Tag Archives: legal history

Almaric, (not quite) the Champion of the World

A Year Book report of a Common Pleas case of Easter term 1364 YB Pasch. 38 Edw. III pl. 16 f. 10b (Seipp 1364.046) can be identified with the plea roll record: Abbot of St Peter of Gloucester v. Almaric le Botiller CP 40/ 417 m. 111. Here, Almaric was accused of having trespassed against the Abbot’s rights by going into some of land in Gloucestershire in which he had rights of free warren (a species of exclusive property right in certain animals located there), and taking away his rabbits, hares, partridges and pheasants.

Almaric denied most of the accusation, and made an interesting defence in relation to the hunting and retrieval from the Abbot’s land of a pheasant, saying that the pheasant had originally been on Almaric’s own land, when the falcon (in the record, it’s a sparrowhawk) was loosed to chase it, but the pheasant had retreated to the Abbot’s land, and the falcon had followed and killed it there; Almaric had gone in to retrieve his falcon’s prey. This defence seems to show that there would only be a warren trespass offence if the hunt had begun within the Abbot’s warren. The Abbot’s next plea seems to confirm that, since it argues that the pheasant was within the warren when the falcon was set on it. It was this issue of the pheasant’s starting point which was arrived at as the matter to put before a jury,although Knyvet, a Common Pleas judge, observed that, wherever the unfortunate pheasant had begun, Almaric’s entry into the land to retrieve it would have put him in the wrong.

Clearly, the answer would have been further training of the sparrowhawk to get it to bring its prey back to the falconer. Almaric could then have stood outside the warren, waiting for the abbot’s pheasants to stray, hunt them with his trusty sparrowhawk and cause no end of annoyance to the man of God.

GS 31/5/2017

Medieval employment law: workplace sexual harassment in fourteenth-century Yorkshire

Years ago, I wrote my Ph.D. on economic regulation in medieval England, eventually turning it into my first book, Royal Regulation.  In both thesis and book, I decided to concentrate on sales and loans, and left out an obvious area of royal intervention in ‘the market’: regulation of wages and employment, especially under the Ordinance of Labourers 1349 and the Statute of Labourers 1351. This omission was due, in part to the vast body of evidence which would have had to be examined, in order to do a proper job of assessing the legislation and jurisprudence. There was also the fact that the area seemed to be well covered by works such as Bertha Haven Putnam’s still-splendid Enforcement of the Statutes of Labourers, and some of the ideas to be found in Palmer’s English Law in the Age of the Black Death. Working through medieval plea rolls these days, I frequently come across ‘Labourers’ cases, but, all too often, the dispute boils down to ‘You were my employee and you left before the contracted term was up’ v. ‘I was never your employee’ ‘Let’s go to proof’ ‘OK then’. and the roll says little more about the matter. Occasionally, however, there is a case in which we actually see a bit more, and learn a bit more about understanding and interpretation of the law in this area. That is certainly so with a case I turned up yesterday in the Common Pleas plea roll for Michaelmas term 1363.

Thomas de Queldale v. William de Ramkill and Elena de Hustwayt (1363) CP 40/416 m. 128d is a case brought by the former employer of Elena de Hustwayt against Elena and a chaplain, William de Ramkill. Thomas claimed that Elena was his servant, employed under a contract for one year, but left his employ before that time was up, without permission and without reasonable cause, and was thus guilty of an offence under the Ordinance of Labourers. William de Ramkill was accused of having committed another offence against the same legislation, by hiring Elena while she was under contract to another employer. Rather than the usual denial of having been employed by Thomas on the terms which he had stated, however, Elena argued that she had had reasonable cause to leave.

