Tag Archives: rape

Contract, coercion and concubinage: a rape case from medieval Westmorland

On the Michaelmas 1402 plea roll of the King’s Bench, there is a case with things to say about both ‘criminal’ law with regard to sexual offences, and also the commercial/contractual aspects of sexual misbehaviour in the medieval period.

The case, from Westmorland in the north of England, is to be found at KB 27/566 m.21 and, via AALT, here. It is an appeal of rape, brought by Joan London of [Maulds Meaburn] against Henry del Croft of Westmorland, Sir William de Threlkeld,[i] and John his son, and Thomas de Faucet, together with John Williamsservant Threlkeld, William Cook de Threlkeld, Thomas de Bowes, chaplain, and William Aliceson de Threlkeld.

Joan said that she had been in the king’s peace at [Maulds Meaburn] on 19^th April [1402], when Henry came at about 11 pm and raped her, feloniously, deflowering her of her complete/pure virginity, and, feloniously, having carnal knowledge of her. The others were accessories.

There are a lot of standard form elements to the entry (the usual statements about pursuit etc.) and I will pass over these. What is unusual, however, is the defence. Rather than just saying ‘Not guilty’, Henry said that he and Joan, after discussion, agreed that Joan would be his concubine, in return for 6s 8d, he paid her this sum, and slept with her. He denied felony. All of the defendants were acquitted.[ii] Despite the utterly predictable outcome, (for those of us who are familiar with these cases, anyway), there are a few of interesting points:

The wording of the accusation

This is of interest for those who look at crime/sexual offences in historical context, There is one slightly unusual word here – the accusation is not just the usual rape/deflowering/virginity vocabulary, but adds pura to virginitate. ‘Purity’ is more commonly found next to ‘widowhood’, in ‘civil’ cases in which there is some argument about whether a woman did something during her marriage (and thus bringing in the ‘coverture’ rules) or afterwards, when she was able and obliged to take legal responsibility for her own actions. An interesting variant, then, and one which we might just take as suggesting some general ideas about women at different stages of life. That needs some further thought, but it’s worthy of note.

The defence

Note that this is not the familiar ‘she must have consented this time as well’ defence based on previous sex with the defendant: it is ‘she did consent in advance, and so cannot use the common law to complain about having been penetrated’.

The alleged transaction

On a more ‘crime meets contract’ theme, there is something to say about the alleged bargain here,

The narrative about the agreement between Henry and Joan has the role, in the context of the appeal of felony, of defending Henry against the allegation that he raped her (modern sense) thus the reference to her assent and her will in this matter. We might note that the assent and will are ranged with an agreement to be his concubine, not with the particular penetration with which the appeal charges Henry. This raises the issue of just what it meant to be a ‘concubine’. It is a word which comes up from time to time in legal records, often in connection with ‘priests’ women’. It is not inevitably sexual, though clearly, in this context it is. It is something which could bear greater scrutiny in terms of its implications and its interesting location on the borderline between status and contract, as this case seems to illustrate.

We must pass over the question of whether there actually was a ‘deal’, between Henry and Joan, but, as ever, even if the story was a lie, it must at least have been a plausible lie, so, what can we learn?

The deal was said to have been reached between Henry and Joan. There is no hint of the involvement of a pimp, bawd, madam, or even a family member negotiating on her behalf. It was, therefore, considered plausible for a woman to strike her own bargain with a man, to become his concubine. The entry portrays an orderly, businesslike, procedure: Henry and Joan discuss the matter (they have a colloquium about Joan becoming Henry’s concubine), and reach agreement, Henry gives her 6s 8d and Joan agrees to be his concubine (the term is not given, but this surely represented the price of more than one encounter). The deal is expressed in both unilateral and mutual terms: Joan se aggreavit and they had an agreement (concordati fuerunt). Henry took Joan as his concubine with her assent and will, and [‘only then’ is, it seems to me, implied] slept with her.

