Tag Archives: medieval women

‘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).

St Dwynwen's Church, ruined. If you know, you know.

The embraces of the past

(I am not sure that this one is ever going to see the light of day as a proper REF-able ‘output’, but I enjoyed writing something on aspects of the common law’s treatment of married women it for a conference on coverture in 2022, and I feel moved to put some of it ‘out there’, for anyone who feels inclined read it, so here we are: some marital musings)

‘Coverture’ is a word well known to legal historians: the explanation for many limitations placed upon married women, and sometimes something of an excuse to leave them out of consideration, and get on with telling the more agreeable story of rises, triumphs and men. Nevertheless, the last decade or so has seen some particularly keen excavation and questioning of the nature and place of ‘coverture’ in legal history. Building on that work, I have a few thoughts.

I am going to start in what might seem like fairly unpromising territory to anyone but the most obsessive medieval property law fan: pleading in relation to voucher to warranty. And if anyone needs a refresher on what voucher to warranty is, this is something which might happen in a land dispute: a defendant is calling on somebody to back him up, and say that he does actually have a claim to the land in question. Sometimes that backer-up, the ‘vouchee’, does not want to take on this potentially onerous responsibility, and might ‘counterplead’ (i.e. argue that he should not have to) and so there would be a trial within a trial, to sort out that matter.

We can see an example of this counterplea to voucher to warranty in a land case from Herefordshire from 1292 – a mort d’ancestor case, in which one party (Ralph de Toni) claims that he should have [seisin of] some land, currently held by Roger son of Richard de Hereford, because it was held by his (Ralph’s) aunt Margery at her death, and he is next in the conventional line of inheritance. Roger was not having it, and vouched to warranty Thomas, son and heir of William de St Omer. Why should Thomas have to warrant? Well, the story was that Roger’s father, Richard, had been granted the land by William de St Omer and Petronilla his wife, by a charter with a clause which said that William, Petronilla and their heirs would warrant Richard and his heirs – so they committed themselves and their heirs to supporting Richard and his heirs if the latter faced a legal challenge of this sort. Thomas did not want to warrant, though. He found fault with Roger’s pleading: pointing out that the charter was in the names of William and Petronilla, and though William was dead (and so was represented by Thomas), Petronilla was alive, and should also have been vouched, but had not been. Roger tried to say that it was fine to leave her out, and he had not made the sort of mistake which would mean his case could not succeed. His argument was that even though the charter was under names of both William and Petronilla, it only ‘had vigour’ under William’s name. Why? Because [and here comes the ‘coverture’ bit at last] Petronilla could not oblige herself by charter, as, at the relevant time, she fuit inter brachia Willelmi viri sui’ (was within the arms of William, her husband). It was found, however, that, in this case, the ‘‘in his arms so effaced and irrelevant’ argument did not win. At law this was a joint transfer, so both William’s representative and Petronilla should have been included. The immediate outcome was that this was a bad voucher and Thomas did not have to warrant Roger.[i]

There are other quite interesting aspects to this case, but let us focus on this idea, this formula, of a wife being ‘in her husband’s arms’, and unable to do things. It seems that this was not a complete ‘one-off’, nor a factual statement about Petronilla actually being within William’s arms at the key moment, but a juridical term: there was a similar usage in a French-language Year Book report, attributed to 1311, and to everyone’s favourite cantankerous early 14th C judge, Chief Justice Bereford. This was another voucher to warranty case, and, once again, a husband and wife had transferred some land to X, defendant in a land action, and X vouched only one party – here, the wife’s heir, the wife now being dead but the husband alive. It was argued – successfully – that both the husband and the wife’s heir should have been vouched, because the wife, who was, at the time, ‘enter ses bras’ could not make a transfer of land on her own.[ii] [Substantive point QI – both parties needed].

That is a lot of land law to get to [a fairly arcane legal point and] two little phrases. Why do I think these cases, and this ‘within his arms’ business, are interesting? Well, first of all, I think these examples show something of the contexts in which ‘coverture’ type questions could arise in medieval common law. These are hardly big, exciting cases dealing head-on with the patriarchy and the rights of women: the reports show us that these are instances of men arguing about land, looking for a technical mis-step in pleading or procedure. Nobody really cares about Petronilla in that 1292 case: she is a device. It seems important – telling – that ‘the coverture stuff’ quite often comes up on very small pleading points, not big ‘rightsy’ questions.