It was certainly possible to argue ‘reasonable cause’ on the basis of excessive beating or failure to provide for a servant, and Putnam’s book has examples of both. Elena’s objection, however, was different: Thomas, who was, she stated ‘a married man’, had often pestered her for sex. (The Latin of the text is ‘frequenter solicitavit ipsam ad cognoscend’ ipsam carnaliter contra voluntatem suam’ – which is rather intriguing in terms of ideas about gender, will and sexual consent, and I plan to consider it at greater length elsewhere). Thomas denied that she had left for this reason. It appears as though he is more concerned to question causation of her departure, rather than denying that there was such lecherous behaviour on his part, but this could be a result of common law pleading rules. In any case, he managed to convince a jury that she had left without cause, and that the pestering had not happened. So Elena’s defence failed, and she and William were held both to have damaged Thomas and also to have acted in contempt of the King (because of the breach of royal legislation). It is not very surprising that this was the outcome – juries, made up of local men of some property, were not at all inclined to find in favour of employees in these Labourers cases. It may, however, be rather unexpected – bearing in mind the general difficulty in securing any kind of redress for or recognition of sexual offences – to see pestering which apparently fell short of rape or attempted rape being acknowledged to be a possible ‘reasonable cause’ for a female servant to leave her position, which could absolve her from liability under the Ordinance and Statute of Labourers.  Unfortunately, there does not seem to be a Year Book report of this case, so there is no evidence of the sort of conversations which lawyers might have had about the acceptability of the plea. Nevertheless, it is another piece in the very complex puzzles of (a) the attitudes of medieval men towards medieval women and (b) the ‘position of medieval women’ (e.g. should we choose to play up Elena’s ‘agency’ or her claimed victimisation?), and I will certainly be looking out to see if I come across any other comparable cases.

Here is a free translation of the case:

William de Ramkill, chaplain, and Elena de Hustwayt, recently servant of Thomas de Queldale of York, cutler, are attached to respond both to the King and also to Thomas, in a plea of why, whereas the same King and his council, for the common utility of the King’s realm, ordained that if any servant of whatever status or condition, retained in anyone’s service, should leave the same service before the end of the contracted term, without reasonable cause, or permission, s/he should be punished with imprisonment, and that, under the same penalty, nobody should receive into their service or hire such a person, William retained Elena, who was in the service of Thomas, at York, and who had left the same service before the end of the contracted term, and without reasonable cause or permission, to go into the service of William, despite William having been asked to restore her to Thomas, in contempt of the King and to the great damage of Thomas, and contrary to the form of the Ordinance. And of a plea why Elena left the service of Thomas before the end of the term contracted between them, without reasonable cause and his licence, to the contempt of the lord King and the great damage of Thomas, and contrary to the form of the Ordinance etc. And, in connection with this, Thomas complains that whereas Elena, was retained at York on the eighth October, [1362], to serve Thomas from [11th November 1362] for the whole year following that, taking for her salary 12 shillings, and, before the end of the term, i.e. on [2nd June, 1363], without cause etc, left for the service of William, who took her on and retained her, in contempt of the lord King, and to the great damage of Thomas, and contrary to the form of the Ordinance etc.

And William and Elena come in person, and deny all force and wrong etc. And William says that he did not take in and retain Elena contrary to the form of the Ordinance etc., as is supposed above, and puts himself on the country as to this. Thomas does the same. And  Elena says that she accepts that she was retained to serve Thomas for the aforesaid term, but she says that Thomas is a married man and often tried to persuade her to let him have sex with her against her will (frequenter solicitavit ipsam ad cognoscend’ ipsam carnaliter contra voluntatem suam) so, for this [good] reason, Elena left the service of Thomas. And she asks for judgment as to whether Thomas can maintain this action against her, in this case etc. And Thomas says that Elena left his service before the end of the contracted term, going into the service of William as counted above etc., and that she did not leave his service for the reason she alleges above. And he asks that it be enquired of by the country. And Elena does the same. So the sheriff is ordered to cause 12 [men] … [On we go through the process – pledges for Wiliiam and Elena’s appearance, the case goes off to York, to be heard at Easter time,  … we get to the jury] And the jury found that William had taken in and retained Elena contrary to the form of the Ordinance, as supposed above, and that Elena left her service before the end of the contracted term, entering William’s service, without reasonable cause, and without the cause alleged by her, as Thomas complained above. And they assess Thomas’s damages caused by William’s admission and retention of Elena at 60s. Elena is amerced a mark for her [illegal] departure. Therefore it is decided that Thomas shall recover the aforesaid 60s damages against William, and 1 mark from Elena. [More process – we learn that William and Elena are to be arrested, and that William does pay Thomas the 60 s – in autumn 1369, via Thomas’s attorney, Robert de Acaster – and is acquitted. No word on Elena though.]

