A Fine and Terrible Mystery – Episode 15: Constructing Necessity

This is the 15^th  episode in my investigation of the discordant life of Sir Thomas Malory, author of Le Morte d’Arthur.  Episode 1 can be found here.

By the end of the 13^th century only the rape of virgins was punished by death; for others it was blinding and castration, carried out, at least in one instance according to Christina Hardyment, by the victim herself.  Sir Thomas Malory was accused of two incidents of rape suddenly, and for the first time, in August 1451.  The incidents supposedly occurred twelve months and fifteen months before, involving the same woman, Joan Smyth, wife of Hugh Smyth.  This post addresses the legal context for those accusations.

The word “rape” originally referred to two kinds of seizure:  one preceding sexual violation and the other preceding abduction.  The words “ravish” and “ravishment” were also used for any abduction.  Thus a child might be ravished by her or his parents without sexual connotation.  A common kind of abduction was of a married woman and such charges often included the theft of a husband’s goods.

Traditionally, in the case of sexual assault, a hue and cry was raised as soon as the incident was revealed or discovered, the wronged woman would show evidence:  torn clothing or injuries.  The perpetrator was arrested and the victim would personally “appeal” him in the county court or before the King’s Justices, who might be presiding over a traveling court, or in Westminster.  Married women, lawful concubines, prostitutes, widows, i.e. anyone presumed to have sexual experience, were precluded from personal appeal.  Such a case had to be indicted by a “jury of presentment,” 12 local men who agreed to the truth of the charge.  Perhaps this was intended  to prevent casual or malicious accusations.

Not unexpectedly, since punishment was severe, both appeals and indictments were highly detailed, both in the physical description of the event and the consequent damage or injuries.

In 1275 a new statute, now generally referred to as “Westminster I” was passed, possibly reflecting the influence of the unified canon law “Decretum Gratiani,” (which, for the first time, differentiated between abduction and forced sexual intercourse.)  “Ravishment” was defined as the abduction of a woman by force.   After 40 days, the crime could no longer be appealed by the victim, it had to be indicted by the crown.  Also, it now became a “trespass” punishable by two years’ imprisonment and a fine.

In 1285 a second statute, “Westminster II” amended the law further.  If a woman was abducted with property, but without her consent, the crime was a felony, even if she consented afterwards.  The penalty, (only on prosecution of an indictment, not an appeal) was death or castration.

According to Henry Ansgar Kelly, the renowned scholar of medieval law who surveyed the cases to place Malory’s case in context (“Statutes of Rapes and Alleged Ravishers of Wives:  a Context for the Charges against Thomas Malory, Knight,” Viator, volume 28, 1997, pages 361-419), the law was used for many applications beyond straightforward sexual assault.  For example, it was used by families to force unwilling parties into marriage, by girls attempting to force parents to accept an undesirable marriage through a fait accompli, and by discarded mistresses to force compensation.

In 1382, during the reign of Richard II, a third law was passed.  It’s primary sponsor, Sir Thomas West, was legislating in order to create legal redress for himself:  his own daughter was abducted and married by her preferred suitor instead of the man he’d selected to advance the family’s social position.  Under this new law,

-          - “ravishers and ravished” were “disabled from dower, jointure, inheritance” after the death of their barons or ancestors.”

-          - “barons of such women, if they are married, or their fathers or next of blood if they have no barons living, shall have suit to prosecute.”

-          - No defendant shall be admitted for wager of battle; truth must be tried at inquest.

The most novel aspects, both of which were pertinent to Malory’s case in particular, were that the family of the victim could now personally appeal the crime, not just the victim herself, and the defendant was precluded from trial by wager of battle.  The Commons almost immediately recognized the dangers, describing the law as “too rough and redde” and petitioned for repeal one year later.  It was denied, but the law was almost never applied:  there is only one recorded occurrence, in 1409, before Malory’s case.

Two perverse themes emerge in the three cases I’ve looked at most carefully, including the 1409 case, Nanteglo versus  Vide, Hotoft versus  Alexander et al in 1278, and Witchingham versus Langstrother in 1451.  Women with wealth or good expectations were abducted and held in order to extort money or force them into marriage.  Further,  abductors in such cases would prosecute rescuers or an original betrothed for rape ironically using the law to accomplish what it was originally intended to discourage and punish.

