Tag Archives: legal history

Not entirely ‘perswasive’?

In between teaching and admin., at the moment, I am working on something touching on decisions relating to the presence of life and legitimacy. Today, I am pursuing bits and pieces on the legitimacy/’bastardy’ side of it, and looking at the splendidly titled Lex Spuriorum by a very early 18th C lawyer.[i] Usually, in this enquiry, I have found my mind occupied by the disturbingly condemnatory attitudes and language, and the writing-off of so many children, people, as ‘bastards’, and somehow not as good as others, despite self-evident lack of personal guilt in the ‘sinful’ nature of their conception. Today, however, I have been ‘going off on one’ in a different direction, after looking at the preface of this book.

 

In this preface, Brydall felt it necessary to justify himself – why was he writing the book? What ‘perswaded’ him (love that spelling!) to publish it? His specific answer to that is interesting (and a little hard not to laugh at): his alleged motives include writing ‘To let the People of this prefent Age fee, what great Difadvantages Children born out of Holy Matrimony do lie under, which might … very much deter Men and Women from ever purfuing unlawful and exorbitant Embraces, of which this Nation, as well as foreign Countries, have been deeply guilty.’ Unlawful and exorbitant Embraces should, obviously, be discouraged, but the idea that people intent on a bit of exorbitant Embracing would stop, read a treatise, find it ‘perswasive’ and think better of their plans, seems … just a little far-fetched.

Postscript – It is a measure of my current preoccupation with all things REF that my mind immediately went to ‘ooh – that’s a bold claim for the potential “impact” of a piece of writing’.

 

GS 22/11/2020

 

[i] John Brydall of Lincoln’s Inn, esq., Lex Spuriorum or the Law Relating to Bastardy (London, 1703).

Bastardy, Presumptions and a Plague of Beatrixes

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

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

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

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

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

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

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

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

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

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

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

GS

23/10/2020

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

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

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

Ruffs: there ought to have been a law against them

The stiffest and starchiest stuff,

bleached, folded, fussed over enough

to demonstrate I’m

rich in servants and time:

behold, my ridiculous ruff!

 

Well, this was a bit of a clumsy attempt to justify including an item about ruffs in what is (very vaguely) a blog about legal history. Obviously, there was a long tradition in various jurisdictions of legislating about the sorts of clothing which people could wear, but not (as far as I know) specifically about what is clearly the most ridiculous item of neckwear ever – the early modern ruff.

I have been equally horrified and obsessed by the ruff since being bought a Marks and Spencers book about the Tudors, one childhood Christmas, with all of the classic, much-reproduced pictures of the celebs of the day, increasingly, over the 16th C, ruffed up. I mean, the codpieces were … disturbing (especially on young Edward VI – just so wrong) … but it was the ruffs that really stood out for me. They seemed to be a combination of extreme discomfort and extreme silliness. Also a seriously bad idea to be drawing attention to your neck in an era rather well known for its beheading. Some of them even made the ruffee look like familiar pictures of John the Baptist’s head on a plate.

I seem to keep coming across ruff-pics these days, when looking up biographies of legal history ‘great men’ or on social media feeds about various historical things, and feel the need to work out some of my repressed ruff issues. Here, then, is my chart of ruffs – no doubt to be updated as more ruff-porn comes to my attention.

 

  1. Ruff(le)

A subtle little number, sort of polo-neck-cum-ruff, from R. Dudley

https://twitter.com/HistParl/status/1301814785173061632

 

  1. Ruff puff

The ruff itself is less than spectacular – but with that puffy sleeve, chain and skull accessorising, a winner from ‘Mam Cymru’

https://twitter.com/gcseabourne/status/1241663502479171584

 

  1. Ruff and tough and strong and mean …

It’s Walter Raleigh, wearing a doily https://en.wikipedia.org/wiki/Edward_Coke#/media/File:Sir_Walter_Raleigh.jpg

 

  1. Rufformation

I am not convinced that ruffs are very godly, bishop Hooper

https://en.wikipedia.org/wiki/John_Hooper_(bishop)#/media/File:John_Hooper_by_Henry_Bryan_Hall_after_James_Warren_Childe_cropped.jpg

 

  1. Ruff music

Johannes Eccard is wearing a ruff, but he’s not happy about it …

https://en.wikipedia.org/wiki/Johannes_Eccard#/media/File:Johannes_Eccard_1615.jpg

 

  1. Ruff ruff ruff

In everyone’s favourite tale of domestic violence, Mr Punch’s dog, Toby, always seems to have a ruff

https://www.bbc.co.uk/news/av/uk-44988800

 

