Tag Archives: Seabourne

Mirrors and Borderlands: some Lockdown reflections on a recent project

In what now seems like the very far-off pre-lockdown part of 2020, an article of mine was published, the culmination of a project I had been working on for two years or more, and had presented, at different stages in its development, to audiences at the International Medieval Congress in 2017 and the British Legal History Conference in 2019. Before the current crisis began, I had decided to write something about it for the Law School research blog. In this post, I will do that, but since this unexpected period of locked-down working has prompted more general reflections upon work and life, I will also offer some personal reflections on the project, and some of the more general thoughts about law, history and scholarship which are presenting themselves to me with some force at the moment.

I: The Article

Judging a Hereford hanging: Agnes Glover v. Walter Devereux, William Herbert and others (1457)[i] considered the events of a few days in the spring of 1456, when the English city of Hereford was taken over by a mixed Welsh and English force, led by notable men of south east Wales and Herefordshire. William Herbert and Walter Devereux, along with their kin and connections, the Vaughans. A member of the Vaughan family – Watkin Vaughan – had been killed in Hereford, slain with an arrow through the heart, as one record has it, and the Herbert-Devereux-Vaughan allies came to Hereford to seek justice or revenge for this outrage. They obliged local citizens to try and convict six Hereford men for the killing, then proceded to hang them. Legal action followed, as Agnes Glover, the widow of one of the hanged Hereford men attempted to prosecute the main offenders. The case went on for some legal terms, but, in the end, there was a spate of pardoning, and nobody was punished in accordance with the full rigour of the law.

Perhaps it may seem unremarkable that there would have been an episode of disorder at this point in time (as the ‘Wars of the Roses’ period geared up) or in this particular area (the English-Welsh border having a reputation for tension), and unsurprising that nothing much came of the widow’s attempts to bring to justice those who had caused the death of her husband (since so many medieval ‘criminal’ cases ended without conviction and punishment). Nevertheless, this incident and associated cases seemed to me to be worthy of further investigation, and discussion, partly because of the unusual nature of the available records, and partly because of some issues relating to ciminal law and ideas about law which were striking to a legal historian, but had been left out of political historians’ treatment of the Hereford incident.

 

i: The records

The documents in this case are much richer than those available in relation to many medieval offences. There are records from ‘the centre’ – the plea rolls and indictments which make a formal note of the (many) stages of legal proceedings. There are law reports in the ‘Year Books’. These were accounts of arguments in cases deemed to be of special interest, made and circulated by lawyers. Putting together report and record can really expand understanding of the proceedings, and it is always very satisfying to be able to match up the different sources. A great bonus in this case is that there is actually even more contemporary material besides these ‘legal’ sources. Most importantly, the incident and its aftermath have left a trail in Welsh poetry, and there is also a reference in an English source, the Paston Letters. Welsh poets of this, ‘the golden century of praise-poetry’ were predisposed to favour the Herberts and Vaughans, as powerful figures in Wales and the borderlands, and also important patrons of the Welsh bards. Perhaps not surprisingly, all things considered, the literary evidence proceeding from this school of poetry gives a positive spin on what might otherwise look like banditry. The relevant section in the English Paston Letters, on the other hand, shows considerable contempt for the Welsh, and ignorance of their language and customs.[ii]

 

From my own point of view, this was by some distance the best treasury of contemporary sources I have ever worked with in my legal historical investigations, and it was backed up by some very fine secondary scholarship. The work of Dylan Foster Evans and Helen Fulton on the relevant praise poetry, and on William Herbert, was essential.[iii] There was also the rewarding experience of working with an excellent thesis from the 1970s, on fifteenth century Hereford, which I had out on loan from Swansea University.[iv] Holding and reading that physical volume, typed on one side of the paper only and corrected with Tippex and painful care, and with a ‘borrowed by’ list at the front containing the signatures of several of the most prominent late-medievalists of the twentieth century, brought an unexpectedly vivid connection with more recent history, with things which have passed away in my own lifetime.

