ‘sort of treason because against the natural hierarchical order of things’ cases. I do have some ‘servant kills master/mistress’ cases on my ‘table of doom’, but there is much less available in the other category – killings of abbots by their monks. Here, though, on two Cambridgeshire gaol delivery rolls,[i] is a case from 1403 which is, if not quite ‘monk on abbot’, tantalisingly adjacent to that. Having been very pleased with myself for finding it, I discovered that those hard-working early 20th C local historians had been there before me: there is a one-page account of the documents (complete with old style roll numbering) in The East Anglian vol. 13.[ii] Slightly miffed for a moment, but then, actually, I quite like making this sort of connection. Maybe one day somebody will do the same with this post … (delusions of being Emily Dickinson, or something, there …).

Anyway, on with the story. The deceased in this case was William Gilbert, priory of a rather small foundation in Cambridgeshire (I confess I had never heard of it) called Spinney. A bit of basic research reveals that this was a house of Augustinian canons, and, at the relevant time, had only a handful of residents.

The inquest before a coroner was held ‘ on 19th May, 1403. The story noted down from the twelve inquest jurors[iii] was that three canons of Spinney (also said to be confratres – ‘brothers’ of the deceased), John Lode alias John Catesson, Thomas Smyth, and William Hall, had killed him that same day (note speedy start to proceedings!). The killing, as described, was fairly drawn out. John Lode stabbed William Gilbert under the left arm, Thomas Smyth stabbed him in the back. William Gilbert then managed to get away into a different room, but the trio broke the door, and Thomas stabbed William Gilbert through his left arm, and his side, to his heart. It is carefully specified that each of the first two stab wounds would have sufficed to kill WG, had there not been another one.[iv] The geographical as well as physical locations are specified – the initial stabbing was said to have taken place in the priory church, and the final wound, in the priory’s hall, to which William Gilbert had fled in his failed escape bid.

The three were found guilty by a jury, at the gaol delivery session on 20th  July 1403, but escaped execution because they were able to take advantage of benefit of clergy, and were ‘claimed’ by the ecclesiastical authorities.

Petty treason: teasing out the definitional implications

What does all this tell us about petty treason? The account does use the language of treachery or treason – the trio had risen up like traitors, but note that the bond highlighted is not that between the killers and their prior, but between the killers and the king (tanquam proditores domini regis manu forte proditorie). If they were really seen as traitors against the king, it seems surprising that they were allowed benefit of clergy. What am I missing? And does this case show that canon-prior just was not seen as analogous to monk-abbot in this context? The reference to ‘fellow brethren’, as Palmer translates it, suggests a less ‘vertical’ relationship, doesn’t it?

Canon to the right of him, canon to the left of him … thoughts on the social implications

Assuming this is anywhere near true, it does make life at the priory of Spinney sound rather grim – a conspiracy against its leader involving what was probably the bulk of the others in the house. Note, though that one person did rather nicely out of it all – the sub-prior, who escaped indictment, and stepped fairly seamlessly into the top job once the dust settled …

 

GS

22/8/2021

 

[i] JUST 3/8/6 m.58 (AALT IMG 106);  JUST 3/190 m. 5 (AALT IMG 13).

[ii] W.M. Palmer, ‘Murder of the Prior of Spinney’, p. 104.

[iii] (who, I note, included a certain ‘Willamm Schakespeare’ … there you have it – evidence that W. S. was actually a member of the Undead …).

[iv] I am by no means an expert, but that third wound, right through an arm and side, into the heart, sounds as if it would have had to be particularly forceful. I also note that William Hall is not reported to have struck a blow at all. But then accessory liability – or treating as principals all with any sort of participation in the killing – was certainly ‘a thing’ in these cases.

Image: where the priory would have been if it was still there, but it isn’t. All sorts of symbolic ..

Neither loving, nor honouring, nor obeying the law on petty treason?

Today’s tale of less-than-happy relationships comes to you courtesy of entries on legal records from   1439.

A record of the Inquest at Bromham, Bedfordshire, on 18th May, 1439, on the body of Alice wife of William atte Halle of Bromham, labourer, notes the jurors’ view of events leading up to Alice’s death. They said that Alice had been pregnant, and suffering from a variety of complaints (whether pregnancy-related or not is unclear), and William had made the decision to kill her. On 7th May at Bromham, he had a certain dish (a posset? it would seem to involve milk curds – the word is balductam) made, and put various venemous powders in it, i.e. arsenic and resalger),[i] and gave the dish to Alice to eat, saying that it would make her well, and, believing his words, she ate, and was immediately poisoned, swelling up, being ill until 17th May, and then dying of that poisoning. He had, therefore, feloniously killed his wife. There is more: a record relating to the gaol delivery at Bedford on 30th July, 1439 notes that William was there because he had been indicted for having feloniously killed Alice, by putting poison (arsenic and resalgar) in her food on 7th May, so that she had died on 18th May. Above the entry, unless I am misreading it, we see a note that he was found guilty, and ordered to be drawn and hanged.

So what?

  1. The medical and personal information

There are some nuggets in the inquest record which are worth noting.

The account of the poisons used suggests a knowledge, and an availability, of these substances, down to a relatively lowly level. As for the swelling effect, and the lingering for 10 days, that is something which might be of interest to medical historians – is that plausible? Can we say anything about that without knowing how much was allegedly used, and how would one know that swelling was due to poisoning as opposed to pregnancy or other pre-existing conditions?

The narrative of William’s lies about the food being likely to help Alice get better also tells us something about plausible relationship dynamics: a wife would be likely to trust her husband; a husband of ‘labourer’ status might be involved in his wife’s care. I suppose it also tells us something about accepted nutrition for sick pregnant women.