Secondly, there is the image itself: the wife in the husband’s arms. What does that specific image suggest, and how does it relate to existing scholarship on ‘coverture’? It seems to me to be very ambiguous: should we be seeing it as an embrace or a restraint? Should we be thinking vertically or horizontally? There are resonances with the formula in medieval ‘criminal’ law, in appeals (individual prosecutions) brought by a widow for the killing of her husband: until the later 14th century, she had to claim that he had died ‘in her arms’. The ‘in his arms’ formulation is a bit different to the better-known expressions relating to married people in medieval and later legal sources, with their ideas of unity or domination. ‘Within his arms’ seems to me to be more complex, and more obviously temporary. In my view, it reinforces the argument – made by others[iii] that the central idea of ‘coverture’, or the husband/wife relationship at common law was unsettled in the medieval period (though within male control, since the power in that embrace, to contain, or to release, was all with the man).

And does it matter, this argued-for unsettled nature of medieval ‘coverture’? Is this just some academic navel-gazing, disappearing up her own backside and furiously ‘nuancing’ things long gone? It does seem to me that it is important to keep making the point that some of the apparently monolithic, unchanging, institutions and ‘doctrines’ of the common law were not inevitable, nor did they descend, fully formed, without being adopted and adapted by individuals and groups with influence over the content of the law, who saw in them some advantage to themselves and their view of the way things should be. Throwing back the sometimes lazily-arranged covers, exposing the complexity the common law’s treatment of women, appears necessary, both to do what we can to understand the conditions (physical, legal, cultural) in which countless women lived their lives, and also to recognise the continuation into our own lives and times of some ways of talking about, thinking about, and behaving in, marriage and other domestic relationships.

And so, dearly beloved, will I continue on my obscure little way, going on about this women stuff, and possibly even using the word ‘patriarchy’ from time to time?

I will.

 

GS

30/9/2023

 

[i] JUST 1/303 m.21.

[ii]Seipp 1311.21

[iii] See, in particular, Married Women and the Law : Coverture in England and the Common Law World, edited by Tim Stretton and K. J Kesselring, McGill-Queen’s University Press, 2013 (editors’ very helpful introduction, and c. 2 (S.M. Butler).

Gender in word and deed

Law is, as we all know, a wordy thing. Its rules, pronouncements, rulings, are bound up with the words in which they are expressed. Working across the different languages of English and Welsh legal history involves engagement with some issues which are properly in the domain of the linguist, which should encourage caution, but at times they cannot be avoided. One of these issues is that of gender. The convention of linguistic gender is widespread. Perhaps it is often not particularly important, but when one is studying medieval women, it deserves attention.

The issue comes up in different ways. One is disputes about whether a masculine word should be taken to apply to women as well as men. In the unattractive phrase found in 19th and 20th C writings, does ‘the masculine embrace the feminine’? Thus the disagreements as to whether women should have been considered to be within the protections given to a liber homo in Magna Carta, and wrangles as to whether ‘heirs’ should be understood to ‘embrace’ ‘heiresses’[i]  Another way in which linguistic gender v. sex/gender in reality arises relates to the ‘feminisation’ (or not) of texts and provisions. I have been pondering this lately, in the context of pardons.There are two interesting, and contrasting, aspects of pardon formulae to mention here,[ii]  one relating to sorts of offence (specifically, rape), and the other to roles within the criminal justice system (specifically, approvers).

From at least the late fourteenth century, pardons which cover more than one specified offence commonly exclude from their ambit treason, homicide and the rape of women.  These offences are, one presumes, held up as too serious to be pardoned as a ‘job lot’ with any other transgressions an offender might have committed in a particular period. I have noted that ‘rape of women’ might still be included when the person receiving a partdon was a woman. This seems interesting because felonious rape was, at this point, and until very recent times, a ‘male on female’ offence. Women might be accessories, to felonious rape, or to ‘ravishment’, but not principals. Had the formula been devised with female offences in mind, it is hard to believe that it would have included this particular exclusion. I find it interesting, and telling in terms of the relationship between women and the law, that the formula was adopted, unchanged in this respect, when the ‘pardonee’ was a woman.

