Tag Archives: pregnancy

A pregnant pause (in legal proceedings)

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.

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.

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.

Bumbling, Bitchiness and Cruelty at Queen Victoria’s Court

This is dangerously late for my tastes, but a serendipitous choice of podcast to accompany me on a walk the other day (something by Lucy Worsley on Queen Victoria) brought me to a story I had never known. Undoubtedly those who work on the 19th C know all about it, as may others with a better all round general knowledge, but I had not heard of the episode, and, as it happens, it has some relevance to a project I am just finishing (the one on ‘unknowns at the start of life’, inc. ‘bastards’ and the beginnings of human life).

The episode involved a young(ish) aristocrat, Lady Flora Elizabeth Hastings (b. 1806), who occupied the position of Maid of Honour to the Duchess of Kent (Queen Victoria’s mother). She died in 1839, after something of a scandal, which does not make Queen Victoria and her court look at all good.

Briefly, the problem arose because Flora had a swollen abdomen, and of course it was rumoured that she was pregnant (no doubt euphemistically) whilst being – shock – unmarried …. She denied it, but the rumour went round the court, and was enjoyed by those – including the Queen – who were at odds with the faction represented by the Duchess of Kent, and so, by extension, by Flora. A physical examination was insisted upon, and Flora agreed to it, despite the humiliation, because she wished to end the scandal and rumour attached to her name. The examination came back negative (though there is some suggestion that the doctors, despite having certified non-pregnancy, were suggesting to Queen Victoria that Flora might still be pregnant). Flora got very ill and died, however, and public opinion was against Victoria and her doctor. After Flora’s death, it was made clear that she was not pregnant, but had had cancer. The matter was much discussed in the press, and it did nothing for the reputation of court or medical profession.

Using a letter she had written to her uncle, Mr Hamilton Fitzgerald, published in the Morning Post (2) supplemented as to dates from the other sources below, the following timeline can be constructed:

 

  • January 1839. Flora comes to London, and has already ‘been suffering for some weeks from bilious derangement, … pain in the side and swelling of the stomach’
  • 10th January, 1839. she consults Sir James Clark, physician to the Duchess of Kent and the Queen. Clark’s treatment is unsuccessful, but Flora’s self-care remedy of ‘walking and porter’ results, she reports, in an increase in strength and reduction of the abdominal swelling.
  • 16th February 1839. Clark comes to Flora’s room, accuses her of being pregnant and tries to get her to confess that this is the case. His sources are ‘the ladies of the palace’. Flora denies being pregnant. Clark says that the only way Flora can ‘remove the stigma from [her] name’ is to ‘[submit] to a medical examination’. The Queen was in on this plan, and effectively ordered the examination. Flora named some other ladies of the court as having been particularly active in setting this up, though the Duchess of Kent is exonerated.
  • 17th February 1839, the examination went ahead (interestingly, the consent of the Duchess of Kent was required, while Flora ‘submitted’ in order to clear her name.  What followed she described as ‘the most rigid examination’, at the end of which ‘her accuser’, Sir James Clark, and Sir Charles Clark, signed a certificat ‘stating, as strongly as language can state it, that there are no grounds for be[1]lieving that pregnancy does exist, or ever has existed’.
  • 8th March 1839 Flora writes to her uncle, setting out her story.
  • 5th July, 1839. Flora dies. Post mortem examination, at Flora’s request, by Sir Benjamin Brodie and Sir Astley Cooper,  which published its findings officially, and found that she had died of ‘long standing disease of the liver’, and that ‘The uterus and its appendages presented the usual appearance of the healthy virgin state.’ (1)

As the Lancet put it,

 ‘The publication of this post[1]mortem examination is the best reply which could have been given to the slanderers of an illustrious personage, and of a distin]guished physician. No mental emotion could have produced, or even considerably accelerated the progress of the diseaae from which Lady FLORA HASTINGS died ; and if the symptomatic swelling of the abdomen were, by some, mistaken for pregnancy, it could not have been by one who knew that in pregnancy the swelling is developed from below upwards.’ (1)

There were, shall we say, differences of emphasis in terms of whether it was an outrage or a rational scientific thing to insist on examining Flora’s abdomen. Guess which side the Lancet was on … want a clue?

 ‘Had Lady Flora Hastings permitted her physician to have made an accurate external examination of the abdomen, at an eurly stage of her complaint, she would probably have been spared the pain and humttiation to which she was subsequently exposed. Many a female has undermined heutth and compro[1]mised existence, through similar feelings of mistaken delicacy’ (3)

(translation: ‘The ladies, eh – what are they like! It was her own silly fault!’]