It is interesting to see the use of this businesslike, contractual, narrative in this context. Two things, in particular, strike me. First of all, to work as a defence, the story really has to place Joan as being on a level playing field with Henry, able to strike a bargain. We would need more facts about the parties to know whether that was remotely likely to have been true, though I do wonder about the tension between the two-parties-bargaining-freely version of events in Henry’s defence and the allegation by Joan that there were rather a lot of other people involved, before, during and for a month after the event. Secondly, although we are deep in the period of central regulation of ‘contracts of employment’ and wages, the terms on which a ‘concubine’ might ‘work’ were clearly not part of this area of legal prescription and enforcement. It is interesting to reflect on what this meant. Although they were ‘free from the red tape’ of the labourers legislation, and did not have to sign up to fixed terns, so that one might have thought they could leave their ‘employment’ at any time (and so refuse sex), this was not, apparently, the case. Whether or not developments towards the more coercive in employment which was covered by the labour laws had an impact upon areas like this, not covered but possibly analogous, must, for the moment, remain in the realms of speculation – but it isn’t particularly fanciful to imagine that it might have done. I note that sometimes, women may be described in legal records as ‘servant and concubine’ (e.g. here, from 1399), which may well indicate an idea of ‘concubine as employee’.

Anyway, this record suggests that a deal, even a sinful deal, was not something that could be called off, at least once money had been handed over. While I presume the common law would not have enforced such a deal in a straightforward ‘contract law’ manner, we can see that the way in which the law of felonious rape was treated in practice meant that it afforded no protection for a woman who might want to get out of such an arrangement.

Some tentative conclustions: ‘free’ contracts and contracting unfreedom

Joan’s disadvantageous position bears obvious comparison with another ‘freely contracted’ status, that of marriage, with its consequences under the emerging rules of ‘coverture’. Just like a wife, a concubine would seem to have bound herself for the future in terms of sexual compliance, so that she would not be able to succeed in an appeal of rape. The way in which Henry’s case was put – admitting sex and founding his defence on the alleged concubinage agreement – is strongly suggestive of this being accepted.

One might also compare the ‘concubine’ with the prostitute/whore (the terminology here is very difficult, but I mean somebody entering into one-off transactions). Bracton II, 415 lumps these together to some extent, as women who can be raped (albeit that this will attract a less serious punishment than rape of a virgin). Though the ‘concubine’ seems to be less disapproved of than the prostitute here, it may be that the common law’s increasing interest in and respect for contractual bargaining, possibly reinforced by ideas about ‘making the lower orders stand to their obligations’, as Robert Palmer had it, even if not strictly covered by the labour laws, left the concubine in a rather worse position than the ‘common whore’, free to transact her business on an encounter-by-encounter basis, and presumably not obliged into the future to do the bidding of her customer/master.

This case should, if nothing else, remind us: (a) that it is essential not to tell ‘de-gendered’ stories about the development of legal categories and doctrines; and (b) that material from what is now generally seen as one discrete area of legal doctrine and practice may be relevant to another. Here, we have the use by a man, against a woman, of the idea that the common law should take account of, and accord force to, private contracts. The negative effect of contract ideas upon ‘criminal’ law protections for women is not something which should be ignored by legal historians. For all of the ‘rises’ and ‘triumphs’ of the history of the law of contract, we should remember that the impact of legal development is not to be measured only with regard to the experience of (free, capable) men.

16/6/2024

[i] Could this be this man?

[ii] Joan was said to have brought a false appeal, for which she was financially liable. A jury found that she was not able to pay the damages assessed, and the former defendants now went after a man, Richard de Threlkeld, said to have helped her bring the allegedly false appeal.

Offensive weapons: some thoughts on a violent image

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

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

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

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

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

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

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

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

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

Gwen Seabourne

11^th May, 2024.

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

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

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

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

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

[6] KB9/149 m. 21

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

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

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

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

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

From ‘forthcoming’ to ‘coming forth’: a long chapter in academic life

A chapter I wrote quite a while ago, on the legal history of rape in western Europe, has just come out in a collection about medieval crime and deviance.

‘Rape and Law in Medieval Western Europe’ looks at the ways in which different medieval jurisdictions approached rape. The records on which it is based are not straightforward (languages, handwriting, changing meanings of words, and more …), but, carefully examined and considered, they do give at least a sketch of the ways in which rape was thought about, and treated, in medieval law.

