Tag Archives: abortion

A Cornish compensation claim

Content warning: miscarriage/abortion

Here is another snippet on that vexed question: how did medieval law regard the foetus (something I have blogged about a bit.[i]

Much of the attention in this regard – including mine – has been on the law of homicide. That’s understandable, since we tend to think of the big question being ‘was it regarded as homicide, to end the life of a foetus?’. But here, in KB 27/590 m. 15d, is a Cornish case in which the aim is not to convict a person who had caused foetal death, but to obtain compensation for a ‘tort’.

It is from the King’s Bench plea roll for Michaelmas 1408. John Archer and his wife, Alice, brought a trespass action against David Renawedyn and seven other men, accusing them of having, (on a date the same year which seems to be May 16th, with a woman, not a defendant here, at ‘Aransawyth’[ii]), assaulted Alice, so that she miscarried (abortum fecit) to the great damage of John and Alice and against the king’s peace. They claimed that they should recover £100.

The defendants pleaded not guilty and the matter rested there, awaiting a jury. No end found just yet.

One is struck by the fact that both husband and wife brought the action. But then a married woman had to bring this sort of action in conjunction with her husband: we cannot really read into this a particular statement about the foetus being the man’s ‘property’, or the loss ‘really’ being his, since this is the way all trespass cases would have to be brought, when damage was done to the person of a woman.  Unhelpful, too, for the historian, is the fact that the damage to Alice from the external force, and that from the consequent loss of the foetus, or the pregnancy, are not disentangled. We certainly can’t say that this is putting a particular financial value on the life or worth of a foetus in itself. However, it is an interesting indication that the loss to the expectant parents when a pregnancy was ended in a violent, wrongful, manner, could be calculated, and a claim for substantial compensation was plausible.

The existence of such a claim might be seen to confirm the impossibility of the homicide route with regard to a foetus, especially where the pregnant woman had not, herself, died. It could, though, simply be a case of choosing one of a number of overlapping modes of legal response to an offence. I still think much remained unclear and ‘up for grabs’ in the law on the foetus in medieval England, but there is certainly more thinking and research to be done on this point.

GS

28/5/2024

 

Image – Perranporth: probably not where any of this took place, but a fine view.

 

 

[i] E.g.: here, here, here …

[ii] Not sure about this name – it looks like some mangled Kernewek to me, but someone else may have a better idea.

Criminal Chaplains in Yorkist Yorkshire?

A very nasty case from the late 15th C here, but one which gives a few half-clues to medieval English attitudes to pregnancy and the status of the foetus, an area which has interested me for a long time,[i] and which has received attention in recent years, as a result of the appeal to medieval law by US Supreme Court justices, in justification of their stance on abortion.

The case is to be found on the King’s Bench roll for Michaelmas term 1484,[ii] so during the reign of Richard II, but concerning events from the reign of his brother, Edward IV. West Yorkshire jurors had presented, in 1483, that one William Turnour, lately of Kirkby Wharfe, Yorks, chaplain, a.k.a. William Neweland of Kirkby Wharfe, chaplain, and John Atkynson of Tadcaster, Yorks, chaplain, on Friday 27th September, 1482, came with force and arms and entered the house, in Kirkby Wharfe, of Katherine Raner, widow of William Raner, and there beat Katherine and William Rayner’s daughter, Cecilia, who was the wife of William Wright of Kirkby. Cecilia was pregnant (prignant, gravida). William Turnour beat and mistreated her, and feloniously killed and murdered her. Cecilia’s body was taken away and buried in the middle of the night in the cemetery at Kirkby Wharfe, without the coroner’s view, a piece of misconduct said to be against the king’s crown and dignity. There is also material on the fate of the foetus, though it is not entirely clear what the order of events was – did Cecilia give birth and then die after a while, or did all of this happen closely together? – in any case, the record mentions the child as Cecilia’s (puerum eiusdem Cecilie) with which she was pregnant at that time (cum quo adtunc gravida erat), and that it was separated from its mother, one way or another, and then taken away by Atkynson to an unknown place. It is not made clear whether or not the child was born alive. We get the neutral ‘after the child was brought into the world from the womb of the said Cecilia’ (postquam ab utero predicte Cecilie in hunc mundum product’ fuit …). It sounds to me as if this means that she gave birth before dying, but the slightly evasive phrasing could mean removal from Cecilia’s womb, as opposed to her pushing the baby out. Given that we are not told whether or not there was a live birth, it is not possible to know whether this report should be taken as one in which (a) both mother and foetus were killed as a direct result of William Turnour’s beating, but the felony and murder words are attached only to the killing of the mother (in some contrast to the case I mentioned here) or, (b) a live child was born, and, whatever became of it – and, frankly, its prospects do not look to have been too good, in the hands of these apparently malicious chaplains – its fate could not have been considered part of the felony being presented here. In either case, we have an indication of the (all male) jurors’ knowledge of, and interest in, the pregnancy and the foetus/baby, but on their perception of its value or status, it is more equivocal. There are unanswerable questions, too, about why such an attack might have taken place – part of wider disturbances, or something more personal? Where was William Wright in all of this – it does not sound as if Cecilia was a widow, but there is none of the half-expected involvement of her husband in pursuit of the offenders.

