Tag Archives: medieval legal history

A pregnant pause (in legal proceedings)

This is a snippet on medieval women, pregnancy and the common law which I had not come across at the time I wrote Women in the Medieval Common Law, but which I would add, if there was ever to be a second edition (very likely, I am sure, due to massive global demand …).

This sits somewhere between  the plea of pregnancy as a way of deferring the imposition of capital punishment (which has been explored in a number of studies)[i] and the less-explored area of women’s essoins or legitimate excuses for non-appearance. It is well known that the common law did accept that a capital sentence should not be imposed upon a pregnant woman (at least one whose pregnancy had ‘quickened’), the thinking behind that mainly revolving around the wrongness of making an ‘innocent’ suffer the penalty appropriate only for the guilty. It is also well known that there were a number of ways in which a person could make excuses for not appearing for trial, without negative consequences, but, as I noted in the book (p. 110), the great medieval treatises – Bracton and Fleta in particular –  talk about these entirely from a masculine perspective.[ii] Thus we learn that a man who is sick in bed can be excused, as long as he is not caught up and about and in his trousers, but, even though there are some early indications of essoins ‘de malo puerperi’ or ‘de puerperio’,[iii]  it is relatively rare to see them ‘in the wild’, being used (and succeeding) in practice.

There is, though, an entry on the King’s Bench plea roll for Easter term 1322 which shows the use of labour/childbirth as a reason not to turn up to defend oneself in an appeal (individually-commenced  criminal prosecution). KB 27/248 m.8d (AALT IMG 0193) records the efforts of the sheriff of Essex to bring Philip Clobbe, Roger Pontyn and Alice his wife into court to respond to Clarice, widow of Hugh le Bakere of [Bartlow], who appealed them of the death of her husband. After many failed attempts, Roger  appeared, but it was said that Alice was pregnant. The vocabulary is marginally different to the terms above – she lay in parturiendo – on which more in a moment – and so could not come to court without the risk of fatal consequences.

Alice was not going to be forced to come to court at once to stand trial, but was to be ‘kept safe’ so that she could be tried later. As with the execution deferral plea of pregnancy, this was only a temporary delay, This is not the only situation in which the machinery of the law resulted in non-convicted pregnant women being kept in some degree of confinement – see also the process in ‘civil law’ cases in which a woman alleged that she was pregnant with her deceased husband’s child, and property divisions depended on whether or not there was an heir.[iv] Considerable suspicion of women and their scheming ways was shown in such cases. Here, presumably, the fear was that a heavily pregnant woman would get up from her labour and go on the run from the law.

So – a small extension from the known material (or at least the material known to me) but an interesting one, and something that, I think, confirms the picture of not-exactly-merciful attitudes to pregnant women in the medieval common law. Perhaps it also reinforces the idea of the forms of the common law, with their development through a male paradigm, which might be applied to women in a rough and ready way, did not fit childbearing and pregnancy very well, intellectually at least.

There are a couple of language issues which might be noted. First off, interestingly and/or frustratingly, the use of Latin here obscures a detail which many of us would like clarified: whose death are we talking about – mother, foetus or both? The suggestion that she can’t come sine mortis periculo  – ‘without danger of death’ could, it seems to me, mean any of the above. And it matters, doesn’t it, in that it would be very good to know whether this is an extension backwards in time of the ‘don’t hurt the innocent for the misdeeds of the mother’ or whether it is an analogue of the ‘sick men don’t have to risk their health’ plea. And then there is that slight difference between the language of puerperium and that of parturition. Would it be stretching things to see them as having slightly different focus, linguistically, emphasising the child and the woman respectively? I put it out there, anyway, as something of an indication of the acceptance of complexity, possible dissonance and changing of points of view which medieval people’s minds could accommodate. Let’s be honest, those of us of a somewhat light cast of mind quite enjoy the lack of perspective in medieval visual arts. Intellectually, though, their ability to juggle and switch perspectives is intriguing and impressive.

 

GS

31/8/2024

 

Image – Elizabeth giving birth to John the Baptist, c/o Wikimedia Commons.

 

[i] See p. 143 of the 2021 book for references.

[ii] Bracton IV, pp 71, 91-5, 113, 124, 127, 143; Fleta book 6 c 10.

[iii] Examples of this terminology from the early 13th C: 67 SS p. 342; 84 SS no 3144, 3720, 3889; CRR I, p 383.

