A recent work devoted to landmark moments in the relationship between women and the law declared that ‘[L]egal history scholarship in the UK and Ireland largely ignores women’.1 Such a claim may raise the hackles of the many excellent scholars whose work does in fact deal with women and law in the various jurisdictions which might be considered to be covered by ‘the U.K. and Ireland’, but at least as far as the tradition of teaching and researching legal history, in law schools, in England, is concerned, there has been some truth in it. At times, women are quite spectacularly absent.
Some of the best-known visual representations of the medieval English common law at work are to be found in the four images, now held by the Inner Temple, of the central courts at Westminster, in the mid-fifteenth century. They show an entirely masculine world: men are judges, lawyers, officials, litigants, defendants and spectators, and no women appear to be present.2 Though women were subject to the common law, and did take part in litigation, they were not thought worthy of depiction. One of these images,that of the King’s Bench, was reproduced on the front cover of the Legal History textbook I used as an undergraduate law student in the 1990s.3 Women are sometimes equally hard to find in the sort of legal history which has traditionally been taught in English law schools. Such was my own acceptance of the assumptions of the discipline being revealed to me that it did not strike me to ask where the women were, either in the image or in the material I was studying.
1 ‘Introduction’, in Women’s Legal Landmarks: Celebrating the History of Women and Law in the UK and Ireland, ed. by Erika Rackley and Rosemary Auchmuty (Oxford, 2018), p. 8; Maria Drakopoulou, ‘Feminist Historiography of Law’, in The Oxford Handbook of Legal History, ed. by Markus D. Dubber and Christopher Tomlins (Oxford, 2018), c. 32, p. 605. For recent attention on (mostly modern) women’s legal history, see New Perspectives on European Women’s Legal History, ed. by Sara L. Kimble and Marion Rӧwekamp (New York, 2016); Rosemary Auchmuty ‘Legal History’, in Great Debates in Gender and Law, ed. by Rosemary Auchmuty (London, 2018), pp. 173–84.
2 https://www.innertemplelibrary.org.uk/collections/manuscript-collection/four-illuminated-manuscripts/, anon., 1460s. The plea rolls of the central courts contain a few illustrations of women, e.g., JUST 1/564 m. 11 (IMG 7332); CP 40/51 m. 13d (1283); CP 40/840 m. 226 (IMG 451); m. 411 (IMG 791). See Elizabeth A. Danbury and Kathleen L. Scott, ‘The Plea Rolls of the Court of Common Pleas: an Unused Source for the Art and History of Later Medieval England. 1422–1509’, Antiquaries Journal, 95 (2015), 157–210, 184.
3 J.H. Baker, Introduction to English Legal History, 3rd edn (London, 1990). See p. 2.
Figure 0.1 Court of Kings Bench. ©Inner Temple Library. Used with permission of The Masters of the Bench of the Inner Temple.
Such ‘law school legal history’ in England has been dominated by the ‘classical’ tradition and framework established by F.W. Maitland (1850–1906).4 In the hugely influential two-volume work on medieval law usually known as ‘Pollock and Maitland’,5 women are not absent, but the fact that they appear in the list of ‘the sorts and conditions of men’, only in eleventh place, after, for example, ‘lepers, lunatics and idiots’ excommunicates Jews, aliens and long after earls, barons and knights, does suggest a certain lack of enthusiasm.6 Maitland was at times content with summaries of the area of women and the law which were elegant in style but which did not measure up to the levels of insight he displayed on other matters.7 Despite the fact that he lived in an era of intense debate about women and law, and took some part in the disputes as to how educational institutions should treat women, this intellectual and political turmoil did not leave a serious imprint on his ideas about the priorities of legal history. Rather than inspiring an interest in women’s treatment by the common law, Maitland saw his participation in debates around whether his university should award degrees to women as a distraction from his legal historical work, memorably writing in a letter to a (male) colleague, ‘Meanwhile there are these women - drat them’.8
4 For classification of legal historians’ ‘schools’, see, e.g., Jonathan Rose, ‘Studying the Past: The Nature and Development of Legal History as an Academic Discipline,’ JLH 31 (2010), 101–28; Michael Lobban, ‘The Varieties of Legal History’, Clio Themis 5 (2012), 1–29; David Ibbetson, ‘What is Legal History a History of?’, in Law and History (Current Legal Issues 6), ed. by Andrew Lewis and Michael Lobban (Oxford, 2004), pp. 33–40; Alan Hunt, ‘The New Legal History: Prospects and Perspectives’, Crime, Law and Social Change 10 (1986), 201–8; Sandberg, ‘The Time for Legal History’, pp. 24, 30. Classical legal history, in England and Wales in particular, has been very male-dominated; see, e.g., The History of English Law, Centenary Essays on ‘Pollock and Maitland’, ed. by John Hudson (Oxford, 1996) (all male authors and ending with a cricket anecdote); and the editors’ introductory comments in Crossing Borders: Boundaries and Margins in Medieval and Early Modern Britain. Essays in Honour of Cynthia J. Neville, ed. by Sara M. Butler and Krista J. Kesselring (Leiden and Boston, MA, 2018), p. 1.