 

GS 27/05/2017

 

If you liked this, why not try:

B.H. Putnam, Enforcement of the Statutes of Labourers during the first decade after the Black Death, 1349-1359 (Columbia, 1908). https://archive.org/details/enforcementstat01putngoog

L.R. Poos, “The Social Context of Statute of Labourers Enforcement.” Law and History Review 1 (1983), 27-52.

R.C. Palmer, English Law in the Age of the Black Death, 1348-1381: A Transformation of Governance and Law (Chapel Hill, 1993).

G.C. Seabourne, Royal Regulation of Loans and Sales in Medieval England: Monkish Superstition and Civil Tyranny (Woodbridge, 2003).

For concern about sexual misbehaviour from the other side, i.e. attempts to ensure that young employees behaved appropriately, see Rh. Sandy, ‘The us of indentures to control apprentices’ behaviour in medieval England’, Gotffennol  5 (2017), 23-26.

 

 

Licence, Denial and Disobedience: a ravishment case from fifteenth-century Oxfordshire

Today I tracked down the Plea Roll entry corresponding to Anon. (1461) YB Mich. 1 Edw. IV pl. 2 f.1a; Seipp 1461.018: the King’s Bench report, Thomas Wilcotes v John Newers, can be found at KB 27/802 m. 43. It is a ‘ravishment of wife and goods’ case, in which the plaintiff is complaining that the defendant has taken away both his wife and also some of his goods. The offence was well-established, having been introduced under Edward I, and there are many examples of its use in medieval plea rolls, although there is debate as to what we should understand ravishment or raptus to mean in this context. Much attention has been paid to the idea that a proportion of these cases might, in fact, have been consensual on the part of the wife, who wanted to leave her husband. Wilcotes v. Newers is relevant to the idea of consent – but it is the consent of the husband which is alleged, not that of the wife.

The story, briefly, is that Eleanor, wife of Thomas Wilcotes, had been taken away from his house and kept for an unspecified period at the house of her kinsman, John Newers.  Wilcotes alleged that this taking was against his will, (and also listed a number of items which he said had gone missing with his wife) but Newers had a different version of events: he said that Wilcotes and his wife had been at odds for some time, and Wilcotes had given him permission to take Eleanor away to his (John’s) house, and to try and encourage and cajole her to be obedient to her husband. As far as Newers was concerned, he had done nothing which was against the law, since he had this permission. Wilcotes’s side had tried to argue that, even if there had been permission, Newers would still have been guilty of an offence, but this did not seem to go down well with the court, and so the issue which would go to the jury was whether or not there had in fact been a granting of permission by Wilcotes to Newers.

What I am going to say next will be all too familiar to those who have had dealings with plea rolls: it is not clear what the end result was. The entry peters out after listing steps taken to have the case tried in Oxfordshire, where there were problems with finding an appropriate jury, and noting that it was to come back to King’s Bench, and, so far, I have not found any sign of later episodes (though Thomas Wilcotes is involved in litigation with another Newers in 1462).

Even so, having this much is very interesting. Whether or not Wilcotes had given Newers any sort of licence or encouragement to become involved, it is notable that it seemed a plausible story that a kinsman might be brought in in this way, and might hold and pressurise his kinswoman to be obedient to her husband. This suggests an interesting collaboration between men in enforcing women’s obedience, and at the same time it is based on the idea that some husbands are not capable of keeping their wives appropriately subservient: so there is a rather equivocal message here about the situation of women (nothing new there then). There are also some good comparisons to be made between the information in the two different documents, Year Book and Plea Roll, and I hope to have time to include these in a paper I am writing for a fast-approaching conference in Swansea in June.

