Tag Archives: medieval law

Offensive weapons: some thoughts on a violent image

Content warning: concerns historical records relating to sexual violence, and historical attitudes to such violence which are, without question, offensive. 

An entry on the King’s Bench plea roll for Easter 1435 tells us about proceedings against a Norfolk clerk, Thomas Hervy of Testerton.[1] Amongst other things, he was alleged to have broken into the house of John Serjeant of Colkirk, on 1st October 1433, and to have wounded Margaret, John’s wife, by stabbing her with a lance or dagger. He was, eventually, acquitted. So far, so run-of-the-mill: medieval legal records are full of accusations of non-fatal injuries of one sort or another, comparatively few of them resulting in conviction, and we know that carrying a knife or dagger (if not a lance) was commonplace. The reason for drawing attention to this case, is that it is one in which it really is neither a dagger, nor yet a lance, that we should see before us, and that may have some important implications.

Allegations of misconduct involving the use of weapons are strewn through the records of the medieval English central courts, even when we can be fairly sure that nobody thought they had actually been used. They appear as ‘boilerplate’ text, in litigation relating to what a modern common lawyer would regard as torts, a fearsome list of swords, staves, bows, arrows and sometimes other weapons featuring, routinely, and often incongruously, in allegations of trespass of even a relatively mild sort, as a means of gaining entry to the king’s courts.[2]  Given this background, it may appear rather banal to point out that I do not think anybody ever believed Thomas had actually attacked Margaret with a bladed implement, but this short record does take us in a disturbing new direction. The entry is not an embellished version of a lesser offence, done for jurisdictional reasons, but one offence presented as another, for what we must probably see as entertainment, for the real allegation was not one of stabbing, but of a sexual offence.

Let us take a closer look at the record of the Hervy case. It gives more specific names to the weapons alleged to have been used, breaking from Latin into English as it does so. Hervy ‘wounded’ Margaret with a ‘carnal lance, called in English a ballokhaftitdagher’, (a ‘bollock-hafted dagger’ in more modern English). I believe that this would have been understood to be neither a lance nor a dagger but a penis: the offence was not a ‘wounding’ in the conventional sense, but sexual penetration of John’s wife.[3]

This position needs some justification. Lances, of course, were real weapons, though a ‘carnal lance’ seems rather obviously phallic. As for the dagger, while there was a real weapon called a ‘bollock-hafted dagger’ (also known as a ‘ballock dagger’ or ‘ballock knife’) in medieval and early modern Europe, named for its distinctive two-lobed hilt, [4] I do not think that this was understood as a real bladed implement either. The juxtaposition of a ‘lance’ and a dagger (which would seem to be things of rather different dimensions) suggests that there has been a slip into a metaphorical mode, and the equation of the ‘carnal lance’ and ‘bollock-hafted dagger’ is hard to explain other than in their common representation of male genitalia.

There are a few cases mentioning ‘carnal lances’, unaccompanied by reference to ‘bollock-hafted daggers’ (though sometimes they are accompanied by a reference to ‘stones’, strongly suggesting testicles).[5] An indictment which mentions the ‘bollock-hafted dagger’ alone, and which discloses that the allegation is one of sexual violation, can be seen in a 1454 file. This states that a certain William Shepley, tailor, on 31st October 1453, broke into Henry Smith’s house near Campsall, Yorkshire, stole some items, and raped Henry’s wife, Agnes, ‘with force and arms, i.e. with a … ballokhafted dagger’, penetrating her ‘secrets’.[6] This does all seem to make a good case for saying that both ‘carnal lances’ and ‘bollock-hafted daggers’ were meant to be understood as penises. Further support might be derived from the additional details in the Shepley record: it notes that William’s ‘bollock-hafted dagger’: is ‘a large instrument of very little value’, putting that low value at one penny (much lower than the values assigned to most real weapons of the time),[7] and elaborating on the length of the ‘instrument’. We might wonder whether it is conceivable that the allegation is one of violation with a real knife, but there is no sign that violation with an object would have been labelled raptus in medieval England. Those familiar with literary history will be aware of the long tradition of imagery centring on fighting and weapons, in connection with sex and with male genitals: medieval people were likely to have been used to this switching back and forth between body part and weapon, in the sexual context.[8]

We cannot be sure by what route this imagery came to be included in the record: was it a transcription of the initial accusation, or an elaboration by the clerk who recorded it? We can be sure, though, that it was a choice: most medieval rape or sexual offence entries do not include such material, so clearly it was not a requirement. If it had no formal function, though, why include it? Highly questionable as it seems to us, these accounts of ‘carnal lances’,‘bollock-hafted daggers’ and ‘large instruments’ were probably included in the record because they were considered humorous. Discussion of penis size and quality, as well as the connection between penis and suggestive dagger form, in the context of sexual offences, would certainly seem to have something in common with the tone of some of the ‘jokes’ about women, sex and rape seen in the clubby, men-only conversations reportedly carried on by serjeants and judges at Westminster, and passed down to legal posterity, in the Year Books.[9]

