Tag Archives: legal history

Contract, coercion and concubinage: a rape case from medieval Westmorland

On the Michaelmas 1402 plea roll of the King’s Bench, there is a case with things to say about both ‘criminal’ law with regard to sexual offences, and also the commercial/contractual aspects of sexual misbehaviour in the medieval period.

The case, from Westmorland in the north of England, is to be found at KB 27/566 m.21 and, via AALT, here. It is an appeal of rape, brought by Joan London of [Maulds Meaburn] against Henry del Croft of Westmorland, Sir William de Threlkeld,[i] and John his son, and Thomas de Faucet, together with John Williamsservant Threlkeld, William Cook de Threlkeld, Thomas de Bowes, chaplain, and William Aliceson de Threlkeld.

Joan said that she had been in the king’s peace at [Maulds Meaburn] on 19th April [1402], when Henry came at about 11 pm and raped her, feloniously, deflowering her of her complete/pure virginity, and, feloniously, having carnal knowledge of her. The others were accessories.

There are a lot of standard form elements to the entry (the usual statements about pursuit etc.) and I will pass over these. What is unusual, however, is the defence. Rather than just saying ‘Not guilty’, Henry said that he and Joan, after discussion, agreed that Joan would be his concubine, in return for 6s 8d, he paid her this sum, and slept with her. He denied felony. All of the defendants were acquitted.[ii]  Despite the utterly predictable outcome, (for those of us who are familiar with these cases, anyway), there are a few of interesting points:

 

  1. The wording of the accusation

This is of interest for those who look at crime/sexual offences in historical context, There is one slightly unusual word here – the accusation is not just the usual rape/deflowering/virginity vocabulary, but adds pura to virginitate. ‘Purity’ is more commonly found next to ‘widowhood’, in ‘civil’ cases in which there is some argument about whether a woman did something during her marriage (and thus bringing in the ‘coverture’ rules) or afterwards, when she was able and obliged to take legal responsibility for her own actions. An interesting variant, then, and one which we might just take as suggesting some general ideas about women at different stages of life. That needs some further thought, but it’s worthy of note.

 

  1. The defence

Note that this is not the familiar ‘she must have consented this time as well’ defence based on previous sex with the defendant: it is ‘she did consent in advance, and so cannot use the common law to complain about having been penetrated’.

 

  1. The alleged transaction

On a more ‘crime meets contract’ theme, there is something to say about the alleged bargain here,

The narrative about the agreement between Henry and Joan has the role, in the context of the appeal of felony, of defending Henry against the allegation that he raped her (modern sense) thus the reference to her assent and her will in this matter. We might note that the assent and will are ranged with an agreement to be his concubine, not with the particular penetration with which the appeal charges Henry. This raises the issue of just what it meant to be a ‘concubine’. It is a word which comes up from time to time in legal records, often in connection with ‘priests’ women’. It is not inevitably sexual, though clearly, in this context it is. It is something which could bear greater scrutiny in terms of its implications and its interesting location on the borderline between status and contract, as this case seems to illustrate.

We must pass over the question of whether there actually was a ‘deal’, between Henry and Joan, but, as ever, even if the story was a lie, it must at least have been a plausible lie, so, what can we learn?

The deal was said to have been reached between Henry and Joan. There is no hint of the involvement of a pimp, bawd, madam, or even a family member negotiating on her behalf. It was, therefore, considered plausible for a woman to strike her own bargain with a man, to become his concubine. The entry portrays an orderly, businesslike, procedure: Henry and Joan discuss the matter (they have a colloquium about Joan becoming Henry’s concubine), and reach agreement, Henry gives her 6s 8d and Joan agrees to be his concubine (the term is not given, but this surely represented the price of more than one encounter). The deal is expressed in both unilateral and mutual terms: Joan se aggreavit and they had an agreement (concordati fuerunt). Henry took Joan as his concubine with her assent and will, and [‘only then’ is, it seems to me, implied] slept with her.

It is interesting to see the use of this businesslike, contractual, narrative in this context. Two things, in particular, strike me. First of all, to work as a defence, the story really has to place Joan as being on a level playing field with Henry, able to strike a bargain. We would need more facts about the parties to know whether that was remotely likely to have been true, though I do wonder about the tension between the two-parties-bargaining-freely version of events in Henry’s defence and the allegation by Joan that there were rather a lot of other people involved, before, during and for a month after the event. Secondly, although we are deep in the period of central regulation of ‘contracts of employment’ and wages, the terms on which a ‘concubine’ might ‘work’ were clearly not part of this area of legal prescription and enforcement. It is interesting to reflect on what this meant. Although they were ‘free from the red tape’ of the labourers legislation, and did not have to sign up to fixed terns, so that one might have thought they could leave their ‘employment’ at any time (and so refuse sex), this was not, apparently, the case. Whether or not developments towards the more coercive in employment which was covered by the labour laws had an impact upon areas like this, not covered but possibly analogous, must, for the moment, remain in the realms of speculation – but it isn’t particularly fanciful to imagine that it might have done. I note that sometimes, women may be described in legal records as ‘servant and concubine’ (e.g. here, from 1399), which may well indicate an idea of ‘concubine as employee’.

