By Sara M. Butler; posted 21 February 2020.
A recent article in the Journal of Legal History by Gwen Seabourne addresses one of the more unusual requirements of medieval law. If a widower hoped to remain on the land brought into marriage by his dead wife, his claim rested on having fathered a live and legitimate child by her. Even if the child immediately died, its short life was sufficient to grant a widower an interest in his wife’s land for the remainder of his life. What is most remarkable, though, is the nature of the evidence required for proof of life: a crying test. A Year Book from the late thirteenth century spells out the condition: “[I]n order that the husband may hold the inheritance of his wife by the curtesy of England by reason of issue between them, it is necessary that the issue be heard to cry or squall within the four [walls].” Certainly, to most readers, I suspect that a crying test sounds like a roundabout route of proving life: what about testimony from the midwife? Or a physician? Yet as Prof. Seabourne explains, “it fits in with the general importance of sound in medieval common law, with its oral tradition, its hue and cry, its cries and proclamations to announce statutes, legal processes and judicial sessions.”
Since reading this article, my mind keeps circling back to the role of sound in medieval law. Let’s face it, today we think of law primarily in terms of written documents:
legislation, commentary and interpretation, citations, case law, written contracts, textbooks. And when it comes to criminal law, while TV lawyers may spend much of their time arguing cases, in reality we all know that the pervasiveness of plea bargains keeps most lawyers out of the courtroom. In reality, there are few Perry Masons or Jack McCoys. None of this is reminiscent of the medieval common law, which was in fact a rather noisy affair. To add to Seabourne’s list above: summons and exactions; fama; presentments; testimony extracted from witnesses who swore to tell the truth regarding only what they had seen or heard; pleading at bar; oaths; statutes recited from memory; the oral debates of justices and pleaders; compurgation; confession; jurors declaring a verdict; judges pronouncing sentences. When a suspected felon chose to place his trust in jury trial, as Bracton writes, he “puts himself for good and ill upon the words of [the jurors’] mouths.” A defendant must plead for himself and he must do so orally because “only words from his mouth were authentic.”
Common law itself was unwritten; it was the responsibility of judges and pleaders to administer it from memory (eventually also with assistance from legal treatises and pocket statute books). Contracts were chiefly oral in nature well into the early modern era, despite the existence of an entire corpus of written legal devices. I’ve often thought that resistance to the use of written evidence is demonstrated best in proofs of age: rather than devise a written document commemorating an heir’s birth (such as a birth certificate), they relied instead on the oral testimony of neighbors to prove an heir’s coming of age. Even with the proliferation of writing, over time speech only increased in importance. Legal authorities of the later Middle Ages saw the need to protect the authenticity of speech by criminalizing inappropriate uses of it, such as scolding, gossiping, cursing, false appeals, taking false oaths, blaspheming, defaming, perjuring, spreading false rumors, engaging in treasonable speech, and speaking heresy.
With so much emphasis on the orality of the law, I can’t help but wonder: what if you couldn’t hear the law? Or speak the law? Were you still permitted to participate in the law?
Michael Clanchy, who as far as I can figure out is the only legal historian who has addressed this matter in the slightest bit, says the answer is no: “One consequence of the litigant having to speak for himself was that the deaf and dumb seem to have had no legal rights in thirteenth-century England.” His assertion relies on two cases:
The first is a 1210 property dispute initiated by William of Whitwell, his wife Clarice, and her sister Alice, against William of Skeyton, whom the sisters claim had unlawfully seized land that rightfully belonged to them through an inheritance. Clearly trying to eliminate his competition, the defendant raised the objection that Alice should not be represented at court by the plaintiffs’ attorney because she was “mute” (muta) and thus could not voice her assent. William and Clarice immediately leapt to her defense, asking the judge whether she must lose her rights simply because she cannot speak; but the judge sided with the defendant.
The second case also saw concerns raised about an attorney. Knights sent to speak to William Maufre to ask who he might wish to represent him as attorney during his illness discovered that he was paralyzed and thus could not speak well (est paralisi ita quod non potest loqui bene). As far as he could, though, he asked that his son Reginald act as attorney. The court refused to admit him.
When we look to Bracton, the thirteenth-century foundational legal treatise, we discover an equally dreary picture. Land acquisition is out because a man who is deaf and mute “cannot consent, because he is completely unable to hear the words of the stipulator, and since he cannot hear or speak at all, he cannot express his will and consent either by words or signs,” thus he cannot legally acquire land. Nor can he enter into a contract “since he cannot speak or utter the words appropriate.”
Bracton’s positioning does offer some wiggle room. He clarifies that his concern is chiefly with those who are born “naturally deaf and dumb.” For those who are hard of hearing, who can communicate by signs or a nod, providing they are entering into an agreement with someone who is content with signs or a nod, all is well. And for those suffering from temporary deafness or muteness because of an accident, Bracton mandated a waiting period to see whether he might recover.
The Year Books include an example of a case in which a man who could not speak was permitted to wage his law. It was a 1344 civil suit based on a writ of praecipe quod reddat, directing the defendant to restore the possession of land in a case of common recovery. We are told that the defendant had previously waged his law by signs (par signes) when accused of non-summons, and he continued to make his law by signs. He listened while the words were recited to him then placed his hand on the book, kissed it, and performed the law without speaking (sans parol par formy la Ley). What is useful about this example is that it was printed in the Year Books – books designed to teach aspiring lawyers about the law, and thus they had the opportunity to think about what they would do in the same situation before it had the chance to arise.
