Dale Delictum - Vel - Peccatum Abortion Canon Law

Delictum vel Peccatum?
An Examination of Legal Cases: Prosecuting

Abortion and Infanticide in Medieval England
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Delictum vel Peccatum?
An Examination of Legal Cases: Prosecuting

Abortion and Infanticide in Medieval England
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Keele University Master of Research

Humanities (History) Dissertation
September 2017
Word count: 21,180

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Contents
Acknowledgements
Introduction 1
Chapters
1) Si qua mulier abortum fecerit: An Analysis of Ecclesiastical and Secular Prosecutions

of Abortion
14
2) Non-compos mentis: An Exploration of the link between Infanticide and Pleas of

Insanity
43
Conclusion 72
Bibliography 77
Cover Illustration: Scene from the life of Germanus of Paris: Eusebia (his mother, right)
attempted an abortion. Paris, Church of Saint-German-des-Prés, the Chapel of Sainte-
Geneviève.
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Acknowledgements
I would like to thank my supervisor Dr Kathleen Cushing for all her invaluable help in regards
to this thesis. I would also like to thank Dr Cushing for all her help and encouragement
throughout my Masters of Research degree and for helping with my PhD applications. I also
want to thank all my family and friends for their constant support and encouragement
throughout what has been a rather difficult year. A very special thank you is made to Nigel
Coulton for his irreplaceable help for the entirety of my Masters year.
Note: I have completed all translations throughout this dissertation with some help and
advice from Nigel Coulton.

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Introduction
Zyf men and woman be so wylde

