Tag Archives: legal history

‘Lunacy’ and legal records

Deep in ‘the Before Times’, back in 2019, I posted something on a medieval ‘criminal’ case with a specific and detailed ‘defence’ of lunacy, that of Alice Brytyene, from 1309. Since I have just found another one, it seemed a good opportunity to revamp and update the post, adding in the new case.

See the source image

Alice’s case is in a Suffolk Gaol Delivery Roll,  JUST 3/63/4 m.6 (AALT IMG 136). The record tells us that 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], 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).

The second case comes from the King’s Bench plea roll of Trinity term 1328 – in the ‘Isabella and Mortimer’ period of Edward III’s reign. It is to be found at KB 27/273 Rex m. 29d (AALT IMG 318), and is from a gaol delivery session at York castle, on Monday [13th June, 1328].

The report tells us that Agnes, wife of Roger Moyses was on trial for the killing of Adam son of William Moyses, at Harwood [Dale?] on Monday [16th May, 1328], having been indicted for this at a coroner’s inquest. She was asked how she would defend herself, and said that she was not guilty, putting herself on a jury. The jurors said that, for a long time before the incident, and after, and at the time, Agnes had suffered from a mental illness linked to the waxing and waning of the moon, which caused her to lose her mind to such an extent that she acted without being able to tell the difference between right and wrong (sepius prout luna crescit & decrescit tali infirmitate consueta est gravari quod ipsa amens sepius devenit penitus ignorans quid agit non discernendo malum et bono). They said that on the day in question, Adam, a 12 year old, came into the house in Harwood where Agnes was on her own, and she was suffering from the condition at that time. (laborans in infirmitate). When Agnes became aware that Adam had come in, she grabbed him by the throat and held him so tightly that he died. Afterwards, Agnes simply remained in the house until the constable and bailiffs came and arrested her. The jurors were asked whether Agnes had killed Adam felioniously and with malice aforethought, or without intention (ex amencia … vexebatur), and responded that Adam was killed through per amenciam and not through felony or malice/intention. Agnes was therefore to be sent to prison to await the king’s grace.

So what?

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, I have not turned up a pardon for either Alice or Agnes, but I am reasonably hopeful that they would indeed have been pardoned. This would not necessarily mean a ‘happy ending’, however, since closer confinement by family members might well have been their fate after these grisly episodes.

Medieval criminal records referring to ‘lunacy’ as an explanation/excuse for violent or otherwise offensive activity are not hard to find, but usually they do little more than stating that the accused is deemed a ‘lunatic’, and it is easy to assume that the word is regarded in a mundane way, as a general label for people with some obvious mental disorder, and was rather cut off from its etymological association with the moon. These two records, however, show at least some people going further into the matter, and emphasising the lunar explanation of (some, episodic) mental disorder, explaining odd, violent, behaviour on the moon’s baleful influence upon the mental state of susceptible individuals. They make the definite and dramatically or poetically satisfying link between the waxing moon and the growing disorder, and the (sophisticated and observant) comments about the killers 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. In the case of Alice, her community, which was conscious of Alice’s long-term disorder, would appear to have allowed her a degree of freedom, before the incident in question. Agnes was alone in a house – was this some sort of precautionary confinement, or did she live alone?) It is interesting to note that a woman was assumed capable of throttling a twelve year old male, and that Agnes’s condition must have been well enough known and accepted for it to be regarded as having persisted during the killing of Adam, despite the fact that it would appear that there were no immediate witnesses (since we are told she was alone in the house).

It is also worth pondering the fact that these were both women. My impression has been that ‘violent insanity words’ are more usually found in relation to males – furiosus, freneticus etc. are more commonly found than their female equivalents. These two ‘violent insanity’ cases which bring in the moon, are, however, about women. Now, two cases hardly amount to a basis for a theory, but it is hard not to start going off on a train of thought concerning ideas about women, the moon, menstrual cycles etc. Worth bearing in mind, and seeing whether future finds fit in with it at all. [Oh, and if we want to get really spooky and conspiracy theoryish about it, we might note that … everything seemed to happen on a Monday in these cases, that I am writing about it on a Monday, and I am .. OK, too far. But interesting, no?]

