Tag Archives: trial by battle

Courtesy, curtesy and houses of cards

In a few weeks, I will be amongst the speakers at an online launch for the collection of papers by the late David Sellar, edited by Hector MacQueen. My job is to give some thoughts about the importance of Sellar’s work and ideas, from the perspective of English legal history.[i] There is a great deal in the book which would be of relevance to this theme, but one thing which leapt out at me at once was an old friend – his article on courtesy.[ii] Courtesy, or ‘tenancy by the courtesy of Scotland’ was the life interest (liferent) which a widower might acquire in land brought to a marriage by his wife, on certain conditions, and was part of Scots common law from the medieval period onwards. A very similar institution existed in the common law of England: ‘tenancy by the curtesy of England’. The reason this Sellar article is an ‘old friend’ is that it is something I have consulted in at least two different projects of my own. The first of these was work leading to an article on medieval English curtesy; the second a very recent project  – a chapter on intractable factual uncertainty in the early stages of life, for a collection on intractable factual uncertainty more generally. Sellar’s article was very useful for both of these projects.

The article concerns a particular dispute at the highest levels of fourteenth-century Scots society, the opposing parties being James Douglas and Thomas Erskine. James Douglas (JD), one of the many holders of that name who crop up in the history of Scotland, would later be known as Sir James Douglas of Dalkeith. He was nephew and heir-male of William Douglas of Liddesdale (WD: there are quite a few William Douglases to deal with as well, our William was killed by another William Douglas, one who would later be first earl of Douglas. The fact that JD was heir-male meant that on WD’s death, he acquired the lands which were limited to the male line. The other lands went to WD’s daughter, Mary. Mary’s marital history is quite interesting (there was an annulment in there) but the key fact for these purposes is that she was married to Thomas Erskine (TE), at some point before 1367. Mary died giving birth to their child, and the child – to put it neutrally – did not survive. JD was Mary’s nearest heir (and if this took full effect, he would ‘scoop the pool’, taking all of the land previously held by WD. TE, however, had different ideas. He claimed to be entitled to a life interest in the unentailed lands, which Mary had held, on the basis of tenancy by the courtesy of Scotland. This claim could only succeed if TE passed the test of having produced a child with his wife, Mary, the child having been born alive. TE said that this had happened; JD said it had not. The case, then, came down to a dispute over whether a child, now dead, and certainly dead soon after its birth,  had ever been alive. This was not an easy matter to determine – what was ‘alive’, and how could the presence or absence of life be proved? You can see why this sort of question has featured in my contribution to the ‘intractable factual uncertainties’ project. Different legal systems came up with different answers to this question, if it could not be avoided, but the way that Scots law dealt with this one is both unusual and more exciting than one might expect: the thing was to be tried by judicial combat, and this was ordered in 1368.

Trial by battle has long been a favourite topic for my undergraduate (English) Legal History classes. It garnered even more attention than usual, recently, as a result of the film The Last Duel. Generally, it is discussed most often in the ‘criminal’ context, but it was also a possibility in relation to certain land actions. The idea, of course, was that the truth of a matter was submitted to the judgment of God: God would favour the person[iii] with the just cause.

Those working on the history of English common law are familiar with the idea that trial by battle might apply in the old, formal writ of right, though there was a generally-more-palatable alternative in the grand assize. It does not seem entirely surprising that it was thought that the solemn question of entitlement to land could be decided by battle – after all, land disputes in a non-judicialised setting would quite probably be sorted out in this way. The use of battle to determine a more limited factual question, such as whether a child was ever alive, is, however, unfamiliar. Evidence relating to such determinations in English common law comes from the less solemn ‘petty’* or ‘possessory’  assizes, which did not purport to make a holistic decision about the ‘right’, but to resolve a more limited dispute. This English evidence  shows the use of groups of jurors, perhaps drawing on the expertise or observation of those present at the birth (who might even be – shock, horror – women!). The Scots difference is, therefore, really interesting. The case was a little anti-climactic, in that, although there was serious preparation, and purchase of all manner of warlike equipment, in the end the dispute was settled. Nevertheless, the fact that battle was even in the running as a way of deciding such a delicate question of newborn life is instructive.[iv]

As well as this big difference between systems on the matter of battle, the similarities between the English and Scots law in this area should be borne in mind. The structure of courtesy/curtesy was broadly similar in both jurisdictions, both named it in ways which ascribed particular generosity to their own system, and both made the widower’s right depend on having fathered a live, legitimate, child. Furthermore, in both cases, the test for live birth was expressed in terms of hearing the newborn cry ‘within four walls’. This does not come up directly in the Erskine-Douglas documentation, but there is a splendid quotation in Sellar’s article, from Skene, which mentions the need for the child to make a sound, using some fantastic language – ‘cryand’, ‘brayand, squeiland, or loudlie cryand’.[v]

Such similarities point to a common origin, and a degree of borrowing (the likelihood being that the smaller Scots system was influenced by the larger English common law system, as Sellar argued). Questions of origin of rules and institutions are certainly important and interesting, but comparison beyond the point of origin is at least as crucial. In the area of c[o]urtesy, as in many other areas, there are large gaps in our knowledge. Despite the relative wealth of records of practice for England as opposed to Scotland, my study on curtesy still left me with substantial uncertainties as to what was going on between the end of the thirteenth century and the early modern period. In particular, what was the status of the sound test during this period: at what point did a less prescriptive requirement for evidence of such signs of life as would satisfy the jury become usual? Where there is an analogous piece of law in Scotland, as is the case here, in a case of insufficient evidence, it seems not inappropriate to consider it as something which can help us to ‘fill in the gap’. In doing this, we must, of course, be alive to differences in social and legal context, and the task of using two less-than-secure sets of evidence to hold one another up can be a delicate task, reminding me of the process of creating a house of cards, leaning one card against the other so that both stay up, at least for a while (a favourite childhood activity of mine). Nevertheless, there are books and articles enough on Scots legal history to put a decent understanding within the reach of the most insular (if England was an island …’precious stone set in the silver sea’ and all that)[vi] English common lawyer. Not making the effort is not only ‘missing a trick’, but, frankly …

discourteous.

