Land, law and life: the unexpected interest of medieval tenancy by the curtesy

By Prof Gwen Seabourne, Professor of Legal History (University of Bristol Law School)

Window from St Mary’s church, Ross-on-Wye, Joseph with Jesus.

Even for those who enjoy spending their time with historical legal records, plea roll entries relating to medieval land law cases may not be high on a list of interesting areas to investigate. The vocabulary is often off-putting and the records somewhat formulaic and repetitive. Nevertheless, patient digging in these apparently monotonous sources can turn up information on some big, important issues of medieval thought and belief. My recent research on an area of medieval land law, published in the Journal of Legal History,[i] sheds some light on one of the biggest questions of all (in the medieval period or subsequently): what is life?

Juries and lawyers sometimes had to wrestle with questions of the presence and proof of life in cases involving tenancy by the curtesy. This was the widower’s life interest in land, following the death of his wife. Crucially, in order to qualify for this right, the widower had to have produced live offspring with his wife. Because of this requirement, medieval courts and lawyers had to make decisions in some very difficult cases in which there was doubt and disagreement as to whether a baby, now definitely not alive, had ever been alive. How did medieval people distinguish life from its absence, the fleetingly alive from those who were (in modern English) stillborn?

Rules set out in medieval theoretical works, and decided cases, commonly have a requirement for the baby to have made some sound – terms suggesting crying, giving voice, or ‘squalling’ are often in evidence. It is not surprising that such a requirement would feature, and it is, of course, still a sign of life often encountered in modern medical drama, but it is less immediately obvious why other indications of life – movement, or breathing, for example – should be played down. Legal historians of the past, including one of the ‘fathers’ of the discipline, F.W. Maitland, constructed an explanation based on (i) the idea that women’s evidence was unacceptable to medieval courts; and (ii) the idea that evidence had to be ‘first hand’. Putting these two ideas together, appealing to some slightly questionable documentary evidence and factoring in the expectation that men would not be present in the birthing chamber to see movement or breathing, the insistence on sound seemed to make sense: the baby would have to have done something which could be perceived by men outside the birthing chamber. In cases of very fleeting life, this could only be the production of a sound. My article argues that this view, which makes a sound test more or less inevitable,  does not quite hold together. There does not seem to have been strict exclusion of all female-derived evidence, the insistence on first hand knowledge does not seem to have been absolute, and case documents suggest that those involved in medieval curtesy cases were not unanimous in having regard only to sound. Nevertheless, there was a move in the reign of Edward I towards a test exclusively based on sound. I ask whether this was part of a conscious decision to tighten up the rules on curtesy, and to raise the bar so that there was less chance of potential tenants by the curtesy being given the benefit of the doubt in cases of uncertain life of the offspring.

The background to the decided cases is almost always a very sad one – a birth causing the mother’s death and the coming into the world of a baby which, at best, lived only a very short while. The mother tends to receive little attention, though that is the result of the purpose of the case and the record, rather than being indicative of any callousness towards her. Some of the fathers come out of the records in a rather favourable way – in one case, we see a father rushing to have his very sick baby baptised, to ensure its salvation, when he might have been better off, in selfish terms, trying to encourage it to make a sound in front of witnesses. The legal disputes are often between a recently bereaved widower and his stepson – the latter being heir to the woman who has died, and keen not to be kept out of his inheritance by a man he might have regarded as a ‘wicked stepfather’. The rules set up a tension within the step-family which did not necessarily militate in favour of truth-telling on either side.

As ever with medieval legal records, we cannot be sure of the truth of any particular claim, but the cases have much to tell us about the ideas of those making and denying claims, and deciding their merits. My article is mainly about the legal rules, and focuses on the reign of Edward I in particular, but there are several other promising directions for extending this research, both within legal history, and in wider areas of historical study. Since curtesy was not removed as a possibility until the twentieth century, a longer-term study would be valuable. The exclusive sound test was later rejected in England, but the path to this rejection has yet to be traced. It would be interesting to pursue a comparative study of curtesy and analogous rights: such research as I have done in this area suggests that a comparison with Scots law would be of particular interest. Looking to wider areas of historical study, it would be very valuable to integrate the evidence from my curtesy sources with wider scholarship on ideas about the beginning of life, and how pregnancy, the foetus and the newborn are described. This article makes a start in identifying some of the vocabulary used around these issues, but clearly there is a lot of scope for comparison with scholarship on medicine and literature.  A final direction in which this research might be taken relates to ideas about the role of fathers and fatherhood, an area which has had some attention in recent years, but which would, I think, be enriched by inclusion of some of the stories and glimpses of problematic fatherhood claims shown in these medieval land law cases.

[i] 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, The Journal of Legal History, 40:1, 44-68, DOI: 10.1080/01440365.2019.1576359


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