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

Priors, Promises and the Proper Observation of Old Books

As a Land Law teacher with a research interest in medieval legal history, I am always interested to see the two parts of my academic world coming together. Sometimes this can be frustrating, when lawyers, judges or others misrepresent the law of the past, or throw around ‘medieval’ and ‘feudal’ in an inaccurate fashion (see the sniffy references by Laws LJ to ‘medieval chains’ in Manchester Airport plc v Dutton [2000] QB 133, at 148A – while in fact describing actions which were around far later than  the medieval period – and the many references to rapacious practices with regard to ground rents and service charges on long leaseholds as ‘feudal’, which they aren’t). I also get exercised by the practice of relying on partial evidence about an old case, by citing a Year Book (medieval to ‘early early modern’ law report) without cross-referencing with the relevant plea roll (official record). Traditionally, doing a proper job of tracing the plea roll entries would have been massively time consuming, but, although it is still not easy, the advent of digitisation of many legal records (especially by the Anglo-American Legal Tradition project) has certainly speeded up the process.

Why bother? Well, it is always good to have as much information as possible about a case, if it is to be cited, and the record can fill in details of procedure and pleading not fully noted in reports. The main thing, though, is that law reports of the past, and especially the deep, medieval past, were not like modern law reports, and treating them as if they are just like something from modern reports, or indeed modern published judgments, is something of a distortion. We may find, for example, that what is relied upon as authority for a proposition of law was actually rather less definitive than would appear. The charm and frustration of early reports is that reporters were often more interested in noting lines of argument, and opinion, than in giving a clear ‘ratio’, (and frequently do not tell us what was the outcome of a case). If at all possible, then, it seems sensible to try to find both record and report, where these exist.

And so to the case I wanted to discuss. It is one which is frequently cited in texts on a tricksy part of Land Law: (freehold) covenants. I was first introduced to it as a second year undergraduate student, when our textbook referred to it in semi-anonymous terms as The Prior’s Case (1368). Clearly a proto-medieval-legal-historian even then, I wanted to know more, but nobody seemed to be able to tell me anything about it. I was given the strong steer that there was no need to ask questions. I did get as far as tracking it down in the printed Year Books, but struggled at that stage both with the black-letter printing and, of course, with the Law-French and peppering of Latin. I did learn something though – a truth about history and the doctrine of precedent in English law: people cite things they haven’t read; which they couldn’t have read. It was rather unsettling.

Now, years later, when I have got to grips with the old languages and scripts of the law, and learned a thing or two about modern lawyers and judges as well, I can take it all a bit further.  As ever with historical study, one notes that some things change, and others stay the same. I checked the Year Book report once more (with the aid of the extremely useful Seipp’s Abridgement) and then tracked down the plea roll entry relating to the case. You can see the YB report here {Seipp 1368.013; YB 42 Edw. III f. 3 pl. 14) and the plea roll entry is at CP 40/430 m. 60.

What do these tell us, and does it add to, or alter, the conventional view of the case? Well, the first thing to note is that the names of the parties have become woefully garbled over the centuries. The printed YB version of events has it as Laurence Pakenham v. a prior (anonymous), and it is as Laurence, or Lawrence, Pakenham’s case that Coke cites it: Co. Litt. 385a. In fact, the plea roll shows that the case was not brought by a man with a surname tying him to Suffolk, but was, in fact brought by Laurence de Pabenham. This Laurence was a man with ties to Bedfordshire and Northamptonshire, Pabenham (now Pavenham) being in the former county. Now, a b and a k can be hard to distinguish in certain scripts, so some slippage here is not massively surprising. An additional garbling crept in, however, at some point, renaming the case ‘The Prior of Packenham’s Case’.[i] This might seem like a small thing, but its mixing up of plaintiff and defendant means that it  is not a version of the case name which would have been given by anyone who had actually gone and had a look at either the YB report, or the passage from Coke’s First Institute, which is usually cited with it. It is all rather indicative of (a) sloppiness; and (b) a casual attitude towards the truth. Alternative facts, anyone? I would certainly not be impressed by one of my students citing – and therefore claiming to have read – something which they clearly had not read. It reminds me a little of some of the nonsensical footnotes which give away the more inept Chat GPT user.

