The Chronscast Talks -- the Law and History

[The Judge]

As I hope most members now know, I'm doing some talks relating to the law for the Chrons Official Podcast. As well as legal matters which we need to be aware of when we're writing (eg copyright), I'll also be looking at topics with legal ramifications which we can explore in our stories. Since for many of these I'll be referring to relevant laws in past centuries, it occurred to me a thread here giving very brief summaries and/or links might be of interest to the historically-minded amongst us.

The first of these history-linked talks went out in Episode 2 last week and deals with food and the law: Chronscast Season 1 Episode 2 - Klara And The Sun with Jo Zebedee

Some of the points I touch on:

• sumptuary laws existed for food as well as clothing – laws regulating excess/expense emerged in medieval Europe eg in 1517 to maintain nuances of rank in England when restrictions were imposed on the number of dishes at a meal
• there’s a long history of consumer protection (or, rather perhaps, protection of markets and trade) eg the Babylonian death penalty for watering down beer
• the English legislated with Bread Assizes from the C13th, initially fixing the price of bread, then later also the quality
• medieval guilds ensured quality control among their members eg the Bakers’ Guild ordained penalties for malpractice such as short weight
• ale-tasters of the C15th were among the first English food inspectors
• expensive spices were frequently adulterated and/or counterfeited eg saffron, leading to harsh penalties on the continent, eg offenders buried alive with their fraudulent products
• the 1724 Adulteration of Tea and Coffee Act started the slow process of true consumer protection in Britain
• in 1820 Frederick Accum wrote a treatise on the types of adulteration and how to detect them
• countless Victorian food stuffs were adulterated eg strychnine in rum and beer, leading to deaths, eg in 1858 after humbugs were adulterated with arsenic

Some links which may be of interest:

https://www.engr.psu.edu/mtah/articles/pdf/bread_assizes.pdf – transcripts of some medieval documents about bread with commentary and explanation

https://www.jstor.org/stable/26654178?read-now=1&seq=4#page_scan_tab_contents – a paper on the history of the adulteration of food (it’s necessary to register with jstor to see the whole article, but I think it’s free to do so)

The Bakers Company - History – the history of the Worshipful Company of Bakers and its Court of Halimote

Tudor dining: a guide to food and status in the 16th century – a general article about Tudor food

History of Food Law: The 19th Century | Artisan Food Law – the site deals with food law generally, including a time line, but this page gives detail of the horrific adulterants in Victorian Britain

The fight against food adulteration – a science-based article about Accum and later campaigners

Food Fraud History - Alimenti – a brief note on the humbug case and some modern scandals

 

[Christine Wheelwright]

I wondered if the harsh Babylonian beer watering penalty was health related (beer perhaps being more sanitary than water from the nearest well, due to the brewing process). But on further research it seems that they were simply trying to prevent cheating. The actual law says:

"If a tavern-keeper (feminine) does not accept grain according to gross weight in payment of drink, but takes money, and the price of the drink is less than that of the grain, she shall be convicted and thrown into the water."

I wonder if all tavern keepers were women, or did they think it was ok for men to be cheats?

 

[sknox]

Thanks for doing this!

As I'm sure you know, pretty much every trade has its own history. The legal angle is pretty reliable simply because that's a form of documentation that survives. Much tougher to get at things like techniques of needle makers or suchlike. Anyway, you could do a lifetime of podcasts just going one trade at a time. Some, like clothing, would require multiple episodes.

 

[The Judge]

The fourth episode of the Chrons Official Podcast went up last week, with another of my talks on topics with legal ramifications which we can explore in our stories. This time around I delved into the history of defamation in England. Chronscast Season 1 Episode 4 - Fafhrd & The Gray Mouser in Swords And Deviltry with Stephen Cox

Some points I touch on:

• legal remedies for slander have long roots – Roman law allowed for civil actions, and Germanic tribes allowed for monetary penalties eg three shillings for calling a man a “wolf”, and under Alfred the Great a slanderer might have his tongue cut out
• church courts had jurisdiction over slander where monetary compensation wasn’t sought, with excommunication the ultimate penalty for maliciously imputing a crime, which also covered actions punishable as crimes eg immorality
• defamation cases were a significant part of litigation in the church courts, mostly resolved with public apologies
• “scandalum magnatum” (slandering the magnates) – from 1275 a criminal offence to try to suppress criticism of the king and his court at a time of social unrest; later used by nobles in the civil courts as their political power waned
• Richard II re-enacted the statue against “devisers of false news and of horrible and false lies”
• scandalous newsheets and satires led the Star Chamber to create the offence of criminal libel in 1606, later confirmed by statute, which later still led to the civil offence of libel separate from slander
• “riding Skimmington” would be defamatory of a man, ie the imputation of being beaten by his wife, but for women it’s imputations of unchastity which are litigated
• Wilde -v- Marquess of Queensbury case 1895

