Unstable constructions: unity, disunity, property and favour in common law thought on women

The subsets of women most regularly discussed in common law sources and later commentary on medieval law were married women and widows. Those looking backwards – whether as lawyers or as historians – have often attributed to medieval common law’s treatment of women three particular constructions: the married woman as united to her husband under the ‘doctrine of coverture’, married (and some other) women as the property of men and favour or generosity towards women. While these constructions are interesting, both individually and in combination, and while they are not without basis in medieval legal materials, they are not the whole story, and over-emphasis on them can, at times, have a distorting effect. All depend to some extent on ‘reading back’ later ideas, later certainties. It is necessary to acknowledge that medieval common law thought in this area was considerably more fluid and multi-layered than emphasis on such ideas, or any one of them, would suggest.

Flesh, blood, souls and rods: ‘coverture’ considered

By the mid-eighteenth century, the law relating to husband and wife was presented as a coherent ‘doctrine of coverture’, organised around an idea of marital unity. This is exemplified by the familiar statement from Blackstone’s Commentaries that ‘[b]y marriage, the husband and wife are one person in law: …[She] is … called in our law-French a feme-covert; is said to be covert-baron, … and her condition during her marriage is called her coverture.’1 The terms ‘feme covert’ and ‘coverture’ may certainly be found in medieval common law sources, but their medieval meanings and implications should not be read back from later sources.2 The medieval position was not so simple, nor so monolithic, as that put forward by later commentators.

1 Bl. Comm., book 1, c. 15, 1; Co. Litt., book 2, c. 168 p. 112.

2 See Married Women and the Law: Coverture in England and the Common Law World, ed. by Tim Stretton and Krista J. Kesselring (Montreal, 2013); Tim Stretton, ‘Coverture and Unity of Person in Blackstone’s Commentaries’, in Blackstone and His Commentaries, ­Biography, Law, History, ed. Wilfrid Prest (Oxford, 2009), pp. 111–28, 127; Sara M. Butler, ‘Discourse on the Nature of Coverture in the Later Medieval Courtroom’, in Married Women, ed. by Stretton and Kesselring, c. 2, pp. 15, 25; Klerman, ‘Women Prosecutors’, p. 7; Cannon, ‘Rights’, p. 159.

The words coverture and covert themselves give mixed messages: the idea of a husband ‘covering’ his wife suggests meanings ranging from protection, through containment or concealment, to a livestock-related sexual idea.3 Such was the words’ lack of an anchor in one definite idea that Fortescue could discuss coverture in the context of women covering their heads.4 The words do not obviously indicate complete union of personality, entire submerging of the woman in the man’s identity, such as would later be taken to be central. Logically, for one thing to cover another, it is necessary to retain the understanding that they remain separate. The relationship of ‘coverture’ and ‘unity’ is thus rather complex. There are examples of the language of unity in medieval sources relating to husband and wife,5 but this remains in tension with constructions of the marital relationship which require an idea of separation. Furthermore, where ‘unity’ occurs, it bears differing meanings or nuances: medieval statements suggesting unity of the spouses range from an idea of them being ‘one flesh and one blood’, through the idea of unity within one body, the male as head and the female as the rest of the body, to more abstract, less physical, ideas of the spouses as ‘one person (in law)’ or leading ‘conjoined lives’, and the same text may contain more than one of these ideas.6 A degree of separation is acknowledged in statements which emphasise not unity but the husband’s power and domination over the wife. This domination is sometimes symbolised by the idea of the wife being ‘under the husband’s rod’, an image itself saturated with meanings, the rod acting as a symbol of authority, of domination through the power to chastise and also of sexual domination, through the association between rod and penis.7 An interesting variation can be seen in a register of writs from the late thirteenth century, which suggests that the husband – or the condition of marriage – has a smothering effect on the wife, taking away her voice: when joined to a husband, she ‘has no voice to act by herself without [him]’.8

3 OED II. s.v. cover; P & M II, p. 403.

4 Fortescue, DNLN Part 2, c. 56, p. 319.

5 See, e.g., Anon v Musket (1313–14) 27 SS, p. 45.

6 See, e.g., Dialogus de Scacc., pp. 83, 114; Bracton III, p. 363; IV, pp. 330, 335; Fleta, book V, c. 25; Placita Corone, xxviii; Fortescue, De Laudibus Legum Angliae, ed. by F. ­Gregor and A. Amos (Cincinnati, 1874) c. 42; Seipp 1407.040, 1413.017; 1414.014; 1426.034, 1431.168, 1444.006, 1461.008, 1470.029ss; J.G. Bellamy, The Criminal Trial in Later Medieval ­England: Felony before the Courts from Edward I to the Sixteenth Century (Toronto, 1998), p. 8.

7 See, e.g., LHP, 45, 3; Bracton II, p. 36; Fleta, book 1, c. 9; Glanvill, Prologue, p. 1; Britton, book 3, c. 2, no. 12; Litt., book 1, c. 10; Kane, Popular Memory, p. 120; Pedersen, ‘Privates on parade’, p. 81. More general ideas of dominance: Glanvill, VI, p. 3; Bracton IV, p. 335; P & M II, p. 402. Coss, Lady, p. 123; Paul Brand, ‘Family and Inheritance: Women and Children’, in An Illustrated History of Late Medieval England ed. by Chris Given Wilson (Manchester, 1996), p. 63. For ideas of subjection of wives, see Seipp 1376.028.

8 87 SS, p. 85 no 170b: ea coniuncta viro sue vocem agendi non habet per se sine viro ….

Maitland called the unity of person’s idea ‘impossible dogma’, rejecting its practical influence in twelfth- and thirteenth-century common law.9 Rather than seeing it as a dogma which was ignored, however, it is probably more accurate to see the unity idea as a familiar metaphor or, as C.S. Kenny preferred, a ‘legal fiction’: something which could be used if desired, as an origin story for particular rules, but which did not necessarily indicate a clear response in the practical world of common law.10 There are certainly indications that medieval lawyers were fully conscious that their references to unity between husband and wife were not to be seen as central truths, in the passages in Bracton and the Year Books which qualify unity statements with ‘as it were’ or ‘so to speak’ additions,11 evincing a subtlety not always present in later presentations of the common law, and in the mid-fifteenth century statement of Prisot J. that the ‘husband and wife are one person in law, in some respects it is so and in some respects not’.12 In recent work on coverture ideas over a longer period, Stretton has noted a move in the role of ‘coverture’ from limited fiction to metaphor to doctrine.13 This is a perceptive analysis, though perhaps rather than seeing a progression between the first two stages, the medieval common law position should be seen to comprise both limited fiction and metaphor.

