Tag Archives: medieval

Labour law and extremely small medieval Londoners

I have noted a few cases on labour/employment law over the years, but this is a new one for me, and a fairly secure Year Book-Plea Roll match[i] – names almost line up, though there are some changes of story …

Let’s go to the London area, in the 1350s, and observe what is clearly a fairly extreme shortage of workers …

The entry, labelled ‘Middlesex’, sets out the case against Robert Brewer de Holborn and Elena his wife, and Matilda daughter of Philip de Cornwaile, recently servant of Thomas Cheris, cutler. These three were sued on behalf of the king, and himself, by Thomas Cheris, on a writ founded on the recent labour legislation (Statute of Labourers (1349), 23 Edw. 3, ch. 2). Robert and Elena had allegedly admitted Matilda into their service before her term of service with Thomas was up, and Matilda had left Thomas’s service before the end of her term, without licence or reasonable cause. Both offences were ‘in contempt of the king’, to the damage of Thomas, and contrary to the legislation.

Thomas’s contention was that Matilda had been in his service, in St Stephen’s parish, Coleman Street ward, London, under a contract which ran from 21st June, 1349 for the next seven years, but left before the end of that term. without licence, on 5th October, 1354, and was taken on by Robert and Elena in the St Andrew’s parish, Holborn, Farringdon ward, and retained, (in contempt of the king,  to the damage of Thomas – to the tune of 20 l., according to Thomas – and against the form of the ordinance.

Robert and Elena’s answer to this, as far as the plea roll was concerned, was that they had done nothing wrong, since Matilda was too young to have made a binding contract to the effect alleged by Thomas. Having examined Matilda in court and inspected her body, the court decided that she was within age, and could only have been about three years old when Thomas said she was initially retained, so that she could not then have contracted with anyone, or entered into a covenant. As far as the case against Matilda was concerned, Thomas lost – he would take nothing and was in mercy for a false claim. We might think that the case against Robert and Elena would have to fall too, given the problem with Matilda’s ‘covenant’ with Thomas, but not so: that case went on, and Robert and Elena, in the end, put themselves on a jury on the issue of whether or not Matilda was retained by Thomas as he stated in his writ. [Here, the entry ends].

The Year Book tells a broadly similar tale. One character is called William Brewer of Holborn, rather than Robert, and he is bringing, rather than defending the suit, and Matilda is said to be the defendants’ daughter rather than the daughter of somebody else entirely (though possibly that relationship is forgotten later on in the report – it certainly seems odd that it is not used in argument) but still, I think this is the one.

The YB story is that a  writ on the Statute of Labourers is brought against ‘a man and his wife’ (Ds) and their daughter, ‘M’. M had allegedly covenanted to serve P for seven years, but left without reasonable cause, before the end of her term. The Ds had then retained her, contrary to the statute. As with the plea roll version, there was an inspection of the girl, and it was decided that she was too young to have made a binding contract as alleged, so that part of the case failed, but the case against the Ds continued. Year Books being Year Books, we get more of an account of the sparring before the eventual issue was reached, and it is pretty interesting.

There was, apparently, some argument about the interpretation of the Statute of Labourers: the Ds’ counsel  argued that the statute concerned covenants for usual terms, i.e. one year, not seven. Essentially, the point was that it was incorrect to build a case on the statute here. Expanding upon this, it was argued that, if this was allowed, a writ on the statute could be used for a covenant for a lifetime of service, or for a thousand years – which was clearly regarded as ridiculous.

Counsel for the Ds also, we are told, had a go at making  something of a coverture point – the writ was against both H and W, but a feme covert could not employ anyone, as ‘all would be said to be the act of the husband’, and, clearly, it would be wrong for the wife to end up in prison for her husband’s act – so using the statute, which did prescribe imprisonment for this offence, would certainly be inappropriate. Willoughby JCP was not entirely in agreement with the coverture argument, and made quite an interesting intervention, to the effect that ‘common understanding’ was that, if somebody was retained in the service of one spouse, s/he was regarded as being in the service of the other too. (So, coverture fans, I suppose that indicates more of a unity approach to coverture than a domination approach – or, indeed, just something a bit more practical and a bit less in thrall to any particular theory; something which showed an understanding of employment in small scale ‘family business’ situations).

The YB has a little more on the question of M[atilda]’s age. It was a serjeant, Finchden, who showed her to the court, asking them to observe that she was nine, and so could not bind herself contractually. The court, we are told, both ‘saw’ and ‘examined’ her (luy vist & examina – let’s hope that this was nothing traumatic, eh?), and agreed that she was nine, so not bound by a covenant. They also made the faultlessly logical comment that she would have been younger when the covenant was actually made (‘a long time past’).

That sorted out the case against Matilda, but, agreeing with the plea roll, it didn’t mean that the Ds were off the hook. Argument clustered around (i) whether M could be regarded as having been in P’s service, despite not having been working there on the basis of a binding covenant, and (ii) whether or not there was a difference between removing M from P’s service and retaining her after she had left P’s service. Both pleading and statutory interpretation aspects of those questions came into play. Sensing that the court was not on their side, the Ds were scared off these legal issues, and just went to more general pleading,[ii] though there is a slight difference here from the ending of the plea roll entry. That had made the issue for the jury one of denying that Ds had retained M. Here, it is whether or not Matilda was retained by Thomas as he stated in his writ. This does seem to me quite an important difference, but I suppose that it indicates that the YB report writer had lost interest once the thing seemed to take this more factual turn, and so was not really bothered about what it was exactly that the jury was to decide. What he cared about was the cut and thrust of discussion in court, rather than the lives of little people outside the ‘Westminster (Hall) bubble.’