There are comparisons and contrasts to be made with regard to the ways in which a case might be brought before a court, the factors which would make sexual misconduct seem to those [men] trying a case more or less serious, and the consequences of a finding of guilt. It is easy to find statements about the serious nature of rape, but often – and this is certainly the case in English records – difficult to find examples of completed, ‘successful’, prosecutions of offenders. This should lead us to ask why that might have been the case, but also to question what we mean by ‘success’ in this context. In medieval English law, if felonious rape was prosecuted through to a conviction, the consequence would be a sentence of death by hanging, and forfeiture of property. The vast majority of rape cases stalled or were diverted at some point before this fatal outcome, however. It seems likely that a significant proportion of them were settled, so as to give some financial assistance to a woman who would now, perhaps, face significant difficulties. No doubt in some cases a complainant simply gave up.

Jurisdictions showed variation in terms of who was seen as a possible victim of rape (Only women? Only or particularly certain sorts of women/girls?) in terms of procedures and in terms of the consequences of a finding of guilt. As we might expect, there were some very negative attitudes towards women embedded in law and practice, though there are also intriguing occasional examples which seem to show sympathy and significant support for women and girls who had been raped. Much of what we would probably like to know lies hidden behind the terse records of cases which remain, and some insights can be gained by considering medieval literary treatments of rape (even though somebody like me, with no real expertise in literature, should tread very warily here). The one law-literature matter which I was, sadly, unable to treat here was the recent developments in the Geoffrey Chaucer-Cecily Chaumpaigne case, which became big academic news long after I actually wrote the chapter (which, I think, was in 2018 … academic publishing can be slow …) and too close to the date of publication to allow for an addition to the text. I intend to write a little more about that soon, as I think there are a couple of ‘legal historian’ points which people might find helpful/interesting).

The overall message of the chapter, I suppose, is one of competing, sometimes contradictory, ideas at play, coming out in different ways in different systems, and even within the same system at different times. Fitting the chapter into a book on the construction of crime and deviance, I would say that the job I hope it does is to warn against seeing medieval rape law as something which can be understood as showing a contrast between ‘the law’ – something stark, simple and clear – and ‘practice’ – which very frequently departs from ‘the law’ so as to let men off with their sexual misconduct. Certainly, a lot of rapists (in our terms) will have ‘walked’, but the ‘escape routes’ were not wholly external to legal doctrine, and legal doctrine was far from the clear, ‘worked out’ and comprehensive thing it is sometimes assumed to have been. Here, as in several other areas of ‘criminal’ law, ‘the law’ is, at least in part, constructed by practice.

Stepping back from the chapter itself, it strikes me that it would have surprised my past self, starting off in the 1990s as a new lecturer and trainee legal historian, that I was working on this area at all. My Ph.D. was on economic regulation, and my early research projects were not focused on women, nor on matters of gender. Not looking into women’s history was a very self-conscious choice, stemming from the opinions of others, influential in the world of legal history, and also from my own thoughts about what it meant to be an academic. The ‘opinions of others’ point was that the legal history tradition in the institutions where I had taken my first steps in the discipline was not given to much consideration of such matters, regarding them as peripheral, trivial, ‘trendy’. The internal inhibitor was that I had drunk in the idea that academics were supposed to be neutral, completely external to the material which they studied. Taking such an approach was the way to win the pat on the back of a good exam grade at school, and at university, and the way to avoid the sniggers and suggestions of ‘stridency’ or ‘special pleading’ from a predictable portion of the department, should there be any suggestion that a woman was focusing her attention on women. To get past that internal inhibition took me quite some time, and the kick up the backside of a combination of factors.

