Women’s rights…medieval style….

The Wife of Bath – possibly based on Alice Perrers – mistress to Edward III

As you might expect this is a money based post. A bride’s family were required to provide a dowry but as part of the agreement the groom was expected to provide for his new wife in the event that she became a widow. This was the dower and it was the evolution of the bride price and the groom turning up with a stack of gold on a shield on the morning of the wedding. The dower is one of the things required to legitimise the wedding…and wedding rings are symbolic of the gift or endowment. Conventionally a widow received a dower which was a life interest in one third of her late spouse’s estate. Obviously the husband had to hold the land outright, if it was entailed then it couldn’t be counted to the third. It didn’t even need to be set down in writing – it was a legal requirement and one of the reasons why the process of Inquest Post Mortem was so important in that it looked at an estate and decided who owned what and where any claims needed to be met.

There might also be a jointure. A jointure was the estate settled on the bride for the period of her widowhood – sometimes instead of the dower. The jointure in dictionary terms is a kind of joining in ownership that’s settled on the bride before the wedding to provide for her widowhood. A jointure came to equal one tenth of the bride’s dowry and was based on an income from the land. Failure of the bride’s family not to pay the dowry in its entirety could result in a woman not receiving her jointure (Think of Henry VII arguing with Ferdinand of Aragon about Katherine of Aragon’s jointure – resulting in the princess living in straitened circumstances after the death of Prince Arthur.)

Dowers and jointures made widows very marriageable because they kept the jointure even if they remarried.. They could also live independently and had more freedoms – think of the evolution of the femme sole status within the merchant and guild hierarchies. The concept of the “bride gift” and the dower were intertwined.

Widows had more choices about who they married next. Magna Carta forced the king to renounce his previous right to arrange the marriage of his barony as he saw fit. There were other laws that gradually removed feudal impediments from choice although in many instances a fine was required first. All of which sounds very Wife of Bath with her five husbands, steadily increasing wealth and Chaucerian smut. None the less there was an option for marrying for love rather than being bartered for the benefit of the whole family. Friedrichs points out the number of wealthy widows who married beneath them – suggesting love on the woman’s part at least.

However, and this won’t come as any great surprise, it didn’t always work out like that. Sir William Lucy managed to get himself killed during the Battle of Northampton in 1460. His widow, Margaret, was in her twenties and childless. There was a delay with the provision of her dower rights and because her jointure had been made without royal licence it was held not to be valid. Margaret was not sufficiently wealthy to make an independent choice about who she married and she was part of Warwick’s household. Her story is complicated by the fact that Edward IV took a shine to her.

Friedrichs, Rhoda L. ,”The remarriage of Elite Widows in the Later Middle Ages” Florilegium, vol 23, 1 (2006): 69-83

Femme Sole – a woman alone…and looking after her own money

Alice, Duchess Dudley (British Museum)

Women in medieval and early modern England were not usually independent.The law deemed that a woman once she married was covert de baron ie protected by her husband. The use of baron here simply identifies the correct natural hierarchy (don’t blame me!)

However, there were some women who broke the mould and were legally designated femme sole. These women could conduct their own business transactions and would be held responsible for their own debts. The idea developed during the thirteenth century in London. Alice Perrers, the mistress of Edward III, was identified as a femme sole by the law courts – meaning that she had no husband, father or brother to look after her affairs – and was treated as though she was single. This allowed Alice to buy property on her own behalf but also made her liable for any debts that she incurred and as it turned out any debts that her deceased husband might have incurred prior to his death.

Women in an urban setting were more likely to wish to carry on their husband’s trades if he pre-deceased them. There are examples of this situation within many guild books and occasionally, but not often, women with one trade marrying into another guild craft and the couple continuing about their separate businesses. And just to be clear, canon law was quite adamant that the husband in question had to give permission for his wife to continue in her old trade. This was because the concept of debt was that it belonged not to one person but to a family – thus it would be usual for the husband to become liable for his wife’s debts if her business failed (I make no comment.). Femme sole meant that the woman could trade as though she was single and the husband’s business would be legally protected.

Other circumstances might include banishment and in the case of Alice Dudley the wife of Sir Robert Dudley, illegitimate son of the Earl of Leicester – abandonment. Alice was given access to the jointure which she would have received in the event of Robert’s death and given the status of femme sole at the same time.

Needless to say there weren’t many femme soles.

Royal Forests in medieval England

Forest comes from the Latin word meaning outdoors – so medieval forests included woods, heaths, wasteland and all manner of open spaces. Their aim was to protect the beasts which the king hunted – deer and boar amongst others. The rules of vert and venison were designed for the protection of habitat, animal and ease of the hunt.

