Not being particularly up with recent fiction, I have just got around to reading F. von Schirach, The Collini Case (2011). Wow – how often does a novel turn on legal history, legislation and limitation and (geek heaven) have an appendix setting out relevant provisions. Marvellous. Oh and a good story too…
This scurrilous nonsense was, apparently, found stuck to the door of some church in Germany …
Martin L. (the Augustinian Brother who could Do No Other)
A Diet of Worms caused constipation
till his guts experienced Reformation.
He objected to indulgences but still grew stout;
shacked up with a nun, chucked celibacy out;
wrote hot hit hymns, and cool translations
and tied himself in knots over consubstantiation.
His views on Jews can’t be overcome:
he had 95 theses: but tolerance definitely wasn’t one.
Here is a striking story from the plea rolls of the time of Henry IV, which throws a few glimmers of light on several shadowy areas of medieval law and social history: the law of mayhem, domestic relations and domestic violence, and the consistency of medieval bread.
Alexander Dalton v. John Barnaby is an appeal of mayhem (private prosecution for infliction of certain sorts of wound) appearing in the King’s Bench plea roll for Easter term 1400. The parties were both described as tailors, and the location is London (more precisely, ‘in the parish of St Gregory in the ward of Baynard’s Castle’). The other character appearing in the record is John Barnaby’s wife, whose name is not given.
Dalton brought the case against Barnaby in relation to an injury to his (Dalton’s) right eye. The accusation was that Barnaby had hit him in the eye, leaving him with complete lack of sight in that eye. Thus far, this is all quite standard: true, most mayhem actions seem to be about injuries to arms and hands (with no end of ‘mortified nerves and veins’), but loss or diminution of sight fits within the overall idea of a mayhem as a serious injury, perhaps to be understood as centring on the concept of damage to a man who might potentially fight for the king. Things swiftly become a bit odd, however, as the ‘weapon’ which Dalton alleges Barnaby used against him was not the usual knife, sword, pole-axe etc., but … half a loaf of white bread. Dalton said that Barnaby had thrown this at him, hitting his right eye and causing his injury.
Barnaby told things somewhat differently, denying that he had done anything felonious. He described events from a slightly earlier point, saying that, on the day in question, Dalton and Barnaby’s unnamed wife had been in the city together. As soon as they got back to Barnaby’s house, Barnaby ordered his wife to sort out the dinner, which involved laying out a tablecloth, and putting the bread (and presumably other items) out. Barnaby said that he intended to chastise his wife for having been out in the city, and away from home, for a long time. This chastisement was supposed to take the form of Barnaby throwing bread at his wife’s head, and this was what he was trying to do. He threw the bread at his wife, and Dalton stupidly got up and jumped in the way of the flying half loaf, so ending up with his injury, through his own stupidity (rather than through Barnaby’s wrongdoing, as had been alleged).
Predictably, we do not get a straightforward conclusion to the case – a jury was to be summoned, matters dragged on for another couple of terms, and then we see Dalton being fined for failing to turn up and press on with his case. Nevertheless, what we have in the record is quite interesting in a number of ways.
As far as the law relating to mayhem is concerned, Dalton v Barnaby provides: a good example of a defence of ‘your own stupidity caused the injury’and an unusual weapon. Unfortunately for medical historians, there is no questioning about the medical care which was, or could have been provided after Dalton was hit by the loaf-projectile, but the rules of medieval common law procedure meant that Barnaby had no need to go into that.
There are also some interesting nuggets with regard to marriage, domestic relations, domestic violence. It is well known that husbands were allowed and, indeed, expected to correct their wives’ misbehaviour, but this episode, at least as Barnaby tells it, shows something a little different to the standard examples of beating (with fists, sticks, clubs). If Barnaby was telling anything like the truth (and that’s debatable – I can’t stop thinking that this was all a food fight which got out of hand) then he thought it a plausible view of ‘reasonable chastisement’ that it might include throwing bread at his wife’s head – was this humiliatory and.or regarded as humorous? Within his story, there is also the germ of a contradictory idea – perhaps Dalton, if he did jump in front of the loaf, was demonstrating that he thought Barnaby was going beyond appropriate husbandly correction. Also on the marriage front, it is interesting that Mrs Barnaby and Dalton appear to have been out and about in London together – the more suspicious reader might wonder whether there was something going on there, and if there was an extra-marital relationship, it might make Dalton’s ‘stupid jumping’ seem rather less of a general intervention to stop a colleague from abusing his wife, and more of a personal defence of somebody to whom he was devoted. Much to ponder. ‘The wife’ of course, apart from not being named, is not allowed much action in either man’s version of events.