Anyway, this record suggests that a deal, even a sinful deal, was not something that could be called off, at least once money had been handed over. While I presume the common law would not have enforced such a deal in a straightforward ‘contract law’ manner, we can see that the way in which the law of felonious rape was treated in practice meant that it afforded no protection for a woman who might want to get out of such an arrangement.

 

Some tentative conclustions: ‘free’ contracts and contracting unfreedom

Joan’s disadvantageous position bears obvious comparison with another ‘freely contracted’ status, that of marriage, with its consequences under the emerging rules of ‘coverture’. Just like a wife, a concubine would seem to have bound herself for the future in terms of sexual compliance, so that she would not be able to succeed in an appeal of rape. The way in which Henry’s case was put – admitting sex and founding his defence on the alleged concubinage agreement – is strongly suggestive of this being accepted.

One might also compare the ‘concubine’ with the prostitute/whore  (the terminology here is very difficult, but I mean somebody entering into one-off transactions). Bracton II, 415 lumps these together to some extent, as women who can be raped (albeit that this will attract a less serious punishment than rape of a virgin). Though the ‘concubine’ seems to be less disapproved of than the prostitute here, it may be that the common law’s increasing interest in and respect for contractual bargaining, possibly reinforced by ideas about ‘making the lower orders stand to their obligations’, as Robert Palmer had it,  even if not strictly covered by the labour laws, left the concubine in a rather worse position than the ‘common whore’, free to transact her business on an encounter-by-encounter basis, and presumably not obliged into the future to do the bidding of her customer/master.

This case should, if nothing else, remind us: (a) that it is essential not to tell ‘de-gendered’ stories about the development of legal categories and doctrines; and (b) that material from what is now generally seen as one discrete area of legal doctrine and practice may be relevant to another. Here, we have the use by a man, against a woman, of the idea that the common law should take account of, and accord force to, private contracts. The negative effect of contract ideas upon ‘criminal’ law protections for women is not something which should be ignored by legal historians. For all of the ‘rises’ and ‘triumphs’ of the history of the law of contract, we should remember that the impact of legal development is not to be measured only with regard to the experience of (free, capable) men.

 

GS

16/6/2024

[i] Could this be this man?

[ii] Joan was said to have brought a false appeal, for which she was financially liable. A jury found that she was not able to pay the damages assessed, and the former defendants now went after a man, Richard de Threlkeld, said to have helped her bring the allegedly false appeal.

A vicious beating or a vicious lie? A fifteenth century Somerset case

Content warning: infant death

Carrying on the occasional posts relating to medieval ideas about the foetus, and about pregnancy (you can follow back from here to see earlier ones, should you so desire), here is an accusation within an accusation, which might have a couple of things to say to us on this topic.

There is an entry on the King’s Bench plea roll for Michaelmas term 1412 (KB 27/606 m. 20d – here via AALT – which concerns an alleged piece of malicious prosecution, in which a group of people, including Thomas Morle and his wife, Elizabeth, accused John Cokkes and others of having taken the opportunity of Thomas’s absence on business in Bristol to break into his house in Milverton, Somerset, drag Elizabeth, who was pregnant, out by the legs and then beat her up. This beating was said to have injured her ‘so that her life was despaired of’, a detail so common as to be ‘boilerplate’. Far from ‘boilerplate’, however, was the elaboration of the damage said to have been caused: some time after this, she gave birth to her twins, who were severely injured by the beating (the back of one, and the legs of the other being broken), and died shortly after they were born. For good measure, perhaps, it was also alleged that a significant amount of property had been taken from the house, and that there had been threats against Thomas and Elizabeth, so that they dared not go about their business.

Back to the pregnancy/foetus/newborn angle, however … let’s note some interesting aspects of this…

  1. Language

There is a ‘backdating’ of terminology here: before the birth, the twin foetuses are described using a word usually associated with post-birth life: infans. They are infantes in utero suo existentes. This does give a sense of blurring of pre- and post-birth life, I would say.

  1. Ideas about gestation

This may not be terribly surprising, except to those who have seen the sometimes preposterous ideas about the length of human gestation in later cases on adulterine bastardy, but medieval people had an idea of the right length for a pregnancy – and it was said that the twins were born before their time. It would be nice to know if they had any idea about how a multiple pregnancy would affect length of gestation, or likelihood of survival, but, of course, that would be expecting a lot of such records.