By 1086 there were in the region of 25 royal forests. The Anglo Saxon Chronicle contains many bitter complaints on the matter. At one point during the thirteenth century it’s estimated that a quarter of the country was designated royal forest which meant that it fell under forest law which was an arbitrary system based on the king rather than common law and its precedents.

Now I know that there is still a words, words, words challenge ongoing but it seems to me that this has real potential – so here is an unexpected History Jar challenge – how many of the medieval royal forests can you name?

Forest Law- the courts

Royal Forests in medieval times  were overseen and administered by keepers who were appointed by the monarch and also by justices who applied Forest Law. There were two justices- one for the forests north of the River Trent and one for the forests south of the river. The laws that applied in the king’s woods were different to the common law applied elsewhere in the kingdom. The laws in the forest were what the king decided that they should be.

The laws were essentially to protect the animals that lived in these areas under forest law – and they weren’t all wooded – heaths and moors were also encompassed by forest law. The laws also prevented things like fencing and hedging which would have hampered the king from hunting. Eventually an accommodation of some kind was established for the people who lived in areas designated Royal Forest leading to commoners rights. These were documented in 1215 with Magna Carta when King John found himself at odds with his barons. The Charter of the Forest was signed in November 1217.

Woodmote – this is more properly a court of attachment. It was held every forty days. The judges were the wardens/keepers and their deputies and sometimes verderers. This court decided whether the people charged with breaking forest law should go to a higher court – the swainmote.

Swainmote – this court met three times a year. It tried cases where people had broken the rules about putting fields int he forest or grazing their livestock at times and in quantities that they shouldn’t. The swain element was the jury of freemen that sat once a year before the Feast of St John the Baptist.

Court of Regard – every three years officials called retarders checked that dogs living in the area under forest law had been declawed. This declaring is often called “lawing.” Regarders also dealt with instances of trespass.

The Eyre Essentially an eyre is a circuit court presided over by the king’s justices. It was held approximately once every five years after a notice of forty days was given.

The Essex forest of Henry I

The most famous Royal Forest is the New Forest in Hampshire created on the orders of William the Conqueror. Orderic Vitalis went so far as to suggest that the deaths of his son William Rufus and grandson Richard were essentially divine punishment for destroying the villages that were there before – William the Conqueror was admittedly dead himself by that point! The Anglo Saxon Chronicle also had something to say on the subject:

….established a great peace for the deer, and laid down laws therefor, that whoever should slay hart or hind should be blinded. He forbade the harts and also the boars to be killed. As greatly did he love the tall deer as if he were their father. He also ordained concerning the hares, that they should go free. His great men bewailed it, and the poor murmured thereat, but he was so obdurate, that he recked not of the hatred of them all, but they must wholly follow the King’s will, if they would live, or have land, or even his peace.’

Like his father and brother, Henry I enjoyed hunting. In 1136 King Stephen issued a charter saying that land which had been designated forest during the reign of Henry I would be returned to the status it had held prior to coming under Forest Law. Essentially whereas William Rufus had clung to the income from vacant bishoprics and abbeys, Henry had effectively increased his domain and taxation potential by turning lands into Forest which then came under the arbitrary control of the monarch.

From the above paragraph it should be evident that forest didn’t necessarily mean trees; it could include moorlands, waste ground and there were even townships that came under forest law. Forest comes from the Latin word “forests” which basically means “outside.” It was unenclosed land.

The key was that anyone living in an area designated as royal forest came under a set of regulations separate from common law and a set of fines and taxes different from elsewhere. if Stephen sought to win support by handing back land it wasn’t something that unduly bothered his successors. By 1189 something like a 1/3 of England came under Forest Law. The king appointed forest officials who seemed to have spent a lot of time collecting fines. There were laws against hunting, enclosing land, taking wood, grazing animals – all of them had penalties which the forest officials exacted on their master’s behalf. At its worst the penalty for hunting a deer or sheltering someone who had hunted a deer was death.

Some of England forests had been designated royal forests during the Saxon period. Edward the Confessor had a forest at Windsor and another in Essex. There were approximately 68 royal forests at the time of the Conquest. However, the laws were not as restrictive as they became after the Conquest.