And finally, there is that bread! It was part of a white loaf – the more expensive type of wheaten bread – rather than the poor person’s darker fare. Nevertheless, it clearly can’t have been a light and airy creation, if it was thought plausible that it was capable of causing this sort of injury. Again, however, the ‘rules of the game’ would have meant that nobody would have had the opportunity to ask questions about this: since the argument was framed as ‘You injured me with bread’ v. ‘You may have been injured with bread, but it was your own fault’, there was no space within which to test the question of whether that loaf could have caused that injury, or whether, in fact, it did cause the injury. Such are the joys and frustrations of medieval legal records.
Alexander Dalton v. John Barnaby KB 27/556 m.12d (The National Archives); see this online, AALT image 0163 via the Anglo-American Legal Tradition website at http://aalt.law.uh.edu/AALT.html ). Further stages of proceedings can be seen at: KB 27/557 m. 54 and KB 27/557, fine roll.
On medieval domestic violence, see, in particular S.M. Butler, The Language of Abuse: Marital Violence in Later Medieval England (Leiden, Boston, 2007).
Those whose appetite for medieval bread has been whetted may wish to see (ahem), G.C. Seabourne, ‘Assize matters: regulation of the price of bread in medieval London’, Journal of Legal History 27 (2006), 29-52.
Finding myself wondering whether that proverb about half a loaf being better than no bread was current in medieval London …
It is a big task to keep on top of emerging scholarship in Legal History, especially when it’s outside my ‘research period’, but it’s important to try (for teaching and SLS convening, as well as for the avoidance of disappearing in a puff of over-specialisation) so here’s what I’ve been looking at most recently:
- The AJLH goes all out for spousal murder
Not one but two articles in this area in the latest edition:
Andrea McKenzie, ‘His Barbarous Usages’, Her ‘Evil Tongue’: Character and Class in Trials for Spouse Murder at the Old Bailey, 1674-1790’, American Journal of Legal History, 2017, 57, 354–384. Very interesting and well-argued treatment of changes and continuities in conviction rate, defences and sympathies. [On a trivial note: striking numbers of knife-throwing homicides, and mercifully brief reference to the (IMO) appalling epistolary novel, Pamela.]
Ian C. Pilarczyk, ‘Acts of the “Most Sanguinary Rage”: Spousal Murder in Montreal, 1825-1850’, American Journal of Legal History, 2017, 57, 316–353. As a complete novice in relation to Canadian LH, this was 100% profit for me. Some great (in the sense of terrible) cases here and interesting to see issues of extreme domestic violence in a different social milieu. Lots of alcohol, fewer guns than I might have thought, and some all-too-familiar narratives of domestic horror.
- The JLH gets emotional
I was a bit stunned to see that the usually rather conservative Journal of Legal History has, in 2017’s Vol. 38 no. 2, embraced the very cutting-edge area of history of emotions. Still getting over it – comments will follow shortly. …
Merridee L. Bailey & Kimberley-Joy Knight (2017) Writing Histories of Law and Emotion, The Journal of Legal History, 38:2, 117-129. This one introduces the area – not necessarily one which would be familiar to JLH readers. It argues for an ‘emotional turn’ in historical study (I have to confess to bridling a bit at ‘turns’ – clearly need to work on that), and gives a clear account of the difficulties and possibilities in the field.
John Hudson (2017) Emotions in the Early Common Law (c. 1166–1215), The Journal of Legal History, 38:2, 130-154, Drawing on decades of detailed study of this period, Hudson considers the inclusion and exclusion of emotion in the treatises and records of the Angevin-era common law. We see mention of fear, affection, anger and spite, amongst other emotions, but also indications that law could be responding to the disruptive power of emotions, and those administering it might consider it appropriate to exclude emotion from legal proceedings, in order to achieve fairness and rationality. I am sure I will be making use of this in my own medieval research, and it has certainly started a few musings about intersections with gender, and contemporary ideas about gender.