To go back to the story, I would really like to know why Thomas Wilcotes brought the case: was the story about planning and permission a lie – or did the plan just make an unhappy marriage even worse, leading him to lash out in frustration against his partner in the failed Operation Make My Wife Do What I Want?

GS 12th May, 2017

Adultery and violence in the medieval West Midlands

Here’s a case I found in a roll relating to theWorcestershire trailbaston sessions of 1306 (JUST 1/1032), when looking for something else entirely – so interesting it deserved a blog post.

On m. 4d (AALT image 2700), we are told that Johanna, wife of Edmund Sneed was indicted for having gouged out (extraxit) the eyes of Christiana daughter of Thomas de la Twychene at Hampton Lovett. The sheriff of Worcestershire had been ordered to have Edmund and Johanna before the Justices ‘to respond to the King for this trespass’, but he had to report that Edmund had not been found. The coroner and several credible members of the county community gave evidence that Edmund was on his way to the Curia in Rome. Johanna came, though, and was asked how she wished to plead to the trespass. She said that she was not guilty and submitted to a trial by jury.

Many medieval records are less than expansive after this point in proceedings, but, here we get some interesting material from the jury, rather than the all-too-frequent blank ‘guilty’ or ‘not guilty’. It is reported that the jury said Edmund Sneed had been involved in an adulterous liaison with Christiana (tenuit … in adulterio) and often withdrew himself from  Johanna, beat and mistreated her, and moved her from the house in Worcestershire to another house he had in Warwickshire. There seems to have been a partial reconciliation, since they said that Johanna came back to Edmund and lived with him at Hampton Lovett, but Edmund was still involved with Christiana. Johanna was said to be aggrieved and provoked (gravata et commota) by this state of affairs (as it were) that, on a day which the jury could not specify, but which was in the year 30 Edward I (i.e. 1301-2), she asked Christiana around to Edmund’s house to discuss the adultery. Christiana came as requested, but rather than a civilised discussion of their situation, a fight broke out between them. Johanna is said to have hit Christiana and put out her eyes. (I am a bit puzzled as to exactly how to imagine that happening: surely actually removing somebody’s eyes requires something other than a blow? How inappropriate would it be to ask about this next time I am at the Eye Infirmary?)

The jury also felt moved to say that Edmund and Johanna had always provided for Christiana, and continued to do so, (which would indicate a fairly long term commitment, considering the date they said the eye-gouging had occurred) but noted the insecurity of Christiana’s position. This is certainly an interesting passage in relation to provision of care for those with disabilities and impairments. It suggests some form of informal taking of responsibility by Edmund and Johanna, outside legal proceedings. We might wonder, however, just how desperate Christiana must have been, to accept help from the very person who had caused her very serious injuries.

There seem to be traces of sympathy for Johanna (and lack of sympathy for Christiana as no better than she ought to be?) on the part of the tribunal, and perhaps an effort to find a way to excuse Johanna’s actions. The report tells us that the jury was asked how old Johanna was at the time of the eye-ripping, and whether she had been in her right mind. The jury, however, did not take the opportunity to engage in a bit of ‘pious perjury’ to let her off the hook: they said that she was twenty years old, and sane. Johanna was therefore committed to jail, with the instruction that the case was to be heard at Westminster on Monday in Pentecost week.

Most unfortunately, I have found no trace of the case in the relevant plea roll, so, unless and until some other evidence turns up, the story ends there, with no answer as to how the justices at Westminster would have handled it. Nevertheless, there is a lot to think about here. There is a fair amount of reported sexual misbehaviour in medieval legal records, but the story of the supposed summit meeting between two women who had been involved with the same man, and then the extreme violence, is very unusual. In relation to Johanna’s violence, there is thinking to be done about what was expected, and countenanced, in terms of the behaviour of a wronged wife towards ‘the other woman’. Interesting that the medieval Welsh legal triadic literature suggests some leeway for wives hitting ‘the other woman’ (though certainly not eye-gouging).

