Gender, Law and Economic Well-Being in Europe from the Fifteenth to the Nineteenth Century

North versus South?

Anna Bellavitis, Beatrice Zucca Micheletto, Anna Bellavitis, Beatrice Zucca Micheletto

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780367588908
• eBook ISBN: 9781351334211
• Edition: 1
• Topic: History
• Subtopic: European History
• Index: History

This book offers a comparative perspective on Northern and Southern European laws and customs concerning women's property and economic rights. By focusing on both Northern and Southern European societies, these studies analyse the consequences of different juridical frameworks and norms on the development of the economic roles of men and women.

This volume is divided into three parts. The first, Laws, presents general outlines related to some European regions; the second, Family strategies or marital economies?, questions the potential conflict between the economic interests of the married couple and those of the lineage within the nobility; finally, the third part of the book, Inside the urban economy, focuses on economic and work activities of middle and lower classes in the urban environment. The assorted and rich panorama offered by the history of the legislation on women's economic rights shows that similarities and differences run through Europe in such a way that the North/South model looks very stereotyped. While this approach calls into question classical geographical and cultural maps and well-established chronologies, it encourages a reconsideration of European history according to a cross-boundaries perspective.

By drawing on a wide range of social, economic and cultural European contexts, from the late medieval to early modern age to the nineteenth century, and including the middle and lower classes (especially artisans, merchants and traders) as well as the economic practices and norms of the upper middle class and aristocracy, this book will be of interest to economic and social historians, sociologists of health, gender and sexuality, and economists.

Part I

Laws

1 Community of goods, coverture and capability in Britain

Scotland versus England¹

Deborah Simonton

Preamble

All over Europe, women were discriminated against in terms of rights of citizenship, property ownership and in access to work. Law, custom and ideology played a part in creating forms of discrimination. During the eighteenth century, the Enlightenment interacted with older ideas and legal traditions to reshape contemporary thought, and recodification of law was one of the Enlightenment projects. The legal framework for women’s activities varied widely from one end of Europe to the other, and one must not overlook the importance of local and regional circumstances as well as of institutional or cultural norms, and change over time. As Laurence Fontaine said, not only did the legal framework of women’s activities vary ‘from one end of Europe to another, . . . it was a nuanced and fluid mix . . . [and] the three principal branches of law to be found in Europe were far from being internally consistent’ (Fontaine 2001: 14, 15; her useful overview overlooks Scotland). One dynamic was the comparison between Roman and customary law regions, which suggested a broadly North and South dichotomy whereby women in customary areas might have more commitment to operate within family economic interests, while Roman law regions were more likely to be discouraging as the dowry system would have kept women away from the labour market. This had most resonance for married women, for whom a husband was responsible, and gave single women, unmarried or widowed, more opportunities and relative ‘freedom’ in financial matters.

The concept of coverture, legal fiction or not, is deeply embedded in our understandings of married women’s economic roles. Primarily based on English common law, coverture often is taken as a model for ‘Northern’ European women. However, as Amy Erickson has shown, there were both commonalities and important differences in the legal position of women in the marital economy across the Nordic and British regions (Erickson 2005). Less obvious are the differences between an English legal situation and the rest of Britain. There remains a common assumption that coverture operated unilaterally and that it applied throughout the British Isles in the same way. Scottish historians Cathryn Spence, Gordon DesBrisay and Karen Sander Thompson use the term, lending weight to the belief that the situation was the same in both countries (Spence 2013; DesBrisay and Sander Thompson 2008). They do recognise the differences; the use of the term, however, is problematic.

This chapter focuses on Scotland, where a variety of legal traditions came together to create a separate legal system from that of England. It contests the view that coverture was a unilateral doctrine and explores how the Scottish system affected married women’s position regarding property and the economy, and specifically the implications for women in business.