 

ii: Borders and centres

My research, particularly in integrating the law reports into the story, showed me that the common law struggled to fit cases like this – cases of wrongful execution following some sort of legal proceedings – into the available modes of prosecution. It seemed as if some sort of limit to the ordinary law of felonious homicide, centred around a simple ‘man 1 hits or stabs man 2, man 2 dies instantly’ paradigm, was being reached. The reports show lawyers grappling with whether this could really be treated just like any other killing, and whether someone like Agnes Glover should have a right to bring a criminal prosecution. In a criminal justice system which relied on private initiative for some prosecutions, and which had not wholly accepted that dealing with killers was the crown’s business alone, these questions could be troubling. Previous political historical treatment of the 1450s has tended to pass over this, its accounts of the weakness of central control emphasising local corruption and royal incompetence, but I argue that at least part of the problem was caused by the common law’s uncertainty and the flaws in its procedure.

 

In terms of geographical borders and centres, this research gave me much to consider in relation to the attitudes of different groups to the common law and its reach within the realm of the king of England. While the Herbert-Devereux-Vaughan faction were prepared to make some concession to co-operation with common law processes, their main strategy was forceful and extra-legal. It might be seen as inflected with a Welsh sensibility, given the particular emphasis placed upon the duty of kinsmen to respond to the death of one of their own which is to be found in native Welsh laws, but this distinction should probably not be taken too far: Cyfraith Hywel, the collected laws of the Welsh, did not favour forced show-trial and execution, and kin-vengeance was still part of the thinking behind some aspects of English common law procedure as well.

 

One of the additional perspectives which a legal historian can bring to this area comes from consciousness of the ‘time travelling dimension’of law reports, as they are handed on from one generation to the next, their arguments to be re-used and developed. When a case such as Agnes Glover’s appeal of Herbert and Devereux is made the subject of law reports, it takes on a life of its own, being cited in future legal works and cases, shedding what are considered unnecessary details and, in the process, changing in meaning. Within the common law tradition, the case soon dispensed with the need to name the claimant, and mangled some other names. It also cast off its geographical moorings, so that, in printed Year Books, it looks as if the location was Hertfordshire rather than Herefordshire. This may be a slip of just one letter, but it does demonstrate that the root of the dispute, in violence on the English-Welsh border, was not regarded as particularly crucial by the common lawyers in and around Westminster. Central control might not be terribly effective on the ground at this period, but it had a strong grip on the minds of the elite members of the legal profession.

 

 

II The Reflective Bit: the historical and the personal

In my early years as a lecturer and researcher, mentioning that my area of investigation held not only intellectual but personal fascination would have been unthinkable, so wedded was I to the idea of academic objectivity that any admission of emotional engagement with the subject of my research would have struck me as entirely unprofessional. I have learned since – from colleagues, from scholars I admire, from life – that detachment is not always the Holy Grail. Thus, I no longer have a problem with putting a few personal reflections ‘out there’ in this form (I did edit them from this for the Law School blog, mind you! Still some work to do …)

First of all, it’s worth explaining that I have particular reason to find all this interesting. The Herberts and their relations the Vaughans were based in what really is the ‘Land of My Fathers’. Places such as Abergavenny, Raglan and Tretower, which feature amongst the relevant locations of the raiders, are deeply familiar from childhood, and resonate from the parchment. The language of the poets resonates too, and presenting this paper to the British Legal History Conference was the first time I dared to recite a line or two of Welsh poetry in that decidedly Anglo-centric gathering. It felt a little like speaking the language of the Elven realm, if not in the land of Mordor (where the shadows lie), at least in the Shire. As J.R.R.T. had it in the 1950s, ‘Welsh is beautiful’.

The other thing I find extremely satisfying in projects like this is bringing to light the stories of women of the past. It was good to be able to bring Agnes Glover out into the open, and to show both her determination to try and do something about the loss she had suffered, and also what she was up against, in this attempt.

