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“Most Hevynesse and Sorowe”: The Presence of Emotions in the Late Medieval and Early Modern Court of Chancery

Published online by Cambridge University Press:  13 March 2019

Merridee L. Bailey Open the ORCID record for Merridee L. Bailey [Opens in a new window]
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Abstract

Finding emotions in medieval and early modern sources is one of the more difficult challenges currently facing historians. The task of uncovering emotions in legal records is even more fraught. Legal sources were precisely crafted to meet legal requirements and jurisdictional issues. Equally, emotions were not part of the jurisdiction of any court in the late Middle Ages or early modern period and there was no legal interest in eliciting them from litigants. Why then would we begin to think it is possible to find emotions in these legal records? This article invites social and legal historians to begin considering these questions by investigating the emotions in cases brought into the court of Chancery between 1386 and 1558.

Type
Original Article
Information
Law and History Review , Volume 37 , Issue 1 , February 2019 , pp. 1 - 28
Copyright
Copyright © the American Society for Legal History, Inc. 2019 

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Footnotes

She thanks her colleagues who read earlier drafts of this article, in particular Tim Stretton, John Hudson, Elizabeth Papp Kamali, Margaret Pelling, Jeremy Goldberg, Tom Johnson, the late Philippa Maddern, the Oxford Early Career Writers’ Workshop, and the anonymous reviewers for Law and History Review. Each has helped her to refine and develop particular arguments in her work on chancery records. She also thanks Sarah Randles who assisted with transcribing cases. Research for this article was funded by the Australian Research Council Centre of Excellence for the History of Emotions, 1100–1800 (project number CE110001011).

References

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2. The majority of cases examined in this article date between c.1480 and 1540.

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19. On truthfulness in legal records, see Bailey, “Voices in Court.”

20. Davis's discussion of French pardon narratives shows that we do better to reposition our questions to see how legal documents reveal the contemporary representation of the events in question. Davis, Fiction in the Archives. See also Stretton, “Social Historians and the Records of Litigation,”  27–34.

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27. Haskett, Timothy S., “The Medieval English Court of Chancery,”  Law and History Review 14 (1996): 245–313CrossRefGoogle Scholar; and Beattie, “Your Oratrice,”  17–29.

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29. See, for example, McIntosh, Marjorie K., Controlling Misbehaviour in England, 1370–1600 (Cambridge: Cambridge University Press, 1998)CrossRefGoogle Scholar; and Gowing, Domestic Dangers.

30. Although emotional language was not the focus of Butler's work on marital disputes in chancery, several of her examples show emotions in the petitions. For example she writes that: “Reading Margery of Longford's words to the chancellor that ‘she was sore aferd of hyr sayde husbond’…we are given an opportunity to hear the victim's side of the story” (TNA C1/6/318 1424–25). Butler, “The Law as a Weapon,”  296, 311–12, 314.

31. Barbour, W.T., “The History of Contract in Early English Equity,”  in Oxford Studies in Social and Legal History, Vol. IV, ed. Vinogradoff, Paul (Oxford: Clarendon Press, 1914), 163Google Scholar.

32. Simpson, History of the Common Law of Contract, 399–400. Italics in original.

33. Penny Tucker has argued that in the fourteenth century, petitioners made initial oral complaints to the chancellor, but that by the second half of the fifteenth century, this was increasingly done through a written petition or bill of complaint in English. However, this does not explain the number of fourteenth-century written petitions that survive. On the early processes of the court, including taking oral testimony, see Tucker, “Early History”; Haskett, Timothy S., “Conscience, Justice and Authority in Late-Medieval English Court of Chancery,”  in Expectations of the Law in the Middle Ages, ed. Musson, Anthony (Woodbridge: Boydell Press, 2001), 151–63CrossRefGoogle Scholar, at 155, fn 13; Baker, English Legal History, 103. The “Latin” side of chancery dealt with crown property matters and internal decisions within the court; see Haskett, “The Medieval English Court of Chancery,” 248; and Fisher, John H., “Chancery and the Emergence of Standard Witten English in the Fifteenth Century,”  Speculum 52 (1977): 870–99CrossRefGoogle Scholar, at 888. Before the 1530s, no decrees or orders were routinely kept, meaning that it is difficult to know the outcome of a case or how far it progressed. Haskett, “The Medieval English Court of Chancery,”  281.

34. Beilby, Mark, “The Profits of Expertise: The Rise of the Civil Lawyers and Chancery Equity,”  in Profit, Piety and the Professions in Later Medieval England, ed. Hicks, Michael A. (Gloucester: Sutton Publishing, 1990), 72–90Google Scholar, at 78–80. See also Pronay, N., “The Chancellor, the Chancery, and the Council at the End of the Fifteenth Century,”  in British Government and Administration: Studies Presented to S. B. Chrimes, ed. Hearder, Henry and Loyn, H.R. (Cardiff: University of Wales Press, 1974), 87–103Google Scholar (88–9, 93–9); Tucker,  “Early History,”  798–99; and Baker, English Legal History, 105.