Essentially William the Conqueror argued that no one owned the deer and the boar so therefore they must belong to the king. If they belonged to the king then if anyone else took them it was theft. He was however willing to grant royal licence to hunt. It also meant that if the king was chasing a deer, for example, it didn’t matter if the deer left the king’s land and fled across ground belonging to someone else. The animal was still the king’s and he had the right to chase it wherever he wanted. It is thought that the king deemed red deer, boar, hares and wolves as his. Later on the range of animals that could be chased only by the king was extended.

Today the Royal Forest that comprised all of Essex by the end of the reign of Henry I is recalled by the fragment that remains as Epping Forest which in turn was part of Waltham Forest. Hatfield Forest remains the only in tact royal hunting forest in Essex. There was also Writtle Forest near Chelmsford and Hainhault Forest which ultimately ended up in the hands of Barking Abbey until the the Dissolution of the Monasteries.

I find it fascinating that only about 20% of Essex was wooded at the time of Domesday but that by 1100 all of it was under Forest Law. King Stephen returned the land but Henry’s grandson also named Henry was swift to reclaim royal forests. In fact, Forest Law was one of the factors leading to Magna Carta.

Young, Charles R. (1979) The Royal Forests of Medieval England

Insanity, the law and asylums

bedlam hogarthThe word Bedlam comes from the Priory of St Mary at Bethlehem which was founded in London during the thirteenth century.  By 1377 it had become home to people suffering from mental illness or as the inhabitants were described at the time – “distracted persons.”  The law meanwhile was concerned that landowners were of sound mind and indeed the law continued to be concerned about property throughout the centuries.  By 1735 Hogarth was using Bedlam to end his social moral fable of the Rake’s Progress and the conditions in which patients found themselves were horrendous.

Fans of Poldark will no doubt have noted that the care of George Warleggan in the eighteenth century has to date not been kind following the death of his wife Elizabeth – he’s been half drowned, starved, restrained and leeched within an inch of his life.  However, this is not a post about the eighteenth century or earlier.  I want to look in this post  at the development of the law during the nineteenth and early part of the twentieth century with a view to understanding the process by which women could become confined to a county mental hospital during the Great War.  This post is not a definitive guide – its research for my own nefarious reasons.  It would have to be said that the terminology by which mental health was described throughout history gives very little thought to the patients or their families.

By the end of the nineteenth century more than 70,000 patients had passed through the doors of an insane asylum of some kind or other.  Nationally there were 120 asylums.   The 1800 Criminal Lunatic Act was particularly interested in securing those people who wanted to assassinate the monarch and the criminally insane.  The 1808 County Asylum Act dealt with fund raising methods that combined taxation with public subscription.  The idea was that the poor insane should be removed from workhouses and prisons. The wealthy insane were being paid for by their families and resided in private sanitariums or were locked up in various secluded attic rooms (see Jane Eyre and The Woman in White for literary examples.)  Almost inevitably lunacy became a condition in many counties as a method of differentiating between the deserving and undeserving poor.  There was also the fact that men and women who behaved in a socially unacceptable way could be deemed to be mad and shut away, often for the rest of their lives.  Records reveal that many people spent their lives locked in asylums having been sent there for reasons other than madness, including in one instance for excessive shopping in her husband’s opinion.

Sneinton in Nottingham was the first asylum founded by a mixture of subscription and taxation. The county had not offered care of any kind for poor people suffering from mental health difficulties before that date.  The West Riding’s asylum opened in Wakefield in 1818 though its minutes date from 1814.  Further parliamentary acts defined lunacy, attempted to regulate private asylums and sought to monitor the health care provided – good practice and well meaning concern was mixed with what modern eyes would define as barbaric practice.

In 1828 an act required all pauper lunatics to be documented and certificated.  This in turn would mean that commissioners would be able to inspect institutions and people incorrectly placed in asylums would be released (in theory) and care could be monitored – gradually more humane treatment became more the norm although restraint remained common practice for a very long time as did incarcerating people not for mental health problems but for their socially unacceptable behaviour or for having the misfortune to be born with learning difficulties.

In 1845 county asylums became a legal obligation and the Lunacy Commissioners were appointed to oversee the running of asylums. It was only in 1890 with the passage of another act that county asylums began to move away from their pauper associations to begin their evolution to hospitals caring for all walks of life.

