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Published online by Cambridge University Press: 03 April 2019
Common law was an all-male system, with one glaring exception: juries of matrons. If a convicted felon requested a reprieve from execution on the grounds of pregnancy, it was the responsibility of a group of twelve matrons to perform an inspection in order to determine if she was in fact pregnant. Matrons were in a position of great authority. Their verdicts were definitive: if they decided a woman was pregnant, then she was sent back to prison. Despite the significance of their role, little is known about medieval matrons and what qualified them to sit on a jury. Were they mothers? Honorable wives? Midwives? The goal of this paper is to argue that matrons had training in obstetrics. This was particularly important for medieval matrons because the quickening (that is ensoulment, signaled by the first fetal movements) did not become the focal point of the matrons' assessment until at least 1348. Before this, the diagnosis was much more medically challenging as matrons had to determine whether a felon had conceived. Overall, the medieval records demonstrate great confidence in medieval matrons and their obstetrical expertise.
She is grateful to the “Women Negotiating the Boundaries of Justice, c.1100–c.1750” Project at Swansea University, particularly to Deborah Youngs, Emma Cavell, and Teresa Phipps, who invited the author to participate in a workshop in June of 2017, where she presented a preliminary version of this article. She presented a different version of this article also at the Sewanee Medieval Colloquium in April of 2018, where it received the Susan J. Ridyard Prize. The author also thanks Fiona Harris-Stoertz and Sara McDougall for reading drafts along the way and providing helpful comments. Finally, the author expresses enormous gratitude to Gautham Rao and the anonymous reviewers of this journal for their editorial suggestions and for helping her to craft a more effective final product.
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106. Available in eighty-three extant copies from the medieval and early modern eras. Lemay, Women's Secrets, 122.
107. Ibid.
108. “Skin Changes during Pregnancy.”
109. Lemay, Women's Secrets, 124.
110. Ibid.
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117. Maitland, Bracton's Note Book, no. 1503.
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121. A Year Book is a legal textbook recording examples of common law cases with the intention of teaching soon-to-be lawyers how to plead.
122. … enseinte et nient enseinte est bon issue et serra trie per un briefe de ventre inspiciendo, per femes per certeine signes privie; et issint face les justices del deliverance; nul scient per quel ele est enseinte, mes solement Dieu; Et ceo est la cause que si une feme devant espousels soit enseinte ovec un fits ou file et soit ne deins espousals, que le ley adjudge qu'il est le fitz le baron, pur ceo que ne covient en conusance de nul etc. Et auxy une feme peut estre enseint par vij ans. Year Book (hereafter YB), term Mich. 1 Hen VI, fo. 50. This case also appears in David J. Seipp, ed., Medieval English History: An Index and Paraphrase of Printed Year Book Reports, 1268–1535, Boston University School of Law, 1422.042ss, https://www.bu.edu/law/faculty-scholarship/legal-history-the-year-books/ (November 11, 2018). There is a possibility that Rolf was referring to lithopedion, an ectopic pregnancy that results in fetal death at a point at which the fetus is too large to be reabsorbed into the body and instead is calcified outside the womb. Popularly described as a “stone baby,” a calcified fetus can remain undelivered inside a woman's abdomen for years. It is a rare occurrence today at 1 in 11,000 pregnancies. Renato Passini Jr. et al., “Calcified abdominal pregnancy with eighteen years of evolution: case report,” Sao Paulo Medical Journal 118 (2000): 192–94. http://dx.doi.org/10.1590/S1516-31802000000600008. I thank Sarah-Grace Heller of The Ohio State University for bringing this to my attention.
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124. Bracton, De Legibus, 2:203.
125. The church's current position that life begins at conception is a result of a papal bull put forward by Pope Pius IX in 1869. See Riddle, John M., Contraception and Abortion from the Ancient World to the Renaissance (Cambridge, MA: Harvard University, 1992), 162Google Scholar.
126. For arguments for and against this idea, see Riddle, Contraception and Abortion, 21.
127. As cited in Noonan, John Jr., “An Almost Absolute Value in History,” in The Morality of Abortion: Legal and Historical Perspectives (Cambridge, MA: Harvard University Press, 1970), 16CrossRefGoogle Scholar.
128. Müller, Criminalization of Abortion, 1–2. In actual practice, mothers experience the first fetal movements sometime between the eighteenth and twentieth weeks of pregnancy.
129. Bednarski and Courtemanche, “‘Sadly and with a Bitter Heart.’”
130. Day ten, book four, Giovanni Boccaccio, “The Decameron,” Project Gutenberg, https://www.gutenberg.org/files/23700/23700-h/23700-h.htm#THE_FOURTH_STORY10 (June 2, 2017).
131. Leslie J. Downer, ed., Leges Henrici Primi (Oxford: Clarendon Press, 1972), 222–23, 70.14–14a.
132. Müller, Criminalization of Abortion, 67–68.
133. Si sit aliquis qui mulierum prægnantem percusserit vel ei venenum dederit, per quod fecerit abortivum, si perperium iam formatum vel animatum fuerit, et maxime si animatum, facit homicidium. Bracton, De Legibus, 2:341. Fleta makes a similar statement, but uses language that reflects a slightly more thoughtful discussion of canonical concerns. It “declared a person guilty of homicide who oppressed a woman, gave her a poison, or struck her, thus ‘not allowing conception’ (non concipiat) or causing an abortion (faciat abortivum) after the fetus shall have ‘already formed and animated’ (formatus et animates).” Richardson and Sayles, Fleta, vol. II book 1, ch. 23.
