Tag Archives: legal history

‘Lunacy’ in a Legal Record

A ‘supermoon’ is due tonight: https://www.timeanddate.com/moon/phases/

Reading about this has reminded me of the old idea of the moon’s baleful influence upon the mental state of susceptible individuals. Medieval criminal records referring to ‘lunacy’ as an explanation/excuse for violent or otherwise offensive activity are not hard to find, though usually they do little more than stating that the accused is deemed a ‘lunatic’, and it is easy to assume that this is simply a rather general label for those who are obviously disordered (perhaps specifically in a violent sense). Recently, however, I came across a case which went somewhat further into the matter, emphasising the lunar explanation of mental disorder. It is not one I have seen discussed elsewhere, so is, I think, worth a quick note.

The case is in a Suffolk Gaol Delivery Roll,  JUST 3/63/4 m.6, which can be seen on the AALT site at:

http://aalt.law.uh.edu/AALT7/JUST3/JUST3no63_4/IMG_0136.htm

 

Alice Brytyene of Lawshall appeared in a session in Suffolk in September 1309, before William de Ormesby and William Inge, royal justices. She had been arrested because, so it was said, she had: (i) feloniously burnt the home of Simon Brytyene, her husband, in Lawshall, meaning to burn Simon in the house; (ii) broken into the barn of Pymme Brytyene in Lawshall and taken away sheaves of wheat worth 13d; (iii) broken into the oven of Ralph del Peke and taken away seven loaves of bread worth 6d. Alice pleaded not guilty to these charges, and accepted jury trial. The jurors said on oath that she was not guilty of the burglary of the barn or of the oven, nor of taking away the wheat or bread. As for the burning of the house, they said that, for seven years and more, continuously,  Alice had been furia vexab[atur] in incremento lune so that lunatica[m] infirmitate[m]  patit[ur]m i.e. she had been tormented/bothered by madness with the waxing of the moon so that she had suffered from the disease of lunacy. And they said that on the seventh of July last past, Alice had been suffering from this condition [predicte infirmitate vexabatur] when she burnt down the house in question, in her insanity and not feloniously [furiose & non per feloniam] as had been charged against her. Alice was therefore acquitted of the burglaries, and (presumably in respect of the arson, though this is not stated) was to be returned to prison, (presumably in the expectation that she would be pardoned by the king).

 

It is already well-established that medieval common law and communities did not hold those with obvious and serious mental disorder responsible for their actions as a matter of felony, but it is interesting to see glimpses of the reasoning behind such determinations by lay-people, in the legal context. Here, we have the definite and dramatically or poetically satisfying link between the waxing moon and the growing disorder, and the (sophisticated and observant) comments about Alice having suffered over a long period with a fluctuating condition.  There is food for thought about the place of the ‘insane person’ within the community as well: this community, which was conscious of Alice’s long-term disorder, would appear to have allowed her a degree of freedom, until a recent time. (I am also musing about the effect of a widespread theory of lunar influence – to what extent would people have internalised that idea and to what extent might it have had an effect on their behaviour? One for transcultural psychiatrists/ historians of psychiatry, I think).

 

I have not turned up a pardon for Alice, but I am reasonably hopeful that she would indeed have been pardoned. This would not necessarily mean a ‘happy ending’, however, since closer confinement by family members might well have been her fate after this episode.

 

19/2/2019.

Early modern attitudes: was ‘hermaphrodite’ defamatory?

I am preparing a lecture on the history of common law ‘tortious’ defamation, and have, once again, come across references to the case of Wetherhead v Armitage (1678) 2 Lev 233; 1 Freeman 277; 2 Show KB 18. According to the accounts in the English Reports, this was a case in the King’s Bench in Michaelmas 30 Charles II (= 1678 – we pass over the whole Commonwealth business without counting those years). It was an ‘action on the case’ (i.e. a ‘tort’ claim for compensation) in respect of words. There are some variations in reports and discussions of the case. All agree that the plaintiff was a dancing teacher to ‘young gentlewomen’, and she had, apparently been insulted by the defendant, but his words are given in slightly different forms. He may have said “she is no more a woman than I am; [or possibly ‘she is as much a man as I am’]’ and ‘she had a bastard on J. S. [or possibly ‘she got JS with child’’. There is agreement that he rounded off with ‘she is an hermaphrodite [or a hermaphrodite].” The plaintiff claimed that the words had caused her to lose some of her students, causing her £40 of loss.