Fiction, metaphor and analogy were common modes of exploring concepts in medieval scholarly and literary thought, and were also much in evidence in legal thought. In legal sources, we see, for example, birth metaphors for rights acquired through long possession and actions arising from obligations, hospitals described as ‘dead things’, the Church or king described as a minor and analogies being drawn between bondmen and animals.14 Littleton’s Tenures likens different property interests to ingredients in a ‘puddyng’, and the growing idea of the corporation also required a certain degree of metaphorical thinking.15 The use of these techniques indicates an attempt to explain a situation which is difficult, novel or non-standard, and needs to be elucidated by reference to other, more familiar situations. Married women were a derogation from the normal subject of the medieval common law – the autonomous, free, man – and dealing with them encouraged such creative thinking. Other situations involving women had also called forth from common lawyers a metaphorical response. This can be seen in relation to sisters, where a unity concept was used, though only in relation to land and inheritance. Before the reign of Henry II, it had been settled that, if a man died leaving only daughters, they would share the land rather than primogeniture applying, as it would have done for males.16 The separate rules to deal with the implications of this tenure by ‘coparcenry’ were discussed in cases and lawyers’ educational scenarios, such discussion developing ideas and vocabulary of unity and fractional personality.17 This was a knowingly metaphorical mode of discourse: nobody actually thought that one of three inheriting sisters was a third of a person. In addition, we see the idea that nuns were ‘dead to the world’ or ‘dead in law’, but, as with other metaphors, it was neither undisputed nor carried through to the hilt.18

9 P & M II, p. 402.

10 Kenny, Effects of Marriage, pp. 13, 14, 120.

11 Bracton III, p. 30; Seipp 1330.823ss; Britton, book 5, c. 1.1.

12 Seipp 1456.058, cited in Butler, ‘Discourse’, pp. 15, 29–30.

13 Stretton, ‘Coverture and Unity’, p. 127.

14 Bracton II, pp. 36, 157, 284; 8 SS, p. 141, Mirror, book III, c. 26; Seipp 1334.231ass Seipp 1293.102rs; 1313.680ss Seipp 1319.101ss; 1306.123rs; 1317.014ss; 1317.026ss; 1317.097ss; 1332.179; 1309.209ss.

15 Litt., book III, c. 2, no. 267; Andreea D. Beboc, ‘Theorizing Legal Personhood in Late ­Medieval England’, in Theorizing Legal Personhood in Late Medieval England, ed. by ­Andreea D. Beboc (Leiden and Boston, MA, 2015), pp. 1–28, Gaines Post, Studies in ­Medieval Legal Thought: Public Law and the State 1100–1322 (Princeton, NJ, 1964), p. 30; David Seipp, ‘Formalism and Realism in Fifteenth-Century English Law: Bodies ­Corporate and Bodies Natural’, in Judges and Judging in the History of the Common Law and Civil Law from Antiquity to Modern Times, ed. by Paul Brand and Joshua Getzler (Cambridge, 2012), pp. 44–55.

16 J.C. Holt, ‘Feudal Society and the Family in Early Medieval England: IV. The Heiress and the Alien’, TRHS 35 (1985), 1–28, 2.

17 Seipp 1285.008ss; 1286.017ss; 1293.025rs; 1318.001ss; 1329.153; 1293.132rs; 1306.133rs; 1311.166ss, 1311.173ss; 1311.261ss; 1314.059ss (aid of parceners); 105 SS clv, cli, cliii, clxxxiii 12; 67, 70, 248, 249. 320. For the eldest sister’s enhanced role, see P & M II, p. 272; Glanvill VII, 3; Bracton II, pp. 218, 222–3, 226, Britton, book III c. 4 no. 7, no. 23. Littleton constructs sister-coparceners as one person: Litt. book III, c 1. Bracton II, p. 227 guardianship, Cal. Cl. Rolls, 1234–37, 375–6 (1236).

18 Bracton IV, p. 311; Seipp 1388.086am; 1324.174; 1335.114; 1312.140ss.

There were medieval attempts to show the derivation of rules relating to wives from an idea of unity, but these were not particularly successful, as can be seen from a passage in Bracton, endeavouring to decide how a husband and wife should perform wager of law, and wondering whether the idea of the spouses as ‘one flesh’ means that they must defend themselves together or whether they can do so separately.19 Some rules relating to spouses were explained on other grounds. For example, some treatments of the invalidity of their gifts to one another explain this not in terms of unity, but rather on the basis of a suspicion that unhealthy lust and affection might cause such transfers.20 Unity was stated as the reason for some legal rules in cases and treatises from the fourteenth and fifteenth centuries, but there remained consciousness of the limits to the utility of unity ideas in terms of providing a clear answer in concrete cases.21 Separate identity continued to be assumed and acknowledged, for example in the use of the language of domination and in expressions of uncertainty or insecurity about husbands’ control of wives, which might claim that women were less amenable to husbands than in the past, and (perhaps humorous) suggestions that a woman might be the master or jailer of her husband.22 A domination analogy is also used in the comparison of the relationship of husband and wife to that of religious superior and inferior (such as abbot and monk) or that of lord and villein.23

19 Bracton IV, p. 164.

20 Bracton II, pp. 56, 97; Fleta book III, c. 3; D. 24.1.1.

21 Argument that because H and W are ‘as one person’, H must answer for W’s deeds: 34 SS case 41. Judge using unity as purported source for rules: Butler, ‘Discourse’, pp. 15, 28; Litt. book II, c. 10, no 168.

22 W’s acts ‘done for dread of her husband’: Seipp 1467.038; Elizabeth Fowler, ‘Civil Death and the Maiden: Agency and the Conditions of Contract in Piers Plowman’, Speculum 70 (1995), 760–92, 771. Seipp 1336.045; Seipp 1345.104rs. 129 SS, p. 31. Seipp 1307.041rs; Seipp 1311.219ss. For use in a case of ‘inter brachia viri sui’ in this context, see JUST 1/303 m. 21 (IMG 8680). 1306.193rs; Bracton II, p. 419.

23 See, e.g., Seipp 1399.004; 1400.026; 1401.049; 1430.050; 1458.048; 1464.049; 129 SS, p. 52; Seipp 1464.049. For comparisons of women and their legal disabilities to groups, from children to bastards, see 129 SS, pp. 22, 47. See also Old Tenures, The Old Natura Brevium, f. 10, 25.

The varying constructions of women’s place in the marital relationship suggest that there was not, in the medieval common law, a unified and coherent ‘doctrine of coverture’ on the later model. We will see in Chapters 5 and 6 that unity ideas did not rule in relation to responsibility for ‘tort’ and ‘crime’.24 Husbandly dominance also had its limits. Thus, a wife could obtain sureties of the peace against her husband, a husband could not, according to law, kill his wife with impunity (and nor would the wife-slayer be conceived of as guilty of ‘self killing’).25 A woman was not always regarded as being under the control of her husband without a will of her own.26 A husband could ‘receive’ his wife.27 We come closest to what looks like a doctrine of coverture, organised around a hybrid concept of ‘male-dominated unity’, in the realms of real property and litigation. Such an idea seems to be embodied in basic rules such as the husband’s control over land and personal property – what Plucknett described as the ‘exorbitant rights of husbands over the real and personal property of their wives’.28 This is suggested, for example, by a statement in a case from 1196 that a woman could not have bought land in her own right, because ‘she could have no chattels for herself in the time of her husband which were not her husband’s’, and by the necessity of the participation of a husband in legal actions brought by or relating to the wife, upheld with very few exceptions throughout the period.29 It is interesting to note however that even within the areas of litigation and property, there are signs that the hold of any unity metaphor was incomplete. Thus, for example, in records of litigation involving spouses from the later thirteenth century, sometimes an attorney was designated ‘their’ attorney, but he might rather be designated the attorney of the wife or the husband alone.30 Separate attorneys were possible in the fourteenth century, and it was envisaged that they might not act in a co-operative manner.31 It was certainly possible for spouses to act as attorneys for each other or for one to appear in person and the other by attorney, all of which suggests that some degree of theoretical separation was accepted, even in ‘legal personality’.32

