A princess, a tower and storming the great citadel of legal history



In 1241, a woman of royal descent died in Bristol castle. She was Eleanor of Brittany, granddaughter of one king of England (Henry II), niece of two more (Richard ‘the Lionheart’ and ‘Bad’ King John), and first cousin of the man on the throne at that point (Henry III), not to mention daughter of a duke and duchess of Brittany. She had spent a lot of her last two decades in Bristol, a city on the rise, with an imposing castle, but Eleanor’s prolonged stay here was very much not her own choice.


She had been born between 1182 and 1184, and, with her pedigree, would have expected a big dynastic marriage, life at one of the great courts of Europe, a position of respect as wife and mother, frequent travel, extensive lands, and a life of some influence. None of this happened: she ended up a prisoner of the kings of England for much of her life, a situation which only ended with her death in captivity in Bristol.


Eleanor had not, as far as we know, committed any offence which might justify this unusual treatment, however: she was confined not for what she had done, but for who she was. After the death of her uncle Richard, it might have been argued that the right to the throne of John, and his line, was weaker than that of the children of his older brother, Eleanor’s dead father, Geoffrey. It was in the interests of John and his son Henry III to keep her unmarried and under control, and that is what they did.


Eleanor’s story may strike us as sad, or cruel. Or we may not be moved by her difficulties and disappointments, when we compare them to the sharper suffering of many of her contemporaries: she did, after all, have food to eat and clothes to wear, the occasional royal gift, and lived out a fairly long life. Whatever may be our emotional response, I think that Eleanor’s treatment tells us some important things about women, law and legal history.


Eleanor’s lifetime was a period often associated with important early steps towards legal guarantees of ‘civil liberties’, with moves in Magna Carta (1215) to set down limits upon royal power to imprison without trial. As its most famous clause states,

‘No free man is to be arrested, or imprisoned … except by the lawful judgment of his peers or by the law of the land.’

There is room for debate as to just who was a ‘free man’, and whether ‘man’ was thought to include ‘woman’, but whatever the technicalities of language and gender, it is very clear that this rule – confirmed by John’s son Henry III – did not help her. We could interpret that as meaning that successive kings overrode the law, but we do not need to: the truth is that ‘the law of the land’ gave male kin wide and vaguely-drawn rights over their female relations, so that they could plausibly portray their custody of Eleanor as legitimate. My point here is not that women had a raw deal in the medieval period (certainly there were rules which put them in an inferior position in many ways, though we might argue about the situation of different disadvantaged groups, and note the fact that Eleanor’s brother, Arthur, ended up dead rather than imprisoned). What I want to stress is that, when we discuss the development of law, we need to be aware that there is not just one story to tell, not just one time-line to set out: the law’s impact on men and women might be very different, even when that is not spelled out. It is extraordinary how often this fact has been ignored.


Legal history, as it developed in the English law school, has been slow to move away from an assumption that the concerns of (free, white) men of the past should shape our study and our time-line of legal development. It is now doing so, and this summer’s British Legal History Conference in Bristol will contribute to the broadening of perspective, with presenters considering our theme, ‘Insiders and Outsiders in the History of Law’, with the ‘outsiders’ including, but by no means limited to, women.


Another trait of ‘classical’, or ‘law school’ legal history has been its sometimes odd, stereotypically masculine, warlike imagery, with accounts of ‘triumphs’ of particular types of legal action (and, in one case, memorably, one sort of legal action ‘storming the great citadel’[i] of another). I can never help being struck by the contrast between this fondness for military metaphor in discussion of legal procedure and the frequent lack of interest in Eleanor of Brittany, confined in her more solid, and emphatically non-stormed, castle.


Gwen Seabourne

For International Women’s Day, 2024.





Gwen Seabourne is Professor of Legal History in the University of Bristol Law School, specialising in medieval legal history, and the history of women. This post is based upon work undertaken for a biographical article on Eleanor of Brittany, and in her books Imprisoning Medieval Women and Women in the Medieval Common Law. She is co-convenor of the 26th British Legal History Conference, which will be held at the University of Bristol from 3-6 July, 2024, hosted by the University of Bristol Law School and the Centre for Law and History Research.      



[i] J.H. Baker, Introduction to English Legal History, fifth edition (Oxford, 2019), 363.