 

Concluding thoughts: moving on from Agnes, William, Walter and Watkin

As is so often the way, and despite the unusually full range of records relating to her case, Agnes Glover gives us the slip in the end, disappearing from the record as her litigation ground to a halt, and Herbert and Devereux, pardoned, lived to raid on other days. Watkin Vaughan was commemorated by praise poets and avenged with impunity.[v] It feels a little ungrateful, having got a couple of conference papers and an article (as well as some good teaching material for the undergraduate Legal History unit) out of these characters, to bid them farewell, now, but it is time to move on. I will, however, be expanding on two of the themes raised in this research in future projects, currently at an early stage, one on wrongful execution, and the other on insulting the Welsh, so Agnes, William, Walter and Watkin may be back for the odd cameo appearance.

Gwen Seabourne

May, 2020.

[i] Midland History 45:1 (2020) 2-17 https://www-tandfonline-com.bris.idm.oclc.org/doi/abs/10.1080/0047729X.2020.1712077

[ii] N. Davis (ed) Paston Letters and Papers of the Fifteenth Century vol. II (Oxford: Oxford University Press, 1976), p. 172.

[iii] H. Fulton, ‘Guto’r Glyn and the Wars of the Roses’, in ‘Gwalch Cywyddau Gwŷr’ Ysgrifau ar Guto’r Glyn a Chymru’r bymthegfed ganrif; essays on Guto’r Glyn and Fifteenth-Century Wales, ed. D. Foster Evans, B.J. Lewis, A. Parry Owen (Aberystwyth, 2013), c.2; D. Foster Evans, ‘William Herbert of Raglan (d. 1469) family history and personal identity’, same volume, c. 4; D. Foster Evans, ‘Murder in the marches: poetry and the legitimisation of revenge in fifteenth century Wales’, Proceedings of the Harvard Celtic Colloquium 18/19 (1998-9), pp. 42-72.

[iv] A. E. Herbert, ‘Public Order and Private Violence in Herefordshire, 1413-61’, M.A. Thesis, University of Wales, Swansea 1978.

[v] Elegy to Watkin Vaughan of Bredwardine. Foster Evans, ‘William Herbert of Raglan’, p. 100; D. Foster Evans (ed.), Gwaith Hywel Swrdwal a’i Deulu (Aberystwyth 2000), poem 23

Mysterious goings-on in Clerkenwell

The revival of mystery plays, and a more visual form of religious practice, is in the news today: https://www.theguardian.com/world/2018/jun/24/england-cathedrals-back-to-middle-ages-mystery-plays-pageants-chester-st-albans .

Anyone with an interest in things medieval will probably have had to deal with the various surviving mystery plays at one point or another – they have something to contribute to many fields beyond medieval literature/drama/popular theology, even to my rather technical work on legal history. They crop up so regularly that it is easy to assume that everyone in the middle ages thought mystery plays were great. Recently, though, I came across a case which suggests otherwise. I had filed it under the rather un-academic title ‘PrioressGrumpyPants’, I am afraid. Time to share it.

The scene:

Clerkenwell, Middlesex, somewhere in the (Augustinian) priory of St Mary

The cast:

The prioress

The king (probably Edward I, but dating is not certain)

The people of London (various, noisy and unruly, according to the prioress, who calls them sauvage gent)

The modern reader

The plot:

The prioress of Clerkenwell is not happy. She is in charge of the priory’s finances, and, like virtually all medieval nunneries, Clerkenwell’s finances are always a bit insecure. A particular annoyance is that she is not getting as much in the way of crops from her fields as she ought to – mainly because of the habit of people of London of coming onto the land and trampling the crops, with their fights or wrestling matches – and their mystery plays (lur miracles & lutes). She petitions the king to ask him to do something about it, saying that the common law has been no help. The response is a bit mealy-mouthed, suggesting that there has been some sort of instruction to a local official, the constable.