5 Frederick Pollock and Frederic William Maitland, The History of English Law before the Time of Edward I (2 vols, Cambridge, 1895) (hereafter, P & M).
6 P & M II, c. 2, pp. 465–8. For the brevity of Maitland’s treatment of women in some contexts, see, e.g., P.R. Hyams, ‘Maitland and the Rest of Us’, in History of English Law, ed. by Hudson (Oxford, 1996), pp. 213–41, 231; Margaret H. Kerr, ‘Husband and Wife in Criminal Procedure in Medieval England’, in Women, Marriage and Family in Medieval Christendom: Essays in Memory of Michael M. Sheehan CSB, ed. by Constance M. Rousseau and Joel T. Rosenthal (Kalamazoo, 1998), p. 211.
7 Hyams, ‘Maitland’, p. 224; F.W. Maitland, ‘The Law of Real Property’, in Collected Papers vol. I (Cambridge, 1911), p. 176.
8 SS Supplementary Series 1, Letters of F.W. Maitland, vol. 1, (London, 1965), p. 188, letter 188 (to H.A.L. Fisher, 1897). Late nineteenth-century ‘founding fathers’ of English legal history were not above including misogynist comments; see C.S. Kenny, The History of the Law of England as to the Effects of Marriage on Property and on the Wife’s Legal Capacity (London, 1879), p. 12. For attention to women’s treatment by the common law, see the less lauded Arthur Rackham Cleveland, Woman under the English Law: from the Landing of the Saxons to the Present Time (London, 1896), pp. vii, 71, 299, 300.
Maitland’s lack of interest has been influential. S.F.C. Milsom, introducing a reissue of ‘Pollock and Maitland’ in the totemic year 1968, had nothing further to add on women.9 The Selden Society has published two volumes on public works in medieval law, but none focusing on women.10 Women are not a major focus of the volumes of the weighty Oxford History of the Laws of England series which have so far appeared.11 The major current student text on English legal history still devotes only short sections to legal thought on women and the effect on women of legal developments.12 To the great surprise of my undergraduate legal history students, the latest edition of this book, which runs to almost 600 pages, deals with rape, an offence of unarguable significance to women,13 and a major area of enquiry for modern scholars of law, women and gender, within a section on personal injuries in general, in four sentences and two footnotes, ending its account in 1285. It should be borne in mind that considerably less space is given to ‘criminal law’ than to rights in land, or to ‘obligations’, but, even so, this is a considerably shorter account in words and chronological duration than those relating to other offences such as burglary, robbery and larceny, and it shows little change over the editions of this text since 1971.14 As long ago as 1986, Janet Loengard asked serious questions about the reasons for the lack of sustained treatment of medieval women and the law,15 and, since that time, the fact that women have not been brought closer to the core of the mission of classical legal history has begun to look odder still, set against the increasing focus in law schools over the last few decades on sex, gender and law, as well as the considerable interest in medieval women, gender and law outside the confines of classical legal history.16