[iv] I have a chapter about to appear, dealing with this, amongst other things, so you’ll have to wait. In the meantime, see this later example.

Casting the first stone, and then a few more: contemptuous trespass in Westminster Hall

A very brief comment this time, but this Middlesex entry from the King’s Bench plea roll for  has got me thinking …

It’s one which has some bearing on my mayhem project, but also resonates with other areass which interest me – women, assessment of injury, and no doubt more.

The entry notes that Katherine de Coresle was attached to answer the king and Thomas de Slene in a plea of contempt and trespass. Thomas complained that, on the Saturday after the feast of the Ascension, 31 Edward III, attacked Thomas with force and arms, i.e. with stones etc.,[i] in Westminster Hall, in the presence of the king and his justices, hurting him (Thomas, not the king), in contempt of the king and damaging Thomas to the extent of ten pounds.

Katherine denied everything, pleaded not guilty. She put herself on the country. Thomas did likewise. The jury said that Katherine was guilty of the trespass, and set damages at 6s 8d. Having viewed Thomas’s wounds, the court decided that the jury had been very mean, and raised the damages to 20s. Katherine was to be taken into the custody in the Marshalsea prison.

I have not found any additional information on this, so far, but it certainly seems an arresting incident (assuming that it happened … obviously, we can never be sure, but this does sound like something which was supposed to have been done in such an open manner that a lot of people would have to have been lying through their teeth – or something else fairly outrageous would have to have been going on – for the jury to come to the conclusion that Katherine was guilty of inflicting the wounds Thomas was confirmed to have sustained). If it is true, then, we have to get our heads around the idea of a woman lobbing stones at a man, hard enough to cause serious harm, within Westminster Hall, apparently without concern for the august personages also present there.

Another thing which leaps out is the differences between the various sums put forward as appropriate damages for Thomas’s injuries. We have:

  • the sum Thomas claimed – ten pounds
  • the sum awarded by the jury – six shillings and eight pence
  • the sum awarded to Thomas after the court inspected his injury – twenty shillings.

… or, if we feed this information into the National Archives currency converter (one of my absolute favourite things …) that would be (roughly …): (i) 27 cows/50 days of wages for a skilled tradesman; (ii) no cows but 16 days of wages for a skilled tradesman; (iii) 2 cows/50 days of wages for a skilled tradesman. (I assume that the reason that the maths looks a bit odd is that it is assumed you would not be able to buy seven tenths of a cow …). It does suggest a high degree of both over-claiming and under-valuation by juries. There is so much to think about, in terms of how sums of money were attached to particular offenders, victims and injuries – hard to say much at the moment, but I am compiling a bit of a database … slowly! It does always strike me as interesting that there is a level of confidence amongst common lawyers that a court is capable of assessing somebody’s level of injury. Worth bearing in mind in the history of the development of medical expertise/ forensic medicine.

GS

11/3/2022

 

Image: some stones. In case anyone is not sure what they look like …

Photo by Michael Surazhsky on Unsplash

[i] The stones might have been fictitious/conventional, but they were not the usual weapons/projectiles encountered in trespass weapons lists, so I don’t think it’s too much of a stretch to think that they actually meant that stones were involved.

Bleeding Legal History

Rather later than many people, I have finally had a chance to have a good look at the latest delivery from the Selden Society – A.H. Hershey (ed.), Special Eyre Rolls of Hugh Bigod 1258-60 Selden Soc vols 131 and 133. These have been waiting for me in my pigeon hole at Bristol for a while, but I have only just been able to get into the Wills Memorial Building, after returning from my travels, to get my paws on them. As you will see from the image above, in my clumsy eagerness, I managed to injure myself during the ‘unboxing’ process. I managed to leave some blood spatters on one of the books, so my DNA is now on them, I suppose. Hard core legal historian or what?

The volumes are editions (and translations) of some eyre records (JUST 1/1187, JUST 1/1188 JUST 1/1189, National Archives fans) from sessions by Bigod, the justiciar, just after the big King-barons upheavals of Henry III’s reign, and they are well worth a look for anyone interested in this period, or in legal history generally.  From the point of view of my research, there are some interesting entries on non-fatal injury, and on pregnancy/foetuses, and, as ever, I remain interested in seeing the extent to which women are dealt with in the commentary, index etc.