The plea roll tells us that the defendant prior and convent were from Canons Ashby (Essebi) in Northamptonshire. This was a house of Augustinian canons. The manor to which the covenant was attached was Hinwick),[ii] and Laurence claimed that the covenant was an old one – made with his great grandfather, Hugh, by the prior and convent of Canons Ashby back in the reign of Henry III (14 Henry III, which was a LONG time before – by indenture, formalities fans – wouldn’t it be great to find that, to understand the detail of the deal?). The covenant allegedly laid down that the canons should be singing three times per week in the chapel of Hinwick, in perpetuity. Laurence claimed, further, that, though they had massed away for almost a hundred years, they had not done it for twenty years, and he had not been able to get the prior and convent to keep the covenant. Just why the canons were holding out against keeping the bargain, who knows. I imagine it might be a bit of a pain. Laurence claimed 40 l damages for their failure, anyway.

All very interesting, and serving to highlight some of the changes between the PR and YB versions, but what about the past/present question – does the case, in either version, unequivocally stand for the proposition(s) for which it is now cited?

How is it now used? We can see a modern citation of The Prior’s Case in Bath Rugby v Greenwood and others [2021] EWCA Civ 1927,[iii] Nugee LJ, at 37, referred to it as an ‘example of noticeable antiquity’, and quoted Clauson J, in In Re Ballard’s Conveyance,[iv] who was, in turn, coming at The Prior’s Case through Coke in Spencer’s case (1585),[v] was a case which might bear further scrutiny in terms of its accuracy and relevance.  Anyway, the Spencer version of the point of the case is given as follows:

 The Prior’s case was one where the prior of a convent had covenanted that he and his convent would sing all week in the chapel of a manor for the lords of the manor. … a successor in title to the manor was able to enforce the covenant: “for the covenant is to do a thing which is annexed to the chapel, which is within the manor, and so annexed to the manor, as it is there said.

Nugee (38) thought that it was fairly obvious that the benefit would be annexed in this sort of case because it is ‘usually obvious which land such a covenant benefits … a covenant to sing for the lord of the manor in the chapel of the manor benefits the lord of the manor as owner of the manor,..’ There is probably scope for interrogating that sort of benefit, but let’s leave it at that. It is about passing of benefit of covenants, including positive covenants, by annexation to land/property rights.[vi] The Prior’s Case is also used as authority for the idea that there is no need for a servient tenement, in covenants, unlike easements.[vii]

The case itself was a little less clear cut. It featured quite a lot of argument as to whether Laurence had made a fatal error by claiming as the heir of Hugh. The thing was that there was another person who seemed to have a better claim to be Hugh’s heir – a young girl called Margaret, a minor, who was descended from Hugh via a senior branch to that from which Laurence sprang. (In the YB, Coke and ever thereafter, Margaret is written out of the story, which becomes one of an older and younger brother: interesting in its effacing of females, but ultimately not crucial to the legal argument). The prior’s side made a lot of this in argument. Laurence and his lawyers tried to get around this by basing his argument on his land rights: he was tenant in tail of the land to which the chantry was appurtenant (Hinwick), so, while Margaret might be ‘senior’ in terms of blood, he had the link via the land, and that meant that only he could in fact sue on this. Both YB and plea roll suggest that the court found the answer far from obvious, and it was repeatedly delayed, and adjourned.[viii] Coke seems to have skated over that aspect of things, and stated that there was a straightforward finding for Laurence, and so a decision that the covenant was annexed to the manor, so that it could be enforced by Laurence, as the person holding it.

The YB suggests that things were going in Laurence’s favour, but I have not yet turned up a final decision, and I am not sure that we can take it on trust from Coke that there was a definite decision that looks like annexation of the benefit to land (let alone to an estate) prevailing. As is often the case, Coke may have tidied things up rather, bringing an older legal world within the norms of his own day, and effectively making substantive rules out of a dispute about pleading. This passage rather sums up his approach:

Observe reader your old books, for they are the fountains out of which these resolutions issue, but perhaps by these differences the fountains themselves will be made more clear and profitable to those who will make use of them’.. [ix]

Even taking this as a definite judgment, it is very much something to which some context would need to be added and questions asked. There is at least potentially something of a mismatch between the idea of the attachment of a benefit to a manor and attaching it to land, or an ‘ordinary’ estate in land.

So, long story short, I am not sure The Prior’s Case quite stands for the straightforward proposition for which it tends to be used, and there is room for improvement in the way in which lawyers use old cases in new cases and practitioner texts. It strikes me as interesting that legal practice has created its own rewritten versions of the past, for use in modern law. Who would have thought that stereotypically pompous and conservative lawyers would actually be happy working in a post-truth environment? Aside from the questionable implied claims to scholarship and a basis in authority which are embodied in garbled citations of this case, there is something decidedly odd about purporting to respect precedent whilst not actually making an effort to look up records or reports. To the extent that all of this suggests an idea of historical scholarship, it is the historical scholarship of several generations ago, with its passing acquaintance with documentary sources and its reliance on the words of great men (Coke, Blackstone, others, but mostly Coke).