To fordo a getyng of a chylde
Wyth wurde or dede, syn hyt ys gete,
With mete or drynk that they do yete,
Or other strenkthe, that hyt dye,
Than they doun ful grete foyle;
With sl[au]ghter hast thou there hyd,
That thy lechery ys nat kyd.1
(Robert Mannyng (1303) 8333-8)
Historians have often shied away from the study of abortion and infanticide within medieval
English society, due to preconceived ideas of the scarcity of material available to conduct an
extensive analysis of contemporary medieval opinion. Yet beneath the surface, there is a
trove of information which illustrates that not only were cases of abortion and infanticide
present within medieval society but also, they were considered felonies. There is a
consensus amongst historians that, as Riddle believes, ‘any interference with a fetus before
the “quickening”, the point at which the fetus acquires a soul, roughly around the fourth
month…[was] considered contraception; after ensoulment, it was considered abortion, and
thus a homicide’.2 Therefore, in order for prosecution of abortion cases, the infusion of soul
into the body of the fetus had to have taken place. Without this, the crime was devalued to
attempts to impede conception. However, it must be noted that Latin Christendom did not
condone contraception as will be seen in chapter one. Similarly, infanticide was considered
to be a felony throughout medieval English courts. Moreover, as Sara Butler has argued,
infanticide was perceived to be a single woman’s crime and ‘medieval jurors did adopt a
1
Robert of Brunne’s Handlyng Synne, (ed.) F.J. Furnivall, (Early English Text Society, 1901), p263
2
J.M. Riddle, Eve’s Herbs: A History of Contraception and Abortion in the West, (Harvard, 1999), pp94-95
1
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gendered approach in indicting, prosecuting and sentencing cases of child murder’. 3 It must
be recognised that poverty was a crucial determinant in cases of abortion and infanticide.
Social conditions forced poorer families to seek extreme measures in a time with a lack of
contraception. For a single woman, especially those who broke with rigid medieval ideas of
sexual activity, medieval society was often a cruel and precarious world. Müller echoes
Butler’s idea and argues that sentencing ‘typically depended on the social status of mothers,
victims, and perpetrators, whereas women who willingly ended their own pregnancies
formed a neglected topic of relegation outside church discipline’ and that ‘the modern
procedural principle known as presumption of innocence, in dubio pro reo, did not apply’.4
Although, there is no way of proving conclusively how prevalent abortion and infanticide
was throughout medieval society, their very presence within ecclesiastical and secular court
records illustrates that such crimes did take place and that medieval society saw fit to hold
the perpetrators accountable and punish them accordingly, if in different ways.
This study will examine a range of prescriptive and legal records, ranging from Gratian’s
Decretum (c.1140) to justice iterant records from medieval English secular courts, in order
to determine how abortion and infanticide cases were perceived by ecclesiastical and
secular jurists. In chapter one, an analysis of a range of abortive methods such as ingesting
herbs thought to have abortive properties, will demonstrate that abortifacients were widely
circulated within medieval society, but were considered to be sins that fell under the
jurisdiction of the Church rather than secular law. However, a wide range of abortion by
assault cases will show that this method of abortion was thought of as a crime; arguably due
to the nature of the assault on the pregnant mother as opposed to the death of a fetus. In
3
S. M. Butler, ‘A Case of Indifference? Child Murder in Later Medieval England’, Journal of Women’s History,
19, 4, (2007), p61
4
W.P. Müller, The Criminalization of Abortion in the West: Its Origins in Medieval Law, (New York, 2012), p10
2
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contrast, infanticide features predominantly in secular courts, where examples of infanticide
cases appear in ecclesiastical courts it was largely as a result of parental neglect as opposed
to intentional killing. Interestingly, claims of insanity as a defence plea feature frequently in
infanticide cases; this study will highlight the gender disparity in cases of infanticide, often
married mothers were declared insane and pardoned whereas single women were almost
always found guilty and in extreme circumstances sentenced to burn at the stake. Despite
some pardons for married women, on the whole, infanticide was considered to be a more
heinous crime than abortion and was prosecuted as such. The fundamental aim of this study
is to show that abortion and infanticide were considered felonies in medieval English society
and were both sins and crimes respectively.
Sara Butler’s work on abortion and infanticide within medieval society are extremely
important and useful studies for this thesis. Her articles ‘Abortion by Assault: Violence
against Pregnant Women in Thirteenth-and Fourteenth-Century England’ and ‘Abortion
Medieval Style? Assaults on Pregnant Women in Later Medieval England’ provide useful
analyses of induced abortions in later medieval England. Similarly to the ideas of Müller and
Riddle, Butler asserts that ‘medieval Englishmen defined abortion somewhat differently
than we do today’, in that the “quickening” stage was integral to the definition of medieval
abortion.5 From Butler’s studies, it is apparent that abortion by assault was perceived as a
crime; ‘medieval common law probably viewed abortion by assault as a crime’ and so did it’s
jurors. 6 Butler presents a wide range of primary evidence to support this idea. However,
how far this was considered a crime due to assaults on women as opposed to abortion will
be analysed in chapter one. In conjunction with her analysis of abortion, Butler also
5
S. Butler, ‘Abortion by Assault: Violence against Pregnant Women in Thirteenth-and Fourteenth-Century
England’, Journal of Women’s History, 17, 4, (2005), p9
6
Ibid, p10
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examines the presence of infanticide within later medieval England. Her article is in
response to Barbara Kellum’s ‘Infanticide in England in the Later Middle Ages’. In ‘A Case of
Indifference? Child Murder in Later Medieval England’, Butler examines both ecclesiastical
and secular court cases involving infanticide and child murder. Unlike Kellum who argued
the very commonality of infanticide and child murder allowed them to be condoned even in
court; Butler argues that ‘infanticide was a felony in the middle ages and neither jurors nor
royal officials treated child murder with indifference’. 7 Butler presents some of the most
thought provoking and in-depth analysis of abortion and infanticide within later medieval
society.
Barbara Kellum’s study of infanticide features within the History of Childhood Quarterly
journal amongst other studies of infanticide. Kellum argues that infanticide was not
prosecuted within medieval society. However, this thesis seeks to disprove these ideas,
demonstrating that infanticide was not tolerated within medieval society nor with medieval
jurors of both secular and ecclesiastical jurisdictions. Richard Helmholz’s ‘Infanticide in the
Province of Canterbury during the Fifteenth Century’ also features within the journal and
makes the conclusion that infanticide was only considered to be a sin and as such only
prosecuted in ecclesiastical courts. One of the criticisms of an otherwise very well-
constructed and convincing argument is that Helmholz only focuses on church court records
and exclusively records from the diocese of Canterbury. Though, unlike Kellum, Helmholz
insists that ‘the existence of these [records] suggests that…[they] provide solid evidence
about infanticide in medieval Europe’.8 Furthermore, Helmholz also references cases of
7
B. Kellum, ‘Infanticide in England in the Later Middle Ages’, History of Childhood Quarterly 1, no. 1, (1974), p
372 and S. M. Butler, ‘A Case of Indifference? Child Murder in Later Medieval England’, p59
8
R. H. Helmholz, ‘Infanticide in the Province of Canterbury during the Fifteenth Century’, History of Childhood
Quarterly 1, no. 3 (1975), p378
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abortion, noting that ‘there is no indication that they were dealt with more or less severely
than killing a newly born infant’. 9 Whilst the conclusions drawn by Kellum and Helmholz may
not reflect contemporary evidence, they, nonetheless, influence and contribute to the
historiography of infanticide within medieval society. However, as this thesis will show, not
only was abortion and in particular infanticide, present in medieval society, it was
considered a crime and was prosecuted in ecclesiastical courts where infant death was the
result of parental neglect but more often secular law courts and treated as intentional
homicide.
Carole Rawcliffe’s examination of medieval medicine and women was most helpful in
recognising the correlation between infanticide and claims of insanity. In Medicine and
Society in Late Medieval England (1999), Rawcliffe shows how medieval preoccupations with
the frailty of women and the cold and wetness of their biological structure, allowed them to
easily be labelled as insane.10 However, few people chose to label themselves as insane, as
Leyser argues, ‘pleas of insanity were sufficiently unusual for this to be a striking for of
defence’.11 Yet remarkably, in infanticides cases involving married mothers, pleas of insanity
were, sometimes, an accepted form of defence resulting in the defendant receiving a
pardon from the court. The bond of motherhood was thought to be so strong that one who
killed her children must be insane; that was the only logical explanation.
John Riddle’s Contraception and Abortion from the Ancient World to the Renaissance, is
most a most helpful companion for the study of abortion alongside Wolfgang Müller.
9
Ibid, p381
10
C. Rawcliffe, Medicine and Society in Late Medieval England, (London, 1999), p171
11
H. Leyser, Medieval Women: A Social History of Women in England 450-1500, (London, 1995), p132
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Similarly to Rawcliffe, Riddle’s analysis of the different methods of procuring abortions in
the middle ages demonstrates that knowledge of abortifacients was widespread in medieval
society, despite the Church’s condemnation of such potions to procure abortions. Riddle
details the various herbs and plants which were thought to bring about an abortion. Riddle
argues that ‘for a modern historian, any attempt to reconcile the church’s position on
abortion…is summarily difficult and ultimately unrewarding’. 12 However, as chapter one will
demonstrate, the consensus of the Church was that abortion was considered to be a
homicide if the “quickening” stage had occurred; anything less than this was contraception
which was also prohibited. However, it must be recognised that despite the Church’s efforts
to control the private lives of its members, it was not possible. Therefore, we might expect
the reality of medieval life to differ from the prescribed ideals promoted by the Church’s
teachings. That is not to say that historians are unable to construct a thorough analysis of
abortion and indeed infanticide in the middle ages. Through a close examination of
prescriptive texts, medical treatises and court documents such as coroners’ rolls and justice
itinerants, contemporary medieval opinions towards abortion and infanticide become
apparent.
Wolfgang Müller’s, The Criminalization of Abortion in the West: Its Origins in Medieval Law
(2012), is an important, recent study examining the legal prosecutions of abortion and
infanticide cases in medieval European society. Müller presents a well-structured and
convincing argument regarding the evolution of abortion within both medieval ecclesiastical
and secular law. Müller argues that abortion became not only a spiritual crime which
required an act of penance but also a crime punishable by secular jurisdiction. In line with
other historians such as Riddle and Butler, Müller places significance upon the “quickening”
12
J.M. Riddle, Contraception and Abortion from the Ancient World to the Renaissance, (Harvard, 1994), p116
6
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stage in determining prosecutions for abortion. Although, as the title suggests, Müller
focuses specifically on abortion with only brief notes of infanticide, he acknowledges that
infanticide was also considered a felony in medieval society. Müller recognises that one of
the most challenging aspects of research into the middle ages is the difficulty of
understanding medieval legal terminology. According to Müller, twelfth-century Bologna
was the driving force behind the evolution of medieval ecclesiastical and secular law; ‘it was
there that the present-day notion of crime was differentiated systematically and in wholly
unprecedented fashion from other forms of wrong such as “sin” and “tort”’. 13 Müller asserts
that Gratian’s Decretum (c.1140) was one of the most influential legal texts to be produced
during the middle ages. Although he was a canonist, Gratian’s popularity, not only within
ecclesiastical circles, but also amongst secular courts emphasises that ‘clerical culture was…
instrumental in carrying the theoretical equation of abortion and homicide beyond the
limits of church administration’.14 Müller’s examination of abortion and its evolution into
both medieval and ecclesiastical law is an instrumental study to this thesis.
As previously stated, this thesis will include an examination of a range of prescriptive and
legal texts including, but not limited to, penitential documents, justice itinerants and
coroners’ rolls. It seemed most obvious to focus on a range of ecclesiastical and secular
documents, given that, as James Brundage has demonstrated:
most of the records that survive form the European Middle Ages are legal
documents. They include such things as charters, registers, writs, contracts, wills,
court rolls, tax records, and other written instruments of civil administration. They
13
W. P. Müller, The Criminalization of Abortion in the West: Its Origins in Medieval Law, p1
14
Ibid, p66
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also include ecclesiastical legal documents, such as the canons of councils and
synods, collections of church law, the act books and cause papers of ecclesiastical
courts, bishops’ registers, mandates, memoranda, formularies, monastic cartularies,
and numerous other artefacts of ecclesiastical administration. 15
However, legal sources present their own problems for historians. Often, historians of the
middle ages have to contend with partial sources; parts of manuscripts or court documents
that provide a glimpse into the past. Therefore, the possibility of constructing the “lived
experience” of medieval peoples is challenging. Nevertheless, the sources do offer an insight
into medieval opinions and what they believed was important to society. Both secular and
canonical law texts propose difficulties for historian; they are somewhat ambiguous in their
basic, “at first glance”, so to speak, examination. Towes maintains that as historians, ‘we
must recognize that we have no access, even potentially, to an unmediated world of
objective things and processes’.16 Historians, therefore, as Gabrielle Spiegel asserts, ‘have no
givens-no readymade chronicle of events or histories-and must construct their narratives on
the basis of some positive (if ideologically impressed) visions of the past’. 17 The so-called
visions are constructed from chronicles or documents which offer, to some extent, a “truth”.
Records such as visitations were recorded by clerks who accompanied the bishop as he
travelled throughout his diocese. Brundage has suggested that ‘the ‘clerics’ who appear in
ecclesiastical documents were not always religious professionals’; they only chose to
document what they believed to be relevant. 18 Frustratingly, historians ‘face a constant
15
J.A. Brundage, Medieval Canon Law, (New York, 1995), p1
16
J. Towes, ‘Intellectual History after the Linguistic Turn: The Autonomy of Meaning and the Irreducibility of
Experience’, American Historical Review, 92, (1987), p901
17
G.M. Spiegel, The Past as Text: The Theory and Practice of Medieval Historiography, (USA, 1999), p52
18
J.A. Brundage, Medieval Canon Law, p2
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battle to find material’ and the ‘reliance upon traditional materials, constricts historians and
puts many aspects of the past beyond our knowledge’.19
Spiegel, among others, has argued that postmodernism has challenged historians to
examine historical texts in a new way, whilst recognising that it may not be possible to
extract all the facts conclusively.20 Harlan has eloquently stated that, ‘postmodern literary
criticism has become so powerful and influential across such a broad range of disciplines,
and it has raised so many troubling questions about the conceptual foundations of history
itself, that historians can no longer ignore it’. 21 With that in mind, a re-evaluation of
medieval writing is critical to historians understanding of the past. It seems that,
‘increasingly, historians have come to accept the idea that written history does not simply
correspond to some external reality’.22 Therefore, in terms of the discipline of History, if
‘historical documents themselves do not reflect past realities, then the historian is
inescapably immersed in a series of discursive and textual enactments constituted by the
linguistic systems of the past, which cannot vouchsafe access to its realities’. 23 So can
historian ever truly analyse and conclusively determine the events of the past? Given the
reliance of this thesis on prescriptive and penitential texts as well as court documents, the
very nature of these texts presents problems. Undoubtedly, the “lived experience” will differ
somewhat from what is prescribed. However, it has been suggested by Greta Austin that
Burchard of Worms Decretum (c.1023) reflected upon contemporary events and as such,
Burchard’s prescriptions offer a more accurate insight into the lives of those living in the
19
J. Black, ‘Approaches to History: Sources, Methods and Historians’, in J. Black and D.M. MacRaild, Studying
History, (Basingstoke, 2007), p89 and p92
20
G.M. Spiegel, The Past as Text: The Theory and Practice of Medieval Historiography, p3
21
D. Harlan, ‘Intellectual History and the Return of Literature’, American Historical Review, 94, (1989), p582
22
B.W. Scholtz, Review of The Past as Text: The Theory and Practice of Medieval Historiography, by G.M.
Spiegel, The American Historical Review, 104, 2 (1999), p256
23
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medieval diocese of Worms.24 An examination of secular court records alongside
prescriptive texts is necessary in determining the disparity between the ideal and the “lived
experience”. Whilst prescriptive texts provide an idealistic interpretation of medieval
society, courts records demonstrate contemporary events and how they were dealt with.
However, that is not to say that, the aim of this thesis is not possible, on the contrary, an
extensive analysis of both ecclesiastical and secular records will create a more diverse and
complete picture of medieval opinions and responses to abortion and infanticide cases.
One of the most difficult but important factors to distinguish when deconstructing medieval
documents is language. Spiegel’s essay, ‘Towards a Theory of the Middle Ground’,
thoroughly analyses the postmodern approach to language and its interpretation within
medieval writings. Language, as is the case with many other cultural traditions, does not
remain linear; it does not remain constant and therefore neither does it meaning. 25 It would
be naïve to presume that medieval terminology holds the same connotations as its modern
descendants. Following the development of a postmodernist approach to historical records,
one cannot simply read a document at its face value, rather it is important to read “about
the grain” in order to determine its meaning. Medieval terminology, in its various forms and
meanings, presents a wide range of problems in understanding medieval law. What would
constitute as a crime in the modern understanding of the world is different from what our
medieval ancestors understood as a crime. The complicated nature of medieval society, in
its collaborative yet distinguishing relationship of Church and state created two judicial
systems, which were inter-dependent but different. “The social logic of the text”, a term
coined by Spiegel, ‘combines an insistence on seeing language as socially generated with an
24
G. Austin, Shaping Church Law around the Year 1000: The Decretum of Burchard of Worms, (Farnham, 2009),
p40
25
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equal insistence on understand the discursive character of all texts as literary artefacts’. 26 A
text cannot simply be understood by its language, as behind the language stands only more
language, more text which reforms itself again and again. Medieval documents cannot be
