Women in the Medieval Common Law c.1200–1500

Gwen Seabourne

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9781472439802
• eBook ISBN: 9781134775972
• Edition: 1
• Topic: History
• Subtopic: European Medieval History
• Index: History

This book examines the view of women held by medieval common lawyers and legislators, and considers medieval women's treatment by and participation in the processes of the common law. Surveying a wide range of points of contact between women and the common law, from their appearance (or not) in statutes, through their participation (or not) as witnesses, to their treatment as complainants or defendants, it argues for closer consideration of women within the standard narratives of classical legal history, and for re-examination of some previous conclusions on the relationship between women and the common law. It will appeal to scholars and students of medieval history, as well as those interested in legal history, gender studies and the history of women.

Part I
Unions and divisions

Women and the common law

A rather unlauded work on women and law, Arthur Rackham Cleveland’s Woman under the English Law of 1896 pronounced that ‘every nation which has attained to such a degree of civilization as to have reduced its system of jurisprudence to writing’ made distinctions in its laws between women and ‘the general body of the people owing obedience to these laws’. There was, Cleveland opined, no exception to this rule, and nor was it possible to imagine ‘any state of society composed of men and women, whose system of jurisprudence could be such, that the same laws would apply equally to the two sexes’. In setting out separate laws for men and women, ‘lawgivers in all past ages’ were not making a choice, but recognising an eternal fact: ‘the legal status of woman was of necessity different from that of man’.¹

This passage might emphasise division of laws applicable to men and women as clear and fundamental throughout history, but the works of contemporaries more influential on the nascent classical legal history tradition had a different perspective, emphasising divisions between women, generally on the basis of marital status, and pre-eminently in the context of rights over land rather than presenting women as a coherent, separate, legal category. In modern historical study too, questions are asked about treating the women of past periods as a unified category, with frequent emphasis on divisions amongst them, in terms of ‘life-cycle-stage’ or social position, and on the complexity of historical (and contemporary) ideas of sex and gender categorisation, in line with ideas of identity and intersectionality with which modern scholarship has been enriched.² The category ‘women’ is also the subject of considerable current legal and political controversy.³

1 Cleveland, Woman under the English Law, pp. iii, vi. On its reception, see Times, Friday, 4th September, 1896, p. 6.

2 See, e.g., Patricia Skinner, Studying Gender in Medieval Europe: Historical Approaches (London, 2018); Joan W. Scott, ‘Gender: a Useful Category of Historical Analysis’, AHR 91 (1986), 1053–75; Elisabeth van Houts, ‘Introduction’, in Medieval Memories: Men, Women and the Past, 700–1300, ed. by Elisabeth van Houts (London and New York, 2013), p. 2; Seabourne, IMW, pp. 10–12; Pauline Stafford, ‘Women and the Norman Conquest’, TRHS 6 ser. IV (1994), 221–49, 230; Kimberlé Williams Crenshaw, ‘Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color’, Stanford Law Review 43 (1991), 1241–99; S.H. Rigby, English Society in the Later Middle Ages: Class, Status and Gender (London, 1995).

3 See, e.g., R. on the application of Harry Miller v. The College of Policing and the Chief Constable of Humberside [2020] EWHC 225 (Admin); Alex Sharpe, ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’, MLR 83 (2020), 539–57; Alessandra Asterti and Rebecca Bull, ‘Gender Self-Declaration and Women’s Rights: How Self-Identification Undermines Women’s Rights and Will Lead to an Increase in Harms: A Reply to Alex Sharpe’, MLR comment: https://www.modernlawreview.co.uk/asteriti-bull-sharpe/ Accessed 25th July, 2020. On sex/gender in legal scholarship, at a more theoretical level, see, e.g., Joanne Conaghan, Law and Gender (Oxford, 2013).

As far as a consideration of the medieval common law is concerned, however, while we must certainly take account of separate provision for different groups of women and the possibility of fluidity of ideas around gender, it should be noted that differentiation between men and women was treated as fundamental in the common law system. It is also clear that the existence of rules for one group of women could have an impact on the lives and legal treatment of other groups, so that it is important to question statements which treat the legal situation of the married woman as something entirely separable from the situation of women as such.⁴ An insistence on considering married and unmarried women separately allows for an unbalanced description of the legal picture, for example positing a ‘rule’ of women’s full rights in private law, with the considerable disabilities of the married woman diminished as an ‘exception’, however extensive the impact of those ‘exceptional’ disabilities might have been,⁵ or presenting the unlimited and limited positions of women at different stages or in different situations as being in some sort of balance, as can be seen in a comment by C.T. Flower in a Selden Society volume from the 1940s:

4 62 SS, 235.