 

The resonances this episode has for me, and my projects, concerns detection of pregnancy and the role of medical expertise in this. One of the things which comes out of an examination of the history of pregnancy detection in the more strictly legal context (for deferral of execution, or for the purposes of succession disputes) is that there was quite a difference between England and Wales on the one hand, and the rest of western Europe, on the other, in terms of who was given the task of saying whether a woman was, or was not pregnant. In England and Wales, the use of women – the jury of matrons, or jury de ventre inspiciendo – continued long after it was phased out in other jurisdictions, in favour of (male) medical professionals. Instinctively, we may see the medical professional model as preferable. This case troubles those waters somewhat – since it seems to bring home the questionable nature of medical expertise (and ethics?). It certainly damaged the reputation of Sir James Clark himself. It does make me wonder whether, at that stage in the history of medical research and education, there might have been some over-claiming of expertise.

To somebody coming from a modern Law School, the case also, of course, raises the hackles, in that it seems to amount to the forcing upon a (very sick) woman of an unpleasant and humiliating examination. For all that Flora agreed to the procedure, after her initial horror, this appears very much to have been something she thought she had no real option not to suffer: the rumours and scandal were bad enough, but she was also told that she would not be allowed to attend court functions if not ‘cleared’ of being pregnant (and thus a total, hopeless, sinner …) Neither Flora nor contemporaries seem to have gone down a ‘coerced consent’ line in their objections, but there was certainly outrage at the gossip and the persecution of this poor woman, and the rough, questionably competent and generally unpleasant conduct of the doctor.

Queen Victoria not at all nice – official.

GS

1/1/2022

 

Image – Flora, from source 4, below. Not a very good drawing, I must say.

 

Sources:

  • ‘Lady Flora Hastings’, Lancet, 32, no. 828, 1839, pp. 587–587
  • ‘The Late Lady Flora Hastings’, Lancet, vol. 32, no. 833, 1839, pp. 762–763.
  • ‘Sir James Clark’s Statement of the Case of the Late Lady Flora Hastings’, Lancet, vol. 33, no. 842, 1839, pp. 126–126.
  • Horace Wyndham, The Mayfair Calendar : Some Society Causes Célèbres. (Hutchinson, 1925).
  • D. Reynolds, ‘Hastings, Lady Flora Elizabeth (1806-1839) courtier, ODNB.

Presuming expertise: opinions on prolonged gestation in the Barony of Gardner case

In the course of researching for a paper on how the law, over a long period of time, and in different jurisdictions, has handled scientific uncertainty with regard to the beginning of (legally valued/protected) life and paternity, I have become a little obsessed with an a little corner of family/succession law, that of ‘adulterine bastardy’. An ‘adulterine bastard’ was a child born to a married woman, but whose biological father was not (or was held not to be) the man married to the woman at the time of conception. Before the development of DNA testing, it was impossible to be sure on this matter, and before the development of blood testing – which could at least rule out some men as fathers – in the early 20th century, matters were even less certain. Central to the legal strategy found in several different legal systems,  for dealing with such uncertainty, was some form of presumption that a child born to a married woman was the legitimate offspring of her husband, unless that was impossible. Impossibility became watered down over time in various ways, but I will not explore that here. What I will discuss is one aspect of this little niche area, and its potential impact and interest for wider areas of study. This aspect is the question of the upper limit for human gestation, and the exploration of this question in the Barony of Gardner case of 1824-5. An account of this case is easily accessible online, thanks to archive.org  https://archive.org/details/reportproceedin00ofgoog/mode/2up and it seems to me a really interesting resource for teaching both Legal History and also areas such as gender and history, and the history of medicine.

The case concerned the right to a peerage – guess what, the Barony of Gardner. Can’t say I’ve ever heard of it – not one of the big ones, but there are those who value such baubles above and beyond the money and land, and that was all the more so a century ago.

The source, Denis Le Marchant, Report of the Proceedings of the House of Lords on the Claims to the Barony of Gardner (London, 1828),  was written by a barrister – and it should be noted that he was not exactly a disinterested fan of obscure legal points, but counsel for one side in the case (the side of the petitioner, i.e. Alan Legge Gardner, apparently legitimate son of H and W2, in opposition to Henry Fenton Jadis/Gardner, who claimed to be the legitimate son of H and W1, but was, problematically, born after a long absence by H, which would mean that, for him to be legitimate, the pregnancy would have to have lasted 311 days). The case was heard in 1825 before a committee of the House of Lords.