28/12/2020

Untruth in wine: a snippet of medieval medical thinking

 

See the source image

On a King’s Bench roll from Michaelmas 1434, there is an entry telling of accusations made against James Gentill or Gentyll, a broker of London [though perhaps he was a native of Genoa rather than London].[i]

The entry is an ‘error’ case – roughly an appeal in the modern sense – and notes that, in In Trinity 1432, a presentment had been made, accusing Gentyll of offences relating to the illegal export of gold to Bruges, and also with an offence involving the adulteration of wine. The latter accusation was that James and others had conspired to damage the king’s people and inflict a variety of illnesses upon them. Specifically, on 6th October 1431, and various days before and after, in the parish of St Clement Danes outside Temple Bar and elsewhere in Middlesex, they had mixed and brewed up twenty tuns of Rumney wine and twenty tuns of Malmsey wine with other corrupt wines  – Osey and other wines –  and with pitch and resin, producing 100 tuns of corrupt and unhealthy wine. They took some of it this to Westminster and Shoreditch on the 6th October, and on various days afterwards sold it to various lieges of the king, including John Taverner, John Boysse, John Bramsston, Margaret Bosworth, fraudulently affirming it to be good and healthy,  causing those who drank it to be troubled and damaged by various afflictions (diversis perpetuis langoribus), and it was particularly noted that pregnant women drinking it were harmed, their children (pueri – foetuses, presumably) poisoned and rendered putrid (extoxicati & corrupti) and then destroyed, to the great deception and destruction of the king’s people.

And …?

As ever, who knows whether the allegation was true, mistaken or vexatious, but, leaving that aside, this has a number of possible points of interest. It illustrates the action taken locally in London, and at the ‘national’ level, against dishonesty in sales, and the sale of dangerous, as well as substandard, food and drink. This took me back to long-ago research for my PhD, during which I learned some good wine vocabulary, and took a few detours away from usury and pricing laws, and into the colourful world of London punishments for the sale of dodgy food and drink (they went in for ‘educational’ and shaming penalties such as having somebody stand with a rotten fish around his neck for selling putrid produce). The suspicion that wine-merchants or wine-sellers would pass off lower quality wine as something with a higher price and reputation, perhaps disguising their misconduct by introducing other substances, in order to mimic the colour of the supposed type of wine, can be seen in London and royal regulations and pronouncements.[ii] There are some references to the fear that this sharp practice could damage health in general. This is the first time, however, that I have seen the specific allegation about damage to pregnant women and the foetuses they were carrying. There is no reason to think that medieval people would have been unable to make a link between the ingestion of contaminated nutrients and foetal damage and death, but this fleeting reference is the first I have seen specifying damage to foetuses through pregnant women’s consumption of adulterated produce as a concern for the common law.  It is one I will ponder in two of my 2021-2 research leave projects: on legal ideas about pregnancy, foetuses and newborns, and on causation of death or bodily harm.

GS

23/12/2020

 

 

[i] KB 27/694 m. 7d (AALT IMG 327). See CCR 1447-54, 517, though this is some years later, in 1454.

[ii] For a 1419 London proclamation on adulteration of wines, see H.T. Riley (ed.), Memorials of London and London Life in the 13th, 14th and 15th Centuries, (London, 1868), 669.  [Hoarderish policy of not throwing away old notes hereby vindicated]. For ‘national’ concern, see e,g, CCR 1302-1307 , 526.

Stabbing stories: a Lincolnshire brawl

Travelling justices in Lincolnshire in 1287 dealt with a complaint of violent misconduct brought by Robert Salemon or Saleman, against Hugh de Mixerton (Misterton?).[i] This rough translation [Covid, no access to the big Medieval Latin dictionary …] gives an idea of how matters proceeded.