9 S.F.C. Milsom, introduction to P & M 2nd edn. reissue (Cambridge, 1968).
10 Vols. 32 and 40.
11 John Hudson, OHLE vol. II, 871–1216 (Oxford, 2012), deals with women mainly in sections concerning ‘family and marriage’. J.H. Baker, OHLE vol. VI 1483–1558 (Oxford, 2003), considers the law’s attitude to women as a separate issue, but devotes only five pages to it out of 880, rather less than the space given to aliens or corporations.
12 Baker, Introduction, 5th edn (Oxford, 2019). David Ibbetson, A Historical Introduction to the Law of Obligations’ (Oxford, 1999), pp. 208, 211, gives more attention to a case about a lost owl than to the contractual (in)capacity of married women. I note that my 2003 book, hardly in this league, but a good example nonetheless, did not even have ‘women’ in its index: Gwen Seabourne, Royal Regulation. of Loans and Sales in Medieval England: Monkish Superstition and Civil Tyranny (Woodbridge, 2003).
13 Traditionally, rape was an offence which could only be committed by a male principal against a woman.
14 Baker, Introduction, p. 573; Baker, Introduction, 1st edn (1971), p. 288; 2nd edn (1979), p. 430; 3rd edn (1990), p. 603; 4th edn (2002), p. 531.
15 Janet S. Loengard, ‘Legal History and the Medieval Englishwoman: a Fragmented View’, LHR 4 (1986), 161–78, 172.
16 For examples of the large body of scholarship on gender and law and on medieval women, see Joanne Conaghan, Law and Gender (Oxford, 2013); Shulamith Shahar tr. by Chaya Galai, The Fourth Estate: A History of Women in the Middle Ages (London, 1983), Women and Power in the Middle Ages, ed. by Mary Erler and Maryanne Kowaleski (Athens, GA, 1988); A History of Women in the West II: Silences of the Middle Ages, ed. by Christiane Klapisch-Zuber and others (Cambridge, MA, 1992).
A partial justification for a lack of general discussion of women and the law in classical legal history has been the idea that, during the formative medieval period and for centuries thereafter, there was no coherent common law treatment of the position of women. As Maitland put it, ‘No text-writer, no statute, ever makes any general statement as to the position of women. This is treated as obvious…’.17 It is not entirely true to say that there is no such statement in medieval common law sources, for the thirteenth-century treatise Bracton includes the statement [D]ifferunt feminæ a masculis in multis, quia earum deterior est condicio quam masculorum (‘Women differ from men in many respects, for their position is inferior to that of men’), though it is not far from the truth.18 It is clearly correct to note that ‘[t]he law relating to women in general … was not a discrete legal topic in the common law’.19 The fact that there is no comprehensive or clear statement of the position of women is hardly surprising, given that legal sources from medieval England often do not treat as discrete, substantive, topics matters which modern lawyers or historians would regard in this way,20 and the fact that there is a lack of ‘general statements’ about a particular area or the fact that arguably connected matters were not formerly seen as ‘discrete legal topic[s]’ would not usually stop legal historians from exploring them. Is it any more anachronistic to discuss women and the common law than to discuss, for example, the ‘law of obligations’ in medieval England, by tracking down dispersed comments and deducing principles from terse case records and reports, to impose upon a medieval legal world concepts of property which it did not use, or to use the conventional modern categories ‘crime’ and ‘tort’ or ‘criminal’ and ‘civil’ cases, when discussing a system which made no such clear distinctions?21 The scattered statements about women in common law sources, and the telling silences, can also be brought together, if one wishes to do so. This may require a certain amount of speculation, tentatively filling in some of the gaps in the record, but speculation has been admitted in some other areas of legal historical scholarship.22 Such an endeavour is unlikely to produce a neat theory, immune from criticism by those not in sympathy with the attempt. It will certainly not be possible to make confident statements about clear chronological changes in some aggregated overall legal ‘position of women’. Nevertheless, it appears to me to be incumbent upon legal historians to try to reveal what they can of the conceptions and constructions of women explicit or implicit in the sources and literature of the common law. Legal historians should engage with and contribute to the historically sensitive study of law within law schools, and they also have something of worth to offer to the historical study of women, in terms of a perspective which spans a wide range of legal activities and doctrines, as well as seeing the ways in which aspects of law have been received, understood and used over the intervening period.