Then there is also the report that the married couple were in some sense looking after the ‘other woman’ in her impaired state, and the intriguing story of Edmund’s trip to Rome – not, we might note, some sort of repentance pilgrimage to Rome in general, but specifically to the Curia. Something matrimonial seems most likely – though going in person to the Curia would not be standard practice.

So – lots of loose ends, but, apart from anything else, this record shows just how useful trailbaston (and plaint) rolls of this period can be in giving glimpses of a world of facts and legal ideas often effaced in the increasingly standardised forms in King’s Bench and Common Pleas rolls.

 

Postscript

Allegations of women being hit so that their eyes are said to fall out can be seen in S.M. Butler, The Language of Abuse: marital violence in later-medieval England (Leiden, 2007), e.g. at 161 and 177-8. While some descriptions of such extreme and horrifying episodes may have been somewhat exaggerated attempts to portray a woman in conformity with saintly models, this case, with the subsequent apparently impaired and needy state of Christiana, probably records a genuine incident of eye-gouging.

GS

8th May, 2017.

St Winifred and the Shrewsbury captives

I am currently working on a paper which focuses on rather hostile intervention by the Welsh in the medieval English borderlands (on William Herbert and associates, and their foray into Hereford in the 1450s) but, while looking at the King’s Bench plea rolls for 1456, came across a case which highlights a rather different sort of cross-border intervention, namely the help said to have been given by St Winifred to a Shrewsbury man, (allegedly) held captive and tortured by extortioners in North West England.
There is a petition in the National Archives (SC 8/96/4769) relating to this incident, presented by or on behalf of Shrewsbury men, William Bykton and Roger Pountesbury, but I don’t think the related KB document has been collated with this before – so I’m claiming it as a ‘find’. KB 27/781 m. 110 is also quite a lot clearer than the petition (even though it is in Latin rather than the petition’s English) which helps with working out the story.

Bykton and Pountesbury alleged that they had been seized, carried off to various lairs of Robert Bolde and his associates in Lancashire, tortured in creative and prolonged ways, and made to promise and hand over large sums of money. St Winifred comes in in the story of Roger Pountesbury, who gave a particularly detailed narrative about being hung up in specially constructed stocks – he put his eventual escape down to the saint’s intercession.

St Winifred (in Welsh, Gwenfrewi, and in the KB roll, it’s ‘Wenefride’) was, according to the ODNB entry by T.M. Charles-Edwards, around in the mid-7th century. She was a nun, and the most memorable part of her story involves being decapitated by a prince, incensed that she would not give in to his sexual desires, followed by the miraculous rejoining of head to body and subsequent virtuous nunnish life. Needless to say, where the head dropped, a miraculous well sprang up (with, of course, healing powers), and there were many posthumous miracles.

It is interesting in terms of my current article that there is this positive story about a Welsh saint in English records, relating to English people. It may not be hugely surprising that a Shrewsbury man held Winifred in high regard – since her relics had, by the time of these events, been in Shrewsbury for more than 300 years (see ODNB), but it is interesting to see mention of her in a document intended to have an impact on ‘national’ authorities. Even in a century which had seen Welsh rebellion and highly discriminatory laws, as well as a Welsh-English (or Welsh-Marcher-English) dimension to lawlessness, it is assumed that talking about a Welsh figure is a good move for an Englishman in want of a favour from Englishmen. Just another ingredient in the fascinating bara brith of the Welsh borderlands.

There is a lot more to think about here: no doubt the underlying incidents need to be fitted into a wider English political context too – I’m on the trail of Robert Bolde and his associates, who seem interesting. Also, from a more purely legal-historical point of view, this raises issues about the on-off inclusion in legal records of accounts of the divine and supernatural, about the petitioning process and the efficiency or otherwise of justice at this difficult period for ‘central government’. My ‘to do’ list has just expanded by several lines: thanks a lot, St Winifred.

GS
28th April, 2017.

