This is a snippet on medieval women, pregnancy and the common law which I had not come across at the time I wrote Women in the Medieval Common Law, but which I would add, if there was ever to be a second edition (very likely, I am sure, due to massive global demand …).
This sits somewhere between the plea of pregnancy as a way of deferring the imposition of capital punishment (which has been explored in a number of studies)[i] and the less-explored area of women’s essoins or legitimate excuses for non-appearance. It is well known that the common law did accept that a capital sentence should not be imposed upon a pregnant woman (at least one whose pregnancy had ‘quickened’), the thinking behind that mainly revolving around the wrongness of making an ‘innocent’ suffer the penalty appropriate only for the guilty. It is also well known that there were a number of ways in which a person could make excuses for not appearing for trial, without negative consequences, but, as I noted in the book (p. 110), the great medieval treatises – Bracton and Fleta in particular – talk about these entirely from a masculine perspective.[ii] Thus we learn that a man who is sick in bed can be excused, as long as he is not caught up and about and in his trousers, but, even though there are some early indications of essoins ‘de malo puerperi’ or ‘de puerperio’,[iii] it is relatively rare to see them ‘in the wild’, being used (and succeeding) in practice.
There is, though, an entry on the King’s Bench plea roll for Easter term 1322 which shows the use of labour/childbirth as a reason not to turn up to defend oneself in an appeal (individually-commenced criminal prosecution). KB 27/248 m.8d (AALT IMG 0193) records the efforts of the sheriff of Essex to bring Philip Clobbe, Roger Pontyn and Alice his wife into court to respond to Clarice, widow of Hugh le Bakere of [Bartlow], who appealed them of the death of her husband. After many failed attempts, Roger appeared, but it was said that Alice was pregnant. The vocabulary is marginally different to the terms above – she lay in parturiendo – on which more in a moment – and so could not come to court without the risk of fatal consequences.
Alice was not going to be forced to come to court at once to stand trial, but was to be ‘kept safe’ so that she could be tried later. As with the execution deferral plea of pregnancy, this was only a temporary delay, This is not the only situation in which the machinery of the law resulted in non-convicted pregnant women being kept in some degree of confinement – see also the process in ‘civil law’ cases in which a woman alleged that she was pregnant with her deceased husband’s child, and property divisions depended on whether or not there was an heir.[iv] Considerable suspicion of women and their scheming ways was shown in such cases. Here, presumably, the fear was that a heavily pregnant woman would get up from her labour and go on the run from the law.
So – a small extension from the known material (or at least the material known to me) but an interesting one, and something that, I think, confirms the picture of not-exactly-merciful attitudes to pregnant women in the medieval common law. Perhaps it also reinforces the idea of the forms of the common law, with their development through a male paradigm, which might be applied to women in a rough and ready way, did not fit childbearing and pregnancy very well, intellectually at least.
There are a couple of language issues which might be noted. First off, interestingly and/or frustratingly, the use of Latin here obscures a detail which many of us would like clarified: whose death are we talking about – mother, foetus or both? The suggestion that she can’t come sine mortis periculo – ‘without danger of death’ could, it seems to me, mean any of the above. And it matters, doesn’t it, in that it would be very good to know whether this is an extension backwards in time of the ‘don’t hurt the innocent for the misdeeds of the mother’ or whether it is an analogue of the ‘sick men don’t have to risk their health’ plea. And then there is that slight difference between the language of puerperium and that of parturition. Would it be stretching things to see them as having slightly different focus, linguistically, emphasising the child and the woman respectively? I put it out there, anyway, as something of an indication of the acceptance of complexity, possible dissonance and changing of points of view which medieval people’s minds could accommodate. Let’s be honest, those of us of a somewhat light cast of mind quite enjoy the lack of perspective in medieval visual arts. Intellectually, though, their ability to juggle and switch perspectives is intriguing and impressive.
GS
31/8/2024
Image – Elizabeth giving birth to John the Baptist, c/o Wikimedia Commons.
[i] See p. 143 of the 2021 book for references.
[ii] Bracton IV, pp 71, 91-5, 113, 124, 127, 143; Fleta book 6 c 10.
[iii] Examples of this terminology from the early 13th C: 67 SS p. 342; 84 SS no 3144, 3720, 3889; CRR I, p 383.
[iv] I have a chapter about to appear, dealing with this, amongst other things, so you’ll have to wait. In the meantime, see this later example.