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Of pears and periwinkles: a snippet on medieval torture

I don’t want to go all ‘pear of anguish’ here, and/or play into the lazy and tiresome stereotypes of medieval brutality, but … I did come across a tantalising little snippet on torture devices in a recent search of plea rolls, which I think is worth sharing with anyone who happens upon this.

It came up in an entry relating to an approver (approvers being those who ‘turned king’s evidence’ and accused their former associates, in the – usually forlorn – hope that they would escape punishment themselves).[i] There were relatively frequent assertions by these approvers that they had been coerced into taking on this very dicey role, confessing to their own guilt of a capital offence, probably having to take part in a judicial combat,  and running the risk of immediate execution if they failed to make the accusation stick and their former associate was acquitted. Not a great option, in most cases, we might think (leaving aside the whole ‘confession is good for the soul’ thing). Such instances have been noted by others, including allegations of torture as a method of coercion, but I have not seen reference to the interesting and specific detail provided in one 14th C Yorkshire case.

In the King’s Bench plea roll for Michaelmas term 1343,[ii] we find a presentment by jurors of several wapentakes[iii] in Yorkshire regarding treatment of one William Cholle. William had, so they said, been in a prison (not specified where), and William de Rymyngton and John de Nessefeld, cleric,[iv] in whose custody he was, had taken him to the tower of York castle, and, once there, had drawn him on a rope and ‘on his fingers, put certain torments called pyrewynkes’ in order to force him to become an approver. He did not, however, become an approver.  The jurors then went from specific to vague and general, stating that the accused had made many prisoners in their custody become approvers by the use of such tortures (though the jurors did not know the names of these unfortunates) and that William caused a number of men to be accused in sheriffs’ tourns, for profit (using false testimony and oaths, and then extorting money from them to have them let off).

I was expecting a quick ‘not guilty’, but no – the law caught up with William R, and he seems to have accepted his guilt (I trust, without the use of torture). He made fine with the king – the tariff was 20s. This, however, was offset by the expenses William declared for repairs to the doors and windows, and other repairs to the king’s hall of pleas at York castle. William was keen for this to be enrolled – presumably to protect him from any further action and/or attempts to recover the 20s fine.

So what?

Well, an interesting tale in relation to the two Williams. William C is, so far, a mystery: there may well be more to be found out, but it is at least interesting that somebody was known to have withstood torture. William R does not come out of it well, does he, but it is interesting that this was not treated as a massive abuse. What does that say about royal attitudes to the approver system? I think it supports the suggestions of earlier scholars that this was a fairly merciless thing, and also something seen as necessary for achieving an acceptable level of prosecution of offenders. If somebody like William R went a bit far, well, it wasn’t the end of the world.

Finally, what about those ‘pyryewynkes’? Others may have come across this term in the past: I have not. They don’t seem to feature in the work of Musson, Hamil or Summerson. I can only speculate about their nature – they are plural: was there one for each finger? We will all be familiar with the thumbscrew – was this something like that, only multiple, and not just for thumbs? I assume that it was some sort of crushing or stretching device, but that may be a lack of imagination on my part. What is suggested by the name – it looks rather like ‘periwinkle’, so could it be a device which looked like small seashells? Or flowers? Or a word garbling Latin elements indicating tight binding? The flower seems more likely than the shell, given easily accessible definitions and etymologies.[v] Hard to imagine quite why the device was like a flower, if that is the idea. Probably a dead end, and perhaps more interesting anyway are two other things: first that it is named in English by the jurors, and, second, that it has a specific name at all.  Both of these suggest, it seems to me, that this was something people in the wider community beyond the legal system knew about, talked about. So maybe, just maybe, it is a tiny signal that we medievalists should not take the defensive attitude towards ‘our patch’ too far, and be so quick to bat away all torture horror stories as ignorant modern nonsense, or shunt them forwards to the early modern period (that’s a favourite move with anything negative, isn’t it?). There may not ever have been a ‘pear of anguish’, other than in the minds of later fantasists,  but a fair number of medieval people in York at least believed in the existence of ‘the fearsome pyrewynke’ …

 

GS

8/1/2024

 

Image – pretty, inoffensive, non-torturing, flower, vinca minor by Lydia Penrose, courtesy of Wikimedia Commons.