There may have been mistakes in the way P’s case was pleaded – reports suggest that perhaps it should have been more exact about when P had been a dancing-mistress, and about which students left as the result of D’s words. What is intriguing to me, however, is what the case could tell us about contemporary attitudes to ‘hermaphrodites’ (which must be taken to be a rough, if problematic, equivalent to ‘intersex person’). There are statements to the effect that this does not count as necessarily defamatory in itself, and that the statement as a whole does not obviously damage a dancing-mistress in her profession ‘for young women are taught to dance more frequently by men than women‘. In one version (2 Show. 19), counsel for D, Mr. Levinz and Mr. Saunders moved … ‘that “hermaphrodite” is no word of turpitude or crime, but only an imbecility’. The last term may seem insulting today, but should be seen as akin to ‘weakness’ – so, somewhat milder, if still troubling.

A slightly different view of the matter was apparently taken by Wylde J, who seemed to doubt the idea of ‘hermaphroditism’, and insisted, presumably following Coke, Bracton and older sources, that one sex must predominate. He is also reported as seeing ‘the matter’ (but which part!) as ‘scandalous’ in and of itself. But the agreed ratio of the case seems to be that ‘hermaphrodite’ was not actionable without special damage (2 Lev. 233).

The case is referred to in later works as authority for the proposition that calling a school-mistress or dancing-mistress an hermaphrodite is not actionable without pleading by P of particular damage. The bit about being a man and having fathered an illegitimate child is sometimes left out, making a simpler story, and there seems a little doubt about what the case actually decided.

Assuming that the ‘not necessarily defamatory and actionable’ view is correct, it does seem interesting that, while P clearly regarded it as insulting to be so designated, being a ‘hermaphrodite’ is not clearly treated by the court as if it would obviously damage the reputation of somebody dependent on public acceptance for her livelihood. Would we expect people of the seventeenth century to blame the ‘hermaphrodite’ for being so? I can’t claim an expertise in 17th C attitudes in this area, but it is worth bearing in mind that the common law did treat allegations of certain physical conditions (syphillis, leprosy…) as being obviously defamatory. (I also like thinking through the logic of the ‘insult’: if P is ‘as much of a man’ as D, and P is an hermaphrodite … what does that say about D?)

Because of the murkiness around the decision and also just because I would very much like to know a bit more about the people involved, it would be excellent to find the KB record for this one, and see what more can be gleaned from it.

 

 

Buckets and causation in medieval Kent

Here is an interesting record from a crown pleas roll from the Eyre of Kent 1313-14:

JUST 1/383 m. 28d, which can be seen at AALT IMG 1763 http://aalt.law.uh.edu/AALT4/JUST1/JUST1no383/bJUST1no383dorses/IMG_1743.htm

It involves the unfortunate demise of a man called Augustine. These rolls contain endless examples of unfortunate deaths (frequently involving falls, fires and vicious pigs) but they way in which they are recordsd often makes it hard to see how a decision was made as to whether somebody should be held responsible, or whether the death was an unfortunate accident (look for infort’ in the margin). In particular, it is often impossible to know whether a death has been ruled accidental because of ideas about the (lack of) intention of another person who was potentially culpable, or because it was not, in fact, thought that this other person caused the death. This case, however, has an interesting and unusual little statement about causation, which might be of value to those wrestling with the outlines of ideas about culpability in medieval law and thought.

The facts were unglamorous enough: Augustine, son of Richard de Holeweye, wanted to fill his well, but it was full of mud. He went down into the well and told Alice his wife to set up and lower the bucket hanging over the well, in order to remove the mud from the well. When the bucket was full of mud, Alice began to pull it up. Sadly, the rope holding the bucket broke as she did so, and the bucket, full of mud and presumably heavy, fell down the well and hit Augustine’s head. He suffered an injury which was not immediately fatal. We are not told how (or whether?) he was brought up from the well, but in any case, he died (we are told, from this cause) within fifteen days. Alice was arrested. Evidently, she was seen as potentially culpable in this situation. ‘Afterwards’, however (and we do not know how long afterwards) it was held that the deed was a sort of act of nature [quasi factum naturam] and Alice was not the efficient cause [causa efficiens] of Augustine’s death, and the  Justices regarded this as an accident. [So Alice was cleared].