GS

4/12/2023

[DRAFT: DO NOT CITE WITHOUT PERMISSION; This is a ‘work in progress’ and the search for the end of the case goes on!]

Update, 7/12/2023

Two more things:

  1. the case is mentioned in Simpson. As Pakenham’s Case (with YB ref) and there is an explanation of the extension of the running of the benefit of covenants in land, beyond basic warranties, in this case.[i] It rather assumes – perhaps because of the date of the case, that this was about a post-1290 arrangement, but that is not what the plea roll implies.
  2. I am still waiting for a chance to check the plea rolls thoroughly, but there is a hint in a secondary work that the case was not in fact simply decided in favour of Laurence, as modern accounts assume. Now, I confess that I have not yet managed to get to the British Library to check out the manuscript cartulary (see how easy it is to admit that!), but it looks very much as if there was a settlement, with Laurence agreeing to pay the canons for their services: see G. Baker, History and Antiquities of the County of Northampton  2 vols (London, 1822), II, 10, citing Ashby Cartulary in possession of R Orlebar esq of Henwick co Bedford, fo. 204. This is MS Egerton 3033. Sadly, the current disruption at the BL is keeping me from getting my eager little hands on it. 

[i] A.W.B. Simpson, A History of Land Law, 2nd ed. (London 1986), 116-18.

Image: This, I think is the church in question. Note absence of singing canons. Proves my point, I think.

 

[i]  Preston & Newsom: Restrictive Covenants Affecting Freehold Land, eleventh edn (London: Sweet & Maxwell, 2020), Table of Cases and 1-023.

[ii] Inquisition Post Mortem of Laurence’s father, with the right lands. Inquisitions Post Mortem, Edward III, File 78 | British History Online (british-history.ac.uk)

[iii] This case involved rugby rather than singing masses. (I will hold back from making points about the similarity between religion and sport, sport as the modern Opium des Volkes, etc., though I may just be thinking it). Basic issue: did a covenant from 1922 against particular commercial uses mean that Bath Rugby (Club) could not develop the land in question as they wished, to which the answer would be yes, if the benefit of the covenant had been annexed to identifiable land.

Covenants superfans will note at once that, because of the date, there was no tangling with s. 78(1) LPA 1925 or the top fun which is the case of  Federated Homes Ltd v Mill Lodge Properties Ltd [1980] 1 WLR 594. If you know, you know.

In the end, the answer was that the land was not identified precisely enough, so the covenant did not work to stop the development.

[iv] [1937] 1 Ch 473 at 482.

[v] 5 Co Rep 17 b

NB – Spencer’s case is about the passing of the burden: Ps are original lessors, so not passing of benefit.

[vii] L. Turano, Intention, interpretation and the “mystery” of s. 79 of the Law of Property Act 1925’, Conv. 2000 Sep/Oct, 377-97, 379; Megarry, Robert, William Wade, Stuart Bridge, Elizabeth Cooke, and Martin Dixon. 2019. The Law of Real Property Ninth ed. London: Sweet & Maxwell, 31-014. ‘in an old case a Prior covenanted with the lord of the manor that he and his convent would sing divine service in the chapel of the manor. It was held that the lord’s successors in title could sue the Prior for non-performance.’

[ix] Co Rep at 17b, p 76.

Positively charged easements? A few thoughts on Gosling v Bradbury [2023] EWHC 199 (Ch)

TW: modern land law, not legal history …

Still with me? OK. This recent easements case is quite interesting (to those of us who like such things) in its treatment of a slightly involved easement.[i] It takes us into a bit of thinking about classification of easements as positive or negative, and into the issue of ancillary easements/rights. It also hints at a rather intriguing question with regard to accommodation and change from supply of something positive to the dominant land, to allowing the continuance of something potentially negative in effect.

The action took place in rural Worcestershire, near Droitwich. Simplifying the facts to their essentials, there were two adjacent pieces of land, Ford Farm (FF) and Rashwood Lodge (RL). It was claimed on behalf of RL that RL had an easement over FF, to obtain water from a borehole on FF, using an electrical pump, located in a barn on FF. The right to the water was fairly uncontroversial – there was an express grant of such a right, from 1982. The issue concerned the electrical pumping. Bradbury had interrupted the electricity supply to the pump, and this meant that the water was no longer pumped to RL. This only came to the attention of the occupant of RL, Ms Dawe, when her supply dried up, so that she could no longer water her horses. [Note to self, insert picture of sad horse here].

