Tag Archives: legal history

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

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

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

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

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

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

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

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

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

GS

1st August, 2021.

 

 

 

 

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

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

[3] Evening Mail 22nd  July p. 3.

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

Photo by Quaritsch Photography on Unsplash

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

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

 

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

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

 

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

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

 

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

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

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

 

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

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

Shut Up!

GS

24/7/2021

 

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

 

 

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

[ii] Latter clause inexplicably cut from the line.

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

Blood and impurity: a Victorian ‘bastardy’ case

… And the ‘bastardy’ work continues to bring up unexpected things …

Just now, Hooper’s Law of Illegitimacy led me to this insight into the sex life, or at least views of sexual behaviour, of the Victorian judge …

The case is Bosvile v Attorney General (1887) 12 P.D. 177, a case involving a dispute as to whether a child, Arthur, was or was not to be held the legitimate son of Bosvile. Mr and Mrs Bosvile’s marriage does not seem to have been all a respectable Victorian might have wished – I am afraid there was a ‘paramour’ in the picture. While there was a presumption that a husband was the father of his wife’s child even if she did have a paramour, this was, by this point, very much open to rebuttal, as long as there was what a jury considered very strong evidence that H was not the father. Naturally, this state of affairs (!) brought in the possibility of some fairly intimate revelations (as well as showing differences of opinion, and doubts, about possible periods of gestation).

In this case, clearly there had been evidence from a servant – a lady’s maid – about the timing of Mrs Bosvile’s periods. The period of gestation in the case was just about possible, according to contemporary views, but it could not be stretched back any further than the point at which Mrs Bosvile had left H. The lady’s maid’s evidence was that at that point, Mrs Bosvile was menstruating. This may have been used in two distinct ways. First, it seems to have been used in relation to likelihood of conception at that point – so, if H and W did have sex, conception would be unlikely. That’s one thing. But  there is also a strong suggestion that husbands and wives would be unlikely to have sex if W had her period. Butt J (let’s be mature and not make any jokes about the name …) was pretty sure on that point (at 183). No doubt Victorian judges would find the idea a little messy and unpleasant, but, given the general strength of both presumptions of legitimacy, it is interesting that a bit of blood would be thought to tell against it. The tide was definitely on the turn in relation to these cases, and the evidence acceptable to rebut a presumption. A nice little counterfactual question is: what would have happened, if there had not been a breakthrough in terms of blood testing, and then much later DNA testing, for paternity, in the 20th C?

GS

21/7/2021

Image – Photo by Joel Filipe on Unsplash

Bachelor, Doctor, Lawyer: Wilfrid Hooper LL.D. (solicitor)

In my continuing researches into aspects of ‘bastardy’ law, I recently had cause to read Wilfrid Hooper LLD (solicitor), The Law of Illegitimacy: a treatise on the law affecting persons of illegitimate birth, with the rules of evidence in proof of legitimacy and illegitimacy, and an historical account of the bastard in mediaeval law (London: Sweet & Maxwell, 1911).[1]. The name was vaguely familiar to me, as it had come up in earlier work on women and law.[2] and I thought it would be interesting to do a little digging into his story. We hear so much about the ‘great men’ of late-19th C/ early 20th C legal history: wouldn’t it be good to know something more about the mostly-forgotten figures of this era, the ‘lesser’, local, legal historians? Rhetorical question – my blog, my rules, so yes, it would! What I have found, in my morning of investigation, is, I think, interesting in and of itself, and also suggests some areas and themes for further thought.

Who was Wilfrid Hooper?[3]

He was born in Reigate, in 1880 or 1881, the youngest child of ‘a well known local family’ – that of Mr Thomas Rowland Hooper (architect) and Mrs Elizabeth Hooper (née Perren). This relatively privileged background gave him the chance of more education than most of his contemporaries would have had – and until he was 11, he was a pupil at Reigate Grammar School; then he went to boarding school, at Oatenham School. He does not seem to have gone to university prior to embarking on a legal career – so he is not in the Maitland class of privilege, clearly – but was articled to some London solicitors, ‘the brothers Benson’, a firm which became ‘Withers, Benson, Birkett and Davies’. While working his way into legal practice, he also worked at acquiring some university qualifications, as an external, private, student, and achieved his LL.B. Hons in 1902. He was admitted to full-blown legal practice in 1903, when he was entered on the roll of solicitors. He did time in the office of Harvey Ford, in London, before, in 1906, setting up his own practice in Reigate, in a room in his father’s offices in Market Hall. He took on a pupil, H.S. Holt, who eventually, in 1937, became his partner. Hooper only gave up practice in July 1950. Newspapers show that his practice included real property as well as ‘crime’ and ‘tort’ work.[4]

