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A princess, a tower and storming the great citadel of legal history

Something for International Women’s Day 2024

In 1241, a woman of royal descent died in Bristol castle. She was Eleanor of Brittany, granddaughter of one king of England (Henry II), niece of two more (Richard ‘the Lionheart’ and ‘Bad’ King John), and first cousin of the man on the throne at that point (Henry III), not to mention daughter of a duke and duchess of Brittany. She had spent a lot of her last two decades in Bristol, a city on the rise, with an imposing castle, but Eleanor’s prolonged stay here was very much not her own choice.

 

She had been born between 1182 and 1184, and, with her pedigree, would have expected a big dynastic marriage, life at one of the great courts of Europe, a position of respect as wife and mother, frequent travel, extensive lands, and a life of some influence. None of this happened: she ended up a prisoner of the kings of England for much of her life, a situation which only ended with her death in captivity in Bristol.

 

Eleanor had not, as far as we know, committed any offence which might justify this unusual treatment, however: she was confined not for what she had done, but for who she was. After the death of her uncle Richard, it might have been argued that the right to the throne of John, and his line, was weaker than that of the children of his older brother, Eleanor’s dead father, Geoffrey. It was in the interests of John and his son Henry III to keep her unmarried and under control, and that is what they did.

 

Eleanor’s story may strike us as sad, or cruel. Or we may not be moved by her difficulties and disappointments, when we compare them to the sharper suffering of many of her contemporaries: she did, after all, have food to eat and clothes to wear, the occasional royal gift, and lived out a fairly long life. Whatever may be our emotional response, I think that Eleanor’s treatment tells us some important things about women, law and legal history.

 

Eleanor’s lifetime was a period often associated with important early steps towards legal guarantees of ‘civil liberties’, with moves in Magna Carta (1215) to set down limits upon royal power to imprison without trial. As its most famous clause states,

‘No free man is to be arrested, or imprisoned … except by the lawful judgment of his peers or by the law of the land.’

There is room for debate as to just who was a ‘free man’, and whether ‘man’ was thought to include ‘woman’, but whatever the technicalities of language and gender, it is very clear that this rule – confirmed by John’s son Henry III – did not help her. We could interpret that as meaning that successive kings overrode the law, but we do not need to: the truth is that ‘the law of the land’ gave male kin wide and vaguely-drawn rights over their female relations, so that they could plausibly portray their custody of Eleanor as legitimate. My point here is not that women had a raw deal in the medieval period (certainly there were rules which put them in an inferior position in many ways, though we might argue about the situation of different disadvantaged groups, and note the fact that Eleanor’s brother, Arthur, ended up dead rather than imprisoned). What I want to stress is that, when we discuss the development of law, we need to be aware that there is not just one story to tell, not just one time-line to set out: the law’s impact on men and women might be very different, even when that is not spelled out. It is extraordinary how often this fact has been ignored.

 

Legal history, as it developed in the English law school, has been slow to move away from an assumption that the concerns of (free, white) men of the past should shape our study and our time-line of legal development. It is now doing so, and this summer’s British Legal History Conference in Bristol will contribute to the broadening of perspective, with presenters considering our theme, ‘Insiders and Outsiders in the History of Law’, with the ‘outsiders’ including, but by no means limited to, women.

 

Another trait of ‘classical’, or ‘law school’ legal history has been its sometimes odd, stereotypically masculine, warlike imagery, with accounts of ‘triumphs’ of particular types of legal action (and, in one case, memorably, one sort of legal action ‘storming the great citadel’[i] of another). I can never help being struck by the contrast between this fondness for military metaphor in discussion of legal procedure and the frequent lack of interest in Eleanor of Brittany, confined in her more solid, and emphatically non-stormed, castle.

 

GS

29/2/2024

 

This post is based upon work undertaken for a biographical article on Eleanor of Brittany,  Imprisoning Medieval Women and Women in the Medieval Common Law. 

 

[i] J.H. Baker, Introduction to English Legal History, fifth edition (Oxford, 2019), 363.