 

[i] See, in particular, A. Musson, “Turning King’s Evidence: The Prosecution of Crime in Late Medieval England.” Oxford Journal of Legal Studies 19 (1999), 467–79; F. C. Hamil, ‘The King’s Approvers’, 11 Speculum (1936), 238-58; H. R. T. Summerson, ‘The Criminal Underworld of Medieval England’  17 Journal of Legal History (1996). 197-224; And I found this one useful on torture: L Tracy, ‘Wounded Bodies: Kingship, National Identity and Illegitimate Torture in the English Arthurian Tradition’, in D.E. Clark, L. Robeson, M. Nievergelt et al. (eds) Arthurian Literature XXXII (Woodbridge: Boydell & Brewer; 2015) 1-30. No doubt there is more I could read. My internet search engine did express concern, though …

[ii] KB 27/334 m. 17; AALT IMG 0320.

[iii] Wapentakes are jurisdictionally-relevant geographical subdivisions: this term is specific to the northern part of England.

[iv] He comes up now and again in official documents, e.g. here there’s a man of that name, county and time who has a job as keeper of the hospital of the Holy Innocents – and see the end of the next note.

[v] The trusty Middle English Compendium gives three meanings for ‘pervinkle’, including the shell. The flower seems to be the earlier ‘periwinkle’ though, and there is an intriguing association between the flower and execution, from Lydgate, in the MEC:  pervink and pervinke – Middle English Compendium (umich.edu) ‘Thou hast … crowned oon with laureer hih on his hed upset, Other with peruynke maad for the gibet’- J. Lydgate, Fall of Princes (Bod. MS 264) vi. 126. I am not pretending I have read this – I haven’t – but intriguing nonetheless. And let me just go all-out conspiracist … there is an ecclesiastical document relating to a John de Nessefeld which is decorated with … flowers … Coincidence? I think not!

(And a quick ‘pear of anguish’ update … I am currently working through the complete ‘box set’ of detection drama, Bones (don’t judge: I find the puzzle solving very cathartic) and was intrigue/disappointed to see the POA featuring as a murder weapon in 4:15, with no correction about historical accuracy by Dr Brennan. It’s making me doubt the total authenticity of other aspects of the show …)

Matching mayhem

A spot of plea roll-Year Book matching as I ease myself into 2024. YB Pasch. 25 Edw III f. 85a pl. 22 seems to be this 1351 plea roll case. There are no names or places in the short YB note, while the plea roll tells us that it was a London case, an appeal brought by John de Hardyngesthorne, saddler, against John White, pouch-maker, for maiming the middle finger of his right hand with a baselard. There is a pretty clear match – both are about injuries to fingers, and both show a self-defence plea.

A point of legal interest is that self-defence might work here, as well as in homicide cases. That was not self-evident, since there were some important differences between the two, especially in the sense that a successful appeal of mayhem did not result in capital punishment.

The plea roll tells us that John White claimed that John de Hardyngesthorne had come, mob-handed, and attacked him in his home. The jurors weren’t having any of the self-defence story, however: there was a conviction and a jury award of £10 to the injured saddler. Interestingly, the judges inspected and considered the injury, and then raised the sum to be paid, by 40 s.

There are all sorts of things to think about here, including this last assessment of injury and compensation point. It is also potentially a telling case in terms of one of the questions which has been buzzing around my head, as I work on a larger problem on mayhem: what role was this offence playing in medieval society, and why are so many of the cases about arms, hands and fingers? In this case, our injured saddler was undoubtedly concerned not so much for his fighting prowess (the original domain of mayhem) but for his ability to perform his craft and earn a living. I am no expert but I would imagine that a hand/finger injury would be a big problem in a skilled and fiddly task like saddle-making. Any attempt at reconstructing the facts behind the allegation is necessarily speculative, but it’s hard to resist – possibly a basic brawl, but I find myself wondering about the possibility of a squabble over supplies for the creation of saddles and pouches: was there little love lost amongst the leather-workers?

 

GS

Epiphany, 2024.

Image – your actual baselard. A later German one, but you get the idea. Courtesy of Wikimedia Commons.

