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The Preconstruction of Witness Testimony: Law and Social Discourse in England before the Reformation

Published online by Cambridge University Press:  06 February 2014

Tom Johnson
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In this article, I address the use of witness testimony by medieval and early-modern historians of England. Although the idea that such evidence straightforwardly represents the thoughts and feelings of quite lowly people has long been discredited, I think that some part of this assumption still haunts the thinking of our postmodern, or cultural turn, historiography. To put it rather too bluntly: the old, empiricist quest for “real voices” in testimonies has to some extent been replaced by a contemporary quest for “real discourses.” That is to say, the utilization of testimonies by historians often seems to boil down to the careful extraction of the particular discourse under examination—gender, class, childhood—from the legal discourses acknowledged to be inherent in witness testimonies produced in law courts. Now, this is a severely reductionist account, and later I will elaborate on the varieties and subtleties of current approaches. Nonetheless, this assumption that we can simply extrapolate social discourses about “x” from the legal discourses of the depositions seems to me somewhat flawed, because it presumes that premodern witnesses were simply conduits of discourse, whose testimony was nonetheless decisively shaped by the machinations of the legal counsel. In fact, as I will argue here, medieval witnesses were quite capable of manipulating such discourses, using clichés to tell the court what they thought it wanted to hear. In the subsequent discussion, I will look in detail at two intimately related cases from the Bishop of London's consistory court to make this point more explicit. First, I will relate the basic facts of these cases: the narrative of the events and the procedure of the courts. I will then address the historiography of witness testimony in greater detail, at the same time demonstrating the way in which the examples from the consistory counter the assumptions of this historiography. I will present different ways of reading my own examples using different positions within the scholarly literature, before showing how the case upsets even the most sophisticated of such readings. Overall, I argue that as well as considering the “construction” of the testimony by lawyers and legal counsels, and the “deconstruction” of such discourses by historians, we must begin to think about the “preconstruction” of the testimony by witnesses; their own integration of legalistic ideas into the fabric of their depositions. Finally, I will conclude by considering some of the wider implications of this argument for the use of witness depositions, and for the study of “law and society” more generally in the medieval and early-modern periods.

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Law and History Review , Volume 32 , Issue 1 , February 2014 , pp. 127 - 147
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Copyright © the American Society for Legal History, Inc. 2014 

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References

1. For the late-medieval ecclesiastical courts of London more generally, see Richard Wunderli, M., London Church Courts and Society on the Eve of the Reformation (Cambridge, MA: The Medieval Academy of America, 1981)Google Scholar.

2. Because of the complex nature of the conceptual issues and the legal cases I am dealing with here, I hope that presenting the historiography and the example in tandem will help, rather than hinder, the attempt to clarify both at once.

3. These depositions are from London Metropolitan Archives (hereafter LMA), DL/C/207, fos. 284r-290v, 300r-v; DL/C/330, fo. 75v. The folio numbers used in references here are from the incorrect foliation in the deposition book itself, which does not keep up with the true number of folios (with fos. 72, 93, and 206 each being featured twice). The meaning and implications of the case being launched “ex officio” will be explored further.

4. He was certainly an armiger, as stated in the preamble to his deposition, and originally from Pembrokeshire: LMA, DL/C/207, fo. 284r. He may have had minor connections to the royal court: a John Stephyns was steward of the castle of Haverfordwest before 1521, and perhaps the same man was later ‘marshal of the King's Hall’. See Owen, Henry, A Calendar of the Public Records Relating to Pembrokeshire, 3 vols. (London: Honourable Society of Cymmrodorion, 1911–1918): 6(1):172Google Scholar.

5. Thomas Stannard was instituted as vicar of Twickenham on June 3, 1522; see Cobbett, Richard Stuteley, Memorials of Twickenham Parochial and Topographical (London: Smith, Elder and Co., 1872), 108Google Scholar. It is also known that he took his B.A. from Oxford in January 1512–13: Alumni Oxonienses: the Members of the University of Oxford, 4 vols. (Oxford: Parker and Co., 1891–92) 1:1405Google Scholar.

6. LMA, DL/C/207, fo. 284r.

7. Ibid., fo. 288v.

8. Ibid., fo. 284r–v.

9. On what little can be said of the medieval history of the priory, see Bate, G. Eglington, Evans, Helen, and Grumbridge, Brian, The 800 Years Story of the Priory and Church of the Holy Trinity, Hounslow (Hounslow: Holy Trinity with St. Paul and St. Mary, 2010), 11–15Google Scholar.

