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.

The Damsel of Brittany rides again

 

Eleanor of Brittany (1182×1184-1241) is somebody who kept popping up in my research on female imprisonment, and I tried to draw together some thoughts about her in an article back in 2007: ‘Eleanor of Brittany and Her Treatment by King John and Henry III’, Nottingham Medieval Studies 51 (2007): 73–110. Given this, I was very interested to see a very good new article focusing on this unfortunate and under-explored Angevin princess – Stephanie Russo (2016) ‘The Damsel of Brittany: Mary Robinson’s Angelina, Tyranny and the 1790s’, English Studies, 97:4 (2016), 397-411. This looks at the creative use made by the late 18th century novelist Robinson of the story of Eleanor of Brittany. Eleanor – or a fictionalised version of her – features as part of the mental world of the more modern characters in the epistolary novel Angelina, and as a point of comparison for some of the characters’ own situation.

Robinson’s Eleanor gets a bit of a romance – wouldn’t it be good if that was actually true, if there had actually been some such highlight in her life? But sadly very unlikely! It is rather intriguing that Robinson was a Bristolian by birth – did the story of the princess imprisoned in Bristol castle linger even in her day?

Anyway – good to see some attention being paid to Eleanor. I am secretly hoping that the current craze for digging up lost royals (Richard III, Henry I etc.) might mean an increased chance that somebody might have a go at locating her in Amesbury, and maybe find some clues to why she was apparently so keen to be buried there rather than Bristol (or why Henry III chose to say that she was).

Who owned Wales?

There’s a great opportunity to help make a fantastic digital resource relating to land in Wales in the mid-19th century. Using tithe maps, the Cynefin Project is creating a picture of land ownership, occupation and use, as well as the increasingly unpopular tithing system, across the country. The documents are not too difficult to read, and there is a wealth of fascinating material here – about who did what, and who owned what. Once it is all done, this will be a really valuable resource, for those interested in particular individuals, places, industries. I have already noticed some interesting material on how much land was held on trust, and concentrations of ownership in particular individuals (and, in one I’ve just done, Eton College). Feeling more than a little Rebecca-Rioty about it all!

Find the project at: http://cynefin.archiveswales.org.uk/en/ and do a few pages!

[22/06/2016] Working my way through some parts of Monmouthshire. Fascinating material on use of Welsh and English in this border area. Mostly English personal names, but still a lot of Welsh names for fields. There’s a Ph.D. in there for somebody.

 

 

Registering objections (a rare foray into the modern world)

The government is asking for responses to its proposals for privatisation of the Land Registry: https://www.gov.uk/government/consultations/land-registry-moving-operations-to-the-private-sector  Responses by 26th May.

This might not be an obviously exciting topic – the body which investigates and records land titles probably isn’t at the forefront of most people’s minds. Even land law students tend to yawn at the mention of land registration. But it is important – nobody who buys or sells a house can avoid involvement with the Land Registry. It is compulsory to make entries on the Register whenever land is sold, or dealt with in a variety of other significant ways.

The Land Registry does several important jobs which need to be done securely and competently. Accountability and transparency are also crucial. It is hard to believe that a move into the private sector would maintain standards in any of these areas, let alone improve them. There was considerable opposition to this move last time it was tried (under the Coalition) and the objections still apply.

The Land Registry is a (rare) publicly-owned body which does not lose money. Selling it off raises suspicions that the government is planning a quick sale for cosmetic purposes: ‘selling the family silver’ at a knock-down price, (see also the recent Royal Mail privatisation).

It also has to be said that it doesn’t look good to be doing this at a time of disquiet about hidden assets and offshore trusts and companies: whatever the talk about safeguards and maintaining access, would there really be any chance of getting the sort of information from a privatised Land Registry which allowed Private Eye to survey the proportion of English and Welsh property owned by offshore companies (http://www.private-eye.co.uk/registry )?

 

 

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 …)

‘Friends and enemies: ‘suffragette’ incidents in Abergavenny, 1913’

Gwen Seabourne, ‘Friends and enemies: ‘suffragette’ incidents in Abergavenny, 1913’

(abstract of a paper given at the University of Bristol Law School, June 2014)  

The National Eisteddfod of Wales was held in Abergavenny in August 2013, and, leading up to it, there seemed to be particular reasons to suspect trouble: the militant suffragettes’ arson campaign was at its height. Wales, Abergavenny and the Eisteddfod had been targeted in the recent past, and two suffragette hate-figures, Reginald McKenna, the Home Secretary (and north Monmouthshire MP) and Lloyd George, Chancellor of the Exchequer, were expected. An anonymous Welshman threatened, in a letter to the press, to shoot any suffragette attempting to disrupt the Eisteddfod. Extra police were hired and other security precautions taken.