simply understood from their text in its most basic form. Assessing terminology as well as
the social context in which they were constructed is imperative in order to fully appreciate
and comprehend the nature of the text.
Medieval legal terminology can be best displayed in the disparity between ecclesiastical and
secular jurisdictions. Brundage’s summary of the differentiation of the two legal systems is
more useful: secular courts approved punishments such as death and confiscation of lands
for those convicted of heinous crimes; the Church refrained from imposing sentences that
involved death, and instead authorised canonical punishments including excommunication,
public penance, imprisonment, whipping, fines and possible enslavement or a combination
of the above, depending on the severity of the case. 27 The systems; however, were not
completely separate from each other; they operated in a collaborative relationship. Despite
this close relationship, their terminology did differ somewhat. According to Müller:
by 1234, the notion of sin had been relegated to the realm of God’s justice, tort
consistently described legal complaints aiming at the restitutions of damages, and
crime regularly referred to behaviour deemed punishable as such, with prosecutions
often being supplemented by “civil” proceedings in pursuit of compensatory claims. 28
If historians are to accept Müller’s distinction, then abortion and infanticide are
simultaneously crimes against God and therefore liable to God’s justice – they are ‘sins’
26
Ibid, p53
27
J.A. Brundage, ‘Rape and Seduction in the Medieval Canon Law’, in V.L. Bullough and J.A. Brundage (eds),
Sexual Practice and the Medieval Church, (New York, 1982), p145
28
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demanding penance- as well as behaviours which are considered to be punishable by
secular courts.
Further to the analysis of language, it is important to consider the underlying social
contradictions that existed in an exclusive, misogynistic society. In regards to abortion and
infanticide, a clear division arises in legal proceedings. Brundage has argued that ‘canon law
was…remarkable because, at least in principle, its rules applied equally to everyone,
regardless of gender, class, or social standing’. 29 However, the reality was somewhat
different. The ways in which canon law was interpreted and thus delivered was at the
discretion of church courts who were authorised to sentence and distribute acts of penance.
One issue that Butler has identified ‘lies in discovering whether these treatises [such as
30
Burchard and Gratian’s Decretums] accurately reflected contemporary court practices’. In
terms of abortion and infanticide, this could potentially be problematic, in the fates of those
accused, particularly women or those of a lower social standing, as they lay in the hands of
those empowered to interpret the law in whichever way they chose to. Yet it must be said
that accusations of abortions by assault, rape and spousal violence gave woman a platform
with which they could partake in the medieval judicial system, which often excluded them.
Therefore, ‘the development of this area of the law from Gratian to the end of the medieval
period tended to secure a greater personal autonomy for the individual, and particularly, for
the women in late medieval society’.31
That is not to say that one should not attempt to reconstruct contemporary medieval
opinions of abortion and infanticide. Through an examination of ecclesiastical and secular
29
30
England’, p12
31
J.A. Brundage, ‘Rape and Seduction in the Medieval Canon Law’, p141
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jurisdiction records, the past becomes much clearly. It was following Gratian’s Decretum
(c.1140) that abortion became not only a spiritual crime that required an act of penance but
also a crime punishable by a secular court. The change in prosecution of abortion and its
evolution from a ‘sin’ to a crime of homicide highlights a change in medieval opinion, albeit
a canonical evaluation of crime. The evolution of medieval law and in particular its
relationship with abortion and infanticide determines its significance within medieval
society. Though, as one would imagine, it is not always as distinctive as that. The records
illustrate a general trend of infanticide being regarded as a felony and homicide, yet not all
women were convicted and sentenced accordingly. Similarly, abortion cases were often
referred to ecclesiastical jurors unless assault on the pregnant woman had occurred in
which instance they were referred to secular courts. The fundamental aim of this thesis is to
determine how abortion and infanticide were understood within medieval society and
whether they were regarded as sins or crimes. Through an analysis of prescriptive and legal
documents, including but not limited to, Gratian and Burchard’s Decretums, Henry de
Bracton’s On the Laws and Customs of England, and a wide range of ecclesiastical court
records as well as justice itinerants and coroners’ rolls, this study will demonstrate that at
times they were both sins and crimes; that the legal systems and practices of medieval
Europe construed the lines of sin and crime – cases of abortion and infanticide cases provide
the best example of this.
Si qua mulier abortum fecerit: An Analysis of Ecclesiastical and Secular
Prosecutions of Abortion
‘Abortion in history is a subject from which many historians have shied away. Given the
paucity of the historical documentation (among other various and sundry political and
13
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ethical factors), it is not a surprise’. 32 Yet, one only has to peer behind the vale to find a
wealth of information, both from ecclesiastics and jurists, to show that abortion within
medieval society may not be as evasive as initially believed. This is not to say that medieval
church and secular courts were flooded with cases of abortion; it was, as it remains today,
an extremely taboo subject, which was not publicly spoken about within the community,
and those who were prosecuted for such crimes were often ostracised. 33 Despite the threats
associated with abortion prosecutions, many unfortunate women found themselves in
delicate situations; often those unborn who were aborted were illegitimate, the product of
copulation between unwedded persons, though often it was the lower echelons of society
who felt this burden most severely. However, even though the actual number of recorded
illegitimate births was few, as Riddle has noted, ‘we certainly shouldn’t be satisfied with
assuming that “in traditional society people remained continent until married”, since many
girls managed to hide their pregnancies from their own mothers who slept beside them’, so
assuredly they were able to conceal their condition from local parish priests or jurists. 34
Although for those women who were not so successful at concealing their condition, they
faced the hazardous and often deadly task of trying to procure an abortion – and when all
else had failed, acts of infanticide- of which they were presented with concoctions of
revolting drinks and ointments which were believed to have abortive qualities. Both secular
and ecclesiastical law vehemently opposed abortion as an effective contraception method
and promoted abstinence until marriage. Prescriptive texts present examples of actions to
be taken by priests and jurors when presented with women who had aborted their fetus.
Yet the line of demarcation between ecclesiastical and secular jurisdiction for abortion is
32
S. M. Butler, ‘Abortion Medieval Style? Assaults on Pregnant Women in Later Medieval England’, p795
33
J.M. Riddle, Contraception and Abortion from the Ancient World to the Renaissance, p143
34
L. Demause, ‘The Evolution of Childhood’, in (ed.), L. Demause, The History of Childhood, (New York, 1974),
p29
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often blurred. Was abortion considered to be a crime or a sin? In order to successfully
determine the answer to this question, it is imperative to examine both secular and
ecclesiastical cases of abortion, which occurred in Medieval Latin Christendom, as well as
prescriptive texts intended for legal and penitential use.
Medieval Europe, as Brundage has demonstrated, possessed ‘multiple legal systems…
[which] coexisted and overlapped within the same town or region, each with its own
complex rules and conventions as well as its own system of courts that applied them’. 35
Despite the many different legal systems, the Roman Church held dominance over almost all
of medieval Christian society, and it is upon their teachings that many secular courts relied.
From the late antiquity period, ‘canonical authorities had regarded the wilful ending of
prenatal life as a serious offense and threatened perpetrators with…eternal damnation’ and
despite their often barbaric reputation, ‘the Greeks and Romans were actually an island of
enlightenment in a sea of nations still in an earlier stage of sacrificing children to gods, a
practice which the Romans tried in vain to stop’. 36 Their attempts at halting the untimely
deaths of infants was further enhanced towards the end of the Roman Empire in the West;
‘the law began to consider killing an infant murder…in 374A.D’. 37 From the ruins of the
Roman Empire emerged an unstable Catholic Church, which sought to assert its dominance
upon society. One area of medieval life in which it flourished in its attempts to protect the
moral conscience of its members was the domestic sphere. The Church strived to protect
the moral integrity of its subjects and one of the areas in which this was both a success and
failure was the regulation of premarital sex and abortion. The Catholic doctrine was simple:
sexual activity within the confines of the sacred vow of marriage for the purpose of
35
36
W. P. Müller, The Criminalization of Abortion in the West: Its Origins in Medieval Law, p47 and L. Demause,
‘The Evolution of Childhood’, p27
37
Ibid, p28
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procreation was valid; any other sexual desires or activities were strictly prohibited.
However, as Alan Macfarlane has argued, for England in particular, the lower echelons of
society tended to marry in their mid to late twenties (often due to economic pressures) and
as a result, ‘many people had to wait for so many years between sexual maturity and fully
sanctioned sexual intercourse within marriage’. 38 Though it does not seem probable to
assume that people were willing to wait for such a thing as marriage; and this is evident
from the number of cases of abortion, abortion by assault and infanticide throughout
medieval Europe as well as prescriptive texts condemning those who sought abortions and
infant deaths as a form of contraception. It seems that ‘pregnancy outside of wedlock was a
serious problem in late medieval England in both its rate of recurrence and pervasive
censure’.39 In response to this, medieval laypersons were consistently reminded by the
Catholic Church of its condemnation of sexual activity outside the realms of marriage; as
Riddle argued, ‘the church and to some extent secular law now to sought to control [not
only] sexual behaviour… [but also] antibirth controls’.40
As previously stated, the Roman Catholic Church made clear their abhorrence for abortion
practices. From the early Church, theologians had expressed their disapproval of methods
such as herbal remedies for trying to prevent conception or relieve oneself of an unplanned
and unwanted foetus. Yet from the twelfth century, the church reinvigorated its stance on
contraception and abortion with renewed strength. From within the walls of the University
of Bologna arose a group of law students who sought to redefine medieval law based on
ancient canonical texts to enable jurists, in both ecclesiastical and secular courts, to
38
A. Macfarlane, ‘Illegitimacy and Illegitimates in English History’, in (ed.), P. Laslett, K. Oosterveen and R.M.
Smith, Bastardy and its Comparative History, (Harvard, 1980), p71
39
40
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administer appropriate justice. The most notable canonical collection to emerge was
Gratian’s Decretum, thought to have been written sometime close to 1140. It provided
extensive legal prescriptions ‘into an intellectually consistent and unified system’. 41 As
Wolfgang Müller so eloquently explains ‘Gratian displayed the normative tradition in an
unprecedented dialectic arrangement, juxtaposing canones in support (pro) as well as
against (contra) propositions thought to reveal the canonical truth’. 42 Gratian’s stance on
abortion was abundantly clear: ‘he who procures an abortion before the soul is infused into
the body is not a homicide; however, if the fetus had acquired its soul, then it should be
judged the same as homicide against a living person’. 43 Gratian’s attitude towards abortion
is rooted in the questions on Exodus of St. Augustine. According to Augustine:
si donc l'enfant existe déjà, mais informe en quelque sorte, quoique animé, (sur
cette grande question de l'âme, il serait téméraire de prononcer à la hâte un
jugement irréfléchi,) la Loi ne veut pas que ce soit un cas d'homicide. Supposé en
effet qu'une âme vivante puisse exister dans un corps informe et par conséquent
privé de sensibilité, on ne peut dire cependant que cette âme vit, tant que le corps
n'est pas doué de ses sens (If, then, the child already exists, but is somehow
unformed, though it has a soul, (on this great question of the soul, it would be rash
to pronounce in haste, an unreflective judgement), the law does not wish that this
case be homicide. Supposing, in fact, that a living soul can exist in an unformed body
41
42
43
Gratian, Concordia Discordantium Canonum ac Primum de Iure Naturae et Constitutionis: C. VIII. Non est
homicida qui aborsum procurat ante, quam anima corpori sit infusa,
http://geschichte.digitale-sammlungen.de/decretum-gratiani/kapitel/dc_chapter_3_3287 (Accessed:
07/08/2017)
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and consequently deprived of sensibility, it cannot be said that this soul lives, so long
as the body is not endowed with its sense).44
The idea of a formed and unformed fetus is echoed throughout all medieval sources
regarding abortion; whether they be ecclesiastical or secular. John Riddle explains the ideas
behind this judgement:
any interference with a fetus before the “quickening”, the point at which the fetus
acquires a soul, roughly around the fourth month, the church considered
contraception; after ensoulment, it was considered abortion, and thus a homicide. 45
Therefore, the ‘quickening’ phase was the crucial demarcation between contraception
(which although condemned by the Church, had less severe punishment) and abortion. It
was thought that at this point in fetal development, it would transition from an embryo into
something that resembled a human, possessing arms and legs, a heart, a soul and
movement within the womb. It is interesting to note that the ‘quickening’ stage was thought
to have taken place around eighteen weeks, roughly the same at which abortion is
permitted in some modern cultures such as United Kingdom and America. 46 Echoes of
Gratian’s distinction between unformed and formed, contraception and abortion can be
found amongst many medieval theorists. Petrus Cantor, in his Summa de sacramentis et
animae consilis (c.1180), bears a striking resemblance to Gratian. For Cantor:
Moses assigns harsher punishment to the person who eliminates [excutit] a formed
and alive fetus than to someone who eliminates while [the fetus] is still unformed. 47
44
St. Augustine, Question LXXXI Exodus, https://sites.google.com/site/aquinasstudybible/home/exodus/st-
augustine-questions-on-exodus--french, (Accessed: 07/08/2017)
45
J.M. Riddle, Eve’s Herbs: A History of Contraception and Abortion in the West, p94
46
England’, p9
47
Petrus Cantor, Summa de sacramentis et animae consilis, vol. 3, Liber casuum conscientiae 369, (ed.), J.A.
Dugauquier, Analecta mediaevalia Namurcensia 21, (Louvain, 1967), p561-562
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The reference to Moses as the authoritative factor in determining the differentiation
between abortion and contraception, can be found in the biblical verse of Septuagint
(Exodus 12:22-23) which they had attributed to Moses and the Ten Commandments. 48 The
text is as follows:
If men strive, and hurt a woman with child, so that her fruit depart from her, and yet
no mischief follow: he shall be surely punished, according as the woman’s husband
will lay upon him; and he shall pay as the judges determine. And if any mischief
follow, then thou shalt give life for life. Eye for eye, tooth for tooth, hand for hand,
foot for foot. Burning for burning, wound for wound, stripe for stripe.49
Clearly, medieval theorists were against such crimes, yet how they were dealt with varied
depending on location and the influence of the Church. One of the most noteworthy
canonists of this period was Burchard of Worms. Although he was Bishop of Worms in the
eleventh century, his works continued to be utilised and studied even after Gratian’s
Decretum had become the standard law text book used in universities throughout Latin
Christendom. In Burchard’s collection, books seventeen and nineteen are most useful in
defining ecclesiastical views on abortion. Burchard affirms that abortion was a heinous
crime and the consequences of such were not to be taken lightly. In Decretum 17:60,
Burchard explains the consequence of abortion:
si qua mulier abortum fecerit voluntaire, tribus annis poeniteat. 50
48
49
Exodus 21:22-25 (Vulgate)
50
Burchard of Worms, Decretum libri XVII, (ed.) J.P Migne (Patrologia Latina, Paris, 1841-64), 140:934
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Burchard’s ideas are reflected by other prescriptive texts. Irish penitentials also believe that
penance should be undertaken if an abortion has been performed, though they differ on the
severity of the punishment. This Irish penitential (c.800) stated:
(5.6) A woman who causes miscarriage of that which she has conceived after it has
become established in the womb, three years and a half of penance. If the flesh has
formed, it is seven years. If the soul has entered it, fourteen years’ penance. 51
Here it is once again apparent that the infusion of soul and body is a critical étage of fetal
development. Interestingly, the Irish Penitential makes a definite distinction between the
different stages of embryotic development that is rarely seen in penitential works.
Nonetheless, it is extremely useful to historians in determining the extent to which abortion
was punished throughout medieval society. The idea of repenting one’s sins through acts of
penance decided upon by a person’s confessor had been promoted during the early years of
the Church. However, prior to the Fourth Lateran Council of 1215, public penance had been
the preferred the method; whereby priests forgave sins in public ceremonies in which
sinners publicly confessed their guilt and the priest dispensed the appropriate form of
punishment. It is important to note that this form of penance could only be performed once
in a person’s life thus ‘many Christians understandably chose to postpone repentance until
late in life’.52 At the Fourth Lateran Council, it had been determined that all peoples in Latin
Christendom were to confess sins to their local parish priest in secret and at least once a
year.53 However, Müller has suggested that public penance continued in areas such as
northern France and Germany until the fourteenth century. 54 The priest would consult
51
Old Irish Penitential 5.5-6, in (ed.) J.T. McNeil and H. Gamer, Medieval Handbook of Penance, (New York,
1938), p166
52
53
54
Ibid, p5
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penitential texts such as Burchard of Worms to determine the exact time and intensity of
penance a sinner should perform. Nevertheless, this practice is not without its limitations.
That the priest was sworn to sacramental secrecy whilst under the vow of confession; it is
possible that many notorious crimes, which might have been prosecuted under secular
courts, went under the radar due to the absolute privacy of confession. 55 Where the Church
could not cast a severe enough punishment, secular courts were involved; ‘although church
lawyers, guided by Gratian, paved the way for the theoretical equation of abortion with
attempted and actual homicide, Bolognese civilians first associated the offense with
punishments that nowadays are clearly recognizable as criminal ones’. 56 Nonetheless,
secular prosecution of abortion was not just limited to Bologna. England was one of a few
countries within Latin Christendom to adopt the standpoint of the Church into its secular
laws. The reason for this is most simple. One of the most well-known medieval English
secular law books De Legibus et Consuetudinibus Angliae (On the Laws and Customs of
England), is attributed to Henry de Bracton (c.1210-c.1268) and is an almost exact, word for
word, copy of Raymond de Penyafort’s Summa de casibus poenitentiae (1224-1226).57 In
regards to abortion, Raymond states that:
If the fetus was already formed and animated, he is truly a homicide if the woman
suffered a miscarriage through the beating or through the potion, because he killed a
human being. If he killed, however, [a fetus] not yet animated, he shall not be called
a homicide insofar as irregularity is concerned, but he shall rather be considered a
“quasi-homicide” [ut homicida] with regard to penance.58
55
Ibid, p6
56
57
Ibid, p67
58
Raymondus de Penyafort, Summa de penitentia 2.1 (De homicidio), (ed. and trans) X. Ochoa and A. Diaz,
(Rome, 1976), p448
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In striking resemblance, Bracton declares that ‘if the fetus is already formed or quickened,
especially if it is quickened, he commits homicide’. 59 Likewise, another book on the common
law of England, the Fleta, with a subtitled section Commentarius juris Anglicani
(Commentary on the Law of the English), echoes Bracton in that a person who ‘has pressed
upon a pregnant woman or has given her poison or has struck her in order to procure an
abortion or to prevent conception, if the fetus was already formed of quickened’ was guilty
of murder.60 The ideas of the Church had thus been espoused by English common law.
Interestingly, both Bracton’s treatise and the Fleta were written during the latter half of the
reign of Edward I; just two generations later and abortion would no longer be considered a
crime within English common law and would not resurface until the latter half of the
sixteenth century; ‘for the period from 1348 to…1557, there is no evidence that royal
justices [in England] went on to prosecute prenatal homicide as a punishable act’. 61 One
explanation for the rejection of abortion as a punishable act by the English courts is a revival
of scholarly interest into ancient texts concerning abortion. From this arose a school of
thought which rejected the aforesaid notion that abortion constituted as a secular judicial
matter. One such treatise Mirror of Justice (c.1290), attributed to Andrew Horne, stated
that:
Of infants killed ye are to distinguish whether they be killed in their mother’s womb
or after their births; in the first case it is not adjudged murder; for that none can
59
Henry de Bracton, De Legibus et Consuetudinibus Angliae, (ed.) G.E. Woodbine and (trans.) S. E. Thorne,
(Cambridge, 1968), 2, p341
60
Fleta, (ed. and trans) H. G. Richardson and G. O. Sayles, Selden Society, 72 (London, 1955), bk. 1, c. 23, pp60–
61
Although not previously stated, both Bracton and Raymond de Penyafort reference assaults on pregnant
women and abortifacients as homicide. Both of the above-mentioned forms of abortion will be analysed in
further detail as the chapter progresses. Moreover, they all conclude that, once again, the quickening stage is
crucial for the prosecution of abortion cases.
61
22
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judge whether it be a child before it be seen, and known whether it be a monster of
not.62
It is interesting to note Horne’s reference to monstrous children. Medieval customs
interpreted monstrous birth as sign from God, its deformity was a physical depiction of its
parent(s)’ moral depravity. As Butler noted, ‘a woman who conceived outside of marriage
or within the bound of an adulterous relationship might expect to give birth to a monster,
and thus have her immorality exposed publicly’. 63 Horne further asserts that ‘that killings of
children before and during the first year of life would always fall under church jurisdiction’. 64
From now on, according to Horne, any such matter concerning abortion should be
punishable by form of penance rather than more severe terms which could be imposed by
secular courts. Horne is not alone in this assertion. The author of Britton (c.1300) also
proposed this idea; ‘Britton states, because unborn victims did not fulfil the legal
requirement of a proper name, conferred through baptism’ secular law was not obliged to
offer the fetus the same legal protection which would be offered to a “living” person. 65 Thus,
there seems to be a theory that unborn children did not possess the same rights as those
who had been delivered into the world. The idea of a named child is also repeated by the
Liber Assisarum (c.1348) who stresses its importance:
Nobody is obliged to answer to a felonious appeal, if the private accuser has not
named the killed individual… This poses the question of whether someone who kills
a child in the mother’s womb shall suffer capital punishment. I do not think so, for
62
England’, p12
63
Ibid, p12
64
65
F. Nichols (ed. and trans), Britton 1.24.7, (Oxford, 1865), p114
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neither does the victim possess a name, nor was he or she present in the nature of
things [in rerum natura].66
Therefore, ‘is the embryo a human being in its own right, or, so long as it cannot live
independently, ought it to be treated as an extension of the mother’s body?’. 67 It would
seem that a fetus that had not been delivered into the world and had not received its
baptism, did not qualify for legal protection. This would certainly help to explain the shift in
the prosecution of abortions cases in English royal courts.
However, it can be argued that secular courts in medieval England only ever viewed the
embryo as an extension of the mother’s body and this can be seen through the abortion by
assault appeals; Butler states that ‘the records themselves suggest that the beliefs of
medieval jurors regarding abortion by assault may have been more complex than has been
imagined previously’.68 The cases themselves rarely appear after the first half of the
fourteenth century with many taking place in the reigns of Henry III and Edward I. Despite
the deficiency of abortion related sources, the ones that survive do highlight many pressing
issues of social status and unwanted pregnancies. Coroners’ inquests and Justice Itinerants
records are unique sources of information for the lives of peasants, villagers and lower
classes in towns and urban areas, ‘the nobility and wealthier urban families seldom
appeared…they would usually be exempt from most judicial procedures’. 69 Such exemptions
were not extended to the poor; their unwanted offspring would often be burdens upon an
already struggling community, the poor were the ones who bore the shame of illegitimate
66
Les livres des assises, (22 Ass. Pl. 94), (London, 1679), p106
67
K. Kapparis, Abortion in the Ancient World, (London, 2002), p33
68
England’, p10
69
B.A. Hanawalt, ‘Childrearing Among the Lower Classes of Late Medieval England’, The Journal of
Interdisciplinary History, 8, 1, (1977), p3
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children and it was poor single women who were most affected by unwanted pregnancies. 70
As stated before, laypersons usually waited until their mid-twenties before marrying and as
a result, many young women found themselves in compromised positions. The most
obvious solution to their problem would have been to marry the father of their child; this
was not an option for everyone, if the father of the child happened to be a priest or simply
refused to marry there was, realistically, little a woman could do. If she chose not to
undergo an abortion which frequently consisted of abortifacient potions, often the
‘concoctions were too revolting to drink in adequate doses, others could prove fatal and the
vast majority were simply useless’, then she would be shamed and ostracised by her
community and very little chance of future marriage. 71 The use of abortifacients as useful or
often futile attempts at abortions will be discussed at a later point. The shame and
embarrassment that a woman could expect should she fall pregnant outside of wedlock is
poignantly described in the poem below:
When I go outside,
Everybody looks at me as if I were some kind of monster.
When they see my stomach here they all nudge each other,
And go quiet as I walk by. They are always poking each other with their elbows,
Pointing their fingers at me, as if I had done something miraculous.
They point me out with nods and judge me worthy of the pyre, because I once
sinned.72
70
C. Rawcliffe, Medicine and Society in Late Medieval England, (London, 1999), p204
71
Ibid, p204
72
N. Cartlidge, “‘Alas I go with Chylde’: Representations of Extra-Marital Pregnancy in the Middle English Lyric”,
English Studies, 4, (1998), p400
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Huc usque me miseram; Carmina Burana (C.1200)
It is little surprise, with such treatment, that many women with unwanted pregnancies went
to extremes to procure an abortion. However, the punishment that desperate mothers
received varied upon their true intentions. As Burchard of Worms stated in his Decretum
20:6:
‘nam quoties conceptum impedierat, tot homicidiorum rea erit. Se distat multum,
utrum paupercula sit, et pro difficultate nutriendi, vel fornicaria causa, et pro sui
sceleris caelandi faciat’ (it makes a big difference whether she is a poor little woman
and acted on account of the difficulty of feeding, or whether she acted to conceal a
crime of fornication).73
However, sometimes it was not necessarily the women themselves who actively pursued an
abortion. Thus, if a woman had not actively sought an abortion should it be classified as an
abortion? As Sara Butler demonstrates ‘assault causing a miscarriage was the basis of
England’s legal definition of abortion’ and ‘while today “abortion” seems like an
inappropriate term for a physical attack of this nature, that is exactly how the medieval
world described it’.74 Whilst it may appear that the definition of abortion is the wilful
termination of a pregnancy by the mother, medieval and modern definitions give no such
specific distinction; even though it seems obvious that an abortion is usually undertaken by
a mother. Yet, as the records prove, abortions were sometimes taken out of the control of
the mother, sometimes at the hands of her own husband and at other times by people
within their community. An examination of a selection of abortion by assault cases
73
Burchard of Worms, Decretum libri XX, 140:972
74
England’, p10 and S. M. Butler, ‘Abortion Medieval Style? Assaults on Pregnant Women in Later Medieval
England’, p780
26
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throughout the latter half of thirteenth and first half of the fourteenth centuries, while
sparse, help to improve the understanding of abortion cases in medieval England and how
jurists sought to prosecute those responsible. In 1348 the Lincolnshire Eyre records that the
adjudication of prisoner at York found William of Garton (Wilhelmus de Garton) indicted for
having slain the child of his pregnant wife Elena. It must be stressed that this was not due to
the fact that Elena had lost the child but rather because William’s rage against her had been
so severe that she had died as a result. 75 The Southampton Eyre of 1280 tells of a certain
Walter and company who had been accused of beating Alicia, wife of Adam le Prest, causing
her to deliver just one month into her pregnancy. Alicia accused Walter and his accomplices
of intentional killing; however, the jurors refused to accept her claim and refused to charge
the defendants with homicide. Their justification for such was that they had been unable to
determine the sex of the unborn baby due to its prematurity (whether a harsher sentence
would have been passed had the sex been identifiable remains unknown, though it is likely
that determination of the sex would have signalled the infusion of soul and body thus
constituting as homicide). Walter and his fellows were given a prison sentence on account
of the injuries Alicia had sustained but escaped a tougher punishment. 76 The leniency of the
defendants’ sentencing in this case may have been due to the fact that they believed that
the fetus had not acquired its soul; equally another reason is probable. John Riddle has
insisted that historians ‘must distinguish between legal principles as known by jurists and
the principles of fact on which juries were willing to find people guilty’; ‘while medieval
common law probably viewed abortion by assault as a crime, English jurors did not’. 77 Yet,
even if the courts believed there was cause for prosecution, they maintained that it was the
75
TNA JUST 1/527, m11d
76
TNA JUSTB1/786, m1
77
J.M. Riddle, Eve’s Herbs: A History of Contraception and Abortion in the West, p100 and S. Butler, ‘Abortion
by Assault: Violence against Pregnant Women in Thirteenth-and Fourteenth-Century England’, p10
27
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responsibility of the woman to come forward for justice. Such is the case of Alice, wife of
Geoffrey of St. Albans. Alice was beaten by Stephen Tulbuche in March 1234 and
subsequently miscarried. Her husband sought justice. However, his wife’s reluctance to
pursue her abuser herself cast a shadow over the case. The jurors concluded that Stephen
had made a false appeal due to the fact that Alice was still alive and had sought no action
herself.78 Similarly, a case in Cornwall in 1284 explains how Mabel de Trethyas was beaten
by John Boleheved so that she aborted a male child. John Hobba (whose relationship to
Mabel was not known) appealed to the courts on her behalf. Once again, the jurors decided
that no one should appeal a case except the woman herself. 79 Therefore, this ‘explains why
fathers and husbands hurt by the loss of nascent offspring rarely presented felonious
complaints to the jurors alone and unaccompanied’.80
Furthermore, there were times when the perpetrators were not known to the victim nor the
courts. Such is the case for Alice wife of Adam in 1280. She was set upon by four men whilst
coming from the city of Winchester. The men threw her to the ground, trampled on her and
lay with her so brutally that she miscarried her child of just one month; the sex of the child
could not be established due to its prematurity. This case shares striking resemblance with
the case of Walter and his assailants. Petrus Cantor condemns violence against pregnant
women and maintains that ‘if someone knew that the fetus was already alive, he would not
beat a pregnant woman readily’. 81 Now this could indeed be true, ‘a…mother might not be
visibly pregnant until the fourth or fifth month’ and both of the above-mentioned women
were around one month pregnant when their miscarriages occurred. 82 Therefore, whilst the
78
H.M. Chew and M. Weinbaum (ed. and trans), The London Eyre of 1244, (London, 1970), p36
79
PRO JUST 1/112, m. 9d
80
81
Petrus Cantor, Summa de sacramentis et animae consilis, p562
82
England’, p25
28
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actions of these men are abhorrent, it may well be that their intentions for assault was not
to induce an abortion. But this does not excuse husbands, surely if a wife knew she was
pregnant then she would have informed her husband of such, since ‘canonists strictly
prohibited sex with a pregnant woman’.83
There were times in which jurors refused to process a case if there was too little
information. According to the Shropshire Eyre of 1292, Mabel (Mabilia) daughter of Warner
of Wenlok (Warneri de Wenlok) did not provide enough information for the court to
prosecute Hugh of Walle. Mabel accused Hugh of beating her whilst she was pregnant, yet
she could not recall the date of the beating nor where exactly her unborn child had died.
The case was declared null and void. 84 Could it be that Hugh was the lover of Mabel who had
chosen abortion by assault as a method of contraception against an illegitimate child? Due
to the scarcity of information recorded in the source, it is impossible to know for sure.
However, this hypothesis may not be as unlikely as it first appears; ‘assault [was]…seen as a
viable method of ending an unwanted pregnancy’. 85 Nonetheless, ‘failure to frame criminal
allegations properly, appellants like Mabel were put in jail to await a royal letter of pardon
or to be released upon payment of fine’. 86 For women like Alice wife of Adam Cabel
(similarly to the above-mentioned Alice and Alicia), abortion resulting from assault was a
case of being in the wrong place at the wrong time. According to the Calendar of Coroner’s
Rolls of the City of London (c.1350), Alice lost her child and indeed her own life trying to
save the life of her husband. She was beaten so badly that she went into premature labour
and died several hours after giving birth. 87 Presumably, it was her husband’s assailant who
83
84
TNA JUST 1/739, m81
85
86
87
R.R. Sharpe (ed.), Calendar of Coroner’s Rolls of the City of London A.D. 1300– 1378, (London, 1913), p21
29
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beat her. Given that this is a Coroner’s report, intended for presentation at the trial of the
attacker, his fate is unknown, however, because Alice also died, it is safe to presume that his
punishment would have been much harsher than if he had just caused the death of the
unborn child. In contrast to the sheer number of homicide cases throughout medieval
England, admittedly, abortion by assault does feature little. Nonetheless, ‘assault… [was] a
barbaric and painful method of inducing an abortion’. 88 However, it seems that medieval
secular jurors were less concerned about the loss of the unborn life and more concerned
with the fact that an assault had taken place. It would not be naïve to assume that the
reason for which these cases were taken to a secular as opposed to ecclesiastical court was
due to their violent nature; after all these were principally crimes against women which
unfortunately led them to miscarry. In this way, it seems that the previously mentioned
change in English common law on its stance towards abortion was indeed undertaken by
the courts, perhaps even before the law itself was changed.
It was not only secular courts, which prosecuted those accused of striking pregnant women.
The medieval Church also fully condemned those who attacked an expectant woman. In
1216 Thomas of Chobham, subdean of Salisbury expressed his views in his Summa
confessorum where he remarked:
For in this matter it is written in the law of Moses, ‘If anyone should stroke a
pregnant woman and she should miscarry, if the fetus has been formed let him give
life for life; if, however, it is unformed, let him be amerced in money. 89
Notably, those whom the Church prosecuted were often their own clerics who had
fornicated outside of the realm of their vows, which, unfortunately for them, had resulted in
88
89
G.R. Dunstan, ‘The Human Embryo in the Western Moral Tradition’, in (ed.) G.R. Dunstan and M.J. Seller, The
Status of the Human Embryo: Perspectives from Moral Tradition, (London, 1988), p42
30
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conception. Members of the clergy were prohibited from having sexual relations with
women. In his reforms, Pope Gregory VII had specifically ruled that priests should be
celibate; ‘celibacy and virginity were no longer just the special property of monks, but were
now also to be the defining characteristics- as required by their sacramental roles- of the
secular clergy’.90 In 1344, John Cogges, a vicar in Wells, was accused of beating a woman,
distinctly described as a prostitute, and caused her to miscarry the child that they had
conceived together. Following investigations, the Church validated the woman’s story but
they awarded the vicar a dispensation to continue his ministry. The punishment he did
receive was a relegation to a sinecure benefice, thus halting any further ecclesiastical
91
ambitions that Cogges may have had. Admittedly, this punishment does seem rather
lenient, seeing that the Church was staunchly against abortion, regardless of the reasons
behind it. It may well be due to the fact that Cogges was a clerk within the Church, but
surely, this should not excuse such behaviour. It was not only male clergy who were guilty of
sexual relations outside of their vows of chastity. In 1248, the Devonshire Eyre explains how
Matilda Curteys struck the Prioress of Crediton in Devon causing her to go into early labour;
the child died shortly after receiving its baptism. Matilda fled to the Church of St. Lawrence
and then from the realm.92 Being a Prioress, the woman in question would not have had
much contact with the outside world aside from her confessor. Could it be that she had
conceived a child with her local priest and that Matilda was so angered by the betrayal of
vows and the immoral behaviour of her prioress that she struck her in anger? Once again,
these are only speculations from sources that are frustratingly silent.
90
K. G. Cushing, Reform and Papacy in the Eleventh Century, Spirituality and Social Change, (Manchester,
2005), p115
91
Calendar of Papal Register Relating to Great Britain and Ireland, (London: Public Record Office, 1893–1913 -
for 1344–45), p162-172
92
TNA JUST 1/176, m.45
31
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The case of Matilda and her prioress is not as rare as one would believe. It seems that within
nunneries, though vows of chastity were sworn, they were not always kept. It is known that
‘pregnant nuns were an ancient source of scandal, amusement, or inspiration, depending on
the aims of the story teller’. 93 Clearly the case of Matilda was considered to be a scandal, yet