See the source image

Robert’s story was that, on a particular day just before the hearing,  he had been on the royal highway in the parish of St Benedict, Lincoln, when Hugh had got in his way and first abused him,  then he had taken out his knife and given Robert a really large wound in the arm, in contempt of the king and his justices, who were in the town, against the king’s peace and damaging Robert to the tune of £40.

Hugh denied that he had done anything which amounted to force and injury, anything in contempt or against the king’s peace, and any trespass against Robert. He said that it was in fact Robert who blocked his way and abused him, rather than the other way round. Robert, he said, had threatened to kill him and had drawn his knife, knocked him to the ground and attempted to stab him in the neck, but the knife thrust had failed to hit flesh, instead ripping Hugh’s hood. Hugh said that while he was being held down on the ground, he stabbed Robert to avoid being killed, this stab being quick and barely scratching Robert. He insisted that he could not have avoided his own death in any other way.

Both men put themselves on the jury.

The jurors (including, it is noted, some who had seen and heard the brawl) gave, on oath, a third version of the events in question. They said that Robert was on the high road and found Hugh’s wife standing with Hugh, that Robert lifted this woman’s clothes up, part of the way up her lower leg (usque ad dimidiam tibiam). At this, Hugh asked him to stop, and Robert grabbed Hugh by the arms, threw him to the ground, slashed at him with his dagger and ripped his hood, but did not wound him. Hugh, getting up, wounded Robert with his own dagger, but he could have got away without using his dagger on Robert, if he had wanted. The justices examined the wound in court and decided that it did not amount to a mayhem, and could easily be healed.

For this reason and also because the jury found that Robert had started the fight, it was decided that both Robert and Hugh should be custodiatur for a trespass done while the justices were present in town. Afterwards, both Hugh and Robert made fine with a mark (each).

 

And this is interesting because ….?

Well, it is always instructive to see records in which we actually get a flavour of opposing cases being put. Here, the two protagonists presented opposed versions of events (Hugh attacked Robert, Robert attacked Hugh) but neither told a tale much resembling that of the jurors. Both men left out the involvement of Hugh’s wife and Robert’s apparently predatory behaviour towards her. It is easy to see why Robert left it out – he wanted the story to be about a totally unprovoked attack. Perhaps the reason why Hugh left it out is a little less obvious – it would seem that he felt it was a safer bet to construct a story of self defence against Robert’s attack on him, rather than suggesting that he was acting in defence of his wife’s reputation. The law on self-defence pleas in homicide was by no means settled at this point (see, e.g., Green, Verdict According to Conscience), and it seems likely that the contours of self-defence as a saving plea in other areas was at least as unsettled. The simple, two-man, story may have seemed the best tactic. Alternatively, we might speculate as to whether the jury might have considered Hugh’s wife to be ‘no better than she ought to be’ one way or another. In any case, it was a bold strategy to tell a story contrary to events which had taken place in the sight and hearing of jurors.

I also find interesting the way in which the wound is discussed here. One of my projects for next year’s study leave will involve mayhem offences, so I am on the lookout for references to it. Here, we have an inspection in court, in which judges seem perfectly happy that they can determine whether or not a wound will easily be cured (no idea of ‘expert’ assessment) and a sense that the borderline between mayhem and trespass is defined partly in terms of permanence, as well as seriousness, of injury.

Finally, it shows the difference in outcome, depending when an offence occurred: Robert and Hugh were in particular trouble because all of this happened while the royal justices were in town, and was therefore worse than an everyday low-level brawl, since it was taken to be a contempt of the justices, and, through them, the king whose law was being administered.

 

GS

21/12/2020

[i] JUST 1/503 m. 37 (IMG 7961). Mettingham’s Lincolnshire assize roll 1285-9, hearing in 1287.