  1. The sentence

Drawing and hanging was the classic punishment for ‘petty treason’. I have been collecting examples of spousal homicide for quite a while and I had got used to seeing a nice (well, not nice at all, but you know what I mean) neat distinction between the treatment of W kills H (= petty treason, those convicted are burnt) and H kills W (= ‘just’ homicide, those convicted are hanged). This looks like a court – or somebody – ‘getting the law wrong’ then. Maybe it’s just a ‘blip’, or maybe it shows us particular distaste for this offender, or these facts. On the face of it, it is presented as a ‘normal’ homicide – all we get in terms of motive is the usual ‘malicia’. There is no use of ‘treason words’ like proditorie, as we might see in a servant kills master, or W kills H case. There is the idea of William ‘imagining’ Alice’s death, which is something of a link with ‘high’ treason jurisprudence. Other factors which might be relevant are (a) the poisoning and (b) the pregnancy. Poisoning would be singled out as particularly worthy of spectacular punishment in the next century.[ii]  Might this suggest a whisper of a previous connection between treason and poison? As for pregnancy – well, the question of the common law’s attitude to the foetus, and its possible ‘rights’ is a huge topic, which I plan to get into rather more in the coming year, but suffice it to say at this point that, while it was thought worth mentioning by the inquest, the pregnancy is not mentioned in the gaol delivery entry, which, I think, is some indication that it was not considered to be the key to the raised level of offence.

An interesting oddity then, and I will have to work out how to fit it into my ‘spreadsheet of doom’ on petty treason.

GS

17/8/2021

 

[i] We’ve come across this combination before in the lore of spouse-offing: see this post.

[ii] ‘Acte for Poysoning’ (22 Hen. VIII c. 9; SR 3, p. 326).

Image: general theme of love and such … this one is clever but just a little sinister. Or maybe that’s just me …

Photo by Tim Marshall on Unsplash

‘Four seas’ and an island delusion: some thoughts on ‘bastardy’ doctrines

[This was also posted last week on the Centre for Law and History blog]

In August 1850, a jury in Liverpool heard the case of Wright v. Holgate. The jurors’ job was to make a decision about the ‘legitimacy’ of a child, Tom Wright. Was this three-year-old the ‘lawful’ offspring of Thomas Wright, butcher and cattle dealer, and his late wife, Susannah, or was he another man’s son, and thus a ‘bastard’ (specifically, an ‘adulterine bastard’)? The question had arisen during a dispute about property of the Holgates, Susannah’s family, who were cattle dealers of some standing in the Halifax area. If Tom was ‘legitimate’, he had a share; if he was a ‘bastard’, he did not. The jury heard a selection of views on the former spouses from acquaintances and neighbours, brought in to comment on whether they had had the opportunity to have sex at the relevant time, so that Thomas might be Tom’s biological father, and on the character of Susannah. She was portrayed, in the somewhat gossipy testimony,  as ‘no better than she ought to be’, and given to entertaining a variety of men other than her husband at her house. After only a short discussion, the verdict of the twelve male jurors came back: ‘bastard’.[1]

 

As far as the law of the time was concerned, that was the end of Tom Wright’s importance, and, since the relevance of ‘bastardy’ in legal and social terms diminished massively over the course of the twentieth century, this case might well raise in the minds of modern legal scholars that cold dismissive phrase: ‘of no more than antiquarian interest’. Even so, I am going to use this post on our newly-launched blog to suggest that there are, in this case, and in this area, some things which are worth the attention of thoughtful legal scholars of the twenty-first century, as well as those of us who are unashamed of our antiquarian tendencies.

 

‘[B]ound in with the triumphant sea’ [2]

Though the case ended up in a common law court in the port city of Liverpool, much of the action had taken place inland, in Halifax and Rochdale. That being so, my maritime references might seem a bit inappropriate, but there is a justification for getting a bit nautical when considering the law of adulterine bastardy. Accounts of it often mention a particular test for whether or not a husband would be presumed to be the father of the child: had he been ‘within the four seas’ at relevant times for procreation? The phrase was mentioned in the judge’s summing up to the jury in Wright v. Holgate:

‘When a married woman has a child, the presumption is in favour of its legitimacy. Formerly, indeed, the presumption was, that if the husband continued within the four seas, and was alive at the child’s birth, such child could not be a bastard. But now the law allows inquiry…’

 

Here, we see the splendidly named judge, Sir Cresswell Cresswell, taking a moment to contrast the enlightened times in which he and the jurors were living with what he saw as the less perfect doctrine of former times. He felt it important to tell them that the question as to whether a husband was, or was not, ‘within the four seas’ at relevant points was once  something close to being decisive of the legitimacy of a child borne by his wife: if the opportunity of access was shown, using this criterion, no further inquiry as to the probability of there having been sex between the spouses, or the likelihood of somebody other than the husband being the child’s father, would be permitted. As well as the touch of self-satisfaction that things were so very much better in the world of 1850, we may note that there is something of a lack of specificity as to just when ‘formerly’ was. The legal past is an undifferentiated mass, unworthy of closer consideration.

In fact, the law on adulterine bastardy in general, and the place of the ‘four seas’ idea within it, had been far from unchanging over previous centuries. My research in this area has led me to conclude that the question of whether or not the husband was ‘within the four seas’ was not always – perhaps not usually – quite as central as Cresswell’s statement implies. The treatment of the ‘four seas’ phrase, from its first appearances in medieval cases,  shows different levels of emphasis, as well as movement between less and more literal understandings, and between geographical and political interpretations of the ‘seas’ and the land they were taken to enclose.

There were always difficulties with delineating the ‘four seas’. Despite Shakespeare’s best efforts to suggest that it was a ‘precious stone set in the silver sea’, England never has been, an ‘isle’ (‘sceptred’ or otherwise). The inconvenient existence of a land border, rather than a sea, between England and Scotland was never quite overcome, there were complications to the west: was Ireland ‘within’ or ‘without’ the western sea, and what of more distant ‘possessions’ of the English crown? The neat phrase ‘within the four seas’ did not make a very sure foundation for a rule about presumed legitimacy, and it was de-emphasised, and weakened in practical importance, from the eighteenth century onwards.