Pinning down a promising prioress, or, the mundane business of divine service

Who doesn’t like a nice bit of Year Book/Plea Roll matching? Today’s ‘snap!’ moment comes to you courtesy of the year 1293 and the Common Bench/Court of Common Pleas. It is one which came up in my searches connected with The Prior’s Case (1369) and the interesting borderland between ‘property’ (or ‘feudal’ rights) and covenant/contract. And there are nuns.

YB Trin 21 Edw. 1 pl. 16 (Seipp 1293.217rs) is the case found in the plea roll CP 40/101 m. 32.[i]

It’s a case from Sussex. William de St Georges sued the prioress of Esseburn (Easebourne) to try and enforce their covenant, from ten years previously, made at Todham,[ii] under which she and the nuns of Easebourne were obliged to find suitable chaplains to celebrate divine services in the chapel at Todham before William and his wife and their heirs (number of times per week varying, depending on whether the couple were or were not present), for ever. William said that he had had these services for a short period of time, but after that, the Prioress had refused to do them when asked. There was, in the Year Book, some discussion of whether William had made some errors in his pleading – he had mentioned that he had received the services (been ‘seised of’ them), which sounds closer to the cessavit de cantaria type of action, based on the stopping of ‘feudal’ services previously performed, as opposed to covenant:  it does not just rely on ‘you made a covenant that you would provide this service, and you didn’t’. The Year Book suggests that this manner of pleading was somewhat foolish.

The Prioress – or her legal representative – can’t deny that there was a covenant, as it was all formalised nicely, and so settles on a plea of ‘yes we are obliged to find the chaplains but you were supposed to provide ecclesiastical kit – chalice, vestments, missal –  and you didn’t’. This was the issue that went to a jury, and the plea roll tells us that the jury found that William had done his duty with regard to the ecclesiastical kit. The final outcome was that the prioress had to perform her covenanted obligations, and William got damages for the non-performance.

Not having looked much at churchy aspects of law in the past, it did strike me as interesting to see litigation in secular courts about the provision of divine services, but I suppose that is anachronistic, seeing these things as clearly separate. Not having somebody to sing mass would, presumably, have involved William in expense, in terms of hiring a substitute. I presume that is what the damages represented, rather than (and admit it, this would have been cooler) a calculation of the amount of spiritual damage done to him and his family by missing out on mass.

It is clear that this was not ‘just’ a contract case: there were land dealings and warranty involved in the William-Priory relationship as well. Teasing out ‘property’ and ‘contractual’ aspects of these cases is not straightforward, and it does look to me as if a not dissimilar deal and relationship lay behind The Prior’s Case, rather complicating it in terms of it really being comparable to modern ‘horizontal’ freehold covenants contexts, or really standing for the legal principles assigned to it. But more of that another time.

GS

20/02/2024

 

 

[i] (Even nicer: there is another, connected piece of evidence – a count in Novae Narrationes. See 80 Selden Soc p. 103).

NB the WAALT shows that this was still problematic in 1309: KB 27/195 m. 25d.

[ii] Tuddenham, Suffolk seems closest to this name, but not geographically! Todham seems to be the correct reading: see this account.

Shave a prayer? A chaplain’s excuse

OK, this one is not going to advance the cause of knowledge very much, but I just like it: it’s one of those little passages that somehow seem to bring medieval people off the page for me.

It comes in an entry on the King’s Bench plea roll for Easter term 1476 (KB 27/859 m. 23d).  This notes that a certain John Stokys had brought an action (by bill) against William Yorke, lately of Southwark, chaplain, alleging trespass (to land and goods). Specifically, John said that William had, on 3rd September 1476, broken into John’s home in Southwark, and made off with household goods (including linen, candlesticks, and some fancy rosary beads) worth 20 marks, plus some money – £7 6s 8d.

It’s William’s defence that interested me: rather than just denying it all, as most defendants are reported to have done, he had a more specific story. The place he was alleged to have broken into was, he said a communis shopa barbitonsoris – so he was not burgling, but going to the barber’s (and so one of the allegations in John’s bill was untrue, since anybody was allowed to be there – it was a ‘common’ shop, i.e. one open to all). William claimed that he was there to get his beard shaved. We will note that he did not specifically say that he did not take the loot, though pleading rules meant he did not have to.

