Tag Archives: Marriage

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.

Licence, Denial and Disobedience: a ravishment case from fifteenth-century Oxfordshire

Today I tracked down the Plea Roll entry corresponding to Anon. (1461) YB Mich. 1 Edw. IV pl. 2 f.1a; Seipp 1461.018: the King’s Bench report, Thomas Wilcotes v John Newers, can be found at KB 27/802 m. 43. It is a ‘ravishment of wife and goods’ case, in which the plaintiff is complaining that the defendant has taken away both his wife and also some of his goods. The offence was well-established, having been introduced under Edward I, and there are many examples of its use in medieval plea rolls, although there is debate as to what we should understand ravishment or raptus to mean in this context. Much attention has been paid to the idea that a proportion of these cases might, in fact, have been consensual on the part of the wife, who wanted to leave her husband. Wilcotes v. Newers is relevant to the idea of consent – but it is the consent of the husband which is alleged, not that of the wife.

The story, briefly, is that Eleanor, wife of Thomas Wilcotes, had been taken away from his house and kept for an unspecified period at the house of her kinsman, John Newers.  Wilcotes alleged that this taking was against his will, (and also listed a number of items which he said had gone missing with his wife) but Newers had a different version of events: he said that Wilcotes and his wife had been at odds for some time, and Wilcotes had given him permission to take Eleanor away to his (John’s) house, and to try and encourage and cajole her to be obedient to her husband. As far as Newers was concerned, he had done nothing which was against the law, since he had this permission. Wilcotes’s side had tried to argue that, even if there had been permission, Newers would still have been guilty of an offence, but this did not seem to go down well with the court, and so the issue which would go to the jury was whether or not there had in fact been a granting of permission by Wilcotes to Newers.

What I am going to say next will be all too familiar to those who have had dealings with plea rolls: it is not clear what the end result was. The entry peters out after listing steps taken to have the case tried in Oxfordshire, where there were problems with finding an appropriate jury, and noting that it was to come back to King’s Bench, and, so far, I have not found any sign of later episodes (though Thomas Wilcotes is involved in litigation with another Newers in 1462).

Even so, having this much is very interesting. Whether or not Wilcotes had given Newers any sort of licence or encouragement to become involved, it is notable that it seemed a plausible story that a kinsman might be brought in in this way, and might hold and pressurise his kinswoman to be obedient to her husband. This suggests an interesting collaboration between men in enforcing women’s obedience, and at the same time it is based on the idea that some husbands are not capable of keeping their wives appropriately subservient: so there is a rather equivocal message here about the situation of women (nothing new there then). There are also some good comparisons to be made between the information in the two different documents, Year Book and Plea Roll, and I hope to have time to include these in a paper I am writing for a fast-approaching conference in Swansea in June.

To go back to the story, I would really like to know why Thomas Wilcotes brought the case: was the story about planning and permission a lie – or did the plan just make an unhappy marriage even worse, leading him to lash out in frustration against his partner in the failed Operation Make My Wife Do What I Want?

GS 12th May, 2017

Laws of Ice and Fire: George R.R. Martin, Song of Ice and Fire cycle from a legal historian’s perspective IIC: Marriage

Laws of Ice and Fire: George R.R. Martin, Song of Ice and Fire cycle from a legal historian’s perspective

Part II

Substantive Law

C: Marriage

Marriage is important in Westeros, as it was in medieval Europe, for the regularisation of sexual conduct and the orderly transmission of property. In the world of Song of Ice and Fire, marriage laws and customs differ on religious, cultural and territorial lines.

In ‘the Faith’, (the ‘new’ religion of seven gods, or a seven-fold God), marriage must be between one man and one woman [World: 5058]. This also appears to be the case in those following the way of the Old Gods of the North. Not everyone has always stuck to the monogamous model, however. Some Targaryens took more than one wife [World: 1399] while the Ironborn have only one ‘rock wife’ at home, they are allowed as many ‘salt wives’ as they can capture and keep [World: 5058]. Despite attempts to outlaw the practice of taking these additional, captured, wives, [World: 5248], the Ironborn maintain it at the time of the Song cycle. The Dothraki seem to allow at least khals more than one wife, and amongst traditionalist Dothraki, the khal’s bloodriders share his wives {I:379]

Marrying close family members is regarded as wrong (‘seen as a sin by the Faith’, ‘hated by the gods’ [II:236] and ‘a monstrous sin to both old gods and new’ {II; 451]) by most in Westeros, but the Targaryens frequently married siblings or other close kin, sometimes justifying this as necessary to keep pure ‘the blood of the dragon’ [World: 1399; I:29]. The twins Cersei and Jaime Lannister also have a long term incestuous relationship, but keep it secret [I:468], though Jaime dreams of marrying Cersei, and also marrying their children to each other [III:236].