  1. Ruff and ready

Because there’s no need to be all business-like about your armour,

https://commons.wikimedia.org/wiki/File:Portrait_of_Sir_Philip_Sidney,_illusthatixg_the_ruff_worn_with_armour-_Elizabethan_People_(book).jpg

 

  1. Outruffed

The absolute satisfaction of knowing yours is the biggest, silliest ruff out there. Also a fine example of the implications of ruffs for hair-dos.

https://twitter.com/gcseabourne/status/1241398414954369024

 

  1. Ruff justice

The the humble and charming Sir Edward Coke – ruthless misogynist, show-off and snappy dresser.

https://en.wikipedia.org/wiki/Edward_Coke#/media/File:Edward_coke.jpg

See the source image

Then there’s the picture above – the ‘beard squeezer ruff’ – right up under the ears too 0 astounding.

  1. Elizabeth R[uff]

Was there ever any doubt – this one has it all: the spectacular ruff, the puffy sleeves, the hair … apotheosis of the ruff – ruff as neck-halo, almost.

https://en.wikipedia.org/wiki/Armada_Portrait#/media/File:Elizabeth_I_(Armada_Portrait).jpg

 

OK, good to get that off my chest. Or neck. Or whatever.

 

6/9/2020

Update 9/9/2020

Bubbling under…

Not quite worthy of a place on the Completely Official Ruff Pics Top Ten, but may get there in time …

 

[Sc]ruffy

This picture looks as if it has had a bit of early modern photo-shopping. That hat is so 2D. But it’s the ‘ruff almost meets hat’ and ‘scraggy beard’ combo which is worthy of recognition:

https://twitter.com/WelshBiography/status/1303580143630204928

 

Well hello doily!

An honourable mention in the ruff-accessorising category goes to this gent – another Coke – who has cut up a doily and stuck it to his hat and cuffs, to cheer up his look. Also love the detail of shadow on his ruff from his little pointy beard. Marvellous.

https://en.wikipedia.org/wiki/John_Coke#/media/File:Johncoke.jpg

Take the ruff with the smooth

William Cecil sets off his hat/ruff/beard combo with a lot of velvet. Marks for detail in relation to the ‘hand ruff’ cuffs (why not make your wrists just as uncomfy as your neck?) and that emphatic rod (virga – definitely has subtext…)

https://twitter.com/HistParl/status/1305114197911535616/photo/1

 

Not even close …

I am afraid this chap just gets it all wrong. There really is no point in ruffing if your ruff is overshadowed by a brushed beard and natty hat. Yes I know it was early in ruff history, but still…:

What about this one – excellent illustration of variation of ruff angle: James VI of Scotland in the 1580s, ruffed at a very steep angle indeed – going full ‘John the Baptist’s head on a plate’: the head and body seem to be completely separate.  Portrait of James in 1586

And, new in on 5/11/2020 it’s this veritable neck-tutu from Henry Howard, earl of Northants, d. 1614 (from https://blogs.bl.uk/digitisedmanuscripts/2019/11/coppie-the-words-but-burne-this-paper.html:

Portrait of Henry Howard Earl of Northampton

This one – can’t quite put my finger on what it looks like: meringue?

Law’s Federation: the trials of Captain Kirk

Trials in Star Trek

It is interesting to see the ways in which a mid-20th C American sci-fi series portrayed legal process, with all sorts of references to what was and what ought to be (in a fundamentally just entity like the United Federation of Planets, and its military wing, Starfleet). I recently watched Series 2 episode 12, ‘The Deadly Years’, which includes a ‘fascinating’ [thank you Mr Spock] legal proceeding to determine whether Captain Kirk should be relieved of his duties, due to physical and/or mental incompetence.

The story revolves around mysterious and rapid degeneration which affects members of the crew, including Kirk, who have visited a planet, Gamma Hydra IV, making them age about thirty years per day. Spock, also affected by this process, but, due to his Vulcanicity, not to quite the same extent, is obliged by a guest character – the bossy but ultimately rather incompetent Commodore Stocker – to set up and chair a competency hearing.

Spock acts as Presiding Officer, chairing and also examining witnesses (so not the classic common law judge role). he process is directed to answering the question ‘is Kirk unfit to command’, a decision to be made by vote by a board, after hearing evidence from witnesses (directed to examples of Kirk’s repetition of orders, forgetting that he had signed things, showing a failing memory, as well as his previous good memory – showing decline) and evidence from a computer assessment of Kirk’s physical health, confirmed by expert witness (but also board member) Dr McCoy. The board deliberates in secret. Kirk would seem to have the right to call witnesses, though chooses not to call them. Unlike the splendid dress uniforms seen in Star Trek court martial scenes, we are in normal uniforms here, with four board members arrayed around a modernist asymmetrical table, other crew members (witnesses, unclear if they had a vote) behind them, and Kirk on the other side on a ‘naughty chair’. The outcome is that he is found unfit, and is relieved of command. It does appear to be correct, according to the story, but perhaps one might wonder at the potential for injustice in the role allowed to several other officers affected – albeit perhaps to a lesser extent – with the same condition as Kirk. There is no obvious appeal from the decision, though once the cure is found an Kirk’s condition reversed, he seems to just resume his command, without formal process – a little slack, surely, unless the decision included a provision for this eventuality.