The online sources I found were all in the JSTOR online library, which is well worth joining (it's free for a certain number of articles a month):

The History and Theory of the Law of Defamation by Van Vechten Veeder (1904) – a general tour of defamation from Roman times

Canonical Defamation in Medieval England by RH Helmholz (1971) – an examination of ecclesiastical law and how it was applied

Defamation as Political Contest During the Reign of Richard II by Michael Hanrahan (2003) – a detailed look at how defamation was used by opposing parties in London in the turmoil of the 1270s

Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum 1497-1773 by John C Lassiter (1978) – a close look at the civil actions brought by the nobility as their military and political power declined

 

[Montero]

Defamation of Peers: The Rise and Decline of the Action for Scandalum Magnatum 1497-1773 by John C Lassiter (1978) – a close look at the civil actions brought by the nobility as their military and political power declined

So when they were no longer able/allowed to go and beat people up and burn their houses, they had to go to court instead?

 

[sknox]

Being lazy here: Judge, did you run across sources for the Continent? I'm always looking for non-English examples.

I dearly love the phrase slandering the magnates. Very handy tool in times of rebellion, too. Hard to rouse the rabble without slandering a magnate or two!

 

[The Judge]

So when they were no longer able/allowed to go and beat people up and burn their houses, they had to go to court instead?

Reaching for their lawyers instead of their horsewhips! (It's an interesting article, but basically the author notes that as the social and economic barriers between the peers and gentry were being eroded, with what the peers considered to be a consequent lack of respect for their standing, it was a -- perhaps subconscious -- way of trying to reinforce social boundaries and regain some of what they'd lost.)

Being lazy here: Judge, did you run across sources for the Continent? I'm always looking for non-English examples.

No, sorry. I picked up the references to Germanic law from the 1904 article by Van Vechten Veeder, which spoke of the "Leges Barbarorum” with some examples, but I can't now recall whether he gave any sources in the footnotes. The only non-English article I looked at was about Scottish law and that was so different in terms and procedure I was soon lost!

I've just done another search of JSTOR for defamation in Germany, though, and amid a welter of articles which didn't seem relevant, there was Prosecuting Injuries in Early Modern Germany which looks intriguing (to a lawyer, anyway!) It looks like they have access to articles by the Central European History Society of the American Historical Association, so there may well be greater pickings there on a range of subjects.

I dearly love the phrase slandering the magnates. Very handy tool in times of rebellion, too. Hard to rouse the rabble without slandering a magnate or two!

Great phrase, isn't it!

 

[sknox]

Thanks so much for that reference! I still have library access thanks to my emeritus status. I'll be taking a look at that. Early modern Germany is my bailiwick. I got my MA in medieval but the PhD is in early modern. Rather than try to explain the difference to people, I just say medievalist and then see if it goes anywhere. It rarely does!

So, not to go too far afield, but are you (The Judge ... but anyone else feel free to sing along) familiar with the Vehmic Courts? I'm still trying to figure a way to work that into my world of Altearth.

 

[sknox]

I took a brief read of that article. It's interesting and it has a good set of citations for further reading. It's not at all my field, but I'm a sucker for the social history angle on just about any topic, and that's the angle taken by the author.

 

[The Judge]

So, not to go too far afield, but are you (The Judge ... but anyone else feel free to sing along) familiar with the Vehmic Courts? .

Never heard of them. The Wikipedia article makes them sound like a cross between the Freemasons and the secret police -- very unsavoury. Definitely something to try and get into a mainly rural setting, with all the potential for wrongful accusations, hasty secret trials, semi-vigilante executions and then revenge-seeking!

 

[sknox]

There's a short article by du Boulay, "Law Enforcement in Medieval Germany", that will give the flavor of the thing. The first three pages are introductory, in good scholarly tradition, but the rest is all on the courts. Most of the literature, of course, is in German and isn't anything I've explored. I just remember a "use this" light going off when I first read about this.

