Consanguinity

The word "consanguinity" comes from Latin consanguinitas ["blood relation"], and refers to having a close kinship with someone through a common ancestor. Laws of consanguinity—determining the degree of consanguinity allowed for marriage—varied from time to time and place to place

The early Catholic Church followed Roman civil law, which stated that couples within four degrees of consanguinity were forbidden to wed. This was determined by generations: you would count up the family tree to a common ancestor, and then down to the intended spouse. In the 800s this was changed to seven degrees by the church, and was determined by counting back seven generations. This meant that you could not marry if you had the same grandfather (or grandmother), great-grandfather, g-g-grandfather, etc., back seven generations. You could not marry a cousin, second-cousin, third-cousin, right up to seventh-cousin.

This made finding. spouse increasingly difficult, and dispensations by the church were becoming more and more frequent. The Fourth Lateran Council of 1215 decided to deal with this by pulling back so that fourth cousins could marry at will.

Which brings me to Canon 50 of the Fourth Lateran, where the above change is stated and defended. But here's the funny part. In order to make a change to the rules of consanguinity, the Canon begins by stating that human statutes change over time, and after all God Himself changed things in the New Testament from what had been decreed in the Old Testament. With this reasoning, they state the change in the rules, after which it is stated:

Since therefore the prohibition of conjugal union is restricted to the fourth degree, we wish that it remain so in perpetuum, notwithstanding the decrees already issued relative to this matter either by others or by ourselves [Canon 50]

So...statutes can change, and that's why we can change this one, but it better never change again!

And speaking of laws that have changed, they also made some laws concerning Jews, which we will look at next.

More Danico

I mentioned yesterday that, although Richard and Gunnor had several children, when one of them as an adult and Richard tried to make him Archbishop of Rouen, the church refused because Robert was considered illegitimate until his parents wed in a Christian ceremony. This does not mean that Richard and Gunnor were having children "out of wedlock"; just that their marriage was of a different form, in this case more danico.

The phrase simply means "in the Danish manner" ("Danish" in this case meaning Norse, not just what transpired in Denmark). Germanic culture did not immediately adopt Roman law, but more danico marriages were not the same as modern common law marriage, which requires the couple to start living as and presenting themselves to the community as married. More danico usually involved a powerful male ruler taking a highborn (but lesser) woman and required the consent of the parents. (The consent could be gained later, in the event of, say, an elopement.) It also, we believe, involved a ceremony or ritual of some kind, maybe a simple handfasting. The children of such a union were not considered (in German culture) as illegitimate or non-inheritors. 

More danico also allowed polygyny, the practice of a man to have more than one spouse, or to dismiss a wife with a word in order to take another; she had no say in the "divorce." The Roman Church increasingly discouraged any other ceremony than Christian marriage.

I'll tell you about one of my favorite christian marriage historical facts tomorrow.

John Carpenter's White Book

The Liber Albus or White Book was the first compilation of the laws of the City of London. It was assembled in 1419 by one John Carpenter, the Town Clerk of London, with whom it is so closely identified that a statue of Carpenter in the City of London School for Boys shows him holding the book!

The earliest firm date for Carpenter is 18 December 1378 when he was baptized in Hereford Cathedral. Later information says he was 45 in 1417, when he became Town Clerk of London, which would mean he was born about 1372. Records frequently list him as John Carpenter the younger, to distinguish him from two other men of that name who were active at that time. Oddly (to modern sensibilities), one of the other John Carpenters was his older brother, to whom he left much property when John the younger died in 1442.

The White Book was completed in 1419, the first time all of English Common Law (at least, as it pertained to the City of London) was compiled in a single document. A large part of it is given over to the regulation of the food trade and civic order. One scholar discusses how the document was put together with a specific agenda; Carpenter and the mayor who ordered the work were aiming to establish the City of London as the recipient of "ancient and sacrosanct privilege" not enjoyed by the rest of England. (This may have been partially because the King seized London's real estate in 1392, claiming that the City had been mismanaged.)

The mayor who ordered the work was Richard Whittington, one of the more prominent mayors of that century. If the name sounds vaguely familiar, you may be recalling the English folk tale Dick Whittington and His Cat. Yes, this is that Dick Whittington! And he—if you did not suspect already—deserves his own entry next.

The Oath of Purgation

The post Charlemagne and the Popes mentioned Pope Leo III taking an Oath of Purgation to "prove" his innocence of accusations made against him. It seems strange to a modern audience that simply swearing that you are innocent is enough to exonerate you, but the Middle Ages believed that God who sees the sparrow fall observes your deeds and will treat you accordingly if you lie. Therefore, swearing an oath puts yourself firmly into God's hands for judgment, and no one in his right mind would do that if he were actually guilty.