Looking forward to more Final Frontier Laws …

to be continued.

16/7/2020

Legal History and the Decolonial Approach: Thoughts and Questions

I have researched and taught in the area of Legal History for more than two decades. In teaching, coming straight from a taught postgraduate degree in the 1990s, I took over a unit formerly run by Andrew Borkowski, and changed it little by little. It has evolved in various ways (more crime and family, less court in-fighting), but has, until recently, remained firmly anchored in the framework of the Maitland-Milsom-Baker school of ‘classical’ legal history. In the last 5 years or so, first on my own, and then with the input of new colleagues, the ‘socio-legal’ content has been expanded, and, in particular, gender perspectives have come to the fore. What has not really been prominent, however, has been race/colonialism. We are now thinking about that for next academic year – had in fact been doing so even before ‘everything kicked off’ in Bristol this summer, with the Colston statue toppling etc., though that has given a new urgency to this. We will certainly be including more relevant reading and subject matter on this, but the whole exercise, and the initiatives of colleagues in the Law School, has made me begin to think more deeply about things which should undoubtedly have occurred to me before, in particular, asking:

What does the classical framework of English Legal History owe to racialised, colonial mindsets?

I can’t pretend to have a very good answer to this yet, but it seems important at least to pose the question. The ‘classical school’ – and the Selden Society which is one of its most respected manifestations – arose at much the same time as the peak of imperial self-satisfaction, and the popularisation of eugenic theories. What connections should be brought out, in terms of personnel and ideas? There is certainly a feel of ‘linear tunnels’ about the sort of causal connections, and teleology which is evident in some nineteenth century legal historical writing. There is a fair bit of connecting English legal traditions to conveniently monolithic ‘Germanic’ lines of development, and fighting off the suggestion of Roman inspiration. There is very little consideration of other possible influences, or comparators beyond the ‘Western civilisation’ mainstream. There is much ignorance of the legal traditions even of the nearest ‘subject lands’, Wales and Ireland. This has fed through to much modern English legal history, which tends to marginalise the colonial aspects of the common law’s historical realm. The British Legal History Conference is probably the whitest conference I know: recent organisers have clearly made some effort to diversify the content, but the centre of gravity is still England before 1700.

This leads me to question my own research choices, which lie firmly within this comfortable centre. My choice of period of special interest was due to a combination of factors, ranging from childhood fascination with knights (and monks, up to a point, but not ladies and definitely not the ‘lower orders’…) to a bloody-minded determination not to be shut out of something because I did not go to the sort of school which taught Latin, and wasn’t going to be talked down to by a load of posh boys, to the supervision available to me for Ph.D., and, probably, an eager-to-impress desire to take on something well-regarded by lawyers and historians alike. From a beginning in law and economic regulation – a little bit political, but nothing to scare the legal historical horses – I moved into the study of women (definitely regarded as eccentric and ‘trendy’ in some quarters) and, to a certain extent, Wales (quaint but unthreatening?). Although of course there is scope to venture beyond the British Isles whilst sticking to the medieval period, I have never done so, and the state of the discipline during my academic life has not encouraged me to do so. I am not likely to change focus entirely, but, even within medieval legal history, I think there is the prospect of considering with a critical perspective the portrayals of the past which have been allowed to predominate, how they arose and what is missing from them.

History is so important to an understanding of Law’s colonial legacies, and yet Legal History has not really been engaged. Much to ponder – which is as it should be.

GS 29/6/2020

Recommended on the Decolonial Approach: Foluke Adebisi  ‘Decolonising the University of Bristol’ Foluke’s African Skies (28.10.19) https://folukeafrica.com/decolonising-the-university-of-bristol/

 

Gender running Amok? Thoughts on classic Star Trek episode ‘Amok Time’ (1967)

This episode (the first episode of the second series) has several iconic aspects – first appearance of Chekov, first time out for the Vulcan salute and only trip to Vulcan in original Star Trek – but on rewatching it during my lockdown completist marathon, I was struck by two things. The first was the Legal-Historian-pleasing ‘trial by battle’ between Spock and Kirk with lirpa – weapons looking not a million miles away from medieval judicial duel weapons. Another time. It’s the second I went away thinking about, and will muse upon here – the portrayal of women. Not strictly Legal History, I suppose, but then again, both LH and Sci-Fi are about messing about with time, imagining other eras; and there are certainly some resonances with ideas about women in history, so I think I’m allowed.

