Women and Property

In Early Modern England

Amy Louise Erickson

• Publisher: Routledge
• Year: 2002
• eBook ISBN: 9781134785575
• Topic: History
• Subtopic: World History
• Index: History

This ground-breaking book reveals the economic reality of ordinary women between the late 16th and early 18th centuries. Drawing on little-known sources, Amy Louise Erickson reconstructs day-to-day lives, showing how women owned, managed and inherited property on a scale previously unrecognised. Her complex and fascinating research, which contrasts the written laws with the actual practice, completely revises the traditional picture of women's economic status in pre-industrial England. Women and Property is essential reading for anyone interested in women, law and the past.

Part I
Background

1 Introduction

English legal writers from the seventeenth to the nineteenth centuries never tired of claiming that women were ‘a favourite of the law’ and even, in the hybrid professional language called law French, ‘lour darling’. The position of a married woman in England, although admitted to be ‘de jure but the best of servants…de facto is the best in the world’.¹ This despite the fact that the legal restrictions placed on English women at this time were exceptionally severe even by the standards of other early modern European countries.

In the twentieth century all overt legal restrictions have been removed, and yet women as a group remain at a profound economic, social and political disadvantage. Women today predominate among those receiving income support or welfare from the state—at the identical rate that they predominated in the seventeenth century among those in receipt of parish poor relief. And an equivalent proportion of the poor then and now are single mothers, although the causes of their singleness have shifted. Women today earn only about two thirds of what men earn. But women have earned approximately two thirds of men’s wages for the last seven centuries. How is it that such severe economic disparity between women and men persists when the laws have changed so dramatically? What is the relationship between law and practice?

Historically, the most important component of wealth was not wages, but inheritance, whether that inheritance consisted of a landed estate, or of a single cottage and garden, or even of a cow, a kettle, a brass pan and a bed.² How did early modern women survive when not only were their wages significantly lower than men’s, but the common law only allowed them to inherit land if they had no brothers, under a system of primogeniture? When they lost all their personal property and control of their real property to their husbands at marriage, under the doctrine of coverture? Coverture eclipsed the legal identity of a married woman, leaving her unable to sign a contract or sue or obtain credit in her own name. As a widow, a woman might be entitled to only one third of her husband’s real property, or might even be left entirely at the mercy of his will.

This book reconstructs the lives of ordinary women between approximately 1580 and 1720, by comparing the laws of property transmission with

women’s everyday experience of inheritance, marriage and widowhood. The traditional tripartite division of women’s lives into before, during and after marriage—into maids, wives and widows—was not only socially but also legally defining. (A ‘maid’ was simply a girl or unmarried woman in early modern England. A young female employee was usually a ‘maidservant’, and ‘maid’ alone did not connote servanthood exclusively until the nineteenth century.) The rich historical sources of the long seventeenth century afford evidence of how a daughter was brought up relative to her brothers, how her inheritance compared with theirs, and what happened to her inheritance upon marriage; what property a wife actually enjoyed or considered her own, in spite of the law of coverture; and what benefits a widow received from her husband’s estate, what she did with that property in her widowhood, and to whom she left it when she died.

The sources in which it is possible to trace actual property ownership, as opposed to property law, are those resulting from death and marriage: probate documents and records of lawsuits over marriage settlements. Virtually every death and every marriage involved a transfer of property, and the ways in which property was distributed shaped the structure of society. The relationship between property ownership and class structure in early modern England has received considerable attention in legal history, social history and family history, but the role of gender has been conspicuously absent from these discussions. This book outlines the patterns of property ownership and property transfer among ordinary women and men in early modern England.

Understanding these basic economic patterns of property movement is essential for three reasons. First, it is vital to know about women’s economic position in order to say anything at all about social relations in a society in which more than half the population was female. Second, many sweeping generalizations about early modern family relations have been made in the last twenty years. But when these have been grounded in evidence of actual families—and they haven’t always—the evidence used is the marriage settlements and inheritance of very wealthy families. Thus most of the population has been left out. By looking at the patterns of property distribution in ordinary families, this study grounds generalizations about emotional climates in the lived experience of the vast majority of the population. Third, while much has been written about women’s ‘status’ in the early modern period, the great majority of this work is based on literary sources in which it is difficult to disentangle theory from practice. Property offers an excellent means of comparing the theoretical ideal, in the form of the law, with actual practice, in terms of ordinary women’s ownership. While gender has been expertly analysed in legal philosophy, tracing the exclusion of women from concepts of ‘the individual’ since the later seventeenth century,³ no connection has been made between the theoretical individual and real individuals making property decisions in their daily lives. Even in social history, the prescriptive evidence of the law is still taken largely as reflective of practice, especially where women are concerned.