Amy Milka & David Lemmings (2017) Narratives of Feeling and Majesty: Mediated Emotions in the Eighteenth-Century Criminal Courtroom, The Journal of Legal History, 38:2, 155-178. This article looks at the complicated relationship between the well-known ‘majesty of the law’ idea in relation to criminal justice, and display/use/suppression of emotions on the parts of different ‘players’ in the drama, dealing with cross-currents of rising ‘sensibility’, changing role of the press and changes in legal representation. It is an extremely convincing and thoughtful piece, and managed entirely to overcome my usual emotional response to things about the 18th C [urghhh – sensibility ….]. Going on the UG reading list.
Alecia Simmonds (2017) ‘She Felt Strongly the Injury to Her Affections’: Breach of Promise of Marriage and the Medicalization of Heartbreak in Early Twentieth-Century Australia, The Journal of Legal History, 38:2, 179-202, Breach of promise of marriage is a much-ridiculed area of legal intervention, and yet a wonderful way of getting at ideas of gender and damage which prevailed at any given period. Early 20th C Australia is pretty unfamiliar to me, but this was very instructive. Made its argument well. Also well worth a look for its wider relevance to ideas of appropriate compensation for different sorts of damage – and historical contingency of legal attitude to different categories of harm. [And for some charming statements on the veracity of women, hauntingly reminiscent of Hale’s words on rape and witchcraft, see p. 184].
Katie Barclay (2017) Narrative, Law and Emotion: Husband Killers in Early Nineteenth-Century Ireland, The Journal of Legal History, 38:2, 203-227, And we’re back to spouse-killing. Clearly one of the topics of 2017. Illustrates well the important but complicated role of emotions (and their suppression/absence) in the 19th C homicide trial. Given contemporary understanding of gender, emotion, psychology and the murder/manslaughter boundary, there were clearly some real tactical conundrums in the conduct of such cases.
Overall emotion at the end of this? (See how I am getting into the swing of this?) Happiness! It strikes me as a very healthy sign that this sort of scholarship is being displayed in the JLH. Glad to see a very established figure in UK legal history contributing to this special edition, and to learn what a talented and interesting set of scholars has been gathered around the history of law and emotion.
3. The Selden Society gets bigamous
R. Probert, ‘Double trouble: the rise and fall of the crime of bigamy’, (London, Selden Society, 2015) (SS Lecture for 2013) in which R. Probert upsets some assumptions about levels of bigamy in the 19th C (having previously done a good job revising ideas about levels of cohabitation, and attitudes to cohabitation)
I have just got through the very wide-ranging Law Com Consultation Paper on wills: a huge project, dealing with a important area which needs reform, though perhaps not something which is going to be at the top of T. May’s ‘to do’ list just at the moment.
There are some interesting developments in the ways in which the Law Commission is making its consultations available. Alongside the usual formal document and English summary (still pretty long!), I was pleased to see a prominent summary in Welsh (Hwre!) and also the well-thought-out ‘Easy Reading’ version. On this subject in particular, it seems important to get the views of people who would struggle with the usual academic/legal presentation. I do also love the infographics: these seem to have appeared quite recently in Law Com publications. But there is only so far you can go, and ademption and fraudulent calumny would not be easy to illustrate. In the end, this is a pretty involved area, and I suspect that most of the respondents to much of the consultation will be academics and/or lawyers.
Given the complex nature of the subject matter, the main document does a good job of setting out the areas which might be changed or questioned, as clearly and succinctly as possible. It is, however, rather too quick to assume that testamentary freedom is of overriding importance to a large majority of people (see, e.g. 1.12). If press reactions to the recent Ilott case show us anything, it is that ideas about personal responsibility for family members and dependents, and wider responsibility to society are also important to many of us. The extent to which rights over property should outlive us, allowing our dead hands to retain some grasp over assets which were ours in life, is and should be a matter for debate. Attention to the history of all of this demonstrates that English common law’s championing of testamentary freedom is relatively recent and has, at almost all times, been subject to limitations.
