Bonbon:
What’s the Question?
8 July 2015
A friend has sent me a recent law review article on the subject of same-sex marriage. My friend, who is married to another man, with whom he is the father of two children, tells me that many of his gay friends find the article offensive, although he does not. I look forward to reading it this weekend. I really do, too, because the very first footnote, which I couldn’t help glancing at, mentions the old Consistory Court, an English body that dates back to the Middle Ages, when the church (later the Church of England) had its own court system, and was deferred to by the civil courts in the determination of essentially ecclesiastical matters.
Just seeing the word got my fountain of youth burbling. A long time ago and far away, I spent a good part of my days with folios dating from the end of the Seventeenth Century, and smaller books even older than that, in my study of the medieval handling of the question of bastardy.
All my materials are somewhere in storage, so I can’t quote from the old books (lucky you), which were written in Law French anyway. Every so often, it is pleasant to think how very, very, very different legal practices were in the days of Edward II (1307-1327) — and yet perfectly recognizable as English.
Given that land was the most valuable thing under the sun, most lawsuits contested the ownership of real estate; and since real estate was owned by rich people, property law was complicated. We’re not going to go into that, though; we’re simply going to consider the report of a case. You probably won’t be surprised to find that it is not headed, Smith v Jones. What you might find surprising is that the report ends without telling you who won, Smith or Jones. It is not that the outcome of the case was of no earthly interest to the lawyers, but simply that the outcome was determined by the pleadings — which you can read in the report.
The report is in fact nothing but a dialogue between various named persons. Over time, the student of these materials learns which persons are the lawyers and which the judges. (Over time, some lawyers become judges — it’s practically Rumpole.) The dialogue is an argument that constitutes the pleadings. Now, pleadings in today’s world are thickish documents full of the allegations stating the grounds for a lawsuit. They will be proved or disproved at trial. In the old days, pleadings were an argument about how to frame a question. In medieval practice, this question, which would be asked of a jury (what we today call witnesses), pretty much determined how the actual trial would be run, and sometimes where. The lawyers, arguing in Westminster Hall at the beginning of the proceedings, tried to get one another to slip up and say something that would settle the question to be asked. Contentions about bastards provide an illuminating example.
The common law of England and the teachings of the Church differed on the matter of bastardy. Originally, Christian leaders did not acknowledge the stain of bastardy at all, which certainly does seem to be a “Christian” way of refusing to judge children by the sins of their parents. But in the Eleventh Century, it was seen that something must be done about priests who were leaving their parishes to their sons. (Yes!) Since a priest wasn’t supposed to get married, he could not have legitimate children, and if only legitimate children were allowed to enter the priesthood, then the undesirable practice would be stopped, albeit by a circuitous route. By the Fourteenth Century, ecclesiastical jurists in England agreed with their civil brothers that children born out of wedlock were bastards, illegitimate, whatever. But. The Church held that bastardy could be cured by the subsequent marriage of the parents. And why not? If the point of the exercise was to keep the sons of priests out of the priesthood, and a priest could never get married, then a cure was perfectly reasonable — desirable, in fact.
The common law still doesn’t agree, however. Its thinking on this point is still governed by considerations of honour. Just ask the Hon Benjamin George Lascelles, cousin to Her Majesty the Queen. When he was born, at Bath in 1978, his parents were not married. They did get married the following year, and in 1980 they had a second son, Alexander Edgar Lascelles. It is Alexander, not his older brother, who is in line to become the next Earl of Harewood.
Let’s say that Benjamin took possession of the family seat. Alexander would come into court and claim that possession ought to be his. Benjamin’s lawyers would argue that he was the eldest son of the previous tenant. Alexander’s would counter that his parents were married after the birth of Benjamin: puis né. That would be the Gotcha moment. The judge would instruct the clerk to issue a summons. Jurors — men of local importance presumed to know what was what — would swear to answer the question truthfully. In this case, they would agree that Benjamin’s parents were married after he was born, and the estate would go to Alexander.
Observe that what we call lawyers and what we call witnesses never intersected. The lawyers were in London. The witnesses were everywhere else.
It was also accepted that civil courts ought to leave ecclesiastic issues to the ecclesiastical courts. The mention of certain words would trigger an automatic change of venue, from civil to ecclesiastical courts. “Bastard” was such a word. In the case of Benjamin and Alexander, the one thing that Alexander’s lawyer must never do would be to state that Benjamin was a bastard. If he did, the case would be sent to the priests, who of course would decide, in accord with Church teachings, that Benjamin was not a bastard, because his parents did get married eventually. Benjamin would remain in possession.
Alexander would be happy to learn that the jurisdiction of today’s Consistory Court is limiting to the disciplining of clerics.