Detail from The Oath of Leo III by Raphael, 1516

There were two levels of purgation [from Latin purgare "to cleanse" by way of Old French  purgacion]. Vulgar Purgation was the clearing of one's name through ordeals such as trial by fire or water. You can read about those here.

The other form was Canonical Purgation, the act of clearing your name by swearing your innocence in the presence of reliable witnesses who would state their trust in your statement. (The number of witnesses was frequently required to be 12, like the Twelve Apostles.)

The Canonical Oath of Purgation is made with the hand on the Bible:

I, __________, now under process before the Session of the Congregation of C for the sin of _, alleged to have been committed by me: For ending said process, and giving satisfaction to all, do declare, before God and this session, that I am innocent and free of the said sin of charged against me. And I hereby call the great God, the judge and avenger of all falsehood, to be witness, and judge against me in this matter if I be guilty. And this I do by taking his blessed name in my mouth, and swearing by him who is the searcher of the heart, and that in sincerity, according to the truth of the matter and my own innocence, as I shall answer at the great day of judgment, when I stand before him to answer for all that I have done in the flesh, and as I would partake of his glory in heaven after this life is at an end.

These days, we don't allow the accused to declare his innocence without proof. Purgation is still used in minor cases. If charged with contempt of court, for instance, the accused may "purge himself of such contempt, by swearing that in doing the act charged, he did not intend to commit a contempt." [source]

Since Time Immemorial...

[source]

We have heard the phrase "since time immemorial" to refer to an origin of some practice or belief embedded so far back in the past that its validity cannot be questioned. Interestingly, this is not just a vague term, because it has been specifically defined—more than once, as it happens.

William Blackstone, an English jurist (1723-1780) used the phrase "Time whereof the Memory of Man runneth not to the contrary." In England in 1832, this definition was adopted into law. If there was no record or (honest) personal recollection to the contrary, then a law or practice would remain unchallenged.

"Time immemorial" existed prior to 1823 or Blackstone, however.  In 1275, the first Statute of Westminster—a collection of 51 clauses—determined that the time of (let's call it "modern" for its time) memory began on 6 July 1189, the coronation of Richard I Lionhearted of England. Events since then could likely be attested to using the records and memory of people. Any practice that existed prior to that was decreed to be so far back that contesting it was not worthwhile.

So there you have it. If it existed more than 826 years ago, don't bother arguing its validity. (In English law, anyway.)

Foot of Fines

Parchment from 1303 showing the three-part,
Final Concord. [source]

The word "fine" has many meanings, several of them deriving from the Latin finis, "end." With that in mind, one can easily guess that a "fine" in the sense of a payment necessary to end some disagreement is the "end product" of the process.

In fact, late 12th century England is where we find the legal practice of creating a "final concord" (shortened to "fine") entering the legal system. The final concord was an agreement between two parties that started as a way to resolve a dispute, but quickly evolved as a way to create any agreement. Fines were originally written up by the Exchequer (because they usually involved money), but by the end of the 14th century they were being handled by the Court of Common Pleas (partially because they became so popular that the Exchequer could not handle all the business).

The physical structure of the Fine can be seen in the illustration. The details were written out three times on a single parchment, twice alongside and once at the "foot" of the document. The parchment was then cut, separating the three pieces. Each party had one of the parts, and the "foot" was kept by the court. Note the wavy lines with characters written on them: proof that a party held the proper documentation was given by fitting the two (or three) irregularly-cut pieces back together!

Because of the security of having the "Foot of Fines" preserved in the records of the court, later disputes were prevented. This became a popular method for married women to make arrangements for the transfer of property, ensuring proper ownership of her own in the case of her husband's death.

The process was abolished by the Fines and Recoveries Act of 1833.

http://www.medievalgenealogy.org.uk/fines/index.shtml

The Assize of Clarendon

King Henry II of England had problems. The period known as The Anarchy was over, but the mercenaries employed during it were causing trouble in England now that no one was paying them. "Crusades Fever" was rampant, and aristocrats were leaving their lands for years at a time to liberate the Holy Land; when they returned, they might find someone else farming their estates without permission—and no office of land management that kept records as to who was the rightful owner. And, of course, the Church was doing as it pleased regarding the law, exercising sole authority over its clergy rather than allow them to be bound by civil laws.

