Women, Agency and the Law, 1300–1700

Bronach Kane

• Publisher: Routledge
• Year: 2015
• Edition: 1
• eBook ISBN:
  9781317320012
• Topic: History
• Subtopic: British History
• Index: History

Based on close readings of both public and private documents – court records, churchwarden accounts, depositions, diaries, letters and pamphlets – this collection of essays presents the largely untold story of non-elite women and their dealings with the law.

1 Your Oratrice: Women's Petitions to the Late Medieval Court of Chancery

Cordelia Beattie

DOI: 10.4324/9781315654751-2

Beseecheth meekly your poor oratrice Denise Gros of London, widow.

[Chancery bill, 1443–56]

Right meekly beseecheth your gracious lordship your poor oratice and bedewoman Elizabeth the wife of one Joce Lamanva.

[Chancery bill, c. 1471]

Meekly beseecheth your good lordship your daily oratrice and poor maiden Johanne Fowler.

[Chancery bill, 1475–80 or 1483–5] ¹

The late medieval court of Chancery has often been held to be a court that was particularly accessible to women. ² Married women, for example, such as Elizabeth the wife of Joce Lamanva (quoted above), could bring cases to Chancery in their own right, rather than having to be represented by their husbands, as the restrictions of common law did not apply. ³ Petitioners would ask the Chancellor to provide redress for problems that could not be resolved fairly in another legal jurisdiction. If accepted into the court, the Chancellor (usually a bishop or archbishop in this period) would judge cases according to ‘conscience’, some contemporary notion of what was fair, rather than strict rules of evidence, making Chancery an early ‘equity’ court. ⁴ Cases were begun by a complaint, which could be made orally, although our main source for how this court operated are the written bills that were submitted to it by lawyers, on behalf of petitioners. ⁵ As the court did not make decisions based on legal precedents it did not have to store its records. While some of the bills that initiated a case have survived, it is rare that they are endorsed with process notes or stored with related records such as writs or depositions relating to the same case. Although this means we usually do not know how any individual case progressed, the evidence that we do have is written from the perspective of the petitioner rather than the court and, from 1443, usually in Middle English. ⁶ For Barbara Hanawalt, ‘Because they are written in English instead of Latin, they give the reader a sense of the way people narrated their own pathetic tales’. ⁷ Chancery bills, then, should be an ideal source for those interested in the female litigant and her ‘voice’ under the law.

As with all legal material, though, we need to think carefully about the relationship between the written document and the persons and events it describes. The frequent identification of the petitioner in the opening line of a Chancery bill as ‘your oratour’ or ‘oratrice’ suggests a speaking subject but the bill’s formulaic language, and the third person format, also nods towards the involvement of a lawyer or scribe. The stance taken in this essay is that one need not choose utterly between the ‘textual’ and the ‘social’. First, we will briefly consider how other historians have tackled the question of what legal records can reveal of past societies, particularly women’s voices and agency. Second, we will discuss the composition of Chancery bills and the process of petitioning the late medieval court of Chancery in order to elucidate my own approach. Third, this approach will be demonstrated by way of a particular case study, the Chancery bill of Humphrey and Johanne Bawde, c. 1480 (see the appendix, p. 157, for a transcript). ⁸

Legal Records and the Historian

Historians are aware of both the problems as well as possibilities of the sources that they use, but some approaches stress one more than the other. For Joanne Bailey, social and cultural historians have tended to approach legal records in one of two ways: they act either as ‘“story-tellers”, constructing stories of individuals, relationships, and communities from legal testimony’, or as ‘“translators” … seeking to decode the symbol and form’ of the language used in court records. ⁹ In this typology, the ‘story-tellers’–aware that the juridical context both shapes the legal record and distorts our view of life outside the court – hold that the court records nevertheless permit us to recover the experiences of people in the past and even to access ‘mental worlds’ and ‘voices’ that would otherwise be lost. ¹⁰ Or they emphasize reading trial narratives for the information that they contain. This was Marjorie McIntosh’s approach to equity court bills in her study on working women: ‘The accounts were constructed to present the claims of that party in a positive legal light … The secondary information provided by the narrative … was less apt to be deliberately re-worked.’ ¹¹