What more does the inclusion of this inessential material tell us about attitudes to the accused men? Although we may detect some ridicule of the defendant in the ‘low value’ part of the 1454 description, the ‘large instrument’ is presumably not similarly negative, and, taken overall, the use of the ‘penis-as-weapon’ image is not likely to have been damaging to an alleged offender; perhaps quite the reverse. In a world in which even socially-acceptable sex was seen as something a man did to a woman, in which a degree of male aggression was expected,[10] which knew ‘playful’ combat imagery in discussions of sex, and in which men carried real and aggressively suggestive ‘bollock-hafted daggers’, an image of unlawful sex as wounding with a weapon would be far less damning of the alleged perpetrator than it now appears.

Some of the ideas incorporated in these records are certainly offensive from the point of view of the modern scholar, but they may also be illuminating, in the quest to understand the mental world of medieval men, and the attitudes faced by medieval women in their encounters with the legal system. Much scholarly attention has been paid to the interpretation of entries relating to raptus, and whether or not particular allegations so designated concerned rape as we would understand it today, but cases such as that of Thomas Hervy, with which I began should alert us to the possibility that there are also cases not labelled raptus, which may, in fact, have involved allegations of sexual misconduct. Beyond that, though the number of cases which mention these suggestive weapons seems, thus far, to be small, the insights they can provide for our understanding of the interplay between wider culture and legal proceedings, in this difficult and important context, may prove to be of more than minimal value.[11]

 

Gwen Seabourne

11th May, 2024.

 

 

[1] KB 27/697 Rex m.5. All linked scans are from AALT.

[2] See, in particular, S.F.C. Milsom, ‘Trespass from Henry III to Edward III,’ Law Quarterly Review 74 (1958), 195-224; 407-436; 561-590.

[3] In this instance, the suggestion is that this was with some degree of consent on her part.

[4] See Ole-Magne Nøttveit, ‘The kidney dagger as a symbol of masculine identity – the ballock dagger in the Scandinavian context’, Norwegian Archaeological Review 39 (2006), 138-50. Note that the dagger’s ‘bollocks’ were renamed as kidneys by nineteenth century-antiquarians.

[5] See, e.g.: KB 9/359/mm. 67, 68;  KB9/363 m. 2; KB 9/363 m.3  Sometimes there is additional information linking the lance to penetration of a woman’s body: see, e.g. KB 27/725 m. 31d For the stones-testicles link, see, e.g., W.J. Whittaker (ed.), Mirror of Justices (London: B. Quaritch, 1895), book I c. 9.

[6] KB9/149 m. 21

[7] The offence was committed ‘[cum] … magne instrumento minime valoris’. For the use of instrumentum for the penis, see Dictionary of Medieval Latin from British Sources (Brepols, 2018), s.v. ‘instrumentum’, 6c.

[8] See, e.g., D. Izdebska, ‘Metaphors of weapons and armour through time’, in W. Anderson, E.  Bramwell, C. Hough, Mapping English Metaphor Through Time (Oxford, 2016), c. 14; Robert Clark ‘Jousting without a lance’, in F.C. Sautman and P. Sheingorn (eds), Same Sex Love and Desire Am407-436ong Women in the Middle Ages (New York, 2001), 143-77, 166; Dictionary of Medieval Latin from British Sources, s.v. ‘hasta’, 6.

[9] See, e.g., G. Seabourne, ‘Et Subridet etc.’: smiles, laughter and levity in the medieval Year Books. In T. Baker (ed.), Law and Society in Later Medieval England and Ireland: Essays in honour of Paul Brand (London: Routledge, 2018), 201-224, which you can see here. See also the contention that the inclusion of a particularly detailed fourteenth century rape case in medieval lawyers’ instructional manuscripts indicates that it was seen as having ‘titillatory’ value: B.A. Hanawalt, ‘Whose story was this? Rape narratives in medieval English courts’, in her ‘Of Good and Ill Repute’: gender and social control in medieval England (Oxford University Press: New York, 1998), 124-141.

[10] See, e.g., R. Mazo Karras and K. Pierpont, Sexuality in Medieval Europe: Doing Unto Others, 4th edn, (Routledge: London, 2017).

[11] There is a copious literature on the medieval literature of sexual misconduct. For those new to it, S. McSheffrey and  J. Pope, ‘Ravishment, legal narratives, and chivalric culture in fifteenth-century England’, Journal of British Studies 48 (2009), 818-836, and references therein, would be a good entry point.

