Tag Archives: trespass

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Arrest, authority and a poisoning allegation: excusing trespass in fourteenth-century Leicestershire

Here is what looks like a YB-Plea Roll match. It took some finding, in a long roll with lots of very dull, terse, entries in writing which is on the turn towards (shudder) early modern style (a little enlivened, it is true, by some great footnote doodles). The case is Richard Wynslowe v. John Cleypole (1489),[i] a Common Pleas trespass case which starts off in fairly banal fashion, but gets quite intriguing, quite soon.

We are in Leicestershire, and John Cleypole, of Halloughton, gentleman, is answering a case of trespass. It was alleged that, on 4th March 1488 he had broken into the house of Richard Wynslowe, clerk, of Halloughton, and assaulted and threatened his servants, Robert Tyrlyngton and Isabelle his wife; whose services Richard lost for a month, which, so he claimed, caused him loss of 10 marks). Thus far, this is fairly common-or-garden stuff. The interesting bit comes with the defence argument.

John denied most of the allegations, except for the part about entering Richard’s property. As far as this was concerned, however, he argued that Richard should not succeed in bringing this action, because his entry had been to arrest a felony suspect. He explained that Isabelle was suspected of poisoning one Thomas Shepherd at Houghton. According to John, ‘long before’ the day of the alleged trespass, Thomas had been poisoned (intoxicatus), and Thomas, languishing on his deathbed at Halloughton, had contacted John and had told him, openly, that Isabelle had given him a poisoned draught (potum venenosum), of which he died, before the alleged trespass, at Uppingham in Rutland. John said that, after that, suspecting Isabelle of causing the death, he had gone to Richard’s property, had entered to arrest Isabelle, and had then taken her to the king’s gaol of Leicester. The thrust of his argument was that this was not the trespass alleged by Richard, and Richard should not succeed.

There are small variations in the Year Book. For example, the report simplifies the facts, making the allegation that it was the plaintiff (Richard) who was suspected of the poisoning, rather than a servant of his. Both Robert and Isabelle disappear from view. In addition, there is some difference in the way the two sources deal with the way the poisoning allegation was supposed to have reached John. The YB describes this as coming via ‘common voice and fame’. There seems to have been some dispute as to whether this was sufficient (perhaps leading to the version we see in the plea roll, with the idea of a specific report by Thomas to John).

The YB deals in more detail than does the PR with the question of authority. In the YB there is discussion of the fact that John was acting on the orders of the sheriff, which does not appear in the PR. The YB shows discussion of whether John should be allowed to interpose the sheriff and his command here, and apparently it was resolved that he needed to remove the sheriff from the equation, basing his conduct on his own suspicion of Isabelle’s felony. There is also discussion of the way in which the poisoning allegation itself should be handled: was it acceptable to use it as a basis for John’s conduct, without allowing an opportunity for it to be denied? Here, discussion in the YB suffers from its simplification: having treated the plaintiff and the alleged poisoner as identical, this distorts what appears to have been the true situation – a justification of conduct complained of by X, on the ground of a serious allegation against Y. Basing themselves on their simplified model of the case, so the YB tells us, ‘All the Court’ thought that John ought to have put the poisoning allegation in such a way that Richard could have traversed it: he had to be given the opportunity to say it simply did not happen. It is not clear, though, that they agreed on what this meant: did it need to be amenable to a traverse under normal pleading rules  within this case, or was it enough that there was a theoretical possibility of bringing a separate writ de odio et atia, as one judge was reported to have said?

The PR entry ends with Richard’s final gambit. Careful not to admit that Thomas had been poisoned as John alleged, he made the argument that Thomas did not notify John that Isabelle gave him the potum venenosum, as John had said, and that John had trespassed in the way he, Richard, had stated. This was the issue which went to the jury.

 

So what?