The fabulous Lt Uhura on the bridge is not given much attention here – she is just doing her job. The three who are prominent are Nurse Christine Chapel, on the Enterprise, and, on Vulcan, T’Pau and T’Pring. These three all interact with Spock, who is in the grip of the pon farr mating urge, and, to cut a long story short, has to go to Vulcan to consummate his union with T’Pring, or, it is feared, he will die.

Chapel is the least inspiring of the trio. She is revealed to be hopelessly keen on Spock, fussing about after him and bringing him Vulcan soup. Very nurturing. Doesn’t go down well, though, Spock is quite nasty to her.

The best action is on Vulcan, where we have the powerful T’Pau – a diplomat, judge, and more, who presides over what was supposed to be a marriage and turned into a ritual battle – and the fascinating T’Pring. As Lt Uhura exclaims, she is beautiful.

The portrayals of T’Pau and T’Pring are very interesting. They are in some ways positive and forward-looking (in earthly terms – remember when this was written) but the writers could not quite let go of the assumptions of their own times. T’Pau, for example, is respected by all, but is portrayed as rigid and perhaps cruel. Powerful woman as ‘cold-hearted-bitch’ model? T’Pring is clever – even Spock praises her logic – but we are supposed to see her as a bit of a scheming minx and Vulcan ‘gold-digger’, arranging things so that she can get Spock’s property but be with the beefier Stonn instead. I wondered to myself, also, whether it was easier to give power to women who were ‘other’, rather than to the human women, who, on the Enterprise, were always subordinate to men. The Vulcans were portrayed as decidedly ‘Oriental’ (in an indefinite, pan-Asian manner). T’Pau on her litter, with her formality, was particularly reminiscent of an empress of China. Then again, she did remind me slightly of the statues of the BVM which are carried through Spanish streets on holy days. (That of course would make a nice contrast with T’Pring as an Eve-like temptress).

Vulcan law and customs as portrayed here include elements popularly regarded as ‘medieval’ – as well as trial by battle, we had marriages arranged by families at an early age, and the idea of a wife as the property of a man. I was particularly disappointed to hear T’Pau buying into the ‘wife as property’ thing: not much female solidarity with T’Pring there. I assume that there was no Mr T’Pau, otherwise, on this evidence, she would have been at home being a chattel. Even Spock entered into woman as property trope territory when he left Stonn with a little speech about ‘having’ not being as good as wanting (T’Pring, or women in general…) I must say, I came away from watching this as a grownup feeling admiration for T’Pring, for playing the system and getting out of what was clearly a most illogical arrangement. Live long and prosper, T’Pring! (And give Nurse Chapel some tips on not being an inter-galactic  doormat).

GS 27/6/2020

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

Something interesting turned up in my plea roll trawling today (or at least it is interesting if you are interested in medieval crime, medicine, religious houses or Cornwall). …

In 1431 (reign of Henry VI), a ‘leech’ (medical practitioner) and a canon of the Augustinian Priory of St Stephen at Launceston fell under suspicion following the death of John Honylond, who had been prior of the same house. As two indictments and two plea roll entries show, the accusation was that John Leche, also known as John Lowell, leech, of Launceston, had killed the prior, both by poisoning his food and drink and also by a cutting procedure (per succisionem), aided and abetted by Richard Yerll, one of the canons of Launceston Priory. The accusation described the killing as false, felonious and treacherous. It also explained that Leche had been retained by the prior since 1427, after he had performed a surgical procedure on the prior’s leg, presumably giving satisfaction on that occasions. No reason was given for the alleged homicide, in regard to Leche or to Yerll. The allegation that the killing was done treacherously (proditorie) is interesting (for those of us who like that sort of thing), in that it hints at even more disapproval than the usual description of such actions as ‘felonious’. It does not really say anything about the subjective intention or state of mind of the alleged offenders, but it shows that there is a possibility that this might be regarded not ‘only’ as felonious homicide (which would be punished by hanging), but as ‘petty treason’ under the 1352 Statute of Treasons (the punishment of which would include ‘extras’ in the shape of being ‘drawn’ as well as hanged). The statute singled out for specially brutal and spectacular treatment homicides which offended against particular hierarchical relationships: wives killing husbands, servants killing masters, religious killing their superiors. Women in these categories would be burnt, men drawn as well as hanged. Richard Yerll, if guilty, would seem to fit reasonably snugly into the category of ‘monk and abbot’ – perhaps there might have been some scope to argue differences in the relationship between monk and abbot in other orders and canon and prior in the Augustinian order. John Leche is a bit more difficult to see as falling into the category of ‘petty traitor’. He was, in modern parlance, more of an ‘independent contractor’ than a ‘servant’ of the prior.