Your guess is as good as mine …

A quick bit of medieval smut for the new year … I recently found a very interesting name, in a King’s Bench plea roll of 1349 – William Wassheballok[e] … which raises all sorts of questions about how William ended up with that label. (Was his personal hygiene unusual … did it stem from some practical joke … and why the apparent singular?)

I cannot say that I have ever seen the name before, so assuming that, mercifully, it didn’t carry on down the generations.

GS

3/1/2024

And another one …

Not rude in the anatomical sense, but also a bit of an interesting name is the surname of Simon Godesbones, appearing in the KB plea roll for Easter 1368. He would seem to have been named after a theologically questionable oath (‘by God’s bones’!) So was it the result of him (or some predecessor) using that oath regularly, or did somebody exclaim it when they saw him? Or something else?

 

 

Image: courtesy of the wonderful AALT which was not set up for such unscholarly smut …

Most recent publication: touch and pressure

New publication here: 

‘Touch and Pressure:  Sensing Sexual Harassment in Medieval Common Law Sources’

Glad to see this out – a short piece on trying to get at something which medieval common law records are not inclined to disclose: sexual harassment which is not rape. It came out of an invitation from a Paris-based project, the AVISA project, and a paper delivered in the depths of Covid lockdown, and I think that the invitation came, directly or indirectly, from the things I have published on this blog – so, nice to know that somebody out there is getting something from it!

I am sure there is more to say about this, and maybe I – or others – will turn up further relevant things in common law records. I was left with two abiding thoughts, though:

  1. It is far from ahistorical to look for this sort of material in legal sources – it’s not as if there was no concept of it as wrong, or not a fit subject for legal intervention, before the 19th or 20th C (check out the English pre-Conquest stuff, and the Welsh stuff);
  2. It is worth taking a bit more seriously those actions of males for damage to ‘their’ women through rape or harassment etc. – I know that the immediate visceral response is negative – it’s about a man having property rights in a woman – but, just as the better view in legal history is now that the ‘women were property’ encapsulation is inaccurate, so, I think, we might consider the (small) upside of seeing harm to a woman as not just something she is left alone to deal with in the legal context – as remains the case with modern English rape etc. trials – and we know how badly that works. Obviously patriarchal in terms of who it is, but … worth a thought? It struck me, when ‘launching’ the very recent book by Joanne Conaghan and Yvette Russell, on Sexual History Evidence, which is positive towards the idea of giving an independent legal representative to rape victims/survivors, that the older pattern, of giving some responsibility to another person might be seen as having a little in common with this: making it all less one lonely woman against a defence lawyer trying to tear her reputation and credibility apart, and ‘backed’ by the impersonal force of the police and CPS. Not that I am a ‘coverture apologist, or suggesting that husbands and fathers should take the lead, but, looking at the independent legal adviser/representative suggestions might cast a new light on the way we consider these actions which do not leave the woman quite so exposed. One to think through, anyway.

GS

10/11/2023

a shadow

Take cover[ture]

CW: Yes, I am going to talk about patriarchy again. Any delicate little flowers liable to stamp their feet/roots at that should look away now.

While my mind is on coverture, let me add this – a bit of thinking about the way in which patriarchal ideas continue to exert influence long after the point at which it is generally supposed that they were abandoned. Despite assumptions that the doctrine of coverture was killed off with the changes brought in by late 19th C women’s property legislation in particular, the idea of coverture continued to dribble its poison into the law and life of the twentieth century, and beyond.

With my modern law lecturer hat on, I want to confirm that today’s law students, if they follow their reading lists, will encounter the idea. There are statements about the doctrine being ‘defunct’,[i] but though much of its former substance is gone, coverture has never been abolished in explicit terms in England and Wales. And that matters.