24 These are anachronistic but efficient labels for wrongs deserving of punishment or redress at common law.

25 P & M II, pp. 422, 436; Baker, OHLE VI, p. 621.

26 See Chapter 6.

27 See, e.g., JUST 3/136 m. 14 (IMG 25).

28 Plucknett, Legislation of Edward I, p. 128.

29 Pipe Roll Society vol. xxiv, p. 232; S.J. Bailey, ‘The Countless Gundred’s Lands’, CLJ 10 (1948), 84–103, 91; Plucknett, Legislation, p. 128. J.S. Loengard, ‘What Did Magna Carta Mean to Widows?’, in Magna Carta and the England of King John ed. by J.S. Loengard (Woodbridge, 2010), pp. 134–50, 137; Hudson, OHLE II, p. 680; P & M II, pp. 404–7, 420, 427–34; Seipp 1454.040; Dialogus de Scacc., p. 114; 100 SS, p. 152 case 13.27, KB 27/401 m. 49. Exceptional liability of woman to pay a debt incurred whilst married, as H and W had quarrelled and lived apart: BNB pl. 568.

30 KB 26/206 m. 1 (IMG 2839); KB 26/206 mm. 5, 7 (IMG 2847, 2851); KB27/66 m. 18d (IMG 210); CP 40/104 m. 40 (IMG 85).

31 Seipp 1313.041ss, 1332.058 (Ds).

32 See, e.g., Seipp 1306.012rs; 1339.063rs; 1306.012rs; 1321.026. See also the differing spousal positions in Seipp 1340.203rs and 1340.265rs.

In relation to property, sometimes laypeople talked about land or chattels as if they belonged to a married woman.33 A good example of this is seen in a King’s Bench plea roll entry of 1483, recording that jurors at a sheriff’s tourn presented that a cleric entered Robert Skynner’s house with force and arms, assaulted his wife and feloniously took away 4 d., which was the wife’s money. In the King’s Bench, the defendant argued successfully that the indictment was insufficient to put him to answer, because it did not accord with the law of the land in relation to property and marriage.34 Nevertheless, the initial formulation showed that not everyone instinctively saw the wife as incapable of having her own money. In addition, medieval common lawyers themselves accepted that the interests of husband and wife were not entirely merged, and that there was a need for processes to limit the idea of husbandly control of property in some circumstances. Thus, the idea of ‘paraphernalia’ – personal property regarded as belonging to the wife – emerged to mitigate the effects of the growing idea that a wife could not own chattels,35 and some provisions were made to counter the possibility of husbands pressuring wives to part with property, or transferring ‘their’ land (though, despite Bracton’s optimism that procedures for the examination in court of a wife about to agree to the transfer of ‘her’ land would rule out untoward pressure by husbands, it is unlikely that such procedures sufficed to ensure that no wife would be so pressured, and their principal use may well have been as a protection for purchasers)36 or failing to act to protect their interests.37 No idea of unity or coverture was allowed to get in the way of royal interests: for example, the fact that the king had banished a woman’s husband did not stop the king suing her without him.38 There are also signals of an awareness that, while a court might feel constrained to deem a wife’s actions those of her husband, its members did not actually regard that as the truth of the matter. For example, a report of a 1306 case shows a judge holding that if the husband was absent when his wife made a transaction, it still counted as his deed.39 Other questions which lawyers found not to be solved by a unity doctrine, and which were, consequently, in need of debate, included: whether goods could be left ‘to the use of’ a married woman; whether she could have a bailiff or take profits, bail money to her own use or be attached by ‘her own’ property, the status of a gift between two parties who subsequently married, the wife’s ‘contractual’ dealings or wrongs to her goods prior to her marriage, the effect of one spouse’s felony or treason on the property rights of the other and the problems for women’s litigation which might be caused by disappearing husbands.40 Matters such as whether a wife could steal from her husband, or whether spouses could conspire together, were clearly regarded by lawyers as tricky rather than obviously answered by application of a unity doctrine.41 Likewise, creativity, rather than easy application of a unity doctrine, was to the fore in adaptations to procedures in the case of homage by married joint tenants: a late fifteenth-century law report suggests that the homage to the lord would be performed by the husband, and he would transmit it to his wife by kissing her.42

33 See, e.g., KB 27/401 m. 27 (IMG 6001).

34 KB 27/888 m. 12d (IMG 62).

35 Janet Loengard, ‘Which May be Said to be her Own’: Widows and Goods in Late Medieval England’, in Medieval Domesticity: Home, Housing and Household in Medieval England, ed. by M. Kowaleski and P.J.P. Goldberg (Cambridge, 2008), pp. 162–76, 163–4, notes policing of the boundaries of ‘paraphernalia’ and Seipp 1454.041 suggests a lack of generosity to women. See also Seipp 1497.006; 1302.030rs; 1318.092ss; 1428.015. P & M II, pp. 101–2, 409; SR I, p. 214; st. 4 H VII c. 24; SR II, p. 547; Bracton IV, pp. 30–9; 102 SS, p. 106; Baker, Introduction, p. 524; Yates, ‘Married Women and Their Landholdings’, p. 167; st. 34 Edward III, c. 16; Abstracts of Surrey Feet of Fines, 1509–1558, ed. by C.A.F. Meekings (Frome and London, 1946), pp. xxv–xxvii. Statute of Fines, 4 Henry VII, c. 24. See, e.g., Seipp 1313.489ss; 1312.137ss; 1330.574ss; 1330.640ss; 1344.137rs, 1346.095rs; 1421.111rog; 1429.094.

36 For a wife’s refusal to participate in a transfer, see Janet Loengard, ‘What Is a Nice ­(Thirteenth-Century) Englishwoman Doing in the King’s Courts?’, in The Ties That Bind: Essays in Medieval British History in Honor of Barbara Hanawalt, ed. by Linda E. ­Mitchell, Katherine L. French and Douglas L. Biggs (London, 2010), pp. 55–70, 64. Bracton, IV, 31; Cannon, ‘Rights’, p. 159; P & M II, 407. Cui in vita discussed, e.g., Seipp 1306.193rs; 1346.110rs; 1351.084; 1405.007; 1494.058; Joseph Biancalana, ‘The Origin and Early ­History of the Writs of Entry’, LHR 25 (2007), 513–56, 519, 523–4.

37 st. Westminster II c. 3, 40, 41, SR I, 73; SR I, 50; SR I, 91, P & M II, 404, 407.

38 Seipp 1399.002; 1336.182.

39 Seipp 1306.193rs.

40 100 SS, p. 161; Seipp 1412.032abr; 1431.168; 1461.008; 1440.006; 1428.015; 1312.094ss; 1337.011rs; 1292.124rs 1443.016. Spousal offences, property implications: Bracton II, p. 367; P & M II, p. 404; Seipp 1313.351ss. 1272.007ss; 1275.012ss; 1268.008ss; 1457.022; 105 SS, 29, p. 123; 129 SS p. 3; 102 SS, 135; 1347.199; Seipp 1302.203rs; 1339.050rs. Problems of absent men, proof of death: Seipp 1309.054ss; 1309.188ss; 1310.032ss; 1362.005ass; 1362.005ass; 1313.628ss; 1346.011rs; 1478.026.

