Category Archives: Law

Westminster Hall

Westminster-Hall-1764

It’s all looking very festive around here – and dangerous.  The road hasn’t been gritted so it currently looks and feels just like an ice rink.  On the plus side I have finished some writing today.  On the minus side not only am I not going out for a Christmas meal tonight but I shalln’t be following Buckingham’s rebellion tomorrow or killing off the Princes in the Tower – nor for that matter shall I be allowing either one of them to turn into a conspiracy theory.  All of which is very irritating and I can only extend my apologies to any of my students who may be reading this.

Halls – right at the start of December I mentioned the fact that halls were where their owners dispensed justice.  And of course, there’s a hall with a rather long pedigree that has done exactly that over the last nine hundred years or so.  Westminster Hall was built in 1097 by William Rufus – it was the largest hall in Europe at the time, or so Historians think.  Richard II had the hall rebuilt because it was looking somewhat battered by the time he came to the throne. The medieval hammer beam roof was one of his modifications. The hall gradually evolved into the administrative seat for the kingdom. It was here that Henry II crowned his eldest son Henry in Westminster Hall in June 1170.  There was a second coronation in Winchester.

 

It is as a law court though that Westminster Hall echoes down the pages of history. William Wallace was tried here and by the time of the Tudors the hall is knee deep in well-known names from the duke of Buckingham tried for treason in 1522 based on his Plantagenet blood and probably having irritated Cardinal Wolsey. Sir Thomas More was tried here in 1535, so were Anne Boleyn and her alleged lovers the following year. Protector Somerset had judgement passed down here and so did the father of Lady Jane Grey for his part in Wyatt’s Rebellion. Jesuits faced english law here during the reign of Elizabeth I and the Earl of Essex was tried in Westminster Hall following his rebellion. A few years later Guy Fawkes stood in his place.  Later Charles I was tried for crimes against his own people and following the Restoration the regicides were also tried here.

The only man who successful escaped the headsman or the noose following a trial for treason during Henry VIII’s reign was also tried at Westminster Hall.  Lord Dacre of the North was found innocent in July 1535. His accusers were described as “mean and provoked Scottish men” – Sir Ralph Fiennes and his co-accuser a man named William Musgrave were not particularly Scottish but there’s nothing like being damned by association.  Dacre’s wife tried to intercede on her husband’s behalf but was told by the monarch to button it until after her husband’s trial.  Apparently Dacre refuted his accusers in a “manly”  and “witty” sort of way for seven hours before being declared innocent.

William Dacre (a.k.a. Baron Greystoke) was married to the earl of Shrewsbury’s daughter and held down a number of responsible border posts such as Deputy Warden of the West March.  This led to a falling out with the earl of Cumberland (Clifford family) who was given a role in 1525 that Dacre believed to be his by right of blood.  Unsurprisingly there was some border high jinks resulting in Cumberland only being able to rule with Dacre at his side. To make matters worse when Dacre did get his hands on the job his counterpart in the East March was given a pay rise whilst he was given the old rate. Its easy to see that hostilities and resentments were not particularly veiled.  Unfortunately for Dacre he did what Border Wardens do – i.e. talk to the Scots. This was in 1534.  He was accused of treason because this conversation took place during a time of hostility. He was hauled off to London where he was put on trial for treason. The chief witness against him was his former servant – William Musgrave.

Dacre was acquitted but as with all things Tudor there is a sting in the tale.  Henry VIII fined him none-the-less. It is perhaps surprising therefore that in 1536 Dacre demonstrated his loyalty to Henry VIII throughout the Pilgrimage of Grace.  His feud with the Musgrave family was not so easily settled and it is known to have continued into the 1550s.