10. LMA, DL/C/207, fo. 288v. This, and all the information about Stoker's journey to Hounslow, relies on the deposition of Richard Richardson.

11. LMA, DL/C/330, fo. 74v.

12. LMA, DL/C/207, fo. 291r.

13. LMA, DL/C/330, fo. 75v. This information is only given in Stannard's testimony.

14. Interestingly, two religious houses were invoked as extraparochial providers of confession. I will not be exploring this connection further, but this does seem to throw interesting light on the “market economy” for the provision of religious services in late-medieval Catholicism.

15. For this and what follows with regard to canon law procedure in consistory courts, see Brundage, James A., Medieval Canon Law (New York: Longman, 1995), 129–34Google Scholar. Three weeks may seem relatively slow, but by the standards of medieval canon law, in which cases could occasionally outlive the parties, it was positively speedy!

16. LMA, DL/C/207, fo. 289r. Grammatically speaking, it should of course be “vicarium.”

17. The distinction is more or less akin to “civil” and “criminal” litigation in secular legal systems.

18. The London church courts were not assiduous about applying the canonical definition of defamation, which was that the defamatory words uttered had to impute a crime that was prosecutable in a secular court to a person of good reputation, and thereby impugn that person's reputation. On this, see Helmholz, Richard H. ed., Select Cases on Defamation to 1600, Publications of the Selden Society 101 (London: Selden Society, 1985): xxi–xxivGoogle Scholar.

19. LMA, DL/C/207, fos. 289r–290v.

20. “…et primo quoad Stoker dicit quod nescit deponere sed quoad Roger hampton dicit ut sequitur…” Ibid., fo. 300r.

21. It is probable that such books existed, as a single Liber assignationum survives for the years 1496–1505; see LMA, DL/C/01. For the change in the scribal hand, see LMA, DL/C/207, fos. 289v–290r. It becomes far messier, with a great many more redactions; it is accompanied by a more general deterioration in the quality of the manuscript.

22. Helmholz, Richard H., The Oxford History of the Laws of England: Volume I. The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford: Oxford University Press, 2004), 519Google Scholar. For cases of refusing to administer the Eucharist in particular, see 517, fn. 201. For cases in which the laity are explicitly named as having brought the case, see 516, fn. 200.

23. The idea that court cases are just one part of a wider strategy of dispute is now widely accepted by sociolegal historians, to the extent that nothing like a full bibliography can be provided here. See, for perhaps its most influential articulation by medievalists, Davies, Wendy and Fouracre, Paul eds., The Settlement of Disputes in Early Medieval Europe, (Cambridge: Cambridge University Press, 1986)Google Scholar. More recent iterations include: Smail, Daniel Lord, The Consumption of Justice: Emotions, Publicity, and Legal Culture in Marseille, 1264–1423 (Ithaca and London: Cornell University Press, 2003)Google Scholar; and Hyams, Paul R., Rancor and Reconciliation in Medieval England (Ithaca and London: Cornell University Press, 2003)Google Scholar. For the roots of the idea in legal anthropology, see Roberts, Simon, “The Study of Dispute: Anthropological Perspectives,” in Disputes and Settlements: Law and Human Relations in the West, ed. Bossy, John (Cambridge: Cambridge University Press, 1983), 1–24Google Scholar.

24. LMA, DL/C/207, fo. 287r.

25. I will give further justifications for this interpretation subsequently.

26. On the deliberate deployment of anger, see Jolliffe, John E. A., Angevin Kingship (London: Adam and Charles Black, 1955)Google Scholar, ch. 4. “Ira et Malevolentia; the articles in Anger's Past: The Social Uses of an Emotion in the Middle Ages, ed. Rosenwein, Barbara (Ithaca, NY: Cornell University Press, 1998)CrossRefGoogle Scholar; and Smail, Daniel Lord, “Hate as a Social Institution in Late-Medieval Society,” Speculum 76 (2001): 90–126Google Scholar. A useful critique of the use of “emotions” by medievalists is Arnold, John H., “Inside and outside the medieval laity: some reflections on the history of emotions,” in European Religious Cultures: Essays Offered to Christopher Brooke on the Occasion of his Eightieth Birthday, ed. Rubin, Miri (London: Institute of Historical Research, 2008): 107–30Google Scholar.