PROPERTY LAW

The best known aspects of the law respecting women and property are the common law doctrines of coverture in marriage and primogeniture in inheritance. Historians, lawyers, social scientists and literary critics all emphasize these doctrines. It is widely assumed that only landed families cared about property at all. They traced wealth from father to eldest son, while daughters were married off for familial interest. Marriage settlements were negotiated between the bride’s father and the groom or his father, women not participating in the arrangements.

This patriarchal scenario founders first on the rock of demography. Early and frequent death in early modern society made the completion of the cycle unlikely. Only 60 per cent of marriages produced a son, and even if a son were born he was unlikely to be of age at his father’s death, so his inheritance ‘wandered’ to his mother.⁴ It is certainly true that land pulled inexorably towards males, but it spent a good deal of time in female hands along the way. Another 20 per cent of marriages produced only daughters, who inherited land together jointly. And since a wife regained her legal identity on her husband’s death, in practice a mother was almost as likely as a father to negotiate her children’s marriage.

The second problem with the common law focus is that it ignores the other four bodies of law which regulated property ownership in the early modern period—and in fact from the middle ages until the nineteenth century. The common law is the best known because it is the shorthand description for the system which, through colonization, came to dominate nearly one third of the globe. But in fifteenth-century England the system called ‘equity’ originated in order to modify what was perceived as the harshness of the common law, and throughout its history a considerable part of the business of equity courts consisted of cases involving the property of married women, which the common law did not recognize. Ecclesiastical law regulated the division of personal property, and in so doing it followed Roman civil law, which was considerably more egalitarian than the common law in so far as it advocated a form of community property within marriage and the equal division of parental wealth among all children. Manorial or borough law varied locally, affecting the inheritance of land within the manor or borough. In many places this land was partible among all sons rather than impartible to the eldest son. Finally, parliamentary statutes, made by common lawyers sitting in parliament, also played a crucial role in regulating property transmission, principally by intervening in ecclesiastical law.

The common law, equity, manorial law and ecclesiastical law operated jointly to produce a workable legal system in early modern England. The common law was never meant to be exclusive—it would have been wholly untenable on its own. The specific provisions of each jurisdiction as they relate to women and property transfer are outlined inChapter 2.

The balance of power between these multiple legal systems shifted over time, but very gradually. Throughout the late medieval and early modern period, the ecclesiastical or civil law idea of community property in marriage and partibility in inheritance came into conflict with the common law idea of coverture in marriage and primogeniture in inheritance. The religious controversies which racked England in the sixteenth and seventeenth centuries gave rise to an increasingly secular state in which common law and statutes came to dominate. As increasing centralization strengthened national over local law, the medieval manorial and borough courts also declined. Equity was ultimately incorporated with the common law in the nineteenth century. The long-term winners and losers in the jurisdictional struggle can be identified by twentieth-century terminology: manorial and borough law, and even ecclesiastical law, are today usually referred to as ‘custom’, which is of lesser authority than ‘law’.

The resolution of conflicting legal principles, usually in favour of the common law, is euphemistically called the ‘rationalization’ of the law. Over a period of five hundred years, between about 1300 and about 1800, this ‘rationalization’ had deleterious effects for the economic security of daughters, wives and widows. The deterioration of women’s legal and economic position in the early modern period does not imply that the middle ages were a ‘golden age’ for women. What it shows is that a restrictive system tightened even further, possibly in a series of ‘backlashes’ against women’s perceived liberties. The two statutory changes which restricted women’s already limited entitlements to property occurred in the later seventeenth century, in an atmosphere of general conservatism and retrenchment following the restoration of the monarchy. Their ostensible purpose was to secure the exclusive control of the male head of household over his—that is, the family’s—property. The details of these statutes are discussed in Chapter 2, and their ramifications for ordinary women in Chapters 4 and 10.