 William Cobbett, David Jardine (1809) Cobbett’s complete collection of state trials and proceedings for high treason and other crimes and misdemeanors from the earliest period to the present time  accessed from https://archive.org/details/acompletecollec03cobbgoog

http://www.parliament.uk/about/living-heritage/building/palace/westminsterhall/architecture/early-history/

Westminster Hall 1097

 

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Filed under Anglo-Scottish history, Law

Henry VIII clauses

Henry-VIII-enjoyed-gambli-008The so-called Henry VIII clause is topical at the moment so I thought I’d write a short post about what it is and where it originates. Essentially, according to the Parliamentary website,  “the Government of the day sometimes adds this provision to a Bill to enable a repeal or amend after the Bill has become an Act of Parliament.” That’s not what’s causing the current furore – the problem is that the resulting Act can be changed without further parliamentary scrutiny if the Government so wishes. The House of Lords Select Committee on the Scrutiny of Delegated Powers in its report of 1992-93 defined a Henry VIII clause as,  “a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation, with or without further Parliamentary scrutiny.” [HL 57 1992-93, para 10].

 

640px-Cromwell,Thomas(1EEssex)01And what you might wonder does the matrimonially challenged Henry VIII have to do with this? Well, these provisions are named after the 1539 Statute of Proclamations by the Crown which meant that Henry VIII could legislate simply by having a proclamation read out. That sounds suspiciously like kicking Parliament into touch and ruling as an absolute monarch.  However,  G.R. Elton didn’t believe that the act was meant to enable to the king to rule without Parliament or make his own laws rather it was an extraordinary power to be used when speed was of the essence.  The example that is generally used is that proclamations were used to prevent the export of English coinage abroad. Elton references price control – or in other words Henry’s chief minister, Thomas Cromwell, was merely underlining, with typical belt and brace thoroughness, by a Parliamentary Act the way in which proclamations had always worked in regards to enacting well rehearsed uses such as changes to coinage. Elton also notes that the law made it quite clear that this was not an excuse for Henry to go around arresting, imprisoning or executing anyone just because he didn’t like the cut of their jib.

 

It is unsurprising that the mastermind behind this nifty piece of maneuvering was none other than Thomas Cromwell. Essentially things were moving fast in terms of domestic and religious policy as well as foreign policy which was decidedly volatile at the beginning of 1539. Even Cromwell had to agree that the so-called Reformation Parliament was “tractable” – and given that a large number of MPs were on Cromwell’s list of friends, family and acquaintances it is perhaps not surprising. Even so, Cromwell did not always have time to draft a bill and then wait for the parliamentary process to be completed before a bill became law. The act makes it clear at the very beginning:

An act that proclamations made by the king shall be obeyed. Forasmuch as the king’s most royal majesty, for divers considerations, by the advice of his council hath heretofore set forth divers and sundry his grace’s proclamations, as well for and concerning divers and sundry articles of Christ’s religion as for an unity and concord to be had amongst the loving and obedient subjects of this his realm and other his dominions, and also concerning the advancement of his commonwealth and good quiet of his people (which nevertheless divers and many froward, wilful, and obstinate persons have wilfully contemned and broken, not considering what a king by his royal power may do, and for lack of a direct statute and law to coerce offenders to obey the said proclamations… at all times by authority of this act his proclamations, under such penalties and pains and of such sort as to his highness and his said honourable council or the more part of them shall see[m] necessary and requisite; and that those same shall be obeyed, observed, and kept as though they were made by act of parliament for the time in them limited, unless the king’s highness dispense with them or any of them under his great seal.

 

Cromwell seems to have intended the proclamations to be administered by common law but as the quote from the act demonstrates, ultimately because of Parliamentary intractability on the part of the Lords, the proclamations were to be administered by a council: workable in theory but not in practice. The act was amended in 1543 to change the mechanism by which the council worked but finally repealed in 1547 after Henry’s death– not that it seems to have made a jot of difference as proclamations continued to be a perfectly legal way of doing things.