The language of ‘efficient cause’ is interesting – hints of Aristotle, perhaps? – and the whole episode suggests some doubt about the distinction between human agency and the workings of ‘nature’. In what sense was ‘nature’ engaged here – was it in the breaking of the rope, the falling of the bucket of mud, or both? We might wonder why there is no mention of the bucket (with or without mud, as the deodand – the object regarded as ‘moving towards’ the fatal convergence which, in most cases, would have been demanded by the crown. Does the idea of efficient causes and acts of nature cancel out the idea of causation based on the ‘fault’ of objects? And, if there was blame to be given out,  why was Alice the obvious person to think of blaming rather than Augustine himself? As ever, the plea rolls leave us with a bucketful of questions.

 

 

Podcasts: a lot of eighteenth-century crime

 

Teaching an undergraduate Legal History unit means venturing outside my usual medieval limits, and, when it comes to criminal law and criminal justice, it means engaging with the vast and ever-increasing scholarship on the 18th century.

I will admit to a bit of anti 18th century prejudice – probably stemming from having ‘done’ 18th C history at ‘A’ level and wanting to move on from Walpole, Bubbles and Wars. But I am starting to get over it by listening to some podcasts on crime and punishment in this era (study of which is more popular than ever amongst historians, at least partly because of the Old Bailey digitisation project).

Today’s mind-broadener was from 2013 at the Institute of Historical Research, London: Steve Poole (UWE) ‘For the benefit of example’: hanging felons at the scene of their crime in the long eighteenth century’. https://www.history.ac.uk/podcasts/british-history-long-18th-century/benefit-example-hanging-felons-scene-their-crime-long

 This was extremely interesting.  It was good to hear about places other than London (the Old Bailey project, marvellous though it is, has tended to push London even more to the fore in crime history scholarship than had previously been the case) and intriguing to learn about differences in practice, and cross-currents, in relation to the location of, procession to, and conduct of executions. The paper was also very worthwhile in its demonstration of the danger of trying to impose progress narratives on the past.Apart from anything else, my heart was gladdened to see yet another example of Foucault’s much-genuflected-at theories being proved inaccurate. (One can only hope that the end is in sight for the disciplining and punishment of academia by these pretty patterns which, when examined in the context of specific histories, show their lack of substance).

This paper, and the research behind it, however, showed real substance, and introduced important matters for consideration. In particular, it is vital – though hugely difficult – to try and get one’s head around what people of the past thought was good and appropriate about public execution. There are some good and thoughtful suggestions here, and some excellent examples to back them up.

Well worth a listen.   

Coke fanboys and a cheer for F. Pollock!

I recently had occasion to go over the report of Bebb v. Law Society [1914] Ch. 286 (woman wants to be solicitor; not allowed to; takes legal action; loses, because obviously women can’t do such things – they should know their place), and, apart from its steam-from-ears-inducing unfairness,  it has some interesting material for those of us who are not fans of Sir Edward Coke (some might find the words ‘over-rated ruff-wearing misogynist’ spring to mind – I could not possibly comment).

On the depressing side, it is an example of just how ludicrously deferential judges of this period were to Coke: even when he was citing the dodgy Mirror of Justices. Cozens Hardy MR at 293, ‘[T]he opinion of Lord Coke on the question of what is or what  is not the common law is one which requires no sanction from anybody else …’ while Swinfen-Eady LJ, at 296 goes with ‘It is said the authority of the Mirror is impugned. But the authority of Lord Coke is not …’ and Phillimore LJ 298 ‘Lord Coke … is only a witness, no doubt, as to the common law, but he is a witness of the highest authority’. Creepy, craven stuff. Still, I suppose the deification of Coke meant there was no need to do proper Legal History research.

Pollock, editor of the Law Reports, however, had Coke’s number, noting in a footnote that his citation was incorrect and that there was some corrupt spelling (fn on  p. 292) and in a footnote on p. 295 that ‘Coke, according to his frequent habit, felt bound to support his living knowledge of  practice by citing an apocryphal authority’. Quite right too, F.P.