5 See, e.g., the statement in P & M II, p. 465, that women had equal private law rights to men, ‘with few exceptions’; J. Everard, ‘Public Authority and Private Rights: Women in the English Royal Courts of Justice 1196–1250’, in Sexuality and Gender in History, ed. by Penelope Hetherington and Philippa Maddern (Western Australia, 1993), pp. 123–44, 137.

All that need be said in general about the status of women is that the widow or spinster was an unfettered litigant, while the married woman was unable to appear without her husband, whom she was bound to obey…

While it is true that there were separate legal rules for women with differing marital status, including variation in relation to the ability to litigate alone, the presentation of groups of women as somehow insulated one from another, with rules affecting only one particular group, and having no more general impact, is not one which stands up to scrutiny. Not all women would marry, but it is inconceivable that rules for married women had no impact upon unmarried women, given the importance of marriage as a present reality or a future expectation in the lives of such a large proportion of women, as the same author, on the same page, recognises.⁶ Differentiation is important, but it should not be ‘all that need be said’.

6 62 SS, 235: ‘Wedlock was very much the normal state …’. See also the remarks of Phillimore LJ in Bebb [1914] 1 Ch., 299.

This part of the book will consider both ‘unified’ and ‘separated’ aspects of common law thinking and practice in relation to women, noting common law’s attention both to ‘women’ and to subsets of women and the interplay between the two perspectives. It will highlight the difficulties which might be found in differentiating subsets of women and some of the silences and ambiguities about women in medieval common law sources which can and should be interrogated.

1 ‘Their position is inferior to that of men’⁷

Differentiation, inclusion, omission

The work of modern historians has emphasised the presence in medieval thought of different ideas of sex categorisation, and the presence in medieval life of some degree of fluidity as to gender roles and expectations.⁸ It has been shown that there was some contemporary support for different models of sex categorisation: the three sex model (men, ‘hermaphrodites’ and women), the two sex model (men and women) and the one sex model (with women as defective men).⁹ The one sex model was taken up by Thomas Laqueur in the late twentieth century, and presented as having been prevalent through the medieval period and until the eighteenth century.¹⁰ This has proved a very popular encapsulation. Its accuracy has, however, been challenged, and it seems clear that a one sex model was not dominant in medieval medical theory, nor in other areas of medieval thought.¹¹ As this chapter will show, medieval common law materials generally present and rely upon a model of humanity divided into two sexes. For the most part, this division was treated as unproblematic and fundamental, both intellectually and practically, and it is important to give due weight to this view in wider discussions of sex and gender in medieval studies, as well as noting the clear recognition by common law of differences between sub-groups of women.¹²

7 Bracton II, p. 31.

8 See, e.g., Leah DeVun, ‘Erecting Sex: Hermaphrodites and the Medieval Science of Surgery’, Osiris, 30, Scientific Masculinities (2015), 17–37.

9 See Aristotle, Generation of Animals, tr. by A.L. Peck (Cambridge, MA: Harvard University Press, 1943), p. 175; Claude Thomasset, ‘The Nature of Women’, in A History of Women in the West II, ed. by Klapisch-Zuber (Cambridge, MA: Belknap Press of Harvard University Press), pp. 43–69.

10 Thomas Laqueur, Making Sex: Body and Gender from the Greeks to Freud (Cambridge, MA, 1990), adopted, e.g., in Veronica Sanz, ‘No Way out of the Binary: A Critical History of the Scientific Production of Sex’, Signs 43 (2017), 1–27, 3–4.

11 See, e.g., Katharine Park and Robert A. Nye, ‘Destiny is Anatomy’, New Republic (18 February, 1991), 53–7; Joan Cadden, Meanings of Sex Difference in the Middle Ages (Cambridge, 1993), pp. 198–202; V.A. Rosario, ‘Fustigating the ‘One-Sex Body’ Thesis’, Studies in History and Philosophy of Biology & Biomedical Science 48 (2014), 112–14; Monica H. Green, ‘Bodies, Gender, Health, Disease: Recent Work on Medieval Women’s Medicine’, Studies in Medieval and Renaissance History, 3r...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of figures
• Preface
• Abbreviations and citation conventions
• Introduction: women, the common law and the legal historians
• Part I Unions and divisions: women and the common law
• Part II Audible and inaudible; credible and not credible: women in the legal process
• Part III Women’s complaints and complaints of women
• Conclusion: the future of women’s legal past
• Select bibliography
• Index