Its day was long over by 1850, yet it continued to hold the imagination of those discussing this area. Sir Cresswell Cresswell was not alone in his reference to ‘the four seas’; they continued to echo in commentary into the twentieth century. This lingering is probably due, in part, to the power of a well-turned phrase on the mind and memory of common lawyers. An attractive image or phrase may draw attemtion to one part of a more complex area of doctrine, at the expense of inconsistent or qualifying factors which are less amenable to neat encapsulation.[3]

That leads me to ask why ‘within the four seas’ was an attractive concept to common lawyers of the ninetennth and twentieth centuries. I would like to suggest that its appeal lay in its fitting in with broader currents in the self-image of the common law, as a robust, independent, intellectual ‘island’, keeping at bay the ‘foreign’ forces of civil law and canon law. The law on bastardy was marshalled as an example of the distinctive nature of common law, holding back the tide of other ideas. An account of another, more prominent, nineteenth century ‘adulterine bastardy’ case was, for example,  at pains to point out England’s defiance of attempts to introduce ‘foreign’ rules with regard to legitimation:

‘In England the sturdy independence of our ancestors soon checked the encroachments of the priesthood. Neither the civil nor the canon law ever formed part of the law of the land.’[4]

Perhaps it is not too much of a stretch to imagine that there was mutual reinforcement between the idea of the common law as an intellectual island, aspects of its idiosyncratic and precocious centralised development acting somewhat as  ‘a moat defensive to a house, against the envy of less happier lands’, and the idea of the pre-eminence of a test founded upon the assumed existence of England as a discrete and identifiable sea-bordered landmass.

 

Concluding and continuing thoughts: a father for ‘no man’s son’, dried up doctrine and Doggerland

I started with a young child, his future prospects apparently settled by a brief jury discussion and a stark verdict of ‘bastard’. Another phrase which will be familiar to those who have looked at this area, (or, indeed, at nineteenth century literature), would seem to apply: as a bastard, he was filius nullius – no man’s son. If he really was regarded as not having a father, we might have expected his care to be left to the local workhouse. I am cautiously optimistic, however, that entries I have found on the census for 1851 and 1861 show that Thomas Wright, despite having been found to be a ‘cuckolded’ husband, and not to be the father of Tom, did look after the child, providing a home for him in Rochdale, and setting him on his way to receiving at least some education. As with ‘within the four seas’, so with ‘filius nullius’:  too great a focus on a well-turned phrase, taking as literal what was understood to be at least partly metaphorical, could divert us from a more complicated reality.

Like the ‘four seas’ idea itself, much of the law which obtained in the case of Tom Wright has now been swept away, and, if we want to know who is a child’s biological father, then DNA testing can give a virtually conclusive answer. Nevertheless, I think these remnants have much to tell us about lives and thought of the past, about solutions to what seemed to be matters beyond human knowledge, about proof and policy, about how common lawyers of one era thought of and used the law of the even deeper past. Since we know that a vivid maritime image can stay with us, I will end with the one which always comes to my mind when dealing with such material: it is that of Doggerland – an area formerly of considerable human activity, now beneath the sea as a result of climate change. Most of us will never visit it, but it is important to know it is there, both for practical modern purposes, and also for deeper understanding of those who have navigated these spaces before us.

Thank you for your company on this brief voyage.

Gwen Seabourne

August, 2021.

 

Update 14/4/2022

I was reminded of a particularly egregious example of the ‘England is an island’ delusion the other day – take a bow, eminent Cambridge legal academic, C.S. Kenny …

‘It is not only in geographical position that England is an island. The ” silver streak ” along her coasts is not a more conspicuous barrier, than the line of demarcation which separates her legal polity from that of all the rest of Europe. Her jurisprudence is not the jurisprudence of the Continental nations, for she turned away from those Roman fountains from which they have drunk so deeply.’

  • C.S. Kenny, The History of the Law of England as to the effects of Marriage on Property and of the wife’s legal capacity (London, 1879), 7.

A fairly staggering shutting of eyes and mind to the existence of an attached landmass which is neither ‘England’ nor governed by the common law of England, eh?

 

[1] See, e.g., Times  20th July, p. 7 and 20th August 1850, p. 7, Manchester Guardian 21st August 1850, p.6. Halifax Guardian  24th  August 1850, p. 3,  27 July 1850, p. 7; Globe 20th  August 1850, p. 4; Evening Mail 22nd  July 1850, p. 3. Report: ER 175 503; 3 Car. & K 158.

[2] Shakespeare, Richard II, Act II, Scene 1, John of Gaunt.

[3] See, e.g., Andrew Culley and Michael Salter, ‘Why study metaphors?’,  K.C.L.J. 15 (2004), 347-366.

[4] Denis Le Marchant, Report of the Proceedings on the Claim to the Barony of Gardner (London, 1828), xxx.

Images – the watery one is from the port of Liverpool, ft. a dock of the period and some water, which seemed appropriate. The bovine one is a nod and a moo to the trade of the Holgates and Wrights – cattle in the Halifax area).

This material comes from a current project on bastardy, I will be presenting a fuller version as a paper at the Society of Legal Scholars conference in September 2021 (paper all written and recorded in case of emergency – so I did something useful in recent self-isolation!), and some of it will probably feature as part of a chapter I am writing for the ‘Known Unknowns’ project, headed by Dr Andrew Bell and Dr Joanna McCunn

‘Lyvelode’ and imperfect living: a fretful family in the 1450s

I came across an interesting story whilst on one of my ‘bastardy’ trawls today – something in the Close Rolls for March 1459 which has things to say about bastardy but also about other things, including marriage and mental incapacity.[i] Read on if that sounds like your sort of thing …

By his own account (in English!), Edward Sely of Ditton,[ii] husbandman, had got himself into a bit of trouble. He had allowed himself to be drawn into some litigation, fomented by a London mercer, Rauf Marche. Rauf, using Edward’s name, had gone to law, to try and disinherit a relative of Edward’s, one Simon Sely, of London. Rauf had been putting forward the claim that the rightful heir to property once held by Laurence Sely of London, a claim to which passed, indirectly,  to the late John Sely of Chiseldon (JS1),  was Edward, rather than Simon, because, so he said, Edward’s father (JSA) rather than Simon’s father, John Sely of London (JS2), was the legitimate heir of JS1. This, however, was not trewe.