Henry needed to put some order onto this chaos. We have already seen (later in his reign) the Assize of Arms. The major instrument of establishing new policies was the Assize of Clarendon in 1166. It was an attempt to establish the rule of law based on evidence and analysis rather than Trial by Ordeal, and to rest final authority with the Crown and its representatives.

It made certain that sheriffs kept records of any criminals in their territories, and that sheriffs would notify other sheriffs of criminals that fled in their direction, to be captured and held. A cleric who was found guilty in an ecclesiastical court was stripped of his office and turned over to the civil court. Compurgation was no longer sufficient as a defense in a felony. Sheriffs had to respond to requests by the "itinerant justices" (the "justices in eyre") sent around by the king.

One important innovation that modern law historians make note of is the first part of Clarendon:

1. In the first place the aforesaid king Henry, by thee counsel of all his barons, for the preservation of peace and the observing of justice, has decreed that an inquest shall be made throughout the separate counties, and throughout the separate hundreds, through twelve of the more lawful men of the hundred... [link]

This is seen as the first step to "Trial by Jury" with  jury of twelve of your peers chosen to analyze a case and help pass judgment.

Eyres

An "eyre" (Middle English, from Old French eire from Latin iter, "journey") was "a circuit court held in medieval England by a judge (a justice in eyre) who rode from county to county for that purpose." (New Oxford American Dictionary). The justices in eyre, sent from Westminster to all counties (all but two that is; see below), would hear and rule on crown pleas (criminal offenses), and civil pleas (lawsuits).

Eyres were declared in the Assize of Clarendon in 1166, put in place by the rule-loving Henry II (1133 - 1189)—who wanted to get away from solutions that involved Trial by Combat or Trial by Ordeal—but we have no records of the eyres from that decade. By the end of the century, justices in eyre were required to keep careful records so that sheriffs knew from whom and how much in fines they were supposed to collect. The resulting "eyre rolls" are rolls of parchments stitched together, filled with Latin abbreviations and legal terminology.

Durham and Chester were exempt from the justices in eyre. The king had no jurisdiction there, because they were palatinates, ruled by a local palatine [Latin: "of the palace"], a figure who had jurisdiction that normally belongs to a king. Durham and Chester were under the control of their bishops, and eyres could only be conducted there if a bishop were dead and his successor not yet appointed.

Isabella's Reforms

Queen Isabella of Castile had a reputation for harshness when it came to crime and corruption. A Spanish writer and contemporary, Hernando del Pulgar (1436 - 1492), who became a councillor under Isabella, wrote a series of profiles of political figures and said of her:

She was very inclined to justice, so much so that she was reputed to follow more the path of rigor than that of mercy, and did so to remedy the great corruption of crimes that she found in the kingdom when she succeeded to the throne.*

Her predecessor, her half-brother Henry, was not a careful ruler: big on spending money, not big on maintaining the rule of law (hence the attempts by the nobles to dethrone him, using Isabella as their focus). Isabella had to get tough to restore order to Castile.

Her first reform was to co-opt La Santa Hermandad [The Holy Brotherhood]. The Brotherhood was a  feature of medieval Castile in which local armed men formed vigilante groups to maintain order in the communities. Isabella developed the Brotherhood into a local police force for each territory. They were paid by a new tax. The province of Galicia, known for highway robbery, had 1500 robbers driven out by a special force she sent with the task of cleaning up the area.

She also needed to restore the financial health of the country after Henry's excesses. Henry raised quick cash by selling property at low prices. The decision was made to purchase them back at the same low prices. Estates that Henry gave to others as gifts were taken back without remuneration. Some nobles who wished to regain the property could do so by paying a sum worthy of the property; this helped fill the treasury. She also reduced the number of mints making coins, which reduced rampant inflation.

Her final change was in the area of royal engagement. Isabella and Ferdinand spent some time each Friday allowing citizens to come to them with complaints. This was a form of contact with royalty and royal concern for the constituency previously unknown in Castile.

The year 1492 is, however, the year of events for which history usually thinks of her. Schoolchildren know her for her support of Columbus, and others condemn her for the Alhambra Decree, but she was the best ruler her country had seen in awhile.

*Pulgar, Crónica de los Reyes Católicos, trans. in David A. Boruchoff, "Historiography with License: Isabel, the Catholic Monarch, and the Kingdom of God," Isabel la Católica, Queen of Castile: Critical Essays (New York: Palgrave Macmillan, 2003), p. 242.

Regrating

A medieval market [source]

The post on the laws of Maldon mentioned this:

10. On market day no man shall regrate, nor sell meat, fish or other foodstuffs until the hour of prime, when the bell is rung.