‘Accordyng to the lawes of god and womanhode’: scenes from a late-medieval birthing chamber

Note that a slightly revised version of this has now appeared on the Bristol Law School Blog 

In some work on qualification for tenancy by the curtesy a few years ago, I had occasion to look into cases relating to expectations as to who was present at a birth in medieval households (at least households of some wealth and land). The curtesy cases gave sometimes turned on matters occurring at or shortly after a birth, and thus included some interesting insights on what went on, or was thought to go on at this time. I hope that study added something to scholarship on medieval childbirth practices. Curtesy is not the only sort of legal proceeding in which we might see a description of childbirth or its aftermath however: there are some rather interesting comments on this in a case relating to trespass and ‘riott’, from the reign of Edward IV, which I will note here.[i]

The comments come in the petition presented in 1473 (and repeated in a King’s Bench plea roll of 1476) by a Yorkshire knight, Sir John de Assheton, in connection with his allegation of mistreatment at the hands of a group of ‘riottours’, at about 2 a.m. on 6th November 1470, with one John Myrfeld at the head of the list, who, he said, attacked his home at Howley (Morley, Yorks), took him off to Pontefract castle, and made him seal a bond in their favour. Partly as a strategy to show just how dastardly the ‘riottours’ were, but also partly to ward off any suggestion that he had given in and gone off with them rather too easily, Assheton made great play of the fact that, at the time they had attacked his place, his wife was in confinement (so, you see, his submission was really all noble and all about protecting his wife and others).

Anyway, whatever may be the reason for the mention of the childbirth scene, it does give a few interesting passages, which might be added to our knowledge of this part of medieval life.

So what do we get? Assheton does not bother to name his wife, which, of course, says much about her position in the grand patriarchal scheme of things (and I can’t help but think it’s rather weaselish when he is trying to use her to make himself look better …). He does tell us that she was ‘newely delyvered of child and liyng in childbed with other divers his susters, gentilwomen and frendes accompaigned’ at the time of the attack. Because of the attack, which was said to have involved pulling down walls, flashing of weapons (listed) and the application of ‘fyre’. Assheton did eventually say that he experienced ‘fere’, but only after he had attributed even stronger emotions to his ‘wif’,  described as fearful, ‘in right grete dispare of hir lif’. The ‘gentilwomen’ who were with his wife, were also said to share her feelings.

Here, we also get a nice, almost throw-away comment: they were there with his wife ‘accordyng to the lawes of god and womanhode’. The job these words are doing, in his narrative, is, I think, that of highlighting the goodness, the good order, of the Assheton household, in order to make a telling, condemnatory, contrast with the ‘riotous’ and, perhaps ungodly, behaviour of his adversaries.

As he gets towards his own submission to the attackers, there is some repetition of remarks on the state of his wife, with some additions: she is ‘new in child bed’ but now also ‘in the bandes of our lady’ and cannot be moved without ‘ieop[ar]dy of hir deth’. The ‘bandes of our lady’ are rather interesting: should we be thinking about metaphorical ‘bandes’, or should we be thinking about the use of some sort of birthing girdle, or, indeed, both of the above? This might be a conventional saying, unknown to a simple legal historian, but perhaps not: might it shed some light on perceived workings of medieval delivery-protection practice?

Assheton does list the saving of his own life as well as hers, and those of the others present, as motives for his surrender, but the point has been made – he was really thinking  of his wife (damn, what was her name again?).

Nothing much turns on these childbed allegations, and the case takes off in a different direction, but it is good to get these small clues and pieces of description. While Prof. Monica Green has made a strong case for the moves of male medieval medical professionals into the area,[ii] this case reinforces the idea of conventional childbirth being a women-only event (or at least being held up as women-only, possibly for rhetorical purposes). This women-only quality is given divine backing, as well as the sanction of ‘the lawe of womanhode’ (which I have not seen before). It raises all sorts of questions about ideas of both ‘lawe’ and ‘womanhode’, and about how this concept relates to the more familiar ‘secrets of women’. Much to ponder.

GS

4/2/2024

 

Update

Very satisfying – I have matched this case to the Year Book report, which is Seipp 1476.015. This, incidentally, puts the (still unnamed) wife in the forefront of the allegation in the case, making it one of Mirfield (or ‘J Marsel’) having ousted W and Ashton’s servants from P’s house. Interesting change of emphasis, effacing John Assheton’s capitulation and fears. What to conclude from this, other than a reinforcement of the need for caution in deducing attitudes to gender from just one medieval legal source?

8/2/2024

Image – yes, I know this is a later ruin, but still, vaguely appropriate.

[i] KB 27/858 m. 66 ff.  The petition comes from 1473.

[ii] See, in particular, M. Green, Making Women’s Medicine Masculine: The Rise of Male Authority in Pre-Modern Gynaecology (Oxford, 2008).

Finding the words for offences involving the foetus: a medieval Midlands example

Warning: this post contains references to violent crime and sexual violence.

Something I came across today in an indictment file seems worthy of a note, though the topic is difficult in all sorts of ways. Still, I think it is important to set it out and contextualise it,

The entry comes from a Worcestershire session of the peace from Michaelmas term, 1476. The jury said on oath that Roger Bailly of Hallow, Worcs, chaplain, on Tuesday 27th July, 1473, with force and arms, i.e. with clubs, knives and  lances (though not really/necessarily – these were conventional allegations) broke and entered the close of John Chirche at Hallow, and assaulted John’s wife, Joan, knocking her down. Joan was, at that time, heavily pregnant (grossam impregnatam). Roger wanted to have sex with her (the adverb used here is illicite, but rape, in the modern sense, seems the implication). The attempt does not seem to have succeeded (this is not spelled out) but the injuries caused in the attack had the effect of killing the foetus.