Main image: Eleanor of Brittany, BL Royal MS 14 BV, courtesy of Wikimedia Commons;

‘According to the laws of God and womanhood’: some reflections on medieval law and gender

(This post appeared on the University of Bristol Law School Blog in February 2024)


The common law of England, in the medieval centuries and long afterwards, was man-made law: created by and in the interests of free men, drawing on and reinforcing ideas of women as inferior. Its assumption of the superiority of men was intensified during marriage, with the wife’s identity defined in relation to her husband, her legal personality subordinated to his in important respects. Studying the documentation left behind by those making, administering and using the common law in medieval England provides ample confirmation of the disadvantages and limitations which were imposed upon women and the hierarchical nature of marriage. Amongst the many records which seem to show settled, hierarchical ideas, there are, however, occasional glimpses of subtler thinking and richer detail, serving both to nuance our view of medieval thinking about law and gender, and also to expand our understanding of the lives of medieval women, up to a point. Such glimpses can be found in the documentation relating to an episode in the later fifteenth century, and subsequent legal action, which I will note here.[i]

A northern English landowner, Sir John Assheton, alleged that, on a November night in 1470, a group of more than 200 ‘riottours’, headed by a certain John Myrfeld and Richard Ledys, attacked his manor of Howley (Morley, Yorkshire). They were, he said, brandishing a fearsome array of weapons, and they came with trumpets and horns blaring, damaging his property pulling walls down and deliberately setting fires, and causing considerable fear to his household, including his wife, her female companions and his servants. He himself had been taken away to nearby Pontefract Castle, and made to seal a bond for £1000 in their favour, obliging him to do what they wanted. He petitioned for the aid of king (Edward IV) and parliament, to ensure that he was able to take effective legal action against multiple miscreants.

So far, so stereotypically masculine: men and property; men and violence; men and their weapons; an exclusively male parliament and legal profession; a male monarch, a wife whose name is not thought worth noting. There are, however, valuable references to women, and hints about gender ideas, in the petition in which Assheton told this story, and in the wider body of documentation on the case.

In the petition, Assheton suggested that the attack was particularly serious because of its effect on his wife and the women attending her. His anonymous spouse had, he said, just had a baby, and was still ‘in child-bed’. She was very frightened by the attack, then and for a long time afterwards. Assheton did eventually say that he experienced ‘fere’ but only after he had attributed even stronger emotions to his ‘wif’, describing her as being ‘in right grete dispare of hir lif’, and noting that the ‘gentilwomen’ who were with his wife, shared her feelings.

In addition to the emotional impact on his wife, he also stressed the danger which would have been involved in moving her away from the scene of the attack: at that point just after her delivery: moving her would be a risk to her life (putting her in ‘ieop[ar]dy of hir deth’). The possibility of death in or after childbirth was much on the minds of medieval people, and the petition also alludes to one of the ways in which they might choose to improve the chances of a good outcome. Describing the situation of his wife, Assheton’s petition mentions that she was, at the time of the attack, lying ‘in the bandes (or, in one instance, ‘bondes’) of ‘Our Lady’. This important, and rather intimate, detail, referring to the Virgin Mary and the possibility of her assistance in childbirth, might conceivably be metaphorical, but I think that it is rather more concrete than that, and indicates the use of a particular supernaturally-charged device: the birth girdle. Such belts, or girdles, inscribed with prayers for the safety of the wearer, and sometimes invoking the aid of Mary, have aroused the interest of historians of medicine, religion and gender for some time, and a recent scientific study of one surviving girdle gave strong evidence of the fact that it was actually wrapped around the body of the woman during childbirth.[ii] This documentary evidence may extend understanding of the use of such objects a little, suggesting as it does that a woman might remain girdled for a time after the delivery, and also that the use of the girdle was sufficiently well-known to laymen to make it a useful ‘plot element’ in a non-specialist medical or religious narrative.

The other detail of the petition’s birth story which is worth emphasising is the surrounding of the labouring and newly-delivered wife by other women, confirming the idea of confinement as a period in which one would expect female-only company (unless there was some emergency).[iii] While male medical professionals were increasingly claiming gynaecology as part of their intellectual domain,[iv] this account reinforces the idea of childbirth usually being a women-only event.