27. Ladurie, Emmanuel Le Roy, Bray, Barbara transl., Montaillou (Harmondsworth: Penguin Books, 1990Google Scholar [first published as Montaillou: village occitan, 1975]). Early-modern analogues are perhaps more popular still: Ginzburg, Carlo, The Cheese and the Worms: The Cosmos of a Sixteenth-Century Miller (Baltimore: The Johns Hopkins University Press, 1992)Google Scholar; and Davis, Natalie Zemon, The Return of Martin Guerre (Cambridge, MA: Harvard University Press, 1983)Google Scholar.

28. Boyle, Leonard E., “Montaillou Revisited: Mentalité and Methodology,” in Pathways to Medieval Peasants, ed. Raftis, J. A. (Toronto: Pontifical Institute of Medieval Studies, 1981), 139, 122Google Scholar.

29. Brundage, James A., The Medieval Origins of the Legal Profession (Chicago: Chicago University Press, 2008), 437Google Scholar; Donahue, Charles Jr., “Female Plaintiffs in Marriage Cases in the Court of York: What Can We Learn from the Numbers?” in Wife and Widow in Medieval England, ed. Walker, Sue Sheridan (Ann Arbor, MI: University of Michigan Press, 1993): 184–85Google Scholar.

30. Even in relatively routine cases accusations of bribery and intimidation crop up. For example, see Stone, Edward D. and Cozens–Hardy, Basil eds., Norwich Consistory Court Depositions, 1499–1512 and 1518–1530, (Norwich: Norfolk Record Society, 10, 1938)Google Scholar, unpaginated, cases 46, 112, 126; Norma Adams and Donahue, Charles Jr. eds., Select Cases from the Ecclesiastical Courts of the Province of Canterbury c. 1200–1301, Publications of the Selden Society 95 (London: Selden Society, 1981): 35–36Google Scholar.

31. Swanson, Robert N., ‘“…et examinatus dicit…”: Oral and Personal History in the Records of English Ecclesiastical Courts,’ in Voices from the Bench: The Narratives of Lesser Folk in Medieval Trials, ed. Goodich, Michael (Basingstoke: Palgrave MacMillan, 2006), 220Google Scholar.

32. LMA, DL/C/207, fo. 287v. The punctuation included here (and in what follows) is my own attempt to make the text clearer to those unfamiliar with premodern vernacular English. I have not changed anything else about the text. I thank one of the anonymous reviewers for this suggestion.

33. Powell, Susan ed., John Mirk's Festial: edited from British Library MS Cotton Claudius A.11, 2 vols., Publications of the Early English Text Society, 334 (Oxford: Early English Text Society, 2009), 1:116Google Scholar. Interestingly, the Speculum Sacerdotale, an early fifteenth century sermon collection, does not mention charity at all in the Easter sermon, emphasizing penance above all. See Weatherly, Edward H. ed., Speculum Sacerdotale, Publications of the Early English Text Society, 200 (London: Early English Text Society, 1935), 117–29Google Scholar.

34. See the famous article by Bossy, John, “The Mass as a Social Institution 1200–1700,” Past and Present, 100 (1983): 29–61Google Scholar; compare with Rubin, Miri, Corpus Christi: The Eucharist in Late Medieval Culture (Cambridge: Cambridge University Press, 1991), 2Google Scholar.

35. For a subtle and lucid critique of the debates over gentry piety, see Rosenthal, Joel T., Margaret Paston's Piety (New York: Palgrave Macmillan, 2010), 6–7Google Scholar.

36. Davis, Natalie Zemon, Fiction in the Archives: Pardon Tales and their Tellers in Sixteenth-Century France (Stanford, CA: Stanford University Press, 1987), 3Google Scholar.

37. For example, Goldberg, Jeremy, “Fiction in the Archives: the York Cause Papers as a Source for Later Medieval Social History,” Continuity and Change 12 (1997): 425–45Google Scholar; Gaskill, Malcolm, “Reporting Murder: Fiction in the Archives in Early Modern England,” Social History 23 (1998): 1–30Google Scholar; and McSheffrey, Shannon, “Detective Fiction in the Archives: Court Records and the Uses of Law in Late Medieval England,” History Workshop Journal 65 (2008): 65–78Google Scholar.

38. For example, Phillips, Kim M., Medieval Maidens: Young Women and Gender in England, 1270–1540 (Manchester and New York: Manchester University Press, 2003)Google Scholar; Beattie, Cordelia, “Single Women, Work, and Family: The Chancery Dispute of Jane Wynde and Margaret Clerk,” in Voices from the Bench, ed. Goodich, 177–202Google Scholar; and Neal, Derek G., The Masculine Self in Late Medieval England (Chicago: University of Chicago Press, 2008), 29Google Scholar.