Proclamations would cause the Stuarts no end of problems – you could probably argue that Charles I lost his head over them given that he ruled and collected taxes without the aid of Parliament for more than a decade. Parliament was quite clear that the king didn’t have the right to go around demanding money – taxes had to be voted to him by Parliament and for him to suggest otherwise was illegal. He misused proclamation assuming that he could be behave as an absolute monarch.

And that is where I shall stop as I have no desire for this post to move from an interesting historical meander into political debate about the rights and wrongs of its use in the modern day. If nothing else it proves that Cromwell was a seriously wily political operator.

 

Bush L  “The Act of Proclamations: A Reinterpretation” The American Journal of Legal History. Vol. 27, No. 1 (Jan., 1983), pp. 33-53

Elton, G.R.Tudor Rule and Revolution: Essays for G R Elton from His American Friends

G. R. Elton, The Rule of Law in Renaissance England, in TUDOR MEN AND INSTITUTIONS 265-94 (A. J. Slavin ed., 1972), reprinted in 1 STUDIES IN TUDOR AND STUART POLITICS AND GOVERNMENT 260-84 (1974)

 

http://www.constitution.org/sech/sech_074.txt

 

 

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Filed under Law, Sixteenth Century, The Tudors

Medieval marriage II -adultery.

Public punishments.jpgMy wider reading seems to be taking a turn for the dramatic.  I am working my way steadily through Stolen Women in Medieval England: Rape, Abduction and Adultery, 1100-1500 by Caroline Dunn.  It’s a bit of a break from John of Gaunt’s entourage and its certainly eyebrow raising.  Dunn uses the example of  Richard Mareschal to demonstrate that medieval common law took a dim view of adultery.  He was charged with the abduction of Stephen de Hereford’s wife. It turns out that Mrs de Hereford was more than happy to spend time in the company of Mareschal, a cleric. He did not force the lady to go anywhere nor to do anything she didn’t want to do – in other words they were two consenting adults.  Dunn explains that medieval law still classified their relationship as abduction as clearly Stephen de Hereford had not given his permission for his wife to have an affair with Mareschal (p.124-126). There is a logic to it, though it effectively makes the woman in the case into a possession rather than a person – and that’s an entirely different post which I’m not going to get into here.  It is sufficient to remember that a woman was legally subordinate to her husband once she was married. The law that Mareschal was charged under was the medieval Raptus Law. 

Women could, in the early medieval period, have their nose and ears cut off if found guilty of adultery – a law which Cnut would have recognised. I mentioned the fine of legerwyte in an earlier post which was levied in manorial courts upon women who indulged in premarital sex. Mortimer explains that this fine could also be applied to adulterous men (p 226) as well as fornicating women.

It is also impossible to escape the religious element of the equation within medieval thinking.  Essentially the medieval Church, despite the number of churchmen with families of their own, believed that celibacy was the best state in which to live. St Augustine of Hippo explained rather pithily that sex was for the procreation of children and should, if it had to occur at all, happen inside a marriage – where it was a venal sin.  Outside marriage or without someone who was not your spouse it became a mortal sin. Consequentially adulterers, when not monarchs or extremely powerful lords (because let’s face it it’s virtually impossible to find a Plantagenet monarch who didn’t have at least one mistress and let’s not even venture into the maze that was John of Gaunt’s love life) were regarded as having broken both common and ecclesiastical law.   Priests were expected to keep a note of the goings on of their parishioners. Those members of the community who were misbehaving could find themselves dragged off to the ecclesiastical courts where they could be fined, required to do penance which involved being paraded around in your shift – see the image at the start of this post from a medieval manuscript.

Incidentally whilst king’s could do what they liked, it is worth noting that the petty treason laws which covered crimes against your more immediate master included committing adultery with your lord’s wife or seducing his daughters. The punishment was death.  Petty treason also covered a wife’s duty to her husband.  Plotting to murder your husband was covered by the petty treason laws and could result in a woman being burned for her crimes. Adultery could, it was sometimes argued, be regarded as a type of petty treason.  If Henry VIII had been particularly malevolent this is the fate that could have befallen Anne Boleyn and Katherine Howard. Isabella of France’s (so called She-wolf and wife of Edward II of England) sisters-in-law provided an infamous early fourteenth century example of the punishments that could be inflicted on adulterous wives in France.