Interestingly Wakefield was one of the first asylums to employ therapeutic employment, though this was thanks to the enlightened attitude of Dr William Ellis who moved from Wakefield to Hanwell in 1832. Ellis was a believer in the benefits of outdoor work rather than the brutality espoused by earlier “mad doctors.”  It is perhaps for this reason that many of the Victorian asylums were set in beautiful grounds.  Hanwell is also an example of changing attitudes in terms of names.  It opened as an asylum in 1832 but became a hospital  in 1926 and was then completely renamed in a bid to dissociate itself from past stigma. Not that this has ever been successful as group memory lasts longer than a name change – The Garlands in Carlisle was guaranteed to make my mother-in-law concerned for the mental well being of anyone sent there irrelevant of the fact that it had long since been renamed and re-purposed.  Many hospitals were not only renamed but shut and then demolished during the later half of the twentieth century and early twenty-first century.  For example,  Derby’s mental hospital remains a building site although the twin brick entrances remain – architecturally it is helpfully described by Kelly’s Directory.

The Lunacy Act of 1890 covered admission to private asylums but did not change the 1845 Lunacy Act and 1853 Act for pauper lunatics – by which it meant anyone unable to earn the money to pay for their care – on the grounds they were confined or without sufficient wealth to fund their care as averse to the destitute. The Lunacy Act of 1845, required  two medical certificates signed by qualified medical doctors for admission to lunatic asylums. The qualified medical doctor could incidentally be a pharmacist.  In theory a JP or official should have organised the doctor to examine the person to be admitted but it seems as though this happened prior to the jp being involved. In practice it would appear that one doctor and a vicar would be enough to certify a poor person in some locations.   The 1890 Act required an additional “summary reception order” particularly in the case of private admissions. This was also known as  “legal certification.” The 1890 law stated, as an additional safeguard against wrongful committal, that a justice of the peace specially appointed, a county court judge, or a magistrate could issue legal certification for privately admitted patients.  There was a £50 fine for any institution that was found not to have followed the correct procedure. The 1890 act also applied a time limit to the the duration of a stay in a private asylum.  The 1890 act also ensured that a policy of licensing developed that would help to bring about the demise of private asylums.

The act of 1890 reflects the increasing opposition to private asylums following examples of wrongful confinement relating to inheritance and unhappy marriage etc but as is the way of these things people still wanted to get rid of difficult, embarrassing or inconvenient relations so there was a flurry of illegal nursing homes prosecutions during the period that followed. The problem still existed after the passage of the 1927 act pertaining to the care of people with mental health disorders.

In 1910 there were slightly more than a thousand criminal lunatics, approximately 10,500 private patients and a staggering 118,901 pauper lunatics.  The numbers would steadily rise until the 1950s.  The State was concerned about the growth of insanity in the poorer classes.  Amongst this number were people suffering from senility and dementia, epilepsy, melancholia, learning difficulties, moral insanity and congenital insanity.  The causes were variously listed as heredity, excessive drinking, syphilis, influenza apparently caused madness in 2.8% of cases, starvation and mental stress.  It was also recognised that the onset of puberty could trigger some mental illness. 53% of female private cases were because of childbirth.  Essentially the first six weeks of motherhood left rich women at risk of insanity but only 7.5 % of pauper women.

The Mental Deficiency Act of 1913 identified four categories of young person who might need to be managed and cared for – these included the feeble-minded and the moral imbecile. This rather effectively ruled out the requirement for medical certification as a parent or guardian just needed to petition for the person to be placed in an institution.

Feeble minded:  that is to say, persons in whose case there exists from birth or from an early age’ mental defectiveness not amounting to imbecility, yet  so pronounced that they require care, supervision, and control for their own protection or for the protection, of others, or, in the case of children,’ that they by reason of such defectiveness appear to be permanently incapable of receiving proper benefit from the instruction in ordinary schools.

Moral imbeciles: that is to say, persons who from an early age display some permanent mental defect coupled with strong viciously criminal propensities on which punishment has had little or no deterrent effect.
One of the identifiers for moral imbecility was to be in receipt of poor relief, unmarried and pregnant. In addition to two medical certificates testifying to lunacy the master of the asylum was also required to determine the sanity of the person being admitted.The chances of you being committed were much higher if you were a woman – hysteria covered a multitude of criteria as did “female disease.”
Have I got what I wanted? Yes – a woman without private means during the early years of the twentieth century could be detained as a pauper lunatic.  All that would be required would be a medical certificate signed by a doctor or a pharmacist stating that she had been examined at some point during the previous week and was deemed by them to be insane.  An order from a JP, vicar or poor law relief officer was also needed.  Once admitted there was no appeal.  Following the passage of the 1913 act even this became much easier to implement if a young woman was deemed to be a moral imbecile. She did not have to be under twenty-one.  If her behaviour was deemed morally imbecilic in that she demonstrated an inability to exercise self control she could be given a guardian who could arrange for her to be admitted to an institution based not on the word of a doctor but on the person appointed her guardian (I think I’ve understood it right but am more than happy to be corrected.)  Of course this was not to punish the woman but to provide a safeguard for society!  As mental hospitals closed down during the 1970s there were newspaper articles about women who had spent most of their adult lives in mental hospitals based on the fact that they had a child out of wedlock. 