When it comes to criminal law, the court’s emphasis on hearing a defendant’s plea directly from his own lips meant that justices were not sure exactly what they should do when an accused felon could not speak or hear. A Year Book case from 1352 centered on a man both deaf and mute indicted of homicide led to a courtroom debate on the subject. One of the justices present explained that the defendant should be treated like a madman: he should be sent to prison to stay until he regains his health. Another argued that since he couldn’t be punished, he should be remanded to prison, but he did not stipulate for how long. One suspects that he stayed in prison until someone took pity on him. A letter recorded in the Calendar of Patent Rolls for 1297 explains that this is exactly what happened to John son of John Legat, born deaf and mute, and indicted for the homicide of Robert de Turbervill. Because his disability prevented him from pleading, the king eventually pardoned him for his crime so that he might be permitted to leave prison. It is striking that even by the time of William Blackstone (d. 1780), the issue was not resolved. In his Commentaries, he explains that if the defendant was mute ex visitatione Dei (by visitation of God), justices should interpret his silence as a plea of not guilty and proceed to trial. “But whether a judgment of death can be given against such a prisoner, who hath never pleaded, and can say nothing in arrest of judgment, is a point yet undetermined.”
What the records can confirm is that no one appreciated when a swindler pretended to be deaf or mute. A 1380 trial at the municipal court of London clarifies just how medieval justice dealt with those who impersonated the disabled. John Warde of York and Richard Lynham of Somerset were brought before the mayor, aldermen and sheriffs in their guildhall as imposters. Despite being “stout enough to work for their food and raiment” and having full ability of speech, they pretended to be mutes, “deprived of their tongues” and went about carrying in their hands a hook, some pincers, and a piece of leather shaped like a tongue, edged with silver and with writing around it saying “This is the tongue of John Warde.” Their cover story was that they were traders who had been plundered by robbers and lost all their goods. In the process, the robbers had removed their tongues, drawing them out with the hook and using the pincers to sever them. To prove their disability, they made “a horrible noise, like unto a roaring, and opening their mouths; where it seemed to all who examined the same, that their tongues had been cut off.” The court deemed their actions to be manifestly fraudulent; their performance had also deprived legitimately poor and infirm persons from their rightful alms. The judges sentenced them to three successive days of one-hour visits to the pillory, with the tools of their deception hung around their necks, accompanied by a public proclamation of their crime. Afterward, the sheriff was to transport them to Newgate prison, there to remain indefinitely.
Main Image: Depiction of Panotti from the Nuremburg Chronicle (1493). Public Domain. Wikipedia.
“Healing of a Deaf-mute,” Ottheinrich-Bibel, Bayerische Staatsbibliothek (1425-30). Public Domain. Wikimedia Commons.
Peter Bruegel the Elder, “The Cripples,” Louvre Museum (1568). Public Domain. Wikimedia Commons.
 A.J. Horwood, ed., Year Books of the Reign of Edward I: Years XX and XXI(1292–1293) (Rolls Series no.31, part A, vol.1, 1866), 38-41; David J. Seipp, “Seipp’s Abridgement,” (Seipp 1292.088rs).
 Gwen Seabourne, “‘It is necessary that the issue be heard to cry or squall within the four [walls]’: Qualifying for Tenancy by the Curtesy of England in the Reign of Edward I,” Journal of Legal History 40, no. 1 (2019): 44-68.
 Henri de Bracton, De Legibus et Consuetudinibus Angliae, ed. George Woodbine and Samuel E. Thorne, 4 vols. (Selden Society, 1968-1976), vol. 2, 405.
 Michael T. Clanchy, From Memory to Written Record: England 1066-1307, 3rd edn. (Malden: Wiley-Blackwell, 2012), 270.
 Clanchy, From Memory to Written Record, 276.
 C.T. Flower, ed., Curia Regis Rolls, 14 vols (London: HMSO, 1922-72), vol. 6, 13.
 Flower, ed., Curia Regis Rolls, vol. 11, 557.
 Henri de Bracton, De Legibus et Consuetudinibus Angliae, ed. George Woodbine, ed. and trans. Samuel E. Thorne, 4 vols (Selden Society, 1968-76), vol. 4, 309.
 Bracton, De Legibus, vol. 2, 286
 Bracton, De Legibus, vol. 2, 286; Bracton, De Legibus, vol. 4, 178.
 Bracton, De Legibus, vol. 4, 339.
 Year Book, Mich.,1344 (Seipp 1344.226rs).
 Year Book, 1352 (Seipp 1352.091ass).
 Calendar of Patent Rolls, Edward I, vol. 3 (1292-1301), 250.
 William Blackstone, Commentaries on the Laws of England, 4 vols. (London: A. Strahan, 1825), vol. 4, ch. 25.
 Henry T. Riley, ed., Memorials of London and London Life: in the Thirteenth, Fourteenth, and Fifteenth Centuries (London: Longmans, Green, 1868), 438-447.
There is an Inns of Court reading which says that a person who could not speak could still claim benefit of clergy by writing Latin, rather than reading it aloud (Kebell’s reading in the Inner Temple in the 1470s, printed in Baker, The Law’s Two Bodies, p.132).
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