there were times in which tales of pregnant nuns could offer inspiration to single, pregnant
women; times when they received divine intervention to relieve them of their condition and
save their reputation. The supplication to saints during times of exaltation and desperation
was commonplace among all levels of society and the most prominent saint was the Virgin
Mary. Mary was known for helping women, particularly those who had found themselves
pregnant outside of wedlock, seeing that, technically, the Virgin herself had conceived
outside of her marriage to Joseph and nuns were no exception to her aid. 94 An Anglo-
Norman tale, dated in England in the first half of twelfth-century, elaborates upon Mary’s
involvement. The story begins ‘there was a certain nun, an abbess, in a certain convent…led
astray by the instigation of the devil and her own weakness, she became pregnant’. 95
Rumours soon spread of her condition and she became the object of general scorn and
derision within the community prior to the birth of her illegitimate child. Immediately after
birth, the ministrations of the Virgin placed the newborn with a wet nurse and erased all
signs of pregnancy from the newly delivered mother. Adhering to the rumours, the bishop
decided to investigate upon which he found the abbess clear of any signs of pregnancy.
Outraged at accusations towards such a pious woman, the bishop proclaimed that he would
execute all those who had spread such falsity, when at once the abbess revealed her secret,
including the whereabouts of the child. The role of the Virgin in this fable is most significant,
93
J. Boswell, Kindness of Strangers, (London, 1988), p371
94
Ibid, p372
95
Hilding Kjellman, La Deuxième Collection Anglo-Normande des Miracles de la Sainte Vierge et son original
Latin, (Paris, 1922), pp60-61
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Giles Constable explains that ‘the miracle served the double end both of disposing of an
unwanted child in an acceptable way…and of providing a basis for reconciliation in a
religious community after a shattering challenge to its most cherished norms’. 96 Despite
condemnation from the Church against sexual activity of those within its order, it was not a
problem confined to England. A hagiographical text from Ireland echoes the tale above. The
account can be found in the vitae of Brigit of Kildare, the saint encountered a nun who had
‘breached her vow to chastity and become pregnant but, through the saint’s intervention,
the pregnancy miraculously’ disappeared. 97 Fables of saints interceding on behalf of an
unwedded, pregnant woman must have been a comfort to those in a similar situation.
However, not all nuns were blessed with divine intervention as an extract from 23 rd of July in
the Bishop of Rouen’s register of 1256 demonstrates. The bishop was visiting the priory of
Saint Albanus of Angers in response to numerous reports of misbehaviours committed by
the nuns including lack of singing during the Hours, allowing family and friends to sleep, eat
and drink within the priory and for allowing women to become nuns without the special
ordination from the bishop. As if that was not enough bad behaviour for the bishop to
correct, two of the nuns (Aelidi of Rouen and Eustachia of Estrepigniaco) had been stripped
of their veil due to their fornication, despite having taken their vows [autulimus Aelidi de
Rothomago et Eustachiae de Estrepigniaco, ad tempus, propter earum fornicacionem]. To
complicate matters further, Eustachia’s wanton behaviour had resulted in pregnancy.
Interesting, according to the register, one of the nuns fully supported such wicked
behaviour:
96
G. Constable, ‘Aelred of Rievaulx and the Nun of Watton: An Episode in the Early History of the Gilbertine
Order’, in (ed.) D. Baker, Medieval Women, (Oxford, 1978), p214
97
Z. Mistry, ‘The Sexual Shame of the Chaste: ‘Abortion Miracles’ in Early Medieval Saints’ Lives’, Gender &
History, 25, 3, (2013), p608
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Item, Agnetem de Ponte misimus apud leprosariam Rothomagensem, quia consensit
fornicacioni dicte Eustachie, et etiam procuravit, prout fama clamat, et quia dedit
dicte Eustachie herbas bibere, ut interficeretur puer conceptus in dicta Eustachia
(Also, we have sent Agnes de Ponte to the leper house of Rouen, because she
consented to the fornication of the said Eustachia, and both because she procured it,
as rumour has it and because she gave to the said Eustachia herbs to drink so that
the child conceived in the said Eustachia would be killed). 98
Not surprisingly the prioress of this nunnery was dismissed from her post; the sub prioress,
Anastasia, was taken into the care of the bishop due to the provocative behaviour at the
priory and was to be held until another prioress could be appointed [Anastasie,
subpriorissam, propter infamacionem incontinencie sue, nobis retinuimus quosque ibi
preficatur priorissa].99 What is fascinating about this case, aside from the soap opera style
drama that seems to have taken place there, is the punishments given to not only Eustachia,
who had broken her vows, but also Agnes. Agnes was effectively exiled from the convent for
providing the means of abortion. One does not have to search far to find the origins of this
punishment. Roman lawyer Paul (Dig. 48.19.38.5) stated that those found administering
abortifacients ‘regardless of their good or evil intentions, perpetrators of lower social
standing were to be sent to the mines, whereas the most honourable delinquents would
endure banishment’.100 Thus, it seems that due to her status as a servant of God, Agnes was
believed to be of honourable social status and so she was exiled rather than given a much
harsher punishment. In support of Paul’s argument, the case of Adelheit von Stutgarten is
most intriguing. She was an undesirable German women, who acquired the nickname the
98
Eudes Rigaud, Regestrum visitationum archiepiscopi Rothomomagensis: journal des visites pastorals d’Eude
Rigaud (1248–69), (ed.) T. Bonnin, (Rouen, 1852), p255 (Own translation)
99
Ibid, p255
100
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limper (die hinckende Artzatin), and had, in Sélestat, procured abortions for many
respectable women within the town. She did so by making them drink concoctions of roots.
However, on 8th August 1409, she was ordered by the sheriff of the town to cross back over
the Rhine and had to promise not to return for three years unless she had obtained special
authorisation.101 It seems probable to assume that, fortunately, none of her clients had died
as a result of these potions, otherwise, Adelheit would have faced almost certain death. In
1493 at the Consistory court of Rochester, George Hemery was charged with placing
medicines in a drink ‘administrat medicinas in potum’ in order to destroy the child that he
had created, ‘ad distruendum puerum procreatum per ipsum’. 102 It would appear that,
certainly in cases whereby an abortifacient had been administrated, the women seeking
abortion would have been committing crime in desperation, whereas those distributing
abortifacients would have been fully aware of their criminal behaviour. In contrast to this, in
1211 Pope Innocent III was faced with the task of delivering punishment upon a monk who
had terminated his own offspring by hitting the expectant woman on the lower part of her
body. Innocent said that ‘if the victim of the miscarriage had been “alive” …the accused had
to abstain from altar services’. 103 As in the case of John Cogges, the monk was stripped of his
priestly orders, though, arguably, not as severely punished as Agnes. This is most likely due
to the fact that Agnes had applied an abortifacient of which punishment by exile could be
traced to Roman Law, whereas the monk, like vicar John, had committed abortion by
assault.
The often-revolting concoctions that were believed to induce abortion, ‘were no less
excruciating and/or hazardous’ than abortion by assault. 104 Potions thought to induce
101
E. Wickersheimer, Dictionnaire Biographique, Vol 1, p9
102
Rochester Act Book, Drb Pa 4, f. 232v
103
Innocent III, sicut ex litterarum (4 Comp. 5.6.4; X 5.12.20)
104
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abortion sometimes ended in fatality of not only the unborn fetus but also the mother; Paul
asserts that ‘if, on the other hand, “a man or a woman died from it” [si ex hoc homo aut
mulier perierit], those found responsible would… “suffer capital punishment” [ultimo
supplicio adficiuntur]’.105 This idea is further emphasised by Eudes Rigaud in 1852:
au moyen âge, les breuvages donnés pour procurer l’avortement étaient considérés
comme un meurte, et celui qui se rendait coupable de ce crime était puni de la peine
capitale; si au contraire il ne s’agissait que d’un philtre ou de tout autre breuvage
amoureux, <<de philitris et poculis amatoriis>>, la peine était réduite au fouet et à
l’amende honorable (In the middle ages, beverages given to procure an abortion
were regarded as a murder, et he who was guilty of this crime was punished by
capital punishment; si on the contrary if were only a philtre or another love beverage
“de philitris et poculis amatoriis”, the punishment was reduced to a whipping or an
honourable fine).106
Luckily, for Agnes, the herbal drink she procured for Eustachia resulted only in the death of
the fetus. The presence of abortifacients within nunneries and priories was not unusual and
nuns were blamed ‘for the illicit trade in abortifacients (presumably because they often
cared for unmarried mothers)’.107 One might expect as Riddle has suggested, ‘that work
done in a cloister would handle contraceptive and abortifacient information gently, it at all,
while the secular physicians…would be more forthright and direct. Actually, there is no such
dichotomy’.108
105
106
Eudes Rigaud, Regestrum visitationum archiepiscopi Rothomomagensis: journal des visites pastorals d’Eude
Rigaud (1248–69), p255n1
107
C. Rawcliffe, Medicine and Society in Late Medieval England, p203
108
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The distribution and knowledge surrounding herbs and plants thought to either impede
conception or produce an abortion were profound within the middle ages. In his story, The
Parson’s Tale, Chaucer alludes to the uses of abortifacients:
Eek whan man destourbeth concepcioun of a child, and maketh a woman outher
bareyne by drynkynge venenouse herbes thurgh which she may nat conceyve, or
sleeth a child by drynkes wilfully…or elles if a woman have conceyved, and hurt
hirself and sleeth the child, yet is it homicide.109
Although, contraception and abortion were condemned by the Church, within medical
treatise elusive references to such practices can be found. One of the most well known
medical treatise of the middle ages is the Trotula. Thought to have been composed in
twelfth-century Salerno, it has been labelled by Monica Green as ‘a medieval compendium
of women’s medicine’.110 The text is thought to have been written by a woman known as
Trota of Salerno who was a practicing physician in the mid-twelfth century. Though Green
had asserted that only ‘On the Condition of Women’ section can be attributed to Trota, it is,
nonetheless, an extremely significant gynaecological guidebook for medieval women. 111
Interestingly, the Trotula ‘has remarkably little on birth control’ and abortion; ‘the only
mention of abortion came in remedies to treat a woman who had attempted’ it. 112 Indeed,
‘the scribe refuses to discuss contraception lest ‘some cursed kelots [loose women] would
use it.’ Abstinence was the only method he would advocate’. 113 However, there were times
in which the Trotula would, not necessarily promote, but advise women of a certain nature
109
B.D.H. Miller, ‘She Who Hath Drunk Any Potion’, Medium Aevum, XXXI, (1962), p191
110
M. H. Green (ed. and trans), The ‘Trotula’: A Medieval Compendium of Women’s Medicine, (Philadelphia,
2001), title page
111
M. H. Green, Making Women’s Medicine Masculine: The Rise of Male Authority in Pre-Modern Gynaecology,
(Oxford, 2008), p162
112
113
H. Leyser, Medieval Women: A Social History of Women in England 450-1500, (London, 1995), p104
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to avoid impregnation. It emphasised that this would only be permitted if ‘a woman was
inclined to try and avoid impregnation because of the narrowness of her organs’ or because
she feared she may die as a result of childbirth. 114 Furthermore, the Trotula does not provide
its readers with any specific remedies, which would impede contraception. Yet, it is possible
that within remedies for menstruation, hints of abortifacient substances can be found. An
extract from the Trotula, which supposedly advocates cures for the retention and
suppression of menses, adds weight to this hypothesis:
Take one handful each of calamint, catmint, fennel, pellitory, savory, hyssop,
artemisia, rue, wormwood, anise, cumin, rosemary, thyme, pennyroyal, and
mountain organum, a gallon of wine, six gallons of water, boil them and have her
take this medicine.115
The above-mentioned herbs, ‘fennel, anise, cumin, sage, Artemisia, and rue are all
substances with proven abortive qualities…the varieties of mint (and undoubtedly the wine)
act as sedatives and may have eased the painful cramping accompanying the abortion’. 116
Artemisia is listed in Macer’s De virtutibus herbarum (c.1477), as the mother herb; ‘it mainly
cures female ailments. It stimulates menstrua and, whether drunk or applied, it produces an
abortion’.117 Therefore, there is a definitive link between the use of such herbs and abortion.
Peter of Spain, later Pope John XXI (1276-1277) provided twenty-six prescriptions in his
Treasury of the Poor, for contraception and others ‘to bring about menstruation’, a
euphemism often used when describing abortion. 118 However, it can be argued that, rather
114
D. Jacquart and C. Thomasset, Sexuality and Medicine in the Middle Ages, M. Adamson (trans), (Cambridge,
1988), p90
115
M. H. Green (ed. and trans), The ‘Trotula’: A Medieval Compendium of Women’s Medicine, p75
116
117
118
V. Nutton, ‘Medicine in Medieval Western Europe, 1000–1500’, in (ed.) L.I. Conrad, M. Neve, V. Nutton, R.
Porter, and A. Wear, The Western Medical Tradition 800 BC to AD 1800, (Cambridge, 1996), p169
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than promoting abortions, the authors of medical texts were giving a warning of the
dangerous qualities of these herbs if taken incorrectly. Fiona Harris Stoertz vehemently
argues that historians are unnecessarily cynical in assuming that all ‘remedies designed to
purge the womb or regulate the menses were intended to be abortifacients’; many
medieval women surely suffered from menstrual irregularities due to malnutrition,
numerous pregnancies couple with difficult miscarriages and births. 119 However, the various
uses of these recipes and the reoccurrence of herbs and plants with known abortifacient
qualities cannot be overlooked. As with the case of Agnes, those found administrating
abortifacients were not exempt from trials. In 1493 in the diocese of Rochester, George
Hemery was accused of ‘placing medicines in a drink given to a woman in order to destroy
the boy he had procreated’.120 Similarly, in 1469 in the parish of Deal, servant Joan Gibbes
was charged with having ‘killed the infant lately in her womb by means of herbs and
medicine’.121 It is important to emphasise that these cases were prosecuted within an
ecclesiastical court. Prosecuting abortion, where no death of victim or assault had taken
place, clearly fell under the jurisdiction of the Church. Notably, ‘the above cases involve
abortifacients; if we add to those prosecutions of abortions by assault, we may have
evidence of a church [and secular court] practicing what it preached’. 122
Abortion, whether by assault or abortifacients, was condemned by both secular and
ecclesiastical authorities throughout Latin Christendom and most prominently in medieval
England. Nevertheless, in comparison with all cases that were brought before royal and
ecclesiastical courts, admittedly, abortion does not feature prominently. That is not to say,
119
F. Harris Stoertz, ‘Suffering and Survival in Medieval English Childbirth’, in (ed.) C.J. Itnyre, Medieval Family
Roles: A Book of Essays, (New York, 1999), p108
120
Rochester Act Book, DRb Pa 4, f. 232v
121
Canterbury Act Book, Y.1.11, f. 57r
122
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that abortion was not widespread throughout medieval society. As previously argued, the
secrecy of the sacrament of confession is problematic. It may well be that women who had
procured an abortion for themselves, decided that the appropriate method of confession of
such crime was within the jurisdiction of the Church. After all, it was left to ‘the sinner’s own
determination’ to confess their sins; despite the fact that ‘confessors everywhere in the
West probed into the consciences of their Christian flock’, imploring them to confess, ‘in
order to avoid eternal punishment in the afterlife’.123 Sworn to a vow of secrecy, a priest
would be unable to refer the woman’s crime to a secular court, rather finding the correct
form of penance to administer. In medieval England, the abortion cases which can be found
in the extant records are abortions that are the result of an assault upon the expectant
mother. This indicates that medieval English jurors were less concerned with women who
obtained wilful abortions but chose to punish those who had taken the choice out of the
hands of the woman. Furthermore, the fact that they feature within secular court cases may
allude to the fact that jurors were persecuting assaults upon a living person and the
subsequent miscarriage was merely part and parcel of the case but not necessarily its main
focus. From analysing various cases throughout the medieval period, it appears that
medieval jurors did not severely punish abortion of this kind. Despite numerous
ecclesiastical and secular texts promoting capital punishment for those who had killed a
formed fetus, medieval English jurors did not choose to punish people in such a fashion. In
spite of this, as Butler argues, ‘it is important to emphasize that there is little reason to
believe that medieval men and women did not see this as a serious crime and, in fact, treat
123
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it as a felony’ even if the courts did not and this is evident from the mere presence of
abortion by assault cases.124
Even though English secular courts did not punish women who had procured an abortion,
the Church certainly did. Numerous penitentials produced throughout the middle ages,
often concerned themselves with abortion and the appropriate sentence of penance. The
use of abortifacients seems to have been prevalent throughout the West and the Church
was aware of such methods of abortion and contraception. In response to this, the Church
tried to assert its dominance over medieval domestic life and to curb the distribution of
such concoctions. Prosecution of abortifacient administrators in ecclesiastical courts
indicates that abortion itself was perceived to be a sin, one that would be dealt with by the
Church as opposed to an actual crime. Where abortion occurred due to an assault upon the
woman, it was often the initial assault itself that transferred it into secular jurisdiction and
thus a crime. As previous cases have highlighted, often perpetrators of abortion by assault
were reprimanded for their part in the assault, as opposed to the loss of fetal life, though in
some cases they would be expected to pay a fine as an act of compensation to the family of
the lost fetus. Moreover, it was necessary that the woman herself presented the appeal to
the courts; otherwise, the case was dismissed as null and void.
Despite the discrepancies between ecclesiastical and secular courts, there was a consensus
within both legal jurisdictions that the quickening stage was most crucial in determining the
severity of the offence. Where the killing of a formed fetus constituted as homicide, ‘the
killing of an unformed fetus constituted “virtual homicide” and merely called for correction
as a sin’ as opposed to a crime deserving of capital, secular punishment. 125 It was considered
124
England’, p10
125
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a much graver sin to dislodge a formed fetus than one, which was unformed. 126 By analysing
a range of ecclesiastical and secular court documents and prescriptive texts, abortion,
overall, was considered to be a sin as opposed to a crime. As such, it fell under the
jurisdiction of the Church rather than the secular courts. Punishment for abortion were
typical of ecclesiastical penalties; often forms of penance or in the most extreme
excommunication and exile for a limited period of time. Where abortion crossed over into
the realm of secular jurisdiction this was often as a by-product of assault upon a pregnant
woman, whether intentional or not. Therefore, it can be determined that medieval society
viewed abortion, whilst morally wrong, to be a sin, to be corrected by the Church, as
opposed to a crime in need of secular jurisdiction.
Non-compos mentis: An Exploration of the link between Infanticide and Pleas