 

[The Judge]

With the sixth episode of the Chrons Official Podcast which went up last week, I again talked about legal issues which might give extra dimensions to our stories and this time I looked at the law relating to clothing Chroncast Season 1 Episode 6 - House Of Leaves with Ed Wilson

Some of the points I discuss:

• legislation about clothing has a long history – Roman law stipulated the colour of togas/decoration of tunics for specific ranks
• sumptuary laws swept across Europe from C13th as a result of the wealthy middle class aspiring to the luxury of the nobles, thereby threatening social stability
• restrictions were laid down as to types of material, style of dress and decoration which could be worn by different classes eg male servants in Augsberg forbidden to wear silk, velvet headgear, pearls, costly weapons
• English Acts of Apparel from 1363 to 1574 laid down precise rules even within the nobility to preserve gradations of rank
• similar rules were seen across the world eg in China where common folk were forbidden to wear silk
• clothing laws could be used both to reward and to punish behaviour eg the more prisoners an Aztec warrior captured, the more sumptuous the mantle he could wear, but the right to wear expensive cotton could be removed from the nobles
• outcasts could be required to dress differently eg prostitutes having to wear bells on their shawls or hoods in Florence
• the 1215 Lateran Council required Jews and Moslems to wear distinctive clothing to ensure they were not mistaken for Christians while legal reforms in 1829 sought to regulate headgear in the Ottoman empire to unify different faiths within one nation
• 1620 England James I & VI inveighed against women wearing male costume, and in Tudor England cross-dressing was seen as immoral and led to charges in the church courts
• laws still being made today eg as to the burka in Afghanistan and France, but control/social conformity also still exercised without specific legislation eg if seen to be outraging public decency

I found a wealth (ha!) of sources online, the most helpful being:

Sumptuary Laws by Joan Vos MacDonald – an overview of laws at different times and places, giving helpful links to online sources (including to an invaluable extract of The Oxford Handbook of Women and Gender in Medieval Europe edited by Judith M Bennett and Ruth Mazo Karras)

Roman Sumptuary Laws – a basic review of who could wear what

The Sumptuary Laws of Manuscript “Montpelier H119” by Jeffrey S. Widmayer – a JSTOR article with an in-depth analysis of the specific laws 1227-1273 in Montpelier relating to betrothal customs

Tudor Clothes for the Poor – somewhat repetitive but with some interesting detail

Elizabethan Sumptuary Statutes – the text of the English 1574 Act of Apparel

Costume and Control: Aztec Sumptuary Laws by Patricia Anawalt – a JSTOR article which is worth a look simply for the quite wonderful illustrations of Aztec dress!

Chinese Clothing – a general discussion of clothing styles over various dynasties with some illustrations

Gender Trouble and Cross Dressing in Early Modern England by David Cressy – a JSTOR article with an entertaining (and perhaps provocative!) look at the evidence for attitudes to cross-dressing from an historian’s perspective

Clothing Laws, State, and Society in the Ottoman Empire 1720-1829 by Donald Quataert – a JSTOR article which looks closely at the tensions within Ottoman society

In addition I used a book from my own library Dressing Up: Cultural Identity in Renaissance Europe by Ulinka Rublack which is chock-full of illustrations for anyone wanting very in-depth discussion of clothes as markers of identity

 

[sknox]

Deitary law is another good one, though this sometimes is more custom than formal law. But no reason why we can't make it formal in a story. Property law is good. And a criminal code, of course.

At least in fantasy, if law gets mentioned at all, it's almost exclusively criminal, with heavy emphasis on theft and treason. But as The Judge shows, there's so much more!

 

[The Judge]

At least in fantasy, if law gets mentioned at all, it's almost exclusively criminal, with heavy emphasis on theft and treason. But as The Judge shows, there's so much more!

Absolutely! And I find it really strange -- the law touches on all aspects of our lives, but it's largely ignored in fiction. Off the top of my head the only books I can think of where the law is shown (other than where lawyers are main characters) are Lindsey Davis's Falco books about Rome, where she brings up things like marital laws, the heavy carts being restricted as to when they can enter the city, even laws requiring prostitutes to be registered. Little touches like that can add so much atmosphere and depth to worldbuilding.

 

[The Judge]

In the eighth episode of the Chrons Official Podcast here Chronscast Episode 8 - Inish Carraig with Naomi Foyle once again I talked about legal issues which might give extra dimensions to our stories. This time I looked at the law relating to privacy down the ages.