Clearly, John Assheton (or whoever drafted his petition) did not set out to educate posterity about medieval childbirth, women, or gender, and, as is always the case, we are in no position to draw conclusions about the truth or otherwise of his story. Nevertheless, its details (the fear, the girdle, the exclusive female space of the birthing chamber) were no doubt assumed to be plausible, and that in itself gives us valuable insights. The childbirth part of the story must also be considered as part of a strategy to maximise the chances of raising the sympathy of those hearing the petition, and gaining their influential support for his action against those he accused of attacking his manor.

The tactics employed appear to have been both emphasising the serious effects of the attack (in that it caused fear, and risk, to a vulnerable woman), and also drawing a contrast between the good order and righteousness of the Assheton household and the disturbing disorder (the ‘horrible riott’) of the attackers. Good order was shown by the use of respectable invocation of the Virgin Mary, and the propriety of the women-only space in which the birth took place. We also hear something about who these women are: they include the sisters of John Assheton, ‘gentlewomen’ and ‘friends’: a very respectable gathering, in social terms.

The picture of propriety is strengthened by the description of the exclusively female birthing chamber as an arrangement ‘accordyng to the lawes of god and womanhode’. This is a strong statement about law, gender and childbirth. It raises what seems to have been common practice to the status of a law, and a law with divine backing at that. It also grants imaginative legal status to practices or preferences connected with women and gender. In this phrase, and in this context, women are aligned with God, and treated (for rhetorical purposes) as if they were not wholly excluded from contemporary law-making. This raises all sorts of questions about ideas of both ‘lawe’ and ‘womanhode’, and about how this concept relates to the description more usually encountered in medieval works on matters of obstetrics and gynaecology, the rather less positive idea of the ‘secrets of women’.

The bands, or bonds, of Our Lady, righteously employed in a childbirth scene in the Assheton household, also, perhaps, provide a subtle contrast with the bond Assheton himself claims to have been obliged to seal, or to the coerced nature of his removal to Pontefract Castle: devices for comfort and protection set against devices for control and abuse.

These childbirth details may also have been used to bolster Assheton’s own masculine identity. The petition goes on to state that he had submitted to the ‘riottours’ and gone off with them, but this is explained as an act of sacrifice, for the benefit of his wife and others present. Giving details of her situation could well have been a way of recategorizing his conduct in gender-appropriate terms, should anyone have thought it less than properly manly. The confirmation of his reproductive success might, perhaps, be a useful burnishing of his masculine credentials.

Whatever it was that swayed those who heard Assheton’s petition, it succeeded, and he was indeed able to take action at common law as he had desired, against at least some of those involved in the events of 1470. In some instances, there was settlement of the claims,[v] but one at least rumbled on for some years, as the records of the common law courts in 1476 and 1477 demonstrate.

As luck (for the modern scholar) would have it, this case caught the interest of common lawyers, and was noted amongst the selected reports which have come down to us as ‘the Year Books’. This reporting was done for reasons of the case’s importance with regard to a technical pleading issue, rather than a fascination for childbirth, girdles or gender. The Year Book does, however, provide a very clear, and telling, illustration of the variation between narratives used for different sorts of legal, or law-adjacent, proceedings. Gone, in the common lawyers’ account, is the whole childbirth story, female companions and holy girdles and all. Assheton’s wife is mentioned, since the claim is that she was ousted from the land. This is something of a change to the story: in the petition version, Assheton submitted to the ‘riottours’ in order to save his wife and the others present: he, not she, was the one removed from the manor. As the Year Book reports it, the defendant chose to make his argument on a basis other than this inconsistency, however, so it was left unexplored. Medieval records do have a way of not pressing the issues which seem most important to us. It is evident from these differently-angled proceedings, however, that a man like John Assheton was able to deploy his wife in his legal manoeuvres as he saw fit. Despite this apparent usefulness, and for all of the hints in the documents about the experience of childbirth, the suggestions of reverence for Our Lady and the high talk of ‘the lawes of womanhode’, in the end, the real, individual, woman, remained obscured in the legal sources: in the Year Book report and the plea roll, just as in the petition, the name of John Assheton’s wife was not regarded as being worth recording. That, too, seems worthy of note.