One gender-adjustment is made in these same pardons, again from at least the later fourteenth century.  In the original, ‘male’ version of the wording, mention is made of the possibility of the potential ‘pardonee’ acting as an approver – one who confesses an offence, but hopes to avoid execution by inculpating others, appealing them and obtaining a conviction.[iii] When the ‘pardonee’ is female, this word is feminised – so ‘probator’ becomes ‘probatrix’.[iv] Fair enough, according to the linguistic/legal rules of the day, one might think, since ‘misgendering’ might cause an indictment to be held insufficient. The odd thing is, though, that acting as an approver was a ‘men only’ thing. All the evidence suggests that, because approvers had to be able to engage in trials by battle, and because women were not thought capable of fighting such judicial duels, they were never approvers of this sort. Thus, the feminised word had no attachment to the reality of legal process. It is unanswerable, of course, but I do wonder what was going on in the minds of the clerks drawing up these pardons. Was it an automatic translation (the medieval in-language equivalent of Google translate?)? Is it evidence of a rather radical (even performative?) disinterest in women and the ways in which the law positioned them as different and unequal?  And does this have anything to say to existing scholarship on gender roles in the pardoning process (queens interceding, mercy as a bit on the effeminate side etc. etc.)? Gendered food for gendered thought.

GS

15/6/2021

[i] I have a bit of a go at these in c.1 of Women in the Medieval Common Law.

[ii] On later medieval pardons, see especially Helen Lacey, The Royal Pardon: Access to Mercy in Fourteenth-Century England. (Woodbridge, Rochester NY: Boydell & Brewer, 2009).

[iii] For a masculine version, see, e.g., this one.

[iv] See, e.g,, this one.

Picture – well, if you have to ask…, it’s a quite brilliant reference to Lynn Anderson’s Country and Western classic ‘(I beg Your pardon, I never promised you a) Rose Garden)’ – one of the great rhymes in popular song….

Photo by Max Berger on Unsplash

To Marry and to Burn: punishing domestic treachery in medieval England

(A version of this was posted on the Bristol Law School Blog on 24th May 2021.  I will continue to update this version, including adding to the ‘grand total’ mentioned in the sixth paragraph below, as I find new instances).

One of the less enthusiastic endorsements of marriage is to be found in the words of St Paul’s first letter to the Corinthians: ‘it is better to marry than to burn’. His point was that celibacy was the best way to live, but those too weak to resist the temptations of the flesh could take the second best option of monogamous marriage. Before the Protestant Reformation in England, there were those who followed what this passage portrayed as the higher path, dedicating themselves to a life of celibacy and the service of God in monasteries and convents, but for most people, the expectation was marriage. Marriage and fire were, however, not as distant, one from the other, as St Paul’s words would imply.

Marriage in medieval England was understood to be hierarchical, with the husband expected to control and correct the wife, and the wife to obey the husband. He was (again in words attributed to St Paul), ‘the head of the wife’.  No doubt, as a great deal of historical research over the past few decades has shown,  there were many variations in practice, with more and less amicable situations, more and less mutual respect.  Even so, the husband’s authority over the wife was a fundamental principle, with real consequences; and one of these was connected with fire.

We can see an example of this connection between marriage and fire in an entry on a medieval legal record from the late fourteenth century. This notes a case from Essex, dealt with by John Cavendish and others, sent to the county as royal justices, in 1378. An indicting  jury of twelve men had said that, when John Trilly junior was lying in bed one Saturday night, his wife, Margaret, and a certain  John Robat of Walden, killed him with an axe or hatchet. The suspects were arrested, brought to court, pleaded not guilty, and accepted jury trial. Unfortunately for them, the trial jury said that they were both guilty, as well as noting that, at the time of the killing, Margaret was John Trilly’s wife. It was ordered that John Robat should be hanged. Margaret, however, was to be burned.

From at least the first half of the fourteenth century, and probably from the thirteenth century, the accepted punishment for a wife who killed her husband was death by burning. This was an unusual mode of execution: most convicted felons (including husbands convicted of killing their wives) faced the rope rather than the fire. For those of us for whom capital punishment of any sort is entirely abhorrent, it may be difficult to feel particularly exercised about the use of one method of ending a life rather than another, so long ago. (We may, though. note the reference, in a document relating to the execution of Anne Boleyn, of the move from burning to decapitation as a matter of royal mercy, as some sort of indication that there was seen to be a difference, at least in the sixteenth century), and it is certainly the case that, for a legal historian, it is important to try to look into the flames, and see what can be learned from past law, past practice.

