Tag Archives: medieval legal history

A Liverpool Elopement

An issue I looked at in a couple of articles, and which remains of interest to me, is the use of allegations of elopement and adultery to oppose medieval widows’ attempts to claim dower (a life interest in an allotted proportion of land), following the death of their husbands. When a widow made a dower claim in a common law court, those holding the land could form an ‘exception’ to the widow’s claim based on c.34 of the Statute of Westminster II (1285), arguing that the widow’s action should not be allowed, because, during her former husband’s life, she had left him of her own free will, and had gone to live with the adulterer, and there had not been a freely agreed reconciliation between husband and wife before the husband’s death.

This area is important from both legal and social history points of view. Legally, it illustrates the difficulties lawyers saw in applying a statutory provision with a number of sub clauses (on leaving, staying away, and there not having been a voluntary reconciliation), within the rules of the game of common law pleading (with all the delights of general and special pleading, and such splendid vocabulary as traverses, demurrers, rejoinders and surrejoinders). This was not just a clever intellectual pastime, however: the conclusions which lawyers reached as to exactly what each side had to allege and prove could have a great impact on the chances of a widow obtaining the important resources of dower, to support herself in widowhood, or to bring to a new marriage. One issue which could have an important impact was that of the widow who had left not of her own free will – having been abducted or forced out. If she later lived with another man, did that mean that the c.34 exception could be used, or was it necessary, in order to succeed under c.34, for her opponent to be able to say both that she had left of her own free will and also that she had then lived in adultery?

Another possible argument about the correct use of c.34 was whether it was necessary to allege that the wife had left the husband with her adulterer (rather than just having left him, and then later on lived with ‘her adulterer’): the Latin of the chapter leaves both possibilities open. A Lancashire case which I have recently found in the Common Pleas plea roll for Hillary term 1363 Maria, formerly wife of Thomas Breke of Liverpool v. Robert de Sefton,  Margery his wife and another,  CP 40/413 m. 193, gives an example of use of the exception without suggesting that the wife left with ‘her adulterer’. A free translation follows:

 

“Lancashire

Maria, formerly wife of Thomas Breke of Liverpool, pleaded against Robert de Sefton and Margery his wife, for a third part of two messuages and six acres of land plus appurtenances in Liverpool, and against Hugh son of William le Clerk of Liverpool for a third part of two messuages and six acres of land plus appurtenances in the same vill, as her dower, from the endowment of her former husband, Thomas.

And Robert and Margery and Hugh, by John de Blakeburn, their attorney, said that the same Maria should not have dower in these tenements, because they said that, long before the said Thomas, former husband etc. died, the said Maria had eloigned herself from her husband, and lived with William de Maghell, chaplain, her adulterer, in adultery, in Liverpool in the same county, without ever being reconciled with her said husband, from whom she is claiming dower etc., and they are ready to prove this, and ask for judgment etc.

And Maria said that she should not be excluded from her action by virtue of this allegation, because, at the time of the death of the said Thomas, and long before, she was living with him, and reconciled without the coercion of Holy Church. And she prays that this be inquired of, and the said Robert, Margery and Hugh similarly. So the sheriff is ordered to make 12 [jurors] come etc., by whom etc., a month after Easter, to [swear to the truth] etc.”

 

Aside from its legal interest in terms of the elements of pleading, two further points are worth mentioning. First, it is noteworthy that the alleged ‘other man’ is a chaplain: a great deal of suspicion seems to have existed in relation to the sexual mores of chaplains, with their supposed celibacy and their privileged access to women, and this is not the only chaplain/adultery case in the c.34 jurisprudence (see, e.g., CP 40/192 m. 233d), Secondly, the idea that a woman might leave her husband to live with another man for a time, and then might be reconciled – whether or not true in this case, it must at least have seemed a plausible set of circumstances – raises some interesting queries with regard to medieval marriage and gender relations. As the statute itself suggested, it does seem that at least some medieval men might be prepared to forgive and take back their wives, and we see this being claimed here. Why might men do this? The statute suggests that some reconciliations were achieved through the Church’s coercion of the husband. The coercion of others – family, neighbours – would be another possibility. But it is also conceivable that at least some strands of medieval thought took a rather less ‘once lost, always lost’ (T. Hardy, Tess of the D’Urbervilles, c. XV!) view of chastity than would come to be the case in later eras.

GS 22/5/2017.

 

See on this area of medieval law:

P. Brand, ‘“Deserving” and “undeserving” wives: earning and forfeiting dower in medieval England’, Journal of Legal History, 22 (2001), 1-20.

G. Seabourne, ‘Copulative complexities: the exception of adultery in medieval dower actions’. in M. Dyson and D. Ibbetson (eds), Law and Legal Process: substantive law and legal process in English Legal History (Cambridge: CUP, 2013), 34-55.

G. Seabourne, ‘Coke, the statute, wives and lovers: routes to a harsher interpretation of the Statute of Westminster II c. 34 on dower and adultery’, Legal Studies 34 (2014), 123-42.

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

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.

Brand on medieval judges and juries

Paul Brand (2016) ‘Judges and Juries in Civil Litigation in Later Medieval England: The Millon Thesis Reconsidered’, Journal of Legal History, 37:1, 1-40.

Professor Brand takes a less pessimistic view than did Millon of whether medieval juries actually followed what appeared to be the ‘official’ legal rules (as seen in legal texts) as opposed to making decisions based on their own discretion. Looking at plea roll cases c. 1300, he finds a clear connection between what the rules appear to have said should happen, and what did happen. Judges and courts helped keep decisions consistent with the rules, and the pleading process, in framing issues sent to the jury, also ensured some control.

Impeccably argued and bristling with hard-won documentary evidence, this needs the reader’s full attention, but is worth the effort. It will be an important point of reference for anyone looking at medieval law, and a check on the common temptation to look for exceptions to rules, to emphasise dissent and resistance, in legal history. This article is a powerful reminder that medieval judges and juries often pulled together, and law texts might be reflected in practice.