Private compensation and fear of castration in medieval Nottinghamshire

An entry on the Nottinghamshire trailbaston roll for 1305-6 tells an intriguing tale of certainly illicit, possibly unwelcome, advances made by one Master William de Newark, to a girl or woman called Beatrix, daughter of Walter Touk, the response of Beatrix’s family to this, and the way in which this was eventually resolved.[i] Once I am free to get to libraries once more, I look forward to being able to check up on some of the personalities involved, but, for now, the entry itself is worth noting.

In the trailbaston session (an ad hoc, mostly ‘criminal’ judicial session, one of several sent out at this time), jurors of the wappentake of Newark presented Walter Touk, Henry his son, and others, for an assault on Master William de Newark, parson of the church of North Muskham. They were accused of having imprisoned and detained him with force and arms and against the king’s peace until he made fine with them for 50 marks, and of having made off with two swords, worth four shillings, belonging to Richard Cauwode, a servant of Master William.

Walter and Henry told a different story, denying that they had committed any trespass against the king’s peace. Exactly how the more detailed tale came out is unclear – was it volunteered by Walter and Henry, who thought that there was nothing wrong with what they had done, or did the jurors learn about it in some other way? Anyway, the jurors told it this way …

Walter Touk, his wife (who doesn’t get a name here), his daughter (Beatrix), and Henry, went to Master William’s house, in North Muskham, to ask him to eat with them. (The Touks and Master William would therefore seem to have been on good terms, but it was not to last …) William spoke secret and unseemly words of love to Beatrix (oculta et indecentia verba de amore), and then he came to Walter’s manor of Kelham at twilight. Secretly, William entered the house. Henry (Walter’s son, Beatrix’s brother) became aware of this incursion. Henry and John de Dunwyche, his groom, followed William, and entered the room where he was, to find William and Beatrix sitting together (with Richard Cauwode, William’s servant, there as well). Henry and John took out their swords and hit William and Richard. John wounded them both. Walter heard some shouting. He came and did not allow any more damage to be done to the intruders. Nevertheless, the Touks made it clear that they thought William had wronged them in a serious way, and had, in particular, damaged Beatrix’s reputation (enormiter defamavit & … scandalizavit) and they demanded that he compensate them at once for this with 50 marks, or else he would face serious consequences (not exactly specified, but sounding severe and physical). William, terrified by these threats, and fearing that they would otherwise castrate him,  agreed to pay. Henry wrote in his own hand a document obliging William to pay him 50 marks. William authenticated it with Henry’s seal, because he did not have his own seal there, and delivered the deed to Henry. The document was made in the presence of Walter, Henry’s father, who, according to the jury,  consented to the requiring of emends and the making of the document of obligation. On the matter of the alleged taking of two swords, the jurors said that John took from Richard a sword, a bow and arrows (worth 9 ½ d) so that Richard did him no damage with them, and that, if Richard had asked for their return, this would have happened.

Rather than continuing to a straightforward finding of culpability or acquittal, the roll notes that the matter was referred upwards to Parliament, and, on a date in 1306, Henry Touk came to Westminster before the council and made a fine for himself and Walter with £20. It says no more of Master William, nor of the two servants, nor of Beatrix.

 

So What?

Well so quite a lot. This case has several interesting or suggestive legal historical nuggets.

I have found that these trailbaston rolls are particularly rewarding in their illustration of the location of certain borderlines, uncertainties and arguable issues in the common law. To a greater extent than in ordinary plea rolls, in these rolls, we often see people bringing cases, and jurors, showing what they thought the law should be, or where they were unsure as to what it was. Here, it would appear that there was some doubt as to whether the tale of the events of that evening in Nottinghamshire was enough to mean that the defendants were not guilty of an offence. The jurors clearly did not dismiss it, and the whole thing was sent off to be dealt with by a higher power, rather than by the common law. This may have something to do with the relative wealth of the defendants, but the nature of the case itself was probably also debatable. It seems likely that there was considerable sympathy with the efforts of the Touks to make Master William pay for his misconduct – clearly seen as a grave wrong against them all. At what point did forceful action against somebody who had sneaked into one’s house and was perhaps making moves towards violation of a daughter  cross the line into (social or legal) unacceptability?  Castration of sexual offenders was not an unknown response (and may have been official policy in some earlier periods, though not by this point), and settlement of quarrels by financial payment was likewise often tolerated. In a world which assumed a certain degree of self help, was the ‘privatised compensation plan’ thought up by the Touks completely indefensible?