Why burn husband-killers? Three overlapping factors were relevant: sex/gender, marital status and nature of the offence. This was not, in fact, the only type of offence in which a woman might be burned while a man would face a different penalty. The same applied to counterfeiting offences, and to killings of one’s employer, and there are occasional, earlier, examples of women being burned for other felonies. The use of burning for husband-killers is, however, clearly connected with a wish to make a particular example of those who transgressed against the hierarchical understanding of marriage. For a wife to kill her husband was not simply homicide, but a form of rebellion against her natural superior. It was mentioned in the Statute of Treasons 1352, and from the fifteenth century onwards, it came to be called ‘petty treason’.

The burning of husband-killers has tended to be minimised in classical accounts of legal history, and is sometimes assumed to be associated with the Statute of Treasons. My research in this area has, however, highlighted both the longer, deeper association of husband-killing and fire, and also the greater number of examples of women consigned to the flames for this offence than had previously been suggested. While they were never numerous, there were certainly enough of them to confirm in the minds of lawyers and the population more generally, that this was the expected outcome, in the event of a conviction for husband-slaying. I have discussed the matter in a chapter of my recent book on women and common law in medieval England, and continue to collect examples of women sentenced to death by burning, from the vast corpus of medieval legal records which remain to us. The current total on my ‘spreadsheet of doom’, compiled from work on records of late medieval criminal sessions (13th-15th Cs, the majority being from the late 14th C and early 15th C), stands at 65 burnings ordered for women convicted of husband-killing. While it is not possible to elicit comprehensive, reliable, statistics from such searches, it may be of interest to note that this is considerably higher than the number of executions for rape which I have seen in the same records, though considerably lower than the number of executions for theft, for example. It is certainly high enough to be worthy of attention.

The idea that the offence was particularly heinous and should be punished in this spectacular and symbolic way was not something which was being imposed on communities by ‘the powers that be’: it was something much more pervasive. In some contrast to other areas of crime, in which jurors were willing to bend facts to let defendants avoid punishment, trial jurors, and those men in local communities in a position to initiate prosecutions by indictment or presentment, seem to have been keen to ensure that husband-killers would be burned. On occasion, we see them making it clear that a woman charged with homicide was married to the deceased at the time he was killed, though this might be obscured by the fact that she was now married to somebody else. This was done so that conviction would lead to burning, not hanging. There seems to have been no doubt in the minds of the leading men in medieval communities that it was right to mark out husband-killers in this way.

The fact that the penalty was used, and accepted as appropriate by men at different social levels, over a long period of time, would seem to make it likely to have exerted an influence on the minds and behaviour of married women. This is particularly so, if we add in other things which I have noted emerging from my archival work: accusations were sometimes made on what looks like a relatively slender basis, with rather quick leaps to an accusation that a woman whose husband was killed by somebody else was ‘in on it’, and even over-zealous prosecution when the husband was not, in fact dead at all. These findings do tend to suggest that the threat of fire as a judicial penalty, as well as an eternal punishment, is something which should receive further consideration in studies of medieval marriage and gender, as well as law.

As well as telling other people what they ought to think is worthy of investigation,  a post on a research blog  is a good place to include a little reflection on the process of conducting research. I began looking at this area as a result of being unconvinced by the accounts I had read in secondary sources, and suspicious that they were over-simplifying matters, in a way which played down the importance of the executions of women by burning. To understand what more there was to say, and how accounts might need to be adjusted, it has been necessary to trawl through a very large number of pages of medieval manuscript (in recent times, this has been via the magnificent Anglo American Legal Tradition collection of scanned images), looking for accusations of husband-killing, and orders that somebody should be burnt. Finding a needle amongst the fields of haystacks does sometimes feel like a bit of a ‘win’, each instance strengthening the emerging argument. Nevertheles, each time I come across one of the Latin abbreviations indicating that a burning has been ordered, in the margin of a roll, there is the realisation that it indicates a terrifying end to a real person, as human as the rest of us. I have come to recognise that that feeling, that discomfort, that connection, is itself important in an investigation of the people whose lives and deaths are noted in the rolls.

 

Here endeth the lesson.

GS

1st May, 2021.

(Photo by Zachary Kadolph on Unsplash)

Truth and (a sort of) reconciliation? Scenes from a medieval Suffolk marriage

A plea roll record of a land case from the end of the reign of Edward I gives an interesting view of medieval marriage (or one particular medieval marriage at least), gender and families of different types.