The Tour de Nesle scandal rocked the french royal family to its foundations.  Joan and Blanche were daughters of Otto of Burgundy. They were married to Philip and Charles of France respectively. Louis, the oldest of the french princes was married to Margaret, a cousin of the two sisters.  Isabella on a visit from England noted some unusual behaviour and informed her father, Philip IV, who discovered that Blanche and Margaret had been carrying on with two brothers- Gautier and Philippe D’Aunay. Joan knew about the adultery so found herself being tarred with the same brush for a time but went on to become France’s queen.  Blanche and Margaret had their heads shaved and were imprisoned for life – it’s probably best not to think about the inventiveness of Philip IV with regard to the punishment of the men involved. Blanche ended up in a nunnery where she died: a further reminder as to the punishment that could be meted out to adulterous wives without necessarily drawing anyone’s attention to the scandal.

All of this links to the stability of society and to the practicalities of inheritance.  If a noble marriage was about the union of two families, a treaty or about a land deal it really wouldn’t do if the heirs of that marriage didn’t belong to the husband. Thomas Aquinas wrote on the topic- which leads to the next point – the law was much more interested in women committing adultery than it was in their husbands carrying on with servants, peasants and prostitutes because essentially in the eyes of medieval society that didn’t count – which perhaps explains why during the Tudor period Henry VIII felt able to effectively kidnap one woman from her husband, take her home and have his wicked way without it impacting on his sense of honour.  The woman and her husband not being of sufficiently important status to count. Thus all those Plantagenet kings weren’t actually guilty of anything because they were the most important men in the land and could do whatever they wanted.  In fact Henry VII was regarded as rather lacking on the manliness front because he had no known mistresses – an absolute monarch was expected to take everything he wanted because he was the ultimate Alpha male.

And let’s not forget the thoughts of Pope Innocent IV on the topic.  He was with Thomas Aquinas; a woman’s adultery was worse than a man’s because man had more resemblance to Christ whilst a woman was more like the church which could have only one spouse i.e. Christ. The Oxford Handbook of Women and Gender in Medieval Europe reveals that this attitude was shifting by the end of the fifteenth century and that there were proportionally more court cases involving men and unmarried women which had been, presumably, previously ignored.

And as though that weren’t complicated enough there’s the whole concept of courtly love to take into consideration.  Society encouraged nobles and knights to place an unobtainable woman on a pedestal and then wander around  in a lovestruck state.  The key thing was that the woman was unobtainable: it was a game.  The man was expected to admire his lady from afar and go off and do derring and gallant deeds for her with no expectation of his devotion being reciprocated. There’s a rather macabre medieval illustration of a couple killing themselves rather than commit adultery – not quite sure how that fits on the scale of sin!

tristan and isolde drinking love potionMedieval tales seem to delight with romances  and marriages gone wrong – there’s Chaucer, who’s  Merchant’s Tale involves an elderly husband January marrying young May.  She promptly shimmies up a tree to meet her lover Damyan – Chaucer neatly referencing Adam, Eve and sin in one rather bawdy image. There’s  Tristan and Isolde who drink a love potion and of course, Lancelot and Guinevere who finds herself threatened with burning by King Arthur on discovery of the affair and has to be rescued…Arthur seems less put out with his friend Lancelot.

lancelot rescuing guineverre

 

Amt, Emilie.  (1993) Women’s Lives in Medieval Europe.  New York: Routledge

Bennett, Judith M and Karras, Ruth Mazo (eds) () The Oxford Handbook of Women and Gender in Medieval Europe. Oxford: Oxford University Press

