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’: differentiation, inclusion, omission7

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, 3rd series 2 (2005), 1–46, 6–12; Helen King, The One Sex Body on Trial: the Classical and Early Modern Evidence (Farnham, 2013); DeVun, ‘Erecting Sex’, pp. 18–19.

12 P & M I, p. 468.

To some extent, the emphasis in legal documents on men and women as a clear binary is to be expected: as Elliot has noted,13 broadly legal procedural documents were less susceptible to ‘prestidigital feats of gender-bending’ than was the case with literary and theological texts. Her examples of less creative documents are ‘the manorial roll, the episcopal visitation record, the census [and] the will’, but this greater simplicity is equally true of common law plea rolls: the more practical records of the common law had significantly less room for flights of intellectual curiosity than could be included in other species of text. Nevertheless, some common law sources do also include material which indicates a degree of fluidity of thinking with regard to gender. Some of the instances of fluidity or uncertainty are reminiscent of ideas and statements in other discourses, while others are linked to issues of language and interpretation specific to, and especially important to, legal discussion.

‘Women’, sex and gender

In statements on medieval common law and the arguments of common lawyers, ‘women’ is generally assumed to be a relevant and self-explanatory category and the language of differentiation of women and men is that of sex. In relation to succession, for example, Bracton states that ‘Sex …makes one a nearer heir’, and also notes that it is ‘because of [their] sex’ that women are unable to do some of the things which men can do.14

Both the statement from Bracton that ‘Women differ from men in many respects, for their position is inferior to that of men’ and c. 54 of Magna Carta 1215 (c. 34 of the 1225 version which lawyers generally cite), limiting women’s ability to bring appeals, for example, treat ‘women’ as a relevant category, coherent, clearly separate from ‘men’ and subject to common law attention and intervention.15 It is ‘women’ who are barred or exempted from attending certain legal sessions, who cannot be outlawed, but must instead be ‘waived’, about whom there is controversy as to whether they could be regarded as ‘on royal service’ so as to allow a delay of court proceedings, who are to be punished differently to men and treated differently in legal procedure, whose different treatment to men is pointed out, or who are, at times explicitly to be treated in the same way as men.16 It is women who are ‘weak’, ‘simple’ and vulnerable to predation by adventurers, whose moral, physical and intellectual inferiority is noted, including their lack of wisdom compared to men, the inconstancy of their minds and their vanity.17 It is women’s blood which is less worthy than that of men, and the seisin of women which is not as ‘high’ as that of men.18 It is women upon whom the role of staying at home and keeping quiet is imposed,19 and whose lack of capacity to perform military roles such as defending a castle is stated as truth or as ‘common presumption’.20 All of this appears to treat as unproblematic, a distinction based on and anchored to a two sex model.

13 Dyan Elliot, ‘The Three Ages of Joan Scott’, AHR 113 (2008), 1390–403, 1390.

14 Bracton II, pp. 190, 403; III, p. 285. See also Bracton II, p. 342; III, pp. 26, 84; IV, p. 361.

15 Bracton, II, p. 31; Magna Carta 1215, c. 54, SR I, p. 12; Peter Goodrich, ‘Gynaetopia: ­Feminine Genealogies of Common Law’, Journal of Law and Society 20 (1993), 276–308, 278.

16 See, e.g., Bracton II, pp. 353–4; Mirror book 4 c. 4, p. 126; Britton, book 1, c. 13 no. 3; 24 SS, p. 106. Litt., book II, c. 11 no. 186 (outlawry/waiving); 102 SS, p. 121; SR I, p. 56; Mirror, preface. SR I, p. 217 (femina). The Assize of Bread and Ale used ­feminine word-endings rather than specifying woman, but later legislation on the topic used femmeSR I, pp. 200, 201; 13 Ric II st. 1 c. 8, SR II, p. 63; st. 5 Hen. IV c. 2, SR II, p. 144.

17 st. 31 Hen. VI c. 9, SR II, p. 367; 132 SS, pp. 227, 370; Seipp 1457.017; 1313.305ss; 1376.012.

18 98 SS, p. 542, JUST 1/633 m.71; P & M II, pp. 295, 258, 266, 299; Seipp 1306.136rs; 1312.003ss; 1382.051am; 1310.219ss; 1311.041ss; 1294.001rs.

19 Fortescue, DNLN, p. 257.

20 132 SS, pp. 31, 43, 49.

References to a one sex idea (with women as deformed men) are extremely uncommon.21 Bracton and Fleta do mention ‘hermaphrodites’, a group sometimes regarded as constituting a third sex.22 The treatises’ accounts are, however, brief and simplified forms of classical ideas, and are inflected with a strong ‘two sex’ sensibility. It does not seem that their authors accepted that ‘hermaphrodites’ were genuinely neither male nor female: although they might not look like a typical male or female, they were ‘really’ one or the other.23 Simple observation of the ‘preponderance’ of the sexual organs would make it possible to categorise a ‘hermaphrodite’ as either male or female, and doing so was necessary and appropriate.24 Even this passing interest in questioning the distinction seems to have faded over the medieval period. Later discussions of entitlements and succession to land proceeded without expressing any difficulty in making the distinctions between males and females upon which the system was founded. The late fifteenth-century treatise, Littleton’s Tenures, for example, rested its discussions of fees simple and tail on a two sex model without exploring the question of ‘hermaphrodites’. It would be Coke’s seventeenth-century commentary on this passage which would take up, once more, the possibility of uncertainty on this issue.25

21 Fortescue, DNLN, p. 257 Part 2 c. 8.

22 On ‘hermaphroditism’ and modern categories, see De Vun, ‘Erecting’, pp. 18–19; ­Frederik Pedersen, ‘Privates on Parade: Impotence Cases as Evidence for Medieval Gender’, in Law and Private Life in the Middle Ages, ed. by Per Andersen, Mia Műnster-Swensen and Helle Vogt (Copenhagen, 2011), pp. 81–104, 90. Maitland noted mention of ‘hermaphrodites’ in Bracton and Matthew Paris, but this did not strike him as worthy of discussion: Collected Papers I, p. 401; 8 SS, pp. 8, 57, 62, 63; Fleta, book 1 c. 5. Bracton II, p. 24.

23 For medical and theological thought as to whether the ‘perfect’ hermaphrodite existed, see De Vun, ‘Erecting’, p. 22; Christof Rolker, ‘“The Two Laws” and the Three Sexes: ­Ambiguous Bodies in Canon Law and Roman Law (12th to 16th centuries)’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Kanonistische Abteilung 100 (2014), 178–222, 192.

24 Bracton II, p. 32; 8 SS, pp. 57, 62; D.1.5.9; Fleta book 1, c. 5. European surgical sources described ‘hermaphroditism’ in adults and its ‘correction’, but are uninformative on assessment of babies: DeVun, ‘Erecting’, p. 37. For the idea of the ‘prevailing sex’, see Rolker, ‘The Two Laws’, p. 203. The hermaphrodite was a familiar enough idea that it had a metaphorical usage: Rolker, ‘The Two Laws’, p. 191; Ernst H. Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton, NJ, 1997), pp. 10–11. See also Cary J. Nederman and Jacqui True, ‘The Third Sex: The Idea of the Hermaphrodite in Twelfth-Century Europe’, Journal of the History of Sexuality 6 (1996), 497–517; L. DeVun, ‘The Jesus Hermaphrodite: Science and Sex Difference in Premodern Europe’, Journal of the History of Ideas 69 (2008), 193–218, 212.