Not immediately related but of a similar vein it is interesting to note that following World War One there is evidence of the State regulating women’s behaviour in terms of widows’ pensions which was a natural follow on from the separation allowances granted to military wives during the war. In theory the wife of an agricultural labourer could be financially more secure with the separation allowance than she had been before her husband became a soldier.  However, if she misbehaved herself this was removed.  Taken together with the concept of moral imbecility it is apparent that women were required to tow the line or that the State would step in to regulate their behaviour.  This would, of course, have depended on the people managing the system in a given area.
As I said at the start of this post – I’m looking for evidence to use elsewhere so it is one sided rather than balanced – and having found it I shall now go away and plot!

 

 

http://studymore.org.uk/mhhtim.htm#1920

Victorian Era Lunatic Asylums

“Lunacy In England And Wales.” The British Medical Journal, vol. 2, no. 2605, 1910, pp. 429–431. JSTOR, http://www.jstor.org/stable/25284642.
“Moral Imbecility And The Mental Deficiency Act.” The British Medical Journal, vol. 1, no. 2789, 1914, pp. 1316–1317. JSTOR, http://www.jstor.org/stable/25310285.

Showalter,  Elaine. (1987) The Female Malady: Women, Madness and English Culture, 1830-1980 London: Virago.

Takabyashi, Akinobu.  “Surviving the Lunacy Act of 1890: English Psychiatrists and Professional Development during the Early Twentieth Century” . 2017 Apr; 61(2): 246–269 accessed from https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5426304/

 

The Butler did it!

Paxton House.jpgPaxton House in Berwickshire, pictured here from the gardens to the rear of the property, is a Regency delight stuffed with Chippendale furniture.  It was built by Patrick Home who had to pay for the design of the house by John Adam (younger brother of Robert), the quarrying, dressing and building of his delightfully symmetrical home a few miles from Berwick.  Ironically having built it he never actually lived in it.

The Homes are an ancient – and somewhat unlucky- border family. This is perhaps testified by the fact that between 1413 and 1576 every eldest son of the Home family died either in battle or as a prisoner in English hands.  The house even boasts a section of the so-called Flodden Banner that covered the bodies of Lord Home and his oldest son.   Though of course Paxton House hadn’t been built at that point.  In fact it wouldn’t be started until 1755.

The Home family managed to get itself into even deeper trouble in 1715 when it supported the Jacobite cause. Sir George Home of Wedderburn, his brother and his son managed to get caught at the Battle of Preston. Although George’s life was spared he was still guilty of treason so lost the family estate.  However, a cousin called Ninian was able to demonstrate that George owed him so much money that the estate was effectively mortgaged to him – resulting in its return to the family.  As these things tend to be, inheritance proved complicated.  Ninian had returned the property to George but none of George’s sons had legitimate heirs.  There were daughters.  Ninian intended that his son should marry George’s daughter Margaret but the son preferred Margaret’s younger sister.  Ninian having been widowed married Margaret himself…with me so far?  He was approximately thirty years older than his bride but that didn’t stop him fathering a second rather large family of whom the builder of Paxton House – Patrick- was the eldest surviving son.

Ninian died.  Margaret became responsible for her family’s upbringing.  Patrick was to be a lawyer. She sent him to be educated in Leipzig.  From there he went to Frederick the Great’s court, fell in love and was ordered to take the grand tour by his mother principally because the only way for Patrick to marry the girl he loved was to settle in Germany and Margaret did not want the family money to leave the country.

Whilst Patrick was touring Europe the family butler decided to relieve the family of the rent which was kept in a locked cabinet beneath Lady Home’s bed in her home at Linthill near Eyemouth.  The cabinet is now at Paxton House. Patrick’s mother was in the habit of carefully locking her chamber door before retiring to bed.  She also kept the keys to the cabinet under her pillow.

The butler, a man by the name of Norman Ross, knew how the tumbler mechanism for the lock to her bedroom worked.  He let himself in having stopped the lock by choking it with cherry stones, hid until Lady Home retired for the night and waited until she was asleep.  There was then the small matter of retrieving the keys from beneath her pillow.