What possible argument did Bradbury of FF have for interrupting the electricity supply? Well, the argument made for this not being contrary to an easement in favour of RL was that, although the easement created in 1982 included a right to receive water from the borehole via pump and pipes, and, indeed, a right to go onto FF to check and maintain the equipment, it did not say anything about a right to a supply of electricity.

The judgments suggest that Bradbury, who had acquired FF recently, was well aware of the existence of an easement, but wanted to ‘take back control’ of the land, stop others coming onto it, and perhaps renegotiate the deal with RL so that it was more along the lines of a licence. If this was the plan, it did not work, however.

The right to have the pump powered by electricity, with wiring and apparatus on FF, was held to be a right ancillary to the explicit easement relating to the water received by means of the pump. There was an attempt to argue that, because an ancillary right could not impose a positive obligation on the servient owner,[ii] Bradbury could not be obliged to pay for and allow the supply of electricity, via apparatus on his land. Essentially, Bradbury was trying to say that the interruption of the current was not a positive interference with a genuine easement, but a cessation of positive action to support a claimed but invalid easement. This did not work. Zacaroli J ruled:

‘28. The ancillary right, as declared to exist in this case by the judge, is defined as the right to enjoy the passage of electricity across [FF], including, the right for [Bradbury] to arrange for the supply of electricity onto [FF], the right to make use of infrastructure already in situ on [FF] or to install their own infrastructure and apparatus, and associated rights of access. These impose no positive obligations on [Bradbury or successors in title], but merely require them to suffer things to be done on Ford Farm. They do not, as [counsel for Bradbury] contended, require the appellants to provide and maintain electric wiring and arrange a supply of electricity.’

I think it is quite interesting for easements in general, because it does show the room for disagreement around positivity and negativity. We tend to treat them as clear and distinct, but are they always? That construction of a requirement ‘to suffer things to be done’ is so beautifully liminal in its positioning between active and passive. Not to mention its biblical resonances. The whole situation was also made a little vaguer by the fact that RL and its occupants had not been asked to pay a share of the electricity for some time, though it was maintained that they would have been willing to pay. This non-demand/non-payment circumstance allowed Bradbury to suggest that FF was being burdened with the cost of the electricity, as well as having to ‘host’ the machinery, cables etc. That, of course, would tend to make it look a little more like a requirement for positive input on the part of the servient owner, and so less like a legitimate easement. If we think about Regency Villas, it would tend to take us into the territory that so concerned Lord Carnwath.

It is worth mentioning a couple of other unsuccessful lines of argument which were run on behalf of Bradbury. First of all, there was an attempt to suggest that the easement was to receive water, and that did not actually require the pump, or the electricity, because water would naturally flow from the borehole onto RL anyway. This was ruled out partly because it was an attempt to introduce a line of argument by the back door on appeal, contrary to general rules on appeals which I won’t discuss here, but mostly because the easement was actually in terms of receiving water through the pump and pipes on FF. The fact that it might be possible to get it in some other way was neither here nor there.  Secondly, there was a disallowed argument about the alleged unsafe condition of the water which was coming up from the borehole: apparently it was contaminated by arsenic. This was ruled out of order, again, because it was being brought in in a procedurally inappropriate manner. An interesting potential issue though: what if something which starts off as clearly ‘accommodating’ the dominant tenement turns nasty and damaging? Does ‘accommodation’ cease then, bringing down the whole easement? Not according to  Zacaroli J: even if this had been shown, he did not think that the easement ‘fell away’. It was not necessary to get into this in great detail (sadly for Land Law fans!) but he suggested, almost in passing, that it would be particularly unlikely to change our view of whether the easement ‘accommodated’ in these circumstances:

‘37. …I do not need to decide this point, but I doubt that this requirement is intended to impose a further qualitative or quantitative requirement that the right granted in the particular circumstances is one which does in fact provide a benefit. Moreover, if (which is not disputed) there was a benefit to Rashwood Lodge when the water easement was granted in 1982, it is difficult to see why, assuming there are now unacceptable levels of arsenic in the water – the validly granted easement will have for that reason fallen away, particularly if the problem with arsenic in the water is temporary or can be got around.’

Anyway, Bradbury was found to have been in the wrong, and to have interfered with an easement which did bind FF and its owners. And, just in case anyone was still fretting about positivity and negativity, and the fact that the outcome would be likely to be that Bradbury would have to take positive action, Zacaroli reassured us that:

  1. Although an easement does not impose positive obligations on the servient landowner, if the owner of the servient land is found to have wrongly interfered with a negative easement, it may be open to the Court to require it to take some positive action to undo that which it did via its wrongful interference.’