25 Litt., book 1 cc. 1, 2; Co. Litt. 8a, 29b.

No evidence of common law cases in which a court was confronted with an individual challenging apparent biological sex has, thus far, emerged, though there are a number of areas in which one might have imagined possible disputes as to whether an individual was male or female: above all in relation to succession to land. The common law’s system of succession made distinction between male and female crucial. The importance of this clear and stark division can be seen, for example, in one fifteenth-century common lawyer’s reported statement that ‘it is against the law of England that a daughter shall inherit, when there is a son alive’.26 Since there is always likely to have been a percentage of the population with some ambiguity in genital appearance, one might have expected some disputes as to whether X was in fact a son, and thus qualified to inherit, and displace a daughter, or not. Doubt or subterfuge in this area was not outside contemporary literary imagination: an attempt to evade an English rule of succession which bars female inheritance, by bringing up as a boy a child apparently biologically female, according to contemporary standards, lies at the heart of the Romance of Silence.27 If such cases came before common law courts, however, no traces of them have yet been discovered in the records. Nor is there anything in common law records which appears to dispute sexual identity in the manner of the much-commented-upon London jurisdiction criminal case of John/Eleanor Rykener, which has been described variously as one of cross-dressing or transgender.28 Common law records include occasional references to men dressing as women, or women dressing as men, for the purposes of disguising their identities whilst engaging in offences. Thus, in Warwickshire in 1306, the sister of an alleged killer who had fled to a church is said to have exchanged clothes with him, so that he could escape in disguise as a woman.29 Such cross-dressing is, however, understood to be a temporary ruse rather than assertion of a different identity.30 Similarly, the occasional description of a woman as a virago is a criticism of her conduct as inappropriate for a woman rather than evidence of a belief that she is, or regards herself as, a man.31

26 51 SS, p. 26 case 9, R. v Reginald Cobham (1418): Martyn sjt.

27 Caitlin G. Watt, ‘“Car vallés sui et nient mescine”: Trans Heroism and Literary ­Masculinity in Le Roman de Silence’, Medieval Feminist Forum 5 (2019), 135–73; Heldris de Cornuaille, Le Roman de Silence, ed. by Lewis Thorpe (Cambridge, 1972).

28 See, e.g., Ruth Mazo Karras and David Lorenzo Boyd, ‘“Ut cum muliere”: A Male Transvestite Prostitute in Fourteenth-Century London’, in Premodern Sexualities, ed. by Louise Fradenburg and Carla Freccero (London, 1996), pp. 99–116. Ruth Mazo Karras and Tom Linkinen, ‘John/Eleanor Ryekener Revisited’, in Founding Feminisms: Essays in Honor of E. Jane Burns, ed. by Laine E. Dogget and Daniel E. O’Sullivan (Woodbridge, 2016); Kadin Henningsen, ‘“Calling [herself Eleanor”: Gender Labor and Becoming a Woman in the Rykener Case’, Medieval Feminist Forum 55 (2019), 249–66; Judith M. ­Bennett, ‘England: Women and Gender’, in A Companion to Britain in the Later ­Middle Ages, ed. by S.H. Rigby (Malden, MA, 2003), pp. 87–106; Carolyn Dinshaw, ‘Good Vibrations: John/Eleanor, Dame Alys, the Pardoner, and Foucault’, in Getting ­Medieval: Sexualities and Communities, Pre- and Postmodern (Durham, NC, 1999), pp. 102–42; ­Judith M. Bennett and Shannon McSheffrey, ‘Early, Erotic and Alien: Women Dressed as Men in Late Medieval London’, History Workshop Journal 77 (2014), 1–25. For ­recent developments in this area, see Roisin Cossar, Ruth Mazo Karras, and Shannon ­McSheffrey, “The Case of Rolandina Ronchaia, a 14th - century transwoman?,” ­Middle Ages for Educators, July 22, 2020. Accessed [17th December, 2020]. https://middleagesforeducators.princeton.edu/node/886/

29 JUST 1/966 m. 8 (IMG 8919).

30 See also, e.g., SC 8 295/14747: allegation that men dressed as women to carry out an ambush.

31 CRR III, p. 323; 62 SS, p. 8. On usages of ‘virago’, see Mitchell, Portraits, p. 133; Coral Lumbley, ‘Imperatrix, Domina, Rex: Conceptualizing the Female King in Twelfth-­Century England’, Medieval Feminist Forum 55 (2019), 64–99. For concern at cross-­dressing, see, e.g., Valerie Hotchkiss, Clothes Make the Man: Female Cross-Dressing in Medieval Europe (New York, 2012); Ralph V. Turner, Eleanor of Aquitaine (New Haven, CT and London, 2009), pp. 227, 271; Deuteronomy 21:5; Knighton’s Chronicle 1337–1396, ed. and tr. by G.H. Martin (Oxford, 1995), p. 93.

The discussion amongst common lawyers at Westminster, as reported in the Year Books, does, however, show some fascinating, if fleeting, signs of a certain fluidity of ideas in relation to gender. On occasion, in reported courtroom dialogue, we see male pleaders and judges taking on the persona of a female client or hypothetical woman. Thus, for example, in a case of 1312, Chief Justice William Bereford was reported to have cast himself as a woman, in a metaphorical passage in which he was instructing a lawyer who was attempting to formulate his pleading to best effect,32 and a prominent justice of the fifteenth century, Sir John Fortescue, used a metaphor of pregnancy with regard to his production of an argument in a treatise, effectively casting himself as a pregnant woman.33 As will be discussed in Chapter 4, pleaders in common law courts seem to have felt no inhibition in identifying themselves with female clients, speaking as the client herself.

This apparent mental flexibility must, however, be seen alongside the more rigid gender stereotyping and misogyny encountered in records emanating from the same milieu, the all-male, close-knit world of the leading legal professionals, pleaders and judges. Professor Baker expressed disappointment at finding misogyny in a common law reading, and defended ‘the common law mentality’ from charges of misogyny.34 It would be odd, however, if common lawyers had not shared in the misogynist discourses of their age, since they were not cut off from the currents of contemporary intellectual life. Historical scholarship has highlighted the range of views expressed by medieval commentators, in the areas of philosophy and theology, political theory, literature, civil law, medical theory and history, many of them focusing on women’s inferiority and weakness in physical, intellectual, rational and moral terms, and emphasising the danger to men of this weakness.35 Misogynist trends in medieval literature cast doubt on women’s truthfulness and reliability and asserted their weakness. Classical Roman jurists, in explaining a variety of disqualifications and different treatment for women, had posited both women’s bad character (lack of shame, cunning, greed) and also (perhaps rather inconsistently) their lack of capacity (they were weak, infirm, imbecilic, fragile, ignorant).36 Such insults had a powerful intellectual presence,37 and clearly made their way into common law sources. There are echoes of ingrained misogyny in common lawyers’ reported jokes about consummation of marriage with a young girl, rape and women’s foolishness (at best) in relation to sex and virginity, and in their comments portraying women as blameworthily weak-willed, sexually disloyal or ‘shrewish’.38 A stratum of lawyers’ remarks likened women to animals. Thus, sisterly relations were described in bestial terms in one royal enactment, which stated that making elder sisters guardians of younger sisters ‘would be to commit the lambs to the wolf’,39 and common lawyers had a favourite way of expressing the presumption of legitimacy of a child born within marriage, which compared the wife to a cow.40 The idea that women might give birth to monsters also, perhaps, plays into this idea of women as less than fully human.41 Sometimes, using synecdoche, they are reduced, in the context of succession, to ‘wombs’.42 The analogies or juxtapositions used in relation to married women suggest a lack of capacity and the location of control and responsibility in another person: they are considered alongside minors, monks, villeins and those labelled ‘idiots’.43 Limitations on women’s capacities and actions appropriate to them are stressed. Thus, widows are told that they should stay at home, caring for their children.44 Such statements were entertained by, and upheld by, common lawyers, and remain an important part of the legacy of the medieval common law.