There are some surviving statutory provisions which refer to it. The one I come across every year when I am preparing my easements teaching in Land Law is the Prescription Act 1832 s.7. It is true that this statute is rarely used, but it remains grating and insulting to see the continued promotion of this language in an official source. It would probably also surprise people to learn that it is still felt that there is a need to define ‘coverture’ in the glossary of very recent current government guidance on matters of tax. There is also one attempt to use a (thinly disguised) coverture argument which I come across every year in Land Law, in the leading case of Williams & Glyn’s Bank v Boland. There was an attempt to argue that a wife’s presence in a house was not to be taken as ‘actual occupation’, but as a ‘shadow’ of the occupation of her husband. So now he is some solid object interposed between her and the sun (the law?), rather than a smothering blanket (well, that is how I have always visualised coverture), but Lord Wilberforce made the connection between this argument and the coverture-as-unity idea.[ii] More modern legal arguments in England and Wales do not seem to approach coverture reasoning quite so closely, but it is interesting to see coverture being brought up in a slightly different way, as ‘historical background’ to modern decisions, and perhaps with an undertone of the present elite congratulating itself by reference to (a simplified view of) the past. Thus, in  A NHS Trust v X [2021] EWHC 65 (Fam), in the Family Division of the High Court, in a case which was not anything to do with marriage and its effects, but was about whether a Jehovah’s Witness child could refuse a blood transfusion, a judge, at 56 nevertheless shared with his audience the statement that ‘Once upon a time the [feme covert] …, by reason of her coverture, was treated as lacking the capacity she had had as a spinster and only recovered as a widow or on divorce (feme sole).’ This, it seems to me, shows a lasting fascination with the idea of coverture, and also suggests that modern lawyers are not so far away from medieval lawyers, who, if the reports which made it into the Year Books are concerned, certainly enjoyed talking about coverture, even in cases in which it was not strictly relevant.

And so to the usual question – so what? Well, in my view, the fact that there are these lingering shadows of the diminishing and discriminatory doctrine of coverture still to be seen should spur legal historians on to explore its history, to show its continuities and discontinuities, to resist easy narratives of progress: we are fooling ourselves if we think that there is such a thing as a ‘clean break’ from the patriarchal (yes, said it again!) institutions of the past.

 

GS

1/10/2023

[i] See, e.g., Armstrong v Onyearu and another [2017] EWCA Civ 268; [2018] Ch. 137, argument of  Simon Passfield.

[ii] [1981] A.C. 487.

 

Image – a shadow, probably not in actual occupation. Photo by Rene Böhmer on Unsplash

St Dwynwen's Church, ruined. If you know, you know.

The embraces of the past

(I am not sure that this one is ever going to see the light of day as a proper REF-able ‘output’, but I enjoyed writing something on aspects of the common law’s treatment of married women it for a conference on coverture in 2022, and I feel moved to put some of it ‘out there’, for anyone who feels inclined read it, so here we are: some marital musings)

‘Coverture’ is a word well known to legal historians: the explanation for many limitations placed upon married women, and sometimes something of an excuse to leave them out of consideration, and get on with telling the more agreeable story of rises, triumphs and men. Nevertheless, the last decade or so has seen some particularly keen excavation and questioning of the nature and place of ‘coverture’ in legal history. Building on that work, I have a few thoughts.

I am going to start in what might seem like fairly unpromising territory to anyone but the most obsessive medieval property law fan: pleading in relation to voucher to warranty. And if anyone needs a refresher on what voucher to warranty is, this is something which might happen in a land dispute: a defendant is calling on somebody to back him up, and say that he does actually have a claim to the land in question. Sometimes that backer-up, the ‘vouchee’, does not want to take on this potentially onerous responsibility, and might ‘counterplead’ (i.e. argue that he should not have to) and so there would be a trial within a trial, to sort out that matter.

We can see an example of this counterplea to voucher to warranty in a land case from Herefordshire from 1292 – a mort d’ancestor case, in which one party (Ralph de Toni) claims that he should have [seisin of] some land, currently held by Roger son of Richard de Hereford, because it was held by his (Ralph’s) aunt Margery at her death, and he is next in the conventional line of inheritance. Roger was not having it, and vouched to warranty Thomas, son and heir of William de St Omer. Why should Thomas have to warrant? Well, the story was that Roger’s father, Richard, had been granted the land by William de St Omer and Petronilla his wife, by a charter with a clause which said that William, Petronilla and their heirs would warrant Richard and his heirs – so they committed themselves and their heirs to supporting Richard and his heirs if the latter faced a legal challenge of this sort. Thomas did not want to warrant, though. He found fault with Roger’s pleading: pointing out that the charter was in the names of William and Petronilla, and though William was dead (and so was represented by Thomas), Petronilla was alive, and should also have been vouched, but had not been. Roger tried to say that it was fine to leave her out, and he had not made the sort of mistake which would mean his case could not succeed. His argument was that even though the charter was under names of both William and Petronilla, it only ‘had vigour’ under William’s name. Why? Because [and here comes the ‘coverture’ bit at last] Petronilla could not oblige herself by charter, as, at the relevant time, she fuit inter brachia Willelmi viri sui’ (was within the arms of William, her husband). It was found, however, that, in this case, the ‘‘in his arms so effaced and irrelevant’ argument did not win. At law this was a joint transfer, so both William’s representative and Petronilla should have been included. The immediate outcome was that this was a bad voucher and Thomas did not have to warrant Roger.[i]