In Edward’s narrative, JS1 had had a rather eventful life. He had fled his original home after having killied a miller ‘by ‘infortunat case’, and lived as a labourer in Cranford, Middlesex. Perhaps concerned that the law would catch up with him, he had used different names during his time in Cranford, and was known as both ‘John Bartholomew’ and ‘John Sely’. He never felt safe enough to claim his rights in the family property either. He did have a family of his own, however, albeit not in the most straightforward way. He had two sons, both called John (thank you so much for that!) – with a woman called Dionise Cranford, sister of a squire. These sons (JSA and JSB) were ‘bastards’, since JS1 and Dionise were not married. They then did get married, and had a son, called (of course) John – this was JS2, eventually to be the father of Simon. So, under the rules about legitimacy and inheritance, JS2 and then Simon were the rightful heirs to JS1, rather than and JSA (and Edward) or JSB.

It is possible that JS2 never really knew about his claim to property formerly belonging to Laurence – the narrative tells of an occasion late in JS1’s life (when he was over 80) when he tried to get the help of JSA’s wife Christian (Edward’s mother) to encourage his ‘childerne’ to ‘laboure to have recovere’ of the ‘lyvelode’ (property) to which he was entitled in London and Bristol, and to get him in contact with JS2, who was his ‘rightful here’. Christian dutifully reported to JS2 what JS1 had said, and the father and son discussed it. JS1 laid upon JS2 the responsibility of suing to recover it, giving him all of the proof he had of his entitlement, and telling him where there was further evidence. He also told JS2 what he wanted to happen to the property, if he recovered it and then JS2 had no issue – he would prefer it to go to JSA and JSB than to ‘any other straunge persones’.

JS2 does seem to have made efforts to recover the property, but it is not clear what the outcome was. What seems to come out of Edward’s narrative, however, is that there were some tensions in the relationships between the three sons of JS1: JS2, JSA and JSB. JS2 needed money to get his lawsuit(s) going, and asked for the help of his ‘bastard’ brothers. JSA – despite his wife’s earlier co-operation with JS1 and JS2 – refused outright. He would neither give nor lend JS2 any money, despite the offer of a share in any winnings. JSB, however, was prepared to make a sacrifice to help out JS2 – he sold two of his plough-oxen and gave JS2 the money.

By 1457, JS2 seems to have died, leaving Simon as the potential heir. At some point before 1459, however, Rauf Marche had entered the picture, seeking out Edward and trying to find (or concoct) a claim on his behalf (searching in ‘frary books’ to sort out JS1’s children). He also had an accomplice/partner, one ‘John Squery late of London, gentleman’. As Edward told it, Rauf and Squery (we are not going with another ‘JS’…) badgered him on different occasions, using a ‘carrot and stick’ approach – he was entitled to property in and around London (nice) and since he didn’t sue to recover it, he was ‘accursed’ (a bit nasty). Rauf, somewhat in the manner of a dodgy PPI mis-selling recovery company – told Edward he couldn’t get the property without Rauf’s help. This, of course, would not come free – thus the deal which Edward suggests he was manoeuvred into: if the claim was successful, Rauf would keep the property until he got back his expenses. Edward claimed that he had not really understood it all – ‘for as moche as he is a lewde man and not lettered’.

All of this does make Edward sound a bit ‘lewde and not lettered’, or at least unwise, since he is, essentially, admitting to having taken part in a dishonest agreement to try and disinherit his relative and the rightful heir to the property in question. Would there be mercy for him? Would there be come-uppance for Rauf? Would Simon get his inheritance? Would anyone remember poor, virtuous and self-sacrificing JSB (now, apparently, dead)? As so often, it’s a big ‘I don’t know’ on all of that. The entry is, however, still interesting in numerous respects, several of which come out in the discussion above, and one which I have kept as a bonus, because it is very interesting, though I am not quite sure what to make of it, and also because it is not entirely necessary to the tale Edward told about property and dubious litigation.

  1. JS1’s lengthy period as a fugitive

We could see this as an indication of the lack of efficacy of the machinery of ‘criminal justice’ at this point – since JS1 clealy lived for decades without being brought to trial for the death of the miller. However, another view is possible – note the lengths he went to, to avoid being tried: distance, name change, keeping his identity and family connections secret from his own sons until he was close to death. All of that suggests a degree of fear that he might be found.

  1. Property matters[iii]

The reason I looked at this was the ‘bastardy’ and inheritance angle – and that is relatively straightforward. The entry confirms contemporary lay understanding that subsequent marriage did not legitimate pre-marital children as far as inheritance to land was concerned. There is interesting material on property, though, in the interactions of JS1 and his family, and Edward and Rauf with regard to the recovery of the property. I note the argument based on a duty to try and recover family property (and the ‘accursed’ position of the person who does not do this). That strikes me as an interesting point of view to consider. Was that just flannel – a way of dressing up self interest? Or was it a real feeling that this was something owed to one’s lineage?