 

There was, in fact,  no direct attack on the Eisteddfod. Suffragettes were, however, reportedly present, leafleting. There was some apparently genuine destruction by ‘militant suffragettes’ in Abergavenny (the burning of a cricked pavilion and a hayrick), and also an case of a young man from Abergavenny creating a hoax ‘suffragette’ incident in nearby Llangattock shortly afterwards.

 

Until comparatively recently, there was an accepted narrative that suffrage campaigning, and particularly militant violence, was largely not acceptable to liberal, nonconformist Wales. It was not, however, entirely true, and it bears some reconsideration: see the painstaking work of Beddoe, Masson, Johns and Wallace,

 

The Abergavenny cases are good correctives to a too simple view of Wales as not interested or hostile to ‘the cause’ and the WSPU militants in particular as disruptive middle class English imperialists trampling all over cherished Welsh cultural institutions. It is worth considering why setting up this opposition was and has remained attractive.

 

‘Welshness’ is not and was not, in any case, an unproblematic thing, so that it is unrealistic to expect (or construct) a single ‘Welsh’ response to, or view of, suffragettes. And if Welshness in general is problematic, it is particularly so in Monmouthshire in general, and Abergavenny in particular: one only has to look at the Abergavenny Chronicle’s reports of wrangling over the holding and financing of the Eisteddfod there to see that that is true.

 

It is interesting to note, by way of postscript, that the version of Welshness of the Eisteddfod, with its emphasis on the language would have its own ‘militant’ phase, half a century and more later.

[I plan to publish a full – length paper on this topic in due course. For further reading, see, in particular, A.V. John, ‘Run like blazes: the suffragettes and Welshness’; and R Wallace, The Women’s Suffrage Movement in Wales, 1866-1928 (Cardiff, 2009).]

New work on removing the marital rape exception

Worth a look, new and interesting article: Adrian Williamson (2016): The Law and Politics of Marital Rape in England, 1945–1994, Women’s History Review, online early release. Discussing the slow move to change in the law. If this is taken along with the article about the use of wives’ adultery in homicide cases, by Kesselring, (see my recent blog post) it reinforces the message that one of the biggest things which has to be overcome, when trying to improve the lives of women, has been – and is – the misinterpretation of history, to give some spurious form of legitimacy to rules which disadvantage women (‘look – this has long historical roots: that has to mean something, doesn’t it?). Kesselring pointed out the relatively short and somewhat shaky background to the idea that husbands who killed wives caught in adultery should receive lenient treatment. Here, Williamson deals with the marital rape exception, including the way in which Matthew Hale’s remarks on the subject were transformed into holy writ.

From the point of view of my own research, this is something to link into the work on suffrage campaigns (thinking about tactics for changing law, and about tactics used to resist improvements for women) and, more widely, it is something to bear in mind when looking at the extent to which legal history can be misused in the interests of dominant groups of various sorts. Some of the material here is well known to legal scholars – e.g. the material on low reporting and conviction rate in rape – but there are some interesting reminders of 19th and 20th century case law in this area, and of the pronouncements of different politicians, judges and academics (Lawton, Fairbairn and Glanville Williams in particular – a very topical Trump reference in the conclusion), and the point about there being a struggle right to the end to get rid of the exception, rather than there being any inevitability about it, is an important one.

There is often a strange amnesia, or instant mythologising, which occurs after a progressive change. Opposition is de-emphasised, everyone was somehow always in favour of the change, and it was always only a matter of time before things were put right. As the discussion here shows, change needs dedicated action from people who are prepared to be opposed, belittled and ridiculed.

26/2/2016

Prisons and aliens: new articles of legal-historical interest, January 2016

Prisons and aliens: new articles of Legal Historical interest, January 2016

Two to note on ‘early release’ from Historical Researchhttp://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1468-2281/earlyview

J.M. Moore, ‘Reformative rhetoric and the exercise of corporal power: Alexander Maconochie’s regime at Birmingham prison 1849-51’, explores the wide gap between what was said and what was actually done by this former Australian penal settlement gaoler in the new prison at Birmingham, and provides an important correction to  the former positive view of his practices. Maconochie’s ‘mark system’ ideas of task-based sentences leading to mental submission are quite well known. The lack of political approval of a trial of the mark system in the domestic context is interesting, however, and the evidence on actual practice in Birmingham given here is, however, illuminating (in a dark way). Unable to link tasks/behaviour and length of sentence, Maconochie linked these things to food and conditions in a very harsh way, and was rather keen on flogging boys and imposing lengthy physical restraints on women. A lack of respect for the need to record such punishments, and the use of his family members in various unofficial roles in the prison combine to give the impression of an arrogant man who did not respond well to frustration, and was determined to try and push through his theories, despite opposition. (I would like to hear more about his wife’s attempts to use mesmerism and homeopathy in the reform of prisoners though).

