Tag Archives: foetus

Procedure and pregnancy: a Middlesex appeal

 

The question of how medieval people regarded and valued the foetus, and whether they saw abortion as being homicide or not, was raised, and debated, quite a lot, following the Dobbs case in the United States. The opinion of those who know about medieval law has generally come down against the selective and otherwise questionable use of medieval English authority by judges in the case.[i] I have many issues with the ways in which judges in the common law world cherry-pick and simplify past legal materials, or accept without appropriate questioning the contentions of advocates regarding their meaning: the misuse of such materials in modern courts is a multi-faceted problem. One aspect of the problem, when it comes to the foetus/pregnant woman issue is the failure to take seriously the impact which procedural matters might have on the way a case appears in the remaining documents. It is all too easy to conclude that we are seeing a substantive rule, when, in fact, the ‘rules of the game’ of pleading, or ‘form of action’ may actually have dictated what could be argued or included.

A nice example (in the legal sense, thoroughly nasty if the things described actually happened) is in a 1454 King’s Bench plea roll: KB 27/771 m. 35 (see it here on AALT). This concerns an appeal (individual prosecution) against Walter Fairstede lately of London, a yeoman or glover, Agnes his wife, and William Couper, a London yeoman, brought by John Stanford, for the death of Margaret, widow of John Henry.

The accusation was that, on 26th October, 1452, somewhere in Westminster, Walter and Agnes had assaulted Margaret and killed her. The attack was not, for once, said to have been carried with weapons, but with punches to the belly of Margaret, who was pregnant, or ‘great with child’. Both Walter and Agnes were accused of punching Margaret, Walter going first, with a right-handed punch to the left part of Margaret’s belly, and then Agnes punching her in the middle of the belly. Each of the blows was alleged to have been sufficient to kill Margaret (meaning that both assailants were ‘principals’). William was an accessory: said to have  assisted but not said to have thrown any punches. Margaret was said to have died following the assault, but not immediately: she ‘languished from 26th Oct to 7th December, 1452, and then died, in Westminster.

All of the accused were found not guilty by a jury – as ever, who knows about the truth of any of this, and who knows what the accusation was supposed to indicate, in terms of motive – a random stranger attack, robbery gone wrong, abortion (whether consensual or not) … much is beyond us. Nevertheless, there are things to consider. While we are told, more than once, that Margaret was pregnant, and visibly so – showing that this was something seen as important – nothing direct is said about the fate of the foetus. We may imagine that it would be unlikely that there would be a live birth, in the circumstances, however, and may deduce that there was no live baby, from the fact that the man bringing the appeal, described as Margaret’s relation (in fact an uncle on her father’s side), was also stated to be her heir. That would not have been correct, presumably, had she had a living child (assuming it would have been legitimate – we do not know how long Margaret had been a widow, of course)..[ii] What can we read into the non-mention of the foetus/baby? One view might be that the foetus was unimportant, so not worth mentioning. I think that the better view is that the loss of a niece’s baby would probably not have been something for which an uncle could bring an appeal, since it would be too far removed from him to be seen as his loss.[iii]  So, an example of ‘form of action’ setting the limits of what might be alleged, and not necessarily saying anything about the value, or not, of a foetus, in the medieval period. This remains a very difficult question – and I do not think that there was one clear ‘medieval legal view’ (let alone ‘medieval view’) on this.

One last thing which seems to me to hint at the complexity, and perhaps tensions, of medieval views in this area is the interesting difference in the way in which the two relevant dates are given. The date of the attack is given by day, month and regnal year, but the date of death is given in the old-style ‘by reference to a holy day’ manner – as ‘the following Thursday next before the Conception of the Blessed Virgin Mary: a complicated maternity-and-foetus-related feast if ever there was one. Simply indicative of a transitional period in legal dating, or something more interesting, in terms of attitudes and concerns?

GS

6/5/2024

 

[i] See this, for example.

[ii] It is possible that she did have a live-born child, which died before the proceedings were brought: I am not sure that we know the critical date for appeal right. This case is quite interesting from the appeal right point of view too.

[iii] In this case, I suppose he is the heir because there was no living child, so in a sense he gained from these events. That is not unique to uncle appeals, however.

Had Margaret’s husband not been dead, perhaps he might have brought an appeal framed in a different way.

 

Image: Westminster – yes, I am embracing radical anachronism. It’s symbolic of past-present confusion, or something.

Kentish conundrums

(CW miscarriage)

It seems quite a long time since I looked at this one in TNA in Kew – on a nice foray in summer 2022. I just found it when sorting through some papers for a big clear-out, and it seems a shame not to put it ‘out there’, with a few comments. I can’t see when I am going to be able to write it up properly, so, for what it’s worth, here goes …

C1/14/44 has a catalogue reference which dates it to 1443-50.[i] This states that Richard, bishop of Rochester, (probably not really a Richard – see further below) examined on oath in the Chancery, said that whereas Reginald Pekham of Kent, esquire, had claimed that there had been some dispute with the men of the Archbishop of Canterbury[ii], and his (Reginald’s) wife, children, servants and familia had been attacked at Ightham, Kent,[iii] by men and servants of, Sibill, daughter of Reginald and wife of Richard Culpeper esquire, who, at the time of the said attack was pregnant,[iv] within a short time after this, gave birth to an ‘abortive foetus’,[v] [in fact] the Bishop, together with John Bamburgh & lady Elizabeth Culpeper, wife of Hugh Godewyne, at Wrotham, baptised[vi] the infant Sibill had borne, naming him Richard, and, after being born,[vii] the infant lived[viii] for about a year.[ix]