39. Rosenthal, Joel T., Telling Tales: Sources and Narration in Late Medieval England (University Park, PA: The Pennsylvania State University Press, 2003)Google Scholar, esp. ch. 1 “Proofs of Age: A Rich Fabric of Thin Threads,” 1–62; and Kane, Bronach, “Personal Memory, Collective Testimony and Masculinity in the Late Medieval Church Court of York,” Marginalia 5 (2007)Google Scholarhttp://www.marginalia.co.uk/journal/07trial/ kane.php (July 10, 2013).

40. See the fractious debate started by Pedersen, Frederik, “Demography in the archives: social and geographical factors in fourteenth-century York cause paper marriage litigation,” Continuity and Change 10 (1995): 405–36Google Scholar; Goldberg, “Fiction in the Archives”; and Pedersen, Frederik, “The York Cause Papers: a Reply to Jeremy Goldberg,” Continuity and Change, 12 (1997): 447–55Google Scholar.

41. Ronald C. Finucane, “The Toddler in the Ditch: A Case of Parental Neglect,” in Voices from the Bench, ed. Goodich, 127–48.

42. For a more general, reflective collection on this subject, see History from Crime: Selections from Quaderni Storici, ed. Muir, Edward and Ruggiero, Guido, trans. Gallluci, Margaret A., Curry, Corruda Biazzo, and Galluci, May M. (Baltimore: The Johns Hopkins University Press, 1994)Google Scholar.

43. Goldberg, P. J. P., Communal Discord, Child Abduction, and Rape in the Later Middle Ages (Basingstoke: Palgrave Macmillan, 2008), 33Google Scholar.

44. LMA, DL/C/207, fo. 286r.

45. Wrightson, Keith, “The Decline of Neighbourliness Revisited,” in Local Identities in Late Medieval and Early Modern England, ed. Jones, Norman L. and Woolf, Daniel (Basingstoke: Palgrave Macmillan, 2007), 31Google Scholar. His emphasis.

46. LMA, DL/C/207, fo. 285v.

47. I do not intend to force a tight distinction between these two concepts, for the late-medieval context at least.

48. On excommunication in medieval England, see Logan, F. Donald, Excommunication and the Secular Arm in Medieval England (Toronto: Pontifical Institute of Medieval Studies, 1968), 13–24Google Scholar.

49. LMA, DL/C/B/043/MS9064/7, fo. 24r. Laburne went on to elaborate that as a result of his excommunication, he might as well “have 5 bolas [plums] growyng yn myn arsehole.” I did not want this charming detail to distract from the main point here, but thought it worth noting for posterity (no pun intended). On the commissary court, see fn. 1 above.

50. Mandler, Peter, “The Problem with Cultural History,” Social and Cultural History 1 (2004): 96Google Scholar. See, also, the debate sparked by this article in subsequent issues of the same journal.

51. Goldberg, Communal Discord, 43.

52. Michael Goodich, “Introduction,” in Voices from the Bench, ed. Goodic, 3.

53. This is wonderfully illustrated by Cannon, Christopher, “The Rights of Medieval English Women: Crime and the Issue of Representation,” in Medieval Crime and Social Control, ed. Hanawalt, Barbara A. and Wallace, David (Minneapolis: University of Minnesota Press, 1999), 156–85Google Scholar. He cleverly links the real repression of women at law to the discursive repression of women in legal documents. For a response, see Beattie, “Single Women,” 193.

54. LMA, DL/C/207, fos. 287v, 290v, 291v, 292r, 293r. Each witness expresses this in a slightly different way, but most use some variation on the phrase, “when the parish was served of its rights.”

55. Chapman consistently portrays Stannard as polite, reasonable, and conciliatory to both Stoker and Hampton. Ibid., fos. 288r–v.

56. Ibid., fo. 291v.

57. Ibid., fo. 292r.

58. Ibid., fo. 291v.

59. Ibid., fo. 289r–v.

60. LMA, DL/C/330, fo. 75v. It is perhaps also worth repeating that Stannard's personal responses were taken on the April 20, more than 1 week before the witness depositions.