17 P & M I, p. 482.
18 Bracton, II, 31. This is borrowing from civilian sources: P & M II, p. 465; 8 SS 8, pp. 57, 60, 63.
19 132 SS, lxix.
20 P & M I, p. 482. Contrast the unified Welsh treatment: The Welsh Law of Women, ed. by Dafydd Jenkins and Morfydd E. Owen (Cardiff, 2017), p. 2; Sara Elin Roberts, ‘The Welsh Legal Triads: Selden Society Lecture 16th July 2008’, Welsh Legal History Society 12 (2012), 1–22, 16.
21 Ibbetson, Historical Introduction; David J. Seipp, ‘The Concept of Property in the Early Common Law’, LHR 12 (1994), 29–91, 30; Susan Reynolds, ‘Tenure and Property in Medieval England’, HR 88 (2015), 563–75. Use of ‘criminal’ and ‘civil’ is conventional in legal history, but while these words do occur in Glanvill 1, 1, they were not usual in medieval legal sources, and the two categories are not distinct.
22 Thomas Green, Verdict According to Conscience: Perspectives on the English Criminal Jury 1200–1800 (Chicago, IL, 1985), p. 64.
Some further explanation of the choice of subject matter for this monograph, and the nature of the enquiry, is in order. First of all, it is necessary to say something about ‘the common law’, what it is, or was, and why it is my focus. The common law of England is understood to be that system which proceeded from royal law-making and from the central royal courts, as they developed from the later twelfth century onwards, in a process described and debated by many distinguished scholars, and involving central royal or ‘governmental’ action, the contributions of nascent legal professions through the building up of practice and discussion of legal principle, and the participation of some lay people (overwhelmingly men).23 It was certainly not the only system of law relevant to women in medieval England: aspects of their lives might also be governed by the law of the church, and local laws and customs, as common lawyers accepted.24 These other jurisdictions might have subtly or significantly different balances between men and women in terms of substance and procedure. A number of recent works on medieval women focus on systems other than the common law.25 This is enormously enriching and interesting. There remains a need, however, to revisit the sources of the common law, which are far from having given up all they have to offer with regard to women. The mass of such material which is accessible to researchers continues to swell through the publication of scholarly editions of legal texts, but commentary does not always keep up with this. Without keeping under review what can be gleaned about women from available common law material, both studies of common law and studies of medieval women will be more incomplete than they have to be.
There is an additional and different stratum to the question of what amounts to ‘the common law’, and should thus fall within the remit of a book like this: it concerns the possibility of different understandings of ‘law’ itself.26 Although one prominent legal historian describes the ‘extensive literature on the proper definition of “law” and the “legal” as “a slough to be avoided”’,27 it is necessary for anyone looking at legal history at least to be aware of the existence of the different ways in which these words might be interpreted.28 ‘Common law’ could, in theory, be restricted to definitive and authoritative statements of rules emanating from the king or his justices. This, however, is not always a practical possibility. Identifying ‘the rules’ may not be straightforward, as, in many cases, it is difficult to be sure that one has the ‘official’ text of a statute, or the correct, contemporary interpretation of its words or its perceived legitimacy or temporal scope, and sources emanating from medieval common lawyers do not always give answers to the substantive legal questions modern scholars wish to ask of them. It is often necessary to deduce the rules from the existing evidence of what people did in practice. This necessity encourages a ‘realistic’ view of law, as including not only the available statements as to what people should do, but also what actually happened.29 This book will take a relatively broad view of ‘[common] law’, accepting that contemporaries did not see it as only immutable rules backed by inevitable consequence or sanction. Complicating and tempering factors such as mercy, settlement and arbitration should not necessarily be treated as external to the common law, but as practices accepted and assumed by it. This being so, it is necessary to keep a critical eye on the extent to which it is appropriate to draw sharp contrasts between ‘law’ and ‘practice’, or ‘law’ and ‘communal values’ or ‘law, theory and practice’ in relation to women and the medieval common law.30
23 See, e.g., Paul Brand, The Making of the Common Law (London, 1992); Thomas J. McSweeney, Priests of the Law: Roman Law and the Making of the Common Law’s First Legal Professionals (Oxford, 2019), p. 97; Anthony Musson and W. Mark Ormrod, The Evolution of English Justice: Law, Politics and Society in the Fourteenth Century (London, 1999); Edward Powell, Kingship, Law and Society: Criminal Justice in the Reign of Henry V (Oxford, 1989), pp. 1, 9.