What about Malory’s case?

The details in the indictment and Hugh Smyth’s appeal make it clear that this was not a case of a member of the gentry abusing someone of lesser rank.  Both the amount of the alleged theft and subsequent research shows the Smyths to have had substantial means.

Kelly strongly suspects legal chicanery was used to entrap Malory, “it is possible, even probable, that carnal knowledge was specified in the indictment because Smith and his lawyers (and Buckingham and the other colluding justices) believed that sexual violation was necessary for the offense to be classified as a felony.”  This is consistent with the strategies John  Paston discusses in the context of the Witchingham/Langstrother case.

The lack of mention of physical evidence in the indictment is most telling as is the absence of any testimony from the victim.  Further, the indictment explicitly did not say, as indictments for sexual assault often did, that Malory violated Joan bodily (corporaliter violavit) or forced her against her will (afforciavit contra voluntatem).   Indeed, Hardyment argues that the language of the indictment implies that the “rape” was actually a rescue, though I am less sure.  Nevertheless, Kelly clearly establishes that “the statutory language used by the alleged husband amounted to an admission that his wife had consented to the abduction.”

Indeed, as Shannon McSheffrey and Julia Pope discuss (“Ravishment, Legal Narratives and Chivalric Culture in Fifteenth Century England,” Journal of British Studies 48, October 2009, pages 818-836) legal narratives were often shaped according to statutory definition.  Incidents were embellished or even created for that need;  “truth (was) crafted as much as discovered,” quoting Malcolm Gaskill.  The absence of many of those elements in the Malory indictment is what is most revealing.  Interestingly, McSheffrey and Pope go further, positing  that the legal narratives were highly informed by chivalric literature and romance.

To my mind, one of the saddest aspects of the legal history surrounding rape in the late 14^th and early 15^th centuries is how so much of the legislation is intended to control women’s behavior and bodies through property rights, and as de facto property, which is perhaps partly a consequence of the socially dynamic, politically uncertain and dangerous times.

It’s particularly interesting how the laws were leveraged to construct necessity, the force of which enabled women and men to escape social, economic or familial strictures to be with their preferred mate. 

As is apparent, I am particularly indebted to Christina Hardyment’s illuminating and comprehensive examination of all the issues surrounding the accusations of rape against Malory:  legal, cultural and literary, as well as the work of Henry Ansgar Kelly to which she refers.

Episode 16 can be found here. 
 

A Fine and Terrible Mystery – Episode 14: The Two Accusations of Rape

This is the 14^th  episode in my investigation of the dramatic and difficult life of Sir Thomas Malory, author of Le Morte d’Arthur.  Episode 1 can be found here.

In August of 1451, the first set of specific charges against Sir Thomas Malory were presented in an indictment at a special court convened under the Duke of Buckingham at the Priory of Nuneaton.  Among the most serious were two counts of rape.  The indictment specifically states that on both occasions Malory had sexual relations with Joan Smyth, “felonice rapuit & cum ea carnaliter concubit.”  There is no indication the Malory was present to hear the charges read.

This is one of the most difficult issues in his life to address.  So many have written about it from so many points of view from so many different levels of understanding of the extant evidence of Malory’s life, of medieval law, of culture in 15^th century Warwickshire.  Notable, careful scholars take widely different positions, from complete acceptance of the accusations to insistence upon his innocence.  Then there is the problem that our own perception of the prevalence, severity and consequences of sexual assault in our own time is dynamic.  Is it possible for us to determine what happened almost 600 years ago?  Do we have the information and perspective to do so?

If the evolution of modern media teaches us anything it is that people will judge anyway.  It seems to me, therefore, that it’s incumbent upon anyone addressing the subject to present his or her evidence and reasoning with as much clarity and precision as possible with all pertinent context.

And context is where I want to begin.  My deductions from data in English Medieval Population:  Reconciling Time Series and Cross Sectional Evidence, by Stephen Broadbury, et al., place the population of Warwickshire in 1451 at around 44,000.  Carpenter’s study of Warwickshire landed society, indicates that in 1436 there were 55 gentlemen, 59  esquires and 18 knights residing in the county.  Given the demographic changes she discusses, I would expect that by 1451, the number of gentlemen and esquires to have increased very modestly while the number of knights would have decreased, possibly substantially.  The county itself was heterogeneous with the great proportion of farmland to be found in Feldon to the east and the greatest proportion of forest in the Arden to west.  The largest towns lay, not surprisingly, along the River Avon drainage, i.e. Coventry, Warwick, Leamington, Stratford.  Sir Thomas Malory, was one of relatively few at the top of the lesser gentry.  It is probable that he would have been commonly and easily recognized by many.