Dunn, Caroline. (2013 ) Stolen Women in Medieval England: Rape, Abduction and Adultery, 1100-1500  Cambridge Studies in Medieval Life and Thought Fourth Series.Cambridge: Cambridge University Press

Mortimer, Ian. (2009) A Time Traveller’s Guide to Medieval England. London: Vintage

Schaus, Margaret C. (ed) () Women and Gender in Medieval Europe: An Encyclopedia

 

 

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Filed under canon law, Fourteenth Century, Law, medieval

Naworth Castle and the Dacres

IMG_7662.JPGDespite the name Naworth, which does look rather castle-like, is actually a pele tower meaning that it started out rather smaller than a castle and was intended as a place of retreat during times of Scottish raiding.   It received its planning permission in 1335 from King Edward III.  Essentially by planning permission I mean that Ranulph de Dacre received a licence to crenellate – this means there was a definite permission to build battlements.  We tend to think that it is just the monarch who could give permission for fortifications but England being what it was there are some notable exceptions.  If you wanted to build a castle in the county of the Prince Bishops i.e. Durham you had to apply to them.  The same was true for the powerful earls of Chester and also within the Duchy of Lancaster whose landholdings seem to have had a tentacle like grip from the north down across the Midlands.

So why would you want a licence to crenellate?  Well, if you lived on the borders between England and Scotland as at Naworth you probably wanted a jolly high wall to keep marauding Scots out. The downside of this so far as the monarchy was concerned was that some nobles, once they’d got their fancy walls with battlements, might sit behind them and revolt against the king.  The other reason for possibly wanting a licence to crenellate was more a matter of keeping up appearances.  Castle building was an expensive pastime – thus not only were you wealthy enough to afford all the masonry and labour but you were probably also posh enough to receive permission in the first place.

Anyway, Ranulph de Dacre  gained his licence and promptly built a stone tower and it grew from there.  Once the bother with the Scots was over and done with in the seventeenth century the Dacres found themselves short of a male heir so married into the Howard family and the border tower turned into a mansion.  In between times they managed to get themselves a fiercesome reputation as the “Devil’s Dozen,” one of them even managing to kill his brother.  The battle cry of the Dacres is “A red bull! A red bull!” Apparently the cry filled the Scots at the Battle of Flodden in 1513 with dread. Thomas, Lord Dacre was in command of the reserves.

The Dacres are one of those families who turn up throughout the history books either as loyal servants of the crown or out and out rebels – though sometimes its hard to tell which is which.  One of the family, as might be expected, managed to get himself killed at the Battle of Towton in Easter 1461.

To tell the full story, Thomas Dacre the sixth baron married into the Earl of Westmorland’s family when he got hitched to  Philippa  Neville.  Philippa was the daughter of the earl of Westmorland’s first wife.  This particular branch of the family wasn’t terribly keen on the Nevilles who were descended from the Earl of Westmorland’s family by his second wife who was Joan Beaufort, the daughter of the John of Gaunt and Katherine Swynford. This can sometimes be a bit confusing but basically the children of the first wife (Philippa) got the title and what was entailed to the estate whilst the children of the second wife (Joan) got all the money and everything that wasn’t entailed -i.e. the lion share.  Inevitably this caused resentment and by the time the Wars of the Roses came around the Nevilles from the two extended families were at each others throats.  Dacre having married into the first brood of Nevilles fought on the Lancastrian side whilst the Nevilles from the second family are synonymous with the white rose of York (until the earl of Warwick threw his toys out of the pram and changed sides).

The sixth baron died in 1458.  His eldest son was also dead by the time of Towton leaving daughters. This had resulted in the splitting of the barony into two parts – the north and south.  Ranulph or Ralph the second son of the sixth baron became Lord Dacre of the North or just to be even more difficult Lord Dacre of Gilsland. He fought on the Lancastrian side at Towton (remember his mother was a Neville descended from the earl of Westmorland’s first wife and therefore hostile to Nevilles descended from the second wife.)  He was to the left of the duke of Somerset’s men along with the earl of Devon.  Dacre was, according to legend, shot by a boy in a tree on the part of the battlefield known as North Acres. He is buried at the Church of All Saints, Saxton.  Even though he fought for the Lancastrian side someone managed to find time to bury him sitting on his horse – and yes, the Victorians checked.