 

So there we are: positively crystal clear, and without a trace of arsenic; a case about boreholes which is not wholly boring.

 

GS

15/11/2023

 

[i] First instance: [2020] EWHC 3906 (Ch) DJ Shorthose.

[ii] True: ‘14. Any ancillary right must itself, however, be capable of subsisting as an easement: William Old International Limited v Arya [2009] EWHC 599 (Ch), per HHJ Pelling QC at §31.’

Image – general suggestion of electrical power: Photo by Frames For Your Heart on Unsplash

‘Frenzy’ and Fatality in Fourteenth Century Flore

Here ( JUST 1/635 m. 38 (1MG 0745)) is an interesting case from the Eyre of Northamptonshire, 1329-30, which I saw in passing today, and which seems worth noting for that niche demographic of people who are interested in women, things medieval and things legal. Somebody may have discussed it, but in case they have not, this is what the record says, in quick and dirty translation …

The jurors of the hundred of N[ewbottle Grove], Northants, presented to the eyre the following story: Walter Bunt, who was not in his right mind, as a result of frenzy [infirmitate frenetica detentus], hit Leticia Bellawe at Flore in the head, and she died fifteen days later. Walter was arrested and brought to trial. He pleaded not guilty. The jury said that, on the day in question, which was very recent, Walter was affected by this ‘frenzy’ [infirmitate frenetica laborans], and he was alone in his house at Flore with Leticia, who had charge of him [que ad custod’ ipsius Walteri extitit deputata]. Walter, in his madness [in furiositate sua], grabbed Leticia by the head and threw her to the ground, then took up an iron candlestick, and hit her on the head with it, while so afflicted [in infirmitate sua predicta], and she died of it in this way, not through felony nor malice aforethought. Walter was sent back to prison, in the custody of Thomas Wake, to await the king’s grace.

 

There is no particular surprise in the fact that Walter’s mental disturbance was regarded as likely to result in a pardon from the king, nor in the jury’s apparent determination to move the authorities to mercy in this case, with their repeated insistence that actions were done whilst Walter was not mentally competent.[1] (We will leave the interesting distinction between an ‘infirmity’, ‘frenzy’ and ‘fury’, and the linking verbs about being ‘detained/held’ by a condition of the mind, labouring under such a condition and just being in a condition). What I want to draw out is, rather, the role of the unfortunate Leticia. I am intrigued by the description of her as deputata – assigned, ‘deputed’ – to take care of Walter. This strikes me as a rather official-sounding description: she was not merely looking after him, but she had been appointed to do so. If we take it at its most formal, could this be an example of a woman having some sort of court-mandated appointment? We know that those with mental disturbances were committed to their families at times, but it is not apparent that Leticia was related, or married, to Walter (and this is the sort of detail which is usually mentioned, in relation to women). So – an intriguing possibility with regard to women’s legal roles, even if far from clearly proven. Even if this is not any kind of official appointment, it does look as if somebody thought that Leticia was capable of taking care of a man suffering from some sort of mental health problem, which probably says something about wider ideas of women’s capacities. I am left wondering how such positive views might have been affected by the tragic outcome of this particular case of a woman being put, or left, in charge of a male detainee?

 

GS

12/11/2023

 

[1] There are other references to the effects of insanity on liability – including some interesting material on the effect of fluctuating insanity – in Sutherland’s Eyre of Northamptonshire 1329-30 (1981), 188, 196, 215-6. Note also what might have been a less kind attitude to those with mental disturbance in the same eyre, here: JUST 1/632 m.40d IMG 0926 – a man who was accosted by a woman who was not in her right mind, whose attack seems only to have been verbal, and who was accused of throwing a stone at her head, killing her, was found not guilty. Of course, perhaps the whole thing was untrue, but if not, interesting.

Written on the bodice: judicial scorn for, and salivation over, the secrets of women

The Western Mail, 14th August 1899 carried a story which says much about the press and the legal profession of the period. The account of a relatively small-value case in the county court at Cardiff bears the headline ‘Judge Owen and the ill-fitting bodice’. This manages, by juxtaposing a (male) judge and clothing assigned feminine, and fairly intimately feminine at that, to provide a certain amount of transgressive titillation. There is more excitement at the sub-heading, ‘Cardiff high bailiff called in as expert’ – another man, of course, and why, we are supposed to wonder, is he an expert: a certain fondness for ‘the ladies’, or further suggestion of gender transgression?