A regrator was someone who purchased goods in a market for re-selling later for the purpose of making a profit.

Regrating made sense for the time: a vendor couldn't or didn't always travel around. A public market was in a fixed place and time of day so that people could find it. But what about those who couldn't make it to the market? A regrator who bought up fresh fish or bread in the morning could be the only source of fish when the fisherman or baker went back home in the afternoon.

Some communities considered this unfair to the merchant (brewer, baker, etc.) who produced the original wares. The Middle Ages therefore had many laws to protect those who brought their wares to market from having their business undermined by others. For example, regrators, when allowed by the town, were forbidden to sell at a higher price than the original price.

The assizes (court) had very strict rules about as well as against regrating. In Oxford, for instance, several regrators were actually licensed. Consider the Oxford culture: half of the town population were students—younger, unsupervised after classes were done, staying up late in the Halls. The demand for late food and drink was strong, and those who took on the job of regrators enabled bakers and brewers and others to enjoy their post-market lives and not be bothered at odd times by university students. (And the town took a fee from the regrator shops.) Remember the tradition of reresoper from this post.

In a world without 24-hour diners and fast-food joints with late-night drive-throughs, regrators could be a "necessary evil."

The Price of a Man (With Details)

King Æthelbert of Kent (c.560-616) was first mentioned here in an explanation of wergild, the price paid by law for a man's death by the killer. This system helped to halt the endless "Hatfield and McCoy" style of revenge killings that could destroy families and tear apart a community.

But was each man worth the same amount? And what were they worth? And what if he wasn't killed, but there was some other transgression that required revenge? Æthelbert had that covered; here are some "items from the menu":

[The bracketed items are my translations of the Anglo-Saxon terms.]

3. If the king drink at any one's home, and any one there do any lyswe [corrupt thing], let him make two-fold bot [compensation].
4. If a freeman steal from the king, let him pay ninefold.
5. If a man slay another in the king's tun [manor], let him make bot with fifty shillings.
6. If any one slay a freeman, fifty shillings to the king, as drihtinbeah [lord's payment].
7. If the king's ambihtsmith [court craftsman], or laadrinc [escort], slay a man, let him pay a half leodgeld [wergild for manslaughter].
8. The king's mundbyrd [protection], fifty shillings.
9. If a freeman steal from a freeman, let him make threefold bot; and let the king have the wite [penalty fee] and all the chattels.
10. If a man lie with the king's maiden, let him pay a bot of fifty shillings.
12. Let the king's fedels [livestock] be paid for with twenty shillings
13. If a man slay another in an earl's tun [earl's/lord's village/manor], let him make bot with twelve shillings.
14. If a man lie with an earl's birele [steward], let him make bot with twelve shillings.
15. A ceorl's [low-class freeman; a churl] mundbyrd, seven shillings.
16. If a man lie with a ceorl's birele, let him make bot with six shillings; with a slave of the second (class), fifty sceatts [coin worth 1/20th of a shilling]; with one of the third, thirty sceatts.
17. If any one be the first to make an inroad into a man's tun, let him make bot with six shillings; let him who follows, with three shillings; after, each, a shilling.
18. If a man furnish weapons to another where there is strife, though no evil be done, let him make bot with six shillings.
19. If wegreaf [highway robbery] be done, let him make bot with six shillings.
20. If the man be slain, let him make bot with twenty shillings.
21. If a man slay another, let him make bot with a half leodgeld of 100 shillings. . . .
31. If a freeman lie with a freeman's wife, let him pay for it with his wergild, and provide another wife with his own money, and bring her to the other.

(...regarding fighting:)

34. If there be an exposure of the bone, let bot be made with three shillings.
35. If there be an injury of the bone, let bot be made with four shillings.
38. If a shoulder be lamed, let bot be made with thirty shillings.
39. If an ear be struck off, let bot be made with twelve shillings.
40. If the other ear hear not, let bot be made with twenty-five shillings.
41. If an ear be pierced, let bot be made with three shillings.
42. If an ear be mutilated, let bot be made with six shillings. 

(...and what I think is my favorite:)

51. For each of the four front teeth, six shillings; for the tooth which stands next to them four shillings; for that which stands next to that, three shillings; and then afterwards, for each a shilling. (See this explained on YouTube.)

It goes on. There are 85 rules of payment in all. You can find them (and more early medieval laws) here.

Regarding the Burning of Heretics

In 1401, during the reign of King Henry IV of England, Parliament passed a law known by the phrase, De heretic comburendo ["Regarding the burning of heretics"]. Heresy was always a concern, going back to Pelagius and Arius, but England had a new threat in the Middle Ages, in the form of John Wycliffe, whose attempts at reforming the church and politics did not sit well with those establishments.