His brother Sir Humphrey Dacre also took part in the battle.  He was attainted for treason but was pardoned in 1468 and more formally in 1471. In a twist of fate he turns out to be the marital great uncle of Henry VIII’s last wife Katherine Parr having married Mabel Parr.

Sadler, John. (2006) Border Fury. London: Longman

 

 

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Filed under Anglo-Scottish history, Castles, Cumbria, Fifteenth Century, Law, Wars of the Roses

Margaret Holland – troubled royal

margaret holland.jpgMargaret Holland, duchess of Clarence was born in the later part of the fourteenth century, the daughter of Thomas Holland.  He was the fifth earl of Kent and his half-uncle was Edward II through his mother Joan the Fair Maid of Kent, meaning that Margaret Holland was the great granddaughter of Edward I if I’ve counted back right. This is important because Margaret Holland whose family had a bit of a torrid time when Richard II was deposed had married John Beaufort, earl of Somerset, the eldest illegitimate son of John of Gaunt and Katherine Swynford meaning that she was the other more famous Margaret Beaufort’s granny.

Margaret Holland’s husband seems to have been a bit more on the ball that her Holland brother and uncle who managed to get themselves executed in a plot in 1400 to remove Henry IV from the throne. John Beaufort benefited from his half-brother’s rise to power by becoming Constable of England before he died in 1410 leaving his wife a wealthy widow with a royal pedigree and a title.

Margaret now married her husband’s half nephew – Thomas of Lancaster, the second son of Henry IV- just in case the waters weren’t already muddy enough. Thomas, in the way of younger sons, wasn’t terribly well off and there was a fairly complicated dispensation required before the marriage could go ahead because, of course, they were related twice over in that they were both descended from Edward I – i.e. consanguinity and they were related through marriage – i.e. affinity.

Thomas when the marriage finally received papal dispensation became the duke of Clarence.  History now enters the glory days of the Hundred Years War with Henry V being all martial thus allowing Shakespeare the opportunity to write dramatic speeches on the subject in the sixteenth century.  Unfortunately despite the fact that Henry V ended up married to Katherine of Valois in the aftermath of Agincourt and the Treaty of Troyes he ultimately failed in his bid to rule France successfully because he died leaving his infant son Henry VI on the throne for a lengthy minority and the Wars of the Roses.

Thomas of Lancaster managed to die at the Battle of Baugé on 22 March 1421.  As though this wasn’t bad enough Margaret’s sons John and Thomas Beaufort were captured. John Beaufort would remain in captivity for the next seventeen years and when he did get out he was heavily in debt thanks to the ransom he was required to pay. This John Beaufort would become Duke of Somerset and he would also be the father of Margaret Beaufort, the mother of Henry Tudor.

Meanwhile Margaret Holland decided that two husbands were enough for any woman and decided that she wouldn’t marry again.  She didn’t need to.  She was wealthy in her own right.  She spent a lot of time trying to negotiate for her sons’ release.  She also, as many wealthy widows did at this time, developed close links with a monastic community. She is particularly associated with Syon.  When she died in 1439 she was buried in Canterbury Cathedral.

BeaufortJohnTomb.jpg

R. L. J. Shaw, ‘Holland , Margaret, duchess of Clarence (b. in or before 1388, d. 1439)’, Oxford Dictionary of National Biography, Oxford University Press, Oct 2008; online edn, May 2009 [http://www.oxforddnb.com/view/article/98133, accessed 22 April 2017]

PS Apologies for lack of posts – wifi is erratic to put it mildly at the moment!

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Filed under canon law, Fifteenth Century, Law, The Plantagenets