  1. Suggestion of post mortem examination

We know from coroners’ records that there could be an examination and description of a deceased baby or foetus, at least in terms of size, but this seems to suggest some touching and feeling to ascertain that bones were broken, which is grimly informative.

  1. ‘Spin’ strategy

We cannot, of course, know what was the truth of this tale. Was it a complete fabrication, entirely true, or something in between? If it was made up, then we must assume that throwing in the details about the damage to the foetuses, and loss of viable foetuses, would have been seen to make John Cokkes and his associates look more culpable. So – not something confirming ‘personhood’ in the foetus, by any means, but certainly suggesting value.

 

GS

8/6/2024

 

 

A Cornish compensation claim

Content warning: miscarriage/abortion

Here is another snippet on that vexed question: how did medieval law regard the foetus (something I have blogged about a bit.[i]

Much of the attention in this regard – including mine – has been on the law of homicide. That’s understandable, since we tend to think of the big question being ‘was it regarded as homicide, to end the life of a foetus?’. But here, in KB 27/590 m. 15d, is a Cornish case in which the aim is not to convict a person who had caused foetal death, but to obtain compensation for a ‘tort’.

It is from the King’s Bench plea roll for Michaelmas 1408. John Archer and his wife, Alice, brought a trespass action against David Renawedyn and seven other men, accusing them of having, (on a date the same year which seems to be May 16th, with a woman, not a defendant here, at ‘Aransawyth’[ii]), assaulted Alice, so that she miscarried (abortum fecit) to the great damage of John and Alice and against the king’s peace. They claimed that they should recover £100.

The defendants pleaded not guilty and the matter rested there, awaiting a jury. No end found just yet.

One is struck by the fact that both husband and wife brought the action. But then a married woman had to bring this sort of action in conjunction with her husband: we cannot really read into this a particular statement about the foetus being the man’s ‘property’, or the loss ‘really’ being his, since this is the way all trespass cases would have to be brought, when damage was done to the person of a woman.  Unhelpful, too, for the historian, is the fact that the damage to Alice from the external force, and that from the consequent loss of the foetus, or the pregnancy, are not disentangled. We certainly can’t say that this is putting a particular financial value on the life or worth of a foetus in itself. However, it is an interesting indication that the loss to the expectant parents when a pregnancy was ended in a violent, wrongful, manner, could be calculated, and a claim for substantial compensation was plausible.

The existence of such a claim might be seen to confirm the impossibility of the homicide route with regard to a foetus, especially where the pregnant woman had not, herself, died. It could, though, simply be a case of choosing one of a number of overlapping modes of legal response to an offence. I still think much remained unclear and ‘up for grabs’ in the law on the foetus in medieval England, but there is certainly more thinking and research to be done on this point.

GS

28/5/2024

 

Image – Perranporth: probably not where any of this took place, but a fine view.

 

 

[i] E.g.: here, here, here

[ii] Not sure about this name – it looks like some mangled Kernewek to me, but someone else may have a better idea.

Procedure and pregnancy: a Middlesex appeal

 

The question of how medieval people regarded and valued the foetus, and whether they saw abortion as being homicide or not, was raised, and debated, quite a lot, following the Dobbs case in the United States. The opinion of those who know about medieval law has generally come down against the selective and otherwise questionable use of medieval English authority by judges in the case.[i] I have many issues with the ways in which judges in the common law world cherry-pick and simplify past legal materials, or accept without appropriate questioning the contentions of advocates regarding their meaning: the misuse of such materials in modern courts is a multi-faceted problem. One aspect of the problem, when it comes to the foetus/pregnant woman issue is the failure to take seriously the impact which procedural matters might have on the way a case appears in the remaining documents. It is all too easy to conclude that we are seeing a substantive rule, when, in fact, the ‘rules of the game’ of pleading, or ‘form of action’ may actually have dictated what could be argued or included.

A nice example (in the legal sense, thoroughly nasty if the things described actually happened) is in a 1454 King’s Bench plea roll: KB 27/771 m. 35 (see it here on AALT). This concerns an appeal (individual prosecution) against Walter Fairstede lately of London, a yeoman or glover, Agnes his wife, and William Couper, a London yeoman, brought by John Stanford, for the death of Margaret, widow of John Henry.

The accusation was that, on 26th October, 1452, somewhere in Westminster, Walter and Agnes had assaulted Margaret and killed her. The attack was not, for once, said to have been carried with weapons, but with punches to the belly of Margaret, who was pregnant, or ‘great with child’. Both Walter and Agnes were accused of punching Margaret, Walter going first, with a right-handed punch to the left part of Margaret’s belly, and then Agnes punching her in the middle of the belly. Each of the blows was alleged to have been sufficient to kill Margaret (meaning that both assailants were ‘principals’). William was an accessory: said to have  assisted but not said to have thrown any punches. Margaret was said to have died following the assault, but not immediately: she ‘languished from 26th Oct to 7th December, 1452, and then died, in Westminster.