Presumably William thought the shaving story was plausible. The jury brought in to try the case, however, disagreed, finding him guilty, and liable to pay John £15 6s 8d, probably leaving him unable to afford professional attention to his facial hair for quite some time, if he complied.

So, a bit of fluff (not to mention stubble) from the famously dodgy area of Southwark, and, of course, questions – as to truth, the character of medieval chaplains, and the security issues involved in running a medieval barbering business.

GS

11/2/2024

 

Image (yes, I know: anachronistic …) photo by Tim Mossholder on Unsplash

‘Accordyng to the lawes of god and womanhode’: scenes from a late-medieval birthing chamber

Note that a slightly revised version of this has now appeared on the Bristol Law School Blog 

In some work on qualification for tenancy by the curtesy a few years ago, I had occasion to look into cases relating to expectations as to who was present at a birth in medieval households (at least households of some wealth and land). The curtesy cases gave sometimes turned on matters occurring at or shortly after a birth, and thus included some interesting insights on what went on, or was thought to go on at this time. I hope that study added something to scholarship on medieval childbirth practices. Curtesy is not the only sort of legal proceeding in which we might see a description of childbirth or its aftermath however: there are some rather interesting comments on this in a case relating to trespass and ‘riott’, from the reign of Edward IV, which I will note here.[i]

The comments come in the petition presented in 1473 (and repeated in a King’s Bench plea roll of 1476) by a Yorkshire knight, Sir John de Assheton, in connection with his allegation of mistreatment at the hands of a group of ‘riottours’, at about 2 a.m. on 6th November 1470, with one John Myrfeld at the head of the list, who, he said, attacked his home at Howley (Morley, Yorks), took him off to Pontefract castle, and made him seal a bond in their favour. Partly as a strategy to show just how dastardly the ‘riottours’ were, but also partly to ward off any suggestion that he had given in and gone off with them rather too easily, Assheton made great play of the fact that, at the time they had attacked his place, his wife was in confinement (so, you see, his submission was really all noble and all about protecting his wife and others).

Anyway, whatever may be the reason for the mention of the childbirth scene, it does give a few interesting passages, which might be added to our knowledge of this part of medieval life.

So what do we get? Assheton does not bother to name his wife, which, of course, says much about her position in the grand patriarchal scheme of things (and I can’t help but think it’s rather weaselish when he is trying to use her to make himself look better …). He does tell us that she was ‘newely delyvered of child and liyng in childbed with other divers his susters, gentilwomen and frendes accompaigned’ at the time of the attack. Because of the attack, which was said to have involved pulling down walls, flashing of weapons (listed) and the application of ‘fyre’. Assheton did eventually say that he experienced ‘fere’, but only after he had attributed even stronger emotions to his ‘wif’,  described as fearful, ‘in right grete dispare of hir lif’. The ‘gentilwomen’ who were with his wife, were also said to share her feelings.

Here, we also get a nice, almost throw-away comment: they were there with his wife ‘accordyng to the lawes of god and womanhode’. The job these words are doing, in his narrative, is, I think, that of highlighting the goodness, the good order, of the Assheton household, in order to make a telling, condemnatory, contrast with the ‘riotous’ and, perhaps ungodly, behaviour of his adversaries.

As he gets towards his own submission to the attackers, there is some repetition of remarks on the state of his wife, with some additions: she is ‘new in child bed’ but now also ‘in the bandes of our lady’ and cannot be moved without ‘ieop[ar]dy of hir deth’. The ‘bandes of our lady’ are rather interesting: should we be thinking about metaphorical ‘bandes’, or should we be thinking about the use of some sort of birthing girdle, or, indeed, both of the above? This might be a conventional saying, unknown to a simple legal historian, but perhaps not: might it shed some light on perceived workings of medieval delivery-protection practice?

Assheton does list the saving of his own life as well as hers, and those of the others present, as motives for his surrender, but the point has been made – he was really thinking  of his wife (damn, what was her name again?).