So, a few points …

  1. There is some interesting stuff here about the use of querela procedure – complaints without the usual formal requirements. These are always really interesting, in that they feel like a bit of a window on to what people actually want the law to do. Obviously not unmediated, but less mediated. I have noted in the past that they are particularly useful for women, whose routes to justice were generally rather more constrained (e.g. I have mentioned this in relation to sexual abuse of various sorts, see here). The introduction to SS 131, at xxvii makes a good point about the limits to the freedom which was allowed when bringing this sort of action – clearly not possible wholly to contradict common law rules by going down the querela route. Still, they can be pretty informative.
  2. The introduction does also make special mention of women’s use of this process – see xlv – which is good to see. Dower/freebench features pretty heavily, and I found particularly interesting the section at xlvi relating to  Cecilia widow of William son of Roger of Hatfield and her freebench claim. Her case – no. 24 – engages with a manorial custom relating to freebench in Hatfield. The ‘upside’ was that it was relatively generous in extent – a qualifying widow became ‘life tenant’ of all of the lands her husband had held in the manor. The ‘downside’ was that the qualifying test was pretty strict. Not only did the widow have to remain chaste (which Cecilia claimed she had) but there had to be a surviving legitimate child with the dead husband. This is where Cecilia fell down: her son had died. Conceptually, I suppose I ‘get’ the rule: freebench was something of a ‘dower meets child maintenance’ concept here, it would seem. Still, though, it would presumably mean compounding the tragedy of a woman who had lost both husband and child. Interesting to see that in this case, she seems to have cut a deal with the other claimant to the land, and was not left with nothing. Manorial equity?
  3. There is some very interesting material relevant to pregnancy and foetuses. Intro p. xlvii and entry no 141 relate to a Bucks complaint of Sibil, wife of Roger Grey, knight, that she had been assaulted, in an attack on her husband, leading her to miscarry the child she was carrying, and to be unwell enough to have to stay in her bed for some time afterwards. There is a lot which is interesting about this case. First of all, the blows she suffered were alleged to have happened while she was trying to protect Roger, the main target of the beating – interesting from a gender roles POV, even if the editor is not convinced it is realistic in this particular case. Secondly, the miscarriage was alleged to have happened not at once, but three weeks after the attack. Very interesting in terms of causation, which is one of my current concerns. Apparently that was thought to be a plausible claim, despite what one imagines would have been the relative frequency of pregnancies ending badly. As Hershey notes, this is all quite interesting in terms of its relationship to the sorts of cases women were allowed to bring by appeal, but there is also more to unpack, I think, in terms of what it means for our understanding of contemporary views on pregnancy and the foetus. I am wondering what to make of the ‘confined to bed’ claim – was there a doubt that loss of the foetus in and of itself was the sort of harm which ‘counted’, and it felt safer to emphasise the harm to the woman?
  4. Also fascinating (and horrible) on pregnancy, foetuses etc is no. 126 at p. 120 ff: amongst the accusations against William of Rushton of Oxfordshire (and some henchmen) is the accusation of wrongful execution of a woman. Sarah of Islip was said to have been hanged for theft, without proper judgment, when she had a good explanation for her possession of the allegedly stolen goods (cloth) and when she was very pregnant. All sorts of interest here. Hershey concentrates in the introduction on the wrongful execution point, but the entry itself has some really useful passages describing late pregnancy, and, incredibly chillingly, on the idea that a woman facing execution might be resigned to her own death, but plead for those threatening her to cut her open (presumably after death?) and save her child. What an appalling scene that conjures up – and what a priceless insight into more than one issue relating to law, medicine and the (plausibly set forth) emotions and attitudes of a medieval woman.
  5. There is also some useful stuff on the mayhem/non-fatal injury front, including a case of partial blinding with, shall we say, an interesting alternative portrayal of causation (woman alleges she is thumped, causing her to lose sight in one eye; jury alternative explanation is that fumes associated with her brewing blinded her in one eye, and only one eye …am I wrong to be unconvinced at their good faith?) – p. 297 no 349.

 

(There are also lots of general land cases, procedure etc, for those who like that sort of thing, preferring their legal history a little less bloody …)

14/12/2021

GS

 

‘Lunacy’, lucidity and the extent of exculpation

Continuing my off-and-on consideration of ‘lunacy’ and mental incapacity in the medieval criminal law, I’d like to note another case which expands a little on our knowledge in this area (or mine, anyway).