The common lawyers did not, however, get a chance to get their teeth into either of these thrilling areas of potential legal squabbling, since the case never really got anywhere. Yerll appeared as required, but, since Leche, the principal, did not turn up, the case was delayed. Matters went on in the usual desultory fashion until 1438. Leche was acquitted in 1431, but, for reasons which are not clear, process against Yerll was not officially stopped until 1438. This anticlimactic dribble of an ending is not unusual: it was rare indeed for plea rolls to show convictions in this period. Correlation between the findings of juries and the facts of any case is not to be assumed. We will never know whether there was a conspiracy to bump off the prior, which is frustrating, but it is interesting to note the raising of suspicion against the medic in this case. Obvious questions arise: was this part of a more general suspicion or criticism of what may have been aggressive surgical interventions? Was there personal animus against Leche, Yerll or both? It may be that there is more which can be found out about the leading players, but, at the moment, during our own health emergency, the records relating to the priory, in Oxford and Cornwall, which might help here, are beyond my reach. I will, therefore, have to leave it there for now, in the hope that I will be able to flesh it out in the future.

References

KB 9/225 mm. 39, 40 (AALT IMG 77, 79)

KB 27/681 m. 6R (AALT IMG 161); KB 27/686 m. 4dR.

GS 14/6/2020

Legal History, Slavery, Colonialism

The last few weeks have been full of news of protest and direct action relating to racism, slavery and colonialism. As no one in Bristol can have failed to notice, it has been the week when the most prominent statue of slaver Edward Colston finally fell.

At the place where I work, the University of Bristol, this has brought to the forefront of minds  various issues to do with naming of buildings, and the University logo. The names of families whose wealth derived from slavery are prominently commemorated here, and the emblem of Edward Colston, a dolphin, is included in the University logo. These names and the logo are under review now – and quite rightly (though possibly putting out a tweet to announce this and … using the Colston- commemorationg logo to do so … was not the best call). Both the University and excellent and doughty scholars within it, as well as committed historians outside academia, have been looking at these issues for some time, but recent events have lent it all a particular urgency, and have also drawn in a much wider group of academics who know that we should be doing more, and faster, to try and make the education we offer both inclusive for all students, and also sufficiently energising and mind-expanding to cause positive change in the local community and the wider world.

I have, for many years, run a unit on Legal History for our Law undergraduates. It has always attracted excellent, sparky students who are alive to injustice, including racial and gender injustice, in the world. We have plans to include more on this in the next academic year. I dare say the issue of statues, putting them up, pulling them down, will feature. At the moment, though I am thinking about a couple of other issues: how the common law and common lawyers were implicated in slavery and colonialism, and how Legal History itself has been affected by having been developed as a discipline in the heyday of colonialism and racism. There is a lot to think about, and to do – and, as a medievalist rather than an expert on later periods, I am going to be synthesising the work of other, expert, scholars where I can find it – but it feels as if Legal History needs to put its metaphorical shoulder to the wheel.

Some of the questions which occur to me straight away:

  1. Is there a general survey of lawyers (or legal institutions) as slave-holders? I have put out a Twitter bat-signal to try and see what there is ‘out there’, having drawn something of a blank in my own preliminary searches – I suspect that there might not be, though there are sections and statements in various, disparate works. If there is not such a general survey, how can a start be made on this? Individual biographies are one way to go, I suppose, as well as checking the writings of lawyers themselves. It would be particularly interesting to make a start on lawyers in Bristol …
  2. In what ways has common law doctrine been implicated in slavery, racism, colonial projects? (Huge – obviously – and equally obviously there is excellent work here by historians, but it also seems that there are gaps with regard to more doctrinal (‘dry’?) parts of law, and areas in which a bit of imagination, and consciousness of the issue, might bring up a wider set of connections).

This morning, a cross check in the Oxford Dictionary of National Biography has shown me some interesting lawyer/slavers, which is a start for no. 1 at least

[And on the Bristol-Colston front, I just came across another example of his ‘philanthropic’ ubiquity in Bristol – there is a charitable foundation called the Dolphin Society, which might want to be a little firmer in its dissociation from Ed and his murderous works … https://www.dolphin-society.org.uk/history

Also the ODNB (updated 2008?) has EC article entitled  ‘Colston, Edward (1636–1721), merchant and philanthropist‘. Very neutral…]

12/6/2020

13/6

There is more ‘Colstonalia’ in Bristol – and more websites which might want to consider saying something stronger about the wrongness of slavery. Today’s example (accessed 13/6) is this one https://www.about-bristol.co.uk/chu-04.asp

17/6

A programme which those who are not regular watchers of Welsh language TV might have missed …

https://www.s4c.cymru/clic/programme/532330299

Dylan ar Daith – S4C programme (Welsh – with subtitles!) on Thomas Picton, governor of Picton, cruel even for the times. Interesting to see the Welsh coming to terms with not having been pure with regard to slavery. Some stories I had not heard here – worth a watch to see what you think of its tone.