32 Seipp 1312.017ss.

33 Fortescue, DNLN Part I, c. 30, p. 223. On medieval thought and gender fluidity, see Dyan Elliot, ‘The Three Ages of Joan Scott’, AHR 113 (2008), 1390–403, p. 1390; ­Caroline Walker Bynum, Jesus as Mother: Studies in the Spirituality of the High Middle Ages (Berkeley, CA, 1982).

34 132 SS, pp. lxx, lxxi.

35 See, e.g., Carla Casagrande, The Protected Woman’, in A History of Women II, ed. by Klapisch-Zuber, pp. 70–104, 86, 92, 103; Women Defamed and Women Defended: An ­Anthology of Medieval Texts, ed. and tr. by Alcuin Blamires, Karen Pratt and C.W. Marx (Oxford, 1992); R. Howard Bloch, ‘Medieval Misogyny’, Representations 20 (1987), 1–24; Cadden, Meanings of Sex Difference, c 4; René Metz, ‘Le statut de la femme en droit canonique médiéval’, Recueils de la societé Jean Bodin 12 (1962), 9–82.

36 Joëlle Beaucamp, ‘Le vocabulaire de la faiblesse féminine dans les textes juridiques ­romains du IlE au VIE siècle’, Revue historique du droit français et étranger 54 (1976), 485–509; Orit Malka, ‘Disqualified Witnesses between Tannaitic Halakha and Roman Law: The Archeology of a Legal Institution’, LHR 37 (2019), 903–36; Suzanne Dixon, ‘Infirmitas Sexus: Womanly Weakness in Roman Law’, LHR 52 (1984), 343–71, 344, 358.

37 Elisabeth van Houts, ‘Gender and Authority of Oral Witnesses in Europe (800–1300)’, TRHS 9 (1999), 201–20, 212; Woman Defamed, ed. by Blamires and others.

38 20 SS pp. 189, 190 (1310) John the Cooper of T. v Isolde widow of Richard Ildok (1312); Brand, ‘Inside the courtroom’, 11; Seipp 1376.012, 1441.032. st. Westminster I (1275) c. 22, SR I, p. 33; Seipp 1315.046 ss; CP 40/209 m. 136d; Seipp 1421.141rog; 1436.047; 1478.026. Raising women’s sexual conduct in cases involving land or villeinage claims and defences to trespass, see, e.g., 33 SS, p. 188; CP 40/179 m. 21 (IMG 43); CP 40/426 m. 396 (IMG 783); 103 SS p. 384. case 34.18; CP 40/443 m. 46d.

39 SR I, p. 5; P & M II, p. 272.

40 Seipp 1304.027rs; 1309.129ss 1307.020rs, 1406.013, 1440.003, P & M I, p. 422; J.L. ­Barton, ‘Nullity of Marriage and Illegitimacy in the England of the Middle Ages’, in Legal ­History Studies, ed. by Dafydd Jenkins (Cardiff, 1975), c. 2, p. 40; P.R. Hyams, ‘The ­Action of Naifty in the Early Common Law’, LQR 90 (1974), 326–50; Leges Henrici Primi, 243, no. 77, 2a. P and M II, p. 405.

41 Bracton II, p. 31.

42 See, e.g., Seipp 1310.136ss; Litt., book 1, c. 1, para. 6–9.

43 See, e.g., st. 3 Edw IV c. 5, SR II, p. 399; Seipp 1343.257ass. 1413.046; 1466.015; 1478.016; 1311.295ss; 1451.009abr; 1504.015; 1343.257ass; 1413.046; 1425.024; 1451.009abr; 1458.048; P & M II. 419; 421. For similar material in readings, see 129 SS 129, p. 47, 22. See also The Old Tenures c. 1515 and The Old Natura Brevium c, 1518, ed. by Morris S. Arnold (Chicago, IL, 1980) f.10, 25.

44 Bracton II, p. 281; Daniel Klerman, ‘Women Prosecutors in Thirteenth Century ­England’, Harvard Journal of Law and the Humanities 14 (2002), 271–313, 306.

Nevertheless, just as it has been shown that there were counter-currents to the prevalent misogyny in medieval thought beyond the common law, with some statements of mental equality of women and men, or praising women or even challenging a complete distinction on the basis of sex,45 so the records of the common law evince some less negative attitudes towards women. Amongst the misogyny, we also find some positive portrayals: of a wife resisting temptation to stray, or a heroic widow fighting against the odds to bring to justice the jurors who had wrongfully had her husband hanged or a wife wrongfully imprisoned with her husband, escaping and seeking help for him.46 Common law records include the occasional ‘cameo appearance’ from a supernatural woman: thus St Winifred is credited with intervention in an incident of kidnapping and violence in a 1456 King’s Bench entry which highlights her help of a Shrewsbury man held captive and tortured by extortioners.47 The Virgin Mary, as well as Eve, has a place in legal treatises.48

45 See, e.g., Patricia Skinner, Living with Disfigurement in Early Medieval Europe (London, 2017), p. 133; John Gillingham, Conquests, Catastrophe and Recovery: Britain and ­Ireland 1066–1485 (London, 2014), p. 283; Joy A. Schroeder, Deborah’s Daughters: Gender ­Politics and Biblical Interpretation (Oxford, 2014), p. 34; Goodrich, ‘Gynaetopia’, p. 279; Louise J. Wilkinson, Women in Thirteenth-Century Lincolnshire (London, 2007), pp. 3–4; Ceridwen Lloyd-Morgan, ‘The querelle des femmes: A Continuing Tradition in Welsh Women’s Literature’, in Medieval Women: Texts and Contexts in Late Medieval Britain, ed. by Jocelyn Wogan-Browne and others (Leiden, 2000), pp. 101–14.

46 Seipp 1482.115; Mirror, book II, c. 15; KB 9/293 m. 39 (IMG 77).

47 KB 27/781 m. 115 and 115d (IMG 237 and 572); SC 8/96/4769. Women portrayed actively resisting injustice or crime, see, e.g., SC8/57/2833; SC8/307/15333; SC8/280/13994.

48 See, e.g., Goodrich, ‘Gynaetopia’, 278; Bracton e.g. at II, p. 33 and IV, pp. 193, 361; Mirror, book II, c. 1.

Medieval common lawyers seem to have been able to hold conflicting views about women, some more negative than others.49 They could repeat misogynist tropes and theories to each other, and this might certainly be cumulatively damaging to women, but they also knew that it was not practical to take them to their logical conclusions, nor to act on them in all cases. As well as the opposing views found in other branches of medieval thought, common lawyers were also exposed to other influences which might lead them not always to follow misogynist logic. First of all, and unlike some other medieval thinkers, they often lived with real women: from the fourteenth century in particular, many prominent common lawyers, including judges, were married men. Another important additional source of ideas was their necessary familiarity with other domestic jurisdictions. Common lawyers were, at times, obliged to take into account rules relating to women in local and ecclesiastical jurisdiction, some of which accorded women somewhat greater capacity than did the common law. Their awareness of the existence of alternative rules and views may also have contributed to a picture of women and their appropriate treatment which, as we will see, was far from being simple.

Inclusion, omission and a linguistic ‘one sex model’?

Chapter 39 of the Magna Carta of 1215 (usually cited by lawyerly legal historians from the version of 1225, as Chapter 29) provided that:

No free man (liber homo) is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined. Nor will we go against him or send against him, except by the lawful judgment of his peers, or by the law of the land.50

49 For this point in relation to French legal writers, see van Houts, ‘Gender and Authority’, pp. 213–4.

50 SR I, pp. 6, 11, 14, 17, 24, 28, 33, 38.

Despite the fame of this provision, its implications for medieval ideas about sex, gender and law are yet to be given full consideration. Likewise, attention to the inclusion, explicit or implicit, of women, or their exclusion, from legislative and quasi-legislative materials more widely, could enhance discussions in this area.