41 Seipp 1345.188rs; 1364.012, 1443.119abr; Rose, Maintenance, pp. 144, 160.

42 Seipp 1478.026.

In sum, it is clear that there was no deep conceptual coherence in relation to the way in which married women were accommodated in the various different areas of common law activity. There is a striking similarity between the ability of medieval common lawyers to accommodate several cohabiting interpretations of the relationship between spouses and the conclusion of Seipp’s analysis of common law ideas of corporate personality, which noted that rather than ‘distinctive, consistent individual judicial philosophies’ on this matter, there seemed to have been ‘a consistent collective judicial commitment to preservation of conflicting philosophies and conflicting approaches’.43

One factor which stood in the way of formulating within the medieval common law the sort of monolithic theory of the effects of marriage on women’s legal rights which is shown in Blackstone’s famous statement is that medieval common lawyers had to fit their conception of women’s place within marriage into what was in some ways a more complex legal landscape. They had to consider the inter-relationship between the different classifications which might apply to one woman, to take an interest in the complexities which could arise when the rules about married women collided with villeinage, religious status, wardship, minority, employment status.44 Medieval treatises, reports, readings and moot cases showed a strong concern for the interface between villeinage and the rules concerning married women, exploring the status implications of a bondwoman marrying a free man.45 Cases from educational exercises featured free women marrying villeins, one particularly knotty scenario involving two villein brothers, a woman who marries them both, a lord, a secret pregnancy, twins, clergy and land rights.46 In this context, we might not be surprised that there was a less dogmatic and monolithic view on women’s status within marriage than would later be the case: the husband did not stand alone as the sole relevant authority figure in a woman’s life, in relation to whom she must be defined. In addition, medieval common lawyers clearly needed to be aware of the existence of alternative rules, local and ecclesiastical, which affected women, and would see that these sometimes allowed wives greater possibilities of independent action than they had in the common law.47 A world in which the common law courts had not yet achieved the predominance of the eighteenth-century institutions was not one in which a monolithic idea of ‘coverture’, on Blackstone’s lines, could hold sway. In addition, it is relevant that whether or not two people were in fact married was open to greater potential dispute in (say) 1300 than in Blackstone’s day (following the Hardwicke Marriage Act of 1753). Medieval plea rolls and law reports included many cases and hypotheticals concerning the implications for property or contractual actions, or trespass, of the existence or timing of marriage or divorce.48 Whether or not two people were married could be a matter of disagreement, and canon law might hold valid some ‘marriages’ which would be insufficient to ‘count’ at common law, for the purposes of actions for property rights (including women’s dower rights). Common lawyers showed an awareness of possible differences between jurisdictions, for example in the discussion in a dower case, Thornsett v. Whaite, in 1311.49 An example of a marriage which would probably have been valid as far as the Church was concerned, but which was not considered good enough to act as the foundation for rights to a dead man’s land under certain common law procedures, can be seen in a novel disseisin case of 1306: according to the jurors’ special verdict, there had been a sickbed marriage between a dying man and his ‘concubine’, without mass, without formal espousals. This, it was concluded, was insufficient to allow the couple’s son to take advantage of the assize.50 Canon law and common law had different concerns when answering questions about the validity of marriage. Common law procedure used a variety of methods to obtain an answer as to whether or not there had been a marriage, including sending questions to the ecclesiastical authorities, or asking for the decision of jurors, who might comment on the validity of a marriage based on whether a couple regarded themselves as married, or upon the information of their neighbours.51 We might conclude that the existence of the possibility of different answers to this fundamental question and different processes for answering it would tend to militate against a thoroughgoing and unassailable doctrine of coverture-as-unity, even if medieval common lawyers had been determined to insist upon it.

43 Seipp, ‘Formalism and Realism’, p. 51.

44 H arguing he could remove W from employment, e.g., Seipp 1464.049; 1355.245ass; 100 SS, xliv; CP 40/550 m. 173d.

45 Seipp 1302.103rs. Married women and property considered in readings: 129 SS, e.g. pp. 99, 102, 105.

46 See the fifteenth-century examples in 105 SS, e.g. pp. clii, clxi, clxxiii, 28, 32, 14 ff; 5, 5a–b.

47 On chattels, see, e.g., CP 40/719 m. 120d (IMG 1545), 85 SS, lxxi; Michael M. Sheehan, Marriage, Family and Law in Medieval Europe: Collected Studies, ed. by James K. Farge (Toronto, 1997), pp. 25–9; Glanvill VII, 5; Bracton II, p. 180, Fleta book II, c. 57, P & M II, 351–2, 420, 428–9; 100 SS 100, p. 131 case 13.8. Debate: Seipp 1311.295ss; Cordelia ­Beattie, ‘Married Women’s Wills: Probate, Property, and Piety in Later Medieval England’, LHR 37 (2019), 29–60; 18 SS, pp. 227, 229l; Hull; Marjorie K. McIntosh, ‘The Benefits and Drawbacks of Femme Sole Status’, JBS 44 (2005), 410–38; 82 SS, p. 131, local custom allowing married women to alienate acquisitions. 21 SS, pp. 102–6.

48 See, e.g., Seipp 1289.003ss; 1311.139ss; 1330.002; 1330.460ss; 1338.270ass; 1342.169rs; 1345.059rs, 1365.111; 1365.138ass; 1312.116ss; 1312.133ss; 1370.044; 1405.078; 1406.070;1440.003; 1495.002; JUST 1/642 m. 7 (IMG 2297); KB 27/176 m. 83 (IMG 5285); JUST 1/367 m. 36d (IMG 241); Seipp 1365.111. JUST 1/1066 m. 6 (IMG 3708); JUST 1/956 m. (IMG 7898). Statement on divorce rules: Seipp 1373.092.

49 31 SS, xvi, p. 38 no. 9.

50 P & M II, p. 381; CP 40/160 m. 203 (AALT IMG 433). See also CP 40/45 m. 23 (IMG 5884), JUST 1/1113 m. 36 (IMG 9344). On deathbed transactions, see Glanvill VII, 1. JUST 1/881 m. 2 (IMG 444). See, e.g., cui in vita action: JUST 1/367 m. 33d (IMG 236); JUST 1/955 m. 13 (IMG 7593).

51 Bracton III, p. 37. Questions sent to the ecclesiastical authorities, e.g., JUST 1/367 m. 5 (IMG 12); KB 27/558 m. 22, m. 22d (IMG 46, 275). Disputed marriages, e.g., JUST 1/367 m. 36d (IMG 241); Seipp 1365.111. JUST 1/1066 m. 6 (IMG 3708); JUST 1/956 m. (IMG 7898); JUST 1/1325 m. 60 (IMG 1202). Jurors’ narratives of disputes about marriage, e.g., JUST 1/1055 m. 15d (IMG 3232); KB 27/558 m. 22 (IMG 46); Seipp 1405.078.

There is a good case for seeing an overall ‘doctrine of coverture’ as an explanation after the fact, itself a ‘cover’ for a fairly disparate and sometimes inconsistent body of rules, liabilities and disabilities relating to married women. It is important to recognise this, so as to avoid an over-simplified longue durée view of conceptions of women’s position in marriage as one of linear progress away from an all-encompassing idea of coverture-as-unity in the medieval period, to a set of rules which moved increasingly towards treating married women as full individual legal subjects. Another consequence of seeing that there was not a straightforward, monolithic doctrine or understanding of coverture in the medieval common law is that it should give commentators on legal history, or history more widely, pause for thought before resorting to a ‘strict law v. more positive practice’ binary in the discussion of this particular aspect of the treatment of medieval women.