JUST 1/1323 m 77d sets out an assize case heard by Retford and Spigurnel, justices of assize in various southern counties of England, in summer 1303 (with updates until 1304). It concerned land in Suffolk, in Somersham and Nettlestead, and the question was whether Ralph Norreys and his associates had been within their rights to eject John Dunning from the land, or whether John had the better right to hold the land, so that their actions had been an unjust ‘disseisin’ (more or less ‘dispossession’).

Both men’s cases involved telling the story of dealings with the land in recent times, so as to establish their family connection and right to it. Part of this story was the tale of the marriage of Alan de Bosco and Agnes Norreys. Putting together the story they told and the facts found by the jurors, this is what happened … (and yes, usual warnings about not believing everything which appears in the record applies, but there is no obvious reason to doubt this) …

Alan was married to Agnes when he (at least) was below the age of majority (this was 14 for boys, and the jurors say, very precisely, that he was 13 years and 7 weeks old at the time). They lived together for a short period – quarter of a year – and then Alan suddenly left, going off to Cambridge for three years. While he was away, Agnes took service with Robert, parson of the church of ‘Flokton’ (Flixton?). Robert and Agnes had a child, William. Then Alan came back from Cambridge. As soon as she found that he was back in Suffolk, Agnes went to Alan’s house, with the infant William, but Alan would not let her in, and swore that William was not his son, since, so he said, he had never had sex with Agnes. Agnes then sent William back to Robert, who acknowledged him as his son. Afterwards, Agnes went straight back to Alan, who took her back in as his wife kindly (benigne) and in due course, they had a child, called Geoffrey.

The key issue for the land case was whether or not William was Alan’s son. To cut a long story short, Ralph traced his right through William while John traced his through Geoffrey. If William was not Alan’s son, Ralph would have no chance of success. Although that might seem an easy legal issue, if this story is the truth, or something like it, there were complications. The rules about legitimacy, and who was to be regarded as a man’s legitimate son, were not entirely biological. In a world which had no blood or DNA testing, a lot of reliance had to be placed on probability, reputation and presumption. The starting point was that, if a child was born during the course of a marriage, then that child was the legitimate child of the spouses (with associated property rights after the death of the parents). As the common lawyers charmlessly, and repeatedly, put it ‘Whoever bulls the cow, the calf is yours’ – meaning that, even if a wife had been impregnated by somebody else, the child would be presumed to be the husband’s legitimate issue. The presumption could be rebutted, however, if it was completely impossible for the husband to be the father – e.g. if he had been imprisoned abroad for years and came back to find a child. Thus careful questions were put to the jurors to ascertain whether Alan had come back from Cambridge during the three years, or whether Agnes might have gone to meet him somewhere. Apparently not. They were also asked about local opinion – who was reputed to be William’s father (answer: Robert and not Alan). Things would seem to have been going John’s way, on the whole, though clearly this was not as watertight an ‘impossibility’ case as the ‘husband abroad in prison’ scenario. But here the legal procedure ground to a halt, and all there is is a series of additional ‘court dates’ and an instruction to the judges to get on with it. It may be that there was some uncertainty as to whether John had managed to rebut the presumption of legitimacy. Leading common lawyers had been prepared to accept some fairly fanciful suggestions as to how an apparently distant husband might have managed to father a legitimate child, in a case from an earlier term in the same year (Seipp 1304.027rs; https://www.bu.edu/phpbin/lawyearbooks/display.php?id=1531 ) opining that he might have come to the county in which the wife lived, by night, without anyone knowing, so that John might not have been regarded as ‘home and dry’. I hope to track down more on this litigation, but it may take some time.

As interesting as the legal point, if not more so, is the ‘social’ material here. The early marriage is not particularly surprising, perhaps, nor the young husband’s departure (did he go to Cambridge University? I am put in mind of the folk song ‘The Trees They Do Grow High’ …) but what happened afterwards is less predictable. We cannot know anything about the willingness or otherwise of Agnes in relation to the sexual relationship with Robert the parson, but we can say (i) that it seems to have been well-known in the area; and (ii) that Robert was willing to acknowledge William as his son, and take him in. William would go on to have descendants of his own. The reconciliation of Agnes and Alan is fascinating: she was prepared to give up her child and he was prepared to take her back if she did so, despite the fact that all the neighbours knew him to be a ‘cuckold’. No pressure from the Church seems to have been involved. It seems to me that this story has interesting things to say about medieval men, women and communities, and the importance of engaging with initially off-putting and ‘dry’ sources like land law cases, if we want to learn all we can about medieval families and attitudes.