24 P & M II, pp. 363, 373; Paul Brand, ‘Local Custom in Early Common Law’, in Law, Laity and Soidarities: Essays in Honour of Susan Reynolds, ed. by Pauline Stafford, Janet L. Nelson and Jane Martindale (Manchester, 2001), pp. 150–9; R.M. Smith, ‘Women’s Property Rights under Customary Law: Some Developments in the Thirteenth and Fourteenth Centuries’, TRHS 36 (1986), 165–94; R.H. Helmholz, ‘Harboring Sexual Offenders: Ecclesiastical Courts and Controlling Misbehavior’, JBS 37 (1998), 258–68; Shannon McSheffrey, ‘Jurors, Respectable Masculinity and Christian Morality: A Comment on Marjorie McIntosh’s Controlling Misbehavior’, JBS 37 (1998), 269–78; Hanawalt, Wealth, c. 8.
25 E.g., Women in England c 1275–1525, ed. by P.J.P. Goldberg (Manchester, 1995). The JBS special edition, Women Negotiating the Boundaries of Justice in Britain, 1300–1700 (vol. 58, 2019), contains no chapter concentrating on common law. See also Legalism: Property and Ownership, ed. by Georgy Kantor, Tom Lambert and Hannah Skoda (Oxford, 2017), Introduction, p. 27.
26 See Hall’s introduction to Glanvill, xi, Ibbetson, ‘What is Legal History a History Of?’, p. 34; Catherine L. Fisk, ‘&: Law Society in Historical Legal Research’, in Oxford Handbook of Legal History (Oxford, 2018), c. 26, p. 486.
27 William Ian Miller, ‘Choosing the Avenger: Some Aspects of the Bloodfeud in Medieval Iceland and England’, LHR 1 (1983), 159–204, 161.
28 See, e.g., Michael Freeman, Lloyd’s Introduction to Jurisprudence, 9th edn (London, 2014), cc. 3, 9; Naomi Creutzfeldt, ‘Traditions of Studying the Social and the Legal’, in Routledge Handbook of Socio-Legal Theory and Methods, ed. by Naomi Creutzfeldt, Marc Mason and Kirsten McConnachie (Abingdon, 2020), pp. 9–34, 97–109. Note that questioning the nature of law is nothing new; see Edward M. Peters, ‘Introduction: The Reordering of Law and the Illicit in Eleventh- and Twelfth-Century Europe’, in Law and the Illicit in Medieval Europe, ed. by Ruth Mazo Karras, Joel Kaye and E. Ann Matter (Philadelphia, 2008); Glanvill, Prologue, 2–3; Bracton II, p. 22.
29 See, e.g., Roscoe Pound, ‘Law in Books and Law in Action’, American Law Review 44 (1910), 12–36; Leeming, ‘Lawyers’ Uses’, and, for a different dichotomy, between ‘the law as found in books of authority and the law as it operates in real situations (whether in or out of court)’, or between case law/statutes and ‘common learning’, see J.H. Baker, The Law’s Two Bodies (Oxford, 2001), p. 1.