The progressive dominance of the common law doctrines of marriage and inheritance make it impossible to subscribe to the traditional ‘celebratory’ type of legal history which hypothesizes a progressive evolution towards sexual equality throughout history.⁵

FAMILY RELATIONS

The most prominent school of family history also takes a ‘celebratory’ view of its subject, positing a progressive evolution in familial emotion. According to this theory, marital, parental and filial affection have emerged gradually in the family over the last few centuries, in much the same way that technology or sanitation has evolved. The first glimmerings of ‘affect’ have been dated anywhere from the late sixteenth to the mid-eighteenth century, but the turning point is widely considered to be around 1700. Prior to that time, marriage is supposed to have taken place for reasons of financial interest, rather than personal attachment, and the significance of children for their parents is presumed to have been limited to the production of a male heir. By contrast, from the eighteenth century marital and parental relations gradually ceased to be dominated by mercenary economic considerations, and the modern family form (with which we are all undoubtedly familiar) emerged, in which ‘[p]atriarchal attitudes within the home markedly declined, and greater autonomy was granted not only to children but also to wives’.⁶

But one man’s ‘companionate marriage’ is another woman’s ‘gentle tyranny’.⁷ The idea of emotional modernization is widely discredited among social historians, aware of the preponderance of evidence in support of the idea of an essential continuity in human emotion, whose expression varies in different historical contexts. The seventeenth-century Buckinghamshire physician who thought marital strife ‘the most lacerating of all grief’ and the Essex clergyman who, on the death of his 8-year-old daughter, mourned ‘a pretious child, a bundle of myrrhe, a bundle of sweetness; shee was a child of ten thousand’⁸ are not so foreign to the twentieth century.

Certainly the early modern family was largely defined in political and economic terms, masking the emotions which may now seem invisible. But this is partly due to the type of records that survive. There are simply far more court cases extant than there are intimate letters, there being no administrative body with a remit to register and preserve private correspondence. Those letters which do survive come largely from the upper echelons of society, which do not necessarily represent the majority of the population. In the twentieth century the family has been through a process of privatization. It is now defined in emotional terms, which conversely mask any economic and political motivations in marital and parent-child relations. But while the growth of literacy ensures that there will be more personal letters surviving from our own day, it is inevitable that most of the documents available to the historian in two hundred years will also be primarily economic and legal.

Most proponents of essential continuity in familial attachments have maintained an academic diffidence, and emotional progress remains the most popular theory with historians and non-historians alike. This, I think, is for political rather than historical reasons.⁹ It is profoundly reassuring to believe that our own century represents the apex of romantic affection and parental love. It helps to salve the current moral and political anxiety about the disintegration of the family—in particular, worry over rising divorce rates and unmarried mothers.

The romantic ideal of companionate marriage still so heavily propounded today was articulated in the eighteenth century, and is the basis of the claim for emotional progress at that time. However, feminist historians observe that these romantic ideals were simply a new means of maintaining male dominance at a time when overt demands of submission were no longer acceptable.¹⁰ In the words of the more outspoken advocates of historical continuity in familial relations, the idea of emotional modernization amounts to little more than a ‘male generosity theory’ of increasing status for women and children, ‘a great self-serving myth of the modern world’.¹¹

The distribution of property within the family has been largely omitted in the discussion of familial relations, although economic patterns clearly reflect emotional ones. Modernizing historians who assume the exclusively economic basis of families prior to 1700, if they mention property, refer to the common law doctrines of coverture and primogeniture as evidence of mercenary attitudes in marriage and inheritance. It is not surprising that women are largely omitted from this history. But neither do women feature prominently in the works of more careful historians who produce detailed studies of particular parishes or families. In an England in which the household was ‘a little sparke resembling’ government—a miniature model of the kingdom, ruled by the husband as a lilliputian monarch¹²—historians of that household, with few exceptions, have proved insufficient to the challenge of writing about both women and men.

THEORY AND PRACTICE

The same cannot be said of literary historians, who have spent considerable energy in analysing gender in both published and private literature. This focus is lar...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Figures
• Tables
• Abbreviations
• Preface
• Part I: Background
• Part II: Maids
• Part III: Wives
• Part IV: Widows
• Conclusion
• Glossary
• Notes
• Bibliography