By contrast, the ‘translators’ focus on the distortions. For some it is a matter of identifying these ‘filters’ – such as the lawyer’s or scribe’s formulaic language – so that they can be removed, allowing us access to an individual’s voice and agency. ¹² Some scholars even alter their source material when quoting in order to emphasize the female voice: ‘repetitive and formulaic legal phrases have sometimes been removed without ellipses, and narratives returned to the first person singular’. ¹³ For others, the filters are so effective that all we can reconstruct is the ‘narrative of a trial’, rather than the events that preceded it. ¹⁴ Christopher Cannon argues that the distortions in the records themselves signify by suggesting the life lived at law:

The constricting lines of force that work to obscure women’s voices in court – the rules of law and its procedural forms, attorneys and their linguistic influences, scribes and their distorting Latin formulae – are crucial forces determining the part of life lived at law: in the court, in the process of pleading, on the way to asserting the rights to plead and appeal that women had. [original emphasis] ¹⁵

Perhaps a little confusingly considering the nomenclature of her typology, Bailey’s ‘translators’ – such as Laura Gowing and Tim Stretton – often focus on storytelling in the legal records. The seminal work in this respect is Natalie Zemon Davis’s Fiction in the Archives, which analyses the stories told by those seeking a royal pardon for murder in sixteenth-century France. For Davis, the supplicant’s voice was ‘the primary one in a collective endeavor’, that involved a royal notary and his clerks and possibly a lawyer or attorney, but the stories were ‘determined by the constraints of the law and approaches to narratives learned in past listening to and telling of stories or derived from other cultural constructions’. ¹⁶ Stretton – in his study of the Elizabethan Court of Requests, which shared similar procedures with the court of Chancery – argues that it would be wise to focus attention on ‘the story-telling, rather than the story-teller’ as this allows one to set aside ‘the eternal problem of separating the contributions (and values) of litigants and lawyers’. ¹⁷ But there are other approaches which, as Garthine Walker puts it,

aim to be sensitive to the ways in which the content of legal tales was culturally mediated and structured by law … yet … also strive to hear individual women’s voices in these texts, in keeping with conventional women’s history that seeks to recover women’s agency from a past of structural inequalities. ¹⁸

Gowing’s analysis of women’s depositions from the church courts of early modern London is one such example, while Walker’s approach to legal narratives in early modern England is another. ¹⁹ Walker stresses the multivocality of her legal texts. By this she does not just mean the woman’s dialogue with the legal system, with specific laws, and with the persons judging her story, but she is also referring to the different discourses that the woman might invoke within a legal narrative:

In speaking in or through intersecting or competing discourses, they constituted and positioned themselves as subjects within various and multiple subjectivities … Their stories therefore provide us with access to a range of female subject positions, subjectivities as they were both performed and recorded in the particular context of legal procedures. ²⁰

The approach adopted in this essay aligns me with the ‘translators’, with its emphasis on analysing the structure and language of Chancery bills. Further, it strives to uncover the input of female petitioners. Although it will also discuss stories, tropes and subject positions, its methodology is tailored to the specific legal arena and records under discussion: the court of Chancery and its bills.

Chancery Bills and the Petitioning Subject

Although some scholars have thought about Chancery bills from the perspective of the petitioners, much of the previous scholarship on this source has been on their language and composition, that is, the role of scribes and lawyers. ²¹ The Six Clerks of Chancery were involved in drawing up the bills and could act as attorneys for petitioners. ²² Timothy Haskett has argued that lawyers outside of Chancery also composed some bills, although in such cases – if the bills were not written in Chancery hand – the bills would have been recopied by a Chancery clerk once submitted. ²³ Formal petitions follow a universal set of epistolary principles in terms of their structure: salutatio (formal greeting to the addressee), exordium (introduction of the petitioner(s)), narratio (narration of the circumstances leading to the petition), petitio (presentation of request) and conclusio (final part). ²⁴ Chancery bills are also presented as the kinds of cases that the Chancellor could deal with; for example, petitioners frequently claimed that they were too poor or too powerless to get justice at common law because such a claim allowed the Chancellor to intervene. In terms of both the generic elements of a petition and a bill’s specific claims, we find many examples of formulaic language. For example, most bills begin with a version of ‘your poor orator’ or ‘oratrice’ and the actions of opponents are often explained as stemming from ‘malice’, leading to the petitioner’s ‘utter undoing’ unless the Chancellor intervened. ²⁵ Thus there was a distinct canon of form for a Chancery bill, which was applied to a petitioner’s complaint by a Chancery clerk or another lawyer.