29 days after the indictment at Nuneaton, King Henry VI and Queen Margaret arrived in Warwickshire “to judge noble peacebreakers” in Coventry according to the chronicler William Worcester.  Malory’s case wasn’t among those arbitrated; instead on October 5, a writ certiorari was issued, elevating Malory’s case from Warwickshire to the Court of King’s Bench in Westminster.  Hardyment states that the reason for the writ was revealed a week later when Hugh Smyth stood personally before the Court of King’s Bench and appealed Sir Thomas Malory, William Weston, gentleman, late of Fenny Newbold, Adam Brown, weaver of Coventry and Thomas Potter, husband of Bernangle  for the rape of his wife Joan.

The accusation differs from the Nuneaton accusation:  no time(s) or place is specified and on this occasion  Malory is identified as one of four.  According to P. J. C. Field, the appeal again unambiguously states that sexual relations took place.

The Nuneaton indictment, the writ certiorari, and Hugh Smyth’s appeal together are an example of elegant 15^th century legal engineering.  The Nuneaton indictment, emanating as it did from a court, gave the accused no opportunity to appeal his accuser if he weren’t convicted, which would have been the case had the first accusation been a direct appeal by Hugh Smyth or Joan Smyth, whose voice is not present in the record.  The defendant was precluded from seeking ‘trial by combat,’ nor could he sue for damages.  However, the second personal appeal by Smyth meant that in the case of a conviction, Smyth could expect substantial financial compensation personally, both for incident and for the stolen property mentioned in the indictment.  Finally, the writ took jurisdiction from Warwickshire to London, which may have been essential for any hope of conviction.  The date for the hearing was the 20^th of January.

Malory didn’t appear.

Hardyment speculates he may have been in Warkwickshire restructuring the feofees (trustees) of his estates to insulate his property from the damages from a conviction should that come to pass.   Indeed, the Sherriff of Wawickshire who was ordered to “attach” them, i.e. confiscate all their goods and chattels as surety for their appearance, responded that “they had nothing.”  Their arrest was ordered.

Two sheriffs of London, Mathew Philip and Christopher Warton brought Malory to the bar 5 days later to answer the Nuneaton indictment.

Malory declared himself “in no wise guilty.”  Further, “for good or for ill” he put himself “upon his country.”  He was claiming the right to be tried by a jury of his own Warwickshire countrymen.  He was then returned to the custody of the sheriffs and a trial date of 9 February, 1452 was set.

Those are the events.  In subsequent posts I will be examining 15^th century English law pertaining to rape which is surprisingly interesting in its own right, both legally and culturally.  I also want to evaluate what evidence, if any, can be deduced, from Malory’s own writing in the context of the pre-eminent scholar’s opinions and the case of rape against Geoffrey Chaucer.  At that point it will be time to visit the accusations again and evaluate their meaning and veracity.

Episode 15 can be found here.

A Fine and Terrible Mystery Episode 13: Fantastical Duke of Dark Corners

This is the thirteenth episode in my investigation of the strange life of Sir Thomas Malory, author of Le Morte d’Arthur.  Episode 1 can be found here.

They synergize like two planes in a Cubist painting.  Hilary Mantel and Robert Bolt both imagined the lesser known 16^th century figure, Thomas Cromwell, sometimes having him speak with the same dialog derived from historical sources, (such as Roper’s contemporary biography of Sir Thomas More.)  Yet they’re so different.  Cromwell in Mantel’s Wolf Hall and Bringing Up the Bodies is a tough but sympathetic, aspiring rationalist at odds with an intellectually vain and philosophically hypocritical More.  Thomas Cromwell in Bolt’s A Man for All Seasons is an amoral, manipulative bureaucrat willing to send a literal saint to the block to further his ambition.  For the novelist they’re an exquisite lesson in how to direct an audience’s empathy.  For the historian, they’re cautionary evidence demonstrating that even when so much is known, judgments of character remain dangerously subjective.