Martin, David, 1737-1797; Margaret Home (d.1751), Lady BillieUnfortunately Margaret pictured above (image accessed from https://artuk.org/discover/artworks/margaret-home-d-1751-lady-billie-210935)  awoke.  The butler panicked and stabbed his employer with a knife – that he either had about him or which was upon the night stand depending on the source.  Margaret managed to summon help and survived long enough to name her murderer who had escaped through a window as the servants arrived on the scene.  She died on August 16 1751- the attack having happened on the night of the 12th.  Other accounts suggest that Margaret survived only two days.  In either event the murder is deemed to have occurred on the 12th.

Ross was arrested the following day and conveyed to Edinburgh where he was tried.  Prior to his execution he had his right hand chopped off.  He was also hanged in chains – one of the last men to suffer this fate.  Essentially his body was tarred and hanged in a cage where it was left to decompose. The severed hand was placed on top of the gallows.  Scottish law and English law differed in the treatment of Ross.  Under English law he would have been found guilty of petty treason but under Scottish law it was murder plain and simple.  The additional punishment reflected the fact that bond between servant and employer had been broken.  Ross was a trusted member of the household and is described in texts of the time as Margaret Home’s “confidential servant.”

It was probably as a consequence his dramatic return home that Patrick forgot to empty his travelling chest – a large and ornate piece of furniture.  It eventually languished in Paxton House for the next two hundred  and fifty years – consequentially the house has some very fine mid eighteenth century gentlemen’s costumes on display.

In 1755 Patrick began to build the house with a view to marrying the young woman he’d fallen in love with when he was twenty-two.  Unfortunately Sophie de Brandt, his sweetheart, died before the house was finished.  Patrick never furnished the house – that task fell to his cousin, another Ninian Home, when Patrick sold him the house in 1773 having inherited Wedderburn Castle from his uncle.

I loved Paxton House – a hidden gem. It’s part of the Historic Houses Association and entry to the house is by tour.  I’d have to say as much as I enjoyed the history I also enjoyed spotting the appropriately regency clad teddy bears that are part of the children’s trail! There’s no image of the Flodden Banner as photography is not permitted in the house.

 

The Scots Magazine   – Volume 13 – Page 405

https://books.google.co.uk/books?id=YoE4AQAAMAAJ&pg=PA355&lpg=PA355&dq=murder+of+margaret+Home,+Lady+Billie+1751&source=bl&ots=WLN4vs7WI0&sig=ACfU3U0WxBupL5x7hwUG_E4yhfc5OQ8Klg&hl=en&sa=X&ved=2ahUKEwjD89us1eniAhW5XRUIHUHPDpE4ChDoATABegQICRAB#v=onepage&q=murder%20of%20margaret%20Home%2C%20Lady%20Billie%201751&f=false

A Parliamentary Protestation

torn journal.gifParliamentary independence of thought, which may run counter to what those in charge would like to happen, is nothing new.  In 1621 James I’s third Parliament was unhappy about the turn of events – relating to Europe as it happens. They had four main grievances: monopolies, sale of honours, corruption at court and James I’s pro-Catholic foreign policy.  This post deals mainly with the last grievance.

James had decided that his heir, Charles, should marry a Spanish bride.  The lure of a very large dowry and the thought of being seen as Europe’s peacemaker was sufficient for James to ignore Parliamentary anxiety about Protestant England allying itself with the Catholic Hapsburgs- who were busily engaged on the Thirty Years War against Europe’s Protestants at the time including James’ own son-in-law Frederick V of the Palatinate and King of Bohemia.

Many Members of Parliament not only opposed the so-called Spanish match but wanted to go to war with Spain – preferring a sea based campaign rather than a land war . They said as much in June and repeated it less politely on the 3rd December 1621.  James told them to mind their own business given that foreign policy was a royal prerogative.

Meanwhile James did need money because his son-in- law, Frederick V King of Bohemia had been toppled from his throne by the Hapsburgs and James needed to show his support by providing cash for him to regain the aforementioned throne.  This gave Parliament leverage because they would have to grant the subsidies for James to do this. Parliament took the opportunity to assert its rights. It declared they had rights and liberties to discuss matters even if they displeased the king. James was not terribly amused and answered that parliament did not have a right to discuss whether his son should marry a Spanish bride or not since foreign policy was the King’s business rather than Parliament’s and that further more whatever rights Parliament did have were in the king’s gift to give or remove as he saw fit.