There is consensus among eighteenth-century historians that there has been very little written on this issue for Scotland in contrast to England. For the most part, discussions of married women’s property rights are embedded in studies of other aspects of women’s lives, notably, family, inheritance, divorce and work. Anne Laurence’s useful survey of women, inheritance and the transmission of property for the seventeenth century covers the British Isles (Laurence 2009). Focusing on Scotland, Elizabeth Ewan discusses late medieval women’s ability to make contracts, especially brewers, while Winifred Coutts’ examination of testaments and marriage contracts around 1600 is the most detailed study predating the eighteenth century (Ewan 1999; Coutts 2004). Cathryn Spence addresses credit transactions before 1700, demonstrating that women were debtors and creditors in their own names as well as with husbands (Spence 2016). This chapter relies heavily on these and related studies by eighteenth-century Scottish scholars. The best recent summary of Scottish marital property law is Katie Barclay’s Love, Intimacy and Power: Marriage and Patriarchy in Scotland, 1650–1850, and this chapter follows much of her central argument. She maintains that Scots law was fundamentally based on ensuring the ‘harmonious operation’ of the marital economy. It

emphasised the husband’s right to manage his wife and her property, while a wife’s right resided in her interest in her husband’s property and the expectation that she be provided for. The law’s interest in the marital union was in its role as an economic unit, not as may be expected as a procreative unit.

(Barclay 2011: 52)

Catriona MacLeod has developed the question of married women’s property rights and the use of contracts for Glasgow, showing how couples could utilise legal flexibility to shape their own marital economies (MacLeod 2015). The impact of law on women’s work and business figures in studies by Ewan, Helen Dingwall and Elizabeth Sanderson, on Edinburgh, and Alastair Mann on female printers, especially Agnes Campbell (Ewan, Dingwall and Mann 1999; Sanderson 1996). Clearly, more work needs to be done on the specific case of Scotland to understand the extent to which legal restraints and opportunities operated in the economy; further, the relation of Scotland to the wider European context is relevant to understanding the nuances and variations in law across Europe.

English coverture

In the last twenty years, historians have reopened the discussion on the operation and meaning of coverture in England, which had been, as Nicola Phillips intimated, a common trope throughout histories of women’s work, and especially among studies of women of the middling orders. She argued that the

dominant impression of women’s legal position during the period 1700 to 1850 remains one of the disabling effects of coverture produced by the overarching power of the common law – and the patriarchal values underlining it – which, in turn mirrors narratives of women’s declining economic position.

(Phillips 2006: 23–4)

These women were often perceived as living under the same sort of domestic vision of women that inflected images of the Victorian middle classes. Not only has the image of the domestic female been challenged, especially for the eighteenth century, but also businesswomen have had their own renaissance at the hands of historians (see also Lane 1999; Wiskin, Barker and Harvey 2003; Nenadic 1998).

The law was clear in that an English married woman, or feme coverte, did not have a separate legal existence, and thus technically could not enter into contracts or purchase goods on credit. The law of coverture invoked the doctrine of the unity of person, famously described by William Blackstone in his Commentaries on the Laws of England:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least incorporated and consolidated into that of her husband: under whose wing, protection, and cover she performs everything; and is therefore called in our law-french a feme covert . . . under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.

(Blackstone 1800; see also Zaher 2002)

Thus, Blackstone echoed the well-established legal and common understanding of the law in eighteenth-century England (Anon. 1700: 4; Anon. 1732: 78, 81; Anon. 1777: vi). The theoretical basis for English coverture was not that the wife surrendered herself to her husband, but that the two people became one. In effect, husbands had total power over couples’ assets unless restrained by marriage contracts. The overriding principle was that a woman could do nothing without her husband’s consent. She could, however, serve as his agent because they were one, and she therefore acted as his representative. Women with property had some alternatives: English law of equity and Chancery tended to uphold marriage settlements entitling women to ‘the separate use and enjoyment’ of their property, or they could put property in trust before marriage. Married businesswomen had access to feme sole status, which enabled them to trade legitimately on their own account.