GS

28/1/2018

Medieval employment law: workplace sexual harassment in fourteenth-century Yorkshire

Years ago, I wrote my Ph.D. on economic regulation in medieval England, eventually turning it into my first book, Royal Regulation.  In both thesis and book, I decided to concentrate on sales and loans, and left out an obvious area of royal intervention in ‘the market’: regulation of wages and employment, especially under the Ordinance of Labourers 1349 and the Statute of Labourers 1351. This omission was due, in part to the vast body of evidence which would have had to be examined, in order to do a proper job of assessing the legislation and jurisprudence. There was also the fact that the area seemed to be well covered by works such as Bertha Haven Putnam’s still-splendid Enforcement of the Statutes of Labourers, and some of the ideas to be found in Palmer’s English Law in the Age of the Black Death. Working through medieval plea rolls these days, I frequently come across ‘Labourers’ cases, but, all too often, the dispute boils down to ‘You were my employee and you left before the contracted term was up’ v. ‘I was never your employee’ ‘Let’s go to proof’ ‘OK then’. and the roll says little more about the matter. Occasionally, however, there is a case in which we actually see a bit more, and learn a bit more about understanding and interpretation of the law in this area. That is certainly so with a case I turned up yesterday in the Common Pleas plea roll for Michaelmas term 1363.

Thomas de Queldale v. William de Ramkill and Elena de Hustwayt (1363) CP 40/416 m. 128d is a case brought by the former employer of Elena de Hustwayt against Elena and a chaplain, William de Ramkill. Thomas claimed that Elena was his servant, employed under a contract for one year, but left his employ before that time was up, without permission and without reasonable cause, and was thus guilty of an offence under the Ordinance of Labourers. William de Ramkill was accused of having committed another offence against the same legislation, by hiring Elena while she was under contract to another employer. Rather than the usual denial of having been employed by Thomas on the terms which he had stated, however, Elena argued that she had had reasonable cause to leave.

It was certainly possible to argue ‘reasonable cause’ on the basis of excessive beating or failure to provide for a servant, and Putnam’s book has examples of both. Elena’s objection, however, was different: Thomas, who was, she stated ‘a married man’, had often pestered her for sex. (The Latin of the text is ‘frequenter solicitavit ipsam ad cognoscend’ ipsam carnaliter contra voluntatem suam’ – which is rather intriguing in terms of ideas about gender, will and sexual consent, and I plan to consider it at greater length elsewhere). Thomas denied that she had left for this reason. It appears as though he is more concerned to question causation of her departure, rather than denying that there was such lecherous behaviour on his part, but this could be a result of common law pleading rules. In any case, he managed to convince a jury that she had left without cause, and that the pestering had not happened. So Elena’s defence failed, and she and William were held both to have damaged Thomas and also to have acted in contempt of the King (because of the breach of royal legislation). It is not very surprising that this was the outcome – juries, made up of local men of some property, were not at all inclined to find in favour of employees in these Labourers cases. It may, however, be rather unexpected – bearing in mind the general difficulty in securing any kind of redress for or recognition of sexual offences – to see pestering which apparently fell short of rape or attempted rape being acknowledged to be a possible ‘reasonable cause’ for a female servant to leave her position, which could absolve her from liability under the Ordinance and Statute of Labourers.  Unfortunately, there does not seem to be a Year Book report of this case, so there is no evidence of the sort of conversations which lawyers might have had about the acceptability of the plea. Nevertheless, it is another piece in the very complex puzzles of (a) the attitudes of medieval men towards medieval women and (b) the ‘position of medieval women’ (e.g. should we choose to play up Elena’s ‘agency’ or her claimed victimisation?), and I will certainly be looking out to see if I come across any other comparable cases.