The words which are used to describe the foetus, and the offence, are very interesting. It is foetus ipsius Johanne in ventre sua existent’  [Joan’s foetus, existing in her womb] and the offence was that Roger had totaliter suffocavit, destruit & murdravit [completely stifled/suffocated, destroyed and murdered] the foetus, ‘against the peace of the lord king etc.’

This wording is intriguing in what seems to be its viewing of the foetus as, at one and the same time, a separate entity and also part of Joan. Thus, for example,  we have the word ‘murdravit’, which suggests separate concern for the foetus, but it is also designated Joan’s foetus, and its location in her womb is emphasised.  This suggests to me a more nuanced and sophisticated understanding of the nature of the foetus-within-the-woman than we might have imagined floating about in the minds of medieval jurors. The consensus view, that, while there was one well-known statement equating pre-birth and post-birth killing, the common law had, by the mid-fourteenth century, settled on birth as the start of the application of felonious homicide, remains intact.[i] This entry may be taken to suggest that lay views on questions of pregnancy and foetal life were not identical with the legal position under the law of homicide. Might that  say interesting things about what people thought was the appropriate area of operation of the law, and what was beyond its legitimate involvement?

The document absolutely does not amount to an endorsement of the idea that ending the life of a foetus was equivalent to felonious homicide on a person after birth – so is not something to be deployed in modern drives to restrict legal abortion – this is not equivalent to a ‘normal’ medieval murder/homicide charge, and it does not set the interests of foetus and woman against each other, as is often the case in modern analysis. As I have seen in medieval legal materials concerning other complexes of personality, such as husband and wife or corporations, ‘the medieval mind’ took a different, and perhaps more flexible, approach to accommodating ‘joint and several’ personality than some modern minds are able to accomplish. Perhaps it was all of that thinking about (what I find to be) the hugely difficult concept of the Trinity that limbered them up.

GS

2/6/2022

[i] On this, see Sara Butler’s recent post, and works cited there.

Image – I know, but very hard to find an appropriate image for something like this.

Weapons and words: revisiting an issue from medieval sexual offence records

I have updated it again: now see this one.

(This post contains references to sexual offences and sexual violence).

Despite the lack of interest in this area which is shown in the leading textbook on medieval English legal history, (you have a look at Baker’s Introduction to English Legal History editions 1-5 …), the study of sexual offences has seemed to the better sort of social historians and history-based legal historians to be something worthy of considerable attention, just as it has done to many modern legal scholars. There has been some excellent work, examining the implications of the word raptus (summary: it’s complicated) and differences over time, in terms of the basic allegations which appear in legal records. One aspect which has not been to the fore is the very occasional use of metaphorical language in these records, in relation to sexual offences, specifically the use of the image of weaponry to stand in for male genitalia.

I mused about this in a previous post. Since then, I have found some more examples, and it seems worth revisiting, and perhaps trying to discuss the matter with those who might have wider, relevant, expertise (over a longer time-span, or else a broader knowledge of other sources – literary, theological … than is possible for a legal scholar stepping out of her lane quite enough by taking on medieval history…).

In the earlier post, to summarise, I noted an entry on the King’s Bench plea roll for Easter 1435 relating to proceedings against a clerk, Thomas Harvy, for alleged offences in Norfolk, including a sexual offence (which was probably understood to be ‘consensual’ – at least in contemporary terms of an absence of overt physical struggle).[i] Jurors had presented before the justices of the peace that, on 1st October 1433, Thomas Harvy of Testerton, clerk, … broke into the house of  John Serjeant of Colkirk, at Colkirk, and attacked Margaret, John’s wife,  wounding her shamefully (turpiter) with a certain carnal lance called, in English, a ‘ballokhaftitdagher’, and so he continued to do until that day, setting a bad example etc., to John’s great damage and against John’s will.’[ii]

I did, at first, question my reading of the carnal lance/ ballokhaftitdagher’: could the lance perhaps have been some sort of butchery implement? But both terms being used together made a pretty strong case for seeing the ‘carnal lance’ and ‘ballock hafted dagger’ as evoking not actual weapons but metaphorical weapons, and to refer to male genitalia.

I had come across the ‘carnal lance’ image on its own in a very small number of other cases.[iii] Now, though the number remains small, I have a couple more. There is another ‘carnal lance’ reference  in a  1483 Devon indictment.[iv]  This one does seem to separate the attack with the lance and the sexual penetration, so did make me wonder once more whether I might be talking fanciful nonsense, but yet another, from the same county and roll, mentions the use in an attack on a female servant of both ‘carnal lance’ and two ‘stones’.[v] A metaphorical link between testicles and stones was certainly present in the medieval period, and appears, for example, in the Mirror of Justices, in a discussion of mayhem (Book I c. 9). It is, of course, hard to be sure that this was not a real lance and real stones, but the more examples I find of the link between weapon-talk and sexual offence cases, the less likely that seems.