There is quite a story – of foreign travel, adultery and apparently brazen lying. What I want to focus on, in particular, however, is the lengthy (though not complete) account of the examination of witnesses on the question of the possible length of gestation (and whether a gestation of 311 days was possible). This begins on p. 13.

There was a long list of medical men, variously described as physicians, surgeons, accoucheurs, and pairs of these titles. Some sported ‘M.D.’ labels, most did not. These are their names:

Charles Mansfield Clarke, accoucheur

Ralph Blegborough, M.D.

Robert Rainy Pennington, Esquire, accoucheur

Robert Gooch, M.D., accoucheur

David Davis, M.D.

Dr. Augustus Bozzi Granville, physician

Dr J. Conquest, physician

John Sabine, Esq. surgeon and accoucheur

Dr. Samuel Merriman physician and accoucheur

Dr. Henry Davis, physician

Dr. Richard Byam Denison,physician

Dr Edward James Hopkins accoucheur

Henry Singer Chinnocks, Esquire, surgeon and accoucheur

Dr. James Blundell, physician

Dr. John Power, physician accoucheur

After the ‘medical men’ had had their say, some women were allowed to speak, both in a ‘professional’ capacity, and also to give evidence as to their own experiences as to length of pregnancy. Mary Tungate. midwife was followed by the following women who had either experienced, or were experiencing, long pregnancies: Mary Wills, Mary Summers, Mrs. Mary Gandell, Isabella Leighton, Mary Parker, Mrs Sarah Mitchell. It is interesting to imagine the presence of these women, and especially pregnant Mary Parker, in the masculine environment of a House of Lords committee. I was interested to see that discussion relating to the midwife Mary Tungate seemed to assume that she was to be assimilated to a ‘medical man’ for the purposes of an exception to the rule against hearsay evidence: 170-1. The women were all deployed by the side wishing to show that it was not impossible that the child born after 311 days of absence was legitimate. It was admitted – 247 – that ‘they were not persons of high rank or distinction, — no one can think that such persons would expose themselves to a cross examination on the details of their pregnancy’. This does not seem very polite treatment for women who had submitted themselves to this ordeal.

 

The ‘medical men’ (and Tungate) were routinely asked the length of time they had spent in practice, the extent of their experience, their views of normal gestation periods, and the possibility of longer periods. Most answered around the 39-40 week mark here. Some cited instances of longer periods and thought the 311 day pregnancy a possibility, while others were quite sure that it was not. There were some interesting outlier views – including a late survival of the idea of differences relating to the sex of the foetus, with boys staying longer in the womb than girls – 152. Questions also demonstrated something of a lay obsession with the formation of nails as an indicator of gestational age – e.g. 15, 37.

There were some interesting exchanges on matters of authority (which was more important – the learning of well-known medical writers, or the experience of doctors themselves?) and of evidence – could the medical men use their notes (answer – this seems to have been allowed, if they were in their own writing and contemporaneous, as an aide-memoire: see, e.g., 60, 66, 119, 136. The meticulous note-taker, Dr Granville, in the end had some of his patients brought in, so as to circumvent objections that this was not the best, or legitimate, evidence – 87]

There were also some slight episodes of sparring about confidentiality – it is interesting to see ideas of patient confidentiality at this early stage – see, e.g., 66, 133. This concern about confidentiality apparently did not apply to the wives of the medical men themselves – two of these women were given as examples of women who had had long pregnancies – 67, 111 – (and appear to have kept period diaries – I remember being told this was a good idea, in the excruciating one-off assembly on this topic given at my school – obviously the reason was to be ready for possible evidence before a House of Lords committee…).

[Should you be interested in the result, Alan Legge Gardner won, and became Third Baron Gardner. Honour and bloodlines prevailed. Or something. That seems of considerably lesser interest than the enquiry itself, which seems to have been on a fairly large scale, and to have shown some interesting differences of professional opinion in this still-early period of formalisation of medical training and expertise. I am still working on how it fits into a longer story of uncertainty in this aspect of ‘the secrets of women’, which remained officially mysterious, and open to some very odd theories and evidence, into the twentieth century].