One shaping factor was where I ended up working. After leaving full-time study, I got a job at Bristol. Arriving here, I was treated with great generosity by the resident co-ordinator of both Roman Law and Legal History, Andrew Borkowski. He made room for me and my interests in the Legal History unit, and the unit he had developed was already rather less private law focused, and rather more open to issues of family law and gender than were those which most undergraduates would have been taught (and still are taught in some places). Initially, I came on a one-year teaching contract, and had every intention of going back to study full time for a Ph.D., in a Law department, where, I would imagine, I would have been immersed once more in the traditions of internal, ‘classical’ legal history, never more to look to matters dismissed as (shudder) ‘social history’ . Bristol made it hard to leave, however, offering both a permanent contract and assistance with doing my Ph.D. part time. A particularly important aspect of this offer was that I could seek supervision from the School of Historical Studies. This, I think, was crucial for the path I have taken. While my Ph.D. thesis was not about anything particularly gender-focused, it did, incidentally, lead me to acquire an additional set of skills and perspectives, which, I think, helped me to break down my own inhibitions against ever, in any way, talking in my academic work about things which were connected to myself. On a less positive note, another factor in the path from economic regulation to a focus on women came in the form of personal experiences of various kinds, including being taken aback by the ways in which institutions and their senior management treated those who took maternity leave or had childcare responsibilities (not so long ago as all that …). (And yes, saying that ‘out loud’, I see how far I have come from the ‘got to look objective’ stance: hinting at some of the less-than-optimal experiences I had with university promotions procedures and those who operated them at key points in my career …). My second monograph, about the many and various ways in which medieval women might be confined marked something of a shift of orientation, as well, perhaps, as something of a burning of bridges. A very influential law-department-based ‘classical legal historian’ was incredulous that I could plan to write a book which would place women to the fore. What about the men?! It felt, though, like something I had to do. Then there were a couple of lucky archival finds (on ‘drug rape’ and ‘work-based sexual harassment) and I began to be known (in certain small and dusty academic corners) as somebody who ‘did women’, and to be asked to write things in this area, including the chapter which has just come out. So there we are: I am now proud to embrace it, but I think today’s lesson is that it isn’t just academic publishing that can be …

a bit slow.

6/5/2023

Photo by Melissa Keizer on Unsplash – tortoise, slow, etc etc.

Causing, confusion? A medieval case from the Isle of Wight

[Warning: This post concerns an instance of sexual violence]

Documents in the King’s Bench indictment file for Hilary term 1448, and an entry on the King’s Bench plea roll, deal with the death of a woman, Joan wife of John Couke, and with accusations against a vicar on the Isle of Wight, with regard to Joan’s last few hours.[i]

Joan’s death had been the subject of a coroner’s inquest at Newport on the Isle of Wight, on Tuesday 12^th September, 1447. At this inquest, the twelve jurors said on oath that John Hunter, vicar of the chapel of St Nicholas within the castle of Carisbrooke,[ii] came to Newport with force and arms (sample arms specified), against the peace of the lord king, and broke into and entered the close of a certain Edward Brutte, wrongfully, between the hours of nine and ten at night on Monday 11^th Sept, 1447. There and then, he raped[iii] Joan, feloniously, and lay with her carnally. On encountering the pair in the act of intercourse,[iv] John Couke raised the hue and cry. At this, Joan fled, for shame and fear,[v] through the street called Holyrodstret, to the stream called Douks Brouke. She was found dead, with her throat cut, in this stream at around 7 a.m. on 12^th September, by one John Mabyll of Newport, glover. The jurors did not know who had killed her. ‘Therefore they said that John Hunter had caused her death.’[vi]

The matter was brought before the King’s Bench fairly swiftly – in late January, 1448, for once, an accused person who did not attempt to delay things. John Hunter said that he did not need to answer this accusation, because the indictment was not sufficient in law: the coroner did not have the power to inquire into such a matter. The court agreed that it was insufficient, and John Hunter was acquitted.

So what?

Following the usual monotonous pattern, we see yet another man (and yet another churchman) accused of sexual misconduct going free. It is important to register that. There are, however, some quite unusual aspects, hints of thinking by those involved in medieval ‘criminal justice’ which seem worth pointing out.