 

‘Medieval’ watch: a Mirror of Injustices?

Time for a new ‘-watch’, I think. Not exactly a new peeve, but, like many of those who spend a lot of time trying to get to grips with the world of c.500-1500, I do tend to recoil at the frequent, lazy, and inaccurate descriptions of things regarded as brutal or primitive as ‘medieval’ (possibly also throwing in the ‘Dark Ages’, to compound the sloppiness). Today’s description in the Mirror, of Chinese ‘wet markets’ as ‘medieval’ ( https://www.mirror.co.uk/news/world-news/turtles-butchered-alive-medieval-wet-22037914 ) has prompted a bit of an investigation of how the modern press is (mis)using ‘medieval’. When I say investigation, I mean search on the website of the Daily Mirror, having persuaded the search engine that I do indeed want to look up ‘medieval’ and not ‘Meghan’ or ‘Megxit’. Still, it’s a start.

It seems to me that there are two main categories of misuse:

First, we have the straightforward type 1 ‘detached slur’ instances – in which ‘medieval’ is thrown in, as a synonym for all that can be thought of as backward. The ‘wet markets’ example is a classic type 1 case. While it is true that butchering practices in medieval England were not concerned with animal welfare, and were seen as a matter in need of regulation to avoid nuisance to cities, it is the scale of modern animal-exploitation which is the most dangerous thing in terms of disease-promotion. Were people to go back to medieval levels of meat-consumption, we would be likely to see a fall in many problems, including disease. I am a vegetarian, and would be glad to see an end to all sorts of animal slaughter, but focusing on ‘foreign’ practices, and labelling them ‘medieval’ feels very wrong. There is more than a touch of racism in it, as well as its inaccuracy from a historical point of view.

Then there are the type 2 cases in which there is a bit more of a chain of connection – the comparison is with a particular (supposed) aspect of medieval life, though either the connection is questionable, or the aspect of medieval life is represented inaccurately. A case of this type from the Mirror was their description of a deadly ‘duel’, allegedly set up to decide which of two potential love-interests would acquire a woman, as ‘medieval’: https://www.mirror.co.uk/news/uk-news/divorced-mum-arranged-medieval-fight-21034911 ; https://www.mirror.co.uk/news/uk-news/mum-who-arranged-fatal-medieval-21249149 Yes, there was such a thing as the judicial duel in medieval England, but, in the age of recorded legal history, it was not frequent, not necessarily deadly, and certainly not employed to decide between suitors. Had the paper wished to risk going a little closer to actual history, it might have thought about later duelling culture, from the early modern period. (You don’t often see contemporary behaviour described as ‘early modern’, do you?) Also worth noting that the facts here were about ‘foreigners’ as well: those involved were originally from Lithuania. In slight mitigation of the the paper’s offence, we might note that the ‘medieval duel’ idea seems to have originated with one of the trial lawyers. Presumably not one with good training in legal history.

Perhaps there is a third type, the ‘innuendo by juxtaposition’: a report of contemporary violence, in a situation which is portrayed as having a medieval connection, thus reflecting back on the medieval period an idea of violence. Such a ‘type 3: juxtaposition’ case can be seen in https://www.mirror.co.uk/news/uk-news/pancake-day-medieval-football-match-14093383 – an event dating from ‘medieval times’ (unexplored) resulted, in the present day, in violence. Readers are, arguably, being encouraged to conclude that there is something ‘medieval’ about the violence.

So, there is a lot of rubbish being spouted about the ‘medieval’. It is worth, finally, thinking about why I dislike it so much. Partly it is discomfort at unashamed ignorance: when there is such wonderful scholarship on the medieval world going on throughout the world. A larger part, however, is high dudgeon (not dungeon) at the contemptuous dismissal of people as human as ourselves as blundering, brutal idiots, and the concomitant self-congratulatory implication that we are doing so much better. Not so sure about that.

To be continued …

GS 17/5/2020

Ctd: Unsystematic ‘feudalism’ – use of ‘feudal’ by Parliamentarians

I was a little surprised to see that ‘feudal’ scored a mere 27 mentions in the 2015-20 debates.