Gwen Seabourne

February 2024



Gwen Seabourne is Professor of Legal History at the University of Bristol Law School and co-director of the Centre for Law and History Research. She is also one of the organisers of the British Legal History Conference 2024, which will take place in Bristol from 3rd – 6th July.


[i] The National Archives, Kew, KB 27/858 m.66 ff; see also KB 27/859-862;  SC 8/29/1443; Parliament Rolls of Medieval England, 1472 no. 57; YB Pasch. 16 Edw. IV f. 2a pl. 6.

[ii] M. Morse, ‘Thys moche more ys oure lady mary longe’: Takamiya MS 56 and the English birth girdle tradition’, in S. Horobin  and L.R.Mooney (eds), Middle English Texts in Transition (Woodbridge, 2014)199-219; S. Fiddyment et al., ‘Girding the loins? Direct evidence of the use of a medieval English parchment birthing girdle from biomolecular analysis’, Royal Society Open Science (2021) 8 (3). https://doi.org/10.1098/rsos.202055

[iii] See G. Seabourne, ‘ “It is necessary that the issue be heard to cry or squall within the four [walls]”: qualifying for tenancy by the curtesy of England in the reign of Edward I’, Journal of Legal History 40 (2019): 44–68.

[iv] See, in particular, M. Green, Making Women’s Medicine Masculine: The Rise of Male Authority in Pre-Modern Gynaecology (Oxford, 2008).

[v] Assheton reached a settlement with one of the main movers in the attack on his land, Thomas Wortley, in a deal which included the arrangement of a marriage between Wortley’s son and Assheton’s daughter.


Image: photo G. Seabourne, Wells cathedral, 2023)

The Once and Future Bristol British Legal History Conference

If it has escaped anyone’s attention, the Bristol legal historians are gearing up to host the British Legal History Conference 2024 (3rd-6th July 2024, since you ask, and yes, booking is now open … ‘early bird’ rate available until 31st March …). It has been a long time since the BLHC came to these parts: the last time Bristol was the venue was July 1981.

Recidivist BLHC attendee and Welsh Legal History Society luminary, Richard Ireland, has kindly passed on the programme from that last Bristol BLHC, and a very interesting document it is too. So, what were the legal historians of 1981 up to, in that time of Mrs Thatcher in 10 Downing Street, the Specials topping the charts with ‘Ghost Town’ (so the internet informs me), and many people feverishly buying up Charles and Diana tea-towels …?

The cover shows us that the fifth BLHC was a joint effort between the Department of History and the (late) Faculty of Law. That, perhaps, brings up some interesting thoughts about the relationship between the two main disciplinary bases for legal historians, which we might well reflect upon when we meet in July. The imperfect appearance of the text, typewritten and photocopied, may mist the eyes of some who remember the pre-computerised world. (Those marks on the left hand side are staples, future legal historians and BLHC attendees of many years hence – a primitive method of attaching together hard copies of information, on the now-obsolete medium known as ‘paper’. Yes, the past is a very foreign country.)





The first page gives us a little history of the conference, and the names of the Continuation Committee (conference ‘regulars’ may recognise one or two familiar names here) and the Bristol convenors of the time.  The gender balance in the committee and the use of ‘Miss’ and ‘Mrs’ for female academics may be noted.

The programme itself includes some famous names in the legal history field, and in history more generally, and there are representatives from the UK and other, mainly common law, jurisdictions. It presents an interesting contrast to BLHCs of the modern era in its heavy medieval/early modern focus, and its (unsurprisingly) predominant ‘classical legal history’ look, as opposed to much on gender or colonial/imperial issues.

With my ‘co-convenor’ hat on, I notice that the 1981 conference was, also, clearly, on a rather smaller scale, with one strand of sessions throughout, rather than the abundance of choice we expect, and are able to offer, these days. There is something attractive about a more uniform experience (and the evident ease with which a small conference could, in those days, be accommodated within the university estate) and I imagine that the business of putting on a conference was also simpler in a less financially-pressed and less commercialised university environment, but I am rather glad not to have had to select a programme of just 22 papers, given the number of very good submissions we received for the 2024 version, and to be able to try to open up legal history to a wider group of scholars.

I note, finally, the 1981 programme’s emphasis on the opening hours for bars (allowing delegates to plan their evenings down to the last drink) and hope that, while the 2024 conference will be a little different, it can retain enough of the evident enjoyment of good scholarship and the good company of legal historical friends old and new which comes across the years in this little piece of BLHC past.