Some of the main points I discuss:

• Privacy law was pretty much non-existent in England prior to 1600 and privacy itself, in the sense of a space of one’s own, was rare for most people eg from the late C17th births in the English royal family had to be witnessed by politicians
• Under Jewish rabbinical law it’s an offence to look into someone’s house; yet under Swedish law peeping and eavesdropping were seen as a moral good, for the apprehension of sinners
• 1361 Justices of the Peace Act created the concept of people being bound over for breach of the peace, possibly used against eg peeping toms (though perhaps more likely voyeurs were dealt with by community justice eg skimmington rides)
• 1604 Semayne’s case set down restrictions as to how and when a sheriff could enter a building; famous for Sir Edward Coke’s aphorism “the house of every one is to him as his castle and fortress” but in practice there remained little protection against the state
• English law allowed for general – ie non-specific – writs for the search and confiscation of smuggled goods and seditious writings notwithstanding repeated lip service to the inviolability of the home eg William Pitt’s speech in 1753
• The use of general writs in America was said to be a contributing factor in the War of Independence, and led to the Fourth Amendment of the US Constitution
• 1849 case brought by the Prince Consort created a civil tort of breach of confidence where there is a prior relationship and duty of good faith
• C19th increase in technology (cameras, newspapers, advertising) created new breaches of privacy leading to calls for legislation – early C20th cases in the US creating rights of privacy over the unauthorised use of images

Anyone interested in privacy will be swamped by the number of learned articles all over the place, but most deal with today's surveillance state and what (if anything) can be done to protect the individual. Historians have leaner pickings, but some sites I found which helped in my research:

History of privacy timeline -- brief notes from the US perspective

History of Privacy by Jan Holvast -- a pdf article which is a somewhat dense read but the section Privacy under Attack has some interesting details of historical cases/incidents including early C20th US cases involving photographs used without consent

EPIC Privacy and Human Rights Report -- a formal report on the current situation, with brief mentions of pre-C20th laws, principally in Europe

Semayne’s case 1604 -- convoluted and detailed, but gives Coke’s aphorism

Early Modern Swedish Law and Privacy: A Legal Right in Embryo by Mia Korpiola -- another pdf and again rather detailed and dense, but some interesting nuggets on how Sweden dealt with privacy

A Man’s House Was Not His Castle: Origins to the Fourth Amendment of the US Constitution by William Cuddihy and B. Carmon Hardy -- an excellent article about how little protection there actually was in English law (this is in the JSTOR archive so requires joining, which is free)

 

[sknox]

Did you find anything that spoke to *why* privacy as a concept--and particularly as a concept identified as being important to ideas about freedom--developed in the first place? I put it in the 19thc, but I can't find a hook to hang it on. It might even be a 20thc development.

I'm also (mildly) curious as to whether this is a peculiarly Western notion.

 

[sknox]

Also, thanks for the reference to skimmington rides. What a lovely phrase!

 

[The Judge]

Did you find anything that spoke to *why* privacy as a concept--and particularly as a concept identified as being important to ideas about freedom--developed in the first place? I put it in the 19thc, but I can't find a hook to hang it on. It might even be a 20thc development.

I'm also (mildly) curious as to whether this is a peculiarly Western notion.

I confess that the "why" didn't interest me, so when I was trawling through the various articles I tended to skip anything of that kind to focus on actual cases and incidents. I did skim some articles about Roman law and the Greeks (eg this one in JSTOR) but didn't get a lot from them.

The difficulty is that "privacy" means different things at different times and in different contexts -- a quote I use in the talk from one scholar is that it now includes “freedom of thought, control over one’s body, solitude in one’s home, control over personal information, freedom from surveillance, protection of one’s reputation, and protection from searches and interrogations.” Of those, I'd argue most are relevant only as the state gets bigger -- or large corporations exist -- and there seems to be a link between the concept of privacy as a legal matter and the growth of technology. So we have rumblings of judge-made law here in England from the early 1600s, then it gathers pace in the 1760s when there is a general revolutionary ferment in the air, but as you say it really only takes off in the C19th and just exploded in the late C20th.