30 Drawing such contrasts, and questioning them: Eileen Power, ‘The Position of Women’, in The Legacy of the Middle Ages, ed. by C.G. Crump and E.F. Jacob (Oxford, 1926), p. 401; Sandy Bardsley, Women’s Roles in the Middle Ages (Westport, CT and London, 2007), pp. 129, 145; Green, Verdict according to Conscience, c. 2; Elizabeth Papp Kamali and Thomas A. Green, ‘A Crossroads in Criminal Procedure: the Assumptions Underlying England’s Adoption of Trial by Jury’, in Law and Society in Later Medieval England and Ireland: Essays in Honour of Paul Brand, ed. by Travis R. Baker (London and New York, 2018), pp. 51–82, 52, 68–70; Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England (Cambridge, 2019), p. 50; Janet S. Loengard, ‘Rationabilis Dos: Magna Carta and the Widow’s “Fair Share” in the Earlier Thirteenth Century’, in Wife and Widow in Medieval England, ed. by Sue Sheridan Walker (Ann Arbor, 1993), pp. 59–80, 62–8.
It is, nevertheless, not desirable fully to renounce the idea of law as a category apart from social practice or prevailing thought. There has been a long-standing tendency to treat law as something separate from the actions and preferences of the individuals involved in making it. The idea of a body of common rules, and common learning, was growing over the later medieval period amongst practitioners of the common law,31 and lawyers, now and in the past, have had a tendency to speak of law as if it were a force independent of themselves or even as if it were a person.32 In the formative period of ‘classical legal history’, too, such ways of thinking can be seen. Frederick Pollock, for example, portrayed the common law as a woman (‘our lady of the common law’) and scholars or practitioners of the common law as ‘her men of life and limb’:
We are here to do homage to our lady of the common law, we are her men of life and limb and earthly worship.33
31 J.H. Baker, The Law’s Two Bodies (Oxford, 2001).
32 See, e.g., Gunther Teubner, Law as an Autopoietic System (Oxford, 1993).
33 Frederick Pollock, The Genius of the Common Law (New York, 1912), p. 2.
Although we might not follow such an overblown metaphorical model, there is some historical justification for seeing the medieval common law as possessing a certain autonomy. In any case, a book like this must at times refer to the common law as ‘having a view’, for example, if it is not to become hopelessly unwieldy, though this is done in the understanding that there is some artificiality in such expressions, and that the law was in fact shaped by numerous deliberate decisions by individuals, even if, in many cases, we do not know their names.
In seeking to explore the treatment of women in and by the medieval common law, it is to the traditional sources that this book will refer: statutes and other legislative acts, records of the courts of common law, law reports and legal writings.34 There is a vast corpus of potentially relevant material. Much work has been done, particularly since the time of Maitland and under the auspices of the Selden Society and regional historical record societies, to edit and publish important sources of common law history, and digital scanning and other online projects have made some of this more easily accessible,35 but much remains in manuscript. To make a start with a short monograph-length study of women in the common law is to admit that one cannot possibly see and comment on every relevant document (particularly not during the restrictions consequent upon a pandemic), nor engage with many of the debates and disputes as to documents’ provenance and accuracy as representation of legal practice. It is to accept the known pitfalls of using such documents, and their limitations when subjected to our questions. One must avoid the assumption that medieval statutes, case records and reports and treatises are to be understood as essentially similar to modern statutes, law reports and textbooks.36 Medieval legal documents do not offer a straightforward, factually accurate picture of litigation or the circumstances behind it, and are influenced by the ideas of those making them and the purposes for which they were made. They may exaggerate or use acceptable stereotypes to make a more effective case. The ‘voices’ of women apparent on the face of the records are seldom if ever unmediated, and all of the records to be examined were man-made in predominantly or wholly male environments.37 An additional layer of difficulty of the extant and available records is that they may not record definitive views and may not conclude on points of law.38 Though the texts of statutes may be imperfect, however, a perusal of the standard sources such as the Statutes of the Realm and Rolls of Parliament suffices to give at least a general picture of legislative intervention.39 Legal records at least show us what was plausible or acceptable, even if not strictly true, and that plausibility is a clue to reality. All records might be man-made, but the attitudes of elite males and common lawyers, forming the legal world in which they lived, necessarily had an impact on women’s lives. In sum, despite its flaws, as this book aims to demonstrate, there is still much to be learned about women and law from this, the evidence which we have. An exploration in this area must also acknowledge and use the achievements of the classical school of legal history, even as it argues for the need to expand upon its view of worthy subjects for comment and investigation, and must build upon the work of many historians of women and gender, while, again, at times differing in approach or perspective.