Chancery bills, though, obviously contain individualizing features that relate to specific petitioners and their problems. Haskett, in a study of Chancery cases for which more than one bill pertaining to the same matter survives, has argued that such examples ‘demonstrate the nuances of presentation that were thought to ensure the greatest chance of success for a case in chancery’. ²⁶ These nuances include presenting two different petitioners concerned with a single problem in different ways, the modification of bills after they were initially drawn but before submission and the modification and resubmission of failed bills. It was not acceptable for petitioners to alter the substance of their bills after they had been submitted; some bills included a memorandum of surety stating that the petitioner must prove the matter as specified in that particular bill to be true. ²⁷

Haskett is keen to emphasize how hard lawyers and scribes worked in order to give petitioners the best chance of success. However, his findings also enable us to envisage what role an individual petitioner might play in this process. For example, for a case to be successful it was imperative that a petitioner could substantiate her claims in court when required, although this stage – if it came – was much further on. ²⁸ After a petition was handed in to Chancery, and if its case was appropriately set out, the requested writ would be issued, for example, to summon or secure the person of whom the bill complains or, directed to officials and holders of courts, asking them why the petitioner had been arrested and sometimes to produce the same petitioner from prison. ²⁹ The next stage was for the defendant to answer the charges made. The petitioner then had the option of submitting a replication responding to the answer, which might in turn produce a rejoinder from the defendant, and so on, until the allegations of the bill had been whittled down to a set of agreed points at issue. These were then used for the next stage, the gathering of evidence. Witnesses could be examined and depositions produced. By the mid-fifteenth century, it seems that all these elements were presented to the Chancellor in written form, as some of these documents have been preserved. The Chancellor could then make a decision on the evidence that was before him, order a search for further evidence, examine further any of the parties involved, or delegate some of these tasks. ³⁰ It is likely that not all cases lasted the distance, with some being dismissed, and others lapsing due to lack of funds or because the defendants had settled out of court, although this is hard to quantify when we only have the initial bill. ³¹ While written documents were the main means by which petitioners (and their opponents) could communicate their versions of events, then, they also needed to ensure that they could defend in person whatever was alleged therein.

The petitioner’s presentation of the case to the lawyer or scribe could also be the origin of some of the bill’s distinctive features, whether these relate to the story told, the subject positions adopted or to some of the language that is used. As discussed, one approach towards legal records has been to focus on stories, the common plots, literary tropes and vivid details that make the legal narratives plausible and familiar to a contemporary audience. The intention of a Chancery bill was not to tell a compelling story, though, but to get a case moved to Chancery, usually from another jurisdiction. Thus bills tend to outline what should have happened in another court and what had happened instead, but do not always elaborate on the events that led up to the earlier legal process, although we might discern a common narrative frame. ³² Nevertheless, whether a Chancery bill tells a coherent story or not, the events related work to position the petitioner in one or more ways. For example, Chancery bills from servants who were being sued in another court by former employers position the petitioners as ‘good servants’, ‘honest workers’ and ‘virtuous maidens’ who had been exploited in some way. ‘Poor maiden Johanne Fowler’, whose bill was quoted at the outset, counters her mistress’ accusation of theft with the statement that, ‘she was but a poor maiden having … no help but only of almighty God through her virtuous living and maidenly disposition’. ³³ Johanne Lytle, whose master pursued serial actions of trespass against her when she tried to leave his service at the end of an agreed term, is described in her bill as ‘being a poor maiden and nothing hath to live by but only by her true service’. ³⁴

While one could debate if the subject position constructed in a bill, as with the narrative, was the creation of the petitioner, a lawyer or someone else, if the petitioner wanted her complaint to be redressed she needed to ensure that she could occupy the subject position(s) adopted in the bill – such as the ‘poor maiden’, or the ‘chaste wife’ – for any potential court appearance. What we get in a Chancery bill, then, is primarily a textual subject, which we might think of as a petitioning subject. The petitioning subject is produced by the process of petitioning Chancery, rather than being a fictive persona or an a priori self ‘revealed’ through writing. ³⁵ Thus understanding that process enables us ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• List of Abbreviations
• Preface
• Introduction
• Part I: Shaping Women’s Testimony
• Part II: Encountering the Law
• Part III: Women’s Voices and Women’s Spaces
• Appendix
• Notes
• Index