Part II

Audible and inaudible; credible and not credible: women in the legal process

F.W. Maitland felt able and inclined to summarise medieval women’s role in relation to the common law in very few words, stating that, while, as far as ‘private rights’ were concerned, they were ‘on the same level as men, though postponed in the canons of inheritance’, they lacked ‘public functions’. This lack was summarised with customary elegance: ‘In the camp, at the council board, on the bench, in the jury box there is no place for them’.¹ A ‘sure instinct’ had brought the law to this position by the reign of Edward I, and continuities in the situation of women ‘until our own time’ were emphasised.² In this summary, a questionably simple distinction between private rights and public functions was employed. Roman law had used such terminology, and it is sometimes seen in medieval legal sources, but neither the Roman distinction nor the modern version maps well onto medieval legal practice.³ Modern legal scholarship has routinely questioned the extent to which ‘the public/private distinction’ represents a clear dividing line,⁴ and historical scholarship has also come to adopt a critical attitude to it, especially in relation to the lives of noblewomen and queens.⁵ Studies of medieval queens, in particular, have shown the difficulty of drawing a clear boundary between ‘public’ and ‘private’. Is Edward II’s queen, Isabella of France, discussing the rights of her husband with members of her French family, to be considered to be acting in a ‘public’ or a ‘private’ capacity, for example?⁶

1 P & M, I, p. 468, my italics. This is echoed, for example, in Chadwick-Healey’s ­introduction to Somersetshire Pleas (1897), pp. xxii–xxiii.

2 P & M, I, p. 468.

3 D. 1.1.2; Bracton II, pp. 25–6; 8 SS, pp. 29–30, 32. For the lack of distinction between property and public law in medieval England, see, e.g., Mitchell, Portraits, p. 12; Seipp, ‘Concept of Property’, p. 80; Robin Chapman Stacey, Law and the Imagination in ­Medieval Wales (Philadelphia, 2018), p. 135. For an early modern distinction between ius privatum, ‘the sinews of property’, and ius publicum, the ‘sinews of government’, see F. Bacon, A Preparation toward the Union of Laws (London, 1641) in The Works of Francis Bacon ed. by James Spedding and others (London, 1872), pp. 731, 733.

4 See, e.g., Lloyd’s Introduction to Jurisprudence 14-00; Jason N.E. Varuhas and Shona ­Wilson Stark, The Frontiers of Public Law (Oxford, 2020) especially Part III and c. 14: Carol Harlow, ‘Public and Private Law: A Redundant Divide’.

5 See, e.g., Emma. Hawkes, ‘Judging Female Judges’, pp. 93, 101–2; Jane Tibbets Schulenburg, ‘Female Sanctity: Public and Private Roles, c. 500–1100’, in Women and Power in the Middle Ages, ed. by Mary Erler and Maryanne Kowaleski (Athens, GA, 1988), 102–25, p. 105. Everard, ‘Public Authority’, p. 125; Erler and Kowaleski, Gendering the Master Narrative.

6 For Isabella’s role, see, e.g., J.R.S. Phillips, Edward II (New Haven, CT and London, 2010), pp. 221, 471; E.A.R. Brown, ‘Diplomacy, Adultery and Domestic Politics at the Court of Philip the Fair’, in Documenting the Past, ed. by J.S. Hamilton and P.J. Bradley (Woodbridge, 1989), pp. 62–5. For temporary ‘public’ roles of queens, including regency, see, e.g., W. Mark Ormrod, Edward III (New Haven, CT and London, 2011), pp. 47–8; Benz, Queen Consort, Queen Mother, pp. 195–7, 205–18. The idea of a female monarch was not out of the question for Edward I, who entertained the possibility of one of his daughters succeeding him: Phillips, Edward II, p. 41.

Maitland’s statement also tends to tidy up and render timeless women’s role in the common law, the stark negatives of the second half of the sentence ‘balanced’ by the strained positives of the first part, and ‘the law’ is itself presented as a gender-neutral force. Despite the passing of more than a century of women’s participation as non-party ‘officials’ in the legal system since the time Pollock and Maitland was written, and despite copious scholarship from legal academics and historians on women, gender and law in the interim, later legal historians have not always ventured far from Maitland’s summary.⁷ This section of the book will argue that there is more to say and to ask about medieval women’s ‘non-party’ involvement in common law litigation. A history of common law should include a consideration of women’s presence and absence in those ‘public’ functions relating to law. It should be acknowledged that ‘[a]s might be expected, the position of woman as a citizen was not very exactly defined’,⁸ but, though evidence may be particularly sparse and ‘definite answers’ on several points may be difficult to obtain, this should not lead to avoidance of the issue.

7 See, e.g., Baker, Introduction, p. 499.

8 Cleveland, Woman under the English Law, p. 71.

Chapter 3 will consider women’s participation and exclusion from participation in what might, with a degree of approximation, be described as the ‘public functions’ relating to common law cases: judge, lawyer, witness and juror. There is some artificiality in separating these functions from those of some litigants, who might be seen, or might present themselves, as acting for the king’s peace or the public good, but for the sake of convenience and the avoidance of excessively unwieldy chapters, consideration of women’s participation ‘as parties’ will be deferred until the third part of the book, and will be considered in Chapters 4–6.