There is plenty which is picturesque in the language of succession law(e.g. I’ve always liked the idea that a will is ‘ambulatory’ – picture a formal document wandering around the place) and plenty which seems amusing about wills written on eggshells, and the many and various ways in which people can get things wrong, but there are also worrying cases, particularly those regarding vulnerable testators and the possibility of their being pressurised or tricked into making their wills in particular ways. The paper makes some interesting suggestions about how to try and enable vulnerable people to make wills, while guarding against dubious behaviour on the part of those around them. In doing so, it has to deal with the messy state of play surrounding pleas of’undue influence’ and ‘lack of knowledge and approval’. The idea of some sort of support scheme for people whose capacity is diminished but not wholly absent, allowing them to make a will, seems humane and in line with international obligations, but whether this should be in any way state funded is much more difficult. Where should enabling those with assets to leave to depart from intestacy rules lie on a list of priorities which includes much more basic medical and social care needs? In addition, the gentle suggestion that medical and care staff should not be discouraged by their institutional policies from becoming involved in the will-making of their patients (1.33) seems to me to be questionable. Is facilitating ‘testamentary freedom’ really part of the appropriate role of these people and institutions, so that they should involve themselves in will-making, and the attendant risk of future litigation over the will of a patient, rather than looking after other patients who do not have assets to distribute? That would seem to be transforming this ‘freedom’ to a right – and one which trumps various, more basic and universally accepted, rights of others.
The paper has a go at the implications and opportunities of computing and the internet. Yes, Land Lawyers – shudder with me at the echoes of ‘e-conveyancing’- there are suggestions concerning the possibility of e[lectronic] wills. The lessons of e-conveyancing seem to have been learned, though, and there is no great fanfare about this, just some discussion of the possibilities and difficulties and the suggestion of an enabling provision to deal with this as and when the technical difficulties are cleared up. So despite the Mirror’s excitement (http://www.mirror.co.uk/money/if-die-you-can-xbox-10796411 ), it is probably unlikely that we are about to see wills made by drunken text message.There is also some work on various electronic property or ‘property-adjacent’ things. I do look forward to seeing hardcore property lawyers getting into debates about rights to characters in online games [though perhaps they would enjoy ‘In the Toils of a Harlot’: the online undue influence game].
At times, reading this made me wonder about the role and process of consultation. On the one hand, too great a role seems to be given to those who choose to reply: thus, some of the consultation questions look as if they would be better answered by a solid empirical study, rather than by way of a question thrown out to all who wish to involve themselves – e.g. q 2 about experiences of the impact of making wills and disputes over wills after T’s death. Wouldn’t we get a more solid answer if there was actually a proper survey on this? On the other hand, those who choose to respond to the consultation may feel that they are regarded as being less important than those already sought out for ‘pre-consultation’ and labelled ‘stakeholders’. I am not fond of this word in any case, except in a gambling context or in relation to Buffy the Vampire Slayer. It’s an unthinking borrowing from corporate-speak of the worst kind, and it needs to stop. Leaving that aside, calling some people ‘stakeholders’ appears to me to give prominence to certain individuals or groups over the public at large. In this context, I am not sure that anyone should be regarded as having more of a ‘stake’ than anyone else: this law applies to all of us. As with the totemisation of testatory freedom, it plays down the impact on the public of changes to private law. It may well be sensible to talk to particular individuals and groups before writing a consultation document, but that is more to do with their particular expertise than their ‘stake’. Of course, we don’t like using the ‘e-word’ these days, do we?
Some thoughts on ‘Landmarks’
The word ‘landmark’ has been more than usually prominent in my various law-related channels of communication of late. As a matter of choice and interest, I keep up with the progress of the admirable Women’s Legal Landmarks project, which highlights significant steps on the far-from-finished road to equality, and will publish a book with Hart in 2018. In addition, my attention has been drawn by various people and by the publishers themselves to Hart’s several volume series, Landmark Cases in… which includes edited collections of articles on cases in particular fields of legal study. Same publisher, same word, but rather different ‘feel’ to the two lines of ‘landmarks’ offerings.
Perhaps, in light of my interest in the former, it will be unsurprising that I raised an eyebrow when checking the details of the Landmark Cases volumes on Hart’s website: the often very small proportion of women authors and editors. I should say straight away that there are exceptions – Property Law, Medical Law and Family Law had better balances in terms of authors, and included a couple of female editors. Elsewhere, however, things were much less encouraging: note the contents details for the volumes on Tort, Contract, Public Law, Land Law and Criminal Law. A researcher of the future, looking at these volumes, would take away a rather odd picture of early 21st century legal scholarship. Are there really so few eminent female scholars (http://www.bloomsburyprofessional.com/uk/series/landmark-cases/ ) in these fields? Perhaps these books will feature in a chapter in distantly forthcoming collection, Landmarks in Women’s Legal Scholarship (2117), preferably as a footnote example of quaint peculiarity in the one concerning the move towards gender balance as a normal part of academic conferences and publishing.
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.
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, , 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.]
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.
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:
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.
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.
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