The late nineteenth-century legal historian Courtney Kenny borrowed a phrase from Shakespeare’s Taming of the Shrew to describe the husband’s right over the wife in medieval common law in terms of ownership and property: she was his ‘goods’, ‘chattels’, ‘house’, ‘household stuff’, ‘field’, ‘barn’, ‘horse’, ‘ox’, ‘ass’, his ‘anything’.52 Medieval women are also sometimes described in more modern works as having been the ‘property’ (or the fragile property’) of male kin or husbands, implying their assimilation to chattels.53 Given their subordinate position and the extensive rights over their bodies accorded to certain males, this is understandable, but there are limits to its utility.54 A very basic issue with such a claim lies with the idea of ‘property’ itself. It has been demonstrated that the place of ‘property’ and ‘ownership’ ideas in the medieval common law was not straightforward, nor easily to be assimilated to more modern understandings of these concepts (themselves controversial).55 If we can get past that difficulty, there is the problem of evidence of the use of ‘property-like’ language in relation to women. The language of chattels occurs occasionally in contemporary documents, such as the Mirror’s description of the abduction of nuns as ‘larceny’, but medieval women were not treated fully as chattels so as to be dealt with under procedures associated with movable goods.56 The idea of ‘people as property’ has been considered in the context of medieval English villeins, another area in which there are occasional uses of property language, suggesting a conception of the villein as chattel, or at least something appropriately considered in ‘property’ terms, but the ‘clear limitations’ of such an analysis has also been noted.57 Such criticism applies at least as much in the case of women. Seipp notes that common lawyers do not mention ‘property’ in one’s own person, or in a spouse or child, prior to the seventeenth century.58 In addition, while another ‘property-inflected’ word, ‘seisin’, is used in relation to a man being married to a woman, women are also described in equally ‘property-like’ terms as being ‘in possession of’ a husband.59 Without going into linguistic analysis for which I am unqualified, I make the tentative suggestion that the import of at least some of this ‘property talk’ (such as the ‘seisin/possession’ example) is the expression of a general idea of proximity or belonging rather than a subordinating, subject-object, relationship. The better view of the use of apparently ‘proprietary’ language of this sort is that it should not be taken to assimilate medieval interpersonal relationships with popular modern ideas of property or ownership.

52 Kenny, Effects of Marriage, p. 12, citing William Shakespeare, Taming of the Shrew Act III scene iii.

53 See, e.g., Scutt, Women and Magna Carta, p. 9; Cannon, ‘Rights of Medieval English Women’, p. 173; Bardsley, Women’s Roles, p. 140.

54 Emma Hawkes, ‘“She Was Ravished against Her Will, What So Ever She Say”: Female Consent in Rape and Ravishment in Late-Medieval England’, Limina 1 (1995), 47–54, 48, 51–2; Susan Brownmiller, Against our Will, Men Women and Rape (New York, 1975), p. 18.

55 Seipp, ‘Concept of Property’, p. 31. See also Legalisms, ed. by Kantor, Lambert and Skoda; T. Johnson, ‘Legal History and the Material Turn’, in Oxford Handbook of Legal History, ed. by Tompkins and Dubber, c. 27, p. 502; McSweeney, Priests of the Law, c. 3; Thomas J. McSweeney, ‘Property before Property: Romanising the English Law of Land’, Buffalo Law Review 60 (2012), 1139–99, 1143–4; Susan Reynolds, ‘Tenure and Property in Medieval England’, HR 88 (2015), 563–75.

56 Mirror, book I, c. 10, book II, c. 26; Garthine Walker, Crime, Gender and Social Order in Early Modern England (Cambridge, 2003), p. 140. There may be a slip into calling a wife a husband’s chattel in Seipp 1409.049 and 1440.077, though the wording is ambiguous. On the ‘women as property’ categorisation, see Emma Hawkes, ‘Preliminary Notes on Consent in the 1382 Rape and Ravishment Laws of Richard II’, Legal History 11 (2007), 117–32, 131.

57 Seipp, ‘Concept’, p. 51; Paul Hyams, Kings, Lords and Peasants in Medieval England: The Common Law of Villeinage in the Twelfth and Thirteenth Centuries (New York, 1980), pp. 1–2; Dialogus de Scacc, pp. 56, 101, 112, sets out the lord’s rights of control over his villeins and rights to their chattels, but stops short of explicitly designating the villeins themselves as chattels. Britton, book 1, c. 32 no. 5, however, does describe the villein himself as purement le chatel son seignur. Butler has rightly noted the use of the language of chattels and procedures of chattel recovery in relation to villeins. Sara M. Butler, https://legalhistorymiscellany.com/2019/08/15/how-to-tell-a-serf-from-a-slave-in-medieval-england/.

58 Seipp, ‘Concept of Property’, pp. 50, 85; Barham v. Dennis, Cro. Eliz. 770, 78 ER 1001 (1601).

59 CRR XX (1250), p. 263; Seipp 1310.117ss; P & M II, p. 146.


The rhetoric of ‘favour’ to women is found in the work of later commentators on the common law, and of historians, ranging from Blackstone’s claim that ‘the female sex’ was and had been a ‘great … favourite’ of the laws of England,60 and his statement that apparent limitations on (married) women were in fact a sign of ‘favour’, to modern historians’ emphasis on the generosity to widows of medieval dower.61 Statements of ‘favour’ to (some) women (and in some circumstances) do occur in medieval common law sources, but the reality of this favour and the assumptions lying behind assertions of favour must be interrogated. Such ‘favour talk’ is most commonly encountered in medieval common law sources in relation to the widow seeking dower.62 Bracton expresses the idea that ‘dower should be free’, the Mirror states that it should not be delayed, and emphasises its ‘tender nature’, and favouring dower is suggested on a number of other occasions.63 Changes made in the 1236 Provisions of Merton, dealing with problems in obtaining dower and the subject matter of dower, were portrayed as pro-widow reforms and the expansion of dower into Wales was depicted as a favour to Welsh women.64 Dower was portrayed in the late twelfth-century Dialogus de Scaccario as a reward for the widow’s modesty or chastity.65 Some common law comment on the need to help widows also echoes wider ideas of a duty to protect and succour such ‘miserable persons’, with an emphasis on pity for the stereotypically miserable widow in some sources.66 Such claims of protection or favour are not always present, however. Thus, common lawyers’ readings on the seventh chapter of Magna Carta, concerning widows, dower, quarantine and remarriage, are in general not in the language of favour, but of correcting particular mischiefs, derogations from what was seen to be the common law.67 There is some slight suggestion of favour as the justification for (some aspects of) dower in a mid-fifteenth-century reading dealing with a (socially elevated) widow’s right to a castle after her husband’s death. This right is stated to be given to her ‘in honour of matrimony’, or perhaps in relation to the ‘burden of childbirth’.68

60 Cannon, ‘Rights’, p. 158; Bl. Comm., book I, c. 15. See also, e.g., Somersetshire Pleas, p. xxiii.

61 Favour to married women was not accepted by all. See, e.g., Cleveland, Woman under English Law, p. 161.

62 Note, however, a report of a homicide case stressing generosity to women: Seipp 1321.124ss. For the developing rules of dower, see, e.g., Janet S. Loengard, ‘“Of the Gift of her ­Husband”: English Dower and Its Consequences in the Year 1200’, in Women of the Medieval World, ed. by Julius Kirshner and Suzanne P. Wemple (Oxford, 1985), pp. 214–55; Magna Carta and the England of King John, ed. by Janet S. Loengard (Woodbridge, 2010), 134 ff; Joseph Biancalana, ‘Widows at Common Law: The Evolution of Common Law Dower’, Irish Jurist 23 (1988), 255–329; Hudson, OHLE II, pp. 366, 447; Glanvill book VI; Bracton II, pp. 265–80, III, pp. 357–412. Britton, vol. Ii, p. xli, book 5 cc. 1–13. Litt. book I, c. V. Brand, ‘“Deserving” and “undeserving” wives’; Plucknett, Legislation, p. 121.