All of which has left me wondering:

(1)    When did the Coke-idolisation thing end’; and

(2)    What is the most Coke-worshipping statement in a law report? I will be looking out for this from now on.

Coke’s Marriage and Treatment of his Wife and Daughter

Those writing about Coke have generally given him a rather easy ride in relation to his treatment of his wife and daughter. It is hard not to find his ‘gold digging’ matrimonial conduct and his swift and secret second marriage anything other than discreditable and distasteful, but Baker’s introduction goes no further than saying that he ‘later had cause to regret’ i: Baker, Introduction to English Legal History, 4th edn 2002, 480t). No mention of the whole abduction of daughter to force her into obviously unsuitable marriage for his advancement in the favour of important people …

‘The second Mrs Coke’, a.k.a. Lady Elizabeth Hatton is subject to straightforward, and deeply gendered, insult elsewhere: being called a ‘harridan’ in Barnes and Boyer,  Shaping the Common Law from Glanvill to Hale 1188-1688 (Stanford CA, 2008) p. 120. The abduction of his daughter is mentioned here, at p. 127.  but there is not any real criticism and nothing on the lack of suitability of the groom.

Mephitic metaphor

I am not sure we really want the mental pictures conjured up by the idea of the common law as Coke’s ‘jealous mistress’ [A.D. Boyer,  Sir Edward Coke and the Elizabethan Age (Stanford UP 2003), 32. There are all sorts of dubious metaphors about the common law, or justice, as a woman, but does it need to be a ‘mistress’, with all that that imports, and does it need to assume that there is a recognisable, accepted idea of ‘the jealous mistress’. Just unnecessary.

 

 

 

 

 

Early modern medical snippet

I am neither an early modernist nor a medical historian, but came across an early modern medical case recently and thought it was worth sharing, for the benefit of those who know more about these things.

Brashford v. Buckingham 79 ER 65 and 179 , Cro. Jac. 77 and 205, is a King’s Bench case from 1605-7 (Trinity 3 James I, and Hilary 5 James I),  concerning a promise to pay a healer £10 for healing a wound, and then a dispute as to whether payment was due. It is not especially surprising to see an action of this sort in this context (it is an ‘action on the case’, not unexpected in the medical context), and the main legal point which was of interest to the reporter concerned a technical issue of the appropriate parties, but it did strike me as slightly unusual in that the ‘medical practitioner’ was a woman.  Curing a wound which was worth £10 does sound like fairly serious medical treatment, and being trusted to do so by somebody who can pay £10 suggests a high reputation for healing. The woman in question deserves some attention from early modern medical historians.  Sadly, this will mean trawling through four KB plea rolls: KB 27/1391, 1392, 1403 and 1404, since the report (annoyingly) does not give a roll or membrane number. One day …

Life, death, dower and the twitching of legs

I have recently been doing a lot of work on the history of proving the presence or absence of life. My particular focus has been on medieval England, and on determining whether or not a baby, now dead, was ever alive so as to qualify the father for certain property rights (tenancy by the curtesy: article on its way). That has been fascinating, and I am sure there is more to discuss and discover on that point, but it is also part of a bigger question for the law, on drawing lines between life and death. This is important in criminal cases – e.g. in working out whether a person was killed by X or by Y – but it is also crucial in relation to various succession questions. As well as the curtesy cases in which there is a need to determine whether or not a live child was produced, there are cases in which it is necessary to work out the order of deaths. How was this decision made in the past?

There are two broad issues for legal historians: by what mechanism is the question decided, and by what test is it decided. My curtesy work has shown me that neither question leads to an entirely straightforward answer. Today, I came across an ‘order of death’ case from the 16th C which has set me thinking about this in a wider context.

The case, called Broughton v. Randall in the English Reports, though more properly Morgan Broughton, armiger v. Margaret, widow of Robert ap Rondell Cro Eliz 502. 78 ER 752; appears on the King’s Bench plea roll for Trinity 1596 (38 Elizabeth I), starting at KB 27/1339 m. 876 (AALT IMG 0945).  It is in the report, however, that something is said about the ‘order of deaths’ issue. This was a dower case from Denbighshire, Wales, in which Margaret was claiming land currently held by Morgan. The land in question appears to have been held jointly by Robert and his father. Both were hanged at the same time. Margaret’s chance of dower depended on it being decided that Robert had outlived his father. She was successful, and this was, according to the report, because Robert’s legs had been observed to twitch after his father was still. I am not qualified to say whether that really is a good indication of life in a meaningful sense, though I am inclined to be doubtful.