First, there is the narrative around the sexual offence. It features that lack of conformity with modern, consent-based, definitions of rape, and that disturbing tendency towards assigning culpability to the penetrated woman, through linguistic implication of willed action on her part. Joan is portrayed – presumably with some plausibility – as having been shamed as well as afraid, and running from the hue and cry, as if to suggest that she would be held to have been at fault.

Then there is the causation point, and it could be argued that this goes against the ideas of ‘victim-blaming’, or adoption of the rape myth that all or most women actually are complicit in their own violation. Although their attempt to form a workable indictment was, in the end, rejected by the court, the inquest jurors did choose to tell the story of the rape of Joan, in a forum which was, strictly, supposed to be confined to ‘how the deceased came by her death’ – i.e. the immediate context of that throat-slitting which occurred some hours after the rape, and which was perpetrated by person or persons unknown, and they did attempt to place blame for the death on the rapist, John Hunter, not in the sense of saying that he slit Joan’s throat, but in the broader sense that he had been culpable in creating the situation which led to her death. Ideas about causation are often rather hard to discern in the brief records of the medieval common law, so it is very interesting to see them emerging above the surface here. Causation is far from a straightforward issue, and continues to be debated in criminal law, and in tort. In truth, there is a large degree of moral choice as opposed to clear, logical, inevitability, about decisions that A caused B. This does seem to be something of an outlier, in arguing that a person should be held culpable in relation to a death perpetrated by another, on a person he harmed in a terrible but non-fatal way, at some distance in space and time from the scene of his crime. Wouldn’t it be good to be able to see how they arrived at this interpretation?

Of course, it is possible to reconcile these two apparently inconsistent aspects of the case, by imagining that, although the jurors would often in fact have been unsympathetic to a woman who was raped, their allegation that Hunter had caused Joan’s death was caused by the fact that they were really, really hostile to this particular vicar, and wished to do him a bad turn.

2/7/2022

[i] Completists may also want to see this.

[ii] As pictured – sort of – the medieval chapel was demolished and rebuilt, as can be seen from this,.

[iii] It’s a rapuit, with all of the potential uncertainty of that word. It seems appropriate to me to translate it as ‘raped’ here.

[iv] carnaliter communicantibus, I think.

[v] pro pudore et timore

[vi] fuit causa mortis prefate Johanne

If I could Tourn Back Time: Jurisdiction in the Fifteenth Century (Again)

Another little bit of Year Book/Plea Roll matching – this came up tangentially in a bit of petty treason research today, and seemed worth a quick word and thought.

When I say matching … it is not quite an ‘X = Y’ situation: more of an X probably = Y, Z or A.

The Year Book case is YB Trin. 6 H VII f 5 pl 4 (Seipp 1491.020). The plea roll entry is one of three possibles on the King’s Bench roll for Trinity 1491.

The candidates are:

KB 27/920 Rex m. 5 (AALT IMG 209) This is a case from Berkshire before John Horne, in which Richard Patte of Sulhamstead, clerk, was alleged to have raped a widow, Margaret Huys, lately wife of John Phelippe.
KB 27/920 Rex m. 3d (AALT IMG 463) This also comes from Berkshire, from John Horne’s tourn. John Hyde, recently of Sonning, clerk, was alleged to have raped Elizabeth, wife of James Trell.
Yes, it’s Berkshire and John Horne again! KB 27/920 m. 3d (AALT IMG 465): Stephen Bregyn, clerk, was accused of raping Alice Robyns, wife of John Robyns.

Or perhaps it is an amalgamation of all of them – since they are all saying the same thing.

The YB case is not about petty treason at all – though there is a passing reference to that in the reported argument – it is a case about jurisdiction over rape. Who could hear rape cases? Could low-level criminal courts hear them? Let me be up-front about one thing: there is a difference between YB and PR in terms of which courts are mentioned – the YB is interested in courts leet, whereas the PR entries are all about sheriffs’ tourns. Since there is nothing on the roll specifying courts leet, I think I have to assume that one of these is the best match. Possibly these tourn cases prompted a wider discussion of low-level jurisdiction.