So what?

Well, there is all sorts here – pleading and statutory interpretation for those of a technical persuasion, employment practices and the treatment of children for those with more soc. and ec. hist. interests, and some chat about coverture for gender hist. types. I am struck, as ever, by the differences between PR and YB – it really does seem, sometimes, as if there is immediate and deliberate distancing of the material put into reports from the actual case involved. Perhaps needs a warning at the start like TV shows loosely based on true historical events.  (And no, let’s definitely not get into ‘what is truth?’ … )

 

GS

18/4/2022.

 

[i] YB Pasch. 29 Edw. III f. 27 p. 29;  Seipp 1355.085  = CP 40/381 m. 59d or a hat will be consumed … The YB account here is, of course, founded upon David Seipp’s work.

[ii] The YB report is interested, too, in the technical pleading point that this had moved from a purely legal argument to an issue of fact.

Image – site of St Stephen’s, Coleman Street … not very atmospheric, or suggestive of medieval labour law, I admit.

The charms of Cambridgeshire? An indictment for ignoble quackery

Here’s an interesting little story which caught my attention this morning …

It comes from the record of a gaol delivery at Cambridge castle, on Monday 25th February,1387, and the narrative emerges from an indictment before justices of the peace. The story was that a certain John de Toft had, on Thursday 26th April, 1386, come to Elsworth (apparently a ‘small and lovely south Cambridgeshire village’) to the house of a man called John Cowhird. John Cowhird was probably not able to hird any cows at that point, as, we are told, he was very ill (maxima infirmitate detentus fuit). John Toft allegedly said that he could and would cure John Cowhird of this illness. What was more, he would do this ‘for the love of god and for charity’. A good deal, so John Cowhird probably thought … all he had to do was let John Toft borrow two golden nobles (coins as opposed to those with inherited titles, you understand …). These were not for John Toft’s personal use – perish the thought – but to make a charm. He said that he had enclosed the two nobles in a sheet of lead, and made a charm which he hung around John Cowhird’s neck. In reality, it was said, John Toft had taken the nobles.

The jury found him not guilty, so matters end abruptly, and we hear no more of poor John Cowhird and his malady (nor of how it was that a ‘cowhird’ – if, indeed that was JC’s actual job – had gold coins lying about the place). Did John Toft ‘get away with it’ and live to cheat another day? As ever, we can’t know.

We legal historians are used to such frustrations, and have to be fairly ‘glass half full’ types in research, taking what we can from the provoking records left so us. In that spirit, here are a few quick observations:

  • On offences: this seems a rather interesting example of indictment for an offence of dishonesty beyond the usual mundane robberies and breakings and entries which are ten a (stolen) penny in these rolls. It is not dressed up as felony, despite the fact that two golden nobles would undoubtedly take it over the line into capital punishment territory: worth considering what that says about the contours of the various theft/fraud-adjacent offences in medieval common law.
  • On ‘medicine’: well, there is a lot going on here! We don’t find out what poor old John Cowhird’s illness was, but we do see something about beliefs and practices relating to medicine at a fairly low social level. It is not hugely surprising that it was thought plausible for serious illness to be cured by charms and masses, or the intervention of an individual who is not described as having any sort of ‘professional’ qualification. The complaint here is not that JC was tricked by a clearly fraudulent promise, it is that JT did not create the charm in the way he promised, and in fact made off with the nobles. It would seem to have been seen as a plausible method of securing a cure, to hide away some valuable for a period of time. This sort of trick has come up in another 14th C magic/fraudulent practice case I spotted a while ago – and clearly this sort of ruse depended on people accepting the idea of a ‘hide something valuable’ route to a (miraculously!) positive outcome. From an amateur psychological point of view, that seems fascinating – in the context of this case, it tells us something about medieval ideas relating to ill health and recovery from it, doesn’t it? It seems to me as if the idea is that the supposedly temporary renunciation of contact with one’s valuable chattels  is thought to have some influence over the course which the illness will take. Is this because it is a sacrifice/offering, or a demonstration of faith, both, neither? It also, perhaps, says something about medieval people’s attitude to their personal property: if being separated from it for a period, being unable to touch or see it,  was a significant sacrifice, then doesn’t that tell us that they felt a very strong link to it? One of the things in legal history about which I often wonder is whether we underestimate the intimacy of the loss felt by those of past societies whose personal property was stolen: it is easy to read back the strict distinction now felt between offences against the person and against property, but is that accurate, when we travel back to earlier periods? I do wonder about this for various reasons. This case may well demonstrate a blurring of the border which modern lawyers and others would see between bodily harm and harm to property: somebody like John Cowhird might well accept that his  physical wellbeing was linked to chattels, and, of course, there is a sense in which bodily survival and thriving is linked to the chattels which can be traded for food and shelter, even leaving aside the whole question of charms, magic and religion.

 

GS

25/3/2022

 

Image: more relevant than my usual efforts, isn’t it? It’s your actual noble, from the time of Richard II, courtesy of Wikimedia Commons.