61. Miri Rubin suggests that the payment of tithes was essential before the sacrament could be received: Corpus Christi, 149. Concomitantly, a post-Reformation case of withheld tithes centred on the vicar's failure to administer divine services; see Helmholz, Canon Law, 465, fn. 121.

62. For this work, see above, fn. 23.

63. LMA, D/L/C/207, f. 292r-v. My emphasis.

64. See above, fn. 60.

65. I am grateful to an anonymous reviewer of an earlier draft of this article, who pointed out that Kyght may have wholeheartedly believed in the conciliatory ethic that he insists on so forcefully. This is an interesting alternative to my slightly more pessimistic interpretation of his motives; as they noted, however, this does not alter the overall interpretation, or the thrust of the argument: Kyght was still doing work of adaptation.

66. For similar cases, see McIntosh, Marjorie Keniston, Controlling Misbehavior in England, 1370–1600 (Cambridge: Cambridge University Press, 1998)Google Scholar, 189, fn. 9; Rubin, Corpus Christi: 149–50; and Duffy, Eamon, The Stripping of the Altars: Traditional Religion in England, 1400–1580 (New Haven and London: Yale University Press, 1992), 92–3Google Scholar. All three see such cases as examples of the importance of charity.

67. For some theoretical observations on this theme, see Benda-Beckmann, Franz von, “On the reproduction of law: Micro and macro in the time-space geography of law,” Begegnung und Konflikt––eine kulturanthropologische Bestandsaufnahme, ed. Fikentscher, Wolfgang (München: Verlag der Bayerischen Akademie der Wissenschaften, 2001), 119–31Google Scholar.

68. Arnold, John H., Inquisition and Power: Catharism and the Confessing Subject (Philadelphia: University of Pennsylvania Press), 7Google Scholar.

69. See above, footnotes 51–2.

70. Goldberg, Communal Discord, 40.

71. The “New Legal History” has proliferated in the last decade. See Hyams, Paul R., “What did Edwardian Villagers Understand by ‘Law’?” in Medieval Society and the Manor Court, ed. Razi, Zvi and Smith, Richard (Oxford: The Clarendon Press, 1996), 69–100Google Scholar; and Musson, Anthony, Medieval Law in Context: The Growth of Legal Consciousness from Magna Carta to the Peasants' Revolt (Manchester: Manchester University Press, 2001)Google Scholar. For the aims of this approach, see Sugerman, David, “Writing ‘Law and Society’ Histories,” The Modern Law Review 55 (1992): 292–308Google Scholar.

72. McSheffrey, Shannon, Marriage, Sex, and Civic Culture in Late Medieval London (Philadelphia: University of Pennsylvania Press, 2006), 13Google Scholar.

73. See fn. 37, “Detective Fiction in the Archives,” 73.

74. Conversely, current trends seem to lean toward a more holistic understanding of “social control” that cuts across jurisdictional boundaries; see the articles in Griffiths, Paul, Fox, Adam, and Hindle, Steve eds., The Experience of Authority in Early Modern England (Basingstoke: Macmillan Press Ltd., 1996)CrossRefGoogle Scholar; and those in Roodenburg, Herman and Spierenburg, Pieter eds., Social Control in Europe Volume 1, 1500–1800 (Columbus, OH: The Ohio State University Press, 2004)Google Scholar.

75. See Wunderli, Church Courts, 42. I think it is fair to say that the “equity” pursued by Chancery has a different set of associations and emerges from a different tradition of legal thought. Ecclesiastical jurisdictions had no monopoly on the discourse of charity and love; see Rawcliffe, Carole, “‘That Kindliness Should be Cherished More, and Discord Driven Out’: the Settlement of Commercial Disputes by Arbitration in Later Medieval England,” in Enterprise and Individuals in Fifteenth-Century England, ed. Kermode, Jennifer (Stroud: Alan Sutton, 1991), 99–117Google Scholar. An arbitration indenture I have found in the Maldon composite book (i.e., an urban legal context) includes the proviso that the two parties “shold be in love and charyte”: Essex Record Office, D/B 3/1/2, 8r.

76. Sexual offences and defamation, for example, made up on average nearly 87% of cases prosecuted in the Commissary Court of London, between 1471 and 1514 (five samples were taken at intervals, based on the evidence available); see Wunderli, Church Courts, 81. Different levels, however, might be found in the higher jurisdiction of the consistory. As well as these cases, ecclesiastical jurisdiction in England also concerned tithes, probate, and breach of faith (for petty debt) as the next three biggest subjects of litigation.