  1. Marriage and mental incapacity

This is the bit I held back, though it comes up quite early in the narrative. Edward’s story about his father’s early days living in Cranford has something more to say about the relationship between JS1 and Dionise, the squire’s sister. According to the story, after the (‘illegitimate’) birth of JSA and JSB, Dionise’s brother, and other people made JS1 marry her. They were, apparently unhappy at the irregular state of this union – ‘their imperfite lyvyng’. JS1 was not at all keen – he was ‘right loth’ to marry Dionise. Why? Because she had some sort of mental incapacity. In the now-jarring language of the times she was (so it is said here) ‘an idiotte’. There is a tiny bit of additional information about this judgment, though, to be honest,  it is not exactly … informative (to me at least). Dionise ‘knewe no worldly reason in so moche that she wolde calle a noble a nubble’. That does seem rather a problem with pronunciation than anything else, but I may well be missing something. Is it perhaps a vague echo of some of the older medieval tests of capacity which involve basic financial acuity – since a ‘noble’ was a unit of currency – or is the problem with a lack of respect for the entitled? I am imagining various mildly racy meanings for ‘nubble’ but haven’t found anything to back them up … Or is that some sort of proverbial expression which would convey a lot more to contemporaries? I do hope somebody better-informed will clear that up for me one day.

Finally, Edward’s choice to include this material about Dionise (his grandmother) is interesting – why would he do that? Perhaps the most obvious implication is that he was trying to justify JS1’s tardiness in getting married to Dionise. It doesn’t really make him look too good, though, to suggest he thought Dionise was fine for sex but not for marriage, does it?

 

GS

7/8/2021

[i] CCR 1454-61, 355-7. There is one other easily accesible (from home – general pandemic issues and also currently under specific order to stay at home as a close contact of an infected person … with that infected person … viral sword of Damocles or what?) record which corroborates parts of this story: it’s from 1457.

[ii] Dinton, Bucks?

[iii] (I am using ‘property’ like a modern lawyer – note that that word is not used once in the entry itself – which is quite interesting in itself, but concepts of property in the medieval common law is probably a bit too big a topic for a quick blog post).

Image – tree, family, complexity and stuff … Photo by Lucas van Oort on Unsplash

Justice for Maud! A message from the rapid rebuttal unit for possibly maligned medieval women …

This morning, a blog about medieval divorce was drawn to my attention by Twitter. Much of it was interesting – including an account of the matrimonial misadventures of the last Warenne earl of Surrey which I have long used as an example for my Legal History students, when we look at matrimonial law. There was one point that raised the hackles a little, though: the unqualified statement that Maud Neville, wife of William de Cantilupe, had killed her husband in 1375. This is a bit questionable – but note my maturity in not blasting off a comment on Twitter, but instead noting the difficulty here, where, given the obscurity of the location, it is unlikely to cause a heated debate.

The death of Cantilupe has aroused the interest of a number of historians, and Maud was indeed accused of involvement. She was, however, acquitted (KB 27/459 Rex m. 39). While an acquittal clearly does not ‘prove innocence’, and while one can certainly interpret the documents in a way which makes of them a good story, including a bit of illicit sex and a dash of duplicity, and suggests a plausible scenario involving Maud’s guilt, however, it is questionable simply to ignore the fact that she was acquitted and to treat her guilt as obvious. Does it matter, all this time later? Well yes, I think it does.  It is worth asking why the narrative of the adulterous and schemingly murderous wife, which is  suggested by the reconstructions of modern historians, is so much more … seductive … than the evidence of a contemporary acquittal that the latter is given absolutely no weight.

Right. That needed to be said. Now I can get on with what I am supposed to be doing today.

GS

3/8/2021

Photo by Thomas Ashlock on Unsplash

“Whoso[ever] bulleth my cow …”; of beef and ‘bastardy’ in nineteenth-century Halifax

My current obsession is Wright v. Holgate, a case from 1850 (I know – ludicrously up to date …!). It is going to form part of a paper I’m giving at the SLS conference in Durham at the beginning of September. In fact, I have got so into it that I might use it as a sort of framing device for the whole thing.[1] The paper is about fairly doctrinal legal things (though I’d like to think that there are some deeper insights too) but there is certainly more to the case than I will have time to deal with there, so I think it deserves a bit of a blogging as well.

The case, which appears in contemporary newspaper reports and a law report,[2] starts with a will, that of a cattle dealer from Halifax (West Yorks) a certain Jonas Holgate. Let’s call him JH 1, since, as you might guess, what with naming of sons being a bit conservative at this point, there is also another Jonas Holgate who is relevant here, the less than lovely JH 2. Anyway, JH 1 owned some property in the Halifax area. There were several Holgate offspring, including JH 2 and a daughter, Susannah. JH 1’s will left shares of his property to each of the children, and after them, to their lawful offspring (i.e. legitimate children). By 1850, both JH 1 and Susannah were dead, and there were disputes about the property. The whole thing was in Chancery, under the name Patchett v Holgate, and there is more to it than this question, but one thing which did come up for argument was whether Susannah had lawful issue. A Master in Chancery reported in the affirmative: there was a son, Tom Wright, who was born to Susannah whilst she was married to one Thomas Wright (butcher and cattle dealer). So, young Tom would succeed, we might think. Easy. But no.

It was objected that the child was not the lawful issue of Susannah and Thomas, but was in fact a bastard (specifically an ‘adulterine bastard’): another man was the child’s biological father. Bizarre and cruel as it now seems, this question of legitimacy/bastardy was a crucial one at the time: if Tom was legitimate, he would get the property, but if he was a bastard, he would get nothing. It would be good for the other descendants of JH 1 – JH 2 amongst them – if he was found to be a bastard, since that would make their shares in the old man’s property bigger.

Why did the question of illegitimacy arise here, and how was it solved? Well, it is worth rewinding a few years and filling in some key details of the less-than-happy family life of the Holgate-Wright dynasty.  Susannah and Thomas had married in 1836. In 1839, however, they had separated ‘by mutual consent’. Tom was born on 7th March 1847.  At this point, Susannah and Thomas were still legally married: their separation appears to have been private or informal. There were allegations that Susannah had been having sex (or ‘connection’ as they prefer to say) with people other than Thomas during this separation. As the lawyers in the case make clear, however, the fact that other men might be the biological father of a child was not enough for the child to be held a ‘bastard’ at law – if there was some prospect that the husband was in fact the father – i.e., if he had had ‘access’ to Susannah at the relevant time – then the law was supposed to make it hard to ‘bastardise’ the child, deploying a presumption of legitimacy.