Approvers, abjuration, accessories and adultery allegations: a Lincolnshire petty treason saga

 

I had left off from the petty treason work for a bit, and was looking for mayhem stuff today, but somehow petty treason doesn’t seem keen to leave me alone – and this one caught my attention, in the Easter 1377 E KB plea roll: a Lincolnshire case involving an approver (i.e. somebody telling tales in an attempt to save his own skin) and an accusation of husband-killing, with a dash of adultery…

The roll notes that Peter de Walworth of Winterton became an approver before the king’s coroners,[i] and acknowledged that, on Thursday 30th January, 1370, he had feloniously killed Geoffrey de Stokes at Winterton, and appealed Robert de Nafferton, vicar of the church of Winterton, and Thomas, Robert’s servant, of being accessories, and also appealed Katherine, Geoffrey’s wife, of having consented to the killing, and abetted it.

Before another coroner, it was presented that Robert de Nafferton, and Peter, here said to have been his servant, had confined Geoffrey in the vicarage, in relation to a loan of money, and, on the aforesaid Thursday, murdered Geoffrey (it uses this word) with a hatchet to the head, and then buried the body in the vicarage pig-sty, to hide the murder.  This presentment also apparently accused Katherine of consent and help.

The matter now came before KB, but it was said that Katherine had already been acquitted before GD Fri 28th February 1371 (and furthermore that she was ill now).  A search was made, and the relevant GD entry found, which showed that a jury had indeed acquitted her.

This entry put the narrative of the offence in similar terms, though there are some nice touches, such as the phrase on intention/malice aforethought, an area of much debate in modern scholarship, which is ‘ex malicia longo tempore pr[a]ecogitata’, and a bit of scandal-mongering, or mud-slinging, accusing Katherine of adultery with Robert the vicar.

The coroner’s rolls were also examined, and these showed that Robert de Nafferton, alleged naughty vicar, had abjured the realm for this offence. Here and here are records of this abjuration – he was sent off to go to foreign parts via the port of (Kingston upon) Hull. Katherine had been charged and found not guilty. This can be confirmed by cross-referencing the gaol delivery roll entry here.  She was now acquitted (again).

So what?

Well, briefly, there is an interesting narrative, with resort to an adultery story to tie in the woman. It is also interesting procedurally and socially, in terms of the long exposure of Katherine to the risk of being found to have killed her husband: if nothing else, it should show the extent of the impact of the law of petty treason on individual women – the apparent inability of the system to put an end to potential liability meaning that a substantial number of years of Katherine’s life are likely to have been affected. Pretty terrifying.

 GS

12/3/2022

[i] On Peter’s wider career as an approver, see this GD entry.

Oral mayhem and legal memory: interim thoughts on non-fatal injury

One of the areas which I am investigating this year is the appeal of mayhem, a particular form of ‘criminal’ procedure in English common law, from the medieval period (13th C) to the early 19th C, dealing with non-fatal physical injury. I gave a bit of an introduction to the project in this post. I am still working away at this, and this post is part of the process of making sense of some of the points which are emerging.

Some of the biggest ‘headlines’ so far are:

  1. The appeal of mayhem emerges in what looks like a rather messy and fitful way, in the 13th C, from a combination of pre-existing ideas about compensation for non-fatal injury and an excuse made by men who were at risk of having to engage in trial by battle, but who were not in a fit state to fight in this way.
  2. Certain sorts of injury were regularly noted as ‘counting’. These included fairly obviously hampering ones – loss of hands, arms, legs … but also (some) teeth and testicles … apparently directly linked to fighting ability.[i]
  3. The roots in fighting struck deep in the legal imagination, with accounts in ‘textbooks’ and judgments regularly featuring a nod to reduction in ability to fight as the thing defining the sorts of injuries covered by mayhem. This was the case down to the 20th C, in criminal cases which purported to summarise the old law. (It was, however, soon forgotten that we were talking about a particular sort of fighting, and this came to be expanded to a ‘defence of the realm’ idea, from the early modern period).[ii]
  4. Despite this persistent link with fighting in accounts of mayhem, plea rolls and law reports tell a different story. Women (who did not have to/ could not fight trials by battle) are occasionally to be seen bringing appeals of mayhem, either alone, or in conjunction with a husband, for injuries to themselves, and there does not seem to be any objection to this.

Adding to point 4, there are some cases from the 14th C which do two interesting things:[iii] They show that it was thought possible to base an appeal upon injuries which could not really be presented as having a link to fighting of any sort, and they were sometimes explicitly linked to some other functional damage. This post will introduce this group of cases: the ‘oral mayhems’.

The wrong sort of injury?

I should say straight off that some oral injuries were included in the standard lists of mayhems in treatises – Bracton, Fleta etc. did say that (some) teeth (i.e. the bitey ones as opposed to the grindy ones) were covered. They definitely did not include tongues, however. This makes a degree of sense in the fighting context: hard to see how a tongue would be particularly useful in combat (except in so far as it enabled the fighter to engage in provocative and destabilising insults, or to ‘cry craven’). Even so, there are 14th C cases involving tongues, including an appeal of mayhem which forms part of the mass of litigation surrounding the alleged attack on Agnes de Haldenby in the reign of Edward II.[iv]

Perhaps this was (or became?) controversial – certainly, there was a piece of legislation from the early 15th C which made intentional/malicious tongue-removal a statutory offence (with ‘the pains of felony’).[v] Nevertheless, it rather muddies that nice, clear, fighting-related list of injuries acceptable as foundations for an appeal of mayhem.