The most prominent textbook on English legal history deals with the question of whether or not the safeguards of c. 29 were considered to apply to women in fairly short order, holding that liber homo clearly always encompassed women.51 Elsewhere, its author has treated this matter at greater length, but with the same outcome, and the ‘women (obviously) included’ reading has also been embraced by prominent medieval historians.52 While it is clear that the orthodox view amongst later common lawyers came to be that women were covered by liber homo in this provision, however, it appears less clear that this was unequivocally the case throughout the medieval period. The issue is complicated by changing views as to the meaning of c. 29 more generally (what was lawful judgment by peers, and what was ‘the law of the land’) and as to its status, whether confirmatory of common law or an independent source of law.53 Examination of the issue involves consideration of the interwoven questions of whether the words were understood to apply to women at all, and also what substantive import they might have been understood to have, given the provision’s permission to imprison or otherwise disadvantage, if this was permitted by ‘the law of the land’, when ‘the law of the land’ allowed significant limitation on the freedom of women.54

51 Baker, Introduction, p. 499.

52 J.H. Baker, The Reinvention of Magna Carta (Cambridge, 2017), especially at pp. 32–4; John Gillingham, ‘Back to Runnymede’, London Review of Books 37:9 (7th May, 2015), https://www.lrb.co.uk/the-paper/v37/n09/letters#172279, Accessed 25TH July, 2020; David Carpenter, ‘Magna Carta 1215: Its Social and Political Context’, in Magna Carta, ed. by Lawrence Goldman (London, 2018), c. 2; David Carpenter, Magna Carta (London, 2015), p. 101. In contrast, one recent commentator has stated that the provision simply did not cover women: Jocelynne A. Scutt, Women and Magna Carta: A Treaty for Rights or Wrongs? (London, 2016), p. 46.

53 Baker, Reinvention, pp. 6–7.

54 See Seabourne, IMW.

There have been four main strands to the argument for liber homo having always been understood to cover women as well as men. The first has concentrated on the specific phrase, liber homo, noting that it was used, in relatively contemporary sources, in contexts suggesting the inclusion of women. The second strand has had a more general linguistic focus, holding homo always to have been understood to be a ‘one sex’ word, including females as well as males. The third strand has stressed the views of post-medieval common lawyers, holding women to be included. Finally, as a fourth strand, there is the evidence of practice, and the apparent use by women of the provision. It is not clear, however, that these strands come together to form a definitive conclusion in favour of women’s ‘obvious’ inclusion throughout the period.

Perhaps the least convincing of the strands is that regarding contemporary use of the words liber homo. Employment of these words in earlier and contemporary legal texts shows that it was not an accepted term of art with a meaning including women: it could be inclusive or exclusive of them. One passage from Glanvill, referring to legitimate recipients of homage, is cast in terms of ‘libero homini whether male or female’, so does show that the formula could be used to cover females as well as males, but elsewhere Glanvill also used liber homo for males only, and, even within Magna Cartaliber homo sometimes seems to have a male-only sense.55 Liber homo is also used in some later measures in ways which seem to indicate males only.56

The more general linguistic argument, that homo would have been understood to include women as well as men, is somewhat stronger,57 but I would argue that we must class as unproven the existence of a strong rule of interpretation to this effect in the medieval common law. There are Roman law antecedents for the idea that (a word of) ‘the masculine sex always contains the feminine sex’, occasional uses of homo for a woman in legal records, and, for example, Bracton divides homines into male, female and ‘hermaphrodite’.58 It should be noted, however, that Roman law ‘masculine includes feminine’ rules do not seem to have been absolutely clear-cut, that not all jurists saw this as an invariable rule of interpretation, and that the French home is used in unequivocally exclusive fashion in at least one later thirteenth-century statute.59

Later medieval English statutes tended towards clear stipulation of applicability to women as well as men, as we will see below, and contemporary documents from outside the English statutory context could be more explicit. An important canon of 1215, for example, stipulated its application to people ‘of both sexes’.60 Medieval English lawyers drafted writs and private documents using explicit masculine and feminine terms or other, more clearly all-encompassing terms rather than relying on a widespread understanding that homo included women, for example, and a warranty might be against ‘all men and women’, or ‘against all people’, rather than relying on an inclusive interpretation of homo.61 Such practices also seem to cast some doubt upon a conclusion that homo in c. 29 would always and obviously have been seen to apply to women.

55 Glanvill, IX, 3; cited, e.g., in: Gillingham, Conquests, p. 4; Baker, Reinvention, p. 184. Glanvill VI, 1; XIV, 1. Magna Carta cl. 27 (1215) on the intestacy of ‘any liber homo’ seems appropriate only to male intestates.

Bracton uses homo and liber homo in inconsistent ways: contrast Bracton II, p. 228 ­(homage, deriving from Glanvill IX,1) and II, p. 265; III, p. 131; III, p. 293; IV, p. 169.

56 SR I, p. 21; later ‘due process’ provisions, using ‘home’: st. 28 Edw III c.3, SR I, p. 345; 37 Edw III, SR I. 382. c 18. ‘Liber homo’ in ale-only contexts: st. Merton c. 10, SR I, p. 4; st. Winchester (1285) c. 6, SR I, p. 97.

57 Baker, Reinvention, p. 34.

58 Judith Evans Grubbs, Women and the Law in the Roman Empire: A Sourcebook on Marriage, Divorce and Widowhood (London, 2002), pp. 16–7; D. 32.62; D. 50.16.1; D. 50.16.152; D. 50.16.195 pr. See also Sandra Petersson, ‘Gender Neutral Drafting: Historical Perspective’, Statute Law Review 19 (1998), 93–112, 94; 84 SS, p. 98 no 3426 (woman called the ‘homo’ of the canons of Walton, 1208); Bracton II, p. 31.

59 Compare D. 50.16.152 and D. 50.16.1, 50.16.40, 50.16.100, 50.16.116, 50.16.163, 50.16.172, 50.16.195; 50.16.204. John Ayliffe, A New Pandect of Roman Civil Law (London, 1734), p. 57: ‘The masculine gender very often includes the feminine’. st. Gloucester (1278), c.10; SR I, p. 49 mentions ‘home a sa feme’: home can only be masculine here.

60 Bronach Kane, Popular Memory and Gender in Medieval England: Men, Women and ­Testimony in the Church Courts, c.1200–1500 (Woodbridge, 2019), p. 35; Lateran IV canon 21.

61 See, e.g., acquittance contra omnes homines, JUST 1/483 m. 15 (IMG 1990); warranty ‘men and women’ JUST 1/1245 m. 17d (IMG 6341); 1290–91, JUST 1/1081 m. 7d (IMG 4526); 1293 JUST 1/804 m.3d (IMG 2464); 1306–7 JUST 1/253 m. 7 (IMG 2507); ‘people’ ‘contra omnes gentes’ JUST 1/1282 m. 12 (IMG 2878). Registers of writs did not see liber homo as covering free women: 87 SS, xliv, p. 64 nos 103 and 104: in writs de libertate probandaCum liber homo sit becomes cum libera femina sit.

