'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. Issue 1 (2nd January 2019)

• Record Type: Journal Article
• Authors: Seabourne, Gwen
• Is Part Of: Journal of legal history. Volume 40:Issue 1(2019)
• Page Start: 44
• Page End: 68
• Publication Date: 2019-01-02
• Subjects: Law -- History -- Periodicals; 340.09
• DOI: 10.1080/01440365.2019.1576359
• Languages: English
• ISSNs: 0144-0365

Abstract

ABSTRACT: This article considers the test used to determine the presence or absence of life in newborn babies, in relation to a widower's entitlement to remain in land brought to the marriage by his wife, as tenant by the curtesy of England. To qualify for curtesy, a widower needed to have produced a live and legitimate child, but, since even a short period of life was sufficient, there might be disputes as to whether a child which was now dead had ever been alive. The common law therefore had to develop a way of settling this difficult matter of confirming or denying the presence of life. Several thirteenth-century sources show an emphasis on a sound as an indicator of life. This article considers the use of a sound criterion in this area, arguing that thinking and practice surrounding the appropriate test were more complex, less settled, and more interesting than has been represented in somewhat perfunctory accounts in the work of later lawyers and legal historians. This is significant for the understanding of this area of medieval law, but also has broader implications within legal history and historiography, and for scholars from other fields such as medieval social and medical history.