The context of the document is unknown. Such an inquiry might indicate some sort of attempt to discredit the bishop of Rochester: if he had indeed baptised a miscarried foetus, this would clearly be very bad practice. There are other possibilities though. It might be something which was produced in the context of a contested claim to tenancy by the curtesy. We can imagine a dispute in which Reginald was trying to say that the attack at Aldham had had dire consequences, including the death of this potential grandchild, and somebody else was trying to minimise that, and dissociate the death from the attack. Moving the two a year apart would do that effectively. Another possible context would be a claim by Richard Culpeper to tenancy by the curtesy of Sibilla’s family lands, if and when she predeceased him: to qualify for a life interest of this sort, a man had to have produced live, legitimate, issue. Again, it would be useful to be able to have evidence of a baptism by a high-ranking churchman, to support such a claim. Using the father’s name for the child’s christening adds that extra bit of dynastic connection, and perhaps suggests that this was the heir presumptive.[x]  The possible snag with this theory was Kent’s special land law, which included different rules for curtesy, and did not require the birth of live offspring – so this would not work for gavelkind lands.

I find myself asking, in a less legally-focused way, if it was plausible that there was a child which had lived for a year, what does that say about the nature of the relationships expected between a grandfather and grandchild in the same county? I am also at a bit of a loss to come up with any reason why Bishop Richard would lie about the child’s survival (unless he had, in fact, participated in a dodgy baptism of the not-alive).

Just possibly, there may be more evidence to find on all that, but it might be a while before I get to it.

GS

30/3/2024

[i] The catalogue entry includes ‘stillbirth’, and that is what drew me to it at first: that particular term is an interesting one in the present day, contrasting in its nuances with the ‘born dead’ terms ubiquitous in other languages, and, I am keen to trace its origins. Anyway, the document itself does not use the term ‘stillbirth’, but it is very interesting in other ways.

[ii] ‘The Venerable father John Archbishop of Canterbury, Chancellor of the Lord King’. This would presumably be John Stafford, if the catalogue date is right – though there was not a Richard as bishop of Rochester at that point. However, if Bishop Richard is Richard Young, 1404-18, then there was not a John as Archbishop of Canterbury/Chancellor at that point – a puzzle, and clearly some mistake somewhere! A copying mistake, influenced by all of the other Richards, perhaps? There was a prior of Rochester called Richard in the 1460s, but that probably doesn’t work…

[iii] ‘Aldham’

[iv] There is language of ‘supposition’ and ‘claim’ here, but this is not a case in which it is suggested that there was a false claim of pregnancy, so this must be associated with Reginald’s narrative.

[v] (fetum peperit abortiuum)

[vi] (lifted from the holy font)

[vii] (post partum suum)

[viii] (vitam duxit in humanis)

[ix] There is nothing on the dorse

[x] We will not get into lurid speculation about Bishop Richard’s involvement being more than just doing the honours at the baptism!

 

Image: Rochester Cathedral – isn’t it lovely! I have never been – one more for the bucket list.

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.

Matrons, medicine and maternity

This morning, I have been listening to a podcast of a late-2017 seminar paper from the Institute of Historical Research Late Medieval seminar:

Zosia Edwards (Royal Holloway), ‘Pregnancy diagnosis in the later Middle Ages: medical methods and courtroom procedures’

https://www.history.ac.uk/podcasts/late-medieval-seminar/pregnancy-diagnosis-later-middle-ages-medical-methods-and-courtroom

This was of interest to me in relation to two projects/areas of on-going research: my monograph on women in the medieval common law and my work on curtesy and live birth/still birth.

Its central focus was the divergence between a rich textual tradition of learned medical writing on techniques of diagnosing pregnancy and the common law’s approach, apparently scorning such learning, or the use of (male) ‘medical experts’ in favour of the judgment of ‘lay persons’: mainly ‘matrons’, though with some involvement of knights (in land cases). It includes some very good examples of both medical diagnosis and common law practice.

The divergence between learned texts and common law practice is striking divergence, and has been commented upon to some extent (e.g. by S.M. Butler). There is much to be said about the common law’s emphasis on jury findings as opposed to those of ‘experts’, not just in the medieval period and not just in medicine. In addition, it seems to me that there are also other particular  explanations for the difference in procedure in relation to pregnancy which would be worth consideration. First, the medical texts and the investigation in common law felony cases were directed at slightly different questions. In the case of the medical texts, the search (however dubious we might find the methods) was for the presence of any pregnancy. At least in the case of the ‘pregnant felon’ cases, it was a search for confirmation of a woman’s claim that she was pregnant with a ‘quick’ child: thus a less ‘expert’ and sensitive test might be thought to suffice. In addition, there does not seem to have been a desire to avoid all possible killings of pregnant women: witness the approach to those claiming a second pregnancy, the possible presence of a foetus not being sufficient to defer execution. Views on the value to be accorded by the law to the foetus at various phases of existence were in a state of development/flux in the medieval period, and trying to bring together the attitudes encapsulated by legal texts and plea rolls relating to foetuses in homicide, abortion, curtesy and other land cases is a task with which I am wrestling. A paper on determinations of live birth in relation to curtesy temp. Edward I is on its way to publication, but I would love to expand into a more general overview of ideas about the foetus/newborn in different categories of legal case. One of these days.

13/1/2019.