 

His entry into the legal profession and establishment of a practice did not indicate the end of his academic ambition, however, because, in 1910, he entered for and was awarded his  LL.D. at the University of London – based on his work on illegitimacy which became the book I have mentioned. He continued to write on legal and historical subjects for much of the rest of his life. He was a ‘big cheese’ in the Surrey Archaeological Society, contributing to its transactions and serving from 1937-47 as Hon Sec. His ‘local history’ works included a Story of Reigate through the Ages, and he was apparently working on a history of Dorking at his death. He also wrote about less Surrey-based matters, including courts, sumptuary laws, [5]the law on women, and seems to have an interest in the (lawyer and) poet, Cowper.[6]

He also had other interests, legal (SE Surrey Law Society. Poor Persons Committee 1923 – 50), political (borough councillor for SE Reigate ward 1921-33)[7] and miscellaneous (school governor for Reigate Grammar School, for example). (The obituary also notes – without detail – that he served in the  1914-18 war).

The personal life angle is rather intriguing – he was a bachelor until he made a late marriage – only a month to the day before he died. He died on Saturday 2nd September 1950, aged 69. This was said to have been due to complications caused by an accident in January 1950: he had fallen in his office, and banged  his head on an iron safe, and another in May, when he fell in the street. He seems to have gone into a nursing home after that. Wilfrid had ‘day release’ from the nursing home to get married, on 2nd August 1950, at the Congregational Church in Reigate, to the widow of a solicitor, Mrs LL Nightingale, widow of Mr Thomas Nightingale.[8] He returned to the nursing home until 24th August, and then was discharged – presumably into the care of his new wife.[9]

 

Thoughts and themes

It is interesting to consider what all this tells us about ‘the middling sort’ of legal historian, the ‘amateur’, (who also feels qualified to opine on a variety of matters from architecture to literature, agriculture to economics) the ‘local’ expert.[10]

Hooper clearly had some ambition in the academic line – or was keen to be recognised as a skilled (legal) historian. He made the effort to acquire an LL.D., and one presumes that he did not object to being called ‘Dr Hooper’ – this is certainly the way he is described in most newspaper articles (though the Daily Mail demotes him to ‘Mr’).[11] He does not seem to have been an obvious academic superstar (or, perhaps was not sufficiently silver-spoon-showy) however, achieving a ‘second division’ result in his LL.B.[12] There are also signs that he was not quite in the mainstream of historical study – e.g. he wrote an article debunking the existence of a ‘pilgrim’s way’ between Winchester and Canterbury in the medieval period, unaware that C.G. Crump at the PRO had recently done exactly the same thing.[13]

I suppose we are seeing the point at which history, law and legal history draw apart, and specialised disciplines are created. While Hooper still felt that he had something to offer in all departments, from an academic and practical perspective, he probably outlived the days when it was realistic to combine so many different enthusiasms and be taken seriously in them (without rather higher social standing than that of a Surrey solicitor).

GS

21/7/2021

Image – the man himself.

[1] London Daily News, Tuesday 4th  July, 1911, p.3. The price is given as 12s 6d and I suspect it was less of a hit than Beatrix Potter, Peter Rabbit’s Painting Book, which is listed above in the ‘Juvenile’ section, at 1s.

[2] He wrote The Englishwoman’s Legal Guide (London: David Dutt, 1913).

[3] My main source for the basic facts is the obituary report in Surrey Mirror, Friday 08 September 1950, p. 5. Clearly this may be rose-tinted, but it ought to be relatively reliable in this case, I think.

[4] Times 20/6/1933 p. 30. Surrey Mirror 8/6/1915 p. 2.