I have not gone out looking for references in a systematic way, and it seems unlikely that I have, by chance, found all of them. The best view which I can give at the moment is that this was a known idiom/image in later medieval England, and an unusual, but not unknown,  inclusion in legal records.

Update, 29th May, 2022

I found another reference to carnal lances and stones, from Devon, from an indictment file for Hilary term 1482 – this time I think it really does confirm that carnal lances were not actual lances, and stones were not actual stones, in some legal records. It is a deeply unpleasant sexual assault accusation, in which a certain William Gamon, clerk, was accused of what would now be called  a rape (though no ‘rape term’ is used, and neither are words of felony) on Joan, wife of John Stonehewer, on two separate occasions.   

A rough-and-ready translation of The case on KB 9/359 m.2 would be:

‘[A Devon jury on 12 October 1480] said on oath that Wm Gamon, [ff] recently of [Denbury], Devon, on 2nd July and 10th October 1479, with force and arms and against the peace of the lord king, with staves and knives and also a carnal lance, broke and entered  the houses of John Stonehewer at Denbury and Ottery St Mary, hit John’s wife, Joan, several times, and then hit and penetrated her with the aforesaid lance and two stones hanging in the said William’s nether regions, in a certain hairy opening between her two thighs, in the rear, so that her life was despaired of and against the peace of the lord king.’

Aside from confirming the lance/stones metaphor usage, this introduces further examples of figurative language for body parts in the sexual context. The woman’s body is discussed in particularly demeaning terms here, which is not very surprising really, but which reinforces the everyday misogyny which would have pervaded the atmosphere of medieval courts.

 

Why is this interesting, and what does it all mean?

If the ‘weapons’ are metaphorical, what then? First it is worth noting that a resort to metaphorical language is unusual within the generally unfanciful context of medieval plea rolls. It was not necessary to describe the (alleged) offences in this way. Secondly, it should be acknowledged that  the use of weapon-imagery is a well-known practice in literary sources.[vi] What are the implications of this weapon imagery in the legal context?  Several things occur to me, all a little tentative just now – I would certainly be interested to know what others think. Here are some of them:

  1. I wonder whether we can read into the occasional intrusion of this sort of imagery in entries on the legal record something of the mood of discussion about such offences, amongst the men involved in making records, or those in court. Is there validity to my intuitive reaction that it sounds like joking about and diminishing the seriousness, or the wrong, of sexual assault and rape? Might it be argued to show the exact opposite: since we know that these prosecutions almost never ‘succeeded’ in the sense of ending with a conviction and punishment according to secular law, aligning it more closely with the ‘ordinary’ sort of violence (and especially categorising the harm as a ‘wound’, as in ‘ordinary’ batteries etc.) showed a greater-than-usual degree of concern. The ‘rape: an offence (predominantly) of sex or violence?’ question is something of an ‘old chestnut’ in modern legal scholarship, but I think that there is some worth in considering linking up those debates with the work on rape/sexual offences in historical studies, which does not always deal with this point.
  2. What does the weapon imagery say about ideas of men, rape and sex?
    1. Does associating offending sex with a weapon in some sense dissociate man and penis, and, if so, is this something which serves to minimise – or ‘outsource’ – culpability?
    2. How does the association work with ideas/reality of rape as a weapon in (medieval) warfare?
    3. What does it all say about contemporary ideas of (socially sanctioned) sex? We are well used to the medieval idea of heterosexual encounters as asymmetrical, perhaps with a ‘playful’ combat aspect. Does using the weapon idea in sexual offence cases suggest an acceptance of a continuity between offending and non-offending sex?
    4. If weapon-imagery is to be used, what is the reason to choose one type of weapon rather than another? What implications might there be in choosing a lance rather than a dagger, a Latin/French term or an English one?

As ever with medieval legal records, far more loose ends and questions than concrete findings, but, I will stick my neck out a tiny bit and make one statement based on all of this. It does seem to me that one thing the use of weapon-words must have done was to reinforce the connections between the men involved in the legal process (jurors, clerks, those in court) and place them in opposition to the woman against whom, or with regard to whose body, the offence had, allegedly, been committed. The wielding of such weapons was a thing clearly gendered male, and, as such, something drawing men together in exclusion of women. Probably not, therefore, something conducive to a receptive attitude to allegations of a crime against a woman’s body.

GS

26/5/2022.

[i] KB 27/697 Rex m.5 AALT IMG 0183. You can see a scan of the record here on the AALT website.

[ii] For the ‘ballock hafted dagger’ (a real weapon), see the earlier post, and Ole-Magne Nøttveit, ‘The Kidney Dagger as a Symbol of Masculine Identity – The Ballock Dagger in the Scandinavian Context’, Norwegian Archaeological Review 39, no. 2 (2006), 138-50.