Cheers, and I hope to see many of you in Bristol in July!






Inside the British Legal History Conference 2024: the organisers in conversation

Corn Exchange Clock, Bristol.


In July 2024, the University of Bristol Law School and the Centre for Law and History Research will welcome legal historians from the UK and the world, as Bristol hosts the 26th British Legal History Conference. This is a major gathering of those working on histories of law, held every two years at a different UK university, and returning to Bristol for the first time since the early 1980s. The academic organisers are Gwen Seabourne and Joanna McCunn, and here they are, ‘in conversation, to share a few thoughts on the conference. 

GS: Well, less than a year to go (see clock above for clunky visual allusion to passing of time): a little bit scary, but we have made quite a lot of arrangements already. I am especially pleased with the conference theme. Will you tell the nice people on the internet about it, Joanna – what it is, and what sorts of things we hope to hear about? 

JM: Yes – it’s all very exciting! Our theme is ‘Insiders and Outsiders in the History of Law’, which was really inspired by the legal history of Bristol itself. Bristol has been a significant gathering place for legal ‘insiders’, like lawyers and merchants, for centuries, but it’s also been an important site for legal ‘outsiders’, who have been involved in protesting, reforming or resisting the law.

We’re hoping to bring these two sides of Bristol’s history together, and to hear about powerful legal actors as well as those who have been marginalised by the law: enslaved people, women, LGBTQ+ people and so on. We’re also interested in how the law draws dividing lines more broadly, and in whether there might be ‘insiders’ and ‘outsiders’ in the study of legal history itself.


Goose Thievery and the Threat of Australia: Insights into Local Community Life Provided by 18th and 19th Century Criminal Trials at the Old Bailey.

[GS: I am very pleased to include this blog post from Matthew Parish, one of our former legal history students. Matthew is currently completing his LL.M. at the University of Bristol, having graduated from the LL.B. last year. His interest in legal history was sparked by the legal history unit, and, in his own words, he was ‘hooked by tales of goose thievery, witch trials, and clandestine marriages, and became increasingly aware of the historical contingency of contemporary law and the importance of understanding the social, cultural, and intellectual forces that shaped it’. After the LL.M., he is off to work at the Law Commission as a Research Assistant for 2023/24 – and then hopes to return to academia and undertake a PhD, pursuing his passion for all things legal history. Many thanks for this, Matthew, and now, on with those geese …]


Awaking early on the morning of the 8th of September 1866, Thomas Clark, a farmer of Lewisham Village, opened his stable doors and witnessed a scene that horrified him. The stable, which had just the night before been alive with much squawking, clucking, and avian merriment, now lay silent. His 14 geese had vanished! Later that same day, in the Earl Grey pub of Lewisham Village, 3 men happened to be selling geese. “Six for a sovereign”, they cried. Evidently hungrier than James Ware – the other bystander present to the tantalising offer (who had decided to reject the bargain) – Fredrick Haynes accepted and paid 3s for a goose. Fortunately, this is not the opening to Sherlock Holmes’s shortest and dullest adventure. Instead, it is a criminal case, held at the Old Bailey on the 22nd of October 1866.  Indeed, the mind of a great detective was not required. Local policeman John Moore possessed facilities enough to link the disappearance of geese from a local farm in the morning, to the sale of geese in the local pub in the evening. Guilty verdicts for animal theft were secured for 2 of the 3 men.

What to 21st-century readers may seem to be the least cunning criminal plot imaginable may provide historical insight into 19th-century England. If nothing else, the case of the 14 missing geese highlights the centrality of the local village community to 19th-century life. John Hibbert, one of the convicted goose thieves, was well known within the community, and, according to a local villager, regularly demonstrated his hard-working character in the neighbourhood. Thus, the entire scope of the crime was within the boundaries of a small community; the geese were stolen by local men from a local farm and sold at the local pub. One explanation for such a locally situated and blatant crime may be the weak intellectual prowess of the thieves. Alternatively, and perhaps cumulatively with the former explanation, the locality of the crime may indicate the centrality of the local community to the lives of those living within it, with individuals unable to conceptualise, and unwilling to pursue, a broader world of criminal and non-criminal enterprise beyond the narrow boundaries of their community.