I have drawn a blank, so far, on Robert, his father and their crime, though that does seem an interesting avenue to pursue one day. Also interesting is the fact that this is a Welsh case – since there is much to be discovered about the ways in which the Welsh were arranging their property holding in this period. As far as the pinpointing of death is concerned, however, this does show the inventive approach which might be taken to establishing the facts for legal purposes. Its use of movement as a criterion is also very interesting as a counterpoint to the test in curtesy, which was traditionally more sound-focused.

Shaming and sheep (Baa baa black … ram?)

Reading some early modern material, in the (forlorn) hope that I might find something useful on tenancy by the curtesy (a recent obsession), I came across more than one reference to a strange procedure allegedly used in relation to free-bench (the equivalent to dower, for land held by ‘unfree tenure’, according to various manorial customs.

The procedure was allegedly used in cases in which a widow, who would, in the usual course of things, be entitled to free-bench, had had an illegitimate child after her husband’s death. ‘Incontinence’ (and, indeed, remarriage) would often mean that she lost the right. But there was, apparently, a way out: all she had to do was present herself in the manor court, riding (possibly backwards) on a (possibly black) ram, (possibly holding its tail) and reciting the following verse:

“Here I am

Riding upon the back of a black ram,

Like a whore as I am;

And for my Crincum Crancum

I have lost my Binkum Bankum;

And for my tail’s game

Have done this worldly shame;

Therefore pray, Mr Steward, let me have my land again.”

 

This would, so we are told, act as condign penance, and she would not be forfeited.

The sources in which I have seen this are 17th and 18th C, and the procedure is sometimes linked to particular manors in Berkshire, Devon and ‘parts of the West’. [See, e.g., Anon., A Treatise of femes coverts or the Lady’s Law (London, 1732), 128; G. Jacob, A New Law Dictionary 6th ed. (London, 1750) under ‘free bench’; G. Williams, A Dictionary of Sexual Language and Imagery in Shakespearean and Stuart Literature vol. I (London, 1994), 333].

Is this just ‘horrible legal history’ or was it really ‘a thing’? It does chime in with various rough music and carnivalesque/misrule practices, but it is hard to see that performing a humiliating verse in this manner would have been thought to cancel out the ‘shame’ of producing an illegitimate child, evidence of sexual misbehaviour by a widow which was frequently seen as serious and deserving of severe property consequences. (And is it actually possible to ride backwards on a ram?) Early modern England – bit of a mystery.

 

 

Mysterious goings-on in Clerkenwell

The revival of mystery plays, and a more visual form of religious practice, is in the news today: https://www.theguardian.com/world/2018/jun/24/england-cathedrals-back-to-middle-ages-mystery-plays-pageants-chester-st-albans .

Anyone with an interest in things medieval will probably have had to deal with the various surviving mystery plays at one point or another – they have something to contribute to many fields beyond medieval literature/drama/popular theology, even to my rather technical work on legal history. They crop up so regularly that it is easy to assume that everyone in the middle ages thought mystery plays were great. Recently, though, I came across a case which suggests otherwise. I had filed it under the rather un-academic title ‘PrioressGrumpyPants’, I am afraid. Time to share it.

The scene:

Clerkenwell, Middlesex, somewhere in the (Augustinian) priory of St Mary

The cast:

The prioress

The king (probably Edward I, but dating is not certain)

The people of London (various, noisy and unruly, according to the prioress, who calls them sauvage gent)

The modern reader

The plot:

The prioress of Clerkenwell is not happy. She is in charge of the priory’s finances, and, like virtually all medieval nunneries, Clerkenwell’s finances are always a bit insecure. A particular annoyance is that she is not getting as much in the way of crops from her fields as she ought to – mainly because of the habit of people of London of coming onto the land and trampling the crops, with their fights or wrestling matches – and their mystery plays (lur miracles & lutes). She petitions the king to ask him to do something about it, saying that the common law has been no help. The response is a bit mealy-mouthed, suggesting that there has been some sort of instruction to a local official, the constable.