Marriage is prohibited to the Kingsguard and the Night’s Watch, [I:72, 498], to silent sisters and septons and septas [III:261]. and the maesters also are celibate [II:17]. At least for a man of the Night’s Watch, marriage could lead to capital punishment  [IV:435], though less permanent breaches of the oath of celibacy are not taken very seriously (Jon Snow notes that men of the Night’s Watch visiting prostitutes ‘was oathbreaking too, yet no one seemed to care’ [I:751], and Dareon does not regard visiting prostitutes or undertaking a one night ‘marriage’ to a prostitute as serious or dangerous breaches of his oath [IV:435].

There appear to be at least social conventions concerning the requisite age or level of maturity for completion of the marriage. Thus, when Robert Baratheon proposes that Sansa Stark and his heir, Joffrey, are betrothed, Sansa is eleven and Joffrey twelve. He says that the actual marriage ‘can wait a few years’ [I:45]. Tyrion proposes that Myrcella weds Trystane Martell of Dorne when she reaches her fourteenth year [II:289]. Menstruation rather than a set age seems to be enough to make a girl old enough for marriage. Magister Illyrio noting that Daenerys Targaryen ‘has had her blood. She is old enough for the khal’ [I:30]. One marriage which does not seem to fit this pattern is that of the baby heiress Lady Ermesande Hayford to Cersei Lannister’s thirteen-year-old cousin, Tyrek (a match motivated by a wish to obtain the child’s lands) [II:363, 896; III:48]. This appears to be regarded as a full marriage rather than a mere betrothal, despite the bride’s tender age and presumed lack of consummation. Perhaps it is technically a betrothal, or open to disavowal when she reaches majority, though practically and politically, such a disavowal would be extremely unlikely (In the event, Tyrek disappears, presumed dead, so the point is moot).

Marriage may involve two stages – the contract or betrothal, which may be revoked, though it is considered binding in honour, and the final marriage [I:45; II:479]. A royal betrothal or marriage contract is considered void, and vows are cancelled, according to the Faith if the bride’s family are involved in treason against the groom, as is alleged against the Starks by Joffrey and his supporters [II:819].  The marriage ceremony itself, in the Faith, involves the making of vows before witnesses, in the presence of a septon, and symbolic removal of a ‘maiden’s cloak’ (with her father’s sigil or colours) from the woman, and its replacement with the bride’s cloak (featuring her husband’s emblems), demonstrating her move from her father’s protection to that of her husband [III:318, 669]. Consummation is also necessary, and might be preceded by the bawdy ‘bedding’ custom, which functions as confirmation that bride and groom at least had the opportunity and capacity to consummate. There may  also be the exhibition of sheets after the wedding night, as an additional confirmation that the marriage has been consummated.

The people of Westeros adhere to different religions, and marriage rites vary. Generally, there do not seem to be arguments as to whether a marriage conducted according to one rite is regarded as valid by the adherents of other religions. Some may choose to make sure that there will be no problem by holding a double ceremony, in both godswood (for the Old Gods) and sept (for the Seven or New Gods)  [II:474]. There may be problems of ‘conflict of laws’ with regard to more foreign traditions, however. Thus, a Westeosi rite marriage would not be recognised in Meereen – unless Daenerys Targaryen marries Hizdahr according to the rites prevailing in Meereen, they will not be regarded as being lawfully married, so that any children they have will be illegitimate [V:478]. Since Daenerys more or less complies with this, one must conclude that she assumes this ‘foreign’ marriage would be seen as valid in Westeros.