All of the accused were found not guilty by a jury – as ever, who knows about the truth of any of this, and who knows what the accusation was supposed to indicate, in terms of motive – a random stranger attack, robbery gone wrong, abortion (whether consensual or not) … much is beyond us. Nevertheless, there are things to consider. While we are told, more than once, that Margaret was pregnant, and visibly so – showing that this was something seen as important – nothing direct is said about the fate of the foetus. We may imagine that it would be unlikely that there would be a live birth, in the circumstances, however, and may deduce that there was no live baby, from the fact that the man bringing the appeal, described as Margaret’s relation (in fact an uncle on her father’s side), was also stated to be her heir. That would not have been correct, presumably, had she had a living child (assuming it would have been legitimate – we do not know how long Margaret had been a widow, of course)..[ii] What can we read into the non-mention of the foetus/baby? One view might be that the foetus was unimportant, so not worth mentioning. I think that the better view is that the loss of a niece’s baby would probably not have been something for which an uncle could bring an appeal, since it would be too far removed from him to be seen as his loss.[iii]  So, an example of ‘form of action’ setting the limits of what might be alleged, and not necessarily saying anything about the value, or not, of a foetus, in the medieval period. This remains a very difficult question – and I do not think that there was one clear ‘medieval legal view’ (let alone ‘medieval view’) on this.

One last thing which seems to me to hint at the complexity, and perhaps tensions, of medieval views in this area is the interesting difference in the way in which the two relevant dates are given. The date of the attack is given by day, month and regnal year, but the date of death is given in the old-style ‘by reference to a holy day’ manner – as ‘the following Thursday next before the Conception of the Blessed Virgin Mary: a complicated maternity-and-foetus-related feast if ever there was one. Simply indicative of a transitional period in legal dating, or something more interesting, in terms of attitudes and concerns?

GS

6/5/2024

 

[i] See this, for example.

[ii] It is possible that she did have a live-born child, which died before the proceedings were brought: I am not sure that we know the critical date for appeal right. This case is quite interesting from the appeal right point of view too.

[iii] In this case, I suppose he is the heir because there was no living child, so in a sense he gained from these events. That is not unique to uncle appeals, however.

Had Margaret’s husband not been dead, perhaps he might have brought an appeal framed in a different way.

 

Image: Westminster – yes, I am embracing radical anachronism. It’s symbolic of past-present confusion, or something.

The butcher, the bridge and the blame

This was an interesting one, I thought: a trespass case with a pretty distinctive defence.

KB 27/669 m. 91 puts us in Trinity term 1428, in the King’s Bench. Richard Perot of Alcestrer, Warwickshire, butcher, is being sued for assault at Stratford upon Avon, by Edward Toky.

The allegation was that, on Thursday 9th November, 1424, Richard had assaulted Edward, with force and arms, and the usual range of weapons, against the king’s peace (so a run-of-the-mill trespass allegation). Edward claimed that his damages amounted to £20.

Richard, via his attorney, hit back. He pleaded not guilty, and gave a rather different version of events on the day in question. It wasn’t the usual boring and blank self-defence allegation. Both he and Edward had, he said, been riding their horses on the bridge over the Avon, and Edward’s horse fiercely jumped on Richard’s horse. Richard and his horse almost fell into the water, and, to save his life, and not fall into the water, Richard took hold of Edward by the neck and arms, and held on tightly, and that was what Edward was calling trespass.

So – if true, that does sound like a pretty good explanation, and suggests that a trespass claim for £20 was a bit of a stretch for Edward. But was Edward just trying it on, or was Richard’s story a pack of lies? Who can say. We can note, though, a feeling that it was a decent defence to a trespass action to say (a) I did what I did to save my life, and/or (b) your horse started it.

GS

1/4/2024

Image – Clopton Bridge, Stratford. Ferocious horse not pictured.

More mayhem matching

The attempt to ‘stitch together’ the severed members of Year Book and plea roll mayhem cases goes on … (yes, I am pleased with that stretch of an image …) with a possible identification, from the reign of Richard III. It’s not exactly a body in a Leicester car park, but I think it solves a smaller-scale mystery, as far as we ever will.

The Year Book report, YB Mich. 2 Ric. III pl. 38 f.13b, noted here in Seipp,  has ‘a man of Devon’ bringing an appeal with regard to an alleged mayhem, involving the knocking out three of his teeth,[i] and the breaking of his nose, so that he lost his sense of smell. There was some debate as to whether this (presumably the nasal aspect) amounted to mayhem: the rules did seem to suggest that neither nose injury nor loss of the sense of smell would fit those standard definitions of mayhem which tied the offence to loss of fighting capacity. As is frequently the case, we do not get a final outcome in the YB.