We are left in no doubt at the reporter’s view of the whole thing as a joke by the opening of the report itself: ‘Nothing in the county-court is productive of so much fun as a case in which the parties are a lady dressmaker and customer, and the subject of litigation an alleged ill-fitting dress.’ Ho ho: ‘the ladies’ – what are they like? Squabbling about dresses, indeed! The reporter certainly seems to enjoy himself, reporting the banter of the judge – Judge Owen, a favourite of the Welsh press of the time – and other men in court especially the high bailiff, whose view of the work on the dress in question is requested, the judge claiming ignorance of such things. While a modern reader would not (I would hope) be as impressed with the clubby misogyny and trivialisation of women which the case reportedly embodied (or embodiced?), one aspect of the banter is of some legal historical relevance: when the case requires him to decide on the quality of the dress, the judge drew laughter from those present in court by saying that he ‘considered that they should have a jury of matrons for these cases’.

Now, the jury of matrons was a group of women tasked with ascertaining whether or not a female convict  who had been found guilty of a capital felony was pregnant enough for her foetus to have quickened, this being a reason to defer the execution, or, latterly, to commute the sentence.[i]  It was still in use, though criticised as inappropriate in a world which put ever greater trust in professionalised, mostly male, medical practitioners. This report of the case, in its joking suggestion that there should be a jury of matrons for issues regarding womanly attire, reflects both knowledge of the institution, and also perhaps an idea that the proper sphere for the expertise of women was located in a less important area than the presence or absence of life: frothy superficiality, rather than deep and hidden truths.

In fact, this jokey script of a judge throwing his hands up in the air at the mysteries of women’s clothing,[ii] and suggesting that a jury of matrons would be a good idea in such cases, can be seen in other reports. I cannot claim to have made an exhaustive search, but there are certainly earlier examples of it, not infrequently stitched together (yes, I was pleased with that imagery!) with rather creepy judicial comment or behaviour which, in fact, suggests that women, and their secrets, are, in fact in the male domain.

An 1864 edition of The Illustrated Usk Observer and Raglan Herald carried a report of a London Sheriff Court case involving a disputed millinery bill (were the hat prices ‘reasonable’ or ‘exorbitant’? Only ‘the ladies’ could say … thus we have a humorous call for a jury of matrons). A slightly different story was the South Wales Echo report in 1887 of an English case involving bridesmaids’ dresses. In this case, the ‘humorous’ wish by Judge Turner, in Ripon, for a jury of matrons was to sort out the custom with regard to whether or not bridesmaids were expected to pay for their own dresses to be made up.[iii] Tame enough, if trivialising.

We get into more leering territory with the Weekly Mail of 9th July 1887 which reported a similar remark from Kekewich J, when faced with a case involving ‘dress improvers’ (that’s bustles to us) but also features some icky banter about garters. The South Wales Echo elaborated, noting  ‘the Attorney General’s eloquent description of “the human frame divine”, and the appearance of the bench covered with bustles and dress improvers of every conceivable shape and size’.[iv]  Similar need-for-a-jury-of-matrons things were said by Hawkins J in 1893, according to a report in the South Wales Echo (which enjoys telling us -or not quite telling us – that the case involved some sort of women’s underwear). Then there is a report in a 1902 edition of the Cheshire Observer, relating to a Birmingham case on the quality of work on women’s clothes. This trotted out the ‘we need a jury of matrons here’ line, but also showed the judge (Judge Whitehorne) airing a few judgey views on women’s fashion – the front of the coat in question (a plush sac-coat … no, me neither) was ‘vulgar’ because of its hooks (No idea – too revealing? Too shoddy-looking? Certainly suggests a questionable fixation with women’s … fronts … on the part of the judge).

In 1905, Judge Owen was, reportedly, at it again. The Cardiff Times reported another of his cases, involving allegedly defectively made women’s clothes, under the evocative/emetic headline ‘A Patchwork Skirt: Judge Owen sighs for a jury of matrons’. As well as making the matrons comment, we are ‘treated’ to the judge’s banter about just how long or short the skirt is, with rather excited questioning about whether it covered her knees, whether she wanted to show her ankles etc.

Possibly most creepy of all is the combination of ‘we need a jury of matrons’ plea plus judicial over-involvement of an actual gropey nature, seen in a report of a case of 1907, appearing, for example, in the Evening Express. This was a case involving a woman, Marion Draughn, who was something of a celebrity, due to her involvement in an earlier breach of promise case. It was, again, about whether or not somebody had to pay, if clothing was supplied, and was not what the customer wanted. We are informed that Deputy Judge Bevan, in the Westminster County Court, had Miss Draughn go off and change into the ‘costume’ in question, and proceeded to run his hands over her to determine the fit or lack of it. Eurgh.