Thomas gave an affidavit, swearing that he had in fact had ‘connection’ with Susannah on a number of occasions since 1839. Both had remained within the same area, sometimes both in Halifax, and at other times Thomas went as far as Rochdale (Boobdale as one of the newspaper machine-transcribed accounts has it – foxed by a smudge along the bottom of the row – and I know I shouldn’t chuckle at breast-related slips, but, clearly, still got some growing up to do …) but actually that is not so very far from Halifax, and his cattle-focused work meant that he had to come to the cattle market at Halifax every so often. He stated that, on these occasions, he and Susannah had indulged in bouts of  outdoor connecting. This did not pass the lawyers without objection – one apparently finding Thomas’s claim that he had ‘had  intercourse with Susannah a number of times, in open air, within half a mile of Halifax’ ‘utterly incredible’.[3] There was some wrangling over what sort of evidence could be used to get to the bottom of paternity disputes like this. I will get into that a bit more in the SLS paper, but for now, let’s just say that it was decided to send the dispute about (il)legitimacy over to a common law court for determination, so off it went to Liverpool, to a hearing before Cresswell J (the marvellously named Sir Cresswell Cresswell) and a jury. It now goes under the name of Wright v. Holgate (or Holdgate), or in the English Reports, as Tom Wright (an infant) v. Jonas Holdgate and Others.

After the disputes about whether it was acceptable to hear Thomas Wright’s affidavit about bouts of spontaneous al fresco connecting with Susannah, one might have thought that care would be taken to ensure that only unimpeachably fair and relevant evidence was allowed to reach the jury’s ears. Not at all. There was a great deal of gossip about the deceased Susannah, who, clearly, was not able to defend her own reputation or her son’s interests. She was no better than she ought to be, and violent with it. It is hard to see how violence could be relevant to the issue, as opposed to simply being a bit of additional mud-slinging. More prejudicial than probative, anyone?  Probably not surprisingly, a jury of Victorian men who passed a cetain property qualification, decided to withdraw from her, from Tom and from Thomas the benefit of the doubt. A bastard Tom was found, and that was the end of his participation in the Chancery suit.

There is certainly much here which seems deeply questionable from a modern, liberal, perspective, in any case deploying the concept of ‘bastardy’. I think that there are also relevant criticisms of this particular case within its own time and terms – thus, I think that the interpretation of rules of evidential exclusion were inconsistent, and the summary of the law on bastardy prior to 1850 certainly included inaccuracies. More on all of that in the SLS paper.

The thing I want to finish on here is a little reflection about the role of Thomas Wright, and the fate of Tom Wright. As noted, following the decision in Liverpool, Tom Wright disappeared from the property case. He was a bastard, as far as the law was concerned. The case was focused on his status with regard to his mother’s family, but the finding also implied, as a matter of logic, that he was not the legitimate child of Thomas Wright either. Thomas would have been entirely within his rights to leave the child, and his maintenance to others, such as the local workhouse, or one of Susannah’s alleged ‘paramours’. Apparently he did not do this, however. I checked census returns for 1851 and 1861 and turned up something which struck me as a bit heart-warming. ‘Thomas Wright’ is not, of course, the rarest of names, but when I found a pair of Thomas Wrights living in Rochdale, with a man named Wilkinson (the same surname as of one of our Thomas Wright’s employers, in Rochdale), with young Tom having the right place and year of birth, and Thomas senior and John Wilkinson described as ‘butchers’, I think I can be cautiously optimistic that I have found a less-than-miserable ending for our pair. Thomas the elder has gone by 1861, but 14 year old Tom is now a ‘pupil teacher’, living with John Wilkinson and others, which does seem to indicate a degree of fortune greater than one might have imagined. Thomas Wright comes out of the story rather well, I think. He swooped in after Susannah’s death, when JH 2 had put Tom into the local workhouse, had paid for his care, and clearly had taken him off to try and make a life together in Rochdale. I suppose that, up to 1850, we might have interpreted this as an attempt to keep control of a potential cash-cow (sorry) – as Thomas did involve himself in the litigation surrounding JH 1’s property. After the finding of bastardy, however, any such ungenerous interpretation has to be abandoned. I think it’s hats off to Thomas Wright. Perhaps he was ‘in a low condition of life’, as one newspaper sneered,[4] but he comes across as rather less mean-spirited than others in the tale, and, in particular, the charmless uncle of young Tom, Jonas Holgate 2.

GS

1st August, 2021.

 

 

 

 

[1] It is a bit of a gift that the case has a heavily bovine context, since there is a frequently-trotted-out proverb about legitimacy and marriage in medieval and later sources, ‘Whoso bulleth my cow, the calf is mine’ – grim but memorable, isn’t it? Will be working with that, though have rejected a more elaborate metaphorical structure running that proverb together with another common tag in adulterine bastardy, relating to the husband’s presence ‘within the four seas’. May have looked up ‘sea cows’ at one point, and toyed with the idea of finishing with a picture of a Steller’s sea cow (extinct), but luckily realised that that was too pretentious even for me.

[2] Newpapers, see, e.g., Times  20th July, p. 7 and 20th August 1850, p. 7, Manchester Guardian 21st August 1850, p.6. Halifax Guardian  24th  August 1850, p. 3,  27 July 1850, p. 7; Globe 20th  August 1850, p. 4; Evening Mail 22nd  July 1850, p. 3. Report: ER 175 503; 3 Car. & K 158. (There are also potentially relevant papers in the National Archives: TNA C 14/847/H142, but I am still not able to get at those).

[3] Evening Mail 22nd  July p. 3.