B. Lambert and W.M. Ormrod, ‘A matter of trust: the regulation of England’s French residents during wartime, 1294-1377’ looks at the treatment of suspect aliens during periods of uncomfortable relations with France, under the first three Edwards. The article notes the flexible response of government at various levels to the ‘problem’ of aliens. ‘Nationality’ was not regarded as a simple or conclusive matter at this point, before the late-14th C introduction of the formal process of ‘denization’ became established. Important differences between the treatment of ‘alien priories’, nobles and those of lower social rank are noted here, with the suggestion of a move from heavy to more flexible regulation in the case of the last group which may be at odds with expectations from earlier research on alien priories and nobles. The central argument is well made and there is much hard-won and useful detail on practice. From a local point of view, it is interesting to see the lack of desire to aggravate foreigners evident in the report of a mayor of Bristol, asked in 1337 to assess and identify the property in the city which was held by Frenchmen, for purposes of confiscation, who chose to say that there just wasn’t any (which was surely untrue) (p.12). Thinking more widely, this article provides very useful ideas and material to include in historical (and current political) work on the nature of nationality and allegiance, and on immigration, beyond the medieval period.

GS 16/1/2016

Articles of interest for legal historians in the latest edition of Historical Research

There are three articles of particular interest for legal historians (as well, of course, as other historians) in the latest edition of Historical Research. (2015, online preview). http://onlinelibrary.wiley.com/journal/10.1111/(ISSN)1468-2281/earlyview

First of all, we have Helen Killick, ‘Treason, felony and Lollardy: a common petition in the hand of Richard Osbarn, common clerk of the chamber of the Guildhall’ This makes interesting points about the role of scribes in the petitioning process, so supplementing the interesting work done by several scholars (particularly Gwilym Dodd) in the area of petitioning in recent years. For legal historians,and in the year of Magna Carta’s 800th anniversary, a particular interest will be in the light thrown upon the problem of long imprisonment without trial. There are also some good points in relation to the mechanics of imprisonment and its organisation, and on perceptions and treatment of accused felons, traitors and heretics.

Then there is Francis Calvert Boorman, ‘The “stormy latitude of the law”: Chancery Lane and street improvement in late Georgian London’. This is a period and topic with which I am less familiar, but which will certainly be useful for setting the scene – complete with runaway oxen, bad cart-driving and the crazy paving of London local jurisdictions – for my students as they consider the world of the legal profession in this era.

Finally, and of particular interest to those of us who have contributed to the forthcoming collection, M. Bennett and K. Weikert (eds), Hostage-Taking and Hostage Situations: The Medieval Precursor to a Modern Phenomenon (Routledge, 2016/2017) is Jacqueline Bemmer, ‘The early Irish hostage surety and inter-territorial alliances’. This is a very scholarly treatment of a complex, and very old, body of law on relations between different polities, and methods of securing peace between them. (It also brings up the very intriguing figure of the ‘lord of slaughter’, an official enforcer of vengeance).

GS 18/12/2015

The Art of Law: important article on images in rolls of the late medieval Court of Common Pleas

An area in which many legal historians have become increasingly interested in recent years is the visual composition of legal records. I gave a paper on this at the British Legal History Conference in 2013 (http://www.gla.ac.uk/media/media_282282_en.pdf ), highlighting the need to integrate the images from the Common Pleas rolls into the King’s Bench-dominated view acquired from Erna Auerbach’s work, and have also made some comments on visual material in this blog (http://vifgage.blogs.ilrt.org/2013/04/07/p-is-for-profile-henry-viii-in-the-rolls-of-the-common-pleas/ ). The appearance of a thought-provoking study of the visual material in the CP rolls in the fifteenth and sixteenth centuries is a welcome addition to this area, and certainly one for reading lists in medieval legal history.

Elizabeth A Danbury and Kathleen L Scott, ‘The Plea Rolls of the Court of Common Pleas: an unused source for the art and history of later medieval England. 1422-1509’. The Antiquaries Journal, 95  (2015), 157-210 looks at the rise of decoration and illustration in the CP rolls in this period, and explored the iconography of the images and the meanings of words and mottoes associated with them. There is much of interest in the identification of particular kings and other characters, and the discussion of the way in which particular images fit in with contemporary political events. I am also intrigued by the mysterious popularity of dragons in these records. Helpfully, there are several good-quality photographs of key images.

Medieval historians are naturally drawn to the political ramifications of the images. I think that legal historians can and should also consider the implications of the illustration and decoration which relates to the image or self-image of particular courts. Auerbach’s work saw the inclusion of loyal, royal pictures in the KB rolls as something which flowed from the particular connection of the monarch with that court. Noting that the CP also included such images makes that conclusion less secure. There is also the issue of the inclusion of decoration and mottoes associated with the names of judges, which deserves some consideration in connection with the image they were trying to project. Finally, there is the intriguing issue of the expected ‘consumers’ of these images: who would have seen them? Did our ‘clerk-illustrators’ imagine that they were drawing only for their immediate colleagues and contemporaries, or for posterity?

Gwen Seabourne

11/12/2015

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