Preface

Argument in an early twentieth-century Court of Appeal case, Bebb v. Law Society,1 made reference to a few words of law-French from the anonymous late thirteenth-century treatise known as The Mirror of Justices: ‘Fems ne poient mie estre attorneyes’.2 Thus a medieval statement of the impossibility of women being attorneyes was brought into discussion in an important case in the much more recent dispute as to whether or not the Law Society was entitled to exclude women from qualification as solicitors in England and Wales. Different views of the meaning of the Mirror’s statement were put forward in the case, with disagreement as to whether it asserted the exclusion of all women from the role of attorney or only married women, and as to what was an ‘attorney’ for these purposes. This medieval statement was cited by the early modern lawyer Sir Edward Coke (1552–1634), and this citation by a figure regarded as particularly authoritative, coupled with Coke’s own elaboration, damaged Miss Bebb’s case.3 The fact that the Mirror statement was discussed in the twentieth century is a reminder that sources from the deep past of the common law may be used in much later periods. In legal practice, and some legal scholarship, sources from the medieval period are mediated, and may be distorted, by legal commentators of intervening periods, giving an over-simplified view of medieval legal thought and practice. In Bebb, for example, seeing the Mirror statement through the lens of Coke’s Institutes tended to smooth over the changes in the meaning of ‘attorney’ which had occurred between the thirteenth and seventeenth centuries, giving an inaccurate sense of a venerable and monolithic ban on women acting in a way which could be assimilated to the early twentieth-century role of solicitor, and used to exclude Miss Bebb from legal practice. The particular fight in Bebb has long since been won, but there is a need to throw off the weight of the over-simplified past from discussion of many areas of law relating to women, from ideas about sex and gender to specific legal doctrines.4

1 [1914] Ch 286.

2 Mirror, Book II, c. 31. This is not a text which is well regarded for its accuracy. Pollock, editor of the Law Reports, criticised Coke’s use of it: [1914] Ch 286 295, notes 28 and 29.

3 Lord Cozens-Hardy at 294: ‘the opinion of Lord Coke on the question of what is or what is not the common law is one which requires no sanction from anybody else’.

4 On history in legal discourse, see, in particular, F.W. Maitland, ‘A Survey of the ­Century’ (1901) in Collected Papers of Frederic William Maitland, ed. by H.A.L. Fisher ­(Cambridge, 1912), Vol 3, 432 at 439; Enid Campbell, ‘Lawyers’ Uses of History’, University of ­Queensland Law Journal 6 (1968), 1–23, 21; Mark Leeming, ‘Lawyers’ uses of history, from Entick v Carrington to Smethurst v Commissioner of Police’ (2020); Russell Sandberg, ‘The Time for Legal History: Some Reflections on Maitland and Milson Fifty Years on’, Law & Justice, 180 (2018), p. 21–37, 25; C.H.S. Fifoot, Frederic William Maitland (Cambridge, MA, 1971) 143.

The importance of studying medieval women and the common law, however, is not merely instrumental, a way of ensuring accuracy in current legal discourses and disputes; it is also essential to understanding the lives and worlds of those medieval women, and contemporary ideas and practice relating to them. The women recorded in medieval plea rolls, reduced to a name and a few bare facts or allegations, and the now-nameless many subject to statements as to what women could not do, were as human as we are and deserve as full consideration as the nature of the records will allow. I hope that this book will contribute to the huge task of doing them some sort of justice.

Abbreviations and citation conventions

National archives manuscript classes

CP 40

Plea Rolls of the Common Bench/Court of Common Pleas

KB 9

Indictment Files, Court of King’s Bench

KB 26 and 27

Plea Rolls, King’s Bench

SC8

Ancient Petitions

JUST 1

Justices in Eyre, of Assize, of Oyer and Terminer, and of the Peace: Rolls and Files

JUST 2

Coroners’ Rolls and Files

JUST 3

Gaol Delivery Rolls and Files

Electronic databases

·    Where manuscripts are included in the Anglo-American Legal Tradition digitisation project, http://aalt.law.uh.edu/AALT.html, they are cited by manuscript membrane and AALT image number, e.g. JUST 1/564 m. 11 (IMG 7332).

·    For reasons of space, I have opted to cite Year Book cases by reference to their number in ‘Seipp’s Abridgement’ of Year Book reports, http://www.bu.edu/law/faculty-scholarship/legal-history-the-year-books/. These appear in the form ‘Seipp 1489.008’. Traditional legal citations such as Y.B. Hil. 4 Hen. VII, fo. 5, pl. 8 may be found in ‘Seipp’s Abridgement’.

Other abbreviations

AHR

American Historical Review

AJLH

American Journal of Legal History

Baker, Introduction

J.H. Baker, Introduction to English Legal History, 5th edn (Oxford: Oxford University Press, 2019).

Bl. Comm.

William Blackstone, Commentaries on the Laws of England (4 vols, Oxford: Clarendon Press, 1765–9).

Bracton

Woodbine, George and Samuel Thorne (eds), Bracton on the Laws and Customs of England (4 vols, Cambridge MA: Harvard University Press, 1968–77).