Surviving an execution

The law relating to executions is in the news at the moment, as pharmaceutical companies battle to dissociate themselves and their drugs from killing as opposed to healing (see, e.g. https://www.theguardian.com/world/2017/apr/13/arkansas-executions-lethal-injection-drug-makers ). Over in my world of medieval study, as a side-note to a current project on unauthorised hanging, I have been turning my attention to botched or failed – or successful and yet not final – executions. The first fruit of this is my ‘work in progress’ list of those who survived executions. It’s into double figures and no doubt there are many more instances out there: I am sure I will be adding to the list over time.

The victims (or not) are mostly male, mostly thieves, and many of the stories involve hanging, removal and revival in a church. Few are very detailed, but there are some interesting themes emerging. First, although there has been a lot of attention on the best-reported case, that of William Cragh of c. 1290, and the idea of miraculous resurrection after definite death (in that case, through the intervention of proto-saint Thomas de Cantilupe: see Bartlett, The Hanged Man: a story of miracle, memory and colonialism in the Middle Ages (Princeton University, 2006), most cases are not quite on that model. In more ‘secular’ sources, a few of those who survived excited talk of miracles, but even these instances do not seem to have been regarded as full resurrections.

They may be seen as miraculous escapes, or, at times, the result of blunders by others. Ropes breaik or people revive after having been taken down from the gallows. It is generally impossible to know whether there were interventions meant to defeat the intention of killing the convict – interference with ropes, or deliberate early removal from the gallows – as opposed to blunders and mistakes (certainly, there are other, clear, examples of deliberate rescue), but some, at least, of the stories suggest genuine surprise at the survival of a condemned person, as well as a lack of reliable testing for the expiry of life.

These cases certainly underline the important observation made by Henry Summerson: “It may be a sign of the extent to which present-day society has distanced itself from the realities of capital punishment that the word ‘execution’ is commonly misused to describe a killing that has been carried out in a manner quick, clean and efficient. A medieval execution at least was commonly a messy business, unskilfully carried out.” (H. Summerson, ‘Attitudes to capital punishment in England 1200-1350’, in M. Prestwich, R. Britnell and R. Frame (eds), Thirteenth Century England VIII (Woodbridge, 2001), 123-34, 132). Aside from the fact that modern systems generally do not allow their blunders to affect the ultimate outcome, by tending to reprieve those who have somehow managed to survive, the criticism is applicable to modern death-dealing legal systems as well.

GS

19th April, 2017.

The Art of Law: update

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/ ). In a 2015 blog post, I noted the appearance of a thought-provoking study of the visual material in the CP rolls in the fifteenth and sixteenth centuries: 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. This looks at the rise of decoration and illustration in the CP rolls in this period, and explores 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?

 

 

Going back to all this for another project, it seems to me that there is still a lot to explore here. In particular, I was intrigued at the illustrations at the foot of one late 15th C roll, associated with the name Forster. A couple of the illustrations have come up in recent tweets and on the cover of a recent book, but there is room for a study on ‘the Forster hand’ and its illustrations – ranging from a female tavern worker, to a woman clubbing a man, to a self-harming chimera, a rosary, a heron/crane gobbling a snake/eel, and fish (with nostrils) – all in CP 40/840 – Common Pleas roll for Michaelmas 1471. definitely going to pursue this character through some other rolls.

Gwen Seabourne

10/3/2017

Emasculation-watch, updated

In doing my pre-tutorial reading for a cycle of land law tutorials on proprietary estoppel, I came upon a well-known case comment entitled ‘Emasculating Estoppel’ ([1998] Conv 210). I am always left wondering why academics and lawyers are so keen on the imagery of emasculation, and why they are not more frequently ‘called out’ on the implications of using a word which assumes that that which is good and useful has male genitalia, and that its goodness and usefulness are located in the aforesaid genitalia.