True, by 1401 Wycliffe (c.1324-1384) had been dead for years, but his ideas had inspired a movement called Lollardy, and his plan to bring the word of God into the hands of the masses via his English-language Bible ran the risk (according to Church authorities) of leading the faithful astray by giving them the chance to read Scripture without the proper learning to understand its precise meaning. Something had to be done; something proper and legal—after all, England was a country governed by law, not whim.

Hence the De heretic comburendo, which described the Lollards as:

...divers false and perverse people of a certain new sect...they make and write books, they do wickedly instruct and inform people...and commit subversion of the said catholic faith. [link]

The law states further

...and they the same persons and every one of them, after such sentence promulgate shall receive, and them before the people in an high place cause to be burnt, that such punishment may strike fear into the minds of others, ...

This statute stayed on the books in England until 1677.

Margaret of Sweden

Retrieving an object from boiling water without
suffering burns would prove innocence.

Margaret (or Margareta) Eriksdottir of Sweden (c.1155 - 1209) is only briefly mentioned in the histories of the time, but one incident in her life underscores the flaws of the medieval justice system.

She was the daughter of King Eric IX of Sweden (d.1160) and was married to King Sverre of Norway  (c.1151 - 1202) in 1189. Sverre fell ill and died on 9 March on his return from a military expedition. Margaret returned to Sweden after his funeral, but her daughter, Kristina, was not allowed to return with her. Sverre's successor (King Haakon III, a son from a previous marriage) kept Kristina at his court. This, presumably, caused some hostility between Margaret and Haakon.

Two years later, Margaret decided to return to Norway. Unfortunately for Margaret, Haakon died very shortly after her return, and accusations of poison were made against her.

Margaret invoked Trial by Ordeal* to prove her innocence, and had a man undergo the ritual in her place. Sadly, he was badly burned—not surprising to a modern audience, but proof of guilt to the law court of the time. The man was drowned, and Margaret had to flee for her life back to Sweden.

Haakon died without a son, so Guttorm (a grandson of Sverre) was named king, even though he was only four years old. No one was around to carry a grudge against Margaret, so in 1209 she returned to Norway for the wedding of Kristina to one of the regents for Guttorm. Sadly, she became ill and died a few weeks after the wedding.


*See the post on Trial by Combat.

Statutes of William the Conqueror

William, Duke of Normandy, who won the Battle of Hastings and conquered England, has been brought up many times in this blog. He ruled for 20 years (25 December 1066 - 9 September 1087). In that time, you would imagine that he made many laws. In the best estimate of historians, he probably made ... ten. That is really all the we can be certain of, and here they are:

1. Firstly that, above all things, he wishes one God to lie venerated throughout his whole kingdom, one faith of Christ always to be kept inviolate, peace and security to be observed between the English and the Normans.

2. We decree also that every free man shall affirm by compact and an oath that, within and without England, he desires to be faithful to king William, to preserve with him his lands and his honour with all fidelity, and first to defend him against his enemies.

3. I will, moreover, that all the men whom I have brought with me, or who have come after me, shall be in my peace and quiet. And if one of them shall be slain, the lord of his murderer shall seize him within five days, if he can; but if not, he shall begin to pay to me forty six marks of silver as long as his possessions shall hold out. But when the possessions of the lord of that man are at an end the whole hundred in which the slaying took place shall pay in common what remains.

4. And every Frenchman who, in the time of my relative king Edward, was a sharer in England of the customs of the English, shall pay according to the law of the English what they themselves call onhlote and ascot.[*] This decree has been confirmed in the city of Gloucester.

5. We forbid also that any live cattle be sold or bought for money except within the cities, and this before three faithful witnesses; nor even anything old without a surety and warrant. But if he do otherwise he shall pay, and shall afterwards pay a fine.

6. It was also decreed there that if a Frenchman summon an Englishman for perjury or murder, theft, homicide, or " ran"-as the English call evident rape which can not be denied-the Englishman shall defend himself as he prefers, either through the ordeal of iron, or through wager of battle. But if the Englishman be infirm he shall find another who will do it for him. If one of them shall be vanquished he shall pay a fine of forty shillings to the king. If an Englishman summon a Frenchman, and be unwilling to prove his charge by judgment or by wager of battle, I will, nevertheless, that the Frenchman purge himself by an informal oath.

7. This also I command and will, that all shall hold and keep the law of Edward the king with regard to their lands, and with regard to all their possessions, those provisions being added which I have made for the utility of the English people.