Looking at the relevant King’s Bench plea roll, I found a possible contender for a match, though only if we are prepared to assume that there was some change in pleading (or some alteration in the tale of sensory deprivation, as well as the county, between the court-room and the report …

This is in the KB plea roll for 1484 Michaelmas, KB 27/893 m. 69 and 69d (here and here, courtesy of AALT). It is a case from Middlesex rather than Devon, and is an appeal brought by Thomas Gate against Sir Oliver Mannyngham. The allegation was that, on Tuesday 13th February, 1481, a certain William Palmer had lain in wait for Thomas at Westminster, and had assaulted Thomas with a knife called a ‘hanger’, held in his right hand, hitting him in the head (all of his actions, naturally, being done ‘feloniously’).[ii] It was claimed that this blow had damaged the ‘veins and nerves which illuminated the right eye of Thomas’, so that he lost sight in that eye, and that, as a result of the violent blow, one of Thomas’s upper front teeth had also fallen out. Oliver Mannyngham was, so it was said, an accessory to this felonious conduct by Palmer.

Oliver’s defence was that there had actually been an arbitration and a settlement, at Westminster on 13th February 1483, with both Thomas and Oliver submitting to the judgment of Sir William Hastings and Sir William Huse. The (English language) arbitration award is copied, and involves a payment of 100 marks from Oliver to Thomas, for the ‘trespasses, offences and hurts’, and no further trespass action, the money to be paid in two years. So, was Thomas trying to pull a fast one, and get double recovery, making Oliver pay up for mayhem as well as the trespass settlement, or had Oliver not paid the money? There was disagreement as to whether he had paid in an acceptable way, and the case was kicked on into the next term.

It is not impossible that that case had some influence on the YB report, even if it is not ‘the one’, as it had a sensory deprivation idea, though admittedly not the sense of smell.[iii] Probably the better match, though, is one which can be seen in the next KB plea roll, KB 27/894 m. 36, here.

This one is a Devon case, and we see Edward Rudmore bringing his appeal of mayhem against John Bell, lately of Parkham, Devon, clerk, Baldwin Seller of the same, husbandman, and six others, husbandmen, a yeoman and a ‘gentleman’ (John Colebroke, lately of Chittlehampton, Devon, who might be more likely to be traceable than the ‘lesser’ folk). The allegation was that they had lain in wait for Edward at Parkham on 1st June 1483, at about 10 a.m., and that John Colebroke had hit him across the face with a sword (worth 2s, all, as ever, ‘feloniously’). Six teeth (front ones) were said to have fallen from his mouth from the violence of the blow. The ‘across the face’ stroke in the story, as well as the Devon location, and the teeth (if we skate over the difference in number), would seem to make the identification stronger. And, though there is no mention at all of the nose/smell issue, surely a good whack across the face with a sword would be likely to strike the nose.  The YB report also mentions accessory issues, which are present here – the others, apart from the sword-swinging ‘gentleman’ were present, encouraging and helping etc., in the plea roll account.

The likeliest reconstruction would seem to be that the nose/smell issue was severed (sorry!) from the rest of the appeal at some point during the pleading game. Since six front teeth would certainly work for a mayhem, on the classic definitions, the other part was not really needed. So, reasonably confident of the identification, and things to think about, both with the characters involved, and also with what to make of the attempt to include the olfactory aspect in the appeal. One for the mayhem book.

 

GS

26/3/2024

[i] Despite the translation in Seipp, these are ‘anterior’ teeth.

[ii] The site of the blow brings one of those interesting insights into ‘educated lay’ knowledge of anatomy – with a translation of anticipem as ‘the fore part of the hed’.

[iii] Certainly some of the trespass/mayhem language and the arbitration procedure will be worth some further excavation.

Listening to legal history: the broadcasting endeavours of T.F.T. Plucknett

For reasons connected to the British Legal History Conference, I recently had reason to look into the life of noted early 20th century legal historian Theodore F.T. Plucknett. Plucknett was born in Bristol, and that seemed like something we should include on the historical/legal historical highlights map which is in preparation for the big event. I had the idea that he had been born in Clifton (the posh part of Bristol), though that was incorrect, and the truth seems to be that he was in fact born in the St Paul’s area. More on that at some other time, perhaps, but enquiries turned up another interesting aspect of Plucknett’s career, which I thought worth noting: as well as his academic work, Plucknett also did a bit of public engagement, making broadcasts to the general public on legal historical matters.

As was pointed out to me on Twitter (yes, I know it now has a silly wannabe macho/wannabe porny official name, but nobody can make me use it),[i] the text of radio lectures would often be published in The Listener after the broadcast. Actually, I should have thought of that, as, in much younger years, my father was a Listener subscriber, and although my periodical of choice was, at that time, The Beano, I was aware of this rather serious radio and TV-focused magazine.