The common learning of lawyers, by the sixteenth century, is said to have been that homo in c. 29 applied to women.62 Nevertheless, a mid-sixteenth-century reading on Magna Carta, though it says that home is to be understood ‘in these statutes’ to include both male and female, still seems confused about the correct interpretation, at least in relation to the trial of peers.63 An ‘inclusive’ view of homo was adopted by early modern legal luminaries such as Plowden and Coke, however, and has often been seen thereafter,64 with a growing assumption that c. 29, as then understood, applied fully to women. Sixteenth- and seventeenth-century writers considered that (aristocratic) women should always have been understood to be covered.65 This later inclusive interpretation was not based on linguistic considerations alone, however, but also, at least in part, on a construction of Magna Carta as an important limiting factor on royal power in the writers’ own age, and thus something which should be given an expansive interpretation. Coke, in particular, was keen to promote a broad view of the provision, maximising the limit on royal power.66 His ‘inclusive’ reading might be seen in the light of that policy goal. Blackstone’s discussion of the exclusion of women from qualification for jury service is equivocal on the issue, since it is framed in terms of the qualifying juror as a liber et legalis homo. It is clear enough that he was not suggesting that women were excluded because they did not count as liber, and he states that homo was ‘a name common to both sexes’, and yet a need is felt to strengthen the exclusion of women by using an additional word, legalis, which was presumably regarded as not applying to them, though this is not spelled out.67 Such later interpretations are not necessarily a reliable basis from which to deduce the medieval understanding of whether or not women were necessarily considered to be included in a provision cast in terms of ‘men’, and the inclusion, until well into the nineteenth century, of statutory provisions to the effect that masculine terms, in an individual act, ‘included the feminine’ suggests at least the possibility of doubt having persisted on this issue over a very long period of time.68

62 132 SS, p. lxxi.

63 132 SS, p. 384.

64 Edmund Plowden, The Commentaries or Reports of Edmund Plowden (London, 1816), 86v; Co. Inst. II, 14, 17, 29; A Discourse upon the Exposicion and Understandinge of ­Statutes, ed. by S.E. Thorne (San Marino, CA, 1942), p. 129. It also features in the works by late nineteenth- and early twentieth-century proponents of women’s rights: Charlotte Carmichael Stopes, British Freewomen: Their Historical Privilege (London, 1894), c. 1, p. 75; Laura Nym Mayhull, ‘Defining Militancy: Radical Protest, the Constitutional Idiom and Women’s Suffrage in Britain 1908–9’, JBS 39 (2000), 340–71, 354–6; Baker, ­Reinvention, p. 186, citing CP 40/1026, m. 556 (1519); CP 40/1102, m. 448 (1539).

65 See, e.g., KB 27/965 m. 25; W. Staunford, Les Plees del Coron, ed. by Peter Glazebrook (London, 1971), p. 152d; Co. Inst. II, 1 ff, p. 45 ff; Countess of Rutland’s Case, 6 Co. Rep. 52b; 132 SS, pp. 247, 264, 380, 384. Baker, Reinvention, pp. 230, 430–1, 463.

66 Co. Inst. II., 45; SR II, p. 321; Staunford, Les Plees del Coron, 152d, states that homo in this context includes women, but is concerned with the position after the statute of Henry VI.

67 Bl. Comm., book III c. 23, p. 362.

68 1 Vict. c. 26; Solicitors Act 1843, s. 48; Interpretation Act 1850, 13 & 14 Vict. c. 21. s. 4; Interpretation Act 1889, s. 1; Petersson, ‘Gender Neutral Drafting’, p. 93; Scutt, Women and Magna Carta, p. 14.

The best evidence for application to women of the provision, and their inclusion within homo, is that of practice and comment from the medieval period itself. This, however, is both sparse and equivocal. There are instances of women of high status apparently appealing to the clause, in petitions of the thirteenth and fourteenth centuries,69 but no clear endorsement of this as a decisive argument on their behalf. Later common law cases are more explicit in referring to it in relation to less exalted women.70 Such use is some evidence for the possibility of an inclusive interpretation of liber homo during the medieval period. There are, however, also instances of medieval women being confined without judgement, without any suggestion that this was contrary to the provision. It is difficult to discern whether this should be seen as an indication that the clause did not clearly apply to women; that it did apply to women but was disregarded by those with power; or that it applied to women in principle, but was rendered nugatory by a variety of derogations from the rule which operated to allow confinement of women in many circumstances.71

69 Cases are often connected to lost property rights rather than confinement. See in ­particular the1252 case of Isabella, countess of Arundel: Susanna Annesley, ‘Isabella, countess of Arundel’, http://www.finerollshenry3.org.uk/content/month/fm-08-2009.html. See also RP, I, p. 66; SC 8/4/190. Other references by women to Magna Carta are less specific: see Baker, Reinvention, p. 51, SC 8/11/510. There is mention of due process/­personal ­liberty ideas relating to lack of proper charges in a trial of Isabel, countess of ­Albermarle (d. 1293), in Goldington v Bassingburn 1310), Seipp 1310.111ss and 1312.010ss; 20 SS, pp. 193–7; Seipp 1275.003ss: 1276.009ss, though without explicit mention of Magna Carta.

70 Baker, Reinvention, p. 184; Juliana Draper’s 1502 claim, on c. 29, as a liber homo: KB 27/965, m. 25.

71 IMW cc. 1–3.

In the later fourteenth century, it was claimed on behalf of Alice Perrers that she had been wronged by being expropriated and banished without an appropriate trial. The petition in question did not specifically refer to Magna Carta, but claimed that ‘due process’ rules applied to women as well as men. For reasons unconnected to this aspect of the claim, this matter was left unresolved.72 Doubt as to the applicability to women of c. 29, as then understood, can be seen in some later medieval discussion. Statutory intervention in 1442 extended the guarantee of ‘trial by peers’ to aristocratic women, stating that women were not mentioned in c. 29, and there were ‘doubts and ambiguities’ about the matter.73 Even if this is taken to be narrowly focused on procedure in relation to a small group of women rather than a broader principle relating to all women,74 it does suggest a consciousness that women were different and could not be fitted into the liber homo category without some adjustments. It should be noted also that there was a parallel debate, in the mid-fifteenth century as to whether thirteenth-century provisions, which, on their face, applied to (male) heirs only should be held to apply to women in a similar position, despite the fact that they were not mentioned.75 Such questions appear still to have been unsettled at the end of the medieval period. The corpus of medieval English statutes and other legislative material suggests the absence of a fixed view on women’s inclusion.76 Some statutory material uses homo or even words indicating ‘everyone’, where in fact women are understood to be excluded, while in other cases homo or home clearly did also cover women. Thus, various proceedings were to be carried out by ‘men’, but mort de home or homicide covered female victims.77 Sometimes it is simply not clear whether women were intended to be included. This is the case in relation to thirteenth-century provisions relating to home[s] de religion, and to the defamation of ‘great homes’.78 It would appear that homo/home could be used to mean ‘men’ or ‘people’, at the choice of whoever was in charge of interpretation. This did not make for a clear or secure position for women.

72 See RP II, 375; W. Mark Ormrod, ‘The Trials of Alice Perrers’, Speculum 83 (2008), 366–96.

73 st. 20 H VI c. 9, SR II, p. 321; RP, V, 56b; J.G. Bellamy, The Law of Treason in England in the Later Middle Ages (New York, 1970), p. 154.

74 Baker, Reinvention, pp. 34, 463; 132 SS, pp. 170, 253, 264.

75 Seipp 1457.017, note especially the view of Fortescue given here and the explicit inclusion of female heirs elsewhere: 33 SS, p. 96: st. Westminster II c. 35.

76 Petersson, ‘Gender Neutral Drafting’; see also 132 SS, p. xlix. Note the lack of interest in gender in T.F.T. Plucknett, Legislation of Edward I (Oxford, 1949), and T.F.T. Plucknett, Statutes and Their Interpretation in the First Half of the Fourteenth Century (Cambridge, 1922).