Here is a free translation of the case:

William de Ramkill, chaplain, and Elena de Hustwayt, recently servant of Thomas de Queldale of York, cutler, are attached to respond both to the King and also to Thomas, in a plea of why, whereas the same King and his council, for the common utility of the King’s realm, ordained that if any servant of whatever status or condition, retained in anyone’s service, should leave the same service before the end of the contracted term, without reasonable cause, or permission, s/he should be punished with imprisonment, and that, under the same penalty, nobody should receive into their service or hire such a person, William retained Elena, who was in the service of Thomas, at York, and who had left the same service before the end of the contracted term, and without reasonable cause or permission, to go into the service of William, despite William having been asked to restore her to Thomas, in contempt of the King and to the great damage of Thomas, and contrary to the form of the Ordinance. And of a plea why Elena left the service of Thomas before the end of the term contracted between them, without reasonable cause and his licence, to the contempt of the lord King and the great damage of Thomas, and contrary to the form of the Ordinance etc. And, in connection with this, Thomas complains that whereas Elena, was retained at York on the eighth October, [1362], to serve Thomas from [11th November 1362] for the whole year following that, taking for her salary 12 shillings, and, before the end of the term, i.e. on [2nd June, 1363], without cause etc, left for the service of William, who took her on and retained her, in contempt of the lord King, and to the great damage of Thomas, and contrary to the form of the Ordinance etc.

And William and Elena come in person, and deny all force and wrong etc. And William says that he did not take in and retain Elena contrary to the form of the Ordinance etc., as is supposed above, and puts himself on the country as to this. Thomas does the same. And  Elena says that she accepts that she was retained to serve Thomas for the aforesaid term, but she says that Thomas is a married man and often tried to persuade her to let him have sex with her against her will (frequenter solicitavit ipsam ad cognoscend’ ipsam carnaliter contra voluntatem suam) so, for this [good] reason, Elena left the service of Thomas. And she asks for judgment as to whether Thomas can maintain this action against her, in this case etc. And Thomas says that Elena left his service before the end of the contracted term, going into the service of William as counted above etc., and that she did not leave his service for the reason she alleges above. And he asks that it be enquired of by the country. And Elena does the same. So the sheriff is ordered to cause 12 [men] … [On we go through the process – pledges for Wiliiam and Elena’s appearance, the case goes off to York, to be heard at Easter time,  … we get to the jury] And the jury found that William had taken in and retained Elena contrary to the form of the Ordinance, as supposed above, and that Elena left her service before the end of the contracted term, entering William’s service, without reasonable cause, and without the cause alleged by her, as Thomas complained above. And they assess Thomas’s damages caused by William’s admission and retention of Elena at 60s. Elena is amerced a mark for her [illegal] departure. Therefore it is decided that Thomas shall recover the aforesaid 60s damages against William, and 1 mark from Elena. [More process – we learn that William and Elena are to be arrested, and that William does pay Thomas the 60 s – in autumn 1369, via Thomas’s attorney, Robert de Acaster – and is acquitted. No word on Elena though.]

 

GS 27/05/2017

 

If you liked this, why not try:

B.H. Putnam, Enforcement of the Statutes of Labourers during the first decade after the Black Death, 1349-1359 (Columbia, 1908). https://archive.org/details/enforcementstat01putngoog

L.R. Poos, “The Social Context of Statute of Labourers Enforcement.” Law and History Review 1 (1983), 27-52.

R.C. Palmer, English Law in the Age of the Black Death, 1348-1381: A Transformation of Governance and Law (Chapel Hill, 1993).

G.C. Seabourne, Royal Regulation of Loans and Sales in Medieval England: Monkish Superstition and Civil Tyranny (Woodbridge, 2003).

For concern about sexual misbehaviour from the other side, i.e. attempts to ensure that young employees behaved appropriately, see Rh. Sandy, ‘The us of indentures to control apprentices’ behaviour in medieval England’, Gotffennol  5 (2017), 23-26.

 

 

A Liverpool Elopement

An issue I looked at in a couple of articles, and which remains of interest to me, is the use of allegations of elopement and adultery to oppose medieval widows’ attempts to claim dower (a life interest in an allotted proportion of land), following the death of their husbands. When a widow made a dower claim in a common law court, those holding the land could form an ‘exception’ to the widow’s claim based on c.34 of the Statute of Westminster II (1285), arguing that the widow’s action should not be allowed, because, during her former husband’s life, she had left him of her own free will, and had gone to live with the adulterer, and there had not been a freely agreed reconciliation between husband and wife before the husband’s death.