GS

3/2/2022

 

 

The image is from Wikimedia Commons.

[i] I confess to enjoying the fact that the person invited to talk about English law is, in fact, a bit of a Cymraes.

 For England, see Wales, for once …

[ii] W.D.H. Sellar, ‘Courtesy, Battle, and the Brieve of Right, 1368’, in H. MacQueen (ed.), Continuity, Influences and Integration in Scottish Legal History (Edinburgh, 2022), c. 14, originally ‘Courtesy, battle and the brieve of right, 1368: a story continued’, in W.D.H. Sellar (ed.), Miscellany II (Stair Soc. vol 35, 1984) 1–12.

[iii] Well, ‘man’ – this was a ‘men only’ procedure.

[iv] It is important to bear in mind, also, that the high social status of the parties contributed to what was seen as the acceptability of trial by battle. As Sellar noted, this combat was to take the form of a ‘duel of chivalry’, albeit over a question of land rights.

[v] Sellar, 301-2; Skene, De Verborum Significatione (1597)  sv “Curialitas”. Quite fascinatingly, the Skene quotation makes mention of non-human noises, just as a passage in Bracton IV:361 does, but, while Bracton distinguishes the sound of a human child and a monster quite clearly, Skene muddies the waters a little, musing that the same word is used for both children and horses, harts ‘and uther beastes’.

[vi] Richard II, Act II, Scene I.

Gender running Amok? Thoughts on classic Star Trek episode ‘Amok Time’ (1967)

This episode (the first episode of the second series) has several iconic aspects – first appearance of Chekov, first time out for the Vulcan salute and only trip to Vulcan in original Star Trek – but on rewatching it during my lockdown completist marathon, I was struck by two things. The first was the Legal-Historian-pleasing ‘trial by battle’ between Spock and Kirk with lirpa – weapons looking not a million miles away from medieval judicial duel weapons. Another time. It’s the second I went away thinking about, and will muse upon here – the portrayal of women. Not strictly Legal History, I suppose, but then again, both LH and Sci-Fi are about messing about with time, imagining other eras; and there are certainly some resonances with ideas about women in history, so I think I’m allowed.

The fabulous Lt Uhura on the bridge is not given much attention here – she is just doing her job. The three who are prominent are Nurse Christine Chapel, on the Enterprise, and, on Vulcan, T’Pau and T’Pring. These three all interact with Spock, who is in the grip of the pon farr mating urge, and, to cut a long story short, has to go to Vulcan to consummate his union with T’Pring, or, it is feared, he will die.

Chapel is the least inspiring of the trio. She is revealed to be hopelessly keen on Spock, fussing about after him and bringing him Vulcan soup. Very nurturing. Doesn’t go down well, though, Spock is quite nasty to her.

The best action is on Vulcan, where we have the powerful T’Pau – a diplomat, judge, and more, who presides over what was supposed to be a marriage and turned into a ritual battle – and the fascinating T’Pring. As Lt Uhura exclaims, she is beautiful.

The portrayals of T’Pau and T’Pring are very interesting. They are in some ways positive and forward-looking (in earthly terms – remember when this was written) but the writers could not quite let go of the assumptions of their own times. T’Pau, for example, is respected by all, but is portrayed as rigid and perhaps cruel. Powerful woman as ‘cold-hearted-bitch’ model? T’Pring is clever – even Spock praises her logic – but we are supposed to see her as a bit of a scheming minx and Vulcan ‘gold-digger’, arranging things so that she can get Spock’s property but be with the beefier Stonn instead. I wondered to myself, also, whether it was easier to give power to women who were ‘other’, rather than to the human women, who, on the Enterprise, were always subordinate to men. The Vulcans were portrayed as decidedly ‘Oriental’ (in an indefinite, pan-Asian manner). T’Pau on her litter, with her formality, was particularly reminiscent of an empress of China. Then again, she did remind me slightly of the statues of the BVM which are carried through Spanish streets on holy days. (That of course would make a nice contrast with T’Pring as an Eve-like temptress).

Vulcan law and customs as portrayed here include elements popularly regarded as ‘medieval’ – as well as trial by battle, we had marriages arranged by families at an early age, and the idea of a wife as the property of a man. I was particularly disappointed to hear T’Pau buying into the ‘wife as property’ thing: not much female solidarity with T’Pring there. I assume that there was no Mr T’Pau, otherwise, on this evidence, she would have been at home being a chattel. Even Spock entered into woman as property trope territory when he left Stonn with a little speech about ‘having’ not being as good as wanting (T’Pring, or women in general…) I must say, I came away from watching this as a grownup feeling admiration for T’Pring, for playing the system and getting out of what was clearly a most illogical arrangement. Live long and prosper, T’Pring! (And give Nurse Chapel some tips on not being an inter-galactic  doormat).

GS 27/6/2020