63 See, e.g., Bracton II, p. 179; Fleta book 2, c. 35; Britton book 5 c. 5, 2, c. 7, 4; Seipp 1292.080rs; 1342.040rs; 1310.108ss; 1310.222ss; 1307.063rs;1310.108ss; 1483.011; Bracton IV, p. 313, the special privilege of dower (favorem dotis). Dower is favoured: Fleta, book 5, c. 22; Seipp 1486.032; 1302.017rs: 1307.063rs. For rhetoric about (ineffective) pity for a poor woman, see Seipp 1310.144ss.

64 SR I, p. 1; Bracton II, p. 179; Fleta book II, c. 57. SR I, pp. 61, 67.

65 ‘Premium pudoris’Dialogus de Scacc. book II, c. 18, p. 173. Its special status (and ­connection to sexual purity) can, perhaps, also be read in the late fourteenth- and early fifteenth-century description of England as the Virgin Mary’s dos. Nigel Saul, Richard II (New Haven, CT, 1999), p. 307, uses ‘dowry’ to translate dos here, but ‘dower’ also seems possible.

66 Seipp 1410.127, Cokayn JCP, ‘the law is favorable to wives who ask dower, because … it is meant to be their living and sustenance’ P & M I, p. 110; Sheehan, Marriage, Family and Law, pp. 18, 23. 87 SS, p. 235 no 549.

67 132 SS, pp. 20–90.

68 132 SS, 31 propter honorem matrimonii et onus infantis.

Despite suggestions of generosity and connections to exalted constructions of widows, legal intervention in relation to them was clearly not focused only on maximising their interests. Early central intervention had often been connected to the king’s legal and financial rights in relation to widows, and when the common law’s focus broadened, also making rules for the property rights of widows without a direct relationship with the king, helping the widow as such was not the only concern.69 Assisting a widow to obtain her dower provided a benefit to later husbands. Fleta and Britton suggest a concern to make women well disposed to marriage as a reason for a ‘favourable’ approach to dower.70 A strategy of configuring the law on dower so as to encourage women to marry or remarry may not have been directed entirely to their happiness, but also to the economic well-being of those who might marry them.

There was never, in any case, a thoroughgoing commitment by the common law to furthering the interests of the widow. Common law and legislative sources show that at times the dowager or would-be dowager was to be helped, but at other times, the guiding principle seems to have been control and reduction of her rights.71 There was recognition that widows were vulnerable to a husband’s negligence or collusion with regard to potential dower lands.72 Nevertheless there were conflicting concerns that the widow was capable of misbehaving and causing trouble for the heir and others, by making a false claim of pregnancy, alienating the land, eloigning the heir, claiming too much land or failing to look after it, and fears that women would acquire a windfall by marrying a man who was close to death, or that those who had not been old enough or who had abandoned a husband for a lover, would claim dower.73 A lack of ‘favour’ might be detected in the insistence that entitlement to an action depended on a formal marriage, of the sort which could be certified by a bishop – perhaps showing a more stringent attitude than that seen in relation to those claiming as heirs, whose parents’ marriage was disputed; thus a secret marriage might work for succession but not dower.74 Also not obviously favoured were those whose husbands had been found to be outlaws, felons, traitors or villeins, those ‘widowed’ by a husband’s decision to become a monk and those widowed and dowered during their minority.75 An entitlement to dower did not mean that widows would obtain it without difficulty, or keep it.76 Common lawyers knew of and were interested in variations in award or exclusion from dower based on local custom or the alternative common law schemes of fixing dower.77 Choices were being made as to generosity or its lack in common law, though the reasoning behind them is seldom articulated.78 Sometimes reporters and lawyers disagreed with judges about dower, though with no clear pro- or anti-widow policy discernible.79 Overall, while there are statements of a general idea of favouring dower, the rules do not give a strong message of practical application of that idea.

69 SR I, pp. 1, 6, 226, 233, 239; Hudson, OHLE II, p. 234; Widows as possible abductees: ­Seabourne, IMW, c. 4.

70 Fleta book 5, c. 22; Britton book 5, c. 1.1.

71 See, e.g., Loengard, ‘Rationabilis Dos’, p. 72; ‘What did Magna Carta Mean to Widows?’; Coss, Lady, p. 144.

72 Bracton III, p. 392; SR I, pp. 74, 77; SR II, p. 583.

73 Glanvill VI, 18; Bracton II, pp. 103, 268; III, pp. 360, 395, 396, 400, 404–5. See also Fleta book V cc. 25–33; Litt., book 1, c. 5, 9; st. Merton c. 2, SR I, p. 276; st. Gloucester, 6 Edw. 1, Chapter 5; st. Westminster II cc. 4, 7, 14, 34, SR I, pp. 74, 77; st. 11 Hen. VII, c. 20, SR II, p. 583; BNB, i, xix, 89; Seipp 1314.002ss; 1314.119ss; 1334.191; 1307.058rs, 1330.204ss, 1368.003. 1312.149ss; 1406.037; 1410.127; 1486.032. Brand, ‘Deserving’; Mitchell, Portraits, 8; Seabourne, ‘Copulative Complexities’; Admeasurement and Waste: see, e.g., 33 SS, p. 104 no 616; 132 SS, p. 85.

74 Bracton II, p. 266; Britton, book V, c. 7, 5. Elaboration of defences: ‘not married’, e.g., CP 40/423 m. 74 (IMG 149); JUST 1/408 m. 64 (IMG 733); ‘husband is alive’: see, e.g., JUST 1/826 m. 1 (IMG 5016); CP 40/287 m. 469 (IMG 952). ‘P is excommunicate’: CP 40/193 m. 82d (IMG 167); ‘you made a fine’, CP 40/287 m. 196 (IMG 396); ‘elopement with adulterer’: JUST 1/416 m. 2 (IMG 7); CP 40/305 m. 216 (IMG 432); Wmr II c. 34; Seabourne, ‘Copulative Complexities’. ‘Coke, the Statute’, Brand, ‘Deserving’; 6 Ric. II st. 1 c. 6; Walker, ‘Punishing Convicted Ravishers’, 237; J. Post, ‘Sir Thomas West and the Statute of Rapes 1382’, Bulletin of the Institute of Historical Research, 53 (1980), 24–30; Hawkes, ‘Preliminary Notes’. CP 40/195A m. 364 (IMG 735); CP 40/195B m. 24 (IMG 41). This is 1312.186ss. Treason/felony objections, e.g., Bracton II, p. 367; Seipp 1327.091; CP 40/164 m. 251 (IMG 512); JUST 1/457 m. 22 (IMG 4818); JUST 1/956 m. 22d (IMG 7919).