Sir Humphrey Stafford, Duke of Buckingham was Sir Thomas Malory’s great enemy.  He personally arrested Malory and he led the Nuneaton court of indictment which presented the most serious charges against him.  Who was he?

If you’ve been following this series you know I’m naturally empathetic to Malory, not only because of the suggestions within the sometimes scant and ambiguous biographical evidence but also because of the beauty and cultural importance of his masterwork.  Nevertheless, by inclination and properly schooled by the example above, I also want to study Buckingham with as much empathy as possible.  My goal in the last weeks, as I’ve read everything I could find about him, has been not only to distill a set of representative events in his life but to understand what he cared about, what he loved and hated about himself, what he feared, to understand to what extent necessities drove him and what they were, to appreciate what he accomplished in the hope that a character would emerge which might subsequently lead to fair and perspicacious historical analysis.  The approach is not without precedent:  Ian Mortimer has recommended a similar strategy for understanding and interpreting ambiguous evidence in the life of Edward II.

Carole Rawcliffe, the formidable historian and preeminent biographer of the Staffords, The Staffords, Earls of Stafford and Dukes of Buckingham, might well say I’ve taken on a fool’s errand, she writes in her introduction,  “a balanced history of the Staffords, dealing fully with each of the three Dukes of Buckingham and their finances, cannot now be written.”  Probably.

Nevertheless, she takes a significant step along that path herself and, early on, paraphrasing K. D. McFarlane provides a succinct, important insight about the general character of 15^th century great noblemen, including the Staffords, “…they took a close personal interest in the control and management of their estates… They shared with their contemporaries a consuming  desire ‘to exploit every imagined right, to push every promising advantage to it limit;’ nor were they alone in their insistence upon stringent economies at all levels of expenditure.”  Wealth and status for 15^th century English nobility, whose wealth derived predominantly from land ownership and rents, was a deadly zero sum game:  what you won, another lost.  Many actions and decisions were compelled by necessity and to fall was to fall from a great height indeed as Suffolk’s exile and death showed.

The Stafford line itself begins with Ralph de Tonei, a Norman knight, rewarded for his part of the Duke William’s conquest of England with a grant of more than 100 confiscated manors.  By Sir Humphrey’s time the Stafford’s had diverse holdings throughout England, however, their primary source of revenue were their holdings in the southern Welsh Marches, (the border lands between Wales and England.)  Geography may not determine character, but it certainly affects it.  I recall driving through the Scottish borders a few years ago and found myself thinking that the difficult terrain, the density of hills and glens explained so much of that area’s history.  The gloriously beautiful southern Welsh Marches are not so rugged, but they’re more than wild enough to challenge overlordship by  a family of a different culture.  After very careful financial analysis, Rawcliffe observes that by 1450 Stafford’s real annual income was insufficient to meet his expenses, in spite of careful and possibly natural parsimony, apparent, for example, in his not increasing the compensation of esquires raised to knighthood even though their corresponding expenses were heavier.

He was born in 1402, (making him about the same age as Malory.)  His father died the next year and his mother, the dowager countess and one of the richest women in England, held back a significant portion of his inheritance until her death when he was 36.  In 1421, she fought a protracted legal battle against King Henry V over the apportionment of her aunt Mary of Bohun’s estates the loss of which led to a reapportionment of the inheritance and a great consolidation of their property in the southern Welsh Marches.  Collecting rents there was notoriously difficult, dangerous and unpredictable.  The lengthy case coupled with not being entrusted to fully manage his financial affairs (which would determine so much of his and his family’s success or failure generally) shaped him.  He was in the terrible position of having responsibility but lacking complete authority.

He first saw military service in France at the age of 18.  Later, his dukedom was awarded for several years of loyal service to the crown.  But the financial benefits from his service were never sufficient to offset the structural financial issues inherent in his English estates.  Rawcliffe states that he lacked the qualities necessary for a great statesman or leader and that he was in many ways “an unimaginative and unlikable man.” I’ve personally found very little that would particularly characterize his leadership in France one way or the other.  What does stand out are two events related to Joan of Arc.  Guillaume Manchon, in his deposition reported that someone, probably a cleric, said something positive about Joan and that Stafford, enraged, drew his sword and chased him to a place of sanctuary and would have stabbed him until he was reminded that it was a holy place.  Then there was the incident in the prison tower at Rouen on May 13, 1331 in which Stafford drew on Joan herself.  The two incidents suggest that even as he neared 30, he was impulsive, insecure and possibly superstitious.