The biggest cluster of references came in debates around leasehold reform in England and Wales.[i] Using ‘feudal’ here is intended to suggest that landlords are abusive, in the manner of medieval lords. There are two problems, though. First, leases are not feudal arrangements – check your Baker, Introduction to Legal History. Secondly, we have the ‘historical distancing’ thing again: the abuses perpetrated by modern landlords are a feature of capitalism, not feudalism. Calling them feudal lets capitalism off the hook. Using ‘feudal’ in discussing an unequal employment relationship falls into the same difficulty: abuses and power differentials are deeply embedded in relationships in the market economy, and throwing the f-word around distracts from that.[ii]

It comes up a bit in some of the same contexts as ‘medieval’, especially in lazy attempts to jazz up an argument that the government is behaving in an absolutist way.[iii] Look it up, people – autocracy and divine right kingship are not the same as ‘feudal’ monarchy.Sometimes, greater accuracy breaks out, e.g. unless you are a hardline medievalist who will not countenance any reference to the ‘feudal’, you are probably OK with Keir Starmer’s distinction between historical royal roles as sovereign and feudal lord.[iv]

On the whole, a poor haul. (Mind you, I have seen a few ‘feudal’ references recently in the press coverage of the Dominic Cummings ‘essential 250 mile trip during Lockdown’ episode – those terrible envious socialists suggesting that dear Dom was behaving somewhat unaccountably in crossing the country during a time of pandemic isolation – so we may see a bit of a resurgence …)

GS 23/5/2020

Ctd.: Magna Carta

Magna Carta

Since 2015 was a big anniversary, I would expect some MC-drivel in this section of Hansard. Mostly rather ‘samey’ though. There are predictably lazy suggestions that Magna Carta involved barons insisting on the ‘rule of law’ as if what they were after was remotely like the modern concept that goes by that name, as opposed to ‘their privileges’.[i] Some have had the intelligence to distinguish the charter and its myths.[ii] MC is ‘signed’ quite frequently (rather than sealed), but that is a relatively minor inaccuracy.[iii] It is a worse error to get its date wrong,[iv] or to identify the MC barons with the House of Lords.[v]

There are some generous/far-fetched interpretations of the narrow and self-interested chapters of MC as founding general ‘democratic’ rights. Thus, it seems a bit questionable that c.12 on scutage and aid can be scaled up to ‘no taxation without representation’,[vi] or that c.41 really supported a modern idea of free trade.[vii] Beyond exaggeration and straightforwardly wrong, however, is David Lidington’s statement that Magna Carta ‘mentions the importance of maintaining fish weirs in the river Thames’ – oh dear, cl. 33 is all about getting rid of these from rivers![viii] Obviously well qualified to be Lord Chancellor (later), with that impressive attention to legal detail.

GS 25/5/2020

[i] https://hansard.parliament.uk/Lords/2019-03-11/debates/48DA63DB-B1E1-4427-AAEA-4197441184D9/FurtherDevelopmentsInDiscussionsWithTheEuropeanUnionUnderArticle50OfTheTreatyOnEuropeanUnion?highlight=runnymede#contribution-1453B54D-84C2-4211-A0A1-F3AA8EB99106

 

[ii] https://hansard.parliament.uk/Commons/2015-05-28/debates/15052828000003/HomeAffairsAndJustice?highlight=magna%20carta#contribution-15052828000532 https://hansard.parliament.uk/Commons/2015-06-30/debates/15063035000001/HumanRightsAct?highlight=magna%20carta#contribution-15063035000045

[iii] https://hansard.parliament.uk/Commons/2015-06-03/debates/15060324000002/DevolutionAndGrowthAcrossBritain?highlight=magna%20carta#contribution-15060324000528

[iv] https://hansard.parliament.uk/Lords/2018-02-26/debates/6C8A5D63-CA0F-4393-B028-B914B7F4F495/EuropeanUnion(Withdrawal)Bill?highlight=magna%20carta#contribution-950B417D-90BB-4EA4-9D96-58C37B42D404

[v] https://hansard.parliament.uk/Lords/2018-02-26/debates/6C8A5D63-CA0F-4393-B028-B914B7F4F495/EuropeanUnion(Withdrawal)Bill?highlight=magna%20carta#contribution-950B417D-90BB-4EA4-9D96-58C37B42D404

[vi] https://hansard.parliament.uk/Lords/2019-10-21/debates/56AF9C6F-59F6-4F48-9A7D-C03AEEEF7EB7/Queen’SSpeech?highlight=magna%20carta#contribution-B11431F5-6429-4A48-8789-E429E2BA0341

[vii] https://hansard.parliament.uk/Commons/2019-02-28/debates/43B3BCE8-E19A-47EC-AAA6-588F13697380/TopicalQuestions?highlight=magna%20carta#contribution-5EA86517-2B1D-475B-9440-95621BBD84BA