The case comes from a 1315 gaol delivery roll, from a session at Norwich castle (see it here). It is a grisly double homicide – and there seems to have been no argument about the basic facts: a man called Robert Angot had killed two others, William Maille and Thomas de Riston. Nevertheless, Robert pleaded not guilty, and all the signs are that he was not going to suffer the standard penalties for convicted felonious killers.

The jury gave a comparatively lengthy account to explain why this was not an appropriate case for capital punishment – Robert was a lunatic. More specifically, they explained, he enjoyed lucid intervals, but, for twenty years and more, he had become ‘furious’ at the start of a new moon. Over this long period, his family and friends had worked out a way to cope, and regularly confined him. On the fateful date of 3rd December (1314), at the beginning of a new moon, Robert was in Thomas’s custody. Somehow, he got hold of Thomas’s knife and stabbed him in the hand. Thomas (understandably) cried out. The noise brought William to his aid, and there was an attempt to restrain Thomas. This failed, however, and Thomas stabbed William in the breast and Thomas in the testicles. You know the outcome – both Thomas and William died. The jury, however, saw the fact that, at the relevant time, Robert was detained by fury, as exculpating him (though he was sent back to prison to await a royal decision – I am yet to find a pardon, but it would seem unlikely that this would not have been forthcoming).

There is much that is interesting here. We see the extension of a merciful/ understanding attitude to very serious offences against more than one person, committed by the defendant. I was also struck by the lengthy provision of care – or at least containment – of this man by those in his community, and also by what the record reveals about contemporary understanding of the causes of ‘lunacy’ and ‘fury’. There may be something to probe in terms of just which part of the lunar cycle was thought to be the problem – other cases mention waxing, whereas this pinpoints the new moon – I have to confess I am not quite sure whether those would have been understood to be different things, or how long such a condition would be expected to last. I will, I hope, at some point, get round to checking (there must be a way to do this!) what the state of the moon actually was on the date given. I assume that Robert’s friends and neighbours would have had to be more than usually conscious of the moon’s phases, so my guess is that this the assessment here is probably accurate.

One other tiny snippet is less to do with ‘lunacy’ and more to do with lay (in the sense of non-lawyer) understanding of ‘criminal law’: I note that the jury refer to the killings as ‘felonies’ even though are also saying that Robert was not really culpable. Is that a little sign of an instinct to focus on damage rather than the guilt or innocence of the mind? Many fascinating puzzles – I am sure I will be coming back to this.

GS

9/7/2021

Photo by Sanni Sahil on Unsplash

Minor discrepancies: crime, confession and capital punishment in medieval Cambridgeshire

This one is on a new topic for this blog, I think – ideas about minority in relation to medieval ‘criminal’ law and procedure.

It’s from a gaol delivery roll for a session in Cambridge castle, on Wednesday 24th September 1354,[i] and it tells us that John le Northerne had been arrested at the suit of Margaret, widow of John Andreu of Little Wilbraham. She accused him of  having, on Monday 9th December 1353, at Little Wilbraham, feloniously robbed her of money and a variety of valuable (yet conveniently portable) goods. Margaret appealed John of this felony, before a coroner. Later, John confessed before the same coroner, that he had in fact committed this felonious theft, and the coroner recorded this confession. The entry notes, however, that, at the gaol delivery session, the court saw that John was clearly under age, so that his confession was of no effect at law. Did that end matters? No, it did not. John was then asked how he pleaded to the appeal of Margaret, and he pleaded not guilty. The jury on which he put himself said that he was guilty, and so it was ordered that he be hanged. Margaret was to have her chattels back, and John’s other chattels, valued at 6d, were forfeit.

 

So what?

In terms of fixing of the boundary between minority and majority, we might want to note that the judges of gaol delivery thought that John was manifestly under age, whilst the coroner had not seen a problem. This might of course mean that the coroner was dodgy in some way, or else ignorant of a rule known to others, but it seems most likely that there was not a settled rule on the matter. In a world in which there could be doubt as to somebody’s chronological age, perhaps definite ‘cliff edges’ would not make sense.