Britton

Britton, ed. F. Nichols (2 vols, Oxford: Clarendon Press, 1865).

BMOC

Selden Society Supplementary Series vol. 18 (2 vols) The Men of Court 1440–1550: A Prosopography of the Inns of Court and Chancery and the Courts of Law ed. by J.H. Baker (London: Selden Society, 2012).

BNB

Maitland, Frederic (ed.), Bracton’s Note Book: a Collection of Cases Decided in the King’s Courts During the Reign of Henry III (3 vols, London: C.J. Clay, 1887).

c

chapter

CCR

Calendar of Close Rolls (London: HMSO, 1892–1963).

CPR

Calendar of Patent Rolls (London, HMSO, 1891–).

CRR

Curia Regis Rolls preserved in the Public Record Office (London: HMSO, 1922–).

CLJ

Cambridge Law Journal

Co. Inst.

Edward Coke, Institutes of the Laws of England (1628–44) 4 vols. Vols II-IV. Vol. I is referred to as Co. Litt.

Co. Litt.

Institutes of the Laws of England (1628–44) 4 vols, vol. I.

D.1.5.9

Citations in this form are from the Digest of Justinian, following conventional practice. See The Digest of Justinian, ed. and tr. by Theodor Mommsen, Paul Krueger and Alan Watson (Philadelphia: University of Pennsylvania Press, 1985).

Dialogus de Scacc.

The Course of the Exchequer and Constitutio Domus Regis, ed. by Charles Johnson, F. E. L. Carter and D. E. Greenway (Oxford: Clarendon Press, 1983).

Fortescue, DLNL

John Fortescue, De Natura Legis Naturae tr. by Chichester Foitescue in Works ed. by T. Fortescue (London, 1869).

Fleta Fleta vols 2–4

ed. by H.G. Richardson and G.O. Sayles (3 vols, London: Selden Society, 1955–84).

Glanvill

The Treatise on the Laws and Customs of the Realm of England commonly called Glanvill, ed. by G.D.G. Hall (London: Nelson, 1965).

H

husband (in notes).

Hale HPC

Matthew Hale, Historia Placitorum Coronae (London: Nutt and Gosling, 1736).

HR

Historical Research

JBS

Journal of British Studies

JLH

Journal of Legal History

JMH

Journal of Medieval History

LHR

Law and History Review

LQR

Law Quarterly Review

LHP

Leges Henrici Primi, ed. Leslie John Downer (Oxford: Clarendon Press, 1972).

Lincs RS 22

The Earliest Lincolnshire Assize Rolls AD 1202–1209, ed. by Doris M. Stenton (Lincoln: Lincoln Record Society, 1924).

Litt.

Thomas Littleton, Tenures, ed. by Eugene Wambaugh (Washington, DC: John Byrne and Co., 1903).

MLR

Modern Law Review

Mirror

The Mirror of Justices, ed. W. Whittaker, Selden Society vol. 7 (Oxford: Professional Books, 1893).

Northumb. AR

Three Early Assize Rolls for the county of Northumberland, saec XIII ed. by W. Page, (Durham: Surtees Society, 1891).

OHLE

Oxford History of the Laws of England

P & M

Pollock, Frederick and Maitland, Frederic, The History of English Law Before the Time of Edward I, (Cambridge: Cambridge University Press, 1895).

P & P

Past and Present

Palmer, ELABD

Robert C. Palmer, English Law in the Age of the Black Death 1348–81 (Chapel Hill: University of North Carolina Press, 1993).

Plac. Abbrev.

Placitorum Abbreviatio (London: Record Commissioners, 1811).

PROME

The Parliament Rolls of Medieval England, ed. by Chris Given-Wilson and others (16 vols, Woodbridge: Boydell Press, 2005).

PCCG

Pleas of the Crown for the County of Gloucestershire, ed. by F.W. Maitland (London: Macmillan and Co., 1884).

Placita Corone

Placita Corone or La Corone Pledee Devant Justices (London: Selden Society, 1986).

RP

Rotuli Parliamentorum; ut et Petitiones, et Placita in Parliamento, (London: Record Commission, 1783).

SR

Statutes of the Realm, ed. by A. Luders, T.E. Tomlins, J. France, W.E. Taunton and J. Raithby (London: Record Commission, 1810–27).

SS

Selden Society volumes. These are generally cited by volume number, with the exception of those which are discrete, original medieval treatises, such as the Mirror of Justices. Full titles of those volumes cited are in the Bibliography.

st.

Statute (in notes).

Seabourne, IMW

Gwen Seabourne, Imprisoning Medieval Women: The Non-Judicial Confinement and Abduction of Women in England, c.1170–1509 (Farnham: Ashgate, 2011).

Somersetshire Pleas

Somersetshire Pleas, Civil and Criminal from the Rolls of the Itinerant Justices c. 1200–56 (1897) ed. by C.E.H. Chadwyck-Healey (London: Harlison and Sons, 1897).

TNA

The National Archives, Kew.

W

wife (in notes).

WHR

Women’s History Review

Wilts GD and T

Wiltshire Gaol Delivery and Trailbaston Trials 1275–1306 ed. by R.B. Pugh (Devizes: Wiltshire Record Society, 1978).

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