There are other quite interesting aspects to this case, but let us focus on this idea, this formula, of a wife being ‘in her husband’s arms’, and unable to do things. It seems that this was not a complete ‘one-off’, nor a factual statement about Petronilla actually being within William’s arms at the key moment, but a juridical term: there was a similar usage in a French-language Year Book report, attributed to 1311, and to everyone’s favourite cantankerous early 14th C judge, Chief Justice Bereford. This was another voucher to warranty case, and, once again, a husband and wife had transferred some land to X, defendant in a land action, and X vouched only one party – here, the wife’s heir, the wife now being dead but the husband alive. It was argued – successfully – that both the husband and the wife’s heir should have been vouched, because the wife, who was, at the time, ‘enter ses bras’ could not make a transfer of land on her own.[ii] [Substantive point QI – both parties needed].

That is a lot of land law to get to [a fairly arcane legal point and] two little phrases. Why do I think these cases, and this ‘within his arms’ business, are interesting? Well, first of all, I think these examples show something of the contexts in which ‘coverture’ type questions could arise in medieval common law. These are hardly big, exciting cases dealing head-on with the patriarchy and the rights of women: the reports show us that these are instances of men arguing about land, looking for a technical mis-step in pleading or procedure. Nobody really cares about Petronilla in that 1292 case: she is a device. It seems important – telling – that ‘the coverture stuff’ quite often comes up on very small pleading points, not big ‘rightsy’ questions.

Secondly, there is the image itself: the wife in the husband’s arms. What does that specific image suggest, and how does it relate to existing scholarship on ‘coverture’? It seems to me to be very ambiguous: should we be seeing it as an embrace or a restraint? Should we be thinking vertically or horizontally? There are resonances with the formula in medieval ‘criminal’ law, in appeals (individual prosecutions) brought by a widow for the killing of her husband: until the later 14th century, she had to claim that he had died ‘in her arms’. The ‘in his arms’ formulation is a bit different to the better-known expressions relating to married people in medieval and later legal sources, with their ideas of unity or domination. ‘Within his arms’ seems to me to be more complex, and more obviously temporary. In my view, it reinforces the argument – made by others[iii] that the central idea of ‘coverture’, or the husband/wife relationship at common law was unsettled in the medieval period (though within male control, since the power in that embrace, to contain, or to release, was all with the man).

And does it matter, this argued-for unsettled nature of medieval ‘coverture’? Is this just some academic navel-gazing, disappearing up her own backside and furiously ‘nuancing’ things long gone? It does seem to me that it is important to keep making the point that some of the apparently monolithic, unchanging, institutions and ‘doctrines’ of the common law were not inevitable, nor did they descend, fully formed, without being adopted and adapted by individuals and groups with influence over the content of the law, who saw in them some advantage to themselves and their view of the way things should be. Throwing back the sometimes lazily-arranged covers, exposing the complexity the common law’s treatment of women, appears necessary, both to do what we can to understand the conditions (physical, legal, cultural) in which countless women lived their lives, and also to recognise the continuation into our own lives and times of some ways of talking about, thinking about, and behaving in, marriage and other domestic relationships.

And so, dearly beloved, will I continue on my obscure little way, going on about this women stuff, and possibly even using the word ‘patriarchy’ from time to time?

I will.

 

GS

30/9/2023

 

[i] JUST 1/303 m.21.