[4] Northern Star and Leeds General Advertiser, 24th  August 1850 p. 8.

Photo by Quaritsch Photography on Unsplash

Burn Books and Year Books: Mean Girls in the medieval convent?

A Selden Society volume from several decades ago noted the Year Book treatment of an interesting case, Wakefield v. Prioress of Hampole (1318) and a matching plea roll entry, and commented on its importance in relation to the medieval ‘law of contract’. I have just come across another entry on a plea roll relating to this case, which was not mentioned in the Selden Society volume, which I thought I would note, for those who like such things (massive global audience, I am sure), and have a little recap and reconsideration of this case, which is interesting both in relation to the ‘law of contract’ and also to investigations with a focus on social and gender history. And religious women being, well, mean.[i]

 

The nerdy bit, a.k.a. ‘You can’t join Mathletes, it’s social suicide! [but still a rung above being a medieval legal historian]’[ii]

The Year Book references can be found here, (Seipp 1318.099ss) and the case is included in SS 65, J.P. Collas and T.F.T. Plucknett (eds), Year Books of 12 Edward II (Michaelmas A.D. 1318) (London, 1950), p. 58,  and discussed by Plucknett at p. xlvii. The plea roll reference given is quite correct: (translated into modern format) TNA CP 40/225 m 250, which you can see here, but the case did not finish at that point, and to have a proper match, covering the ground seen in the YB, you would also need this entry, from CP 40/231 m. 221.

 

The basics, a.k.a. ‘Get in loser, we’re going [legal history]ing’

The case was, at its root, a dispute about money. It was said that money (20 marks)  had been paid over by a man called Robert le Botiller to Christine, prioress of Hampole,[iii] in 1294, in relation to Robert’s daughter, Eleanor, who was intended for the cloister. The nuns at the convent in question did not, however, accept her. Not surprisingly, given the way things didn’t work out, There was an attempt to get the money back, but the new prioress resisted this. The prioress won. This may well seem questionable, but the explanation lies in the rules about proof and evidence which prevailed in the medieval ‘old personal actions’, i.e. the available modes of proceeding in the area occupied by modern contract law.

 

The law bit: ‘Stop trying to make debt happen. It’s not going to happen.’

There was some quibbling over whether a debt action of this sort could be brought by a person other than the person who had paid the original sum (Robert had died, and the current claimant was William de Wakefield, the executor of Robert’s executor) , but in the end that was not the thing which killed it: the real problem was that it was brought against somebody other than the original recipient (a new prioress had succeeded). William’s side clearly saw that this might be a difficulty, as they tried to make a connection via benefit to the convent as a whole, as a result of the money handed over. This didn’t work, though – in this case, a ‘debt on a contract’ case without a specialty (deed), a defendant was allowed to proceed by ‘wager of law’ or compurgation (swearing that the money was not owed and bringing along 11 oath-helpers to support credibility). This could not work (according to its own logic) for somebody other than the original contracting party – only the former prioress herself would have been able to wage her law and make statements about whether or not the money was owed. A successor could not do so.

One might think that the appropriate response to that would have been ‘well, let’s find another mode of proof then …’, but no – that’s not how these thngs worked. Forms of action came with a particular set of procedures attached, and in this sort of action, the defendant had to be capable of waging his or her law. This meant that William could not get as far as an inquiry about the terms of the deal, whether the money was in fact paid over, or what was supposed to happen if the other side of the agreement was not fulfilled. In the world of of medieval common law litigation, he was indeed … a loser.

 

The human bit: ‘On Wednesdays, we wear habits’

Well, what is better than a story about medieval nuns? Obviously one about medieval nuns being less than obvious embodiments of Christian charity. Here, we appear to see them rejecting a candidate for nun-hood, and then finding a reason not to pay back the money intended to help that happen. This may be a false picture of course – Eleanor may have been ‘evil [taking] a human form’, or she may have been unwilling to join the convent – there was no chance for the facts alleged by the claimant to be interrogated. Whatever the truth behind this allegation of rejection, however, it is certainly not implausible that a prioress, with the aid of her legal advisers, would stand by her strict legal rights. The plea rolls are full of actions in which heads of religious houses seek to use the law to secure their house’s economic position (and, as much work on nunneries has shown, this position was not infrequently rather precarious). One thing which occurs to me is that the changing of heads of house might be rather useful, as a way of making actions like that of William incapable of success. Surely medieval religious would never be so sneaky as to do this deliberately?

Shut Up!

GS

24/7/2021

 

(Image – as you can gather, the convent isn’t visible above ground – there are remains, but it’s a private site and I couldn’t find a free image …thus this unevocative view ,,,]

 

 

[i] I am sure I don’t have to say this, but, you know, classic teen film, 2004. Regina George, Plastics, L. Lohan before it all went wrong …

[ii] Latter clause inexplicably cut from the line.

[iii] Hampole was a Cistercian priory, in Yorkshire, see this outline.

Byways and rabbit holes in ‘bastardy’ research

Today, I have mostly been creating a very interesting internet search history by looking up variations of the word ‘bastard’ in various legal and historical databases. I have a legitimate (!) reason to be doing this , as I prepare a paper on such things for the SLS conference, but it does still feel a bit like being back at school and looking up rude words in the big German dictionary in preparation for an (eventful) exchange trip to Hamburg.

Anyway, all of this searching revealed some interesting uses of ‘bastard’ – the expected ones (status, insult) plus some more metaphorical, with various products and concepts described this way (not always with the same implications). This will all be useful stuff for the SLS paper. But I spent a happy few minutes going off down another path, when a ‘bastard’ reference brought me back to questions of sex and gender, and the way in which they were understood in different historical and cultural contexts. This is something I touched on in c. 1 of Women in the Medieval Common Law, but I had more notes on it than I could use in the book, and it struck me that there are aspects of the area which I’d like to revisit.