Several historians have gradually unravelled English coverture, arguing that it was not as crippling as formerly described (for a summary of the literature, see Stretton 1998; Prest 1991; Bailey 2002; see also Erickson 1993; Bailey 2003: chapter 3; Finn 1996; Hunt 2000; Shepard 2000). Erickson pointed out that common law was not all-pervasive even in England, and while ‘strict settlements to preserve property in the male line were used only by the wealthy’, informal ‘prenuptial settlements to preserve a wife’s property interests were implemented by all levels of society’ (Erickson 1993: 4–5, 150). Margaret Hunt has shown how anomalous feme sole was, since a woman was still expected to run her household and place her husband’s interests before her own. Fundamentally, the status was too weak to stand up to pressure (Hunt 1996: 138–42). Barker and Phillips agree that feme sole status was of limited advantage to women since it made them liable to debt recovery and bankruptcy laws, while husbands could hide behind the laws (Phillips 2006: 64–8; Barker 2006: 137). Joanne Bailey, Beverly Lemire and Hunt argued that married women operated within relatively broad and flexible economic relations, and the informality of many credit arrangements was a significant factor enabling women to ignore the fact that legally they were ‘covered’ by their husbands (Bailey 2002; Lemire 2012: 31; Hunt 2004). Margot Finn supports the view that women had strategies to evade the strictures of coverture:

their ability to pledge their husbands’ credit to purchase a wide range of ‘necessary goods’, their use of this tactic to secure a degree of independence from unsuccessful marriage, and their active participation in the deliberations of a variety of small claims courts.

(Finn 1996: 703)

Thus, the hegemony of coverture was partial and contested rather than monolithic; the law was variously interpreted and resulted in a more complex, and often less oppressive, set of social relations. Importantly therefore, despite prohibitions, there were legally acceptable spaces within which married women could conduct their business.

Scottish law

Wales, Scotland and Ireland have different histories from England, and from each other, which are fundamental to differences in women’s legal status and their impact on property and the economy. In Scotland, coverture did not, in fact, exist. From 1603, the British Isles shared a single monarch but, although England was wealthier and more powerful, Scotland and Ireland were not subject nations. They were juridically and legally separate. Both English and Scottish representatives signed the Act of Union 1707, creating Great Britain; it was a treaty that legally dissolved both parliaments, creating a single new unified parliament for Great Britain. However, and significantly, key aspects of English and Scottish life and culture were enshrined and protected in the treaty, specifically, the right to their own churches, education and law.

A mass of overlapping jurisdictions marked the Scottish legal system, so that a critic of the Scots law of marriage wrote: ‘This Scottish institution is so blended with the Roman, canon, ecclesiastical, customary and legislative as to make the primary union more a mockery to future ages’ (Logan 1839: 187–8; see Mitchison and Leneman 1989 on marriage practices). Scots law derived from Celtic legal traditions, coupled with clan law, Germanic law and ultimately with Roman law, linking it to Southern Europe (see Laurence 2009). Germanic and feudal law came with the Normans in 1066, providing the basis for much of the customary law of England, Wales and Scotland. Feudal law excluded women from ownership of land because it was granted by the king as overlord in return for military service, which women were not compelled to give. Germanic law was specifically the progenitor of English common law, which relies on precedent rather than a written law code. While Scottish law borrowed from the Normans, it developed autonomously and differently from that of England, because from the thirteenth century Scots lawyers trained on the Continent, acquiring Roman law precepts and practice. Subsequently, Scots law drew on Roman law texts rather than English common law precedents. Pre-existent Celtic law merged with Scots law, but remained important only in the Highlands (on clan law, see Nenadic 2001: 205; Reddington-Wilde 1999). The Church of Scotland, which was (and is) legally separate from the English Church, was an integral component of the legal system. As Andrew Herron argued:

We are dealing with a presbytery, an established judicature of the country, as much recognised by law as the Court of Session itself. Its jurisdiction, indeed, differs widely from that of the civil courts, but it is as much the creation of law as that of any other court of the kingdom.

(Herron 1985: 11–14)

The Scottish Presbyterian Church also made divorce legal and available, as in Protestant Germany, the Netherlands and Scandinavia. In Scotland, a secular court administered divorces (Commissary Court), and there was ...

Table of contents

• Cover Page
• Gender, Law and Economic Well-Being in Europe from the Fifteenth to the Nineteenth Century
• Gender and Well-Being
• Title
• Copyright
• Contents
• List of Figures
• List of Tables
• List of Editors and Contributors
• Acknowledgements
• Introduction: North versus South – Gender, Law and Economic Well-being in Europe in the Fifteenth to Nineteenth Centuries
• PART I Laws
• PART II Family Strategies or Marital Economies?
• PART III Inside the Urban Economy
• Index