The modern reader is not convinced that one constable would be able to do much against the weight of Londoners wanting to use this land for their terrible unruly dramas. She understands the prioress’s financial worries, and is, of course, interested in her as a medieval woman with exceptional power and influence, testing the boundaries of medieval gender constructions, but does feel that grumbling about the unwashed hordes engaging in religious drama might be a little at odds with the idea of religious people as, you know, interested in promoting religion and suchlike. She also wonders if the Londoners might have made a good case for the religious orthodoxy of wrestling matches, based on Jacob’s bout noted in Genesis 32:24-32.

GS

24/6/2018.

 

References and reading

The record is SC8/98/4858 and you can see a summary (and even a scan of the document) on the National Archives website: http://discovery.nationalarchives.gov.uk/details/r/C9149425

If you want to read more on medieval nuns (and who wouldn’t?), the best place to start is still E. Power, Medieval English Nunneries c. 1275-1535 (Cambridge, 1922)  (and see her point at p. 36, that ‘[T]he dry-as-dust pages of the medieval law-books hide many jewels for whoever has patience to seek them …’ I would have disputed the dry as dust dig, but it’s broadly pro-legal history, so she is all right by me.)

A good entry into medieval mystery plays is: P. Happé, English mystery plays: a selection (Harmondsworth, 1975). Or go and see them – seeing the York cycle long ago was one of the things that started me off on this whole medieval thing …

 

 

The other disadvantage of excommunication…

A Cambridgeshire case from the early part of the reign of Edward III shows the other disadvantage of excommunication (apart from the whole ‘no communion, going to Hell…’ side of things, that is) and also contributes to the rich and fascinating picture of women’s participation in medieval ‘criminal justice’.

The case was an appeal of robbery, brought by a woman, in which an objection was raised by the accused man, contending that he should not have to face such an accusation brought by a woman he claimed to be in a state of excommunication. It qualified for Year Book reports – it is both YB Pasch. 3 Edw III pl 33 f. 19a;  Seipp 1329.072  and also 3 Edw. III Lib. Ass. 12 f. 5b; Seipp 1329.171ass; http://www.bu.edu/phpbin/lawyearbooks/display.php?id=6228 https://www.bu.edu/phpbin/lawyearbooks/display.php?id=6327,

and I have found the plea roll entry in the King’s Bench roll for Easter term 1329: KB 27/276 Rex m.9; see also m.9d.

As is often the case, the reports are light on, or inconsistent as to, details. Putting it all together allows us to get a little nearer to what was going on.

The plea roll entry clears up the reports’ disagreements on the parties: it should be Margaret le Hornere v. Master Richard Badowe, Stephen Bedel and Thomas Bedel. It tells us that this is an appeal of robbery and breach of the king’s peace. It seems to be from Cambridgeshire rather than Kent, as the reports suggest (‘Cant.’ for Cambridgeshire could easily be misread as indicating ‘Canterbury’). Margaret had brought a trespass case against Richard, alleging that he had locked her up and taken some goods from her, and she had been faced with the argument that she could not do this, as she was an excommunicate, an official ecclesiastical letter to this effect (from John [Hotham] Bishop of Ely) appears to have been produced, and that put a stop to the action (at least until Margaret’s status should be improved.  Not to be put off, Margaret also tried the ‘criminal’ procedure available for ‘theft’ facts – the appeal of robbery – as noted. The KB record of this action gives a more detailed account of the robbery – which she said took place on a stretch of water between Barnwell and Cambridge – and a longer list of the items allegedly taken (much of it fancy  clothing). But the defence and the outcome were similar to the trespass case: Margaret could not pursue the case in her current state of lack of grace, and so the appeal could not proceed.

The case is interesting in a number of respects. In terms of jurisdiction and spiritual-temporal procedural matters, it is worth noting as an example of the effects of excommunication on ability to litigate in the secular courts. If one were able to have potential accusers excommunicated, that might be a very good way to hold them up, or even discourage them from pursuing their suit. In terms of the law on appeals, it looks as if there was some doubt about what should be done with the defendant in a case like this, once it was established that the woman bringing the appeal was excommunicate. The record shows a slightly makeshift looking series of securities being used, while Margaret was allowed time to show she had been absolved.