So … a quick search in the online Listener archive came up trumps, with the text of lectures by Plucknett on legal history topics, from the 1940s, ‘50s and ‘60s. Especially worth a look are the talks from 1949: ‘Law in the Middle Ages’, ‘The Spectacle of the Law’, ‘Finding the facts’ and ‘Finding the Law’ (Listener, 24th March 1949 p 483; 24th November, 1949, p. 21; 1st December, 1949, p. 25; 8th December, 1949, p. 22.

A comment on some of Plucknett’s broadcasts in the 1950s is a little inconsistent, describing them as both ‘dry, strictly matter-of-fact’ but also ‘extremely interesting’,[ii] but the fact he was asked back does suggest that some people found them interesting. I was rather tickled by the fact that the talks sometimes appeared in a very varied programme, including light and serious music, drama and comedy. Odd to think of people listening to ‘The Frogmen’ or ‘Ray’s a laugh!’ (weak pun award) and then settling down for a bit of medieval legal history.

Interesting, too, to think about why Plucknett wanted to speak to a broader audience, and how this all went down with his Selden Society and other academic colleagues. I do not get the impression (though I may be wrong) that public broadcasts on legal history were undertaken by other legal historical luminaries of the time. Perhaps as an early holder of a specific chair in legal history, he was something of a ‘voice of legal history’ for the general public.[iii]

All a little insubstantial, but, as a bit of a listener to historical programmes myself (realising that the apple does not fall too far from the tree …) and a legal historian, it is quite interesting to me to see this early attempt at connecting the public with academic work on legal history. I am not sure it would be my particular forte, though I can think of quite a few colleagues who would put on a very good and interesting turn for a radio broadcast on their work – so if there are any radio producers reading this …  And what about bringing back ‘Ray’s a Laugh’ and/or ‘The Frogmen’ too?

 

GS

3/3/2024

[i] I record my thanks to Gary Phillips for the tip.

[ii] Listener, 22nd  November, 1956, p 34.

[iii] I have had occasion to comment less favourably on another of his forays into what might have been thought ‘popular’, or slightly humorous, content.

Images: Times, 22nd November, 1949 p 7, and Photo by Samuel Regan-Asante on Unsplash

Prosecuting predatory chaplains: an instance of abuse from fourteenth-century Yorkshire

Deeply unpleasant, but worthy of a quick note is this Yorkshire entry from a King’s Bench plea roll, from Michaelmas term 1363.[i]

It states that the jurors of various wapentakes in the county, in the previous Michaelmas term, at York, presented that Thomas de Barkestone, chaplain, recently living at Escrick, took Alice de Hartford,[ii] aged 13 years, recently servant of the same chaplain, and extracted her from her bed in the house of John Gamul of Escrick,[iii] on [25th April, 1362], and conducted her, naked, to his (Thomas’s) chamber, with the assistance of another chaplain. Because Alice did not want to consent to fornicate with Thomas, the two chaplains tied her up, naked, using an iron chain attached to a post there, and kept her there, tied up and naked, until Thomas ‘lay with her’, feloniously and against her will. Thomas and the other chaplain pleaded not guilty, put themselves on a jury, and were bailed until Easter term following this.

Here, the trail goes cold (so far!) and, as ever, we don’t know what facts lay behind this instance, but it is clear that this was considered a plausible story, and that is noteworthy. There are a few points of particular interest, and connections with other bits and pieces I have done. Let’s think about one or two of them.

First, there is the age of Alice, and the fact that it is noted. We find it vile that a (presumably) adult man was predating upon a 13 year old girl, and the jurors seem to have been appalled too – for there is no obvious legal reason to record it. Interesting on attitudes (at least of male, respectable jurors) to women and girls, and offences against them.

Then there is the fact that Alice was formerly a servant of Thomas. This makes the whole thing even grimmer (or concurrently grim?), bringing in considerations of the particular vulnerability of female servants to the slobbering and harassment of their employers.[iv] It is hard not to speculate about why Alice left Thomas’s service, and to construct a particularly heart-breaking story in which she left because of his pressure and abuse, thought she had got away, but was ensnared once more. One of the common images used for marriage was that of the bond or chain: here, allegedly, was a very literal use of chains in a non-marital context, showing that the employer-female servant connection might also be very hard to escape.

