‘It is necessary that the issue be heard to cry or squall within the four [walls]’: Qualifying for Tenancy by the Curtesy of England in the Reign of Edward I

Gwen Seabourne*

*Corresponding author for this work

Research output: Contribution to journalArticle (Academic Journal)peer-review

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Abstract

This article considers the test used to determine the presence or absence of life in newborn babies, in relation to a widower’s entitlement to remain in land brought to the marriage by his wife, as tenant by the curtesy of England. To qualify for curtesy, a widower needed to have produced a live and legitimate child, but, since even a short period of life was sufficient, there might be disputes as to whether a child which was now dead had ever been alive. The common law therefore had to develop a way of settling this difficult matter of confirming or denying the presence of life. Several thirteenth-century sources show an emphasis on a sound as an indicator of life. This article considers the use of a sound criterion in this area, arguing that thinking and practice surrounding the appropriate test were more complex, less settled, and more interesting than has been represented in somewhat perfunctory accounts in the work of later lawyers and legal historians. This is significant for the understanding of this area of medieval law, but also has broader implications within legal history and historiography, and for scholars from other fields such as medieval social and medical history.
Original languageEnglish
Pages (from-to)44-68
Number of pages25
JournalJournal of Legal History
Volume40
Issue number1
Early online date27 Feb 2019
DOIs
Publication statusE-pub ahead of print - 27 Feb 2019

Structured keywords

  • LAW Centre for Law and History Research

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