Tag Archives: death

Between cause and effect: the length of lingering deaths

There is an interesting (if, obviously, horrible) local murder case in the press today, for anyone looking at the issue of causation, and the potential time-gap between offending action and death, which action may still be amenable to prosecution as homicide. Rather than simply being a matter of later discovery of, and prosecution of, a murder, the death of Jacqueline Kirk was relatively recent (2019), but the criminal action being assigned as its cause (setting her on fire) occurred 21 years before that. This leapt out at me today, quite apart from its horror and human interest, as connecting to an academic interest which I have long had in ideas about causation of death, and the issues surrounding ascribing criminal culpability in cases of ‘lingering death’, in so far as we can gather them from medieval legal records – and on which I plan to work in 2021-2. There are differences, of course, in that there can now be considerably greater certainty about factual causation than would have been the case in the ‘premodern world’, but causation in the law of homicide is never just a matter of fact, but mixes in all sorts of judgments about blame and appropriateness of bringing belated legal proceedings, so this recent case, and the discussion which it will no doubt encourage, will be an interesting lens through which to examine my material (though I have to say that, while there are certainly some very belated prosecutions, I have not found any attempts to argue for a ‘lingering death homicide’ of anything like this length, in older materials – no doubt to a great extent because people subjected to serious violence such as being set on fire would be unlikely to survive long, without modern medical interventions, but there are fascinating changes in ideas about the moral/legal aspects of causation to track as well).

GS

5/6/2021

Image (and yes I know this is not the court where the accused appeared yesterday, but the new one is a bit ugly: also good to see a statue in Bristol which is not obviously in need of a toppling): Stone statue of Justice by Edward Sheppard, the old Magistrates Court, Bridewell St., Bristol, dated 1879

Life, death, dower and the twitching of legs

I have recently been doing a lot of work on the history of proving the presence or absence of life. My particular focus has been on medieval England, and on determining whether or not a baby, now dead, was ever alive so as to qualify the father for certain property rights (tenancy by the curtesy: article on its way). That has been fascinating, and I am sure there is more to discuss and discover on that point, but it is also part of a bigger question for the law, on drawing lines between life and death. This is important in criminal cases – e.g. in working out whether a person was killed by X or by Y – but it is also crucial in relation to various succession questions. As well as the curtesy cases in which there is a need to determine whether or not a live child was produced, there are cases in which it is necessary to work out the order of deaths. How was this decision made in the past?

There are two broad issues for legal historians: by what mechanism is the question decided, and by what test is it decided. My curtesy work has shown me that neither question leads to an entirely straightforward answer. Today, I came across an ‘order of death’ case from the 16th C which has set me thinking about this in a wider context.

The case, called Broughton v. Randall in the English Reports, though more properly Morgan Broughton, armiger v. Margaret, widow of Robert ap Rondell Cro Eliz 502. 78 ER 752; appears on the King’s Bench plea roll for Trinity 1596 (38 Elizabeth I), starting at KB 27/1339 m. 876 (AALT IMG 0945).  It is in the report, however, that something is said about the ‘order of deaths’ issue. This was a dower case from Denbighshire, Wales, in which Margaret was claiming land currently held by Morgan. The land in question appears to have been held jointly by Robert and his father. Both were hanged at the same time. Margaret’s chance of dower depended on it being decided that Robert had outlived his father. She was successful, and this was, according to the report, because Robert’s legs had been observed to twitch after his father was still. I am not qualified to say whether that really is a good indication of life in a meaningful sense, though I am inclined to be doubtful.

I have drawn a blank, so far, on Robert, his father and their crime, though that does seem an interesting avenue to pursue one day. Also interesting is the fact that this is a Welsh case – since there is much to be discovered about the ways in which the Welsh were arranging their property holding in this period. As far as the pinpointing of death is concerned, however, this does show the inventive approach which might be taken to establishing the facts for legal purposes. Its use of movement as a criterion is also very interesting as a counterpoint to the test in curtesy, which was traditionally more sound-focused.