Tag Archives: life

‘Stillbirth’ or fleeting life? Beyond curtesy

I recently published an article on tenancy by the curtesy in medieval England:

Gwen Seabourne (2019) ‘It is necessary that the issue be heard to cry or squall within the four [walls]’: Qualifying for Tenancy by the Curtesy of England in the Reign of Edward I, Journal of Legal History, 40:1, 44-68, DOI: 10.1080/01440365.2019.1576359

Curtesy is a topic which touches upon traumatic and tragic childbirth, and the difficulty in determining whether or not a baby was ever alive (in order to decide whether or not a man had produced ‘live issue’ with his wife, and thus qualified for curtesy. As is not uncommon, I have now come across something I’d love to have included in the article: linked chronicle accounts of a birth ending in the death of mother and baby, with some interesting inclusions and omissions of information.

The narratives are mentioned in L.E. Mitchell, ‘The most perfect knight’s countess: Isabella de Clare, her daughters and women’s exercise of power and influence 1190-c. 1250’, in H.J. Tanner (ed), Medieval Elite Women and the Exercise of Power 1100-1400 (2019) c.3, p. 61, citing Matthew Paris,  English  History  tr. J.A. Giles (3 vols HG Bohn, 1889) I:255.

The unfortunate mother was Isabelle countess of Cornwall (wife of Richard, earl of Cornwall, and daughter of William Marshall and Isabella de Clare). Her demise was noted to have occurred in 1240, along with that of her baby, named Nicholas. She was said to have been ill with jaundice, and to have been sufficiently forewarned of her impending death to make her confession. The birth itself was skated over, and there is an interesting disparity with regard to the state of her offspring: Mitchell notes that ‘the nurses hoped that the child would be born alive, but it was dead’, whereas the child was said, elsewhere to have been born alive, but not lively or not active (vivo, sed non vivido – H. Luard (ed.), M. Paris Chron. Maj. vol 4) and there is no particular mention of the nurses, who, in Giles’s version, named the child despite the fact that it was dead. I would like to check the MSS on this, since the state of the child is potentially crucial in terms of both common law (child born dead does not ‘count’ in the same way to give father property rights – though in this case, Richard had already ‘passed’ this test, with previous live births) and canon law/theology (a dead child can take no benefit from baptism, and the ‘nurses’, though they could perform emergency baptism, had no right to perform this sacrament on what modern parlance would term a stillborn child). Vincent’s account of Richard of Cornwall in the ODNB also says that the child was ‘stillborn’. Perhaps it seems a ‘picky’ point, and it did not seem to have any immediate practical consequences for Richard, or anyone else, whether the baby was ever alive. In relation to curtesy, and the roughly  contemporary accounts of curtesy, such as those in Bracton, however, the possibility that a dead baby may have been baptised is important, since it feeds into Bracton’s suggestion of the likelihood of fraud and mis-reporting by those present at a birth of the state of the baby.

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.