8. Every man who wishes to be considered a freeman shall have a surety, that his surety may hold him and hand him over to justice if he offend in any way. And if any such one escape, his sureties shall see to it that, without making difficulties, they pay what is charged against him, and that they clear themselves of having known of any fraud in the matter of his escape. The hundred and county shall be made to answer as our predecessors decreed. And those that ought of right to come, and are unwilling to appear, shall be summoned once; and if a second time they are unwilling to appear, one ox shall be taken from them and they shall be summoned a third time. And if they do not come the third time, another ox shall be taken: but if they do not come the fourth time there shall be forfeited from the goods of that man who was unwilling to come, the extent of the charge against him—ceapgeld [**]as it is called—and besides this a fine to the king.

9. I forbid any one to sell a man beyond the limits of the country, under penalty of a fine in full to me.

10. I forbid that any one be killed or hung for any fault but his eyes shall be torn out or his testicles cut off. And this command shall not be violated under penalty of a fine in full to me. [source]

[*]The taxes and fees that allow participation in the community
[**]The forfeit of a beast

The First Witch Trial

Well, not exactly. It is the first recorded witch trial. That is, the first whose details are written down, rather than a terse "hanged for being a witch."

The trial began on 29 October 1390, in the Place de Châtelet, a public square in Paris. Two women were accused of magic. Jeanne de Brigue

specialized in recovering lost or stolen items, and her talents had actually been used about six years before her arrest and trial by the priest of a neighboring village. She also cured the sick and made healthy people ill by means of magic. [Witch Beliefs and Witch Trials in the Middle Ages: Documents and Readings, by P. G. Maxwell-Stuart, p.178]

The other woman, Macette, readily confessed everything when she was questioned, including knowledge of how to bring harm to someone.

...capture two toads and put each of them separately into a new clay pot. Then she would have to take them, look at them, call here times upon Lucifer for help, recite three times the Gospel of St. John, Paternoster, and Ave Maria, put [the toads] back in the pot, and keep them under control with a bit of white bread and some breast milk. When she wanted to hurt her husband, ... she called Lucifer to her aid three times above each of the earthenware pots containing the toads before she uncovered them. After that, the recited the Gospel of St. John, and Paternoster, and Ave Maria. Once she had done this,  she opened the earthenware pots and stabbed the toads hard with long needles or small iron spikes, and the person she intended to hurt would suffer the same way the toads suffered, or something similar, and would not be able to rest anywhere, ... . [Ibid.]

Macette and de Brigue were both executed on 19 August 1391.

Happy Halloween.

John Doe & Richard Roe

The term "John Doe" is familiar to just about everyone who knows anything about the North American* legal system. Who are these men, and where did the tradition for these names start?

We find the names being used in legal documents in England as early as the reign of King Edward III (1312-1377). But there is a slightly earlier instance recorded that seems to have escaped the notice of online encyclopediæ. It is the story of the Widow of Tours that is part of the legend of St. Ivo, and it was recorded in the Fordham Law Review by a lawyer who discovered the tale while vacationing in France.

Ivo ... lodged with a certain widow. One day he found his widow-landlady in tears. Her tale was that next day she must go to court to answer to the suit of a traveling merchant who had tricked her. It seemed that two of them, Doe and Roe, lodging with her, had left in her charge a casket of valuables, while they went off on their business, but with the strict injunction that she was to deliver it up again only to the two of them jointly demanding it. That day, Doe had come back, and called for the casket, saying that his partner Roe was detained elsewhere, and she in good faith in his story had delivered the casket to Doe. But then later came Roe demanding it, charging his partner with wronging him, and holding the widow responsible for delivering up the casket to Doe contrary to the terms of their directions. And if she had to pay for those valuables it would ruin her. "Have no fear," said young Ivo, "You should indeed have waited for the two men to appear together. But I will go to court tomorrow, for you, and will save you from ruin." So when the case was called before the Judge, and the merchant Roe charged the widow with breach of faith, "Not so," pleaded Ivo, "My client need not yet make answer to this claim. The plaintiff has not proved his case. The terms of the bailment were that the casket should be demanded by the two merchants coming together. But here is only one of them making the demand. Where is the other? Let the plaintiff produce his partner!" The judge promptly approved his plea. Whereupon the merchant, required to produce his fellow, turned pale, fell a-trembling, and would have retired. But the judge, suspecting something from his plight, ordered him to be arrested and questioned; the other merchant was also traced and brought in, and the casket was recovered; which, when opened, was found to contain nothing but old junk. In short, the two rascals had conspired to plant the casket with the widow, and then to coerce her to pay them the value of the alleged contents. Thus the young advocate saved the widow from ruin.
[John H. Wigmore, "St. Ives, Patron Saint of Lawyers" in Fordham Law Review, 1936]

Wigmore does not say in his article whether this was the origin of the names John Doe and Richard Roe. If the tale was in fact part of the life of the young Ivo, who died prior to the examples found in English court documents (as opposed to being tied to his reputation for cleverness and helpfulness by later generations), then it is either a possible origin for the names, or an example of usage that exists prior to the examples usually noted.