‘The Law bookes are so huge, & large’: advice for early modern law students

Court of King’s Bench, c. 1460. The small figures on the left are (more or less cheerful) law students. Image copyright © Inner Temple Library

New law students often experience academic culture shock. As Russell Sandberg writes, ‘Law Schools are strange places’, where students are expected to solve unusual problems, use a unique set of sources, and employ distinctive methods. They are asked to ‘think like lawyers’, even when these new ways of thinking are ‘at odds with what law students have previously experienced’. Happily, help is close at hand: there is no shortage of books written by distinguished lawyers who are anxious to explain to new law students what the law is and how they should approach its study.

Law students’ culture shock is not a uniquely modern phenomenon, and nor is experienced lawyers’ instinct to offer well-meaning advice. Early modern law students had plenty of complaints as they began their studies at the Inns of Court. They were not offered official reading lists or introductory courses: instead, they were expected to read their way through the case law by themselves. Many students were shocked by the heavy workload and lack of clear direction. Henry Spelman described his work as ’a mass which was not only large, but which was to be continually borne on the shoulders’, while Abraham Fraunce complained that ‘the study of the Law’ was ‘hard, harsh, unpleasant, unsavory, rude and barbarous’.

Lawyers soon began to publish books of advice to help these struggling law students. Some instructed students on how they should spend their time. In 1663, for example, Edward Waterhouse recommended the following (rather varied) timetable to law students: 5-6am was for reading the Bible and praying; 6-9am was for reading law; 9-11am for fencing and dancing; 11am-12 noon for learning logic and rhetoric; 12-2pm for eating; 2-5pm for visiting friends; 5-6pm for reading poetry; 6-8pm for eating again; and 8-9pm for praying before bed.


‘Escapades’ and Labour: Chaucer, Chaumpaigne and Legal History

Wills Memorial Building, Bristol, which may or may not be the location of our conference ... oh go on University of Bristol, be fair ...

In the first half of this academic year, a lot of interest was generated by discussion of newly-discovered documentary evidence relating to the life of medieval English poet and author, Geoffrey Chaucer. This was explored in a special edition of a literary journal, The Chaucer Review. Something new about Chaucer was of great interest to scholars of medieval literature, of course, but the subject-matter of the new evidence also drew in a wider audience, since it dealt with an episode in Chaucer’s life which was not primarily connected to his writing: an apparent accusation of rape. As somebody who has taken an interest in the issue of rape and sexual misconduct in medieval common law, I was keen to see the new evidence, and to think through its implications for Legal History, as well as the possible contributions which a legal historian could make to scholarship here. This post sets out some preliminary thoughts.

First of all, let me give a quick outline of the ‘Chaucer/Chaumpaigne episode’, for those who are not familiar with this, or with the heated debates which have surrounded it. In the 1870s, Frederick Furnivall, a Chaucer scholar, turned up a record from 1380 which seemed to suggest that Chaucer had been accused of rape by a woman called Cecily Chaumpaigne. This record was the release of Chaucer, by Chaumpaigne, from all proceedings de raptu meo, a Latin phrase which may – or may not – be translated ‘relating to my rape’. This led to much discussion, as to whether Chaucer should or should not be regarded as potentially having been a rapist, and to a number of literary scholars engaging with the issue of just what raptus meant in this context. Different views were possible, since the word was used to cover not only what we now understand ‘rape’ to include, but also other offences focusing on abduction or removal (often called ‘ravishment’) rather than sexual violation. Further connected material was found in the 1990s, stoking the fires of debate once again, and then we had the find in very recent times, which was ‘launched’ in late 2022.

The new material showed that Chaucer and Chaumpaigne had been on the same side in other legal action not long before the ‘Chaumpaigne release’, when they were defendants in an action relating to employment. A certain Thomas Staundon proceeded against both of them for an offence under the Ordinance and Statute of Labourers (1349 and 1351). The nub of the case was that Chaumpaigne was, and should, by law, have remained in, the employment of Staundon until the end of her contract, but had (by some means) moved from that employment to work for Chaucer. The word raptus could have been used here, whether the leaving of Staundon was in accordance with Cecily’s will, or against it. The reasonable deduction from the new material is that the ‘Chaumpaigne release’ was part of this ‘labourers’ case concerning  the removal of a contracted worker from the employer to whom she was bound.