So what? Well, it is not very surprising that women were treated with scorn, with regard to their capacity as jurors or the clothing they wore. Assuming that the reports are not completely inaccurate, however, they do seem to me to give some interesting glimpses of judges flashing to posterity rather more of their innermost thoughts about women, their bodies and their fascinating garments than they might have meant to expose.

GS

10/11/2023

[i] There is a lot of good work on this area. A very good place to start on the institution in its later years – covering this period – is K. Crosby, ‘Abolishing juries of matrons’, OJLS 39 (2019), 259–284.

[ii] (resonating, to the medievalist, with the ‘secrets of women’ idea)

[iii] Added hilarity was provided by the fact that the bridegroom was 73 years old (no mention of the age of the bride, but the word ‘elderly’ did appear to apply to her too).

[iv] It is worth noting that this intellectual property case was not all that trivial in financial terms: the owners had sold £1,500 worth of the items in a year. There was some joking about ‘prior publication’ involving ridiculing of bustles too. It is, of course, quite hard not to see them as preposterous, but, equally of course, ridiculing women’s fashions can have a profoundly misogynist tone. See also the reference to this case in another relating to ‘trouser-stretchers’ in the same year, which reported that one of the lawyers, Mr Aston KC, had suggested that a ‘jury of mashers’ might be used here. I had remembered this (from, I believe Tipping the Velvet), as a male-impersonating-female, but the OED suggests that we should translate it as a jury of leering, creepy men, or at least dandified men.

 

Image – phwoar, eh? Get a load of this – it’s a bodice, courtesy of Wikimedia Commons

Feu[dal] and [not] far [enough] between

I know that there are much bigger issues out there at the moment, and that there are even bigger problems with leasehold itself, but, politicians and journalists covering planned leasehold reforms, can we STOP CALLING LEASEHOLD FEUDAL?!. Accepting (as some historians don’t) that ‘feudal is a useful term, the lease isn’t, and never was. Yes, there were leases in the medieval world being referred to in a vague, flabby, days-of-yore, way, but they just didn’t occupy the same position as they have done in more recent times. ‘Medieval serfdom’ did not involve leases in anything much like the 1925 Law of Property Act s. 1 sense. ‘Capitalist’ is the word you are looking for.

I had high hopes that somebody had had a word, when I saw the Observer headline for the story – OK, they were pushing the ‘antiquated’ line, despite the fact that the worst abuses seem to be relatively modern, but ‘unfair’ is appropriate, but reading on, we have the full package of ‘feudal’ and William the Conqueror. How is this, from that piece, for a bit of not-joined-up history:

This is a form of rentier capitalism that dates back to the 11th century, when the feudal system was enshrined in law by William the Conqueror. Before the Second World War, almost all flats were rented rather than owned. The number of properties owned on a leasehold basis expanded hugely from the 1970s onwards as large houses were broken up into smaller flats and buying flats to live in became commonplace.

Nothing much happened in relation to leases, nor to land tenure, nor property practices in general, between 1066 and 1939 … ???

There is, I suppose, a little more justification for the ‘feudal ground rent clauses’ variation, in spirit, if not in letter, if the idea is that they are within the control of one party, and can be varied, in the manner of medieval villein services (though, even here, a decent medievalist could tell us that, while there might not be much in the way of common law control on services at a very early point, custom did rather a lot to curb arbitrary changes). And, usually, the ‘feudal’ label seems to be attached to leasehold in general, rather than this aspect of it. (Forfeiture is also picked out as having feudal associations at times: again, not terribly accurately).

And yes, it matters – both in terms of history and in terms of the present. In terms of history, it is a classic example of contempt for the people of the past.  As others have pointed out with regard to the tedious descriptions of violence or barbarism as ‘medieval’, this chronological ‘othering’ trick is a way to avoid seeing the wrongs and problems of the present. Ludicrous ground rent clauses are not the fault of greedy modern landowners out to exploit those not in a position to refuse, they are all down to medieval legal structures and William the Conqueror. Lazy.

Good to get that out of my system!