Or it is just a nice story.

*"John Doe" is used in the USA and Canada; the United Kingdom, New Zealand and Australia use "Joe Bloggs." To be fair, there are numerous other names for "typical" or "anonymous" individuals, in English-speaking countries and others.

The Patron Saint of Lawyers

Everyone has an intercessor in Heaven, even lawyers.

Ivo of Kermartin (17 October 1253-19 May 1303) was born in Louannec, in Brittany. He studied civil law at the University of Paris, mingling with students such as Roger Bacon and Duns Scotus. He stood out from the crowd by abstaining from meat and wine, fasting with bread and water during Lent and Advent, and sleeping with a stone or book as a pillow. He also studied and prayed and helped the sick while his fellow students were having fun. In 1277 he went to study canon law in Orléans before returning to Brittany as a judge.

He gained a reputation for being a strong "advocate for the poor," helping to pay court expenses for those with little means and representing those in need before other judges. Butler's Lives of the Saints says of him:

Once, not being able to reconcile a mother and a son who pleaded violently against each other, he went and offered up mass for them, and they immediately came to an agreement together. He never took a fee, but pleaded all causes without any gratuity.

He also studied Scripture and was ordained to the priesthood in 1284. His presence in their dioceses was desired by several bishops.

He always rose at midnight to matins, and said every day mass with incredible devotion and fervour. In his preparation he continued long prostrate, quite absorbed in the consideration of the abyss of his own nothingness, and of the awful majesty of him to whom he was going to offer sacrifice, and the sanctity of the victim. [Butler]

He also used his own funds to build a hospital. He was canonized in 1347 by Pope Clement VI. Besides attorneys, widows and orphans, he has been named the patron saint of "abandoned people," bailiffs, Brittany, canon lawyers, judges, and notaries.

David Griffith and the Ultimate Torture

We have discussed the ultimate torture—to be Hanged, Drawn, and Quartered—here and here. Now let us take a brief look at the man whose crimes against the king were considered so heinous that this punishment was created for him.

Dafydd ap Gruffydd (1238-3 October 1282) was Prince of Gwynedd and the grandson of Llewelyn the Great, who ruled all of Wales and was on such good terms with King John that he married John's daughter. Unfortunately for Llewelyn's descendants, the kings of England did not get along well with the rulers of Wales. It did not help that the rulers of Wales had difficulties with challenges from their own subjects, either.

In 1255, Dafydd and his brother Owain challenged their older brother, Llewelyn (named for their grandfather). In a battle that lasted about an hour, Llewelyn defeated his younger brothers and had them imprisoned. Although Owain stayed in prison until his death in 1282, Dafydd was soon released (perhaps his youth was considered a mitigating circumstance).

But Dafydd did not learn his lesson. In 1263 he joined King Henry III (most recently mentioned here) in attacking his brother again. Despite the differences between England and Wales, Henry in 1267 acknowledged Llewelyn as the rightful Prince of Wales. Once again, Dafydd was reconciled with his older brother.

Not yet having learned his lesson, however, Dafydd (and other minor Welsh nobles) joined with the newly crowned King Edward I (whose long career would give him plenty of experience with traitors) in 1274 to try to conquer Wales again. This conflict resulted in the Treaty of Aberconwy, which agreed that Llewelyn (hereafter called "Llewelyn the Last") would rule, but with his death Wales would become subject to England. Prior to his death, his rule was limited to lands west of the River Conwy; the Welsh lands east of the Conwy (about 25% of the size of Llewelyn's) were put in the hands of King Edward's new friend and ally, Dafydd ap Gruffydd! Again, in the spirit of treaty-making, Dafydd was restored to friendly relations with his brother.

Dafydd's grasp of reality was scant, however, and he apparently did not realize how much of his "success" he owed to the generosity of Edward, rather than to his own political and military skill. Edward started a massive fortress-building campaign along the Welsh border, and started establishing English presence within the borders. By the spring of 1282, the discontented Welsh were assembled by Dafydd and attacked Hawarden Castle during Easter Week, beginning the final military conflict between the two countries. Llewelyn felt obligated to support his fellow Welsh in their misguided endeavor. In December of 1282, Llewelyn was killed.