About the only non-Western fact I came across was in the EPIC report which stated:

The recognition of privacy is deeply rooted in history. There is recognition of privacy in the Qur'an and in the sayings of Mohammed. The Bible has numerous references to privacy. Jewish law has long recognized the concept of being free from being watched. There were also protections in classical Greece and ancient China.​

It did give footnotes for those assertions, but it also blithely repeated that "In 1361, the Justices of the Peace Act in England provided for the arrest of peeping toms and eavesdroppers." which I'm convinced -- having spent hours unsuccessfully trying to track down the source and the Act itself in its original form -- is a complete canard. And again, I'm willing to bet that in those cases it's the right to have personal space which is being recognised/protected.

Also, thanks for the reference to skimmington rides. What a lovely phrase!

I love it! For anyone who wants to know more, there's an article here which will be of interest The Skimmington Ride – Montacute House, South Somerset - Exploring Building History -- I knew about the frieze but had completely forgotten where it was located, so when by chance I visited Montacute earlier this year I was delighted to see it for real! (Very crude workmanship compared to, say, the ceiling, but it does have a certain naive vigour about it.)

 

[sknox]

I'm way out of my depth historically, but I'd be willing to at least look at a thesis that contended "privacy" is a modern invention and is largely a political construct in more or less the same stewpot as "rights" and "individualism" and a general anti-government attitude.

That said, though, as counter-evidence I'd point to the development of personal space within the confines of domestic architecture. What gets made private first? Well, the WC, I'd say. Then bedrooms, though it's really more a case of shutting out the unauthorized than of being completely alone. Servants might sleep in the same room, after all.

After that would come workspaces--under the general heading of a study. Reception rooms, where there was an expectation of privacy between the host and the guest. Council chambers were private from early on--I'm thinking of some of the rooms in the Doge's Palace in Venice as an example.

So there were different kinds of privacy needs motivated by different circumstances. All of that might form prelude, but the origins are so different, they don't really go directly to a notion of privacy in the abstract, as it is conceived and presented in modern times.

This stuff interests me not least because I got my PhD in early modern and my MA was in medieval. So I've sort of always been looking at ages in transition (to snag from Walter Ferguson). And from early readings of Marc Bloch I've been very much aware of how words shift about over time, and what that can tell us about societies (his essay on servus is a classic).

History really is the best academic discipline going. <g>

 

[The Judge]

For this month's Chronscast I looked at aspects of the law which appear in the fairy-tale fantasy novel Lud-in-the-Mist Chronscast Episode 9 - Lud In The Mist with Juliet E. McKenna

Some of the issues I found in the novel related to historical issues, a couple of which might be of interest here:

Book-burning by the "hands of the hangman" -- this idea of symbolically executing a book by the common hangman, not simply destroying it in a blaze, arose only in 1634 in England, well after the continent and over a century after the authorities here had first started burning unwelcome writings. The more important sources I found:

• Introduction of Book Burning by the Hangman : History of Information quotes a couple of accessible paragraphs from a much longer and very much more detailed piece by Ariel Hessayon which can be found here Cromohs 2007 - Hessayon - Incendiary texts: book burning in England, c.1640 – c.1660.
• a JSTOR article dealing specifically with Tudor and Jacobean book-burning Book Burning in Tudor and Stuart England on JSTOR

It's amusing to see that the theatrical act of burning seditious writings may well have been counter-productive since it aroused interest in the books rather than dampening it. The JSTOR piece quotes a man complaining in 1641 "The book I could have bought for 14 pence last night, but now a crown cannot buy it” and another chap thought the burning would push the price of the book to 14 shillings and "hasten a new impression"! (For those unused to pre-decimal English currency, there were 12 pence in a shilling, and a crown was five shillings.) And I love the Daniel Defoe quote about having heard a book seller in the 1680s remark that if he wanted a book to sell he would have it “burnt by the hands of the common hangman" -- a pity Twitter storms don't have the same effect nowadays.

Pie Powder Courts (spellings vary!) -- according to Blackstone in his Commentaries on the Laws of England (1768) "The lowest, and at the same time the most expeditious, court of justice known to the law of England" these were set up specifically for the duration of a fair or market to deal with all civil and criminal matters arising out of the event, such as brawls or disputes between traders, and dispensed necessarily speedy justice (to get things over with while the fair lasted), often from the nearest pub!

• Blackstone's remarks are here Public Courts of Common Law And Equity - LONANG Institute (numbered paragraph 1)
• details of the listing of the Hand and Shears in Smithfield gives a paragraph about the court and the pub's involvement in it (though the current building probably saw few, if any, court sessions as the St Bartholomew Fair had declined by the time it was built) Hand and Shears Public House, Non Civil Parish - 1193734 | Historic England