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.

TE claimed to be entitled to a life interest in the unentailed lands, which Mary had held, on the basis of tenancy by the courtesy of Scotland. This claim could only succeed if TE passed the test of having produced a child with his wife, Mary, the child having been born alive. TE said that this had happened; JD said it had not. The case, then, came down to a dispute over whether a child, now dead, and certainly dead soon after its birth,  had ever been alive. This was not an easy matter to determine – what was ‘alive’, and how could the presence or absence of life be proved? You can see why this sort of question has featured in my contribution to the ‘intractable factual uncertainties’ project. Different legal systems came up with different answers to this question, if it could not be avoided, but the way that Scots law dealt with this one is both unusual and more exciting than one might expect: the thing was to be tried by judicial combat, and this was ordered in 1368.

Trial by battle has long been a favourite topic for my undergraduate (English) Legal History classes. It garnered even more attention than usual, recently, as a result of the film The Last Duel. Generally, it is discussed most often in the ‘criminal’ context, but it was also a possibility in relation to certain land actions. The idea, of course, was that the truth of a matter was submitted to the judgment of God: God would favour the person[iii] with the just cause.

Those working on the history of English common law are familiar with the idea that trial by battle might apply in the old, formal writ of right, though there was a generally-more-palatable alternative in the grand assize. It does not seem entirely surprising that it was thought that the solemn question of entitlement to land could be decided by battle – after all, land disputes in a non-judicialised setting would quite probably be sorted out in this way. The use of battle to determine a more limited factual question, such as whether a child was ever alive, is, however, unfamiliar. Evidence relating to such determinations in English common law comes from the less solemn ‘petty’ or ‘possessory’  assizes, which did not purport to make a holistic decision about the ‘right’, but to resolve a more limited dispute. This English evidence  shows the use of groups of jurors, perhaps drawing on the expertise or observation of those present at the birth (who might even be – shock, horror – women!). The Scots difference – the late resort to battle – is, therefore, really interesting. For those looking forward to clashing armour and swords, I am afraid that the case was a little anti-climactic: although there was serious preparation, and purchase of all manner of warlike equipment, in the end the dispute was settled. Nevertheless, the fact that battle was even in the running as a way of deciding such a delicate question of newborn life is fascinating.[iv]

As well as this big difference between systems on the matter of battle, the similarities between the English and Scots law in this area should be borne in mind. The structure of courtesy/curtesy was broadly similar in both jurisdictions, both named it in ways which ascribed particular generosity to their own system, and both made the widower’s right depend on having fathered a live, legitimate, child. Furthermore, in both cases, the test for live birth was expressed in terms of hearing the newborn cry ‘within four walls’. This does not come up directly in the Erskine-Douglas documentation, but there is a splendid quotation in Sellar’s article, from Skene, which mentions the need for the child to make a sound, using some fantastic language – ‘cryand’, ‘brayand, squeiland, or loudlie cryand’.[v] I particularly like ‘squeiland’.

Such similarities point to a common origin, and a degree of borrowing. Questions of origin of rules and institutions are certainly important and interesting, but comparison beyond the point of origin is at least as crucial. In the area of c[o]urtesy, as in many other areas, there are large gaps in our knowledge. Despite the relative wealth of records of practice for England as opposed to Scotland, my study on curtesy still left me with substantial uncertainties as to what was going on between the end of the thirteenth century and the early modern period. In particular, what was the status of the sound test during this period: at what point did a less prescriptive requirement for evidence of such signs of life as would satisfy the jury become usual? Where there is an analogous piece of law in Scotland, as is the case here, in a case of insufficient evidence, it seems not inappropriate to consider it as something which can help us to ‘fill in the gap’. In doing this, we must, of course, be alive to differences in social and legal context, and the task of using two less-than-secure sets of evidence to hold one another up can be a delicate task, reminding me of the process of creating a house of cards (a favourite childhood activity of mine), leaning one card against the other so that both stay up, at least for a while. For those of us with a lack of training in Scots law, it can feel a bit of a risk to venture into this sort of comparison (and I am fully prepared for some friendly correction of my understanding of matters from ‘North of the Border’). Nevertheless, there are good books and articles enough on Scots legal history to put a decent understanding within the reach of the most insular (if England was an island …’precious stone set in the silver sea’ and all that)[vi] English common lawyer. Not making the effort is not only ‘missing a trick’, in terms of getting at the best possible understanding of both systems, but, frankly …



Gwen Seabourne



Image – c/o Wikimedia Commons.