In answer Parliament filed a “Great Protestation” of its rights and privileges on 18th December 1621.  They claimed that Parliament held its rights through tradition i.e. inheritance from one generation to the next in that their rights had been given to them by previous monarchs – and that they intended to keep them rather than see them eroded because the current monarch held different views on the matter:

… concerning sundry liberties, franchises, privileges, and jurisdictions of parliament, amongst others not herein mentioned, do make this protestation following:—That the liberties, franchises, privileges, and jurisdictions of parliament are the ancient and undoubted birthright and inheritance of the subjects of England; and that the arduous and urgent affairs concerning the king, state, and the defence of the realm, and of the church of England, and the making and maintenance of laws, and redress of mischiefs, and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in parliament; and that in the handling and proceeding of those businesses, every member of the house hath, and of right ought to have, freedom of speech to propound, treat, reason, and bring to conclusion the same: that the commons in parliament have like liberty and freedom to treat of those matters, in such order as in their judgments shall seem fittest: and that every such member of the said house hath like freedom from all impeachment, imprisonment, and molestation (other than, by the censure of the house itself), for or concerning any bill, speaking, reasoning, or declaring of any matter or matters, touching the parliament or parliament business; and that, if any of the said members be complained of, and questioned for any thing said or done in parliament, the same is to be showed to the king, by the advice and assent of all the commons assembled in parliament, before the king give credence to any private information.

 

king-james1James was not impressed not least because James had given instruction to Parliament previously and dealt, he thought, with those very same issues. He thought that Parliament was just trying to extend their role. They weren’t just saying they had the right to debate matters they were also saying that they had the right to pass laws having discussed matters first and at the bottom of it all lies the right to freedom of speech.  Furthermore James felt that Parliament were so busy trying to extend its rights that they weren’t actually doing very much that was actually useful.  He sent for John Wright who was the Clerk of the House at that time.  James then tore the record of the protestation from the Commons Journal.

charles i full lengthThe Parliament of 1621 had not been a good experience for James in that not only did they defy him over foreign policy and protest their rights but they had also sought to undermine the power base that George Villers, Duke of Buckingham (and James’ favourite) , had built up by impeaching two of the men that owed him patronage for corruption. Sir Francis Bacon was also impeached for corruption. In return for two subsidies Parliament demanded harsher penal laws. No wonder James dissolved Parliament at the beginning of January 1622 – but the tensions that would build during the early years of Charles I’s reign were already in place.

The so-called torn journal pictured at the start of this post is located in the National Archives. http://www.nationalarchives.gov.uk/pathways/citizenship/citizen_subject/docs/torn_document.htm

Henry Hallam, The Constitutional History of England from the Accession of Henry VII. to the Death of George II. (London: Ward, Lock, & Co.)

habeas corpus versus divine right

Habeas CorpusCharles I believed in the Divine Right of Kings – that is to say the absolute power of the monarch based on the so-called Great Chain of Being which essentially placed the king at the top of the food chain, next only to God – who had, after all, placed the king in the position and everyone else in their allotted place as well.  The concept of Divine Right was written about by James I of England VI of Scotland in a book entitled The True Law of Free Monarchies in 1598 (before he became King of England).  In the book James who clearly saw himself as something of a political theorist stated:

they make and unmake their subjects, they have power of raising and casting down, of life and death.

Taking that as a model Charles I was clearly well inside his self-perceived rights to lock up anyone who failed to do as he asked.  Thus he did not feel it unreasonable in 1627 when he levied a forced loan to arrest the men who failed to pay. Further to this it was clearly established that a “king must live of his own,” except in case of war when taxes would be levied by Parliament to pay for the aforementioned wars. Charles believed that the State had a duty to pay for the war and in levying the loan he was merely bypassing parliament which had unhelpfully tried to impeach his foremost adviser – the Duke of Buckingham. Not only that but Charles felt grieved that Parliament had not voted him the subsidies that were traditionally granted when a new monarch ascended the throne – they had given them to him for a limited time only.  The relationship between Crown and State was changing.

The previous three posts have dealt with the Five Knights Case.  Today, bypassing Sir Edmund Hampden (who shouldn’t be confused with John Hampden who was also locked up for refusal to pay the loan) we will finish the case with a very brief look at Sir Thomas Darnel or Darnell.  The Five Knights case is sometimes referred to as Darnel’s Case. Essentially like the other gentlemen Darnel, who was from Lincolnshire, was arrested because he failed to pay the King’s forced loan.  Like the other gentlemen he was called to the Privy Council and when he refused to pay the loan was confined to the Fleet Prison from where he sought a writ of habeas corpus to test the legality of his imprisonment.