This area is important from both legal and social history points of view. Legally, it illustrates the difficulties lawyers saw in applying a statutory provision with a number of sub clauses (on leaving, staying away, and there not having been a voluntary reconciliation), within the rules of the game of common law pleading (with all the delights of general and special pleading, and such splendid vocabulary as traverses, demurrers, rejoinders and surrejoinders). This was not just a clever intellectual pastime, however: the conclusions which lawyers reached as to exactly what each side had to allege and prove could have a great impact on the chances of a widow obtaining the important resources of dower, to support herself in widowhood, or to bring to a new marriage. One issue which could have an important impact was that of the widow who had left not of her own free will – having been abducted or forced out. If she later lived with another man, did that mean that the c.34 exception could be used, or was it necessary, in order to succeed under c.34, for her opponent to be able to say both that she had left of her own free will and also that she had then lived in adultery?

Another possible argument about the correct use of c.34 was whether it was necessary to allege that the wife had left the husband with her adulterer (rather than just having left him, and then later on lived with ‘her adulterer’): the Latin of the chapter leaves both possibilities open. A Lancashire case which I have recently found in the Common Pleas plea roll for Hillary term 1363 Maria, formerly wife of Thomas Breke of Liverpool v. Robert de Sefton,  Margery his wife and another,  CP 40/413 m. 193, gives an example of use of the exception without suggesting that the wife left with ‘her adulterer’. A free translation follows:

 

“Lancashire

Maria, formerly wife of Thomas Breke of Liverpool, pleaded against Robert de Sefton and Margery his wife, for a third part of two messuages and six acres of land plus appurtenances in Liverpool, and against Hugh son of William le Clerk of Liverpool for a third part of two messuages and six acres of land plus appurtenances in the same vill, as her dower, from the endowment of her former husband, Thomas.

And Robert and Margery and Hugh, by John de Blakeburn, their attorney, said that the same Maria should not have dower in these tenements, because they said that, long before the said Thomas, former husband etc. died, the said Maria had eloigned herself from her husband, and lived with William de Maghell, chaplain, her adulterer, in adultery, in Liverpool in the same county, without ever being reconciled with her said husband, from whom she is claiming dower etc., and they are ready to prove this, and ask for judgment etc.

And Maria said that she should not be excluded from her action by virtue of this allegation, because, at the time of the death of the said Thomas, and long before, she was living with him, and reconciled without the coercion of Holy Church. And she prays that this be inquired of, and the said Robert, Margery and Hugh similarly. So the sheriff is ordered to make 12 [jurors] come etc., by whom etc., a month after Easter, to [swear to the truth] etc.”

 

Aside from its legal interest in terms of the elements of pleading, two further points are worth mentioning. First, it is noteworthy that the alleged ‘other man’ is a chaplain: a great deal of suspicion seems to have existed in relation to the sexual mores of chaplains, with their supposed celibacy and their privileged access to women, and this is not the only chaplain/adultery case in the c.34 jurisprudence (see, e.g., CP 40/192 m. 233d), Secondly, the idea that a woman might leave her husband to live with another man for a time, and then might be reconciled – whether or not true in this case, it must at least have seemed a plausible set of circumstances – raises some interesting queries with regard to medieval marriage and gender relations. As the statute itself suggested, it does seem that at least some medieval men might be prepared to forgive and take back their wives, and we see this being claimed here. Why might men do this? The statute suggests that some reconciliations were achieved through the Church’s coercion of the husband. The coercion of others – family, neighbours – would be another possibility. But it is also conceivable that at least some strands of medieval thought took a rather less ‘once lost, always lost’ (T. Hardy, Tess of the D’Urbervilles, c. XV!) view of chastity than would come to be the case in later eras.

GS 22/5/2017.

 

See on this area of medieval law:

P. Brand, ‘“Deserving” and “undeserving” wives: earning and forfeiting dower in medieval England’, Journal of Legal History, 22 (2001), 1-20.

G. Seabourne, ‘Copulative complexities: the exception of adultery in medieval dower actions’. in M. Dyson and D. Ibbetson (eds), Law and Legal Process: substantive law and legal process in English Legal History (Cambridge: CUP, 2013), 34-55.

G. Seabourne, ‘Coke, the statute, wives and lovers: routes to a harsher interpretation of the Statute of Westminster II c. 34 on dower and adultery’, Legal Studies 34 (2014), 123-42.