[i] I confess to enjoying the fact that the person invited to talk about English law is, in fact, a bit of a Cymraes. For England, see Wales, for once …

[ii] W.D.H. Sellar, ‘Courtesy, Battle, and the Brieve of Right, 1368’, in H. MacQueen (ed.), Continuity, Influences and Integration in Scottish Legal History (Edinburgh, 2022), c. 14, originally ‘Courtesy, battle and the brieve of right, 1368: a story continued’, in W.D.H. Sellar (ed.), Miscellany II (Stair Soc. vol 35, 1984) 1–12.

[iii] Well, ‘man’ – this was a ‘men only’ procedure.

[iv] It is important to bear in mind, also, that the high social status of the parties contributed to what was seen as the acceptability of trial by battle. As Sellar noted, this combat was to take the form of a ‘duel of chivalry’, albeit over a question of land rights.

[v] Sellar, 301-2; Skene, De Verborum Significatione (1597)  sv “Curialitas”. Quite fascinatingly, the Skene quotation makes mention of non-human noises, just as a passage in Bracton IV:361 does, but, while Bracton distinguishes the sound of a human child and a monster quite clearly, Skene muddies the waters a little, musing that the same word is used for both children and horses, harts ‘and uther beastes’.

[vi] Shakespeare, Richard II, Act II, Scene I.

Considering the appeal of mayhem

At the moment, I have the great privilege of a year’s research leave from my job in the Law School.  It is wonderful to be able to make some progress on a number of projects which have been gathering metaphorical dust during the last couple of years, during the constraints of the pandemic and the challenges of life and teaching in this period. So far, I have spent time working on ‘bastardy’ and ‘petty treason’, and will be writing up that work more formally later in the year. Now, though I am turning my research energies in another direction, looking at the medieval appeal of mayhem.  As I do so, I thought it might be appropriate to write a quick blog post giving an outline of the area, and a few thoughts on why I think this is something worth examining.

So … explain the appeal of mayhem

Well, the appeal of mayhem was a legal action like this one, from a 1491 legal record, in which (to summarise) Walter Chapman prosecuted Thomas Preston and three others for having attacked him with staves and ‘clubbes’, hitting his legs (specifically his lower legs) and causing him to ‘lose the use’ of them. Assuming that there was such an attack, Walter, clearly, survived it (he alleged that it had happened ten years before). Now, he was seeking compensation for his injuries.[i]

The appeal of mayhem was a particular sort of legal procedure, for a particular sort of non-fatal injury. It was not an attempt to overturn a decision (a more modern understanding of ‘appeal’), but an individual prosecution. This appeal procedure was available in relation to serious criminal offences, including mayhem. The consequence of a successful appeal of mayhem was, a financial penalty, and a compensation payment to the successful accuser, though sources from the thirteenth century onwards are rather fond of noting that, in even earlier law, the principle of ‘member for member’ applied, condemning the convict to a mutilation fitting the crime.

So much for ‘appeal’; what is ‘mayhem’? It is now a word with a broad scope. It can suggest general violent disorder. Sometimes it is also used in a slightly softer sense, to indicate fictitious and twee transgression (see the sneering term ‘Mayhem Parva school’ for rural murder mysteries). Moving even further to the unthreatening end of its spectrum of meaning, it doesn’t strike us as inappropriate for use in the naming of the house band on The Muppet Show (Dr Teeth and the Electric Mayhem for anyone not versed in high culture), or a contestant on RuPaul’s Drag Race (one Mayhem Miller – thank you, internet). For the legal historian, however, the word also has a very specific meaning – a particular sort of non-fatal injury.


Welcome to our new blog

Hello and congratulations on finding the new blog of the Centre for Law and History Research! Based in the School of Law, University of Bristol, we are academics specialising in different aspects of the history of law, both as teachers and as researchers. We are interested in  the study of law in particular eras, but also in the development of legal ideas and practices over long periods, and in matters from contractual interpretation to conscientious objection, flogging to frustration, patents to petty treason.

The Centre had its launch event early in 2020, and shortly afterwards, life and work took an unexpected turn, with the onset of the global pandemic. The extended lockdowns and restrictions have made us conscious of the importance of online communication between like-minded scholars, and we have decided to set up this blog to report on our work and activities. We have some interesting things in the pipeline, including an exciting joint venture with colleagues at the Universities of Cardiff and Exeter. All will be revealed in due course …


Gwen Seabourne (Centre Director, 2020-21).