 

The reason given for  Darnel’s arrest lay in the ubiquitous “reasons of state.” Essentially it was not illegal not to pay the forced loan because it had not been enshrined in law by Parliament – because Parliament had been dissolved in order to prevent the impeachment of the Duke of Buckingham.  The judges in the case did not wish to look too closely at the way in which Charles was using a medieval Royal prerogative  but stated that the arrests were legal because the authority of the Crown was in itself sufficient and with precedent.  Lord Hyde the King’s Justice stated that he was sworn to uphold the king’s rights and if the king said that he had arrested more than seventy gentlemen across the country for reasons of state it wasn’t up to Lord Hyde to say otherwise. It should also be noted that the judiciary had previously been threatened with dismissal by Charles when they initially questioned the legality of the forced loan.

Realistically Charles couldn’t conduct the war without raising taxation of some kind or other. The fact that Lord Hyde didn’t make a judgement on the matter which would have then become part of Common Law and open to challenge but issued his verdict as a “rule of court,” caused both Charles and his administration to be regarded with suspicion by parliament and increasing numbers of his subjects who didn’t take kindly to the forced loans in any event.

Unsurprisingly when Parliament was recalled in 1628 it drew up a Petition of Right which drew on the arguments that the five knights had made referencing Magna Carta and the right of habeas corpus which states that when arrested a person has the right to be tried to test whether the arrest is legal or not. The debate that followed aired the rights and liberties of  subjects against the Crown.  In asserting those rights Parliament had removed the lid from Pandora’s box so that when Charles went on to rule for elven years without Parliament using medieval rights in order to raise revenue the reason for discontent within the state had already been rehearsed and only became more heated with the passage of time.

Sir John Heveningham, another knight and his son William – regicide.

Charles_I_in_Three_Positions_1635-36Sir John was born in 1577 to a Norfolk family with a colourful pedigree – the Heveninghams claimed to be descended from one of the men who guarded Christ’s tomb.  More realistically they originated from Suffolk.

Suffice it to say the Heveninghams did all the usual things associated with county gentry i.e. education (in this case Cambridge), study of the law, JP, sheriff and member of parliament.

In January 1627, John Heveningham was summoned to appear before the Privy Council for his failure to pay Charles I’s forced loan.  He was packed off to the Marshalsea.  Being a gentleman it was assumed that he wouldn’t skip town so was allowed, in July, to take himself back to Norfolk to put his affairs in order.  Having done that he was placed under house arrest in Shropshire before being moved back to London once again for a stint in the Fleet Prison.

It was from the Fleet that Heveningham petitioned the King’s Bench for a bill of habeas corpus which would have tested whether or not he was being legally detained.  The matter was not resolved legally on account of the fact that the bench had no desire to alienate the king but Heveningham and his four companions were released at the beginning of 1628.

Heveningham found that becoming a jailbird had done his “street cred” the world of good in Norfolk where the king’s forced loan was deeply resented.  He was returned to Parliament on a wave of popular support.

Sir William HeveninghamHeveningham died in 1633. He was succeeded by his son William who was returned to Parliament in 1640.  He served on the committee of the Eastern Association during the English Civil War so was in all respects a parliament man until it came to signing the death warrant of Charles I – which he refused to do in his capacity of commissioner to the high court. Despite this William did agree the execution of the king in his role as member of parliament which was sufficient to make him a regicide.

Having disposed of the king William took a back seat in the running of the country but did manage to acquire rather a lot of sequestrated estates during the Commonwealth period.  Unfortunately for Heveningham the monarchy was restored in 1660 and whilst many things were conveniently forgotten regicide was not.  Heveningham surrendered himself, was put on trial and found guilty of treason for his part in Charles I’s death.  The fact that he had not signed the death warrant itself, together with his wife’s determined petitioning saw him being packed off to Windsor Castle where he remained until he died in 1678.

If you want an interesting and unexpected historical fact then it must be that Sir John Heveningham was a trustee of the Paston estate – his wife Bridget was a Paston – as in the fifteenth century letters family- demonstrating the small pool of  landed families in each county that intermarried over the centuries to create a tight knit network or a smouldering keg of interfamilial feuding.

As for William Heveningham, he married in 1650 to Mary Carey the daughter of the Earl of Dover. The earl was John Carey, a son of Henry  Lord Hunsdon – the son of Mary Boleyn…and potentially Henry VIII.

 

https://www.historyofparliamentonline.org/volume/1604-1629/member/heveningham-sir-john-1577-1633