77 See, e.g., Charter of the Forest 1217/1224–5, SR I, p. 26, st. Merton c. 3, SR 1, p. 2; st. Westminster I (1275) c. 11, SR I, p. 29; st. Marlborough (1267) c. 24, SR I, p. 25.

78 Provisions of 43 H III c. 19, SR I, p. 10; st. Westminster I (1275) c. 1, SR I, p. 27. On Scandalum Magnatum provisions expressed as relating to ‘great homes’, see below, Chapter 5

Rather than relying upon an idea that women were understood to be included, even if not mentioned, there seems to have been some increase over the medieval period in the tendency for legislation to include specific mention of women. Early legislation might not mention them at all, even when the area with which the enactment dealt was relevant to them. Thus, the Statute of Merton of 1236, dealing with aspects of wardship, discussed the limits of this arrangement with reference to male age of majority only, though wardship also applied to heiresses, and it seems that there was a different age of majority for them.79 When it was to royal advantage, legislation could be more specific, as in the Statute of the Jewry 1275 provision on taxation of every Jew, which provided that it was to be understood to apply to women as well as men.80 Later in the period, and particularly from the mid-fourteenth century onwards, explicit mention of women became more common. Women as well as men were mentioned in wage and labour regulation and sumptuary legislation, and explicit application to both men and women became normal.81 Increasing legislative attention and intervention in relation to women in the post-Black Death period would fit in with views which see this as a general point of departure from one ‘Legal System’ in the common law to the next, with the new era reinforcing traditional hierarchical obligations.82 The increased tendency to mention women may have been the result of a more general pattern of increasing specificity in drafting, a trend noted by T.F.T. Plucknett,83 and there is some inconsistency in any case. Thus, for example, the legislation on silk crafts is inconsistent as to whether women are mentioned or not, and sumptuary legislation varies in terms of the way in which women are treated, sometimes being set out in terms of ‘men and women’, sometimes in terms of ranked men and their wives, daughters, children.84 Nevertheless, it is arguable that the overall tendency to more frequent mention of women may also be taken to show increased notice of and heightened concern about women by law-makers and the common law – whether or not connected to a need to reinforce hierarchies after the Black Death – treating them as worthy and in need of separate attention.

79 c. 6 on marriage of wards uses only ‘male’ ages of majority: SR I, p. 2. See Seabourne, IMW, p. 116.

80 SR 1, p. 222.

81 Labour regulation mentioning both men and women: st. 12 Ric II c. 5, SR II, p. 54; SR I, pp. 307, 311; SR II, p. 57 st. 12 Ric II c. 4; SR II, p. 337; st. 23 H 6 c. 12. st 4 Edw IV c. 1 SR II, p. 406; st. 11 H 7 c. 22, SR II, p. 585; st. 12 H 7 c. 3, SR II, p. 637; st. 7 H IV c. 17 SR II, p. 158; SR II, p. 248. Female workers dealt with specifically: st. 37 Edw III c. 6, SR I, pp. 379–80. Men and women allowed to send children to school: st. 7 Hen. IV c. 17, SR II, p. 158. See also Jonathan Rose, Maintenance in Medieval England (Cambridge, 2017), p. 218, noting a suggested definition of maintenance of 1388, including ‘any lady’ or ‘woman of religion’: The Westminster Chronicle 1381–1394, ed. by L.C. Hector and Barbara Harvey (Oxford, 1982), pp. 358–9. ‘Ladies’ included: st. 8 Hen. VI, c. 4 (1429), SR II, pp. 240–1. st. 8 Edw. IV, c. 2, SR II, pp. 426–9 prefers the language of ‘persons’.

82 See Palmer, ELABD, Phifer, ‘Property, Power and Patriarchy’, p. 15.

83 Rules in other jurisdictions had been expressed to apply to women as well men at an ­earlier date: 18 SS, p. 99 (Waterford, c. 1300); JUST 1/1206 m. 21 (IMG 1951) ­(Nottingham custom on testation). Plucknett, Statutes, pp. 65, 86–7.

84 st. 33 Hen. 6 c. 5, SR II, p. 375; st. 22 Edw. IV c. 3, SR II, p. 42; st. 1 Ric. III c. 10, SR II, p. 493; st. 1 Hen. VII c. 9, SR II, p. 506. st.11 Edw III, SR I, p. 280; st. 37 Edw III c. 6, c. 8–15, SR I, pp. 379–80; st 3 Edw IV c. 5, SR II, p. 399; st. 22 Edw IV c. 1, SR II, p. 468.

Women: sub-categories of special concern

Though there might be debate as to the inclusion of women in general in legislative measures, attention was paid, by legislators and common lawyers, often and from an early time, to particular subsets of women. Wives and widows received most consideration, with exploration of the nature and consequences of the relationship between husband and wife, and the extent to which the law should ‘favour’ widows. Sisters were considered in relation to jointly held land, heiresses in relation to rights which others had over them and their land, pregnant women in relation to ‘criminal’ responsibility and succession to land. These areas of concern and legal approaches to them will be discussed in the next chapter. Some attention was also paid to other sub-groups of women, which will be mentioned briefly here.

Special provision was found necessary and appropriate in relation to queens and nuns. Before the fourteenth century, the legal position of the queen consort developed without much specific legal discussion. Bracton had noted some disconnected advantages: queens had priority in relation to attachments (along with the king) and (perhaps) the right to the tail of whales.85 They acquired some advantages with regard to dower, enforcement of rights, access to courts, privileges in litigation and a degree of independence in litigation and landholding not enjoyed by other married women.86 They were accorded specific protection through treason laws from the mid-fourteenth century, and it is from a similar period that discussion of the queen’s position becomes more common in law reports, debating whether she held a special status or was to be treated in the same way as other married women.87 Coke would treat the issue as if it had been settled long before his time, but the fact that a report of a 1487 case was still discussing whether the Queen was a sole person by common law shows that there remained uncertainty at the end of the medieval period.88 Nuns received attention earlier. They were considered in some medieval legal sources, partly as a matter of showing concern for their secure enclosure and vulnerability to abduction and partly because they might be in an anomalous position, enclosed, metaphorically ‘dead to the world’, and yet needing to involve themselves in litigation to protect the economic well-being of their houses.89 Nuns might need special accommodation, for example in terms of being allowed legal representation.90 Issues on entry into convents also needed special attention, since the question whether a girl or woman had become a nun might be important in land and debt actions, and involuntary confinement in a convent was seen as a plausible tactic of relations or guardians who wished to gain a proprietary advantage by having a girl or woman leave the secular world.91 After the Protestant Reformation, unlike queens, nuns had, of course, disappeared as a live concern in legal practice in England, so that there was no need for later legal commentators to systematise or simplify the law in this area.

85 Bracton IV, p. 377; II, p. 340; Fleta book 1, c. 44, is more certain on the whale question.

86 Lisa. Benz St John, Three Medieval Queens: Queenship and the Crown in Fourteenth ­Century England (New York, 2012), p. 90; John Carmi Parsons, Eleanor of Castile: Queen and Society in Thirteenth-Century England (London, 1998), p. 70; Helen M. Cam, ‘Cases of Novel Disseisin in the Eyre of London 1321’, in Law Finders and Law Makers in Medieval England, ed. by Helen M. Cam (London, 1962), pp. 95–105, 104; G. Post, ‘Status, id est, magistratus’ l’Etat c’est moi and Status regis, the ‘Estate Royal’ 1100–1322’, Studies in Medieval and Renaissance History I (1964), 3–103, 55–61, 74–53.