[5] Wilfrid Hooper. “The Tudor Sumptuary Laws.” English Historical Review, vol. 30, no. 119, 1915, pp. 433–449.

[6] See, e.g. Times 4/11/1931, p. 11,

[7] His politicking deserves a separate post, I think. There is some great material from one of his victories, and the very British ‘burn’ by his defeated rival…

[8] Elsewhere she is called Janet, mind you: Surrey Mirror 8/9/1950, p. 1.

[9] The Daily Mail – on-brand as ever – says only that he had substantial assets: £44, 944 DM 30/12/1950, p.5.

[10] He gives his views on architecture in Banbury Guardian 1/8/1912, p.3.

[11] 30/12/1950, p.5.

[12] Times 4/11/1902, p. 8.

[13] Times 11/11/1936, p. 11; Observer 29/11/1936 p. 13.

Discerning paternity: James Percy and his moon-mark

And today in bastardy studies …

I have been mostly looking at an odd little area: the use of evidence of resemblance in assigning paternity of ‘bastards’. This has taken me down an another interesting little side-road, to the story of a trunk-maker called James Percy or Piercy (1619-c. 1690), who claimed to be related to the powerful Percy family (earls of Northumberland, wardens of the March, general top-dogs in the north of England over several centuries ….), and, indeed, to be entitled to inherit the earldom This will not be new to Early Modernists, or peerage fanciers, I dare say, and JP even made it into the ODNB, but I had not come across the story before.

James was not a bastard, but he is relevant to investigations of paternity more generally, in that part of the case was a physical resemblance, to wit, … a mole in the shape of a half-moon, which was the emblem of the earls of Northumberland:

‘God hath been pleased to make a true decision himself, which may be a president, for he sent the claimant from his mother’s womb with a crescent into the world, which is God’s ensign of truth, and the very badge belonging to the Percies, earls of Northumberland.’ (The case of James Percy, the true heir male and claimant to the earldom of Northumberland (London, 1680) p.7)

This mole/birthmark seems not to have made it into the ODNB’s telling of the tale, which outlines James’s relatively humble upbringing and the fate of his claim to the earldom, launched in 1671, the previous (11th) earl having recently died, without a living son (his wife having given birth to a stillborn posthumous child in 1670/71). Not hugely surprisingly, the dowager countess, mother of the 11th earl, was not having it. She went hard on behalf of Lady Elizabeth Percy, the more expected contender, and used all sorts of procedural and practical tactics to make it hard for James to make out a case. There were proceedings in the House of Lords, petitions to the king and other recipients. James’s story was not constant. Things dragged on for about 20 years, with James publishing his argument in an attenpt to gain support for the claim, and the case was only finally kicked out by the HL in 1689, with more than a little cruelty (see the ODNB entry for the ‘public humiliation’ which was ordered for poor old James, but probably not carried out).

So – an interesting story, but one which has been somewhat twisted in its reception in some legal sources. My route into the story was via 19th and 20th C reports of bastardy/exhibition of child cases from US jurisdictions, which were concerned with whether or not it was appropriate to give any weight to resemblance between a child and the man alleged to be its father. Percy’s story reaches the American cases via citation to a slightly throw-away footnote in Howell’s State Trials 12, p. 1199,  in the report of another case entirely. Some of the US reports make fairly expansive claims about what the law was, or had been, in England, and the case of James Percy is cited as uncomplicatedly showing that evidence of resemblance as an indicator of paternity was perfectly fine, and that this applied to bastardy cases (despite the fact that James was claiming not to be a bastard – otherwise of course he could not feasibly have claimed to be earl of Northumberland, entitiled types being rather strict on this point). I have more to do on resemblance evidence in paternity cases, but am not convinced that the crescent moon mole in Percy could really support the conclusions which seem to have been drawn from it.

GS

19/7/2021

 

Image – a crescent! c/o Wikimedia Commons. Really wanted to find a proper Percy moon and shackle, but best I can do is this slightly banana-esque number. Odd shape for a mole, isn’t it?