[ii]Seipp 1311.21

[iii] See, in particular, Married Women and the Law : Coverture in England and the Common Law World, edited by Tim Stretton and K. J Kesselring, McGill-Queen’s University Press, 2013 (editors’ very helpful introduction, and c. 2 (S.M. Butler).

Words about words (in English and Welsh) about deeds not words

This is a paper I wrote in 2013, as part of a project to mark the anniversary of some ‘suffragette’ incidents in Bristol and elsewhere. Clearly, I never quite got around to tidying it up into a state suitable for submission to a journal. Maybe I will, one day, but, having come upon it as I clear out my home of many years, I thought I would put it out there in the world at least, and maybe it will be of interest to people looking for material on the suffrage campaign, on Abergavenny, or on Wales. I have more material on this, and especially a number of intriguing suffragette-related poems in Welsh to finish turning into English, but I think there are some points which can be made now (and, realistically, I have my hands full for the next few months, so, unless the whole thing is to be put back behind the back-burner, it feels like time to offer it up to the silent void). A bit of Swedish death cleaning (except, not off just yet, and in English/Welsh, not Swedish).

Coming back to these stories after a decade, two things strike me. First of all, the issue of a clash between different groups, with different claims to a history of bad treatment, brought into conflict, which we see in the ‘Suffragettes v. Eisteddfodwyr’ tension, has come to resonate even more than it did in 2013. I am not of the view that history has direct, simple, lessons for the present, but it is certainly interesting to think about the compound clash of identities involved in the episodes to be considered here – sex/gender, class, language, nation – all taking place in the fluid border country of Monmouthshire, which happens to be my native soil.

Off it goes … far from perfect, but has its good points …

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GS

24/7/2023

Photo by Ricardo Gomez Angel on Unsplash

Assize (still) matters (?)

Clearing out a lot of stuff from my house, as times are very much a-changin’ … came across a cache of overhead projector slides from some long-ago talk on price regulation (odd how that has just hit the news again …). Time to get rid, seeing as I don’t think OHPs are actually going to be coming back. But these are great, so I thought I would snap them for the blog.

Both images come from the Liber de Assisa Panis, a London MS about bread price/quality regulation. That sort of thing was an important part of my PhD thesis, and also formed the basis of an article with the main title ‘Assize Matters’. Not sure whether the editor of the Journal of Legal History at the time did, or did not, get the smutty joke, which owed something to these suggestive car ads … A career high in any case: can’t beat a good pun.

Smut aside, I do love the fact that the top image shows a bit of a space-planning fail. The artist seems to have made everything a bit too big, so that the horses pulling the sledge had to be squashed in (or were the horses drawn by somebody else?) The second one is much more rough and ready, and they decided not to bother with the horses at all. Very ‘relatable’ – horses are hard. I remember that my big sister used to arrange any drawings featuring horses in such a way that she only had to draw the horse’s backside, tail and back legs, because horse heads were so difficult. We are a very artistic family … Also love the fact that this cruder drawing has a label, so we can be in no doubt that it is John de Stratford, whose transgression appears in the entry beside it.  Just in case the likeness was not absolutely apparent.

Enough reminiscing – time to move on (though not dragged on a sledge, I hope ,,,)

GS

2/6/2023.

From ‘forthcoming’ to ‘coming forth’: a long chapter in academic life

A chapter I wrote quite a while ago, on the legal history of rape in western Europe, has just come out in a collection about medieval crime and deviance.

‘Rape and Law in Medieval Western Europe’ looks at the ways in which different medieval jurisdictions approached rape. The records on which it is based are not straightforward (languages, handwriting, changing meanings of words, and more …), but, carefully examined and considered, they do give at least a sketch of the ways in which rape was thought about, and treated, in medieval law.

There are comparisons and contrasts to be made with regard to the ways in which a case might be brought before a court, the factors which would make sexual misconduct seem to those [men] trying a case more or less serious, and the consequences of a finding of guilt. It is easy to find statements about the serious nature of rape, but often – and this is certainly the case in English records – difficult to find examples of completed, ‘successful’, prosecutions of offenders. This should lead us to ask why that might have been the case, but also to question what we mean by ‘success’ in this context. In medieval English law, if felonious rape was prosecuted through to a conviction, the consequence would be a sentence of death by hanging, and forfeiture of property. The vast majority of rape cases stalled or were diverted at some point before this fatal outcome, however. It seems likely that a significant proportion of them were settled, so as to give some financial assistance to a woman who would now, perhaps, face significant difficulties. No doubt in some cases a complainant simply gave up.