 

The wrong sort of justification?

I have found a couple of cases so far (both from the 1340s) which move us even further from the mayhem/fighting nexus. These involve men being bashed in the face, and suffering injuries to their teeth and mouths. Rather than attempting to present them as ‘loss of fighting teeth’ scenarios (the wrong teeth, perhaps?) they both reinforce the claim that the injury damaged the claimant by stating that it has impaired his ability to eat and to communicate.

For example, a set of entries relating to a Northamptonshire incident show that John Hunt of Stoke brought an appeal of mayhem against William de Duncote, alleging that William, on 22nd August, 1345, in the fields of Duncote, with a pikestaff. feloniously hit him in the mouth, knocking three front teeth out of his lower jaw  so that he lost much of his ability to chew, eat and talk.[vi] This was, arguably at least, ‘the right sort of injury’ – no doubt one could explore whether or not lower incisors counted, as well as upper ones, but let’s not – but the explanation was not in accordance with an idea of loss or reduction of fighting ability (except in so far as a person who can’t eat very well, or talk very well, will probably be undernourished and may be isolated and depressed – but that is all a bit indirect). I think we are seeing a wider conception of mayhem here – one which, if we extended it into the ‘public’ sphere, would end up looking rather more like a ‘burden on society’ type of damage  as opposed to the ‘loss of a defender of the realm’ line which has been picked up in modern commentary.

The other example so far found is in very similar terms,[vii] suggesting that this claim of impairment of communication and eating was ‘a thing’ in contemporary mayhem. It really does take us some way away from the idea that fighting ability lay behind this category and procedure, as actually used.

 

So what?

Ah, the eternal question … Well, it does ‘trouble’ the existing encapsulations of mayhem which one encounters in criminal law cases (like R v Brown),[viii] and which trace their roots in early modern accounts which themselves took medieval treatise accounts, as opposed to what actually happened, as ‘the law’.[ix] This matters from a ‘purist’ point of view, and for understanding of medieval history, ensuring it is not misrepresented to make ourselves feel better and less brutal etc. It may also matter from a more instrumental/practical point of view. The way in which the slightly mythologised view of mayhem comes up in modern law discussions tends to be in the ‘back to front’  context of the possibility of exculpatory consent to objectively physically damaging practices such as S & M sex or permanent body alteration. These may use arguments based on old statements that one could consent to low-level injury, but not to mayhem. Leaving aside the fact that some of the injuries involved would not have qualified as mayhems even if the treatise accounts represented ‘the law’,[x] it is notable that the ‘fighting’ line is maintained very strongly. These medieval cases seem to me to show that mayhem was not all about damage to fighting prowess. Now, I am not especially in favour of dredging up historical concepts to support modern policy decisions, but, if you are going to throw them into the mix at all, you should probably avoid over-simplification and comforting othering and contempt of the brutalised past. There was clearly rather more to the medieval law and practice on mayhem than fighting. Or testicles.

GS

7/3/2022

 

Image – OK a bit tenuous: a pike rather than a pikestaff, as is featured in the John Hunt case. But it does have teeth … This is a photograph from the Freshwater and Marine Image Bank at the en:University of Washington. Details here.

 

[i] That’s a bit glib, I know – definitely need to think about the testicle issue some more. Can’t say it’s one of my areas of expertise.

[ii] Big parallel with Krista Kesselring’s excellent Making Murder Public (2019) to be drawn, I think.

[iii]… well, I think they are interesting, anyway … yes, undoubtedly should get out more …

[iv] SC 8/83/4109A; CPR 1317-21 p. 292 (etc.); KB 27/241 Rex m. 2 (etc.); KB 27/244 Rex m. 5d. For more on this, see my book, Women in the Medieval Common Law – yes, shameless.

[v] st. 5 Henry IV c. 5. Note that the tongue cutting itself is not called a mayhem here – it is seen as more of a thing done after a ‘real’ mayhem, presumably to stop the victim from speaking out about it.

[vi] KB 27/344 m. 18d  (AALT IMG 8893) This trundles on until Michaelmas 1346, when John Hunt was ‘done’ for a false appeal (NB this does not necessarily imply that there was anything wrong with his cause of action, and, had that been the case, it would be odd to find other, strikingly similar, allegations).

[vii] TNA KB 27/346 m. 38d (AALT IMG 9774)

[viii] R. v. Brown (Anthony) [1994] 1 A.C. 212, at 231, 262.

[ix] Yes, I want to make it Coke’s fault again …

[x] Without going into it in detail, the nettles, hot wax and fish-hooks in Brown would hardly work, would they?

Suspicion in Sussex: dower v. ‘petty treason’

Here is another case to add to the bit of my petty treason project which considers potentially instrumental use of allegations of husband-killing, as a way of clearing the widow out of the way of those whose interests would be reduced, if she was alive and able to claim her dower (or analogous interest) in the land he held. It is an early one, from the Curia Regis Roll of Easter term 13 Henry III (1229).[i]

Joscea, widow of Walter Josep sued Robert and Adam, sons of Walter Josep for land in Steyning, Sussex, as her dower. [In a primogeniture-based land system, one wonders why both sons had land, but who knows – perhaps one had alienated to the other in some form. Robert seems to be the elder son. The other thing to wonder about is whether Robert and Adam were Joscea’s sons or stepsons – it would be simpler if they were stepsons, and the way some of this is put might seem to suggest that, but, again, who knows!]. Anyway, so far, so predictable – dower disputes were very common in the 13th C. Happy families, eh?