 

GS

30/11/2020

Updates:

NB – the Gardner/Jadis case was mentioned in a ‘Who Do You Think You Are’ investigation on Frances de la Tour: Frances De La Tour – Who Do You Think You Are – Society scandals, an illegitimate child, and a landmark divorce… (thegenealogist.co.uk)

By the evil magic of the internet, I have been linked up to this – Isabel Davis, The Experimental Conception Hospital: Dating Pregnancy and the Gothic Imagination, Social History of Medicine, Volume 32, Issue 4, November 2019, Pages 773–798, https://doi.org/10.1093/shm/hky005 – dealing with disturbingly rapey 19th C sci-fi writing sparked off by the Gardner case. What an interesting article (and especially the Gothicism and balloon-related bits). Law, sci-fi and Gothicism (and a couple of well-judged points about the limitations of the blessed Foucault): if it could just include a vampire or two, it would tick all of my boxes.

Two sorts of labour: maternity and employment, medieval style

Officially not ‘work’: this is a contribution to solidarity with workers everywhere, and everywhen…

[This one seems an interesting case to note today, somehow, as my union, the UCU, is striking once more to try and do something about deteriorating working conditions, and the pitiful progress on gender and other equalities issues which appears to satisfy university management.]

The plea rolls of the fifteenth century Court of Common Pleas have a lot of ‘labour law’ cases, based on the post-Black Death labourers legislation. Although each concerns a dispute which mattered massively to the individuals involved, the records are mostly fairly repetitive: parties argue as to whether there had been an agreement to serve, or a leaving without permission, or a removal or enticing away of a servant by another employer. Occasionally, though, there is one which stands out and lets slip something which goes a small way to illustrating the world of employment relations. Such a case is that of Nicholas Welkys and Geoffrey Molde, cleric, of Royston, Hertfordshire, at CP 40/645 m.39, from Easter term 1422.

Nicholas alleged that Geoffrey had stolen away his servant, Alice Valentyne. Nicholas said that she had been employed by him, at Royston, on a one year contract, as a domestic servant (ancilla). Geoffrey’s action, on the feast of St Stephen, in the king’s eighth year,[i.e. 26th December 1420] had caused him to lose her services for ‘a long time’ (in fact 6 days) which had damaged him to the tune of ten pounds. There were the required allegations of force and arms and the whole thing being against the king’s peace, though whether or not there was likely to have been any sort of force depends on whether one believes the story of Nicholas or that of Geoffrey.

Geoffrey’s story was that he had done nothing wrong because he had actually retained Alice, from the feast of the Nativity of St John the Baptist in year 8 [i.e. 24th June, 1420?], for a year, as an ancilla. According to his version, on the feast of [the translation of ] St Edward, King and Confessor [13th October, 1420], Alice had left Geoffrey’s service without licence or just cause, had gone to work for Nicholas until [26th December], then, of her own free will, returned to Geoffrey, who had the better right to be her employer, and had, consequently done Nicholas no damage.

Nicholas agreed that Alice had been hired by Geoffrey earlier on, but claimed that, on the feast of St Edward the Confessor, because Alice was heavily pregnant, near to giving birth and unable to serve Geoffrey as envisaged, Geoffrey had given her permission to leave his service, and Nicholas had hired her from that day, for the following year. She had served him in Royston, so he said, until Geoffrey had abducted her with force and arms.

Geoffrey said he had not allowed Alice to leave his service. A jury was ordered to be summoned to decide whether there had, or had not been such permission, and so whether Geoffrey could be guilty of the abduction offence alleged.

I have not yet tracked down the outcome, but, as is often the case, the pleading itself discloses some interesting nuggets about medieval employment and attitudes to women, and pregnancy. Whatever the truth as to whether Geoffrey gave Alice permission to leave, it is very clear that being heavily pregnant was seen as a reason to end the employment relationship. We would not expect a medieval employer to have much of a maternity leave policy, perhaps, but it does raise questions about how working women coped with late pregnancy and birth. If Nicholas’s story is true (and it was presumably seen as at least plausible) the implication seems to be that Alice had to, and was able to, find a new place while at an advanced stage of pregnancy. That struck me as both sad (in terms of the apparent desperation on her part) and also interesting (in the sense that Nicholas seems to have been willing to take her on whilst pregnant and unable to do much, if any, work).

There are, of course, all sorts of other questions – such as who was the father, and what happened to the baby. Inevitably we will wonder whether Alice had been subjected to abuse, or whether she might have had some sort of approximately consensual relationship with Geoffrey. Might her surname, ‘Valentine’, even indicate some involvement in sex work/concubinage? No answers to those, but intriguing all the same.

25/11/2019