Things trundled on, with requests for Margaret to produce evidence of absolution, security for Richard’s appearance and several court dates, but in the end, Margaret seems to have given up, and never did manage to show that she had been readmitted as a communicant. Richard prevailed in the end. Nevertheless, Margaret did show an interesting flexibility in what action to bring, as well as clearly being rather keener to bring Richard to justice than to make sure that her soul was safe.

GS

25/1/218 (Dydd Santes Dwynwen!)

 

Swooning and sexual offences: recent article

Thoughts on Victoria Bates (2016): ‘Under Cross-Examination She Fainted’: Sexual Crime and Swooning in the Victorian Courtroom’, Journal of Victorian Culture (2016)

As an openly medievalist legal historian, I am not a regular reader of this journal, but am glad that I was put on the trail of this very interesting study of the fascinating but frustrating world of the Victorian trial. There is so much information, in comparison with the trials of earlier eras (and – hurrah – no Latin), and yet it often feels as if the most important things remain annoyingly opaque.

The author makes a good point about the various meanings and readings of fainting/loss of consciousness in women, in connection with sexual offences and sexual offences trials. The volume of court records studies is such as to impress the most train-spottingly completist legal historian (guilty), and the material brought in here is a valuable addition to the burgeoning literature on sexual offences, and attitudes to them, in the nineteenth and twentieth centuries. The whole thing got me thinking about whether the use of the swoon in descriptions of sexual offences was something of a compromising device – getting a jury on the side of the prosecutrix in a trial for an offence less than rape (most of the cases covered here are ‘lesser offences’), whilst perhaps making the facts as presented less of a ‘fit’ for rape (even if the act was in fact completed) because there would be a problem in relation to lack of demonstrated absence of consent.

Anyway – a good piece of work and worth a look.

Law in space (but no rockets)

There is a very thought-provoking and bold legal history related article in the latest Past and Present: R. A. Houston, ‘People, Space, and Law in Late Medieval and Early Modern Britain and Ireland’, Past and Present 2016 230: 47-89

The article argues for a significant difference between English law on the one hand and the laws of Wales, Scotland and Ireland on the other, based on the relative importance attached to personal and territorial jurisdiction. In brief, it is contended that territoriality was more important in England, while the other parts of the British Isles emphasised jurisdiction based on personal links.

The argument is made with spirit (and is rather more nuanced than might seem from my summary above) and there is a lot in it to interest legal historians from all parts of these islands. As a good article should, it also leaves room for debate in several areas – e.g.

  1. To what extent would it upset the argument to factor in gender (since women in all areas were arguably more affected by personal links with male family members and their powers and rights than they were by territorial jurisdiction)
  2. Are territorial jurisdiction and personal jurisdiction best considered as a linear ‘continuum’ (p.89) or as something more 3D?
  3. Exactly how does the common law ‘doctrine of estates’ relate to the idea of territoriality? (I have been teaching Land Law too long …)

J.H. Baker, Selected Readings and Commentaries on Magna Carta 1400-1604

Selden Society vol. 132 has arrived with a hefty thump on the doormats of Selden Society members and libraries. It is, of course very timely, given this year’s 800 year commemorations of the 1215 treaty/statute/event/totem. This volume provides some very interesting comments on parts of Magna Carta, from common lawyers of the later medieval and early modern periods. They are shown in parallel texts, original law-French and modern English.  I am sure we will be using this for a considerable number of years.  There are certainly a number of nuggets which I have already found useful, including some classic misogyny (however ‘disappointing’ the editor finds this – lxx –  it is hardly a surprise). Sadly for Magna Carta nerds, there is nothing about fish weirs or weights and measures, but otherwise another impressive volume.