Nothing much turns on these childbed allegations, and the case takes off in a different direction, but it is good to get these small clues and pieces of description. While Prof. Monica Green has made a strong case for the moves of male medieval medical professionals into the area,[ii] this case reinforces the idea of conventional childbirth being a women-only event (or at least being held up as women-only, possibly for rhetorical purposes). This women-only quality is given divine backing, as well as the sanction of ‘the lawe of womanhode’ (which I have not seen before). It raises all sorts of questions about ideas of both ‘lawe’ and ‘womanhode’, and about how this concept relates to the more familiar ‘secrets of women’. Much to ponder.

GS

4/2/2024

 

Update

Very satisfying – I have matched this case to the Year Book report, which is Seipp 1476.015. This, incidentally, puts the (still unnamed) wife in the forefront of the allegation in the case, making it one of Mirfield (or ‘J Marsel’) having ousted W and Ashton’s servants from P’s house. Interesting change of emphasis, effacing John Assheton’s capitulation and fears. What to conclude from this, other than a reinforcement of the need for caution in deducing attitudes to gender from just one medieval legal source?

8/2/2024

Image – yes, I know this is a later ruin, but still, vaguely appropriate.

[i] KB 27/858 m. 66 ff.  The petition comes from 1473.

[ii] See, in particular, M. Green, Making Women’s Medicine Masculine: The Rise of Male Authority in Pre-Modern Gynaecology (Oxford, 2008).

The ad-vocate (or, nice honest lawyers)

I do like early newspaper advertising, and here is a gem I couldn’t keep to myself: check out this interesting strategy, found in an 1899 edition of Papur Pawb (‘everyone’s paper’).

We have a Sheffield watch-seller, co-opting the image of a barrister to flog merchandise and finance deals. So, unlike the much more common negative/humorously mocking use of the image of a lawyer, we have to assume that this is thought to be something which will increase trust in the seller and product. And maybe an overtone of it being a posh accoutrement of the sort a privileged professional might sport?

I imagine that this was a campaign throughout Britain, but there are extra dimensions when it is placed in a Welsh-language title. How would this audience have viewed the London-dominated bar? And could pawb really afford to blow 50 shillings on a watch?

See also this from 1908, working a bit of verb/noun humour with ‘counsel’:

GS

17/1/2024

Got to laugh (no, not really)

A quick historical legal ‘joke’, or passage of what was seen as witty dialogue, anyway, from a 1915 edition of Y Dinesydd Cymraeg: my mental warm-up translation this morning …

 

A hard-headed judge

Judge: Was the stone you threw bigger than my head?

The prisoner: Yes, your honour, but not quite as hard!

 

How those Welsh citizens must have laughed! Possibly proving that humour does not really translate, across the language/time continuum. I do find myself fascinated, though, by the wise-cracking judicial persona that comes out in these things, and can’t help but see connections with some of the ‘humour’ I found some years ago, when researching an article on jokes and wordplay in medieval common law reports.

16/1/2024

 

Keeping them laughing … or possibly not

And here is another piece of proof that legal humour does not really travel, from an issue of Tarian y Gweithiwr from 1887.

The judge and the constable

Judge: What sort of man did you see committing the assault?

Constable: For certain, your lordship, he was some foolish little creature – about your size, your lordship’.

This time, I suppose that the humour is working on an assumption that lawyers are weedy and policemen burly and not very diplomatic …which makes more sense when we reflect that ‘Tarian y Gweithiwr’ was explicitly targeting ‘gweithwyr’, i.e. labourers.

 

You want more court-room humour from Welsh newspapers? Oh, very well.

Here we are, loosely translated from a Tarian y Gweithiwr from 1886: a side-splitting dialogue between a judge and a witness …

The judge asked the witness if he understood the meaning of the oath he had taken. “Yes, sir”, answered the witness, “I am sworn to tell the truth”. “What would happen”, asked the judge then, “if you did not tell the truth?”. “Well, I suppose”, said the witness, “our side would win the case”.

Ho ho!

 

And, since everybody loves an amusing, animal-related, incident in court, what about this, from an 1897 Gwalia?