 

Byways and rabbit holes in ‘bastardy’ research

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

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

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

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

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

 

GS

13/7/2021

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

Photo by Quinn Secker on Unsplash

 

“Bastard Pauper Lunatics” and Victorian establishment values

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

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

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

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

GS

10.7.2021

That which we call ‘rhosyn’ … names and language in medieval common law records

A question which has often occurred to me is how medieval criminal justice managed to confirm people’s identities, in a world without ‘identity documents’, and with a wide margin of error (or a lack of a definite concept of error) with regard to spellings. This is probably hugely anachronstic, and no doubt the answer has something to do with small communities and good memories, but I came across a case today (after a period of rather slim pickings in my searches) which suggested another angle to this question of identity.

In a King’s Bench roll of 1368, there is a short entry relating to a homicide case in Gloucestershire. It notes that the roll of one of the Gloucestershire coroners recorded that one John Penres had been indicted for the felonious homicide of Gerard Walyssh[i] at Ockington, arrested and sent to the gaol at Gloucester castle. John Tracy, sheriff of Gloucestershire, was now ordered to bring this man before the court, to answer the charge. No John Penres could be produced, however. The sheriff contended that somebody had been executed for this crime already – he was a Penres, but his first name was not the Anglo John but the Welsh Yeuan (Ieuan as it is in modern Welsh). There was an investigation, referring to a particular previous session, at which Ieuan was said to have been tried and executed, and it was confirmed that a Ieuan Penres had been executed for the homicide of Gerard Welssh [sic]. The sheriff was off the hook therefore.

This shows that the identity question was solved in part by documentary searches, and it is a little comfort to see that care was taken to check these things. It probably also has things to say about physical and linguistic borderlands. I have noted the fun and games clerks of the English bureaucracy had with some of the more ‘difficult’ Welsh names, especially Gwenllian, but did they really find Ieuan difficult? Or would somebody of Welsh background, living or working in Gloucester, have adopted an English name as a matter of routine, for his dealings with non-Welsh-speakers? There is definitely scope for further digging and thought on this issue. Nice little research project for somebody?

Update/addition

And this one jumped out at me just the other day – not a Welsh one, but another apparent ‘mistaken identity’ case, from a gaol delivery session at Newgate on Wednesday 17th March 1316, A certain Ralph le Leche was in jeopardy – he was said to have been appealed by an approver of involvement in a robbery and a homicide in Northamptonshire. His story, though, was that the original accused man was some other Ralph le Leche of London – let us call this alleged miscreant Ralph 1 – while he, Ralph 2, had been in London all the time, and at the relevant period, he had been ill. A jury of London citizens confirmed his story, so Ralph 2 was saved. Does make you wonder whether less ‘together’ defendants might have ended up being executed by mistake in this way, though.

GS

3/7/2021, updated 7/7/2021

[i] This sounds like a ‘Welsh-on-Welsh’ crime, from the names, doesn’t it? Or at least ‘Welsh-extraction on Welsh-extraction’.

Image – your actual Offa’s Dyke – symbolic border etc. etc.

Penalising medieval poetry

The other day, whilst looking through the scanned plea rolls on the AALT website, I thought I might have made a bit of a discovery – a long poem in English, in the midst of a Latin entry. Probably unsurprisingly, it had long since been discovered and written up, more than a hundred years ago, in fact. Nevertheless, I think it deserves another outing.

The case concerned some Yorkshire men who had come to the attention of the authorities for their disruptive behaviour. It was written up from the indictment, and commented upon, by a man with more titles than one might consider strictly necessary – ‘the Reverend Professor Skeat Litt. D’,[1] in the Yorkshire Archaeological Journal vol. 15 for 1900.[2] The indictment is here, and the corresponding plea roll entry here.[3] The indictment is from 1392 and the plea roll entry from 1393, both in the latter part of the reign of Richard II.

As indictment and plea roll entry note, jurors of Yorkshire wappentakes made a number of accusations, including various sorts of disorderly conduct. Those accused included John Berdwald of Cottingham, and at least 31 others, said to have formed some sort of organisation to support each other in litigation and quarrels, six years previously, contrary to laws against maintenance, and some of them had been unruly and violent. The specific poem-related accusation was that John Berwald junior composed a rhyme in English, and had it spoken in public at Beverley on Sunday 21st July 1392, and at Hull the following Sunday, and at various other places in Yorkshire that year. The rhyme was set out in the indictment and the plea roll, going like this,[4]  …

‘In the countrè heard was we that in our soken shrewes shuld be, with-al for to bake.