In terms of the main offence, the details are, of course, horrific; they are also unusual amongst such accounts. The power of the offenders (two of them, presumably grown-up men, with the means to subdue Alice – and presumably having planned the whole thing) is contrasted with Alice’s youth and nakedness (three times we are told she was naked). The vocabulary around will and consent is also interesting. Medieval records very commonly use the expression of sex ‘against her will’, and I have always thought that there is an important difference between this and ‘without her consent’, although we (both lawyers and historians) tend to fall into modern legal language, based around consent. Here, however, both ‘against her will’ and the fact of her non-consent are mentioned. It seems a particularly strong indication that the jury were sympathetic towards this particular young girl, and that they believed that people like Thomas (men, chaplains) might do things like this. The other vocabulary issue which is difficult, and jarring, though perhaps explained by the need to use Latin, rather than more familiar, less formal, languages, is the use of concubuit for the act itself – its overtones of mutuality, ‘with-ness’ sitting so badly with what was clearly being told as a tale of unilateral and abusive crime.

I hope to find more on it at some point, but this case is certainly one to add to consideration of the complexities of the law on sexual offences in the medieval period, as well as the often weak position of female servants.

GS

11/1/2024

 

Image – well, what do you use for a story like this? I have gone for a road in the general area.

[i] KB 27/412 Rex m. 1d; AALT IMG 0513.

[ii] ? Hartforth: Survey of English Place-Names (nottingham.ac.uk)

[iii] Escrick :: Survey of English Place-Names (nottingham.ac.uk)

[iv] See, e.g., this post.

Of pears and periwinkles: a snippet on medieval torture

I don’t want to go all ‘pear of anguish’ here, and/or play into the lazy and tiresome stereotypes of medieval brutality, but … I did come across a tantalising little snippet on torture devices in a recent search of plea rolls, which I think is worth sharing with anyone who happens upon this.

It came up in an entry relating to an approver (approvers being those who ‘turned king’s evidence’ and accused their former associates, in the – usually forlorn – hope that they would escape punishment themselves).[i] There were relatively frequent assertions by these approvers that they had been coerced into taking on this very dicey role, confessing to their own guilt of a capital offence, probably having to take part in a judicial combat,  and running the risk of immediate execution if they failed to make the accusation stick and their former associate was acquitted. Not a great option, in most cases, we might think (leaving aside the whole ‘confession is good for the soul’ thing). Such instances have been noted by others, including allegations of torture as a method of coercion, but I have not seen reference to the interesting and specific detail provided in one 14th C Yorkshire case.

In the King’s Bench plea roll for Michaelmas term 1343,[ii] we find a presentment by jurors of several wapentakes[iii] in Yorkshire regarding treatment of one William Cholle. William had, so they said, been in a prison (not specified where), and William de Rymyngton and John de Nessefeld, cleric,[iv] in whose custody he was, had taken him to the tower of York castle, and, once there, had drawn him on a rope and ‘on his fingers, put certain torments called pyrewynkes’ in order to force him to become an approver. He did not, however, become an approver.  The jurors then went from specific to vague and general, stating that the accused had made many prisoners in their custody become approvers by the use of such tortures (though the jurors did not know the names of these unfortunates) and that William caused a number of men to be accused in sheriffs’ tourns, for profit (using false testimony and oaths, and then extorting money from them to have them let off).

I was expecting a quick ‘not guilty’, but no – the law caught up with William R, and he seems to have accepted his guilt (I trust, without the use of torture). He made fine with the king – the tariff was 20s. This, however, was offset by the expenses William declared for repairs to the doors and windows, and other repairs to the king’s hall of pleas at York castle. William was keen for this to be enrolled – presumably to protect him from any further action and/or attempts to recover the 20s fine.

So what?

Well, an interesting tale in relation to the two Williams. William C is, so far, a mystery: there may well be more to be found out, but it is at least interesting that somebody was known to have withstood torture. William R does not come out of it well, does he, but it is interesting that this was not treated as a massive abuse. What does that say about royal attitudes to the approver system? I think it supports the suggestions of earlier scholars that this was a fairly merciless thing, and also something seen as necessary for achieving an acceptable level of prosecution of offenders. If somebody like William R went a bit far, well, it wasn’t the end of the world.

Finally, what about those ‘pyryewynkes’? Others may have come across this term in the past: I have not. They don’t seem to feature in the work of Musson, Hamil or Summerson. I can only speculate about their nature – they are plural: was there one for each finger? We will all be familiar with the thumbscrew – was this something like that, only multiple, and not just for thumbs? I assume that it was some sort of crushing or stretching device, but that may be a lack of imagination on my part. What is suggested by the name – it looks rather like ‘periwinkle’, so could it be a device which looked like small seashells? Or flowers? Or a word garbling Latin elements indicating tight binding? The flower seems more likely than the shell, given easily accessible definitions and etymologies.[v] Hard to imagine quite why the device was like a flower, if that is the idea. Probably a dead end, and perhaps more interesting anyway are two other things: first that it is named in English by the jurors, and, second, that it has a specific name at all.  Both of these suggest, it seems to me, that this was something people in the wider community beyond the legal system knew about, talked about. So maybe, just maybe, it is a tiny signal that we medievalists should not take the defensive attitude towards ‘our patch’ too far, and be so quick to bat away all torture horror stories as ignorant modern nonsense, or shunt them forwards to the early modern period (that’s a favourite move with anything negative, isn’t it?). There may not ever have been a ‘pear of anguish’, other than in the minds of later fantasists,  but a fair number of medieval people in York at least believed in the existence of ‘the fearsome pyrewynke’ …

 

GS

8/1/2024

 

Image – pretty, inoffensive, non-torturing, flower, vinca minor by Lydia Penrose, courtesy of Wikimedia Commons.