75 Forfeiture for H’s felony/treason: Bracton II, p. 367; Archer, ‘Rich Old Ladies’, 20. See, below at XXX and, e.g., Seipp 1327.091; CP 40/164 m. 251 (IMG 512); JUST 1/457 m. 22 (IMG 4818); JUST 1/956 m. 23d (IMG 7919). 19 SS 131. Seipp 1344.136rs, CP 40/339 m. 448: no favour for a woman unhappy at dower accepted for her when she was a minor, though the idea of ‘favour’ for dower was brought up on her behalf.

76 See, e.g., 33 SS p. 104 no 616.

77 Seipp 1346.238rs; 1309.079ss. Possibly more generous: customs of Kent: SR I, pp. 223, 227. Seipp 1292.045rs; 1306.127rs; 1313.101ss; 1314.054ss; 1330.080; 1333.021; 1339.236rs; 1345.077rs; 1342.203rs; 1465.126:1330.689ss (of whole). Seipp 1305.116rs; 1330.585ss; 1289.032ss (doubt, MC); 1366.108; 1285.014ss; 1304.178rs; 1309.074ss; 1309.164ss; 1332.127; 1339.109rs; 1480.031. Peter L. Larson, ‘Widow-right in Durham, England (1349–1660)’, Continuity and Change 33 (2018), 173–201, 173; 114 SS, cxxi–cxxvii; Smith, ‘Women’s Property Rights’, pp. 181–6 and ‘Coping with Uncertainty: Women’s Tenure of Customary Land in England c. 1370–1430’, in Enterprise and Individuals in Fifteenth-Century England, ed. by Jennifer Kermode (Stroud, 1991), pp. 43–67.

78 Cokayn JCP in Seipp 1410.127: dower was for support for the widow, not connected with issue.

79 Seipp 1311.016ss; 1312.009ss; 1329.090.

Influential historians, looking at dower from the perspective of (male) heirs who might be affected by it, have emphasised the idea of its generosity to women. For example, a notable article on dower in the fifteenth century, despite admitting that ‘[n]o record survives of contemporary opinion on the existence of dowagers and their effect on succession’, describes dower as ‘one of the … most destructive of baronial incidents’, treating dowagers as a problem, and as causing ‘havoc’ in the normal course of succession and a particular dowager as keeping a ‘stranglehold’ on estates.80 It should, however, be remembered that there are other possible perspectives, and the assumption that there was a simple policy or model of inheritance from which dower was a troubling derogation needs some reassessment.81 Although we can attribute to medieval men in a position to dictate rules and their application a preference for male privilege and power through landownership, and although there was an impetus towards keeping family land together, and dynastic consolidation, that does not mean that there were no other factors seen as worthy of consideration. There seems no need to rule out the existence of feelings of duty and affection in medieval men towards their female kin, nor is there a need to assume the absence of a perception of the desirability of assisting those of their own number who might marry widows. There were situations in which heirs might bridle at the longevity of a dowager, but the assumption that this was normal is unwarranted. In addition, more exaggerated ideas of favour to women in relation to dower are certainly at odds with the statistics which have been taken from legal historians’ painstaking study of common law records, which suggest a clear pattern of decline in the fifteenth century.82 The work of legal experts outside the courtroom, from the medieval period onwards, cut down the dominance of dower in relation to provision of land for widows, and newer modes of securing their support did not replicate even the rhetoric of favour.83 When one moves beyond their landed provision, through the vehicle of dower, the common law showed considerably less interest in widows. In relation to the widow’s entitlement to personal property on the husband’s death, there was a retreat from common law from intervention to enforce provision via the ‘widow’s part’: men’s control over chattels and freedom of testation, subject only to local custom, came to the fore from the later fourteenth century.84 Favour to widows was not a clear priority.

80 Rowena E. Archer, ‘Rich Old Ladies: The Problem of Late Medieval Dowagers’, in Property and Politics: Essays in Later Medieval English History, ed. by T. Pollard (Gloucester, 1984), pp. 15–35, 16, 22, 26, 28; Dower as ‘an irregularity in the feudal system’; ­Mitchell, Portraits, pp. 58, 131; K.B. McFarlane, The Nobility of Late Medieval England (Oxford, 1973), p. 66. The idea that courts’ time was occupied, implicitly unduly, by ‘litigious ­widows’ can be seen in Hall’s comments in Glanvill, p. 184.

81 See Eileen Spring, ‘The Heiress-at-Law: English Real Property Law from a New Point of View’, LHR 8 (1990), 273–96; Eileen Spring, Law, Land and Family: Aristocratic ­Inheritance in England 1300–1800 (Chapel Hill, 1993); Joel T. Rosenthal, Patriarchy and Families of Privilege in Fifteenth Century England (Philadelphia, 1992), p. 198.

82 See Michael Phifer, ‘Property, Power and Patriarchy: The Decline of Women’s Property Right in England after the Black Death’, Ph.D. dissertation (University of Houston, 2014), especially at pp. 81, 166 and c. 6.

83 Baker, Introduction, p. 290; Loengard, ‘What Is a Nice … Englishwoman Doing’, p. 69; Linda E. Mitchell, ‘Maud Marshall and Margaret Marshall: Two Viragos Extraordinaire’, in The Ties That Bind, ed. by Mitchell and others, pp. 121–42, 140. Changing scope of dower: Linda E. Mitchell, Portraits of Medieval Women: Family, Marriage and Politics in England 1225–1350 (New York, 2003), pp. 126, 131; Coss, Lady, p. 146.

84 Women and wills: Bracton II, pp. 178–80; Glanvill, vii, 5; SR I, p. 1: Magna Carta 1215, c. 26; Hudson OHLE II, p. 378; P & M II, pp. 347–50, 404–5; 427–34; R. H, Helmholz, ­‘Married Women’s Wills in Later Medieval England’, in Wife and Widow, ed. by Walker, c. 7. pp. 165–82. R.H. Helmholz, ‘Legitim in English Legal History’, University of Illinois Law ­Review 3 (1984), 659–74; Hyams, ‘Maitland’, p. 227. Loengard, ‘Rationalbilis dos’, p. 62. Some fourteenth- and fifteenth-century cases affirm the widow’s part, though there are contrary statements: P & M II, pp. 347, 352–3; Seipp 1308.026ss, 1311.295ss, 1324.062. 1356.097; 109 SS, p. 108; Seipp 1366.095; CP 40/198 m. 82 d (IMG 184) (1313, mentioning Magna Carta). Mirror book V, c. 2, implies that the action de rationabili parte bonorum should but does not currently accrue to a man’s widow and children. Bracton suggested that stricter ­regimes might be appropriate in London, ‘for a citizen will hardly amass wealth if he is bound to leave it to an ill-deserving wife or to idle and uninstructed ­children’: II, p. 180.