Among this Frer[e]s it is so, and other ordres many mo, whether they slepe or wake.

And yet wil ilkan hel[d] up other, and meynten him als his brother, bothe in wrong and right.

And so will we in stond and stoure, meynten oure negheboure, with al oure myght.

Ilk man may come and goo among us both to and froo, I say you sikyrly.

But hethyng wil we suffre non, neither of Hobbè ne of Johan, with what man that he be.

For unkynde we ware yif we suffird of lesse or mare any vilans hethyng.

But it were quit double agayn, and [he] a-corde and be ful fayn to byde oure dressyng.

And on that purpos yet we stand; who-so do us any wrang in what plas [that] it fall,

Yet he might als[o] wel, als[o] I hap and hele, do a-geyn us all.’

 

The overall sense is that these men want to behave like friars and stand together against all comers, taking each other’s part in quarrels.

It seems interesting to me in a number of respects. First, it is clearly not a vote of confidence in the system of justice generally available: such alliances would not be needed if normal legal processes were considered appropriate. Secondly, assuming that there is some truth in it, the declaration of mutual support is an interesting counter-current to the anti-maintenance views of more literary authors, noted in Jonathan Rose’s book on maintenance.[5] Here, the confederacy is announced, celebrated, justified in terms of its similarity to the behaviour of friars and in terms of a positive idea of natural solidarity.

Secondly, there is the matter of the authorities’ strategy. It seems to me that they may have run into what might be termed the ‘Mike Read/Frankie Goes To Hollywood problem’, after a notable incident in the 1980s when a BBC Radio 1 presenter drew everyone’s attention to the rather rude words of the song ‘Relax’  – promptly helping the song to rise to chart domination. Was it really necessary to give the whole rhyme in indictment and plea roll? Could some phrase like ‘seditious rhyme’ not have been sufficient? The inclusion of the rhyme does make me wonder what would have been the reaction to it amongst those involved in making these records – did they repeat it to each other, or tap a foot along with its rhythm? I have to say, as a complete non-expert (I actually find medieval literature a bit scary, always feeling that I am missing allusions, references, the point …) that I think it’s quite catchy.[i]

GS

26/06/2021

[1] (‘So you’re a cleric and a leading academic …’ as I believe H.R.H. Shania Twain had it, in an early iteration of country-pop classic ‘That Don’t Impress Me Much’, before going for the Brad Pitt verse …).

[2] (a journal which manages expectations of readers by including in its preface the following slightly gloomy line: ‘It is hoped that the contents of the volume are not inferior in interest to those of its predecessors.’)

[3] The front of this membrane is here.

[4] (after Skeat, checked against the plea roll text – there are only very small differences).

[5] Rose, J. (2017). Maintenance in Medieval England (Cambridge Studies in English Legal History). Cambridge: Cambridge University Press. doi:10.1017/9781107358324, c.7,

Image – Beverley Minster, which must be somewhere near the site of the alleged naughty poetry reading. And, OK, some of that is post-Ric. II, but it’s very pretty, isn’t it? Never been. Hope I can visit it one day.

[i] and rather better than this effort at political protest which an anonymous bard of our own days was unable to suppress, on the subject of more recent political events  …

Unhealthy ministrations

He’s come to a sticky end, Matt

the pound-shop BJ, pant, slip, splat;

his back-hand- jobs sleaze –

the old Tory disease –

just how could anyone fancy that?

Unfinished business: sexual misconduct in medieval Middlesex

I have found some additional material relating to an indictment I mentioned in Women in the Medieval Common Law,[i] though no conclusion. The indictment, from Middlesex, from 1385, related to a rape on Margaret. servant or maid (ancilla) of one Matilda Wherewell.[ii] It stated, on a night in 1385, Adam Matte, leprosus, had come to the house of Matilda Wherewell, in the parish of St Clements outside the bar of the old Temple in London, and bargained with Matilda to sleep with her that night,[iii] for 10 shillings. Matilda told Adam that she did not want to do this, but that she had a certain very beautiful servant called Margaret,[iv] who was lying in one of Matilda’s chambers, and he could sleep with Margaret if he paid Matilda the sum mentioned. Adam agreed and paid the money to Matilda. Straight afterwards, Matilda led him to the chamber where Margaret was lying. She told Adam he could do what he wanted, and locked the two in the room. Adam, feloniously, grabbed Margaret around the neck, threw her to the ground and raped her. Straight after this felony, because of the foulness of the rape, and Adam’s disease, Margaret became unwell, ‘losing her mind’, and continued in this state until she died, three days later. It was emphasised that Matilda had consented to, aided and abetted the commission of the felony.