35. Cases were selected from the List of Early Chancery Proceedings Preserved in the Public Record Office, 10 vols (London: H.M. Stationery Office, 1901–38)Google Scholar, supplemented by TNA online catalogue. Information in the lists includes petitioner and defendant names, location, date, and subject matter.

36. TNA C 1/1037/39 (1538–44), TNA C 1/245/38 (1500–1501), TNA C 1/908/4 (1533–38).

37. TNA C 1/124/34 (1486–1493, or 1504–1515).

38. TNA C1/819/1 (1533–38).

39. TNA C1/711/36 (1532–38), TNA C1 235/71 (1493–1529).

40. Rosenwein, Barbara H., Emotional Communities in the Early Middle Ages (Ithaca, NY: Cornell University Press, 2006), 26–29Google Scholar. For examples of various word tables in Rosenwein, see 40, 52, and 74. Frevert, Ute, Emotions in History–Lost and Found (Budapest: Central European University Press, 2011)CrossRefGoogle Scholar; and Frevert, Ute, Eitler, Pascal, Scheer, Monique, Hitzer, Bettina, and Schmidt, Anne, Emotional Lexicons, Continuity and Change in the Vocabulary of Feeling 1700–2000 (Oxford: Oxford University Press, 2014)CrossRefGoogle Scholar.

41. TNA, C1/72/66 (1386–1486).

42. TNA, C1/124/34 (1486–93 or 1504–15).

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44. Dolan, True Relations, 120.

45. Klinck, Dennis R., Conscience, Equity and the Court of Chancery in Early Modern England (Farnham: Ashgate, 2010)Google Scholar; Haskett, “The Medieval English Court of Chancery”; and Tucker, “Early History.”

46. A writ of certiorari was a writ from a superior court (in this case chancery) which plaintiffs could request when they believed that they would not receive justice in an inferior court. It could be used to demand that documents and official records be made available.

47. TNA, C1/564/3 (1518–29).

48. Hudson, “Emotions in the Early Common Law,”  135, 151.

49. Karras, Ruth Mazo, From Boys to Men: Formations of Masculinity in Late Medieval Europe (Philadelphia: University of Pennsylvania Press, 2013)Google Scholar, 119, 124; and Hanawalt, Growing Up, 147–49.

50. White, Stephen D., “The Politics of Anger,”  in Anger's Past: The Social Uses of an Emotion in the Middle Ages, ed. Rosenwein, Barbara H. (Ithaca, NY: Cornell University Press, 1998), 127–52Google Scholar; and Hyams, Rancor and Reconciliation, 50–59.

51. “malicyous” is a later insertion.

52. TNA, C1/606/65 (1529–32).

53. My emphasis.

54. “spurned hym,” meaning to kick against or to strike the foot against something.

55. Klinck refers to the need to establish the “remediable impact” of sinful actions and that the nature of either the petitioner or defendant's “outward actions” needed to be established through “actual conduct.” Klinck, Conscience, Equity, 28, 38–39. On the court's correlation with morality, see Dodd, Gwilym, “Reason, Conscience and Equity: Bishops as the King’s Judges in Later Medieval England,” History 99 (2014): 213–40CrossRefGoogle Scholar.

56. Klinck, Conscience, Equity, 38–39.

57. On malice in criminal cases, defamation and tort, see Baker, English Legal History.

58. Chancery did not necessarily deal in cases that were more moral or emotional; for example, it did not deal with homicide, one of the most morally and emotionally charged areas in law.

59. Klinck, Conscience, Equity, 65.

60. Ibid., 39.

61. Ibid., 39.

62. Dodd, “Reason, Conscience and Equity,”  230.

63. Simpson, History of the Common Law of Contract, 399–400.

64. TNA, C1/38/40 (1433–72).

65. TNA, C1/33/20 (1465).

66. TNA, C1/67/167 (1475–85).

67. TNA, C1/61/540 (1480–83).

68. TNA, C1/241/33 (1500–1501).

69. C 1/1037/39 (1538–44). Numerous other examples could have been cited.

70. Crofts focuses on malitiam in medieval homicide cases. Crofts, Penny, Wickedness and Crime: Laws of Homicide and Malice (Abingdon: Routledge, 2013), 85CrossRefGoogle Scholar.

71. See Miner, Robert, Thomas Aquinas on the Passions: A Study of Summa Theologiae, 1a2ae 22–48 (Cambridge: Cambridge University Press, 2009)CrossRefGoogle Scholar; Nussbaum, Martha C., Upheavals of Thought: The Intelligence of Emotions (Cambridge: Cambridge University Press, 2001)CrossRefGoogle Scholar; Bagnoli, Carla, ed., Morality and the Emotions (Oxford: Oxford University Press, 2011)CrossRefGoogle Scholar; and Roberts, Robert C., Emotions in the Moral Life (Cambridge: Cambridge University Press, 2013)CrossRefGoogle Scholar.