The unusual thing about this dower dispute was the argument made for why Joscea should not have her dower. Given the topic I have trailed, it is probably obvious – Robert and Adam said that Joscea and her two brothers had killed (occiderunt)  Walter. To back this up, they said that Robert had appealed Joscea of this death in the county, and this had led to her arrest. This was a big claim, obviously, and there was a need to check it out. The sheriff was ordered to produce the record of this alleged appeal before the king’s justices at Westminster.  He did not do so, however, and Robert did not go ahead with his appeal. Was he ever serious about it, or was it just a way of hassling Joscea and disrupting her dower claim? If it was a ‘tactical appeal’, Robert and Adam might have thought that they were being clever, but the tactic backfired, because of the ‘rules of the game’ of medieval legal pleading. They had founded their case on the ‘she killed our dad’ plea, but to do that, they had effectively conceded that Joscea was Walter’s wife (something they could have challenged – this was a more common approach) and that the land in question was the right land for her dower. Once the appeal pleading fell apart, then, they had to lose, because they had conceded the things Joscea had to show, in order to get her dower. Joscea, therefore, got the rights in land which she claimed. Adam was taken into custody and Robert was in mercy for not prosecuting his appeal.

The allegation of husband-killing might still have caused Joscea some problems – the plea roll entry orders that it should be inquired into before the justices in eyre. I am not quite sure how to interpret this: was it the alleged killing which was to be investigated, or was it the bringing of the appeal?[ii] Something to think about and investigate before my summer paper on all of this.

One thing I do note is that there does not, at this point, seem to have been any difficulty with an heir bringing an appeal against his father’s wife, for (participation in) the killing of his father. Another one to throw at the puzzling issue of the relationship between the wife’s right to bring an appeal in relation to the death of her husband and the right of the heir to bring such an appeal, which I have written about in relation to later cases, e.g. here.

GS

1/2/2022

Image: St Andrew’s Church, Steyning.

[i] CRR vol 13: 1227-30 no. 2091; CRR 101 E 13 H III (1229) m 12.

 

Medieval petty treason: complexities of common lawyers’ own creation?

The species of ‘petty treason’ concerning women who were accused of killing their husbands is something which has interested me for some time, and I have included a number of notes on particular cases on this blog. At the moment, I am trying to think slightly more broadly, as I prepare a paper for a conference in 2022. The theme for the British Legal History Conference 2022 in Belfast is ‘Constitutional Change’, and it struck me as not too much of a stretch to do something on ‘petty treason’ there, because of the specific link which was made by the Statute of Treasons 1352 between acts against the King and his realm on the one side (which we might, slightly anachronistically, call ‘high treason’) and acts against smaller-scale ‘constitutions’, in the home, the workplace, the religious house (which come to be called ‘petty treason’, from the fifteenth century onwards). At the moment, I am working on two particular sub-issues in this area, which, though they may seem to be rather separate, do have a certain connection (to my mind at least) in that they involve complexities which are the product of choices made by common lawyers in their construction and positioning of women within the rules and procedures of the common law.

The first of these areas is that of understanding of ‘petty treason’ itself: was it ‘really’ a sort of treason, or a sort of homicide? That is not simply a problem of abstract classification, but something with potential practical effects, in terms of procedure and pleading. Looking at other systems, which did not take the slightly metaphorical route of extending treason (wholly or partially) to the ‘petty treason’ offences,[i] I do find myself questioning whether doing this may have been an unnecessary complication. What, really, was thought to be gained by partly assimilating the ‘non-regal/regnal’ offences to high treason? It was not necessary to do this, in order to punish offenders in a particularly distinctive way – since this was already happening well before the legislation. At least one of the categories (the religious one) does not seem to have been a real concern (I am yet to find any examples of charges based on it), and there do not seem to have been floods of master-servant cases (impressionistic – I need to do more digging here, but there do not seem to have been too many). Moving offences between treason and homicide might have some justification in terms of removing the possibility of benefit of clergy, but that would not explain the inclusion of wives who killed their husbands – since they could not claim clergy anyway. So, unless it is to be dismissed as ‘all talk’ and posturing, lashing out of ‘the authorities’ after the Black Death etc., etc., this is a bit of a puzzle. I think I need to see where else the extension of treason followed a similar pattern.

The second area of possibly unnecessary complexity involves the interaction between husband- killing and a series of rules and attitudes about women which had been laid down, or were being laid down, in the common law by the later medieval period. These were: misogynist views about women’s nature and capabilities; ‘property law’; rules about principal and accessory; and rules about the bringing of appeals. None of this arose by accident, and nor was it inevitable, and yet common lawyers felt themselves unable to choose not to allow it to cause complications and distortions in particular sorts of case. This is particularly evident in cases involving more than one person, including a wife, being accused of involvement in the killing of a married man. It is hard enough to decode those cases in which a wife is accused of participation with another or others, in one legal action: we cannot get much purchase on questions as to whether her participation is being exaggerated or underplayed, whether to assume or believe allegations about her sexual entanglement with other participants. Even more difficult, however, are the cases in which the wife accuses one person, and then somebody else with a decided interest in getting her out of the way, but also a likely personal interest in the deceased – his brother or heir – accuses her of having been involved. There are a couple of these mentioned in posts here, and I remain uncertain as to exactly what was going on in some such cases, as I have mentioned. I do have theories, some of which I ran past a seminar in October (you can hear something of them here if you are interested), but there is certainly room for more thought. Perhaps the most intractable sort of case was that which also brought in complications involving an heir who was the child of both the deceased husband, and also the allegedly homicidal mother – how should property questions and forfeitures be handled in such a case. There are signs that the common law was not thought up to handling these at all, in a later fifteenth century case relating to the Chaworth family,[ii] in which there was a resort to petitioning. The case is considered in Payling, S.J.,’Murder, Motive and Punishment in Fifteenth-Century England: Two Gentry Case-Studies’, EHR CXIII (1998) 1-17 (and I am trying to integrate into my account now, and to see how it relates to the several slightly inconsistent things which common law sources say on the subject of rights to bring an appeal for the death of a murdered married man).