Matilda’s first tactic, when she was tried in 1386, was to say that she should not have to answer this charge, since she was an accessory, and Adam, as principal, had not been convicted or outlawed. This worked, and Margaret was bailed to appear at future sessions. Later that year, another tactic emerged: flight. Her sureties were fined for failing to produce her,[v] and the sheriff of Middlesex was to track her down,[vi] and so it goes on until 1387,[vii] but then the trail fades away, and as is all too common, Matilda seems to disappear.

 

So what?

Well, I used it in the book to illustrate the reach of common law beyond principal offenders, to include those facilitating offences, and to note that this could make women amenable to prosecution as accessories, even when they were not regarded as capable of committing an offence as a principal. I think there is more here, though.

Prostitution/sex for sale

If the indictment is anything resembling the truth, it is an example of commercial sexual exploitation of an entirely unwilling servant – and perhaps a situation in which ‘prostitution’ seems a more appropriate term  than ‘sex work’, with the element of at least some exercise of will which seems to be bound up in that latter term. The picture given is one of an unaware servant exploited by Matilda, for her own financial benefit, who is unconsenting to the point of having to be locked up in a room with her ‘client’.

‘Leper’ as sexual predator

The story also brings together ‘lepers’ and illicit sex, in a way which will chime in with other ideas about lascivious ‘lepers’, from polemic and literature. It also seems quite interesting from the point of view of regarding it as plausible that somebody with leprosy might be wandering around looking for sex in a highly populated area. I cannot claim expertise in medieval disease or response to it, but this strikes me as unexpected. If this was indeed a person with leprosy/Hansen’s disease, then the idea that Margaret might have contracted it from him in a few days is beyond unlikely. The idea that she might be traumatised and ‘lose her mind’ seems rather more plausible, given the circumstances, and the horror of this disease in medieval Europe.

Legal points

It is, as noted in the book, interesting to see a woman accused as an accessory to rape, though she could not be a principal. Matilda’s contribution to the rape is significant, according to the indictment. It would not have happened without her, it would appear.

Given the structure of the offence and indictment, Matilda’s argument about principal and accessory was logical enough. If the man accused did in fact have leprosy, or was thought to have it, however, could he have been prosecuted? I don’t think that common law procedure had a strategy for trying those with feared and contagious conditions like this. In a sense, a ‘leper’ might be the perfect principal for an exploitative employer like Matilda (or the version of Matilda suggested by the indictment) – one the common law would not touch.

GS

17/6/2021

 

(image, halfpenny of Richard II, courtesy of Wikimedia Commons)

[i] KB 9/167 m. 8 (IMG 17), mentioned at p. 126 of Women in the Medieval Common Law.

[ii] (The indictment looks like ‘Whorewell’, at least to those of us with very questionable eyesight. The materials discussed here show that it was  ‘Wherewell’, however, and thus probably a simple geographical name, relating to Wherwell, Hants, rather than, as I had imagined, a sort of occupational designation/jeer, attached to a woman who appears to have been involved in selling sex, one way or another).

[iii] These terms are notoriously difficult to translate, perhaps impossible in terms of capturing the nuances. It is clear that this is about sex, not accommodation.

[iv] (Or, as the KB 27 version has it, a servant called Margaret Pulcheriman. Makes a difference, doesn’t it? The latter suggests the sort of ‘trade name’ which might be used by a sex worker, and would seem to relate the unwillingness to the state of the particular man, rather than to the more general unwillingness of a servant not generally selling sex).

[v] AALT Page (uh.edu)

[vi] AALT Page (uh.edu)

[vii] AALT Page (uh.edu)