Marriage may be arranged, and strong pressure may be brought to bear, but some form of consent is necessary. Daenerys does not want to marry Drogo, initially, but her brother Viserys orders her that she will. [I:35]. She ‘consents’ to sex (and therefore ‘completes’ the marriage) with Drogo on their wedding night (it is presented in this way, though there is so much mention of fear that one must presume that a low threshold was being employed] [I:103]. Similarly, even a marriage forced upon a vulnerable woman, with the threat of violence and mistreatment, might be regarded as not sufficiently outrageous as to be impossible to maintain Thus, ‘the Bastard of Bolton’ forced Lady Hornwood to say her vows to him in appropriate form, in order to acquire her land, later starving her to death. A maester pronounced that ‘Vows made at swordpoint are not valid’, but it is thought that the Boltons would be unlikely to accept the invalidity of this marriage which brought them valuable lands [II:474]. The wildings’ custom of bride-stealing [World: 571] was not seen as excluding consent. The stealing was, rather, a way of showing stealth and bravery, such as a wilding woman might be thought to admire.

At least in the upper echelons of Westeros society, lords have a role and a responsibility with regard to female tenants. A liege lord has a duty to find a suitable husband for widowed female tenants [II:229]. This right or responsibility may be politically useful. Theon Greyjoy, for example, speaks of making a marriage alliance using his sister, Asha [II:350]. The right may be used vindictively, as when Joffrey and Cersei arrange a marriage between Tyrion and Sansa Stark. Joffrey has this right because Sansa is a royal ward, and her brother – who would otherwise have the right – has been attainted a traitor  [III:317]. The right is not available to those below the rank of lord: thus a castellan cannot make marriage pacts [V:653].

As was the case in medieval Europe, marriages can, on certain, restricted, grounds, be ‘undone’ (which seems to mean that, as with divorce a vinculo matrimonii, it was as if it had never happened). The marriage of Tyrion Lannister and the peasant girl or ‘whore’, Tysha, for example, was ‘undone’ at the behest of his father Tywin, (perhaps on the ground that it had been entered into through deception) [II:581], and a marriage not consummated – such as Tyrion’s marriage to Sansa Stark – can be set aside ‘by the High Septon or a Council of Faith’ [III: 364].

Once married, Westerosi husbands have considerable control over their wives’ person and property. They can chastise an adulterous wife [World: 90]. Again, though, this was not uncontested. Dorne, influenced by the rules of the Rhoynar, did not allow husbands to chastise wives in this way [World: 90] According to a decree from the reign of Gaemon Palehair, ‘husbands who beat their wives should themselves be beaten, irrespective of what the wives had done to warrant such chastisement’ [World: 6916].

Even in mainstream Westeros, there are limits. In particular, the chastising husband was restricted in that he must use ‘a rod no thicker than a thumb’ [World:1313] – an echo of the post-medieval distortion of common law spousal chastisement limitations known as the ‘rule of thumb’. And Queen Rhaenys Targaryen, doing justice in the absence of King Aegon, whilst accepting that ‘the gods make women to be dutiful to their husbands’, so that it was lawful for them to be beaten, decided that the number of blows should be limited to six (representing each of the gods, save the Stranger, who was Death) [World: 1313]. In a case in which a man had beaten his wife to death, she judged that the blows exceeding six had been unlawful, so that the brothers of the dead woman could ‘match those blows upon the husband’ [World: 1313].

It appears that the law in Westeros includes something along the lines of common law coverture, since Daenerys notes (implicitly as a difference’ that ‘in Qarth man and woman each retain their own property after they are wed’’[II:528]. She discovers, however that they also have a ‘custom that on the day of union, a wife may ask a token of love from her husband and the husband from the wife’ – these ‘requests’ not being amenable to denial [ibid.] Also suggesting the husband’s power over property brought to the marriage by the wife is the description of the Boltons using a (forced) marriage as a way of acquiring immediate rights in the wife’s lands [II:474].

 

Abbreviations

I:          George R.R. Martin, A Game of Thrones

II:        George R.R. Martin, A Clash of Kings

III:       George R.R. Martin: A Storm of Swords

IV:       George R.R. Martin, A Feast for Crows

V:        George R.R. Martin, A Dance with Dragons

World: George R.R. Martin, E M Garcia Jr, L. Antonsson, The World of Ice and Fire: the untold history of Westeros and the Game of Thrones

Number references refer to pages in I – V, but to Kindle locations for World.

 

Gwen Seabourne

27/12/2014