34 On this material, see, e.g., Baker, Introduction, cc. 11 and 12; Kamali, Felony, pp. 15–19; Paul Brand, ‘The Age of Bracton’, in History of English Law, ed. by John Hudson (Oxford, 1996), pp. 65–89; Paul Brand, introduction to 111 SS; F.W. Maitland, ‘Of the Year Books in General’, in 17 SS, pp. ix–xx; David J. Seipp, ‘The Law’s Many Bodies and the Manuscript Tradition in English Legal History’, JLH 25 (2004), 74–83; Paul Brand, ‘Inside the Courtroom: Lawyers, Litigants and Justices in England in the Later Middle Ages’, in The Moral World of the Law, ed. by Peter Coss (Cambridge, 2000), pp. 91–112, 92–3.
35 See, in particular, the Anglo-American Legal Tradition, http://aalt.law.uh.edu/AALT.html, and ‘Seipp’s Abridgement’ of Year Book reports, http://www.bu.edu/law/faculty-scholarship/legal-history-the-year-books/.
36 33 SS, p. xviii; Christine Carpenter, ‘Law, Justice and Landowners in Late Medieval England’, LHR 1 (1983), 205–37; Edward Powell, ‘Arbitration and the Law in England in the Late Middle Ages’, TRHS 33 (1983), 49–67.
37 See, e.g., 24 SS 103; S.F.C. Milsom, ‘Trespass from Henry III to Edward III’, LQR (1958), 195–224, 222–3; 30 SS, xlix; 50 SS xxxiii ff; Noël J. Menuge, ‘Reading Constructed Narratives: An Orphaned Medieval Heiress and the Legal Case as Literature’, in Medieval Women: Texts and Contexts in Late Medieval Britain, ed. by Noël J. Menuge (Leiden, 2000), pp, 115–29, 117; Paul Strohm, Hochon’s Arrow: The Social Imagination of Fourteenth-Century Texts (Princeton, NJ, 1992), pp. 122, 133; Jeremy Goldberg, ‘Echoes, Whispers, Ventriloquisms: On Recovering Women’s Voices from the Court of York in the Later Middle Ages’, in Women, Agency and the Law 1300–1700, ed. by Bronach Kane and Fiona Williamson (London, 2015), pp. 31–41, 31; Cordelia Beattie, ‘Your Oratrice: Women’s Petitions to the Late Medieval Court of Chancery’, in the same volume, pp, 17–30, 18.
38 See Ibbetson, ‘What is Legal History a History Of?’, p. 34.
39 On legislation, see Paul Brand, Kings, Barons and Justices: the Making and Enforcement of Legislation in Thirteenth Century England (Cambridge, 2003); T.F.T. Plucknett, Legislation of Edward I (Oxford, 1949).
Taking a thematic approach, it is the aim of this book to survey the field of women’s interactions with the common law, and ideas about women to be found in the sources of the common law, to note areas of (contemporary and current) certainty and uncertainty, presence and absence, to suggest alterations to some orthodoxies in the histories of medieval women and the medieval common law, and directions for further exploration. I hope to do all of this with, as an early modern pioneer of the investigation of women and the law put it, ‘as little tediousnesse as I can’.40
40 The Lawe’s Resolutions of Women’s Rights, A. D., 1632, cited in J.J.S. Wharton, An Exposition of the Laws Relating to the Women of England (London, 1853), p. i.