87 25 Edw III st. 5, c. 2, SR I, p. 319; Benz St John, Three Medieval Queens, c. 4. See also ­Michael K. Jones and Malcolm G. Underwood, The King’s Mother: Lady Margaret ­Beaufort Countess of Richmond and Surrey (Cambridge, 1992), p. 98: RP VI, 284, 311–2; J.L. Laynesmith, The Last Medieval Queens: English Queenship 1445–1503 (Oxford, 2004), p. 237; Ch. R 1427–1516, pp. 207–10, 217–8; Howell, Eleanor of Provence, p. 112. For debates on the queen’s position in litigation and her property, see, e.g., Seipp 1344.006rs; 1346.254rs; Seipp 1347.057; 1350.183, 1350.184, 1350.098; 1350.210; 1375.007, 1346.237rs; 1321.185ss; SC8/15/745; SC8/48/2368. For other high-ranking women, see 6 Ric. II st 1 c. 6, SR II, p. 27; st. 3 Hen. VII c. 2, SR II, p. 512; st. 20 Hen. VI c. 9, SR II, p. 321.

88 Seipp 1487.053; Co. Litt. Book 2 c. 11 s. 200 a. Note the debate as to the special status of noblewomen with regard to legal process: see Seipp 1409.045; 1425.067; 1436.057 and KB 27/594 m. 105 (IMG 236); KB 27/597 m. 102 (IMG 218); KB 27/598 m.d (IMG 474).

89 st. Westminster II c. 34, SR I, p. 87; st. of Wales c. 4, SR I, p. 58. Mirror, book I c. 10, book IV c. 13.

90 33 SS, p. 211; Elizabeth Makowski, English Nuns and the Law in the Middle Ages: ­Cloistered Nuns and Their Lawyers 1293–1540 (Woodbridge, 2012), p. 63; Seipp 1455.023; essoin of confined prioress: 1369.024. Female heads of house in litigation: see, e.g., Seipp 1334.063; 1269.002ss; 1334.063, 1347.081.

91 See, e.g., CRR XVIII, 1243–5 pp. 180–1. SC8/41/2012; Eileen Power, Medieval English Nunneries, pp. 35, 37–8; Seipp 1276.015ss; 1312.140ss; 1347.156; 1347.202; 1347.229ass; 1364.173ass; 1384.041am; 1384.042am; 1465.031; CRR V, pp. 171, 183–66, 162, 280, 293; CRR VII, pp. 108–9, 180, 246; CRR IX pp. 222, 241, 381–2, 385 58. JUST 1/1055 m. 65d (IMG 3325); Seipp 1276.015ss; 1464.049; 388.086 am, CP 40/511 m.521d. For lawyers’ discussions of nuns, see, e.g., 105 SS, p. 140; 132 SS p. 100; Seipp 1312.140ss.

Some subsets of women – particularly villeins and ‘foreign’ and Jewish women – were subject to additional disadvantages, when compared to other women, and to some extent placed outside the regime of the common law.92 Women with particular conditions or disabilities, such as those classed as ‘lepers’, might also face legal disadvantage.93 The groups which the common law identified for different treatment were not always identical to those which concerned other bodies of law or thought. Thus, ‘concubines’, an interest of Bracton, do feature in common law records, but are not the subject of particular, different rules based on this categorisation.94 Women engaging in sex work, who feature heavily in discussions of other jurisdictions, are mentioned in legal records, under various labels, but were of less concern to the common law, which generally left attempts to stamp out or regulate prostitution to urban authorities and the church.95

92 On villeinage, see, e.g., Mark Bailey, The Decline of Serfdom in Late Medieval England: From Bondage to Freedom (Woodbridge, 2014), p. 4; Baker, OHLE VI, p. 599; Eleanor Searle, ‘Seigneurial Control of Women’s Marriage: The Antecedents and Function of Merchet in England’, P & P lxxxii (1979), 3–43, 6, 20–1; P.A. Brand and P.R. Hyams, ­‘Debate: Seigneurial Control of Women’s Marriage’, P & P lxxxii (1979), 123–33, 130–1. For comparatively late references to ‘bondwomen’, see st. 3 Hen. VII c. 2, SR II, p. 512. Discussion of villeinage and false imprisonment: JUST 1/1084 m. 27 (IMG 4671); CP 40/423 m. 231d (IMG 1318), assault JUST 1/483 m. d (IMG 2262). On lawyers’ concern with marriages between villeins and free people, see, e.g., Bracton II, pp. 30, 31, III, pp. 92, 96; Fleta, book 1 cc. 3 and 4. On the disadvantages of being ‘foreign’, see, e.g., Seipp 1425.092. W. Mark Ormrod, Bart Lambert and Jonathan Mackman, Immigrant England 1300–1550 (Manchester, 2019), pp. 24–5, 45–6, 176; SC 8/25/1216; SC 8/26/1253, SC 8/26/1279; SR, I, 310: Paul Brand, ‘The Origins of ‘Alien Status’ in the English Common Law’, JLH 39 (2018), 18–28. On Welsh and Scotswomen, see SR I, pp. 56, 61, 67–8, c. 13; SR II, p. 140 st. 4 H IV c. 26, c 34; CPR 1467–77, 50; Seipp 1483.010, KB 27/885 m. 39d (IMG 290). For Jewish women, see, e.g., Victoria Hoyle, ‘The Bonds that Bind: ­Money-Lending between Anglo-Jewish and Christian Women in the Plea Rolls of the Exchequer of the Jews, 1218–80’, JMH 34 (2008), 119–29; Adrienne Williams Boyarin, ‘Medieval Anglo-Jewish Women at Court’, in Women Intellectuals and Leaders in the Middle Ages, ed. by Kathryn Kerby-Fulton, Katie Anne-Marie Bugyis and John Van Engen (Woodbridge, 2020), pp. 55–70; Paul Brand, ‘Jews and the Law in England, 1275–1290’, EHR 115 (2000), 1138–58; 15 SS, pp. 131–2.

93 On ‘lepers’: 62 SS, p. 372; CRR VII, p. 199: objection, to a woman’s appeal in 1214 that she was a ‘leper’ (so should be excluded from the community).

94 Bracton II, pp. 54, 95–6, 187; III, p. 1, 231, 271; Ruth Mazo Karras ‘Marriage, Concubinage, and the Law’, in Law and the Illicit, c. 9. In case records, it is often used of a woman living with a priest. See, e.g., JUST 1/365 m.24d (IMG 4064); JUST 1/1237 m. 11 (IMG 4969); JUST 1/210 m. 26d (IMG 5091); JUST 1/569A m. 20d (IMG 8233); KB 27/597 m. 2 (IMG 0232); KB 27/537 m. (IMG 8910); KB 27/294 m. 3 (IMG 359); JUST 3/1/7 m. 11d (IMG 0323). JUST 3/50/4 m. 33 (IMG 144). SC 8/34/1659 apparent laymen. C 1/99/3 1486–93.

95 For exceptions, see Chapter 6. For prostitution/sex work, see Ruth Mazo Karras, Common Women: Prostitution and Sexuality in Medieval England (New York and Oxford, 1996); Mirror, book 4 c. 16; 100 SS, 19; Seipp 1308.003ss; Bracton II, p. 415. For the appellation ‘strumpet’ or ‘common strumpet’, see, e.g., KB 27/638 m. 19 (IMG 285); KB 27/718 m. 14 (IMG 302). For ‘common meretrices’, see, e.g., KB 27/585 Rex m.17d (IMG 485). See also J.B. Post, ‘A Fifteenth-Century Customary of the Southwark Stews’, Journal of the Society of Archivists (1977), 418–28; Ruth Mazo Karras, ‘Regulation of Brothels’, Signs 14 (1989), 399–433. Lease terms: Onyng v Morys and Others Ames YB 1 (1929), CP 40/517 m. 440 (IMG 968), Seipp 1456.122abr. For royal action: C 16/489 m. 13d, CPR H 6, 6:610. (Southwark, 1391 and 1437): SC8/73/3626 SC 8/27/1309; indictments, e.g. KB 9/389 mm. 48, 49, 49d (IMG 86, 98, 99). Ruth Mazo Karras, Sexuality in Medieval Europe: Doing unto Others, 2nd edn (London and New York, 2005), p. 123; J.M. Bennett, ‘Writing Fornication: Medieval Leyrwite and Its Historians’, TRHS 6 ser 13 (2003), 131–62; S.K. Cohn, Popular Protest in Late Medieval English Towns (Cambridge, 2013), p. 251.