It really is pretty common, and is often used in rather odd ways. A quick database search threw up examples relating to the emasculation of:

  • various statutes and statutory sections (including a section of the Equality Act – particularly inappropriate?:  The Queen on the Application of Mrs JH, Mr JH v Secretary of State for Justice [2015] EWHC 4093 (Admin) at [22]; See also, e.g. Gold Nuts Limited and others v. Commissioners for Her Majesty’s Revenue & Customs [2016] UKFTT 0082 (TC) at [218])
  • ‘all the provisions of the statute’: Hudson v Parker (1844) 1 Robertson Ecclesiastical 14; 163 E.R. 948 at 40.
  • other regulations (‘Emasculating TUPE: transfers of undertakings and the concept of the “economic entity” L.T. 2002, 3, 23-28
  • a tax (The Queen on the application of: Veolia ES Landfill Limited et al.[2016] EWHC 1880 (Admin) [182]
  • the beneficial principle of proprietary estoppel: Thompson’s article, and also Thorner v Major [2009] UKHL 18 at [98](Lord Neuberger combines an emasculation image with ‘fettering’ here – all a bit S & M sounding).
  • the doctrine of restraint of trade (‘EC competition policy: emasculating the common law doctrine of the restraint of trade?’R.P.L. 2007, 15(3), 419-431
  • the doctrine of legitimate expectation (R v IRC ex p MFK [1990] 1 WLR 1545 at 1569–70
  • the option (‘Emasculating the optionVAT Int. 1997, 15(1), 1380-1383).
  • a regulation’s purpose (M v W [2014] EWHC 925 (Fam): [34]
  • a sanction (JKX Oil & Gas Plc v Eclairs Group Ltd [2014] EWCA Civ 640 [124] and [126]
  • a right (Neil Pattullo v The Commissioners for Her Majesty’s Revenue & Customs [2014] UKFTT 841 (TC) [85].
  • ‘the meaning of the deed’ (meaning to distort? Westlaw Case Analysis, Adedeji v Pathania, Chancery Division 22 April 2015).
  • the concept of ordinary residence (Regina (Cornwall Council) v Secretary of State for Health and another [2015] UKSC 46 at [145]
  • incentives (Lloyds Bank Leasing (No 1) Limited v The Commissioners for Her Majesty’s Revenue and Customs [2015] UKFTT 0401 (TC) at [14])
  • the High Court’s role: Ghosh v GMC [2001] 1 WLR 1915 at [34]
  • obligations in a mortgage deal (Mark Robert Alexander (as representative of the “Property118 Action Group”) v West Bromwich Mortgage Company Ltd  [2016] EWCA Civ 496 at 81).
  • warranties (P &P Property Limited v Owen White & Catlin LLP, Crownvent Limited t/a Winkworth [2016] EWHC 2276 (Ch) at [101])

So – we see pieces of legislation and various less tangible things and ideas portrayed as damaged male bodies – decidedly odd at best.

Perhaps the oddest and most jarring use of this imagery is in Regina v “RL” [2015] EWCA Crim 1215 in which a barrister is said to have indicated (at [12]) that ‘the combined effect of the judge’s rulings was so to emasculate his cross-examination of boys A and B that he was in effect reduced to putting a bald proposition and having to accept the answer given by the boy concerned without further elaboration.’ Hard to know what to say to that – just – really? Best choice of words?

There may be some hope that people are beginning to see that this might be best avoided – applause for the appearance of a set of “” around the word in  Miss S C Hall v Chief Constable of West Yorkshire Police 2015 WL 5202319, before Mrs Justice Elisabeth Laing DBE, at [32] in her judgment. So, other judges, academic commentators, barristers, what about trying out ‘undermine’, ‘weaken’, ‘render useless’ or some such non-violent and not unnecessarily gendered phrase? Go on – it won’t ’emasculate’ your scholarship.

Postscriptt/Update 24/02/2017

More Land Law preparation, more emasculation!