All in all, it is hard not to see some of the complications in this area as deriving from the unresolved tension between different constructions of women: capable and incapable; persons and not-persons; objects of particular pity and protection and objects of particular fear. I would not say that this tension was unique to the common law, but perhaps – to change my physical metaphor – greater balance than some systems between the binaries I have just set up made things particularly difficult. And perhaps the common lawyers’ metaphors themselves – coverture and petty ‘treason’ and the rest – also made their own contribution to the whole complex business of legal response to intra-familial violence.  Onwards I go …

GS

4/12/2021

 

 

[i] I have been spending some time looking at Scots law in particular – very interesting and different law of  treason from that found in the common law, followed by very abusive imposition of the English rules after Jacobite scares. I think the contrast with Scotland would work well in my paper, though I am a little hesitant about blundering in as an outsider and non-expert…

[ii] KB 27/816 m. 70 (1465); KB 27/817 m.105; KB9/308 m. 82.

 

Image: running out of ideas for petty treason images, so going with a general ‘Confusion, seeing trees as opposed to wood’ vibe. Photo by Evan Dennis on Unsplash

Childish tricks and chastisement: a few hints from a fourteenth century trespass case

My own childhood was in the dwindling twilight of the age of corporal punishment: officially banned in England and Wales, it was nevertheless alive in the memory of schools. There was a thin, whippy, cane in the office of one headteacher – a slightly threatening relic – and there was one teacher in secondary school who, entirely illegally, but without anyone ever daring to report him, used an ancient dap (gymshoe!) on the backsides of offenders (boys only, in front of the class, and not in the trousers-down private school fashion: some sort of attenuated performance of former rituals, I suppose). My father, though, certainly had tales of school canings, and, for his generation and many before it, that was a normal part of educational technique. I was smacked as a child, for some of the worst of my many misdemeanours, and cartoon heroes like Dennis the Menace and Minnie the Minx certainly took their share of parental slipperings. All of this now seems very foreign indeed, but those just-about-retrievable memories help a little in thinking about historical cases like one I came across yesterday.

 

The case is a trespass case from the King’s Bench roll of Easter 1325. It is not in the educational context, though it seems to involve a young person of what we would consider school age – technically, I suppose, it is an ‘employment beating’ case rather than a ‘scholastic beating’ case. It is not earth-shatteringly different or new, but there are some interesting little snippets of information as to attitudes and assessment of behaviour in the area of reasonable chastisement and correction of children. It felt worthy of a quick note.

 

The marginal note tells us that the case is from Hertfordshire. It involved a complaint by Thomas, son of Edmund de Mareford, against William de Salesbury, parson of the church of Wheathampstead, and another man, William Rayemund. Thomas alleged that the two Williams, along with one other man, had assaulted him. They had, he said, in the usual, stereotyped formula, done this with force and arms and against the king’s peace: they had beaten and wounded him, and mistreated him, and done him other enormities, to his great damage (he claimed this amounted to £60). The apparent date assigned to the assault was 31st January, 1323, though there might be a slip here. In any case, the Williams did not make a thing of that. Instead, they denied that they had done anything wrong or against the king’s peace. Their version of events was that, on the day in question, Thomas was a garcio (groom or servant) of William de Salesbury, and was ‘within age’. (Quite what age this means is a bit vague, isn’t it, as there was not one ‘age of majority’ at this point). The Williams said that Thomas had been naughty, in some childish way, and had been guilty of some childish prank (quandam transgressionem puerilem).  (Again, it would be good to know more – I am still stuck in Beano mode and am thinking about buckets of water on doors or sneezing powder…). Because of this naughtiness, William de Salesbury had beaten him as a punishment (causa castigacionis) with a pair of small rods or sticks (virgula). It had not been a trespass, and was not against the king’s peace.

 

Thomas, however, stuck to his story. Both sides agreed to put the matter to a jury, which was duly summoned, deliberated, and came down on Thomas’s side. Thomas was to recover damages – not quite what he had claimed, but still a fair bit: £20. (How nice to have an actual outcome!)

 

There is a bit more about moves to get the money paid, and fines to the King, but  my main interests here are (1) what is said about the beating and (2) the pretty large award which is made by the jury.

 

The excuse

The excuse which the Williams tried to use obviously didn’t work, but, equally obviously, they thought it was ‘a runner’ – something which sounded plausible and which might get them off the hook. What does their attempted argument tell us? Well … it tells us that a beating might be regarded as reasonable chastisement and not contrary to the king’s peace, when and if:

  • the person beaten was under age
  • the person beaten was in the employ of the defendant
  • the person who was beaten had done something wrong – even a ‘childish transgression’
  • the beating was done with particular instruments regarded as reasonable/restrained (here, we have ‘a pair of small rods’ – whether that is a particular, specialised, instrument for spanking, or just some useful things which were to hand, I am not sure: further investigation needed here!)