[iii] KB 27/725 m. 31d; AALT IMG 567 (1442); KB 9/359/mm 67, 68 (these two also mentions stones); AALT IMG 141 (1482). There are two on KB 9/359 m.3

[iv] KB9/363 m. 2

[v] KB 9/363 m.3

[vi] See, e.g., D. Izdebska, ‘Metaphors of weapons and armour through time’, in W. Anderson, E.  Bramwell, C. Hough, Mapping English Metaphor Through Time (Oxford, 2016), c. 14; C. Saunders, Rape and Ravishment in the Literature of Medieval England (Woodbridge, 2001), 42; R. Mazo Karras, Sexuality in Medieval Europe: Doing Unto Others, third edn, (Abingdon, 2017), 26, 151, 172; Robert Clark ‘Jousting without a lance’, in F.C. Sautman and P. Sheingorn (eds), Same Sex Love and Desire Among Women in the Middle Ages (New York, 2001), 143-77, 166. The Dictionary of Medieval Latin from British Sources (Brepols, 2018) suggests this meaning too, in its sixth variation on ‘hasta’.

Note on terminology: I have generally stuck to ‘sexual offences’ here, because of an imperfect mapping on to modern conceptions of ‘rape’ of the ideas and definitions current in the medieval common law. There is probably not a satisfactory way of dealing with this mismatch, or at least I have not found one, and my choice is not intended to minimise the severity of the harm suffered, or the culpability of offenders of the past.

Image: I am going for a general suggestion of ‘puzzling’ here: a maze, Photo by Ben Mathis Seibel on Unsplash

Discord, fraud and an attack of conscience? Some dodgy dealings with land in the fourteenth century 

As I prepare materials for modern Land Law teaching, it is interesting to think of the potential difficulties medieval people might have in guarding against losing their rights in land, in a world without the sort of registration and record-keeping which my students love hearing about so much …

The source: a 1339 King’s Bench plea roll. KB 27/315 m. 13d (AALT IMG 262)

The scene: mid-fourteenth century Cambridgeshire (and, as all pretentious reviews of films and books say, the land itself is a sort of character too. And the law. And the plea roll. Enough – on with the alleged facts …)

In Michaelmas 1338, jurors of various hundreds presented that John Allberd and his wife Nicolaa[i] held 20 acres of land in Hokyton, in right of Nicolaa, but there was discord between them, and Nicolaa went away from her husband and the area. [Alas, as our esteemed PM would say] John then died. [At this point, Nicolaa should have had the land back, or, if she had died, as seems to have been the case, then it should have gone to her heir, BUT… there was a conspiracy between an observant/nosy local and some ‘incomers’, from Norfolk, and even that London]: John son of John Riston of Hokyton, John Godefeld, citizen of London, and a certain Margaret of Norwich conspired together and in 1334, Margaret was passed off as Nicholaa (de Kelm, wife of John Allberd of Hokyton) and, acting as Nicolaa, Margaret had a false charter drawn up in favour of John son of John Riston, transferring the land to him, not to William de Kelm, nephew and heir of Nicolaa. John Riston entered by virtue of this false feoffment. [And he would have got away with it, if it hadn’t been for her meddlesome conscience]. Confessione ducta, she had gone along to the church of Hokyton and coughed to her misconduct. After this, William de Kelm had got the land as the result of a concord (no details), and the law was put on to the two male alleged conspirators.

The sheriff was ordered to bring the parties into court to hear about the misconduct. John Riston and John Godefeld pleaded not guilty (and things are still rumbling on, trying to get these two into court in 1347 – KB 27/348 m.32d (AALT IMG 1590) – I am yet to get to the end of the matter.

So what?

I know – just another unfinished case, but …

Well, you have to admire the cunning of such a plan, if it happened. It does rather point to a weakness in the system of land holding: identifying individuals who had not been seen for some time. Presumably it was plausible that one woman might be passed off as another, even in relatively close-knit areas with small populations.

I am also quite taken by the throwaway line that there was discord between the spouses and Nicolaa just exited the scene. Seems somewhat at odds with what we think we know about conjugal debts and the need to get a divorce a mensa et thoro before doing this. I suppose we would have to presume that women could leave if men were not bothered. As this case shows, though, there might be a cost to them, in terms of the risk of losing rights to the land they left behind.

(All rather far away from the bureaucracy and formality of modern Land Registration schemes, to which, I suppose, I had better return …)

GS

28/1/2021

 

[i] A moment of appreciation, please, for this fabulous medieval spelling, and I take my hat off to anyone who is able to resist pronouncing it pirate-style as NicholAAAAAAH!