In terms of Legal History, and the development of law, I think there are a couple of Interesting points. I have noted above some of the differences between YB and PR. Looking at them together gives snapshots of the process of formulating issues, and the way in which medieval lawyers worked by simplifying complex facts – sometimes, we might think, over-simplifying them.

It is worth thinking about what all of this reveals about attitudes to ‘policing’ and (massive anachronism alert …) ‘civil liberties’. In relation to the arrest power which features in John’s defence, the thinking does not seem to be that a person could not arrest another on the (to us, nebulous) ‘fame of the country’, even though, in the end, John conveniently seems to find that there was actually a direct communication to him from the languishing poison victim, but that, for ‘common fame’  to be an acceptable basis for arrest, defeating a claim of trespass, the person doing the arresting had to take responsibility, as an ordinary citizen, rather than shielding behind the authority of the sheriff. We see, I think, co-existing ideas of community and official responsibility, and perhaps some tension between them. Richard certainly decided to proceed with caution, in framing a narrow issue based on John’s claim of actual notification by the deceased.

There are, of course, questions about the real story, and how it ended. It may be possible to find out whether Isabelle was convicted of the poisoning, and it may be possible to find an ending for this trespass case. I will certainly be looking. Other things may well remain murky – in particular, why was Richard so keen to protect an alleged poisoner, what was the role and relevance of Robert, and was there some other ‘beef’ (poisoned or otherwise) between Richard and John lying behind this?

GS

 

6/3/2021

 

 

[i] CP 40/910 m. 340 (IMG 665) http://aalt.law.uh.edu/AALT3/H7/CP40no910/aCP40no910fronts/IMG_0665.htm; Seipp 1489.041; BU Law | Our Faculty | Scholarship | Legal History: The Year Books : Report #1489.041

Herefordshire trespass/alibi case

 

YB Trin 20 Edw I pl. 84; Seipp 1292.133rs is John Lovet v. Walter de la Barre and others (1292), JUST I/303 m. 30d; JUST 1/302 m. 40d, a trespass case brought by John Lovet against Walter de la Barre and 27 other men, alleging that, on a specific day in the fourteenth year of Edward II, at Hereford, the Ds had assaulted and imprisoned P (keeping him for 18 days)  and taken £20 worth of his goods (to his damage, with force and arms contrary to the peace of the lord king). P claimed the damages to him amounted to £40. Two of the defendants pleaded alibis – John Lyghtefot claimed to have been in London on the day named, and William Hamelyn said he had been in Bristol. The matter was sent to the jury. The Yearbook tells us that the remaining defendants made other pleas – suggesting that this was a lawful arrest, and also self defence (when John, who had been involved in a crime, fled and attempted to resist arrest with a sword) rather than an unlawful attack. It adds further pleading points and information about the powers of bailiffs.

Kissing and trespass in the fifteenth century King’s Bench

In early 1422, Amice Everard brought a trespass case against John Bennet of London, servant [KB 27/643 m.5 AALT image 10]. Her allegation was that, on Sunday next before the feast of St Bartholomew the apostle, in the ninth year of King Henry V [August 24th, 1422],  he had, with force and arms, i.e. swords, clubs, and daggers, broken into her home, in the parish of St Olave, in the ward of Coleman Street, in London, and had assaulted, beaten and mistreated her, and committed other enormities, against the king’s peace, causing her £40 worth of damage. This allegation followed a stereotyped formula which had evolved over the previous couple of centuries, and is not therefore particularly informative. All we really know is that she was saying that he had come into her house and committed some sort of trespass to her person. The defence, however, is more than usually full, and of some interest in relation to medieval gender relations.

John made his defence in person (in contrast to Amice, who spoke through her attorney). He denied most of Amice’s allegation outright. As far as the entry into her home was concerned, he said that he had, at the time concerned, Amice’s permission to enter the house when he wished, so that, on this occasion, he was in the house with her consent. As for the assault on Alice, he said that, at the time of the supposed trespass, he entered the house as stated, and had a romantic tryst (colloquium … causa Amoris) with Amice. With Amice’s agreement, consent and free will, he took her in his arms, put her on her bed and kissed her. He said that this was the assault of which Amice complained in her writ, and asked for judgment whether she should be allowed such an action against him. Amice stuck to her story that there had been a wrongful entry and assault, without such cause as John alleged, and the matter was referred to a jury for trial in a future term – sadly then disappearing from the record.