Subject to Time


The law has a long memory – forget elephants, it looks far beyond any ordinary mortal span. Technically speaking, its memory kicks in on 3 September 1189.[i] But even the best memories suffer from deterioration. With such a lengthy span to cover, it is an inevitable commonplace of legal history that facts become lost. Records of rules or events might never be made. Or, if records are made, these might not survive or survive only partially. Those versed in the law also pass on, and might be replaced by others who sing the verses rather differently.

Sometimes, though, knowledge can be lost surprisingly quickly, without any of the standard traumas of intervening centuries. And this sort of loss can occur even in the modern context.


Equity, poetry, and the case of the needy thief

BL Add MS 35326

I’m currently writing about a work called Epieikeia: A Dialogue on Equity in Three Parts, which was composed by Edward Hake in the late sixteenth century. Hake was a Puritan, a poet, and a local government official, who hoped that his treatise would bring him to the King’s attention and secure his advancement. If I’m honest, I first became interested in this work because it’s more than a little bizarre.

For a start, it’s written in dialogue form—as an imaginary conversation between Hake and two friends, Lovelace and Eliott. The conceit is that the three men have gathered before dinner when Eliott starts pressing Hake to explain to them the nature of equity (as you do). Hake is initially reluctant, but is soon convinced to spend three afternoons (or 140 pages) expounding his ideas.

The literary dialogue was popular in Renaissance Europe, and many writers used it to draw out a range of views and ambiguities around their topic. Hake… did not. Lovelace and Eliott are really only there to repeat his conclusions and tell him how clever he is. (Sample contribution from Eliott: ‘I acknowledge to have received both pleasure and profitt [from Hake’s discussion], pleasure in the variety of the matter, and profitt in the good end and purpose that hath byn of it. And this I must confesse, that had it not byn for this and your former speache, I sholde have remained in error…’) It’s a shame that this mode of writing has fallen out of fashion—it must be good for the self-esteem and a helpful cure for writer’s block.


Courtesy, curtesy and houses of cards

In a few weeks, I will be amongst the speakers at an online launch for the collection of papers by the late David Sellar, edited by Hector MacQueen. My job is to give some thoughts about the importance of Sellar’s work and ideas, from the perspective of English legal history.[i] There is a great deal in the book which would be of relevance to this theme, but the first thing which leapt out at me, looking over the collection, was an old friend – his article on courtesy.[ii] Courtesy, or ‘tenancy by the courtesy of Scotland’ was the life interest (liferent) which a widower might acquire in land brought to a marriage by his wife, on certain conditions, and was part of Scots common law from the medieval period onwards (only finally being removed in the twentieth century). A very similar institution existed in the common law of England: ‘tenancy by the curtesy of England’. The reason this Sellar article is an ‘old friend’ is that it is something I have consulted in at least two different projects of my own. The first of these was work leading to an article on medieval English curtesy; the second a very recent project  – a chapter on intractable factual uncertainty in the early stages of life, for a collection on intractable factual uncertainty more generally. Sellar’s article was very useful for both of these. I think that it also has implications for the way in which those working on English legal history conduct their research.

The central focus of the article is a particular dispute at the highest levels of fourteenth-century Scots society, and, as one would expect from an expert on the genealogy and heraldry of Scotland, we get a good account of the characters involved.  The opposing parties were James Douglas and Thomas Erskine. James Douglas (JD), one of the many holders of that name who crop up in the history of Scotland, would later be known as Sir James Douglas of Dalkeith. He was nephew and heir-male of William Douglas of Liddesdale (WD: there are quite a few William Douglases to deal with as well, our William was killed by another William Douglas, one who would later be first earl of Douglas). The fact that JD was heir-male meant that on WD’s death, he acquired the lands which were limited to the male line. The other lands went to WD’s daughter, Mary. Mary’s marital history is quite interesting (there was an annulment in there) but the key fact for these purposes is that she was married to Thomas Erskine (TE), at some point before 1367. Mary died giving birth to their child, and the child – to put it neutrally – did not survive. JD was Mary’s nearest heir (and if this took full effect, he would ‘scoop the pool’, taking all of the land previously held by WD. TE, however, had different ideas.