134. Stenton, Doris Mary, ed., Pleas before the King or his Justices, 1198–1212 (London: Bernard Quaritch, 1953), 3:72Google Scholar.
135. TNA: JUST 1/756, m. 269; Sarah wife of Portour, Aubyn le, in Chew, Helena M. and Weinbaum, Martin, eds., The London Eyre of 1244 (London Record Society, vol. 6, 1970), 50Google Scholar; and Christine wife of William Treweman, cited and discussed in Riddle, John M., Eve's Herbs: A History of Contraception and Abortion in the West (Cambridge, MA: Harvard University Press, 1997), 97Google Scholar.
136. YB, term unknown, 1348, fo. 101a (Seipp, 1348.279ass).
137. The matrons disagreed and Elena was burned at the stake. TNA: JUST 3/137A, m. 23 (1352).
138. TNA: JUST 3/189, m. 5 (1406).
139. TNA: JUST 3/160, m. 1d (1366).
140. Pardon of Margaret wife of Henry Melbury, CPR, Edw. III (1367–70), 274 (1369); pardon of Alice Marchant of Somerset, CPR, Edw. III (1367–70), 285 (1369).
141. The Leges Henrici Primi includes a chapter entitled, “Concerning the delivery of just judgement,” which states: “The danger is so much the greater to the judge than to the person who is being judged to the extent that we know, from the words of the Lord, that any judgment we pass on others is held in store for ourselves” (Tanto enim maius est periculum iudicantis quam eius qui iudicatur, quanto ex uerbis Domini iudicium super alios habitum nobis scimus reseruari.) Leges Henrici Primi, 130–131. The Mirror of Justices, another thirteenth-century abridgement and adaption of Bracton, addresses this concern in a list of homicides that are not sins: “The first case is that of lawful judges who kill by right judgment and holy conscience, and that of the ministers who assent to and execute lawful judgments of death.” Whittaker, William, ed., The Mirror of Justices (London: Selden Society, 1893), 7:135–36Google Scholar.
142. Whitman, James Q., The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven, CT: Yale University Press, 2008)Google Scholar.
143. YB 1349, term uncertain, fo. 107a (Seipp, 1349.019ass), as well as YB 1351, Easter term, fo. 85b (Seipp, 1351.055).
144. Coke, Edward, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and other Pleas of the Crown and Criminal Causes (London: E. and R. Brooke, 1797), xxiGoogle Scholar.
145. Hale, Historia Placitorum, 2:413.
146. Blackstone, William, Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon, 1765–1769)Google Scholar, vol. 4, ch. 31, accessible through The Avalon Project: Documents in Law, History, and Diplomacy, Yale Law School, http://avalon.law.yale.edu/18th_century/blackstone_bk4ch31.asp (April 4, 2018). Jailers may have been expected to proceed with the execution swiftly enough that there was no opportunity for the quickening to have taken place.
147. Joanna Carraway Vitiello, “Forensic Evidence, Lay Witnesses and Medical Expertise in the Criminal Courts of Late Medieval Italy,” in Medicine and the Law, 148.
148. Shatzmiller, Joseph, “The Jurisprudence of the Dead Body: Medical Practication at the Service of Civic and Legal Authorities,” Micrologus 7 (1999): 230Google Scholar.
149. Vitiello notes that physicians were asked about prognosis, whereas lay witnesses focused on cause of death.
150. See Butler, Forensic Medicine, 96–107.
151. Munkhoff, Richelle, “Searchers of the Dead: Authority, Marginality, and the Interpretation of Plague in England, 1574–1665,” Gender and History 11 (1999): 3, 8CrossRefGoogle Scholar.
152. Griffiths, Paul, Lost Londons: Change, Crime and Control in the Capital City 1550–1660 (Cambridge: Cambridge University Press, 2008), 58, 271–75CrossRefGoogle Scholar.
153. Green, Monica H., “‘Diseases of Women’ to ‘Secrets of Women’: The Transformation of Gynecological Literature in the Later Middle Ages,” Journal of Medieval and Early Modern Studies 30 (2000): 5–39CrossRefGoogle Scholar. See also Harris-Stoertz, “Pregnancy and Childbirth,” 264. Catherine Rider has made this argument with respect to infertility. See her “Men's Responses to Infertility in Late Medieval England,” in The Palgrave Handbook of Infertility in History: Approaches, Contexts and Perspectives, ed. Gayle David and Tracey Loughram (London: Palgrave Macmillan, 2017), 273–90.
154. Green, Making Women's Medicine Masculine; and Blumenfeld-Kosinski, Renate, Not of Women Born: Representations of Caesarean Birth in Medieval and Renaissance Culture (Ithaca, NY: Cornell University Press, 1990), 47Google Scholar.