of Insanity
‘The history of infanticide in the West has yet to be written, and I shall not attempt it
here’.127 However, this study will demonstrate that infanticide was considered a crime in the
middle ages and as such was indicted in ecclesiastical but more prominently in secular
courts. The definition of the term had changed somewhat; the modern interpretation of
infanticide is the deliberate killing of an infant under the age of one year old. Despite
Kellum’s claims that infanticide in the middle ages was ‘the killing of child of twelve months
or less’, Cushing asserts that ‘many agreed that infancy lasted until age seven’. 128 Therefore,
126
127
L. Demause, ‘The Evolution of Childhood’, p25
128
B. Kellum, ‘Infanticide in England in the Later Middle Ages’, p373 and K.G. Cushing, ‘Pueri, Iuvenes, and Viri:
Age and Utility in the Gregorian Reform’, The Catholic Historical Review, 94, 3, (2008), p439
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for the purposes of this investigation, the term infanticide will include children up to the age
of seven who were slain by their parents. Historians and sociologists have described
infanticide as ‘a crime of desperation, branding it a woman’s crime, and often specifically a
single woman’s crime’; due to poverty and insufficient access to effective contraception,
single women became the villains of these circumstances. 129 In order to ascertain the extent
to which infanticide was prosecuted in medieval English society, it is important to examine
sources of examples of child murder and the ways in which these murders were committed.
Helmholz has argued that infanticide did not feature in secular courts, solely ecclesiastical,
and for that reason, suggests that it was not seen as a heinous crime. 130 Helmholz is not
alone in his assumption; ‘despite much literary evidence, however, the continued existence
of widespread infanticide in the middle ages is usually denied by medievalists’ due to lack of
evidence.131 However, there is evidence of infanticide crossing over into both ecclesiastical
and secular jurisdiction. In whichever dominion the cases fell within, there seems to have
been a consensus amongst officials of a genuine concern for the murdered child and a
determination to discover under what circumstance the child had died. As the records
demonstrate, the motives behind child murder varied significantly in terms of gender,
marital and social status, as did the punishments. Given that infanticide was the murder of a
living child as opposed to a fetus, surely this would be considered a crime rather than a sin.
An examination of prescriptive texts as well as justice itinerants and coroner’s rolls is
necessary in order to determine the classification of infanticide within medieval England.
Although infanticide is often regarded as a single woman’s crime, or indeed a woman’s
crime, it is interesting to note that secular courts records contain trials of men who had
129
S. M. Butler, ‘A Case of Indifference? Child Murder in Later Medieval England’, p60
130
R. H. Helmholz, ‘Infanticide in the Province of Canterbury during the Fifteenth Century’, p378
131
L. Demause, ‘The Evolution of Childhood’, p29
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been convicted of killing their children. However, ‘fathers…have sometimes escaped
conviction simply because society expected a good father to discipline his child’ and it is
upon this plea that most fathers made their case. 132 However, one might presume that
chastising a child so harshly that it resulted in their death is extreme, to say the least.
Nonetheless, in the middle ages, sermons and popular literature such as the mundus
inversus mocked fathers who were unable to establish their authority within their own
home; men who were unable to govern their households and keep their family life
(including their child/children) in order had their masculinity questioned. 133 Furthermore,
many prescriptive texts throughout the medieval period, for instance Gratian’s Decretum
(c.1140), condoned brutal chastisement as an example of proper parenting and mothers
who sought to impede a father exercising his right were frowned upon. 134 That is not to say,
they condoned malicious or unfair punishment upon children. As Gratian’s Decretum
(c.1140) demonstrates:
Non osculatur pater filium semper sed aliquando castigat. Ergo quando castigatur qui
diligitur, tunc circa eum pietas exercetur. Habet enim et amor plagas suas, que
dulciores sunt, cum amarius inferuntur. Dulcior est enim castigatio religiosa quam
blanda remissio (A father does not always kiss his son but sometimes chastises him.
So when someone who is loved is chastised, then it is exercised onto him with piety.
Love also has its blows which are softer although they are given more bitterly.
Religious chastisement is softer than bland forgiveness)135
132
133
S. M. Butler, The Language of Abuse: Marital Violence in Later Medieval England, (Leiden, 2007), p55
134
135
Gratian, Decretum Gratianai¸ C. 5 q. 5 c. 3, http://geschichte.digitale-sammlungen.de/decretum-
gratiani/kapitel/dc_chapter_1_1618 (Accessed: 09/08/2017)
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Thus, physical force used to chastise a child was not only permitted by the Church but it was
promoted as a necessary, pious act performed by a father; an attentive parent was one who
knew when and how to use physical force in order to discipline his children. Further to this,
Thomas Chobham (c.1190) believed that the ‘degree of violence and fear must be such that
it could turn a stable man, such as fear of death or physical mutilation’. 136 In spite of these
opinions, Baldus de Ubaldis in his Commentaria (c.1378) does heed warning to overzealous
fathers. Baldus warned that it was lawful for a father to imprison his children in chains for
legitimate chastisement, though this should not be done maliciously or without just cause. 137
Regardless of the opinions found in prescriptive texts, ‘medieval England did not tolerate
parents who chastised a child to death’. 138 Whilst few cases of such activity are extant in
medieval secular court records, their existence itself confirms that medieval English society
did not condone such behaviour. The Yorkshire Eyre of 1279-1281 records the case of Elias
of Sutton. Elias was accused of castigating his son Adam for consorting with a thief. Elias
believed that the appropriate form of punishment would be to hang Adam by a beam where
unfortunately he died. In a state of panic, Elias fled and the court outlawed him. 139 In
addition, in 1239, Alexander Heved of Buckby in Northamptonshire beat his son to death
with a rod as a form of chastisement. Alexander was arrested by the sheriff but managed to
escape from prison and thus he was outlawed. 140 In 1330, Simon Hereward beat his son
Richard in order to discipline him and Richard died. Simon claimed that he was unaware
Richard was suffering from an acute disease (the exact disease not being specified in the
136
Thomas Chobham, Thomae de Chobham, Summa Confessorum, (ed. and trans) F. Bromfield, (Louvain,
1968), p142
137
R. H. Helmholz, ‘And were there children’s rights in early modern Europe? The Canon Law and ‘intra-family
violence’ in England. 1400-1640’, The International Journal of Children’s Rights, 1, 2, (1993), p26
138
139
TNA JUST 1/1078, m. 9
140
TNA JUST 1/635, m. 45
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records). The jury determined that Richard had died as a result of the disease and not from
the beating by his father and thus Simon was acquitted of the charges. 141 It seems that for
the jurors hanging one’s son was seen as excessive; whereas Simon Hereward had seen the
beating of his son as an admirable goal to improve his son’s behaviour; if his son had been
healthy then he may not have died and his peers would have commended his behaviour as a
father rather than cause him to stand trial. As Butler, has stated ‘an all-male jury, familiar
with the rigors of maintaining a well-run household, may have sympathized with a father
whose attempts at discipline had gone sadly awry’; often it would have been difficult to
distinguish a child murderer from a father disciplining his child. 142 Furthermore, as Butler
states, ‘the medieval world was more willing to ignore crimes committed in “hot blood”
than crimes of deliberation’.143 Thus, jurors may have viewed deaths, which arose from
chastisement as cases of “hot blood” seeing that these deaths were not intentional. It may
be that fathers who fled were exposing their guilt and thus received harsher punishments as
they had caused death by deliberation.
Medieval law also held neglectful parents accountable for their actions should their child die
as a result. Given the fact that the Church held jurisdiction over family and domestic life, it is
within church courts that these matters were addressed. Similarly, to records of death by
chastisement, the records for neglect are not abundant, but they do make regular
appearances, thus indicating that ecclesiastical courts sought to provide justice for children
who were failed by their parents. Perhaps due to their lack of severe punishments, often,
child murders within ecclesiastical courts were attributed to accidental deaths, but with a
careful note that it was the negligence of the parents which had enabled the death; ‘it was
141
TNA JUST 1/166, m. 36d
142
143
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enough that the child had been killed through the fault of the accused’. 144This was the case
in 1453 at the Consistory court in Rochester whereby Thomas Bayware of the parish of
Halling was sentenced to public whipping. Thomas had lit a fire in his house, closed the
doors with his two children inside; they were aged two and four. The house caught fire and
both children were killed.145 It may be that Thomas had intentionally left his children in the
house but this is speculation and the real reason may never be determined. Yet it is equally
plausible that this was a moment of negligence. The punishment received by Thomas was
much more severe than in the case of Thomas Leeke in the diocese of Lincoln. The mother
of a male infant left the child at Leeke’s door, insisting that he was the child’s father. Leeke
denied the claim and so the baby was taken to different places (not specified) and was
maltreated until he eventually died. 146 A Wiltshire Eyre of 1281 echoes the case of Leeke.
Isabelle of Bradford brought her one-year-old son to the home of his father Robert Hudde in
the village of Clevancy. Robert did not wish to admit the baby into his custody. Isabella left
the baby; he ignored it; the baby died the following night. Astonishingly, the jurors declared
that the baby’s death was accidental, though, they stressed that the parents’ negligence had
facilitated his death.147 In a partially similar instance, Joan Meller and her husband appeared
before the ecclesiastical court in Rochester, accused of allowing the death of their child after
leaving the child exposed.148
It was not only abandonment that worried medieval courts. The fear of parents over-laying
their children plagued the minds of parish priests and theologians to such an extent that ‘in
synod after synod, moreover, in every English diocese, priests were enjoined to warn the
144
145
146
147
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148
Rochester Act Book, DRb Pa 2, f.9 1r
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women of their parishes every Sunday not only against taking young children into their
beds’.149 It seems that ‘overlaying was the principal means of infanticide [whether
intentional or not] and the major problem for the Church courts’. 150 Echoes of this can be
found within canon law collections. One more Gratian’s Decretum proves particularly useful
in determining ecclesiastical legal interpretations of infant death from over-laying:
Monendi namque sunt et protestandi parentes, ne tam tenellos secum in uno
collocent lecto, ne negligentia qualibet proueniente suffocentur uel opprimantur,
unde ipsi homicidii rei inueniantur’ (Parents are to be admonished and publicly
advised that they should not place beside themselves in a bed their babies, so that
they should not be suffocated or smothered through some negligence which might
arise; in this they are guilty of homicide)151
Similarly, Antoninus in his Confessionale (c.1472), includes over-laying with other forms of
child murder including women who wilfully kill their children in order to conceal their sin of
fornication:
si mater vel nutrix suffocat filium quem tenet iuxta se in lecto inadvertenter
opprimens eum: quod mortale est propter negligentiam, et casus episcopo
reservatus (If a mother or wet nurse suffocates her son [child] whom she is holding
beside her in a bed, stifling him inadvertently, it is causing death by negligence and
the case is reserved for the bishop)152
149
M. Martin McLaughlin, ‘Survivors and Surrogates: Children and Parents from the Ninth to the Thirteenth
Centuries’, in (ed.) L. Demause, The History of Childhood, (New York, 1974), p121
150
151
Gratian, Decretum Gratianai, C. q.5 c.20, http://geschichte.digitale-
sammlungen.de/decretum-/gratiani/kapitel/dc_chapter_1_1345 (Accessed: 09/08/2017)
152
Antoninus, Confessionale, III. 5
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Thus, in contrast to Gratian, Antoninus does not equate over-laying with intentional
homicide but rather parental negligence, which was clearly as Antoninus demonstrates,
handled by ecclesiastical jurists. In one of his larger worked entitled Theologia moralis
(c.1477), Antoninus surprisingly devotes little time to infanticide, merely reiterating his
previous assertions in Confessionale which associates over-laying with child murder:
Quando ex negligentia [mulieris] opprimunt parvulos in lecto secum eos tenentes
(when through negligence [women] smother little ones they have in bed with
them).153
That said, it appears that for both Gratian and Antoninus, whilst they do condemn over-
laying and associate it with murder; as Biller notes, ‘English manuals from Thomas of
Chobham’s to John de Burgh’s stand in stark contrast. They devote far greater attention to
the theme, and they consistently show interest in prevention’. 154 Chobham identifies over-
laying as one of the five ways in which, specifically women, kill their offspring:
(i) when they procure poisons of sterility, or (ii) when after conception the foetus is
forced out by violence, or (iii) when after childbirth [the baby] is separated from the
[mother’s] own breasts, or (iv) when it is cast out or exposed, or (v) when through
negligence it is stifled in the bed of the sleeping mother.155
It is interesting to note, that unlike abandonment and other forms of negligence, over-laying
cases found themselves within English secular courts. Such is the case in 1272 for Margery
of Purslow, who suffocated her one-year-old child whilst lying in bed with the infant.
153
Antoninus, Theologia moralis, III, p16
154
P.P.A. Biller, ‘Marriage Patterns and Women’s Lives: A Sketch of a Pastoral Geography’, in (ed.) J.P.J
Goldberg, Women is a Worthy Wight, (Gloucestershire, 1992), p78
155
Thomas of Chobham, Summa confessorum, p464
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Afterwards she threw his body into a vineyard; she fled and was waived. 156 The concealment
of the body was an indicator of guilt; the courts equated Margery’s indecent deposal of the
child as a confession of her guilt, thus understandably she was tried in a secular court. Butler
has argued that ‘although some scholars contend that overlaying was merely a polite fiction
for deliberate infanticide, certainly in a cold climate such as medieval England’s, sharing a
warm bed with an infant whose body does not easily retain heat does not seem like such a
ludicrous idea’.157 It is possible to assume that, in the case of Margery, the death was not so
accidental. However, as the case of Maltilda daughter of Gunnild of Shelland demonstrates,
the fear of trial was sometimes so overwhelming that even innocent people fled. The Suffolk
Eyre from 1240 states that Matilda miscarried a child and that she was so worried of being
accused of infanticide that she hid the child’s body in a marlpit and fled. 158 The
Northamptonshire Eyre of 1329 shows that Alice was indicted for over-laying her three-
week-old daughter Margaret. Alice immediately fled, however, the jury declared that she
was not a suspect in the case and they considered the death of Margaret to be an accident.
Thus, Alice was permitted to return to her home. 159 It seems odd that Alice would flee if
indeed she were innocent of the crime, as the jury believed. A similar case can be found in
the Cumberland Eyre of 1292 with Margaret Kidefoth. Her twelve-week-old daughter was
found dead and in a state of panic and fear Margaret fled. As with Alice, the court declared
that Margaret was not a suspect and she was allowed to return. 160
However, it is not unusual to find cases of infanticide whereby the accused have fled, either
from the realm or from their homes, in order to avoid prosecution. One such case was that
156
TNA JUST 1/737, m. 26
157
158
159
TNA JUST 1/635, m. 30
160
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of Basilia daughter of Christine of Wroxhall. According to the record, Basilia gave birth to her
son and immediately hid him in a ditch [et ipsum statim post partum abscondit in quodam
fossato]. Unfortunately, for her, a dog found the child and carried him through the middle of
the ville of Wroxhall dead and Basilia ran away. The jury’s verdict was that she was guilty
and she was to be put into exigent and to be waived no chattels [Iuratores dicunt quod
culpavbilis est ideo exigatur et wayvitur nulla catalla].161 It is not surprising that Basilia did
not possess any chattels, the specific reference to her as daughter of Christine would
suggest that she was a single woman and unlikely to have many possessions. It seems that
English common law’s stance on infanticide did not pose an empty threat and this can be
seen by the number of cases whereby the defendant fled. Many of the defendants chose
not to stand trial and this their belongings were obtained by the crown in the hope that this
would prompt them to return to court. It is important to note that their moveable property
was kept by the crown as punishment; as Müller argues, ‘clearly the legal consequences…
were greatly dreaded, as fear for life persuaded more than just a few to prefer outlawry and
loss of cattle to the prospect of appearing in the king’s court’.162
Rather than obvious methods of killing, some women sought to conceal their children in
other ways, which may have been less noticeable. Throwing newborn babies into rivers or
other bodies of water was prevalent throughout all of Latin Christendom. Manuscript
illumination depictions from the Hôpital du Saint-Esprit give an insight into ways in which
new-borns were deposed of:
161
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162
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Figure 1: Hôpital du Saint-Esprit: Manuscrit sur la fondation, Dijon, AH, A H 4, f. 007. The text
reads: How pitiful sinners after childbirth undertake to avoid the contempt of the world,
without a thought for God or their souls; at the suggestion of the Devil, they throw their
babies, without baptising them into the Tiber in Rome.
Identification of infants thrown into the river was difficult as the case from the Kent Eyre of
1293-1294 shows. The body of a three-month-old boy was found floating in Canterbury
pool, however, the jurors had no way of identifying the infant nor who had thrown it into
the pool; though they declared it to be a homicide. 163 Within the illumination, the specific
reference to baptism is most significant. Saint Augustine specified the necessity for infant
baptism, noting that a child who died without the proper sacrament of baptism would burn
eternally in Hell. It was thought that all children, regardless of gender and social status,
possessed the original sin upon birth; baptism ensured acceptance into the Christian
community and absolved them of the sin passed onto them from Adam and Eve. 164 More
significantly, non-baptised Christians were forbidden to be buried in consecrated ground or
163
164
C. Rawcliffe, ‘Women, Childbirth and Religion in Later Medieval England’, (in), D. Wood, Women and
Religion in Medieval England, (Oxford, 2003), p110
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enter Heaven; ‘unbaptized infants were literally “captives in the devil’s power, both in this
world and in the next”; baptism then was truly an exorcism, and, if the infant died without
it, the place he was laid was looked on as polluted’. 165 In the later middle ages, it was
believed that rather than being condemned to Hell, unbaptised infants would be subjected
to a painless existence in limbo between worlds; nonetheless, they would remain outside of
the Christian community and were denied the sight of God. According to Coulton, ‘Meffret,
a fifteenth-century preacher, declared, abortion and the killing of unbaptised infants
damned not only a body but also a soul to eternal punishment’. 166Therefore, ‘infanticide
committed immediately upon delivery and prior to baptism…in actual practice… [was
classified] among the felony pleas’. 167 As Finucane has argued, ‘parents choosing not to
baptise their children, despite the emphasis of this by the Church were likely to paint a
negative image’ thus demolishing any hope of mercy. 168 Though not abandoned in a river,
Agnes Hamoned was summoned to appear before the ecclesiastical jurors in Rochester, for
throwing her unbaptised newborn in a hedge, ‘quia proiecit puerum non baptizatum in
sepe’.169 Note the emphasis given to the lack of baptism. Jurors in Oxford in the latter half of
the fourteenth century presented the case of a baby girl, estimated to be one and a half day
old, who was carried down-stream. They knew nothing of the father or mother and they
assumed that she had not been baptised given that the navel was not tied’. 170 The untied
navel was a common device in killing new-borns, even until the sixteenth century. Cutting
the umbilical cord without tying its end caused the death of infants as a result of bleeding. 171
165
B. Kellum, ‘Infanticide in England in the Later Middle Ages’, p373
166
G.G. Coulton, Infant Perdition in the Middle Ages, (London, 1922), p19
167
168
R. C. Finucane, The Rescue of the Innocents: Endangered Children in Medieval Miracles, (New York, 1997),
p43
169
170
Records of Medieval Oxford, Coroners’ Inquests, The Walls of Oxford, (ed.) H.E. Salter, (Oxford, 1912), p27
171
A. Giladi, ‘Some Observations on Infanticide in Medieval Muslim Society’, International Journal of Middle
East Studies, 22, 2, (1990), p190
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Newborn infants found floating in rivers do not appear to have been an unusual sight in
medieval Europe. A further manuscript illumination from the Hôpital du Saint-Esprit
identifies the extent to which this was an issue within medieval society:
reads: How fishermen and servants of the pope fished in the Tiber and drew out nothing but
babies tossed into the river, at which they were dumbfounded.
Following their gruesome discovery, the fishermen and servants of the pope took their
findings to the pope himself (Innocent III 1198-1216) as the following illumination shows:
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reads: How they took the babies they fished from the Tiber to the Pope, who was deeply
disturbed and set himself to pray, asking God to disclose to him what should be done with
these babies…
The story goes onto to explain that the pope then established in Rome and France the
Hospital of the Holy Spirit, who were tasked with taking in abandoned children. Popular
literature inspired the theme that foundlings went on to lead a better life. 172 However,
‘unlike medieval Italy where foundling hospitals were rife, the English made no such
provisions’.173 This helps to explain why so many mothers, often single women, chose such
extreme and at times brutal methods for deposing of infants. Some single women decided
to desert their children in public places in the hope that a passer-by would find the child
alive and take care of it. The previously examined case of Basilia of Wroxhall may have been
an abandonment gone horrifically wrong. It could well be that Basilia had hoped a human,
rather than a dog, would find the child and care for it. In 1497 at the court of the
archdeacon of Buckingham, Alice Mortyn was accused of hiding her newly born infant in a
172
173
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bog, where the child eventually died of malnutrition. 174 Also, in 1339 at the court of the
Dean and Chapter of Lincoln, Alice daughter of Peter was accused of exposing her
unbaptised child, however, in this case the child survived. Alice submitted to compurgation
and was acquitted but had to provide for the child. 175 The cases of Alice and Alice appeared
in ecclesiastical as opposed to secular courts. Could it be that English law interpreted
exposing a child as a less deliberate form of infanticide than drowning or more violent forms
of child murder?
With little help available to them, it is not surprising that in most indictment cases involving
infanticide, single women dominated the courts. This is not to say that there were an
unusually high number of infanticide cases; they still remained few and far between. Rather,
the extant cases do indicate a bias towards single women. Married women, on the other
hand, did not escape the courts for child murder, but were declared insane (insanity and its
association with infanticide will be discussed later in the chapter). McIntosh argues that
pregnant single women confirmed suspicions. The courts and probably the community
believed that single mothers were more deserving of public reprimands than married
mothers, especially in relation to child murder. 176 In 1517, Alice Ridying, daughter of John
Ridying of Eton in the diocese of Lincoln, fornicated with a local clergy man and
subsequently became pregnant.177 For reasons unknown, Alice chose not to pursue an
abortion through herbal remedies.178 Instead, she concealed her pregnancy and gave birth
alone in her father’s home; shortly after the birth, she suffocated her newly born son and
buried him in a dung heap in her family’s orchard. A few days later, she was examined by
174
E. M. Elvey (ed.), The Courts of the Archdeaconry of Buckingham, (Aylesbury, 1975), p183
175
L. R. Poos (ed.), Lower Ecclesiastical Jurisdiction in Late-Medieval England: The Courts of the Dean and
Chapter of Lincoln, 1336–1349, and the Deanery of Wisbech, 1458–1484, (Oxford, 2001), p97
176
M. Keniston McIntosh, Controlling Misbehaviour in England, 1370-1600, (Cambridge, 1998), p191
177
178
J. M. Riddle, Eve’s Herbs: A History of Contraception and Abortion in the West, p100
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women and honest wives of Eton and Windsor where she was found to have an enlarged
stomach and swollen, lactating breasts. 179 Alice was bought before the bishop’s court,
confessed her sins and was taken away to await judgement and appropriate form of
penance. Note the specific reference to Alice as being the daughter of John. Often, single
women were referred, in courts, by their association with their father or a specific place.
Whilst it may be difficult to decipher wholeheartedly the marital status of those accused, it
can be heavily inferred that women who are not recorded as having a husband were more
than likely single women. Further to this, Alice’s form of punishment was penance. For
reasons that will no doubt remain unknown, Alice’s case was taken before an ecclesiastical
as opposed to secular court even though she had committed murder. In determining the
appropriate severity and duration of penance, the bishop of the diocese would no doubt
have consulted canonical or penitential texts. Burchard of Worms’ Decretum (c.1023) offers
advice to bishops should they find themselves weighted with infanticide cases. For
Burchard:
si quis infantem suum oppresserit, aut vestimentorum pondere suffocaverit et hoc
post baptismum factum fuerit, XL dies peniteat in pane et aquae et a conjuge se
interim abstineat. postea tres annos poeniteat per legitimas ferias, et tres in anno
quadragesimas observet. quod si ante baptisum infans oppressus fuerit, proximos
quadraginta dies ut supra poeniteat. postea vero quinquennium expleat. If anyone
has smothered their child by suffocating them with their weight or clothes and this
happened after baptism then they are to do forty days on bread and water and are
to abstain from their conjugal relations, afterwards they are to perform penance on
penance days for three years and is to observe three periods of forty days penance
179
M. Bowker (ed.), An Episcopal Court Book for the Diocese of Lincoln 1514-1520, (Woodbridge, 1967),
p61:53-54
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per year, if the child was killed before its baptism they are to observe the next forty
180
days as penance and to continue for five years.
It is likely that in the case of Alice Ridying, the infant had not received its baptism due to the
shortness of its life and the circumstances in which Alice gave birth. Due to the scarcity of
the records, the fate of Alice is unknown. However, it is possible to assume that she would
have received a similar degree of penance. Burchard also alluded to the financial and social
status of a mother in determining the extent of penance; ‘mulier autem paupercula si fecerit
pro difficultate nutriendi, septem annos poeniteat’ (if the woman committing the crime is
poor and is doing so because of nutritional difficulties then she is to do seven years
penance).181 Similarly to Burchard, Theodore (Archbishop of Canterbury 668-690) equated
child murder with homicide and prescribed a fifteen-year penance; but significantly, he
specified that if a woman had killed her child because she was poor, the penance should be
reduced to seven years.182 Therefore, it seems that compassion was shown to mothers,
mainly married ones, who were struggling to feed and care for their children due to financial
difficulties. However, it is unlikely that a reduced penance would be given to single women,
given that they had committed more than one sin due to their fornication outside of
marriage. In 1470, Joan Rose was accused by the Consistory of the ecclesiastical court at
Canterbury of killing her newborn son. The judge ordered that Joan should dress in
penitential garb and go before the procession of the parish church of Hythe. She was
ordered to do so on three Sundays with a wax candle of half a pound in her right hand and
the knife with which she killed her son, or a similar knife, in her left hand. She was
180
Burchard of Worms, Decretum libri XX, 140:934 – days of penance were considered Monday, Wednesday
and Friday. The usual periods of fasting for forty days were Lent and Advent, presumably those found guilty
would have to choose three other periods of forty days to complete their additional fastings.
181
Ibid, 140:1014
182
J.T. McNeil and H.M. Gamer (ed. and trans), Medieval Handbooks of Penance, (New York, 1938), p197
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instructed to go twice around the markets of Canterbury, Faversham and Ashford in a
similar fashion.183 Now in comparison with Burchard and Theodore, this method of public
penance does seem to be extreme. As analysed previously, in 1215 at the Fourth Lateran
Council, it had been universally obliged that Christians were to confess their sins to a parish
priest in secret and at least once a year; though it is known that openly performed penance
persisted until the Reformation.184 In the case of Joan Rose, it would not be extreme to
suspect that the Consistory of the diocese of Canterbury were using this as an example and
a warning to others of the public humiliation they would have to endure should they
commit the same or similar crime. Other deterrents given to ward people away from
committing infanticide were found within literary and prescriptive texts. Herrad of
Landsberg, in her Hortus deliciarum, sought to warn sisters entering into her convent from
breaking their vows of chastity. Herrad cites Caesarius of Heisterbach’s story of a nun who
died without confessing her sins of fornication and infanticide. Due to this, after her death
she appeared to a kinswoman as condemned eternally to carry her burning child, whose fire
ceaselessly tormented and devoured her.185 The vivid depiction of a wandering nun with her
burning infant, unable to find peace after death, is haunting. There is no way to ascertain
indefinitely how effective or widely transmitted, tales such as these were, but it is likely that
they influenced people to proceed throughout life with an air of caution, fearing for their
soul after death.
The above cases were presented under the jurisdiction of the Church; however, there were
also numerous cases of single women committing infanticide in secular courts as well.
Matilda Heylof, in 1286, was indicted for killing her infant. It was said that Matilda placed
183
184
185
Herrad of Landsberg, Hortus deliciarum, (ed.) Walter (Strasburg, 1952) Pl. XLIV. Cf
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the infant in oil in a marsh area near the floodgate [posuit in quadam olla apud flodgate
marisco]. The record specifically states that the child had no name [nullum nomen
habentem]. Matilda fled and was put into exigent and waived. 186 In the middle ages, a
woman was unable to be outlawed and so waiving was a female equivalent; Matilda now
found herself outside the protection of the law. In 1280, Cecilia Attehethe was indicted for
having killed her son immediately after birth. According to the record, Cecilia twisted its
neck and threw the infant into the cater of Aulton [extorsit collum suum et proiecit eum in
aquam de Aulton]. She was captured and suspended to await trial. 187 The cases of Matilda
and Cecilia seem fairly typical of infanticide cases brought forward against single women;
usually these women fled from their village and were waived as punishment with their
personal possessions taken by the court. Though that said, leaving one’s home during the
Middle Ages was not an easy feat, especially at a time when outsiders were not readily
welcomed in towns and villages. Yet clearly, this seemed like a preferred option as opposed
to appearing in court. Interestingly, in 1353 in Brno, the townspeople concluded that ‘a
woman who did away with her baby was not to be punished at all, for “having delivered the
child and owning it rightfully, she can suppress and kill it at will”’. 188 The jurors in England did
not agree and pursued child murder cases as homicide. The case of Sabine de Dretinghe is
by far the most disturbing infanticide case within this analysis. In 1240, Sabina was charged
with killing her son who was one night old. She came to court and acknowledged that the
child, who was born, was dead. Further to this, Sabina claimed that at the time she was out
of her mind [tunc temporis demens fuit]. She argued that because she had not killed her
infant son intentionally she had willingly come before the jury. The jury determined that the
186
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187
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188
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boy had only lived for one night and at the time of his murder, Sabina was of full sense and
full memory [tunc temporis fuit in bono sensu et bone memorie], therefore they decided
that she should be burnt [ideo consideratum est quod conburatur].189 For Sabina, ‘the
punishment itself is obviously an extreme one, especially when compared to those…where a
plea of insanity was involved’.190 It seems plausible to infer that Sabina’s plea was rejected
due to her status as a single woman. Married women, on the whole, were often declared
insane in infanticide cases and as such were acquitted of the crime and pardoned by the
king.
Women have long been associated with madness. It was thought that the wetness and
coldness of a woman’s biological design made them prone to periods of insanity. It was
thought that menstrual blood was retained, then there was a great danger that madness
might set in.191 Humoral theory taught the phlegmatic complexion of women and thus
indicated that women were subject to fluidity and change; ‘mutability, fickleness and lack of
purpose therefore seemed quintessentially feminine characteristics; and it is no coincidence
that the moon, the planet most closely associated with water, movement and, of course,
madness, appeared to be female’. 192 The association with women, the moon and insanity is
most vividly depicted in the manuscript illumination of Diana, the huntress:
189
TNA JUST 1/818, m. 47
190
191
D. Jacquart and C. Thomasset, Sexuality and Medicine in the Middle Ages, p175
192
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Figure 4: The British Library, Harleian Ms. 4431, f. 101