While there is at least some rhetorical claim of favour to widows, the sources of medieval common law make no claim at all that women in general were ‘great favourites’. Later chapters will expand upon some of the claims which have been made in relation to supposed ‘indulgence’ of women in relation to culpability for offences, and why they may now be regarded as exaggerated.85 Claims of generosity to women in other contexts may be equally unconvincing. Thus the requirements for the physical presence of wives, and their affirmation of agreement for transfers of land which might be against their interests, presented as checks that their participation was willing were probably more useful in protecting the position of third party acquirers of land they were in ensuring genuine consent on the part of the woman, and are likely to have allowed through some cases of forced or fraudulent transfer.86 Pity for women may be mentioned in reports, but it did not always result in generous treatment.87

Tudor legal theorists would suggest as a maxim the law’s favour towards pregnant women,88 but this cannot be seen as having been the organising principle of medieval common law in relation to their treatment. As will be discussed in Chapter 6, there was a long-standing policy delaying the execution of pregnant felons until after their delivery, but this is to be understood as a ‘favour’ to the foetus, and the avoidance of guilt for the wrongful ending of a (potential) life for those sentencing and carrying out the execution, rather than as a favour to the woman. A reduction in punishment for pregnant women was mandated by statute in one case, and there were examples of kinder than necessary provision for pregnant women prisoners, and some accommodation for their participation in litigation.89 Nevertheless, there is little support for an idea that there was, or it was thought appropriate for there to be, particularly generous overall treatment of pregnant women. There was no apparent inhibition on much non-capital punishment, and plea rolls contain complaints suggesting that pregnant women might be closely confined, placed in stocks, or subjected to corporal punishment, which could lead to severe injury to woman mother and foetus, or even to death, as was alleged in the case of a pregnant Sussex brewster, who, having broken the assize of ale, was said to have been punished and beaten to such a degree that she and the child died.90 Pregnancy might be also regarded as a legitimate reason to terminate employment.91 At times, the common law’s attitude to the pregnant woman seems closer to suspicion than favour, with accusations of deceit against those women claiming to be pregnant with a husband’s posthumous child, and a procedure for checking this, couched in terms not of possible understandable error but of deliberate dishonesty.92 So common was suspicion of women’s chastity and so frequently was it impugned in relation to succession that the common law developed presumptions to deal with questions of legitimacy and bastardy. There is some arguable generosity to women in this area, in that some statements and case records seem to allow fairly slim chances of legitimate impregnation by a husband to determine in favour of legitimacy: for example, in a situation in which a husband had been away from his home for three years and his wife bore a child during this absence, the child might be deemed legitimate, on the basis that it was possible that the husband might have sneaked back to father it.93 Apparently excessive gestation periods may not have been allowed to ‘bastardise’ the child of a widow (and thus condemn the widow’s reputation) quite so easily as later accounts, such as that by Coke, might claim.94 An example of the process of later simplification of a more complex medieval position can be seen in the treatment of a 1287 case John de Radewell v Henry son of Beatrix, Ralph Pyrot et al.95 This involved a dispute as to whether X was the son and heir to a landholder Y. Doubt had been raised about this based on the length of time from Y’s death to X’s birth, which was 40 weeks and 11 days, as well as Y’s absence and poor health at the end of his life. The calculation about legitimacy here was not just about time, but an assessment of the possibility of procreation in all of the circumstances. Nevertheless, it was later simplified to a 40-week rule: Coke presented the simplified rule, and this became the common understanding of what had been the medieval position.96 There might therefore have been more generosity in such cases in the medieval period than in some later periods, but it should be noted first that legal discourse in this area has many prurient and bawdy elements and seems to be founded on a poor opinion of women’s morality, and second that any generosity in such decisions is at least as much concerned with reluctance to ‘bastardise’ heirs as it is with favour to pregnant or recently delivered women.

85 See Chapter 6.

86 Hyams, ‘Maitland’, p. 225. See, e.g., a woman disputing that she agreed to a transfer by fine: JUST 1/302 m. 24 (IMG 8235). On the requirement that women surrender land in person, not by attorney: Seipp 1330.764ss.

87 Reporters noting judicial pity: Seipp 1353.165ass. Pity but no help: Seipp 1310.144ss. Reference to a deceased woman’s poverty: Eyre of London 1244, Case 100.

88 Baker, OHLE VI, pp. 778–9.

89 See, e.g., Butler, ‘Pleading’, pp. 144–5; CPR 1436–41, pp. 225, 472; CCR 1346–9, 609. ­Pregnancy as a reason for non-appearance (dower case defendant): CP 40/154 m. 92d (IMG 773). Compensation for having been cited in court Christian over a debt and made to pay for a respite while pregnant: JUST 1/573 m. 107d (IMG 843). SR II, p. 637 19 H VII c. 12, c. 8; Baker, OHLE VI, pp. 778–9. Indignation at alleged mistreatment of pregnant women: RP V, 476. Report noting a judicial trip to the bedside of a pregnant widow bringing an appeal of homicide, to learn whether she wished to press for capital punishment of the offender. Dialogus de Scacc., p. 83; Seipp 1402.045; 1430.058, 1440.115; 1443.060. 1481.125; KB 27/248 m. 8d (IMG 193).

90 JUST 1/926 m. 17 (IMG 4351) (acquitted). See also KB 27/469 m. 14d (IMG 301). ­Miscarriages allegedly caused by ecclesiastical punishment: Goldberg, Women in ­England, pp. 118; JUST 1/111 m. 28d (IMG 3822).

91 CP 40/645 m. 39 (IMG 611).

92 Bracton II, pp. 201–2, 204; Fleta book 1 c. 15; Britton book II cc. 7–19; book 3 c. 2 no 13–15; Maud wife of Thomas of Dunster v. Isabel widow of Walter of Upham): C 245/1, no. 23, Michaelmas 1279’, in PROME. Common law cases: 60 SS, cliii; BNB pleas 1503, 1605. Retrospective questioning about a former pregnancy: Seipp 1367.029, CP 40/427 m. 408. 37 SS, p. 220, states that a widow falsely claiming pregnancy by H will lose her dower: 1314M. See the case of Joan, widow of Bogo le Veel, accused of having withheld the heir to her deceased husband, the child, allegedly at that point unborn: CP 40/195A m. 364 (IMG 735); CP 40/195B m. 24 (IMG 41); Seipp 1312.186ss.

93 Bracton II, 35, 186; Britton book III, c. 2, 14–15; BNB pl. 1229; P & M II, pp. 398–9.

94 Bracton II, pp. 204–5; III, p. 311; Fleta book 5 c. 6; book 1 c. 6, Seipp 1421.081rog, CP 40/642, m. 439 and d (IMG 892 and 1929), Machon v Holt 50 SS pp. 24–30. Serjeant Rolf’s idea that pregnancy could last seven years: Seipp 1422.042ss.

95 58 SS, p. 29; JUST 1/11 m.10d (IMG 115); KB 27/124 m. 13d, m. 14 (IMG 7660, 7475); KB 27/142 m. 26, m. 27, m. 26d (IMG 3008, 3010, 3137).

96 PlacAbbrev., p. 221, notes only that gestation has exceeded 40 weeks, but at p. 234 notes lack of access.


Women were subjects of the common law and subjects of interest for common lawyers. They were seen both as a united group, part of a generally unquestioned, two sex model, and also, at times, as separate subsets. Discussion of the law’s relationship to categories of women, and, in particular, wives and widows, itself shows rich veins of thought about unity and division, sometimes making use of metaphors to explain rules, but not (yet) presenting a narrative of being ruled by such metaphors. Legal discussion suggests intellectual interest and a desire to vaunt the common law’s favour towards particular groups of women, but this does not translate into a general policy of furthering their interests, and nor would this have been understood to be a necessary or appropriate aspiration.

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