The usual tantalising uncertainties, then, and also the almost inevitable postscript – the allegedly murderous William Turnour (or whatever his name was) walked,  as a result of a rather general pardon from Richard III, and a promise of future good behaviour. So that was all right then.

 

23/3/2024

GS

 

[i] Another post on this area can be seen here.

[ii] KB 27/893 Rex m.4, which you can see here, courtesy of AALT.

Finding the words for offences involving the foetus: a medieval Midlands example

Warning: this post contains references to violent crime and sexual violence.

Something I came across today in an indictment file seems worthy of a note, though the topic is difficult in all sorts of ways. Still, I think it is important to set it out and contextualise it,

The entry comes from a Worcestershire session of the peace from Michaelmas term, 1476. The jury said on oath that Roger Bailly of Hallow, Worcs, chaplain, on Tuesday 27th July, 1473, with force and arms, i.e. with clubs, knives and  lances (though not really/necessarily – these were conventional allegations) broke and entered the close of John Chirche at Hallow, and assaulted John’s wife, Joan, knocking her down. Joan was, at that time, heavily pregnant (grossam impregnatam). Roger wanted to have sex with her (the adverb used here is illicite, but rape, in the modern sense, seems the implication). The attempt does not seem to have succeeded (this is not spelled out) but the injuries caused in the attack had the effect of killing the foetus.

The words which are used to describe the foetus, and the offence, are very interesting. It is foetus ipsius Johanne in ventre sua existent’  [Joan’s foetus, existing in her womb] and the offence was that Roger had totaliter suffocavit, destruit & murdravit [completely stifled/suffocated, destroyed and murdered] the foetus, ‘against the peace of the lord king etc.’

This wording is intriguing in what seems to be its viewing of the foetus as, at one and the same time, a separate entity and also part of Joan. Thus, for example,  we have the word ‘murdravit’, which suggests separate concern for the foetus, but it is also designated Joan’s foetus, and its location in her womb is emphasised.  This suggests to me a more nuanced and sophisticated understanding of the nature of the foetus-within-the-woman than we might have imagined floating about in the minds of medieval jurors. The consensus view, that, while there was one well-known statement equating pre-birth and post-birth killing, the common law had, by the mid-fourteenth century, settled on birth as the start of the application of felonious homicide, remains intact.[i] This entry may be taken to suggest that lay views on questions of pregnancy and foetal life were not identical with the legal position under the law of homicide. Might that  say interesting things about what people thought was the appropriate area of operation of the law, and what was beyond its legitimate involvement?

The document absolutely does not amount to an endorsement of the idea that ending the life of a foetus was equivalent to felonious homicide on a person after birth – so is not something to be deployed in modern drives to restrict legal abortion – this is not equivalent to a ‘normal’ medieval murder/homicide charge, and it does not set the interests of foetus and woman against each other, as is often the case in modern analysis. As I have seen in medieval legal materials concerning other complexes of personality, such as husband and wife or corporations, ‘the medieval mind’ took a different, and perhaps more flexible, approach to accommodating ‘joint and several’ personality than some modern minds are able to accomplish. Perhaps it was all of that thinking about (what I find to be) the hugely difficult concept of the Trinity that limbered them up.

GS

2/6/2022

[i] On this, see Sara Butler’s recent post, and works cited there.

Image – I know, but very hard to find an appropriate image for something like this.