The successful argument against lower courts having jurisdiction in this area, as it appears in the YB, is that they only have jurisdiction over felonies if they existed at common law rather than having been created by statute, and rape as a felony was a creature of statute. A choice had been made to limit such jurisdictions, and/or that it was seen to be fitting to keep them to the things they had been able to do ‘since time immemorial’, or at the time of the (certain or assumed) grant of jurisdiction.

The issue about sheriffs and rape jurisdiction was not new – I wrote a blog post about this issue as it arose in 1482, in the not-too-distant past (it’s here). A bit odd, then, that tourns are still being used in this way, and it’s still thought worth reinforcing via YB reports that this is not OK. Suggests something of a lack of influence of common lawyers on practice in the low-level criminal jurisdictions, I think (though, as ever, I am ready to be told that I am missing something important …). I do wonder what was going on with John Horne’s tourns in Berkshire.

As far as the rape cases themselves go, well, nothing very surprising. the accused all ‘walked’ after having paid a fine to the king (to save the bother of a trial for the trespass element of the charges).Each of these fines was 5s – a pretty common amount, according to the list of fines in the plea roll – and, according to the National Archives currency converter that represented about 8 days of wages for a skilled tradesman. Moderately costly then, I suppose. Whether or not there was any other settlement, compensating the women themselves, will remain a mystery.

13/9/2021

Image – to fit in with my contrived title, it’s a medieval clock! From Salisbury Cathedral. Yes I do know that isn’t in Berkshire, but best I could do. From Wikimedia Commons.

Tourn-up for the [Year]Books: a Somerset sheriff’s jurisdiction

A quick Year Book-Plea Roll probable match: I think Seipp 1482.119 (YB Mich. 22 Edw. IV) is the same case as this one, from the Michaelmas 1482 King’s Bench plea roll (KB 27/884 m.1d; AALT IMG 0518).

The case concerns an indictment of rape, made against John Wheler of Bridgwater, in Somerset, chaplain. He was accused of having, on 20^th March 1482, broken into the house of a certain Alice Lye[i] , at Huntspill, attacked her, raping her and ‘having carnal knowledge’ of her, against the king’s peace.[ii] The matter had been presented in a sheriff’s court – the ‘tourn’ of Richard Morton esq. – on 4^th April, 1482, at Highbridge, Somerset.

It will come as absolutely no surprise to anyone who has looked at this sort of material to find that the whole thing fell apart, and the accused chaplain walked free. In this particular case, the route to that expected conclusion was not via the blank ‘not guilty’ of a jury, but via the ‘you don’t have jurisdiction’ route: sheriffs were not supposed to hear such serious ‘criminal’ cases.

I suppose we might conclude, or muse about, a couple of things from this:

There does not seem to have been agreement that this was something beyond the powers of the sheriff. (As a matter of fact, the KB roll for Trinity 1482 contained another rape case from the same sheriff’s tourn, in, from a tourn on 30^th April 1482. This time, the accused man was Robert Cutteclyffe of Wells, chaplain, and the alleged victim Cecilia Wever, the attack said to have taken place at Burton. In this earlier case, however, a different technical fault was found with the process.) The YB report of what I take to be the Wheler case includes a lengthy discussion of the background to rape/ravishment as an offence, its statutory or non-statutory origin being taken to be crucial in determining whether or not a sheriff had jurisdiction here.
Despite the incredibly low rate of conviction, men from relatively small communities did bother to prosecute alleged (clerical) rapists. Maybe use of the sheriff’s tourn for this suggests a lack of faith that other courts would do anything. There is something of a tendency to write off such action as not in good faith, as a sort of extortion of those who kept concubines. But does it, perhaps, rest upon an assumption that clergy would not be likely to take advantage of their position to engage in abusive sexual practices? Or on a desire to find that women were more ‘agenty’ than they might appear. The accused clergymen do seem to have been able to find a number of ways of challenging cases brought against them, but it is important to accept that that doesn’t tell us anything about the truth of the allegation, one way or the other. There is, no doubt, a great deal which is lost to us, in terms of what went on out of court: compensation, private settlement, or settling of scores, and no particular reason to think that the same sorts of facts underlay all or most cases.