The image of Diana as a huntress and goddess of moon shows her striking down men and
women on earth with arrows of madness. The connection between the moon, which is
traditionally a watery and feminine planet, and insanity served to reiterate the connection
of insanity and women. There were instances in which insanity was attributed to sanctity.
Such is the case of Margery Kempe, who had gone ‘owt of hir mende’ and was most likely
suffering from postpartum depression claiming to see visions of God and Jesus. 193 However,
on the whole, insanity arose a particular fear and unease; ‘God in his justice inflicts disease
on the unrepentant sinner as a punishment’ and insanity was a most dreaded form. 194 Given
societal preoccupations about the weaknesses of women, it is no surprise that jurors were
much more readily able to be convinced a woman was suffering from a bout of insanity as
opposed to a man. In cases of infanticide, ‘more recently, insanity in its various guises
(puerperal insanity, postpartum depression) has come to dominate historical studies of
murdering mothers’.195 It seems that ‘the very sanctity of the mother-child bond...[led] many
jurors... [to believe] that for a mother to violate that bond, she must be insane’. 196
193
Ibid, p10 and The Book of Margery Kempe, (ed.) S.B. Meeche, (Early English Text Society, 1940), p6
194
J. Kroll and B. Bachrach, ‘Sin and Mental Illness in the middle Ages’, Psychological Medicine, 14, (1984), p507
195
196
Ibid, p76
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It certainly seems, for married women, that this idea was adopted by almost all jurors within
medieval England. Many justice itinerant documents and King ’s Bench records show that
married women accused of infanticide were almost always declared insane and pardoned.
Matilda, wife of Walter Levying suffered from ague and frenzy and had killed her two-year-
old son and daughter with an axe. Due her mental instability, she was pardoned for her
crimes and sent into the care of twelve of her kinsmen. It is interesting that her husband did
not feel comfortable admitting her back into the marital home, as he did not feel able to
prevent a further attack, thus suggesting that Matilda had other children apart from the two
that she killed.197According to the Bedfordshire Coroner’s Rolls, on 15 th June 1316, Emma le
Bere was suffering from a frenzy; she rose from her sick bed and took an axe. With that axe,
she cut the throats of her four children who are named in the record as John, Helen, Felise
and Maud. Emma did not appear in court as she hanged herself following the attack, though
it is specified that at the time she was suffering from insanity and had she survived it is
probable that she would have received a pardon. 198 In the first decade of the fourteenth
century, Margery wife of William Calbot appeared before jurors accused of fatally stabbing
her two-year-old daughter (whose name was not specified). Further to this, she made her
four-year-old child (sex not given) sit on the hearth fire flames. Despite the barbarity of
these acts, Margery was declared insane and was pardoned. 199 In 1327, Juliana Matte of
Killingbry was driven out of her mind by a fear. In this period of madness, she was caught
drowning her one-year-old son in a well. Once more, Juliana was found to be insane and
acquitted as well as pardoned for the crime.200
197
N.D. Hurnard, The King’s Pardon for Homicide before 1307 A.D, (Oxford, 1969), p162
198
R.F. Hunissett (ed.), Bedfordshire Coroner’s Rolls, (Bedfordshire, 1961), p277
199
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200
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Juliana’s case raises questions surrounding infanticides which were concealed as accidental
deaths. Many deaths by drowning could have been concealed as accidental or regarded as
parental neglect rather than premeditated murder. Certainly, as Kellum has argued, ‘this
would have been a fairly efficient means of ridding oneself of unwanted and demanding
burdens but also the death would be acceptably accidental’. 201 Due to her insanity, Juliana’s
crime would most certainly have been regarded as an accidental death as she did not
possess her full faculties. It is more significant that James I’s statute in 1623 named
drowning as one of the most common ways that mothers did away with their unwanted
children.202 Barbara Hanawalt has argued that because infanticide did not appear in statute
law until the mid-sixteenth century, medieval English jurors did not see it as an offence. 203
However, the evidence of infanticide and child murder cases within both secular and
ecclesiastical courts suggests that whilst infanticide may not have appeared in medieval
English statute law, it most certainly appeared in English common law.
For further examples of the relationship between insanity and infanticide, the indictment
against Matilda widow of Mark le Waleys de Buchamwell in 1329 is valuable. Matilda was
indicted before Peter Bozum, coroner in the county of Norfolk. She was accused with killing
her children Thomas, Robert and Anastasia [felonice interfecit Thomam et Robertum filios
suos et Anastasiam filam suam]. The record states that at the time of the killing Matilda was
in a state of fury and had been for a month prior to the event. When she recovered her
sense, Matilda was said to be so distraught at her actions that she sought to drown herself
in a ditch of water and would have succeeded in doing so had neighbours not intervened
and prevented her from doing so [volebat in stagne fossatis aquasis nisi ipsa per vicionos
201
202
Ibid, p371
203
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suos fuisset impedita]. The jury declared that at the time of the killings, Matilda had been
out of her mind and as such, they returned her to prison to await pardon from the king
[quod tempore quo ipsa predictos pueros suos interfeceratur extitit furiosa ideo ispa
remitatur prisone ad voluntatem domini Regis expectans].204 In a similar fashion, Goda wife
of John Attebek was indicted in the same county and by the same coroner as Matilda, just
one year later on 1330. Goda was accused of killing her two children John and Beatrice in
the village of Horsham Saint Faith. Goda defended herself against all charges and
maintained that she was not capable of this in any way [predicta Goda venit et quesivit
qualiter se velit inde acquietare defendit omnem feloniam etc et dicit quod in nullo est inde
culpabilis]. The jury of the Hundred of Taverham said upon their oath that Goda did kill her
two children but insisted that at the time, Goda was out of her mind and insane. The jury
asked if Goda had experienced any other periods of madness. It was said that Goda had
been mad several times and in her madness, she was rambling and running about in
Horsham and in adjacent towns [dicunt quod ipsa pluries in furiositate sua erat vagans et
discurrens in predicta villa de horsham et in villis adjacentibus]. Similarly, to Matilda, Goda
had been found wanting to submerge herself in ditches followed with water and again was
only stopped when neighbours and passers-by intervened. The jury affirmed that at the time
in which she killed her children, Goda was mad and therefore, she was to return to prison to
await the decision of the king as to what should be done. 205 Although, the record does not
elaborate on the king’s decision, it can be accurately inferred that she would have received
a pardon as with Matilda and many other married women who had committed infanticide.
In 1329, the Nottinghamshire Eyre details the case of Anabilla, the wife of William Carter of
Bulcote. She was described as being out of her mind and feverish when she killed her son
204
205
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and two daughters.206 Alice, daughter of John, son of Robert was indicted in 1342. It was
said that Alice was in a state of madness and insanity when she killed her daughter Joanna.
The record states that Joanna was feloniously slain and thus Alice was liable for the death. In
spite of the clear crime committed, Alice received a pardon. 207 The King ’s Bench record of
1344 lists the case of Alice, wife of Reginald of Tibthorpe who had succumbed to the grip of
a dementia and had been suffering from madness for some time before strangling her
daughter Alice (whose age was not specified). The jury declared that Alice lacked all sense
and reason; her madness was so severe that she could not differentiate between good and
evil.208 All three of the women who believed to be insane and were thus granted pardons.
Agnes, wife of Roger Moyses was accused of killing their son Adam. It was known that Agnes
suffered from repeated episodes of madness [amentia] prior to the killing. Similarly, Emma,
wife of Henry Wolfrom of Centele had experienced feelings of being demented and vexed.
As a consequence of her madness, she had killed her child. 209 Al of these women who had
committed infanticide and were found to be insane, were acquitted and pardoned.
On the whole, as noted earlier, medieval jurors ‘seem to have considered infanticide as a
single woman’s crime’.210 While, Kellum has argued that infanticide was not considered to
be a felony in medieval England and that royal courts rarely troubled themselves with
prosecuting infanticide cases, the evidence presented throughout the chapter stands to
argue that infanticide was considered to be a felony in the middle ages, if not in statute law
until 1623 then certainly in English common law. 211 In addition, Kellum presented evidence
from Josiah Russel, to show that female infanticide occurred more often than male,
206
207
208
TNA KB 27/335, m. 17d
209
B. Westman, ‘The Female Felon in Fourteenth Century England’, Viator, 5, (1974), p264
210
211
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supposedly due to the need to provide girls with dowries upon their wedding day. 212
However, Helmholz has argued that ‘no evidence is forthcoming which bears on the thesis
that female children were killed more often than male’. 213 Moreover, ‘the idea impoverished
families performed child murder of females in order to escape dowries, whilst it could be
true for other nations, it was not substantiated in medieval England’. 214 The records
themselves do not follow the consensus of female infanticide in that male infants seem to
have been as equally victimised in these cases as females. Nonetheless, ‘it is clear that both
gender and marital status guided the courts in their decisions throughout the legal process
in terms of indicting, prosecuting and sentencing defendants in cases of child murder’. 215
Fathers indicted in secular courts for having caused the death of their children by
chastisement were not praised for their actions but rather condemned that they took it a
step too far. Whilst the Church accepted the use of force in order to regulate and chastise
children, it warned not to use excess force to the extent that it would damage the child or
cause its death. The royal courts often viewed child deaths of this manner to be homicide
and this is evident from the number of defendants who chose to flee rather than to face the
jurors. The fathers who did appear in court were often in denial of their crimes or had a
reasonable excuse as to why their chastisement had caused the demise of their child.
Therefore, fathers had to approach punishing their children with caution; using enough for
to ensure that the child behaved and did not commit the same offense against, but also
being gentle enough that it would not result in the death of the child.
212
Ibid, p367
213
214
W. L. Langer, “Infanticide: A Historical Survey,” History of Childhood Quarterly 1, 3 (1973), p354
215
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The smothering of children appeared in both secular and ecclesiastical courts. Priests were
prompted to advise their parishioners of the dangers of taking infants into their beds for
fear of over-laying them. Parental negligence featured highly in church courts given that the
Church was tasked with maintaining the moral and domestic life of its members. However,
there are instances whereby cases of infanticide by smothering were found in secular
courts. It is difficult to differentiate accidental over-laying from intentional homicide. The
line between accidental and intentional infant death is somewhat blurred during the middle
ages and it seems that over-laying is the most obvious example of this. Furthermore, unlike
chastisement, it seems that women were on trial more often than men for cases of
smothering, more than likely due to cold weathers and lack of sufficient methods to
maintain infant body temperature and due to the fact, that upon until the age of seven,
infants were cared for predominately by their mothers.
More often than not, single women came under the eye of suspicion in cases relating to
infanticide. Pregnant single women were shunned from society due to their sins and were
thought to be the most likely culprits to do away with their unwanted and illegitimate
children. However, it can be argued that this was with good reason. Helfer and Kempe have
argued that ‘the mortality rate during the first year of illegitimate babies’ lives was
frequently reported to be twice as high as their legitimate counterparts’ and the Middle
Ages was no exception.216 Single women often struggled to support themselves and would
almost certainly be unable to provide for a child. It may be that, killing the infant upon birth,
was seen, by some, to be a more humane death than having the child suffer. Single women
accused of infanticide were less likely to be pardoned for the crime and to be declared
insane despite their insistence. Married women, on the other hand, seem to have been
216
R.E. Helfer and C. Henry Kempe, The Battered Child, (New York, 1930), p7
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declared insane and pardoned in almost all cases of infanticide within this study. Married
women were not suspected of having sinned or fornicated outside of their vow of marriage
in the way that single women had. Furthermore, ‘the image of the nurturing and self-
sacrificing mother is so deeply ingrained in western society that child murders committed by
a mother, throughout history, have evoked horror and incredulity’. 217 It may well be this
incredulity that allowed so many murdering mothers to plead insanity as a way of
relinquishing their responsible for the crime; insanity may seem like the most humane
approach to explain such an irrational crime.
The very existence of the cases displayed here indicate that infanticide can be found in
medieval English courts, both ecclesiastical and secular. However, as Trexler has pointed
out, there is no necessary relationship between the number of prosecutions and the actual
frequency with which infanticide occurred. 218 It is very probable that some infanticide cases
were attributed to accidental deaths. Overall, infanticide was regarded to be a felony so
heinous that it was referred to the secular jurisdiction for punishment. Death by over-laying
and exposure seem to be the only frequent forms of child murder, which were under the
jurisdiction of the Church, due to their association with parental negligence as a factor for
infant demise rather than deliberate homicide. It may well be that parents were able to
disguise their true crimes by suggesting that their child had been smothered accidentally in
bed or by suggesting that they had left their child accidentally unattended. The true number
of infanticides in medieval England will probably never be categorically known. However, it
can be determined, from an examination of a small number of cases, that infanticide was
evident in medieval England. In contrast to abortion, which often fell under the jurisdiction
217
218
R. C. Trexler, ‘Infanticide in Florence: New Sources and First Results’, History of Childhood Quarterly 1, no. 3,
(1973), p103
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of the Church except in rare circumstances, infanticide, whilst condemned by both secular
and ecclesiastical teachings, was mainly prosecuted within secular courts. The reason for
this seems to be that infants who had been born and sometimes had received their baptism,
held a more prominent place in court and thus their deaths were constituted as homicide in
the same manner as homicides against men and women. Infanticide was a crime so horrific
that it qualified for secular jurisdiction and punishment.
Conclusion
Abortion and infanticide in medieval English society was prevalent enough for them to be
considered homicides and felonies. Despite claims by historians such as Kellum that
medieval England tolerated these crimes, this study has shown that this was not the case.
Abortion and infanticide crossed over into both ecclesiastical and secular jurisdictions due to
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the complex nature of crime and sin in the middle ages. As Müller has suggested, twelfth-
century law schools in Bologna began to reconstruct medieval notions of crime and sin that
evolved throughout the middle ages and became distinct from one another. 219 Medieval
English common law was heavily influenced by the Church’s teachings and as such, many of
the preoccupations of abortion and infanticide held by the Church were infiltrated into
English secular prosecutions of such cases. Moreover, as demonstrated previously, from the
fourteenth century, English courts did not perceive abortion to be a crime worthy of secular
jurisdiction; rather it was rendered a sin as opposed to a crime. Infanticide, on the other
hand, almost exclusively remained a crime throughout the medieval era in English secular
courts. Abortion by assault cases were still seen to be crimes and were indicted in the king’s
courts, though, this was due to the nature of assault upon the woman as opposed to fetal
death. Nonetheless, whether cases were pursued in ecclesiastical or secular courts, the
consensus in medieval England was that abortion and infanticide were considered to be
homicides and felonies and were treated as such according to Church doctrine and English
common law, save in cases of insanity.
One of the limitations of this study is the lack of evidence in regards to abortion and
infanticide in aristocratic families. As previously stated by Hanawalt, the aristocracy and
wealthier families were often exempt from judicial procedures; they really were above
common law.220 As such, it is difficult to ascertain how prevalent practices of abortion and
infanticide were. However, as McLaughlin has argued, the households of nobility were ‘said
to have “swarmed with bastards”’ and that ‘the stigma of illegitimacy might have been
lightly regarded’.221 Therefore, it must be assumed that members of the nobility also
219
220
B.A. Hanawalt, ‘Childrearing Among the Lower Classes of Late Medieval England’, p3
221
M. Martin McLaughlin, ‘Survivors and Surrogates: Children and Parents from the Ninth to the Thirteenth
Centuries’, p121
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engaged in sexual relations outside of the sacred vow and marriage and without effective
contraception, methods produced illegitimate offspring. However, it seems that illegitimate
children born to aristocratic or wealthy parents were less likely to be killed than those born
to lower parents. Rawcliffe offers an explanation by stating that the illegitimate offspring of
the poor ‘would have been a burden on the community’. 222 Therefore, it is not surprising
that, ‘even if not wilfully murdered, illegitimate babies have…a slim chance of survival’. 223
For the lower echelons of society, providing for themselves proved a difficult task; children
were another financial burden to bear. In times of famine and economic pressure,
infanticide and abortion were ‘sometimes regarded as an act of mercy’. 224 This is an
especially significant factor for single women. According to Butler, ‘a pregnant single woman
had few options available to her…the economic obstacles were overwhelming…single
women frequently had trouble supporting themselves, let alone having to support a
child’.225 However, the nobility would not have faced such harsh economic pressures and as
such would be able to provide for a bastard child; the only exemption being the forbiddance
of illegitimate children from inheriting any land or wealth. Therefore, a study of abortion
and infanticide within wealthier, aristocratic families will complement this thesis. However,
it must be noted that source material for such an investigation may not be forthcoming.
Through an analysis of a combination of secular and ecclesiastical records, this thesis has
sought to determine the extent to which abortion and infanticide were considered crimes or
sins in medieval English society. Whilst there is evidence of both appearing in ecclesiastical
and secular courts, there are not an overwhelming number of sources. Furthermore, what
sources are available are plagued with the masculine superiority that engulfed medieval
222
223
R.E. Helfer and C. Henry Kempe, The Battered Child, p7
224
A. Giladi, ‘Some Observations on Infanticide in Medieval Muslim Society’, p194
225
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society. As Cormack has explained, ‘the authors of written materials…were men’. 226 Women
did not hold very prominent places within society and as such were often excluded from the
records. However, in extreme cases, where women had broken away from the rigid ideals of
medieval society, they peak through the gap in the records. In this way, as Butler
emphasises:
pregnant single women…defied the norms of [the] medieval world…while the
medieval world worked hard to hide these women from history, the more we know
about them and their difficult paths, the more we can appreciate the independence
of those women who refused to slip neatly into the passive moulds prepared for
them in a highly gendered world.227
Moreover, McIntosh argues that ‘a pregnant single woman merely confirmed local
suspicions’; the courts probably believed that single mothers were more deserving of public
reprimands than married mothers. 228 The presence of women within records relating to
abortion and infanticide further supports to hypothesis that these crimes were considered
to be exclusive to women. Moreover, in cases of abortions by assault and other relating
crimes, husbands or kinsmen were unable to present a case to the courts on behalf of the
woman. There was a large emphasis on the women affected by such activities to come
forward and proceed with the prosecutions. This enabled women to take centre stage in
courtrooms with jurists who so often excluded them from legal proceedings within medieval
Europe.
226
M. Cormack, ‘Introduction: Approaches to Childbirth in the Middle Ages’, Journal of the History of Sexuality,
21, 2, (2012), p201
227
228
M. Keniston McIntosh, Controlling Misbehaviour in England, 1370-1600, p191
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The demands of space have limited further research within this thesis. As previously
mentioned, an examination of the experiences of the aristocracy is necessary. Furthermore,
as seen in chapter two, insanity was a frequent defence plea used in cases of infanticide.
From an examination of court records such as justice itinerants and coroners’ rolls, it seems
that married mothers’ pleas of insanity were much more readily believed than their single
mother counterparts. The reason for this, it is probable to assume, was due to the strong
bond of motherhood and that jurors believed anyone who would severe this bond must be
insane. However, Leyser argues that insanity was not a common form of defence, often due
to the stigma surrounding the insane within medieval society. 229 A further area of research
to validate Leyser’s claim would be to see how far insanity was a common plea with secular
courts and how medieval jurors treated such claims. Did they readily accept it as they did in
cases of infanticide with married mothers? And if so did those people receive pardons? If
this were not the case, then it would appear that infanticide was a truly distinct crime in
regards to its prosecution within secular courts.
The fundamental aim of this study was to show, in contrast to Kellum and Helmholz, that
not only were abortion and infanticide present within medieval society but they were
prosecuted by ecclesiastical and secular courts and were considered to be felonies. From an
analysis of a range of prescriptive texts and court records, abortion was considered to be
regarded as a sin as opposed to a crime, except in circumstances where an assault on a
pregnant woman had taken place. The “quickening” stage was a crucial development in
prosecution of abortion cases. If this stage had occurred, then the charges were increased to
homicide as opposed to contraception. The Church’s dominance over the domestic life of its
members, placed abortion and contraception within its jurisdictions. In contrast to this,
229
H. Leyser, Medieval Women: A Social History of Women in England 450-1500, p132
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infanticide was considered to be a crime best punished by secular courts. It seems that even
though abortion was considered a homicide, there was a distinction with infanticide due to
the fact that the foetus had been born into the world. Medieval preoccupations with
baptism or lack of, plagued jurors and ecclesiastical clerics, particularly in relation to cases of
infanticide. The lack of baptism placed an infant in a state of perpetual limbo, being
forbidden entrance into Heaven but also being prevented from Hell; the very specification
of lack of baptism within court records highlights that for medieval jurors this was a
significant problem. Killing an infant once it had entered into the world was seen as a more
heinous crime than abortion and as such would be treated that way. Due to the limitations
in the range of punishments that Church could offer, it appears that infanticide was
deserving of more extreme punishments that only secular courts could offer, hence
infanticide cases being presented to secular as opposed to ecclesiastical sources. The true
number of abortions and infanticides within medieval Europe will probably never be truly
known, however, that is not to say that this study is futile. The very presence of these
records proves that abortion and infanticide was present within medieval society and that
they were considered both sins and crimes.
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An Examination of Legal Cases: Prosecuting