GS

5/11/2023

Image – in honour of the date, but also, the state of my head when confronted with another ‘leasehold is feudal’ reference. Photo by Jonas Frey on Unsplash

 

Judges, character and credibility

We legal historians have occasion to look at an array of different sorts of reports and records of cases, from the terse medieval plea rolls, via Year Books with their play-like format, through the slightly anarchic years of printed reports of varying standard and reliability, to the fuller, somewhat more easily understandable, reports of the nineteenth and twentieth centuries. There have been developments in recent years, however, which will one day need to be considered as part of a full history of the communication of legal decisions, via ‘official record’ and report. I am thinking of the huge expansion of material relating to cases which is now recorded and published in an easily accessible way. I think that it is arguable that the advent of the prepared essay style judgment, published online, has brought with it legal historically important changes,

One development which has impacted upon my professional world is the practice of publishing fuller and fuller judgments. This expansion is very noticeable in my main ‘day job’ legal subject, Land Law. I presume that, in the case of judges at lower levels in the hierarchy, the trend to longer judgments is prompted, at least in part, by a wish to ensure that, should a case be appealed, the lower-level judge would not be accused of having dealt with some point inadequately. Clearly, we are not the main consideration of judges, in their decisions to be more or less verbose, but it is something of a pain for those of us who want to encourage students to read cases (good luck with some of the massive proprietary estoppel ones in particular!).

It is not just length and the problems that presents for law professors and law students which is worthy of note, though: it is what is included. An issue I have mentioned before is that of judicial comment on witnesses, and the practice of judges including in written judgments and putting out into the public domain their views on the witnesses who appear before them. While judges in cases in which they sit alone, and in which there is a need to decide between different versions of the facts, must clearly make a decision as to which witnesses to believe, and should, in order to give a reasoned judgment, state which witnesses they regarded as more accurate, I am not convinced that it is necessary to go further into character assessment, publishing to the world comments on parties and non-party witnesses which might be hurtful, offensive or damaging to the individuals who have given evidence, and may well (I imagine) not have been expecting this sort of material to be disseminated.

Yesterday, I was reading a particularly interesting example of the genre: Gilpin v Legg [2017] EWHC 3220 (Ch). In this case, which concerned leases, licences and beach huts, the judge (HHJ Paul Matthews, sitting as a Judge of the High Court, in Bristol) commented in the following way, on various witnesses:

The father of a claimant was a ‘careful witness, who gave clear evidence. He accepted on occasion that his memory was at fault and accepted correction when it was shown that he was mistaken. He was doing his best to assist the court.’ (7)

A male claimant (a doctor) was ‘a slightly nervous but clear and straightforward witness. His memory appeared to be good. Once he got into his evidence he became more relaxed and comfortable. He was obviously truthful in the evidence he was giving.’ (8)

A female claimant was ‘a quiet and nervous witness, but rather prickly and apt to put up a barrage of words, often putting matters obliquely, and shying away from confrontation. Whilst I do not think that she told me any deliberate untruths, indeed was trying to help the court, I think she has convinced herself that she has been hard done by, that she is in the right, and so she interprets everything in that light.’ (9)

Another male claimant ‘gave clear and straightforward evidence, and was obviously trying to assist the court.’ (10)

A male defendant was ‘an intelligent and quick, even feisty, witness who saw the point of the question immediately, and gave clear evidence in response. Although he too believes strongly that he is in the right, and that does colour his evidence to some extent, he sometimes gave evidence against his own interest. On one occasion his tone became rather aggressive, perhaps through exasperation. I accept that he was otherwise trying to help the court and that his evidence was truthful.’ (11)

A male solicitor (the defendant’s litigation solicitor) ‘was a professional but slightly excitable, even enthusiastic witness.’ (12).

Another witness was ‘an elderly lady’. (13)

Though there was a need to express a view on the parties’ evidence, I am not sure that anyone needed the comments about a defendant’s ‘feistiness’ or why he might have adopted an ‘aggressive tone’ at some point’ or a claimant’s ‘prickliness’. I have to say that I would be fairly nervous – and quite possibly ‘prickly’ – if I had to speak in court, and knew that comments about me were going to be published in this way. And I am not sure that the ‘elderly’ or ‘excitable’ comments, in particular, were at all useful.

It does not seem to me that this sort of material helps anyone involved in modern legal practice, or that proper transparency and reasoning requires it. Of course, I am not just thinking about the present, and whether this is a good way of handling the assessment of credibility. There are legal history angles! The inclusion of this sort of material makes for an interesting comparison/contrast with some of the early reports of medieval common law cases, in which there are personal comments, but these relate to serjeants pleading before the Common Pleas or King’s Bench, rather than witnesses or parties. I do wonder what legal historians of the future will make of this sort of commentary. It does strike me that they might find it interesting to survey this sort of comment, cross-matching with characteristics of the commenting judge, and such matters as gender, age and professional status of the witnesses being subjected to these published assessments. They might well conclude that early 21st century judges were – in the formulaic incantation – ‘doing their best to assist’ legal historical scholarship.

GS

4/11/2023

Image – I am going with ‘prickly’ …. Photo by Klara Kulikova on Unsplash