Fundamental human rights are ‘at risk of emasculation’ in Lord Neuberger’s judgment in Mayor of London (on behalf of the Greater London Authority) v Hall and others [2010] EWCA Civ 817 at [37]. And we have an act ‘emasculating’ a doctrine (the Land Registration Act 2002 and adverse possession, respectively) in: M Dixon, ‘The reform of property law and the LRA 2002: a risk assessment’ (2003) Conv. 136, at 150 and again at 151, See also Conv. 2005, Jul/Aug, 345-351; Conv. 2011 335  at 338 and (on prescription this time) Conv. 2011, 167 at 170. The use of ‘emasculation’ in relation to adverse possession has a slightly different character to many of the uses noted above, at least 2003 Conv 136, 151, the emasculation of the doctrine by the LRA scheme ‘does of course, mean the end of adverse possession as a threat to the security of registered title.’ So removal of the doctrine’s metaphorical male genitalia = removal of a threat/danger. Intriguing.

Watching out for more, and would specially like to find the bingo row of ‘emasculation’ plus a ‘mistress’, plus a cricketing metaphor in the same case or article.

A non-burning issue

A little gem from the archives …

A 1306 case from the Gloucestershire gaol delivery roll (National Archives JUST 3/105 m.9.) tells an intriguing tale: a dramatic scene seems to have taken place in court during a homicide trial at the session. Alice, daughter of John de Mercombe and wife of Richard de Sydenham, was accused of killing Richard. All homicides were felonies – and thus might end in capital punishment and forfeiture – in this period, but the killing of a husband by a wife was regarded as far worse than a run-of-the-mill slaying: classed as a form of treason (petty treason), it was seen to be deserving of particularly painful and spectacular punishment – death by burning. So Alice seemed to be in a lot of trouble. She pleaded not guilty (well, you would, wouldn’t you – no likelihood of mercy if she admitted to killing her lord and master, overturning the natural order of things etc. etc.) and I was anticipating a deeply disturbing end to the episode. But Alice had a defence: rather a good one – she said her husband was alive and was in the court. And it was confirmed that he was. On the one hand, hurrah – apparent miscarriage of justice (and hideous end) avoided. On the other hand, hmm – was she indicted by mistake or through malice (whether involving Richard or not)? Somebody clearly had questions to answer.

Latest Journal of Legal History – some more for the reading list

issue 3 for 2016 features articles on: the reception of Magna Carta in early modern Germany, charitable trusts and the 1857 divorce law reforms.

German legal history is something with which I have always meant to become better acquainted: it has just always seemed so daunting in its variety. That being so it is good to have an entry point like Magna Carta to use.  Carsten Fischer’s ‘The Reception of Magna Carta in Early Modern Germany, c. 1650–1800’, pp. 249-268 describes the reception of MC in German scholarship and letters more generally. His clear point is that this amounted to the reception of a trope or reputation, with interest centred upon the 17th C revival/ translation of MC, and the assumption that MC = liberty, rather than a careful excavation of the actual content and medieval context of MC. I was particularly interested in some of the less-impressed comments from 18th C German commentators – conveying the idea that the English were deluded in their idea of their own freedom (some interesting resonances in these darkening times), and in the idea of using discussion of MC as a proxy for possibly dangerous comment on German issues.

The requirements of charitable trusts is something which featured on my radar a few years ago when I was joint-supervisor of a Ph.D. in this area. It was, therefore, interesting to see the careful and convincing research and argument in this area in M. Mills, ‘The Development of the Public Benefit Requirement for Charitable Trusts in the Nineteenth Century’. This traces the familiar oddness of doctrinal development in England, with strands of obiter, general comment and elements of mortmain law reasoning combining with social developments to create a rule for qualification for charitable trust status. Admirably done.

And finally, one which I will be using with my Legal History students, H. Kha and W. Swain, ‘The Enactment of the Matrimonial Causes Act 1857: The Campbell Commission and the Parliamentary Debates’. This provides an accessible and illuminating account of the Campbell Commission and debates leading up to the MCA 1857. Interesting psychological effect (in this moment of clashing past and present, as we wonder what is the best response to convictions of former crimes now not seen as wrong https://www.theguardian.com/law/2016/oct/21/chris-bryant-commons-plea-gay-pardon-law )- although I am always conscious of not regarding medieval people with contempt, even when I disagree with them, I do find it difficult not to get exasperated with the hypocrisy of Victorian lawyers and parliamentarians. Will have to work on my anti-19th C prejudice.