Tag Archives: rape

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:

  1. 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.
  2. 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.
  3. 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.

GS

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 20th 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 4th 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:

  1. 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 30th 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.
  2. 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.

GS

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 1st August, 1392, which contains a series of allegations against Robert de Spalding, tailor, living in Horbling.[i] Sadly, the roll has a big chunk missing from the right hand side, but there is still enough to reconstruct the charges.

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

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

Points of interest

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

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

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

GS

11/4/2021

 

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

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

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.

GS

23/1/2021