The discussion up to this point has assumed that classification of women into different sub-groups was relatively straightforward, but that was not necessarily the case, and it is worthy of note that the establishment of clear rules defining some sub-groups of women was slower than was the case for comparable classification of males. This applies in particular to the important point at which an heiress moved from ‘minority’ to ‘majority’ for the purposes of property-holding and the end of wardship. Bracton pointed out vagueness in relation to the rules on heiresses’ ages of majority in relation to military fees, and debate as to whether a lord lost his wardship rights over an heiress once she married.96 Later in the thirteenth century, there seems to have been some greater clarity for heiresses, with Fleta replacing Bracton’s ‘functional’ test for majority for the heiresses of sokemen, which involved ability to run a house, with a simpler age test, in which both males and females were of age at 15.97 This suggests a slower rate of firming-up of classification, and clarification of rights, in relation to females than was the case with males. When considering majority and inheritance of land, it would seem that the thoughts of those working in the common law went first to male heirs. That they were the paradigm and the greater concern is nicely illustrated by Bracton’s description of proof of age by bodily appearance, which refers to beard growth.98 There was still some disagreement in the mid-fifteenth century, in relation to majority of heiresses holding land by different tenures, but Littleton’s Tenures, towards the end of the period under consideration, did not see the age of majority for the end of wardship as uncertain at all.99

There were other areas in which reaching certainty on age criteria for girls and women seemed to be difficult for common lawyers. In dower, for example, where a criterion of age or perceived readiness for sexual relations came to be used as a qualifying test from the latter half of the thirteenth century, there was some debate and disagreement about the critical age boundary, and some movement between the reason for the age limit being capacity to endure penetration and capacity to conceive.100 The medieval common law seemed to tolerate a greater degree of uncertainty in relation to the classification of women than it did in relation to men.101 Clearly, some divisions or definitions of subsets of women were simpler than others, but the fact that there were blurred borders in some cases should be something of a corrective to too great an insistence on placing subsets of women in the foreground and relegating ‘women’ to an inferior position in legal historical analysis.

96 Seabourne, IMW, pp. 115–6; Bracton II, pp. 251, 257.

97 Bracton II, 251; Fleta, book I c. 11; Seipp 1310.004ss (14 as age of majority of heiress in chivalry). P & M II, p. 300; st. Westminster I c. 22: marriage with the lord’s consent ended her wardship. Bracton II, p. 250; John Bedell, ‘Memory and Proof of Age in England 1272–1327’, P & P 162 (1999), 3–27, 6.

98 Bracton IV, pp. 319–20.

99 Doubts: Seipp 1457.002; 1457.017, 51 SS pp. 138–43, 132–7; 132 SS, 372; SC8/28/1398 (1460). Certainty: Littleton, Tenures, book II, c. 4, no. 104.

100 Paul Brand, ‘Deserving and Undeserving Wives: Earning and Forfeiting Dower in Medieval England’, JLH 22 (2001), 1–20; 132 SS, p. 41. Age of widows for dower, disagreement: Seipp 1410.127. Bracton III, p. 372; Fleta book 5, c. 27, suggests below 9½ was too young for a girl to ‘fulfil her obligations to her husband’ and so qualify. The age of raped girls is noted, presumably as aggravation, indicating incapacity, see, e.g., JUST 3/167 m. 23d (IMG 198), JUST 3/201 m. 5d (IMG 792); KB 27/351 m. 22 (IMG 1960). On the contested borderline between ‘girl’ and ‘woman’, see, e.g., Kim M. Phillips, Medieval Maidens: Young Women and Gender in England c. 1270–c. 1540 (Manchester, 2003). For assessment of the age of females by inspection, see: 98 SS, p. 521; Seipp 1340.265rs; 1376.012; 1401.035.

101 Seabourne, IMW, pp. 115–6. For vagueness in defining groups of women outside the common law, see, e.g., ‘whores’, Karras, Common Women, pp. 16–7.

Conclusion

Sexual difference was by no means the only criterion for the distribution of common law rights. Thus, in relation to rights to succession in land, proximity of relationship to the deceased person was also important, and in relation to wardship, comparison of the age of seisin was a rival principle to that of favouring the male line over the female.102 Nevertheless, differentiation between men and women was a fundamental part of common law thinking. In their treatment of ‘women’ as a category, common law sources show strong reliance on a two sex model. If the records of the common law seem more rigidly attached to a male-female binary than do some other areas of medieval intellectual endeavour and culture, that is unsurprising in view of the law’s particular need for certainty of concepts from which to set out to resolve disputes and to determine entitlements to land in particular: common lawyers did not have as much room for imaginative manoeuvre in their work or their records as did writers of romance. Despite the acceptance of the fundamental nature of women’s difference, however, prescriptive sources did not always explicitly take them into account, causing some disagreements and uncertainty amongst common lawyers themselves, when trying to decide whether and how to apply to women rules which might be expressed in terms which were either masculine or only arguably inclusive of women. There appears to have been a move towards greater differentiation and specificity in prescriptive sources over the medieval period, but not a simple move from a ‘one sex’ model (with homo unequivocally covering both men and women) to a ‘two sex’ model, with clear statements of application to women as well as men. Differentiation within the category of women was already present in the earliest years of the common law, and lawyers singled out some groups for separate attention. Their conception of women was never monolithic, and they were perfectly capable of seeing ‘women’ as both an overarching category and also a collection of sub-groups which might require separate consideration and regulation. These sub-groups were not only based upon marital status, might not be clearly differentiated and a woman might be a member of more than one category, classed as both a nativa and servant or a daughter and servant, for example.103 It was recognised by common lawyers that minority, marital status and wardship might interact to cause difficulties.104 Marital status and employment status might also clash under the labour legislation of the mid-fourteenth century onwards. An interesting illustration of movement over time with regard to categorisation of women is the long-term process by which a statute about women in general, which listed several different categories, came to be described simply as concerning ancille. Many fifteenth-century records refer to a ‘recent’ statute de raptu ancille.105 It seems however that the statute being referred to was, in fact, the 1275 statute of Westminster I, c. 13. The Statutes of the Realm version of this does not mention servants,106 but the statute is referred to in an entry of 1450 as the foundation for actions in this area.107 The steps by which the change of interpretation occurred are yet to be determined, but apparently the damoysele of earlier iterations had by this time come to be read as ancilla, and this sub-group had come to be seen as its main focus.

102 Plucknett, Legislation of Edward I, c. 5 The Family, p. 113; for debate on this, see 58 SS, pp. 158–60.

103 CP 40/426 m. 415 (IMG 821); KB 27/401 m. 69 (IMG 6086).

104 See the complex scenarios in 105 SS, cxxviii.

105 (1450) KB 27/758 m. 17 (IMG 210); (1460) KB 27/798 m. 18 (IMG 257).

106 SR I, p. 29.

107 KB 27/758 m. 3d (IMG 413).

Furthermore, common law thinking about particular groups or categories themselves was not necessarily consistent or simple, as will be seen in the following chapter, which discusses some of the ways in which related ideas of union and separation ran through the common law’s treatment of the most significant subsets of women.

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