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73. John Lydgate, Lydgate's Troy Book, ed. H. Bergen, parts 1–3, Early English Text Society, Extra Series 97, 103, 106 (London: Early English Text Society, 1906, 1906, 1910; repr. as one vol. 1996).

74. The Book of Common Prayer, 1549.

75. “An Excellent Sonnet of the Unfortunate Loves of Hero & Leander,”  Magdalene College, Oxford, Pepys 3.322 (1684–95?), “The Chimney–Men's Grief,” Magdalene College, Oxford, Pepys 4.309 (1689).

76. Macnaire, Mike, “Equity and Conscience,”  Oxford Journal of Legal Studies 27 (2007): 659–81CrossRefGoogle Scholar. On the moral meaning of conscience, see Beilby, “The Profits of Expertise,”  72–90; Baker, English Legal History, 106; and Doe, Fundamental Authority.

77. Klinck, Conscience, Equity, ix, 44–53; and Doe, Fundamental Authority, 3–6. See also Capern, “Emotions, Gender Expectations.”

78. Smail, “Hatred as a Social Institution,”  90–126.

79. Early legal scholars focused on what constituted a felonious crime unrelated to state of mind, and were uneasy with exploring felony's extralegal meaning in other, usually literary and religious, contexts. Kamali, Elizabeth Papp, “Felonia Felonice Facta: Felony and Intentionality in Medieval England,”  Criminal Law and Philosophy 9 (2015): 397–421CrossRefGoogle Scholar, at 401.

80. Kamali, “Felonia Felonice Facta,”  401.

81. See also Butler's work on chancery bills intending to create a story that the chancellor would find “reprehensible.” Butler, “The Law as a Weapon,”  295.

82. Haskett, Timothy S., “The Presentation of Cases in Medieval Chancery Bills,” in Legal History in the Making: Proceedings of the Ninth British Legal History Conference, ed. Gordon, William M. and Fergus, T. D. (London: Hambledon Press, 1991), 11–28Google Scholar.

83. Dodd, Justice and Grace, 283–84.

84. Dodd, Gwilym, “Thomas Paunfield, the ‘heye Court of rightwisnesse’ and the Language of Petitioning in the Fifteenth Century,” in Medieval Petitions: Grace and Grievance, ed. Ormrod, W. Mark, Dodd, Gwilym, and Musson, Anthony (York: York Medieval Press, 2009), 222–40Google Scholar, at 235.

85. Neal, Masculine Self, 47.

86. Ibid.

87. See also Butler on fear in petitions concerning marital disputes; “The Law as a Weapon,”  296.

88. On strategically displaying anger, see Pollock, Linda A., “Anger and the Negotiation of Relationships in Early Modern England,”  Historical Journal 47 (2004): 567–90CrossRefGoogle Scholar, at 574. Butler also cites a case of “fury” in a chancery petition concerned with marital disputes, which echoes the cases I have seen concerning the wrongdoer's fury and irrationality, “that he wolde punysshe his wyff at shi pleasour and the more for his…and then in a greate fury departyd.”  Butler, “The Law as a Weapon,”  314 (TNA C1/287/47, 1504–9).

89. White, “Politics of Anger,” 127–52.

90. On inequitable social relations between petitioners and defendants in early chancery, see Beilby, “Profit, Piety and the Professions,” 77.

91. Dodd, Justice and Grace, 298. My emphasis.

92. On the development of precise English language usage from 1443 onwards, see Haskett, “Country Lawyers,”  15.

93. Bourke, Joanna, “Fear and Anxiety: Writing About Emotion in Modern History,”  History Workshop Journal 55 (2003): 111–33CrossRefGoogle Scholar, at 117, 124. Later she writes that emotions “align people with others within social groups” (125).

94. Dodd has explored the attempts that petitioners made to align details of the case with community values. Dodd, Justice and Grace, 302.

95. Neal, Masculine Self, 7.

96. Scheer, Monique, “Are Emotions a Kind of Practice (And is That What Makes Them Have a History)? A Bourdieuian Approach to Understanding Emotion,”  History and Theory 51 (2012): 193–220CrossRefGoogle Scholar, at 195.

97. Butler, “The Law as a Weapon,”  293.

98. Stretton, “Social Historians and the Records of Litigation.”

99. Klinck, Conscience, Equity, 129–39.

100. See Miner, Thomas Aquinas on the Passions; Nussbaum, Upheavals of Thought; Bagnoli, ed., Morality and the Emotions; and Roberts, Emotions in the Moral Life.

101. Bagnoli, ed., Morality and the Emotions; and Fredrickson, Barbara L., “Gratitude, Like Other Positive Emotions, Broadens and Builds,”  in The Psychology of Gratitude, ed. Emmons, Robert A. and McCullough, Michael E. (Oxford: Oxford University Press, 2004), 145–66Google Scholar.