In the quarter sessions in New Ross, presided over by Judge Kane, there was an exciting and very peculiar incident. A tom cat of dignified appearance made an appearance in the court, and, chased from one place to another by some people, he jumped onto the [witness box].[i] Whilst gliding lightly over the papers and black bags of the solicitors, one of the men of law threw a thick volume on the Land Acts at the animal, but the cat was too quick for the lawyer, and, like a flash, jumped onto the bench beside the judge.  With fire in his eyes, he jumped for the wig on the judge’s head. His Honour, somehow, managed to dodge him, and the cat fell down. The judge took the matter in the best possible humour, while the lawyers and the public laughed heartily.

[i] Or ‘table’.

Photo by Tim Mossholder on Unsplash

Gwilym Carreg Ddu, or Blackstone in the Welsh press

 I enjoyed reading this little curiosity in an edition of the Welsh-language paper, Y Drych, from 1886. Here it is, in my best effort at a translation.

Blackstone and the Welsh

Sir William Blackstone was born in London on the 10th July, 1723. Although he lost his parents while he was a child, he received a good education and had every opportunity to develop his various talents. When he was young, he studied architecture and composed poetry. In 1741, he started to study law, and did so with moderate  success, until he was elected to the chair in law at Oxford University. It was the course of lectures which he gave there on the common law of Great Britain [sic] which immortalised his name. He died at the age of 57.

In his lectures on the sources of the laws of England, and influences on their formation. Although he did not devote much space to the British/Brythonic influence, what he said about the Cymry, their land and their laws, was entirely respectful.

Perhaps he was not inclined to think thoroughly about the likely effects of the unwritten laws of the druids on the large corpus of the common law, or unwritten law of the kingdom, after the Saxons and the Normans occupied the island.

When talking about the complete union of Wales and England, in the 27th year of the reign of Henry VIII, he said of our ancestors:

“Thus were this brave people gradually conquered into the enjoyment of true liberty.”

The learned lecturer admitted that the Welsh were the first of the peoples of Britain to share a deceased father’s land equally between all of his sons, as continues to be done in Kent.  The more recent and more unfair rule of the invaders made the eldest son heir to everything.  There was also the ‘Welsh mortgage’, a remarkably kind arrangement, and a just one. Its peculiarity was its ban on foreclosure, and the transfer of property to the creditor: any time he paid the money, the borrower could have his property back. In the meantime, the creditor could take all profits.

These examples of the old laws of our fathers are enough to make us regret greatly that we do not know more of them. They suggest that the Welsh had, from the time of the druids until Hywel Dda, strong ideas of fairness. It would have been a great blessing to the United Kingdom today if there had been fewer traces of the Normans, and more of the Celtic principles had remained in all of its institutions.

 

Thoughts

Well, it starts off with Blackstone, doesn’t it, but it ends up somewhere rather different and quite a lot more nationalistic. UK, be more Celtic! A fair number of druids floating around (though Blackstone does in fact get a bit druidy at times with some of his origin stories, e.g. in relation to burning women at the stake). Hywel Dda naturally present and correct. Perhaps more interesting is the enthusiasm for some more arcane aspects of Welsh property law. Very much of its time.

 

GS

15/1/2024

Photo by Catrin Ellis on Unsplash

 

Return of ‘the eunuch maker’

For those of us following the ‘Eunuch Maker’ case (briefly discussed here), there have been some more proceedings and reports in newspapers and other news sources.[i]

Still, as far as I can see, no explicit reference to mayhem, but it is interesting to see the focus of some reports on the fact that ‘the Eunuch Maker’ himself, Marius Gustavson, claimed some disability benefits after having various bits of himself removed. It does not seem to be suggested that he undertook the procedures in order to collect the benefit, but, still it does rather chime in with the story told by Edward Coke, of having presided over a trial in which a fit and healthy beggar had himself ‘maimed’, all the better to beg. Not livestreamed for profit though.

GS 13/1/2024

[i] Mail, Guardian,

Update: report mentioning consent with regard to sentencing, but so far no mayhem references.

Update: others involved in the conspiracy in court, sentenced, late January 2024: see newspaper report here

Further sentences due 4/5 March 2024.

Starting some fake history …

This, just now, when looking up the site …

I seem to have launched two new fake women into the vortex of untruth: Henry’s sister and Dr Judith Bracton, legal historian.