An Examination of Legal Cases: Prosecuting

Keele University Master of Research

Word count: 21,180

1) Si qua mulier abortum fecerit: An Analysis of Ecclesiastical and Secular Prosecutions

2) Non-compos mentis: An Exploration of the link between Infanticide and Pleas of

advice from Nigel Coulton.

Zyf men and woman be so wylde

month…[was] considered contraception; after ensoulment, it was considered abortion, and

the perpetrators accountable and punish them accordingly, if in different ways.

contrast, infanticide features predominantly in secular courts, where examples of infanticide

to intentional killing. Interestingly, claims of insanity as a defence plea feature frequently in

and were both sins and crimes respectively.

against Pregnant Women in Thirteenth-and Fourteenth-Century England’ and ‘Abortion

prosecuted in ecclesiastical courts. One of the criticisms of an otherwise very well-

about infanticide in medieval Europe’.8 Furthermore, Helmholz also references cases of

were, sometimes, an accepted form of defence resulting in the defendant receiving a

Similarly to Rawcliffe, Riddle’s analysis of the different methods of procuring abortions in

itinerants, contemporary medieval opinions towards abortion and infanticide become

infanticide cases in medieval European society. Müller presents a well-structured and

understanding medieval legal terminology. According to Müller, twelfth-century Bologna

both medieval and ecclesiastical law is an instrumental study to this thesis.

documents, given that, as James Brundage has demonstrated:

courts, bishops’ registers, mandates, memoranda, formularies, monastic cartularies,

and numerous other artefacts of ecclesiastical administration. 15

experience” of medieval peoples is challenging. Nevertheless, the sources do offer an insight

must recognize that we have no access, even potentially, to an unmediated world of

givens-no readymade chronicle of events or histories-and must construct their narratives on

document what they believed to be relevant. 18 Frustratingly, historians ‘face a constant

puts many aspects of the past beyond our knowledge’.19

medieval writing is critical to historians understanding of the past. It seems that,

correspond to some external reality’.22 Therefore, in terms of the discipline of History, if

inescapably immersed in a series of discursive and textual enactments constituted by the

medieval diocese of Worms.24 An examination of secular court records alongside

experience”. Whilst prescriptive texts provide an idealistic interpretation of medieval

documents is language. Spiegel’s essay, ‘Towards a Theory of the Middle Ground’,

descendants. Following the development of a postmodernist approach to historical records,

medieval ancestors understood as a crime. The complicated nature of medieval society, in

coined by Spiegel, ‘combines an insistence on seeing language as socially generated with an

and comprehend the nature of the text.

involved death, and instead authorised canonical punishments including excommunication,

public penance, imprisonment, whipping, fines and possible enslavement or a combination

consistently described legal complaints aiming at the restitutions of damages, and

crime regularly referred to behaviour deemed punishable as such, with prosecutions

often being supplemented by “civil” proceedings in pursuit of compensatory claims. 28

demanding penance- as well as behaviours which are considered to be punishable by

Further to the analysis of language, it is important to consider the underlying social

contradictions that existed in an exclusive, misogynistic society. In regards to abortion and

was…remarkable because, at least in principle, its rules applied equally to everyone,

the women in late medieval society’.31

opinions of abortion and infanticide. Through an examination of ecclesiastical and secular

the best example of this.

Si qua mulier abortum fecerit: An Analysis of Ecclesiastical and Secular

associated with abortion prosecutions, many unfortunate women found themselves in

and ecclesiastical law vehemently opposed abortion as an effective contraception method

often blurred. Was abortion considered to be a crime or a sin? In order to successfully

ecclesiastical cases of abortion, which occurred in Medieval Latin Christendom, as well as

prescriptive texts intended for legal and penitential use.

Medieval Europe, as Brundage has demonstrated, possessed ‘multiple legal systems…

enlightenment in a sea of nations still in an earlier stage of sacrificing children to gods, a

censure’.39 In response to this, medieval laypersons were consistently reminded by the