31/8/2021

[i] There is no more information about her.

[ii] Note, no mention of her will.

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

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

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

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

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

Points of interest

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

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

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

11/4/2021

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

Rape: conviction and ideas

My two ‘forthcoming’ (well, one ‘forthcoming’ and one ‘forthcoming???’) publications deal with rape in medieval common law: it is a small part of Medieval Women and the Common Law (due out in April) but the whole point of a chapter in an edited collection, (chapter title: ‘Rape and Law in Medieval Western Europe’, long since written, and the book is due out … well, let’s just say one day … ). There is already a lot of scholarship on rape/raptus in the medieval world, but still, I think, a great deal more to work out, and I keep finding new, relevant, entries in the plea rolls. One of these days, I will get around to doing a proper study of the changing nuances of formulae of accusation, for example. Anyway, here are a couple of nuggets which I don’t think I am going to work into these ‘forthcoming’ things, but seem as if they might be of interest to someone, some time, if they stumble across this.

The first one is a rarity – an actual conviction and hanging. It is hardly a new observation that almost nobody ever seems to have been found guilty of rape, and executed, in later medieval England. The plea rolls are full of the most detailed and horrendous allegations, and then an unexplained finding of ‘not guilty’. (And I have noticed that nobody ever seems to confess rape and abjure, or, as an approver, appeal another person of rape – further signs that conviction was fairly unlikely). Here, though, from the Rex section of a King’s Bench plea roll from Trinity term 1339 is a case of somebody hanged (or at least ordered to be hanged) for rape. In KB 27/317 m. 10d (AALT IMG 297) an entry notes a case from a Norwich gaol delivery in 1339. Richard Kiriolf(?) of Holverston had been indicted that he and others on a night in 1338 broke into the house of Alice Newman in Rockland and robbed her of goods worth 12d, and then feloniously raped with her and lay with her against her will. He pleaded not guilty of ‘rape, robbery and felony’, but the jury found him guilty (it is specified in the record that they found him guilty of all three). He was ordered to be hanged, and it was stated that the vill of Holueston would answer for his chattels – worth 18d, which would be forfeit, because he was found guilty of a felony.

True, it is not an execution for rape alone, and the break in at night and theft would presumably have been enough to justify an execution, but it is of interest that rape was included in both charge and verdict, and is some evidence that capital punishment for rape was not a completely unimaginable outcome.

My blog, my rules – uninhibited by academic tutting, I also want to say something about the conflicted feelings this sort of thing gives rise to in me as a researcher and a human. To some extent, and no doubt bound up with all sort of thoughts about the deep and long history of difficulty in seeking accountability and some sort of justice in this area, there is satisfaction to see evidence of rape being seen as a serious offence. That, though, hits up against my utter horror of capital punishment (always) and also the wish not to see capital punishment, in this period, as having been a much ‘better’ outcome for the woman, or the only indicator of something being taken seriously. So it’s interesting, but not an ‘air punch moment’.

The other interesting case to mention here is on the plea roll for Easter 1335, at KB27/300 Rex m.11 (AALT IMG 309). It is a record of an indictment before the KB at Wigan in 1334, and it states that Richard son of Adam son of Alan of Mondesley and others on a date in 1315 (it definitely says this is in the reign of Edward II, so quite a long time before) came to the home of Cecilia widow of William son of Robert de Heskyn, broke in and feloniously raped her de corpore suo, contrary to the form of the statute etc. and against her will. The dorse of the membrane shows that Richard was found not guilty (surprise!) but that is not the thing which struck me as interesting. Instead, it is those words ‘of her body’. They are stuck in just where, in many felonious rape cases, we would find the words ‘of her virginity’, and, I think show an interesting wish to include an idea that something was taken away. This opens up all sorts of cans of worms about women, bodies, (perhaps) property, and the idea that something tangible is removed when one is raped. I have no more than that, for now, but it seemed worth noting, and I will be both mulling it over, and also looking for other such phrasing in my endless, and endlessly fascinating, searches through the plea rolls.

23/1/2021

Bracton's Sister

Legal History research site of Gwen Seabourne