Blood and Brothers

 

One of the matters I touch on in the forthcoming Women and Medieval Law book is the basis for the right to bring an appeal – an individual prosecution – in the medieval period. Appeals are important in a consideration of women and the common law, because they were a way that women could initiate a ‘criminal’ case, though they were shut out from participation in other methods – especially presentment/indictments. To cut a long story short, there are various statements which purport to set out accepted limitations on the matters women could appeal (most prominently mentioned as allowed are homicide of a husband and rape) but there are also many, many examples of women bringing other appeals; and a little study makes it apparent that the ideas about why women can ever bring appeals (in a system which prevents them from other routes of prosecution) are not at all clear. There are a number of different ideas floating about, including revenge, particular damage and likely physical proximity to the offence.

Because the book was about women, I did not get into a related issue: if a single man is killed, who has the right of appeal? This is an interesting one, partly in terms of the ‘answer’, but mainly in terms of the way arguments are made about it, so it deserves a short exploration here (no doubt to be updated as and when I find new cases on it).

At least in 14th and 15th C cases, a definite ‘pecking order’ was understood, as between the brothers or sons of a slain man, and somebody accused by the appeal of a younger brother could legitimately say that this was invalid, because this was the wrong person to be bringing the appeal: the right lay in the older brother.  In a case in 1314, for example, (KB27/218 Rex m. 10 (IMG 24)) from Worcestershire, a woman, Margery, wife of John I,  and John II, were accused by one William of killing his brother, Thomas. Margery was accused of killing Thomas by hitting him in the head with a stone, while John II held him by the throat. Apart from denying wrongdoing, Margery argued that she should not have to answer the appeal, because William had an older brother, John III , and it was this John III  who should have brought the appeal. It ‘naturally pertained’ to John III to prosecute it, and he was ‘nearer in blood etc.’  It seems to have been another point on which the appeal failed, but it was at least an outing for this idea about ‘the wrong brother’.

It is not proximity, but ‘worthiness’ of blood which is the justification given for preference of the elder over the younger brother in cases from the 1330s:  KB 27/310 Rex m. 6d (AALT IMG 333), KB 27/311 Rex m. 1d (AALT IMG 245)  and KB 27/312  m.3 (AALT IMG 290). (KB 27/311 Rex m. 1d (AALT IMG 245) features an argument as to whether the alleged elder brother exists (was inventing an elder brother a tactic which might, or buy some time?). The matter was raised in some later Year Book reports too. Seipp 1467.041 and 1468.007 – and Markham J was apparently concerned about whole blood and half blood relationships (only the former would do, so must be mentioned, tracing the blood of victim and prosecutor in the appeal).

An earlier fifteenth century case showed a difficulty which could arise for younger brothers – what if there was an older brother, but he was not interested in bringing an appeal, or not able to do so? Seipp 1412.047abr notes a case in which the older son of an allegedly murdered man was a monk, and the upshot seems to have been that there was nothing to be done – the younger son did not have a right to appeal here.

So what?

Well – as a younger sibling, I am not happy at the idea that the older sibling has ‘worthier blood’ (though would that work with women, or would they have some coparcenry-equivalent pattern, with any sister being as good as any other?).

Less self-centredly, it has got me thinking about blood, and how it figures in different areas of law (free/unfree status, bastardy, succession more generally, attainder and ‘corruption of the blood’, rape, assault and ‘drawing blood’ as a threshold or evidential requirement… probably more).  And how does ‘blood’ relate to ‘flesh’: how do lineal and matrimonial relationships interact one with another? Maybe one day this will all fall into place in my mind and end up as a paper on ‘The Law of Blood’. Interesting, anyway to try and work out what ideas about blood were present here. Clearly it would need to bring in theological and medical ideas too. But probably not vampires.

GS

22/1/2021

Buckets and causation in medieval Kent

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

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

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

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

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

 

 

Almaric, (not quite) the Champion of the World

A Year Book report of a Common Pleas case of Easter term 1364 YB Pasch. 38 Edw. III pl. 16 f. 10b (Seipp 1364.046) can be identified with the plea roll record: Abbot of St Peter of Gloucester v. Almaric le Botiller CP 40/ 417 m. 111. Here, Almaric was accused of having trespassed against the Abbot’s rights by going into some of land in Gloucestershire in which he had rights of free warren (a species of exclusive property right in certain animals located there), and taking away his rabbits, hares, partridges and pheasants.

Almaric denied most of the accusation, and made an interesting defence in relation to the hunting and retrieval from the Abbot’s land of a pheasant, saying that the pheasant had originally been on Almaric’s own land, when the falcon (in the record, it’s a sparrowhawk) was loosed to chase it, but the pheasant had retreated to the Abbot’s land, and the falcon had followed and killed it there; Almaric had gone in to retrieve his falcon’s prey. This defence seems to show that there would only be a warren trespass offence if the hunt had begun within the Abbot’s warren. The Abbot’s next plea seems to confirm that, since it argues that the pheasant was within the warren when the falcon was set on it. It was this issue of the pheasant’s starting point which was arrived at as the matter to put before a jury,although Knyvet, a Common Pleas judge, observed that, wherever the unfortunate pheasant had begun, Almaric’s entry into the land to retrieve it would have put him in the wrong.