 

 

The award

I am collecting figures for various sorts of physical injury damages, but haven’t got enough material to say anything much as to comparison (and sadly, of course, the record of Thomas’s allegation doesn’t specify quite what injuries were done to him).  Using the currency calculator from the National Archives website, however, tells me that Thomas could probably have bought 44-54 cows or 23-28 horses for this amount, so not bad at all, presuming he was not injured in some permanent way.

 

Thoughts

I am not sure that the case is going to be hugely useful to my current project on mayhem – I found it when looking for mayhem cases, but it is insufficiently detailed in terms of the injury suffered, to be helpful in understanding the borderline between trespass and mayhem/wounding. It is, though,  interesting to see small hints about what were perceived to be the boundaries of legitimate corporal punishment of children. They are only hints – as there is frustrating vagueness about a few key points – but still, it may contribute to wider understanding, when put together with and compared with other material about parental beatings, teacher beatings and adult employment-beatings.

I do find myself cheering on young Thomas here  and hoping that things improved for him after this case.

 

GS

28/11/2021

 

 

Image: St Helen’s Church in Wheathampstead, Herts. I have never been to Wheathampstead but I am sure it is a little piece of home counties paradise (How poorly-travelled I am – like the great and problematic Charlene, I have I never (knowingly) ‘Been to Me’, but nor have I been to Paradise … nor Wheathampstead …)

Peas, grass and battle beyond The Last Duel

Lots of interest in the merits, and historical accuracy, or otherwise, of the big new film The Last Duel. I hope to go and see it, though feeling a little unsure as to whether I want to sit in a cinema with a load of strangers during current circs. I have the book though, so planning to read it this weekend.

I am not going to presume to comment on the film’s medieval French context, since I am definitely not an expert on that, but, since I suspect that there will be some general wondering about the idea of trial by battle, a little bandwagon-jumping and a couple of quick musings on this from a common law point of view might not go amiss.

For many years, in my Legal History classes, I have included something on proof, including trials by ordeal and by battle. It tends to capture the attention of students just a touch more than the development of the strict settlement and the Bill of Middlesex, for some reason. It is one of the useful areas to push students’ imagination a little, and to try and get them to see beyond the Whiggish distinction between ordeals and battles (stupid) and juries (great and totally unproblematic). With ordeals, there is the fantastic article by Kerr et al.[i] to give them to read, and a case to be made for there having been something of value in the so-called ‘irrational’ mode of proof, when compared to contemporary alternatives. Battle is rather a harder sell, and I confess that I tend to send students off to read the articles by M.J. Russell,[ii] and then in class go for cheap shock value and do Ashford v Thornton in a slightly Horrible Histories way … There is obviously more to say than general agog-ness at the late extirpation of the possibility of TBB though. The gender aspect is, of course, important – women were not supposed to engage in TBB, and do not seem to have done so (though there is one slightly bizarre 15th C story about a duel being ordered between a female accuser and a Franciscan friar, who was supposed to fight with one hand tied behind his back![iii] I have spent vain hours trying to track that one down …) Then there are the accounts, in chronicles and legal sources of battles themselves, and the procedure which they followed, or should follow. Some of these are extremely impractical and ritualistic – with weird weapons, a lot of formulaic language and rules. I was reminded, the other day, when looking for something completely different, that another thing which is really fascinating is the fact that those fighting a TBB took an oath against sorcery.

I stumbled on this version in The Boke of Justices of Peas (printed 1506),[iv] in its little ‘how to’ guide to holding a trial by battle, and was enchanted (!). It’s prescribed for an approver (man who had ‘turned king’s evidence’ and was trying to save his skin by accusing another man of felony and then beating him in a TBB):

‘This here you iustice that I have this day neither ete ne dronke nor haue upon me Stone ne Grasse ne other enchauntement sorcery ne witchecrafte where thoroughe the power of the word of God might be enlessed or demenysshed & the deuylles power encresed and that myn appele is true so help me god and his sayntes and by this boke &c.’

[Justice, hear this: I have not eaten nor drunk today, nor do I have upon me stone, grass or other enchantment, sorcery or witchcraft which might serve to diminish the power of the word of God, and increase the devil’s power, and that my appeal is true, so help me God and his saints and by this book etc.’]

Seems a bit harsh not to let the poor devil eat or drink, but fits with the general religious ritualism of this sort of thing. What about the magic though … what ideas does that reveal about ideas as to how TBB worked, and how it could be derailed. It does seem to suggest that God could be foxed by a magic stone or grass (magic grass – new to me – I assume it is the green lawn stuff, and not some special other early modern meaning – sure somebody will tell me if I am wrong …), which is a rather interesting theological position, when you think about it. Belief in magic is one thing, thinking it could actually transcend the human world and put God off his stride, when intervening to say where the truth and right lay in a trial by battle is several steps further on, I would say. It just seems a really fascinating meeting of two sorts of supernatural belief. And it is made all the more striking as the formula for the duel goes on to bar human intervention to help one side or the other – by advice to take advantage of the opponent, or  physical help. It is as if the magic thing and the weighing in of spectators are on a par, equally likely![v] Possibly the supernatural issue can be rendered a little less blasphemous by thinking that the idea behind it must be that the magic grass etc. could skew the result by acting on the bodies of the combatants, rather than on God. Seems a bit weaselish, but maybe that works.  Feeling once again as if I have a lot to learn! It’s certainly something to think about as we enjoy the big film (or book …) and as we approach Halloween.