Jurisdictions showed variation in terms of who was seen as a possible victim of rape (Only women? Only or particularly certain sorts of women/girls?) in terms of procedures and in terms of the consequences of a finding of guilt. As we might expect, there were some very negative attitudes towards women embedded in law and practice, though there are also intriguing occasional examples which seem to show sympathy and significant support for women and girls who had been raped. Much of what we would probably like to know lies hidden behind the terse records of cases which remain, and some insights can be gained by considering medieval literary treatments of rape (even though somebody like me, with no real expertise in literature, should tread very warily here). The one law-literature matter which I was, sadly, unable to treat here was the recent developments in the Geoffrey Chaucer-Cecily Chaumpaigne case, which became big academic news long after I actually wrote the chapter (which, I think, was in 2018 … academic publishing can be slow …) and too close to the date of publication to allow for an addition to the text. I intend to write a little more about that soon, as I think there are a couple of ‘legal historian’ points which people might find helpful/interesting).

The overall message of the chapter, I suppose, is one of competing, sometimes contradictory, ideas at play, coming out in different ways in different systems, and even within the same system at different times. Fitting the chapter into a book on the construction of crime and deviance, I would say that the job I hope it does is to warn against seeing medieval rape law as something which can be understood as showing a contrast between ‘the law’ – something stark, simple and clear – and ‘practice’ – which very frequently departs from ‘the law’ so as to let men off with their sexual misconduct. Certainly, a lot of rapists (in our terms) will have ‘walked’, but the ‘escape routes’ were not wholly external to legal doctrine, and legal doctrine was far from the clear, ‘worked out’ and comprehensive thing it is sometimes assumed to have been. Here, as in several other areas of ‘criminal’ law, ‘the law’ is, at least in part, constructed by practice.

Stepping back from the chapter itself, it strikes me that it would have surprised my past self, starting off in the 1990s as a new lecturer and trainee legal historian, that I was working on this area at all. My Ph.D. was on economic regulation, and my early research projects were not focused on women, nor on matters of gender. Not looking into women’s history was a very self-conscious choice, stemming from the opinions of others, influential in the world of legal history, and also from my own thoughts about what it meant to be an academic. The ‘opinions of others’ point was that the legal history tradition in the institutions where I had taken my first steps in the discipline was not given to much consideration of such matters, regarding them as peripheral, trivial, ‘trendy’. The internal inhibitor was that I had drunk in the idea that academics were supposed to be neutral, completely external to the material which they studied. Taking such an approach was the way to win the pat on the back of a good exam grade at school, and at university, and the way to avoid the sniggers and suggestions of ‘stridency’ or ‘special pleading’ from a predictable portion of the department, should there be any suggestion that a woman was focusing her attention on women. To get past that internal inhibition took me quite some time, and the kick up the backside of a combination of  factors.

One shaping factor was where I ended up working. After leaving full-time study, I got a job at Bristol. Arriving here, I was treated with great generosity by the resident co-ordinator of both Roman Law and Legal History, Andrew Borkowski. He made room for me and my interests in the Legal History unit, and the unit he had developed was already rather less private law focused, and rather more open to issues of family law and gender than were those which most undergraduates would have been taught (and still are taught in some places). Initially, I came on a one-year teaching contract, and had every intention of going back to study full time for a Ph.D., in a Law department, where, I would imagine, I would have been immersed once more in the traditions of internal, ‘classical’ legal history, never more to look to matters dismissed as (shudder) ‘social history’ . Bristol made it hard to leave, however, offering both a permanent contract and assistance with doing my Ph.D. part time. A particularly important aspect of this offer was that I could seek supervision from the School of Historical Studies. This, I think, was crucial for the path I have taken. While my Ph.D. thesis was not about anything particularly gender-focused, it did, incidentally, lead me to acquire an additional set of skills and perspectives, which, I think, helped me to break down my own inhibitions against ever, in any way, talking in my academic work about things which were connected to myself. On a less positive note, another factor in the path from economic regulation to a focus on women came in the form of personal experiences of various kinds, including being taken aback by the ways in which institutions and their senior management treated those who took maternity leave or had childcare responsibilities (not so long ago as all that …). (And yes, saying that ‘out loud’, I see how far I have come from the ‘got to look objective’ stance: hinting at some of the less-than-optimal experiences I had with university promotions procedures and those who operated them at key points in my career …). My second monograph, about the many and various ways in which medieval women might be confined marked something of a shift of orientation, as well, perhaps, as something of a burning of bridges. A very influential law-department-based ‘classical legal historian’ was incredulous that I could plan to write a book which would place women to the fore. What about the men?! It felt, though, like something I had to do. Then there were a couple of lucky archival finds (on ‘drug rape’ and ‘work-based sexual harassment) and I began to be known (in certain small and dusty academic corners) as somebody who ‘did women’, and to be asked to write things in this area, including the chapter which has just come out.  So there we are: I am now proud to embrace it, but I think today’s lesson is that it isn’t just academic publishing that can be …