In 1438 he was granted the crown manor of Atherstone and he acquired Maxstoke Castle, both in Warwickshire.  It was the same year in which he intimidated Sir William Monfort and his son Sir Baldwin Montfort, forcing Sir William “to sign away all their legal rights to the family estates, hand over any relevant documents and disclaim all knowledge of previous settlements to their advantage.”  It was extortion.  All three incidents indicate Stafford was attempting to move his revenue base east from the Welsh Marches to wealthier and more pacific Warwickshire, possibly seizing on a change in the balance of power.  Richard Beauchamp, the 13^th Earl was still at Rouen and would die the next year to be replaced by his fourteen year-old son.  It was an obvious strategy which easily brought him into conflict with established Warwickshire gentry with close ties to the Beauchamp’s, such as the Malorys.

In 1441 Eleanor Cobham, the ambitious wife of the King’s popular uncle Humphrey, Duke of Gloucester, was tried for necromancy and a speculative plot against the King.  It was a thinly veiled attack on Gloucester himself by the Beaufort party and Stafford was one of three Earls who led the lay Commission.  Six years later, he participated in the arrest of Gloucester and may have been involved in his suspicious death 5 days after.  Stafford thus arranged to be on the winning side of a long standing political quarrel and received Penshurt manor as his share of the spoils.

In the Parliament of 1445, he staged a high stomached fight over ducal pre-eminence.  Henry VI had stated earlier that Harry Beauchamp, the newly made Duke of Warwick would have pre-eminence over Stafford as Duke of Buckingham when he came of age.  The strife between the two parties was so great that Parliament engineered a curious compromise of switching pre-eminence between the two every year.

Interestingly the Paston Letters contain one of Stafford’s personal letters from about this time.  It’s a letter to Viscount Beaumont, whose son married Stafford’s daughter.  The letter explains that Stafford is currently unable to pay the portion of his daughter’s dower currently owed and is otherwise unremarkable.  To my knowledge it’s the only personal correspondence of his that’s survived.

Another Paston Letter provides a careful and visceral contemporary description of what may have been one of the most tragic events in Stafford’s life.  John Norwood writes to Viscount Beaumont that on June 4, 1447 in Coventry during the Corpus Christi mystery plays, Stafford, his son Richard and their company encountered Sir Robert Harcourt and members of his affinity.  The two companies immediately fell “in hands together” (meaning into a brawl) because “of an old debate that was between them.”  Harcourt buffeted Stafford’s head with his sword.  Stafford’s son Richard then went after Harcourt but stumbled and was stabbed in the back by one of Harcourt’s men and subsequently died.  Two of Harcourt’s men were killed in the riot as well.

Returning to the spirit in which I began, you might reasonably ask where are the moments of heroism, the revelations of affection or love or insight?  I’ve looked for them but haven’t found them.

Perhaps that absence is the most important evidence of all.

Sir Humphrey Stafford was one of the richest and powerful men of his time, yet we never see him taking a considered preeminent role in politics or war.  Rather, he consistently chose to act as one of a group.  He didn’t direct the fall of Gloucester, but chose to be a notable participant once he recognized it served his personal interest.  Perhaps his greatest accomplishment was what he achieved in making his fortunes less dependent on the difficult Welsh marches and more on the safer, richer lands of Warwickshire.  On multiple occasions he was high tempered and quick to violence, jealous of his social position.  Later in life he was reputedly cruel to Cecily Neville, Duchess of York, which is consistent with his role in Eleanor Cobham’s trial and his behavior with Joan of Arc, too.  He may well have been a misogynist or at least reacted violently to women who  were less than obsequious, behavior and emotions which may have had their source in his relationship with his mother.

The question of why he persecuted Malory remains.  Nevertheless, his interest in acquiring Warwickshire property is the mostly likely cause of their conflict and Stafford’s sometimes unscrupulous methods for pursuing that interest with others must necessarily call into question any of his judicial actions against Malory.

Episode 14 can be found here.

(The first image is Sir Humphrey Stafford by William Bond.  The second image is a recent photograph of the southern Welsh Marches by the author.)