 

[i] See, in particular, A. Musson, “Turning King’s Evidence: The Prosecution of Crime in Late Medieval England.” Oxford Journal of Legal Studies 19 (1999), 467–79; F. C. Hamil, ‘The King’s Approvers’, 11 Speculum (1936), 238-58; H. R. T. Summerson, ‘The Criminal Underworld of Medieval England’  17 Journal of Legal History (1996). 197-224; And I found this one useful on torture: L Tracy, ‘Wounded Bodies: Kingship, National Identity and Illegitimate Torture in the English Arthurian Tradition’, in D.E. Clark, L. Robeson, M. Nievergelt et al. (eds) Arthurian Literature XXXII (Woodbridge: Boydell & Brewer; 2015) 1-30. No doubt there is more I could read. My internet search engine did express concern, though …

[ii] KB 27/334 m. 17; AALT IMG 0320.

[iii] Wapentakes are jurisdictionally-relevant geographical subdivisions: this term is specific to the northern part of England.

[iv] He comes up now and again in official documents, e.g. here there’s a man of that name, county and time who has a job as keeper of the hospital of the Holy Innocents – and see the end of the next note.

[v] The trusty Middle English Compendium gives three meanings for ‘pervinkle’, including the shell. The flower seems to be the earlier ‘periwinkle’ though, and there is an intriguing association between the flower and execution, from Lydgate, in the MEC:  pervink and pervinke – Middle English Compendium (umich.edu) ‘Thou hast … crowned oon with laureer hih on his hed upset, Other with peruynke maad for the gibet’- J. Lydgate, Fall of Princes (Bod. MS 264) vi. 126. I am not pretending I have read this – I haven’t – but intriguing nonetheless. And let me just go all-out conspiracist … there is an ecclesiastical document relating to a John de Nessefeld which is decorated with … flowers … Coincidence? I think not!

(And a quick ‘pear of anguish’ update … I am currently working through the complete ‘box set’ of detection drama, Bones (don’t judge: I find the puzzle solving very cathartic) and was intrigue/disappointed to see the POA featuring as a murder weapon in 4:15, with no correction about historical accuracy by Dr Brennan. It’s making me doubt the total authenticity of other aspects of the show …)

Most recent publication: touch and pressure

New publication here: 

‘Touch and Pressure:  Sensing Sexual Harassment in Medieval Common Law Sources’

Glad to see this out – a short piece on trying to get at something which medieval common law records are not inclined to disclose: sexual harassment which is not rape. It came out of an invitation from a Paris-based project, the AVISA project, and a paper delivered in the depths of Covid lockdown, and I think that the invitation came, directly or indirectly, from the things I have published on this blog – so, nice to know that somebody out there is getting something from it!

I am sure there is more to say about this, and maybe I – or others – will turn up further relevant things in common law records. I was left with two abiding thoughts, though:

  1. It is far from ahistorical to look for this sort of material in legal sources – it’s not as if there was no concept of it as wrong, or not a fit subject for legal intervention, before the 19th or 20th C (check out the English pre-Conquest stuff, and the Welsh stuff);
  2. It is worth taking a bit more seriously those actions of males for damage to ‘their’ women through rape or harassment etc. – I know that the immediate visceral response is negative – it’s about a man having property rights in a woman – but, just as the better view in legal history is now that the ‘women were property’ encapsulation is inaccurate, so, I think, we might consider the (small) upside of seeing harm to a woman as not just something she is left alone to deal with in the legal context – as remains the case with modern English rape etc. trials – and we know how badly that works. Obviously patriarchal in terms of who it is, but … worth a thought? It struck me, when ‘launching’ the very recent book by Joanne Conaghan and Yvette Russell, on Sexual History Evidence, which is positive towards the idea of giving an independent legal representative to rape victims/survivors, that the older pattern, of giving some responsibility to another person might be seen as having a little in common with this: making it all less one lonely woman against a defence lawyer trying to tear her reputation and credibility apart, and ‘backed’ by the impersonal force of the police and CPS. Not that I am a ‘coverture apologist, or suggesting that husbands and fathers should take the lead, but, looking at the independent legal adviser/representative suggestions might cast a new light on the way we consider these actions which do not leave the woman quite so exposed. One to think through, anyway.

GS

10/11/2023