As usual, there is no way of knowing the truth of allegation and counter-allegation. Was Amice complaining about a kiss, some other intimate assault, or about some other assault entirely? Were the two parties known to each other at all, and, if so, in what capacity? Nevertheless, there is useful material here. From the point of view of social history, it is welcome to find some hints of what was thought of as plausible romantic conduct, and to note that John was a ‘servant’ while Amice appears to have been a householder. From the point of view of legal history, it is interesting to obtain some small insights into views on consent in the sexual context, beyond what can be gleaned from ‘criminal’ cases of rape or cases of ravishment of wives with their husbands’ goods. In particular, it noteworthy that John is so insistent on Amice’s willingness that he uses not one but three terms to signify consent to his presence and actions. There may be some contrast here to the apparently low level required for consent in cases of alleged felonious rape.

Gwen Seabourne

21/2/2014

Image: public domain.

Not sparing the rod: a fifteenth century schoolmaster’s defence

The King’s Bench plea roll for Trinity term 1410 has a trespass case which sheds a little light on ideas about discipline in medieval education.

John Bolter v John Fferlogh (1410 KB 27/597 m. 44d; AALT image 0382) is a Devon case. John Bolter alleged that Fferlogh had assaulted and beaten him in Ottery St Mary, on Monday after the feast of All Saints in the first year of Henry IV (Monday 3rd November, 1399). Fferlogh’s attorney denied any wrongdoing, saying that, at the time in question, Bolter had been ‘of tender age’ and had been his pupil, learning grammar, living with him at Ottery St Mary. Bolter, he said, had frequently got himself into the company of bad boys, and company which did not befit his status, was not learning either grammar or good morals nor obeying Fferlogh. Fferlogh had taken action to chastise and inform Bolter, had removed him from the bad company he had been frequenting, told him off and had chastised him with a small rod on a number of occasions, and it was stressed that he (Fferlogh) had not beaten him through malice, but only in this way.   Bolter stuck to his story that this was a trespass and Fferlogh to his excuse, and so the matter was sent out to proof.

As ever, it is impossible to say whether or not Fferlogh was telling the truth that he had acted only in the manner he stated, or whether he might have acted with a different intention, or more violently. It is interesting, however, to see what both sides presumably regarded as appropriate chastisement. Fferlogh’s story would not have been stated in this fashion, had such chastisement, for such causes, at such a level, been regarded as inappropriate. Note in particular the insistence that the rod in question was ‘small’ – suggesting a degree of thought about what was legitimate practice in informal corporal punishment, and the construction of a test in terms of size of weapon as opposed to damage to the person being punished. Such a rule would later be said to have applied in the context of marital chastisement.

Finally, it is interesting to note that the former pupil had waited so long to bring this action – perhaps only doing so once he was of an age to start his own litigation. No limitation principle operated to stop him doing so.

GS 31/1/2014

For an earlier ‘school corporal punishment’ case, see William Cornewalle of London, taverner,  v. Adam Aas, vicar of the church of Oakley (Beds) CP 40/430 m.241d (1368). This is also an allegation from some time before – from 25 Edw III (1351-2). Adam claimed that William was his pupil, and he had his him as was customary, with a rod, (no size specified) for his faults. The jury did not agree with Adam’s defence, and William was awarded damages.  Both cases are quite illuminating on the subject of what was regarded as ‘reasonable chastisement’ in the educational context, and show that grudges could be borne over long periods for perceived brutality. Also, it is interesting to note that the jury here found it perfectly plausible that a cleric might be brutal to his pupil.