In my view, the main point of interest is what feels like an inconsistency between, on the one hand saying that, however old John was thought to be, that was too young to confess to the theft, and yet old enough to stand trial and face execution by hanging. What am I missing, and why the difference? Should I be seeing an idea that confession of an offence requires a higher level of maturity and capacity than that required for the assignment of responsibility, and prescription of punishment, for felony? And if that is the case, where does that leave us with ideas about intention and culpability for these purposes? What differences might there have been between the sort of intent, and capacity, required before a homicide would be regarded as felonious, and that required in relation to a theft offence? (I note that there are other instances of people found to have confessed and abjured at too young an age for it to count – see, e.g. JUST 3/141A m. 18d (AALT IMG 143), though there the consequence of a court finding that the young man in question must have been too young to abjure was that he was acquitted).

Whatever might be the theory of the thing, John did not seem to be in line for mercy – there is no suggestion by the jury of a lack of felony,  nor of awaiting royal mercy and a pardon (and no later intervention and pardon on the Patent Roll, as far as I can see). I think we have to assume, then, that this young offender did go to the gallows as a result of the decisions made at the gaol delivery. Allow me an anachronistic “Grim!”.

GS

24/4/2021.

 

 

 

 

[i] JUST 3/139 m. 12d (AALT IMG 100).

 

The grim tale of a Lincolnshire tailor: sin and crime in a medieval gaol delivery roll

Well, this one’s very nasty (be warned – violence, and abusive sexual behaviour), but also interesting from a legal history point of view, so worthy of a quick note.

It’s in the gaol delivery roll for a session at Lincoln castle on 1st August, 1392, which contains a series of allegations against Robert de Spalding, tailor, living in Horbling.[i] Sadly, the roll has a big chunk missing from the right hand side, but there is still enough to reconstruct the charges.

In July 1391, Robert had been arrested for homicide, in relation to a newborn (and unbaptised) child, in a house in Horbling. That in itself is pretty horrible, but there was more. The entry notes that Robert had two (apparently living) wives, the first somewhere in Holland (Lincs, not Netherlands) and the second at Folkingham (also Lincs), but even so, on a Sunday in November 1390, he had taken his biological daughter Agnes, shut all of the windows and doors and raped her [the entry on the roll mentions force and the fact that this was conttrary to Agnes’s will]. It goes on to say that he  continued in this sin [it’s definitely singular] with the result that Agnes became pregnant. When the time came for the baby to be born, on Wednesday 28th June, 1391, in a house at Horbling, Robert shut all the windows and doors again, and drew his knife on the prostrate Agnes, swearing by the body of Christ that if she made any noise, he would kill her (so that nobody would learn of his misconduct). In this way, Agnes gave birth to the ‘creature’ which on that day, Robert killed and buried at the same house.

Robert was found ‘guilty of the felonies’ with which he was charged, and was hanged.

Points of interest

It often seems to me that the most surprising and interesting material comes out of situations like this, when we are dealing with a bit of ‘freestyling’ on the part of those who drew up the accusations. There is a fair bit here which goes beyond what was legally necessary – if we strip it all down, all that was needed for a capital trial in this case was the allegation that Robert had killed the baby, or a charge that he had raped Agnes (though, if you’ve spent any time with medieval records, you’ll know that that does not tend to end with a conviction). The rest of it – the two wives, the incest, the swearing and the threats – was not really needed. For some reason, though, those drawing up the indictment, and the clerk recording the session, decided to give us the whole story, granting us unusual access to the thoughts of medieval laymen. We see disapproval of bigamy and incest – and despite the fact that there seems to have been continuing sexual activity, only Robert, and not Agnes, is blamed for it (I don’t think that would have been the case in non-incest situations, and it is rather at odds with other statements in common law sources in which pregnancy was said to be impossible without the woman’s consent/pleasure).

Although the bigamy and incest were not strictly the felonies which ended up ending Robert, it is interesting that they were brought up. Each year, rather glibly perhaps, in the part of the Legal History unit dealing with sexual offences, I tell my students that bigamy and incest weren’t within the scope of the medieval common law: they were left to the church. It looks as if medieval people did not always make that neat jurisdictional distinction. Certainly something to think about.

From a human point of view, I do hope that things improved for Agnes after this – but rather fear that she would have been left in a poor position. She did not even get Robert’s property, for his chattels (1 mark) were forfeit, as was usual after a felony conviction.