The roll deals with the criminal assault side of things, and so does not go into the question of the compensation agreement. Presumably Master William would have been able to avoid paying by claiming duress of imprisonment. As a social fact, though, it is quite revealing. First, we should note the degree of literacy and technical skill which is implied in Henry’s ability to draw up an obligation, to insist on its being sealed (even if, surely, having William use his seal would have invalidated it) and delivered.

In terms of the background, it is impossible not to be frustrated at the lack of information about Beatrix and her role. We do not know Beatrix’s age, but can assume that she was unmarried, and therefore probably quite young. Was she in any sense a willing participant in events with Master William? Did she understand what was going on? How did she come to see things after the intervention of her brother and father? Perhaps all that can be deduced is that the evidence about the secret and indecent words of love must have come from her (otherwise they would not have been secret, would they?) so that suggests at least a later preference for family and reputation over an involvement with Master William. To a modern reader, it is difficult not to see this as something of a ‘grooming’ situation – man of God and trusted friend of the family, ‘our little secret’, etc. The truth, however, cannot be judged at this distance.

GS

20/12/2020

[i] JUST 1/675 m. 2 (AALT IMG 4702).

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?

Ruffs: it will never be enough

Well, it would seem that my ruff-obsession remains. Entirely unable to help myself commenting on two more instances of ruff-age, which turned up on Twitter:

Ruff work

This one is a lovely scene of friendship and pastimes, but I can’t help but wonder (yes I know that is rather C. Bradshaw) whether it might have been easier to sew, or to cuddle a child, without the impediment of a ludicrous and extensive folderol about the neck. There must surely have come a point at which the ruff interfered with visibility of the hands or piece of embroidery (directly or because of its shadow). At the same time I would be a bit disappointed to find out that ruffs were not actually worn all the time like this, and it was just a bit of an artistic convention.

Isabella Rosner on Twitter: “I just learned about this image of women embroidering in the @britishlibrary’s friendship album of Gervasius Fabricius zu Klesheim made between 1603 and 1637 and I truly cannot stop thinking about it. Where has it been all my life?? https://t.co/27RF0gjvqL” / Twitter

Ruff sketch

Feast your eyes on this multi-layered monstrosity. It puts me in mind of those foam collars worn by people with a whiplash injury, or – in a certain sense – the ‘cones of shame’ worn by dogs who have had an operation. No way Frankie would be licking his stitches with this thing on.

Gray’s Inn (@HonSocGraysInn) / Twitter

Gray’s Inn on Twitter: “Did you know that the Library holds a collection of pre-1800 books, including a collection of the works of Francis Bacon? Whilst the Library is closed you can find out more remotely here: https://t.co/ohEQOmDWhL https://t.co/PNI0NOuJHf” / Twitter

14/1/2021

 

More treats for ruff-watchers here: ignore Charles (casually wearing a suit of armour – like you do; what this? I just put on the first thing that was lying about in my room …) and look at the necks of (i) the Infanta (is that a furry ruff? What would we call that? A fluff?) and (ii) Buckingham – who is sporting the sort of antimacassar thing I remember from my grandmother’s sofa. Ruffs and silly neckwear clearly still holding firm in the 1620s.

John McCafferty on Twitter: “18 Feb 1623: Charles I & Buckingham set off for #Madrid #otd disguised & under false names to go courting the Infanta Maria, sister to Philip IV #otd. They arrive on 7 March https://t.co/0O9ewSkAtu” / Twitter

18/2/2021

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