The first step from ‘bastard’ searching to issues of sex/gender was coming across a case of mistake as to whether a ‘bastard’ child was male or female, in an article in the excellent Welsh Newspaper Archive. It caught my attention because of its Bristol context (I am very aware that, though I have lived here for ages, I have not really made an effort to write about it, so it is always good to find something with a local angle). The case was an attempt by the mother of a child to enforce maintenance payments for the child by the man she claimed was the father (this is all long before DNA tests or even blood tests, so in a world of extreme difficulty in pinpointing paternity). It took place in Bristol, before the local magistrates, in 1869. The Western Mail of 10th June, 1869 notes that there had been an ‘EXTRAORDINARY MISTAKE IN THE SEX OF A CHILD’. The defendant, Daniel Williams was charged with failure to pay sums due under a ‘bastardy order’ (i.e. an order that the man said to be the father of a child should pay towards its maintenance). The mother in the case was the splendidly named ‘Jane Vulture’. On the defendant’s behalf, it was argued that the order in question had specified that he had to pay to support a male child, born on 9th November, 1866, but the child now brought for inspection was female. Ms Vulture may, perhaps not have been able to read, since the story seems to have been that she signed statements about the child which were read out to her – and now claimed that she had never said it was a male, and that that must have been a mistake by the clerk. Sadly for her, this did not sway the court, and the case against Williams was dismissed. Who knows the rights and wrongs of it – was this a different Baby Vulture from the one initially the subject of an order, or did Williams take advantage of a clerical error to weasel out of his responsibilities? The case was not, however, quite what I had thought on seeing the headline. Given current controversies about the validity of biological sex and gender identity, I jumped to the conclusion that this was a case of ‘intersex’ or something similar. Wrong, I think. There is no suggestion of the possibility of doubt here.

And where did that lead me next? Well, I did wonder what contemporary ideas were about this now-contested borderline, so I had a little search for that odd old term ‘hermaphrodite’. That came up a fair bit in my medieval investigations, and I had already had glimpses of its later uses, so it was interesting to probe a bit more in easily-accessible online archives of newspapers from the 19th and early 20th Cs. This turned up two definite but unequally sized strands of material – a few cases of what do look like possible cases of ‘intersex’, but far more metaphorical uses of ‘hermaphrodite’.

On the ‘factual’ side, there are newspaper reports which seem remarkably like medieval/early modern ‘prodigy/monstrous birth’ stories. Note, for example, tales of ‘hermaphrodite’ babies in Llanfynydd in 1851 and  Cardiff in 1906. There are certainly things to consider here, in relation to tone of report, and the apparent response of parents and medics. It is the more metaphorical usage of ‘hermaphrodite’ which particularly interests me, however. This comes up in relation to transgression of gender norms – such as a female cyclist wearing some form of trousers, in a ‘funny’ article from 1896. It is also used in relation to linguistic gender, in relation to bardic expression, in articles from the Welsh-language press, e.g. in 1851. Interestingly, it also crops up in areas with little to do with gender, even in its linguistic form, simply denoting an idea of mixture, or odd/uncomfortable/inappropriate mixture. Thus we have ‘moral hemaphrodisim’, ‘political hermaphroditism’ and even nautical and military hermaphroditism (mixed types of rigging and mixed army-navy organisation respectively). In many ways, there is an overlap with the metaphorical use of ‘bastard’ for mixed concepts, which is coming up in the SLS paper I am writing (‘bastard feudalism’, ‘bastardy’ in relation to the Scots ‘not proven’ verdict, amongst other usages). I am yet to work out when it would have been appropriate to use ‘hermaphrodite’ and when ‘bastard’ – presumably the latter is a little more critical than the former, though both are somewhat critical. More work to do!

 

GS

13/7/2021

Image – a rather gratuitous bunny. Yes I did choose the title to enable me to use it …

Photo by Quinn Secker on Unsplash

 

“Bastard Pauper Lunatics” and Victorian establishment values

Slightly listlessly looking for a bit of inspiration for SLS paper on bastardy etc., I was drawn into references in 19th C numbers of the British Medical Journal. This really is ‘foreign country’ territory – despite not really being so very long ago.

The page I alighted upon was one which promised something with a title making up a  full bingo-row of cold-hearted dismissive Victorian vocabulary: ‘Bastard Pauper Lunatics’. This (it was a letter) was indeed chilling – eugenic theory in full throated cry, despite the ‘civilised’ nature of expression, medium and audience. It was part of what was said to be a debate about what to do with the apparently frightening numbers of young pregnant ‘imbeciles’ turning up at workhouses. Solutions seem to have been at least as much concerned with condemnation and cost as with help and protection.

Just this one page (The British Medical Journal, Vol. 2, No. 1868 (Oct. 17, 1896), p. 1153 ) shows a lot about middle and upper class Victorian attitudes. On the one hand we have thinly veiled loathing for those in poverty or with mental incapacities, and also racism (including two-for-the-price-of one gratuitous racism): on sanitation in Egypt, it is stated as fact that ‘Sanitation in Egypt, as in India, has to contend with an ignorant, apathetic, and obstructive population …’ On the other hand, there is sympathy – rather gushing sympathy – for a recently deceased Archbishop of Canterbury and headmaster of Wellington College (an socially exclusionary  school) and an ailing prominent surgeon.

I can’t help but remember that this comes from the same world as the early Selden Society, and the ‘fathering’ (observe scare quotes – don’t like this usage at all) of English Legal History. It really seems like time to give some serious thought to the ways in which the discipline may have been influenced by its early environment. I know I am not alone in thinking this. Possibly some of that might make its way into the paper.

GS

10.7.2021

Plinth photo

Just a quick posting of the current state of the Colston plinth, a year on from the dramatic toppling. I am beginning to get used to it, as I pass it on my regular ‘obey the bossy watch’ circuit. Those not-at-all-mammalian ‘dolphins’ are incredibly ugly, mind you …

GS

10/7/2021