GS

11/4/2021

 

Picture: Lincoln Castle, Lincoln © Dave Hitchborne cc-by-sa/2.0 :: Geograph Britain and Ireland

[i] JUST 3/177 m. 83 (AALT IMG 179) which you can see at AALT Page (uh.edu)

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

Categories of incapacity in medieval common law: the ‘fatuous’ Warwickshire killer

As small footnotes to the work of others on medieval law and mental capacity, I have noted a few interesting cases of medieval individuals being excused or pardoned their felonies by reason of their insanity – most recently focusing on a couple of cases of ‘lunacy’ which were expressly linked to the waxing and waning of the moon. Here is another case which goes a little outside the usual categories and vocabulary of lunacy, idiocy, fury and frenzy, which came up in a Plea Roll search today.

The King’s Bench plea roll for Easter term 1334 incorporates, in its Rex section, the gaol delivery pleas from the session in Warwick. One of the Warwickshire cases,[i] from the hundred of Kington has in the margin beside it not one of the usual process notes – acquitted, hanged, sent to prison etc. – but the big, bold, word ’fatuus’. The entry states that Richard Kyng of Herberbury (Harbury?) chapman, was arrested for killing Robert Deyvilla at Moreton (Daubney) at some point earlier in 1334. He had been indicted for felony before the coroner. He was brought into court by the sheriff and asked how he wished to plead, he answered ‘fatuously’, his speech and actions showing diversa signa fatua. Enquiries were made, so the entry tells us, as to whether the accused had been ‘fatuous’ at the time of the killing, and before, subsequently and now, whether he was feigning this in order to excuse himself from a finding of felony, whether he might get better (‘fury’ is mentioned here). The jury responded that Richard had become ‘fatuous’ two years before the killing, he was ‘fatuous’ at the time of the killing, and still was, and had been consistently ‘fatuous’ for the whole period, and his apparent ‘fatuous’ state was neither feigned nor the result of some other infirmity. Richard therefore went ‘without day’ (i.e. he was not found a felon). His relations were told to look after him (that tricky word custodia is used here, with all of its potential for confinement as well as care) with dark hints that it would not go well for them if his custody was neglected (so that he caused further danger).

Points of interest

Well, it is no surprise that a medieval court would not regard as a felon one who was not mentally capable, nor, really, that he would be entrusted to the care (or ‘care’?) of his relatives, but it is interesting to see some of the vocabulary and ideas here.

I have mentioned that ‘fatuus’ is not common. What did it mean? It is almost impossible to equate with modern ideas – either legal or medical – in this area. I was proceeding on the basis that it was a similar idea to ‘idiocy’ (very roughly, learning disabilities) rather than lunacy/fury/frenzy (which seem to indicate violent, flaring, conditions), but then there was use of ‘fury’ as well, and the fact that the jury said that the ‘fatuity’ had come on at a particular time, rather than having been present throughout life, as one would perhaps expect with ‘idiocy’. The lack of information in the entry about the homicide itself makes it more difficult to get an idea of how Richard was being perceived. So, for the moment, big question mark, and a slight suspicion that these words and ideas were not as neatly separated as I would like to make them. Instructive in itself, I suppose.

I was also interested to note the questioning as to whether the condition might be feigned, in order to avoid a finding of felony, and the awful consequences of that. There is a parallel here with questions which were asked about people who said nothing at all, when they were asked to respond to a charge of felony. Jurors would be asked whether this was because they were unable to speak, or whether they were perfectly able to speak, but were keeping silent in an effort not to allow the case to proceed to a conviction (‘standing mute of malice’, in later parlance). In both cases, juries were considered able to weigh up the reality of the apparent affliction. To a certain extent, this can be explained in terms of the jurors’ identity as some sort of neighbour-witnesses (yes, I know there is a debate about that, but they were at least able to bring in outside knowledge) in that they would be likely to be aware if the accused had suddenly and suspiciously become mentally incapable, or unable to speak. Another way of looking at it is that mental incapacity was considered something fairly ordinary and apparent to one’s community.

So – another little puzzle-piece in to add to the heap. Off went Richard to the tender care of his relatives, and the court went on to the next case.

GS

9/10/2021

 

 

 

[i] KB 27/296 m. 13d (AALT IMG 331)

Stabbing stories: a Lincolnshire brawl

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

See the source image

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

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

Both men put themselves on the jury.

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

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

 

And this is interesting because ….?

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

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

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

 

GS

21/12/2020

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

Private compensation and fear of castration in medieval Nottinghamshire

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

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

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

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

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

 

So What?

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

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

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

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

GS

20/12/2020

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