a bit slow.

GS

6/5/2023

 

 

Photo by Melissa Keizer on Unsplash – tortoise, slow, etc etc.

Roman castration pliers

Thoroughly modern mayhem?

There is a story in the UK news[i] which is of potential interest to those of us who like a bit of mayhem. One Marius Gustavson appeared in Westminster magistrates court on Wednesday 22nd March, charged with offences including GBH for removing body parts from other men (those parts including penises, testicles,[ii] nipples, as well as damaging legs beyond healing, requiring amputation …). Other men, allegedly involved in the same activities, appeared in other courts. The chopping of bodies is portrayed in reports as perhaps being consensual, and part of a ‘nullo’ subculture (a new thing to me), and the whole process also involved filming, streaming and charging people to view the footage.

It is the suggestion of consent which caught my attention. It is unlikely that a defence based on consent could succeed in this situation, following, in particular, the decision with regard to less extreme injuries in R v Brown back in the 1990s (gay S & M-inflicted injuries, Lancs; consent defence to offences under ss. 47 and 20 of the Offences Against the Person Act 1861 – ABH and wounding – does not work)[iii]. However, I wonder whether it will reignite people’s interest in the law which lies behind Brown, and, in particular, its discussion of mayhem/maim. Whether or not there is a full, discursive, judgment to pore over, I think we can probably anticipate some commentary which takes a bit of a wander through the weird and wonderful world of mayhem.

It does strike me that the injuries in this new case are actually much more clearly within the traditional bounds of mayhem than were those in Brown (or indeed the tongue-splitting etc. in  R v. BM).[iv] Statements on the law of mayhem, and its application, required permanent damage, loss of function or total loss of a ‘member’, which I am not sure was present in Brown, though it certainly is here.[v] They are also very much tied to the male body – so damage to testicles in particular is specifically mentioned in the masculine-focused medieval definitions of mayhem. Leg-removal would also be a clear mayhem. Nipples I am less sure about. And Bracton completely failed to anticipate live-streaming, though it did predict one other aspect of this case – keeping the removed bits

We await the next part of the legal process – apparently due for the 19th April – and further enlightenment.

Updates

19th April: further proceedings: two men plead guilty to removing the nipple and penis of the alleged ringleader (GBH); there is also information about the procedure, in that lidocaine seems to have been used for anaesthesia, and about other offences,

There are set to be further court dates in May and June, and a provisional trial date in March 2024.

 

 

GS

27/3/2023

[i] See, e.g. the Guardian report, though it is in many other places.

[ii] Apparently this is done with something called a ‘burdizzo’. I now know 100% more about how this all works than I did 15 minutes ago. I am not sure that that is a good thing. None of the reports make it clear whether anaesthesia was involved. For castration in Bracton, see this post.

[iii] [1994] AC 212.

[iv] [2018] EWCA Crim 560.

[v] Some of the journalism also draws us into a story from Japan of a man who had his genitalia removed, cooked and eaten … Definitely beyond my mayhem-centric remit. I don’t think this was what Bracton had in mind in its passages on castration and mayhem.

Image: Roman castration pliers, obviously. Courtesy of Wikimedia Commons.