GS

12/1/2024

… And on we go …

Continuing my inadvertent journey into flummoxing AI, this has now added Eleanor of Brittany and Toni Braxton to the mix …

Only a matter of time until we hear that king John’s real beef with Arthur of Brittany was that he didn’t like his legal writing/compilation, and that Eleanor’s version of ‘Unbreak My Heart’ was far superior to Toni Braxton’s cover version …

4/3/2024

OK, I may be coming around to AI, since this turned up when I was trying to find my research profile … Look, I am esteemed!

Copilot, I bet you say that to all the legal historians …

24/3/2024

Prosecuting predatory chaplains: an instance of abuse from fourteenth-century Yorkshire

Deeply unpleasant, but worthy of a quick note is this Yorkshire entry from a King’s Bench plea roll, from Michaelmas term 1363.[i]

It states that the jurors of various wapentakes in the county, in the previous Michaelmas term, at York, presented that Thomas de Barkestone, chaplain, recently living at Escrick, took Alice de Hartford,[ii] aged 13 years, recently servant of the same chaplain, and extracted her from her bed in the house of John Gamul of Escrick,[iii] on [25th April, 1362], and conducted her, naked, to his (Thomas’s) chamber, with the assistance of another chaplain. Because Alice did not want to consent to fornicate with Thomas, the two chaplains tied her up, naked, using an iron chain attached to a post there, and kept her there, tied up and naked, until Thomas ‘lay with her’, feloniously and against her will. Thomas and the other chaplain pleaded not guilty, put themselves on a jury, and were bailed until Easter term following this.

Here, the trail goes cold (so far!) and, as ever, we don’t know what facts lay behind this instance, but it is clear that this was considered a plausible story, and that is noteworthy. There are a few points of particular interest, and connections with other bits and pieces I have done. Let’s think about one or two of them.

First, there is the age of Alice, and the fact that it is noted. We find it vile that a (presumably) adult man was predating upon a 13 year old girl, and the jurors seem to have been appalled too – for there is no obvious legal reason to record it. Interesting on attitudes (at least of male, respectable jurors) to women and girls, and offences against them.

Then there is the fact that Alice was formerly a servant of Thomas. This makes the whole thing even grimmer (or concurrently grim?), bringing in considerations of the particular vulnerability of female servants to the slobbering and harassment of their employers.[iv] It is hard not to speculate about why Alice left Thomas’s service, and to construct a particularly heart-breaking story in which she left because of his pressure and abuse, thought she had got away, but was ensnared once more. One of the common images used for marriage was that of the bond or chain: here, allegedly, was a very literal use of chains in a non-marital context, showing that the employer-female servant connection might also be very hard to escape.

In terms of the main offence, the details are, of course, horrific; they are also unusual amongst such accounts. The power of the offenders (two of them, presumably grown-up men, with the means to subdue Alice – and presumably having planned the whole thing) is contrasted with Alice’s youth and nakedness (three times we are told she was naked). The vocabulary around will and consent is also interesting. Medieval records very commonly use the expression of sex ‘against her will’, and I have always thought that there is an important difference between this and ‘without her consent’, although we (both lawyers and historians) tend to fall into modern legal language, based around consent. Here, however, both ‘against her will’ and the fact of her non-consent are mentioned. It seems a particularly strong indication that the jury were sympathetic towards this particular young girl, and that they believed that people like Thomas (men, chaplains) might do things like this. The other vocabulary issue which is difficult, and jarring, though perhaps explained by the need to use Latin, rather than more familiar, less formal, languages, is the use of concubuit for the act itself – its overtones of mutuality, ‘with-ness’ sitting so badly with what was clearly being told as a tale of unilateral and abusive crime.

I hope to find more on it at some point, but this case is certainly one to add to consideration of the complexities of the law on sexual offences in the medieval period, as well as the often weak position of female servants.

GS

11/1/2024

 

Image – well, what do you use for a story like this? I have gone for a road in the general area.

[i] KB 27/412 Rex m. 1d; AALT IMG 0513.

[ii] ? Hartforth: Survey of English Place-Names (nottingham.ac.uk)

[iii] Escrick :: Survey of English Place-Names (nottingham.ac.uk)

[iv] See, e.g., this post.