[viii] https://hansard.parliament.uk/Commons/2017-03-23/debates/21613DF3-90F7-4CE7-B62E-D23583C8366E/BusinessOfTheHouse?highlight=magna%20carta#contribution-7BCCF3C7-041E-486C-9B6B-7CE17D4211B5 http://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Clause_33

[i] See, e.g. https://hansard.parliament.uk/Commons/2018-04-30/debates/74C70C7C-8A72-4710-996D-6B266212735C/TopicalQuestions?highlight=feudal#contribution-5818858B-2BB8-471B-809B-8F89DDB35F9F

https://hansard.parliament.uk/Commons/2019-10-23/debates/D3DCA636-3FA8-41A2-9EDB-E32E12970166/Engagements?highlight=feudal#contribution-EB7A7995-E0F5-43A4-817A-2D51C95D1EFF

https://hansard.parliament.uk/Commons/2020-01-13/debates/FCF3122B-CF68-4785-9095-BA0F274C79B4/LeaseholdProperty?highlight=feudal#contribution-EE1CAEC9-0F76-4E54-AF4D-532B5C3355BC

[ii] https://hansard.parliament.uk/Commons/2015-06-29/debates/1506308000001/PostOfficeHorizonSystem?highlight=feudal#contribution-1506308000027

[iii] https://hansard.parliament.uk/Commons/2017-09-11/debates/B10868CD-F096-47A2-84EE-A902C8A271BE/EuropeanUnion(Withdrawal)Bill?highlight=feudal#contribution-259D7E72-2BBB-4F75-9D89-CB7C8B2E9CF4

[iv] https://hansard.parliament.uk/Commons/2016-10-12/debates/F327EC64-3777-4D40-A98D-BEC2E11763A2/ParliamentaryScrutinyOfLeavingTheEU?highlight=feudal#contribution-29ED1899-E810-4057-A369-AE3941958732

Additional Pages: A historical source in their own right

For most of my academic career, reading at speed, and always off to the next book on the list, I have skipped and skimmed the ‘additional pages’ – the Roman-numbered ones at the beginning and end of a volume, containing the preface and index. More recently, though, I have become a little obsessed. First of all, I started looking at the index of any book I was reading, to see whether they had anything to say about women (in the case of Legal History books, the answer was very often no). Then, more recently, I have started to read prefaces. A particular feature seems to be the ‘minimising and patronising thanks’ motif – especially the brief, duty-bound, mention of women who no doubt did more than the transcription and typing credited to them. The attitude conveyed is one of arrogance and self-importance, seeking to emphasise the author’s own struggle, importance and genius. A particular gem turned up in my reading today, featuring not only women-minimising, but also something of an under-estimate of the others involved in bringing a book to press.

 

In Selden Society vol. 62, C.T. Flower, Introduction to the Curia Regis Rolls (London,. 1944), Preface, viii, Our Cyril (as I am sure he was known) informs his reader that ‘This book has been read in proof by my colleague, Mr. L. C. Hector, who has made numerous suggestions, of which I have used a very large proportion. I am greatly indebted to Mr. Stuart Moore for his unfailing encouragement, and to Professor Plucknett for his careful scrutiny of the proof sheets. My wife has made my task much easier by typing more than half the text, although she was at the time crippled by an accident. A last word of thanks is due to the printers, on whom the times in which we are living must have imposed great difficulties, of which they seldom made me aware.’

 

So what sets my teeth on edge here? Well, first of all it is the bit about his wife. No name. It’s his wife and he can’t even be bothered to include her name. According to his ODNB entry, it was Helen Mary Harding, before she married Cyril. Thereafter, apparently, ‘my wife’ sufficed. Then there is the ‘more than half the text’ – was it really necessary to go into proportions? And finally, the implications of this poor woman typing away whilst badly injured (we will pass over ‘crippled’: vile though it is, it was probably not out of the ordinary at that time). The idea that, during WWII, it was thought to be so urgent a matter to get out a volume on medieval legal records that a very-injured woman was called upon to type it up suggests both a lack of perspective and also a less-than-healthy partnership. The dismissal of the printers and their ‘great difficulties’ in a few bland words also seems jarring – and is there a hint that they sometimes did make him aware of problems (uppity little tradesmen! Don’t they know how important the work of a learned society is? Hitler will look upon my disussion of essoins in thirteenth century records and despair!)?

 

I shall continue to seek out dodgy preface remarks: they seem to be an interesting window into the mental world and self-regard of earlier scholars, and the lives of Legal Historians’ Wives. There seem to be so many ways to go wrong in a preface – self-indulgence, boasting, performative thanking, general dullness – that I do wonder whether we might not do away with them and just, you know, write the book. Which is what I am supposed to be doing now.

 

GS

4/4/2020