Clearly, the answer would have been further training of the sparrowhawk to get it to bring its prey back to the falconer. Almaric could then have stood outside the warren, waiting for the abbot’s pheasants to stray, hunt them with his trusty sparrowhawk and cause no end of annoyance to the man of God.

GS 31/5/2017

Adultery and violence in the medieval West Midlands

Here’s a case I found in a roll relating to theWorcestershire trailbaston sessions of 1306 (JUST 1/1032), when looking for something else entirely – so interesting it deserved a blog post.

On m. 4d (AALT image 2700), we are told that Johanna, wife of Edmund Sneed was indicted for having gouged out (extraxit) the eyes of Christiana daughter of Thomas de la Twychene at Hampton Lovett. The sheriff of Worcestershire had been ordered to have Edmund and Johanna before the Justices ‘to respond to the King for this trespass’, but he had to report that Edmund had not been found. The coroner and several credible members of the county community gave evidence that Edmund was on his way to the Curia in Rome. Johanna came, though, and was asked how she wished to plead to the trespass. She said that she was not guilty and submitted to a trial by jury.

Many medieval records are less than expansive after this point in proceedings, but, here we get some interesting material from the jury, rather than the all-too-frequent blank ‘guilty’ or ‘not guilty’. It is reported that the jury said Edmund Sneed had been involved in an adulterous liaison with Christiana (tenuit … in adulterio) and often withdrew himself from  Johanna, beat and mistreated her, and moved her from the house in Worcestershire to another house he had in Warwickshire. There seems to have been a partial reconciliation, since they said that Johanna came back to Edmund and lived with him at Hampton Lovett, but Edmund was still involved with Christiana. Johanna was said to be aggrieved and provoked (gravata et commota) by this state of affairs (as it were) that, on a day which the jury could not specify, but which was in the year 30 Edward I (i.e. 1301-2), she asked Christiana around to Edmund’s house to discuss the adultery. Christiana came as requested, but rather than a civilised discussion of their situation, a fight broke out between them. Johanna is said to have hit Christiana and put out her eyes. (I am a bit puzzled as to exactly how to imagine that happening: surely actually removing somebody’s eyes requires something other than a blow? How inappropriate would it be to ask about this next time I am at the Eye Infirmary?)

The jury also felt moved to say that Edmund and Johanna had always provided for Christiana, and continued to do so, (which would indicate a fairly long term commitment, considering the date they said the eye-gouging had occurred) but noted the insecurity of Christiana’s position. This is certainly an interesting passage in relation to provision of care for those with disabilities and impairments. It suggests some form of informal taking of responsibility by Edmund and Johanna, outside legal proceedings. We might wonder, however, just how desperate Christiana must have been, to accept help from the very person who had caused her very serious injuries.

There seem to be traces of sympathy for Johanna (and lack of sympathy for Christiana as no better than she ought to be?) on the part of the tribunal, and perhaps an effort to find a way to excuse Johanna’s actions. The report tells us that the jury was asked how old Johanna was at the time of the eye-ripping, and whether she had been in her right mind. The jury, however, did not take the opportunity to engage in a bit of ‘pious perjury’ to let her off the hook: they said that she was twenty years old, and sane. Johanna was therefore committed to jail, with the instruction that the case was to be heard at Westminster on Monday in Pentecost week.

Most unfortunately, I have found no trace of the case in the relevant plea roll, so, unless and until some other evidence turns up, the story ends there, with no answer as to how the justices at Westminster would have handled it. Nevertheless, there is a lot to think about here. There is a fair amount of reported sexual misbehaviour in medieval legal records, but the story of the supposed summit meeting between two women who had been involved with the same man, and then the extreme violence, is very unusual. In relation to Johanna’s violence, there is thinking to be done about what was expected, and countenanced, in terms of the behaviour of a wronged wife towards ‘the other woman’. Interesting that the medieval Welsh legal triadic literature suggests some leeway for wives hitting ‘the other woman’ (though certainly not eye-gouging).

Then there is also the report that the married couple were in some sense looking after the ‘other woman’ in her impaired state, and the intriguing story of Edmund’s trip to Rome – not, we might note, some sort of repentance pilgrimage to Rome in general, but specifically to the Curia. Something matrimonial seems most likely – though going in person to the Curia would not be standard practice.

So – lots of loose ends, but, apart from anything else, this record shows just how useful trailbaston (and plaint) rolls of this period can be in giving glimpses of a world of facts and legal ideas often effaced in the increasingly standardised forms in King’s Bench and Common Pleas rolls.

 

Postscript

Allegations of women being hit so that their eyes are said to fall out can be seen in S.M. Butler, The Language of Abuse: marital violence in later-medieval England (Leiden, 2007), e.g. at 161 and 177-8. While some descriptions of such extreme and horrifying episodes may have been somewhat exaggerated attempts to portray a woman in conformity with saintly models, this case, with the subsequent apparently impaired and needy state of Christiana, probably records a genuine incident of eye-gouging.

GS

8th May, 2017.