The modern reader is not convinced that one constable would be able to do much against the weight of Londoners wanting to use this land for their terrible unruly dramas. She understands the prioress’s financial worries, and is, of course, interested in her as a medieval woman with exceptional power and influence, testing the boundaries of medieval gender constructions, but does feel that grumbling about the unwashed hordes engaging in religious drama might be a little at odds with the idea of religious people as, you know, interested in promoting religion and suchlike. She also wonders if the Londoners might have made a good case for the religious orthodoxy of wrestling matches, based on Jacob’s bout noted in Genesis 32:24-32.

GS

24/6/2018.

 

References and reading

The record is SC8/98/4858 and you can see a summary (and even a scan of the document) on the National Archives website: http://discovery.nationalarchives.gov.uk/details/r/C9149425

If you want to read more on medieval nuns (and who wouldn’t?), the best place to start is still E. Power, Medieval English Nunneries c. 1275-1535 (Cambridge, 1922)  (and see her point at p. 36, that ‘[T]he dry-as-dust pages of the medieval law-books hide many jewels for whoever has patience to seek them …’ I would have disputed the dry as dust dig, but it’s broadly pro-legal history, so she is all right by me.)

A good entry into medieval mystery plays is: P. Happé, English mystery plays: a selection (Harmondsworth, 1975). Or go and see them – seeing the York cycle long ago was one of the things that started me off on this whole medieval thing …

 

 

Medieval Sporting Memories

The (male, football) World Cup started today. I am not much of a sport fan (missed out on the team-supporting gene and seriously disliked Fever Pitch – but will refrain from going off on a ‘New Opium of the People’ rant…) but by weird coincidence, football cropped up in my medieval legal history reading today too. There I was, reading an interesting article about 15th C proof of age inquests, and whether they were all a pack of made up nonsense (M. Holford, ‘”Testimony to some extent fictitious”: proofs of age in the first half of the fifteenth century’, Historical Research 82 (2009) 632-54 at 637) when some instances of football-related injury jumped out at me. Thought they were worth a quick blogging.

In Inquisitions Post Mortem vol. 22, inquisitions no. 189, 360, 361 and 364, all relating to Essex, some of the men who were confirming the date of birth and baptism of different, younger, men, with a view to showing that the young men were old enough to inherit land, did so by reference to injuries sustained while playing football, (ad pilam pedalem) more than two decades previously. Now, it may be that the stories were untrue, or ‘boilerplate’, but perhaps they can still show us/ remind us of a couple of interesting things:

  1. They are all (left) leg injuries. The tibia is mentioned. That seems noteworthy. Football medieval style always seems to be portrayed as something a bit more like rugby/American football, without the rules (or, in the latter case, the shiny trousers). But shin injury does suggest that the game they are talking about is actually something a bit more like your actual football.
  2. These are all men of a certain age – forty-somethings, talking about their glorious sporting exploits when they were young things in their early twenties. (Possibly, off-parchment, they regaled the assembled throng with tales of having had trials for Arsenal or medieval equivalent, and how their promising careers were ended by the aforesaid injury).
  3. It seems to be accepted that having a game of football (with or without shin-splitting) after a baptism was ‘a thing’, which is a nice little detail about medieval birth celebrations. Possibly, if mixed with celebratory alcohol, the apparent frequency of shin injuries (‘shinjuries’?) is explained.

Perhaps I am coming round to football after all. To be continued, if I find any other good football/legal history/medieval cross-over material …

14th June, 2018.

Football is a bad thing – official

World cup still on then …

There were statutory provisions against football in the later medieval period (see particularly 2 Richard II, c. 6: Statutes of the Realm II, 57, 11 Henry IV, c. 4, SR II,163). It is more complicated than that, of course: there was not a clear objection to football itself (despite its apparent danger to the shins of the English): the ‘beef’ was mainly with the fact that it distracted the lower orders of men from their archery practice, and, perhaps, that it might be the occasion for disorder. Legislation also hit out against those dreadful disrupters of society, quoits and bowls. And an investigation of many lower court rolls shows a reluctance to report and punish men for playing football (see McIntosh, Controlling Misbehavior in England, 1370-1600 (Cambridge, 1998), pp. 98, 133).

18th June, 2018.