Dafydd had been captured in June 1282. Edward wanted a particularly significant way to make Dafydd suffer and to make of him an example for those who might turn against the king that they had once supported. He summoned Parliament to try Dafydd for high treason, the first official case of this crime. Dafydd ap Gruffydd became the first known person of prominence to suffer the following fate:

He was tied to a horse's tail and dragged through the streets to the place where he was hanged. His body was cut down before death was certain; he was revived, then he was cut open and his entrails pulled out and set afire so that he could see it all happening.* His body was then cut into 4 pieces, the parts going to different parts of the kingdom to be put on display. The person given the task of seeing all this done, Geoffrey of Shrewsbury, was paid 20 shillings for the job.

The execution took place on 3 October 1283.


*Supposedly, the extra-vicious nature of the punishment was recompense for having started the revolt during Easter week.

Trial by Combat

The dueling area was typically
60 feet square.

One of the things "everyone knows" about the Middle Ages is the idea of Trial by Combat: the act of fighting to determine who is right in a dispute. It was a custom followed primarily by Germanic culture; it was later brought to Great Britain.* It was recognized as a valid part of German tribal law as far back as the early 8th century in the Lex Alamannorum [Latin: "Law of the Alemanni"; the Alemanni were a Germanic tribe on the Upper Rhine].

The Fourth Lateran Council of 1215, in an effort to tamp down this sanctioned violence, tried to ban Trial by Combat in favor of Trial by Jury. "Judicial duels"—that is, a fight sanctioned by the local legal system—were too unpredictable a measure of justice. German countries kept up the practice, however. The 15th century fencing master, Hans Talhoffer, detailed the ways in which judicial duels could be carried out, and listed seven offenses that merited such a trial: murder, treason, desertion of your lord, unlawful captivity, heresy, perjury, rape.

Commoners were required to take their dispute to court first in order to have Trial by Combat sanctioned by the local legal system. Nobility, however, could take it upon themselves to duel over a dispute, leading to the "gentleman's duel" of later years. The combatants would each bring a "second" to help arrange the particulars, everything from the location to making sure the horses are saddled properly. Sometimes these seconds would meet separately to discuss a more peaceful solution that the combatants could not discus face to face due to their pride.

The combatants had some duties, too, besides fighting. They would attend (separate) church services prior to combat, and make a donation to the church. They had to be ready to begin the combat by noon, and it had to be concluded by sundown.

The last official judicial duel is unknown, but we know that King Charles I of England intervened to prevent a couple, one in 1631 and one in 1638. In 1818, Abraham Thornton, already acquitted of the murder and rape of Mary Ashford, had an accusation brought by Mary's brother, William. Thornton claimed the right to Trial by Combat; the court decided that he was justified, since the "evidence" for his guilt was circumstantial and disputable, and because Parliament had never removed the right to Trial by Combat from the books. Ashford backed down. The following year, Parliament abolished Trial by Combat.

*It is not to be confused with Trial by Ordeal which involved causing an accused to suffer some ordeal that would "prove" his guilt or innocence.

The Limits of Canon Law

Since I've been looking into canon law lately (here and here), I thought I would share an interesting facet of Medieval era canon law: its self-imposed limits.

Although canon law borrowed a great deal from the jurists and civil law decisions of the Classical Era, it was grounded in church teachings. Therefore, from early jurists up until at least 1200, it was agreed that canon law did not apply to non-Christians. The rules of consanguinity adhered to by the church, for instance, forbidding the marriage of those who were related too closely by blood or legal ties (such as in-laws), did not apply to Jews or pagans. Nor was it legal for Jews or pagans to be made to tithe or be baptized against their will.

Of course, Christianity's goal was to spread the Gospel and convert the world, so it would be only a matter of time (it was thought) before canon law would apply to everyone. (The second post ever on DailyMedieval was about the Domus Conversorum, established in 1232 in England by Henry III to provide a home and daily stipend for Jews who wished to convert to Christianity, making their decision an easy one.)

Christianity ran into an unexpected obstacle to its ultimate goal, however, especially during the era of the Crusades. Whereas Jews were found in small and non-violent communities, Muslims were far more numerous and warlike; moreover, they were on their own mission to convert the world. This led—outside of the Crusades themselves—to border skirmishes where newly acquired Middle East Christian territories brushed up against Muslim lands.

The debate that followed will be looked at in the next post.