GS

16/10/2021

[i] Kerr, MH, Forsyth, RD, and Plyley, MJ, ‘Cold Water and Hot Iron: Trial by Ordeal in England’, Journal of Interdisciplinary History 22.4 (1992): 573-95.

[ii] Russell, M. J., ‘I Trial by Battle and the Writ of Right’, Journal of Legal History 1.2 (1980): 111-34 ; ‘II Trial by Battle and the Appeals of Felony’, Journal of Legal History 1.2 (1980): 135-64; ‘Trial By Battle Procedure in Writs of Right and Criminal Appeals’, Tijdschrift Voor Rechtsgeschiedenis 51.1 (1983): 123-34.

[iii] Bellamy, John G,  The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), 145; Eulogium Historiarum, III, 389.

[iv] Glazebrook, P. R. The Boke of Justices of Peas, 1506 : With an Introduction by the General Editor (London, 1972). It’s a book which sounds slightly unpleasant if you are a Scot (add the peas and it is all a bit graphically vomity). It is a collection of various ‘templates’ for legal proceedings which might have seemed useful to somebody acting as a JP, or one of his officials. The material is not particularly new – it’s 15th C stuff, perhaps quite a bit from the reign of Henry VII, but earlier than that too.

[v] The no sorcery rule appears in  older sources too– see Russell (1983) above, p. 132.

Photo by Artie Kostenko on Unsplash

Manicules and many hands: a little musing on the wonders of AALT

Like just about everyone who writes about the early history of the common law, I am a heavy user of the digitised manuscripts on the Anglo-American Legal Tradition website. They were especially valuable during the worst of the pandemic, of course, but many of us had been using them regularly long before that. Even for people living in the UK, it is often not feasible to get to the National Archives (ludicrously expensive and time consuming getting to central London by rail, and then out to Kew) and that is as nothing compared to the fun and games which researchers from other parts of the world must encounter. That being so, easy online access has been an enormous bonus. I realised just how much I had come to rely upon it, when AALT was unavailable for a few days last academic year, and I felt decidedly panicky. This morning, I have been doing a bit of leisurely searching in AALT plea rolls (I know it’s Saturday, but I definitely need a distraction from the ominous sounds of offspring packing for imminent departures to university… ) and, in best Carrie Bradshaw fashion (if the ever-profound lead of Sex and the City had been a legal historian), ‘got to thinking’ about the changing experiences of legal historical research which I have had, since I started out in the 1990s.

My first real encounter with medieval manuscripts came as a PhD student – up to that point, it had mostly been transcribed and translated things in the Selden Society volumes and similar publications, with a few early modern bits and pieces to do with the Bank of England when I had a job as research assistant at the Law Commission, including working on the repeal of parts of the early legislation regulating the Bank. I designed a project for the Ph.D., making the somewhat arrogant assumption that I would be able to just bowl up to the Public Record Office (as it then was) and read eyre rolls, to locate presentments and prosecutions of usurers and offenders against price regulations. Obviously, it soon became apparent that it would take quite a while to get to grips with the great and contrary membranes, the script and the abbreviations (not to mention the springiness of some of the tightest rolled ones, and the fear of handling some of the crumblier-edged ones). It is odd to think that just about everything I traipsed down to Chancery Lane to examine is now available with a few clicks on the AALT site. Just as well for the state of the records that present day versions of Ph.D.- me can have their clumsy hands kept off precious pieces of legal heritage to a great extent.

The experience of looking at the rolls online is, of course, not quite like ‘the real thing’. There is something special in making physical contact with the work of long-ago clerks. But there are also positives in using the scans. It is possible to expand the picture, to help make out more obscure words (or make a better guess, at least…). It is easier to go back and check something than is the case when using physical records. And then there is a certain charm in the online site itself. I am sure that others could add to the list, but there are two things that strike me about it, quite regularly. The first, and  more trifling, is a by-product of frequent use of the site – the odd misfire in searching for the site means that I have become unusually well acquainted with: (i) Aalto University in Finland and (ii) a Dutch serial killer nicknamed ‘Aalt’.  The second is to do with hands.

‘Hands’ can mean different things to people in the nerdy manuscript-fancying community, of course: perhaps first of all we’d think of writing styles and individual quirks. A lot of puzzle-solving entertainment to be had there, for those who like that sort of thing. Then we might think of manicules – the little pointing hands we see in the margin of manuscripts, indicating cases or things that the clerk thought might need to be found again, or which should be noted. What I am mostly thinking about, though is actual, present day hands: the springy nature of the rolls sometimes makes it necessary to hold them down whilst they are photographed, with the result that the AALT shots contain numerous images of the hands of those creating the digital archive – shots like this one.  That is going to be a sort of manual immortality one day, isn’t it? (Especially if the MSS themselves become more frail and less accessible). It certainly gives an inkling of the general effort involved in making these images available to anyone who wants to see them, and I find it a really interesting additional piece in the story of the handing on (!) of the information contained in the rolls, from one generation to the next.

GS

25/9/2021

Photo by Sebastian Dumitru on Unsplash