3

‘By the mouth of man’: women as non-party actors in litigation

The report of a dower case of 1342, probably that brought by Edith, widow of William Oky, against Henry son of Roger Oky, includes discussion of how to resolve the question of whether or not a man, on whose death depended entitlements to land, was actually dead. The reporter noted that there had been an attempt by the claimant to use documentary evidence – which was specified as a certificate from the civic authorities of Bristol – to prove that the husband had died. Pleading this, however, was not regarded as an appropriate move. According to the court, the matter had to be proved ‘by the mouth of man’: ‘Il coveynt en tiel cas qe la chose soit prove par bouche de home’.⁹ The main point being made was one about the importance of orality and the physical presence of those testifying, but the use of home, uncertain, as I have argued, in its position with regard to the inclusion of women, highlights a tendency which will be seen more than once in this chapter. Where non-party participation in litigation at common law is concerned, the possible inclusion of women is frequently left ambiguous, whether by the use of words which might be taken in different ways, as here, or by non-exhaustive (or contradicted) statements of exclusion or by apparent silence. Coupled with the existence of a range of misogynist judgements on women’s character and capacity, ready to be adopted from wider intellectual traditions and used in the common law, this meant that the door was left open either to inclusion or to exclusion of women as it seemed appropriate to those with the power to decide. In this chapter, we will see both the reality of exclusion of women from non-party roles as authoritative speakers, witnesses and decision makers in common law litigation and also the possibility of their inclusion, in limited circumstances, dictated or accepted by (male) authorities. The ‘mouth of man’ in the courtroom might or might not speak with the voice of a woman.

9 ‘In such a case, the matter must be proved by mouth of man’: Seipp 1342.124rs; probable record is CP 40/330 m. 284 (IMG 581), though note the geographical variations.

Judging: viros sapientes et timentes deum¹⁰

Though ideas of ‘judging’ and ‘judicial functions’ are not immutable, varying with the scope of the legal system, and the distribution of tasks and decisions between judges and others such as juries, in general, the most important of the authoritative speakers of the law in the medieval courtroom was the judge, and amongst judges, those at the peak of importance in the common law were the judges of the superior courts at Westminster and other royal tribunals.¹¹ The identities of these judges are well documented in plea rolls and in commissions. These documents show that there was indeed, as Maitland stated, ‘no place’ for women on their benches. Rather than leaving the matter there, however, perhaps dismissing it as being ‘obvious’ and therefore uninteresting, it is appropriate for a modern account of the history of the common law to consider the nature of and reasons for the exclusion of women from judicial functions.

While there were statements in Roman law and canon law sources of a ban on women acting in a judicial capacity,¹² there are few comments on this in medieval common law sources. Such occasional justifications or discussions as there are show differing views as to the rationale and the extent of exclusion of women. The late thirteenth-century Mirror of Justices did state an explicit prohibition on women acting as judges. It explained this by reference to Scripture, centring the objection on women’s sinful nature, which rendered them unqualified to judge others, and on the inappropriateness of the occupation of God’s seat by a woman.¹³ Apart from this statement, there is little discussion of the matter in the common law context thereafter, until the fifteenth-century judge Sir John Fortescue’s De Natura Legis Naturae, written in the mid-1460s, included a more elaborate argument against women’s suitability as judges. This was a step in his ‘Lancastrian’ argument that women could not reign, so that claims to the throne traced through women were invalid, a convenient blow to the claims of the House of York (though potentially troublesome in terms of the English claim to France).¹⁴ Despite his political agenda, Fortescue’s views on women and judging are of interest here in that they were presumably such as he considered would be regarded by his audience as plausible. They were presented in an imaginary court case, a three-way dispute about succession to a kingdom, between a king’s daughter, her son and the king’s brother. The ‘anti-women’ side in the case, split between the voices of the king’s grandson and his brother, was shown drawing on civil law, Biblical and historical examples, and Aristotelian ideas to argue that women were not suitable as (superior) judges because of their essential subordinate and irrational nature, which fitted them only for ‘humbler’ and more domestic tasks.¹⁵ They also stressed women’s supposed reluctance to impose the death penalty as a reason against them acting as judges.¹⁶ The King’s daughter was allowed to suggest that the Biblical restrictions were to be understood as falling upon married women – not women in general – that they were not eternal and essential, and that not all women were less capable than all men, but of course none of these points prevailed.¹⁷

10 ‘Wise and God-fearing men’: Bracton II, p. 306.

11 On judges and their functions, see Paul Brand, ‘Judges and Judging, 1176–1307’, in Judges and Judging, ed. by Brand and Getzler, pp. 16–43; McSweeney, Priests of the Law.

12 D. 5.1.12; 50.17.2; Eltjo Schrage, ‘Women Do Not Sit as Judges, or Do They – The Office of Judge in Vincentius Bellovacensis’ Speculum’, Fundamina 16 (2010), 377–89; Goodrich, ‘Gynaetopia’, p. 278; R.H. Helmholz, ‘Judges and Trials in the English Ecclesiastical Courts’, in Judicial Tribunals, ed. by Mulholland and Pullin (Manchester: Manchester University Press, 2003), pp. 102–16, 110–11; Emma Hawkes, ‘Judging Female Judges: Sir John Fortescue’s Vision of Women as Judges in De Natura Legis Naturae’, Limina 8 (2002), 93–112.

13 Mirror, book 2 c 2, c. 3.

14 Fortescue, DNLN; Margaret Kekewich, Sir John Fortescue and the Governance of England (Woodbridge, 2019), p. 188. See also Goodrich, ‘Gynaetopia’, p. 281; Hawkes, ‘Judging Female Judges’, p. 93.

15 Hawkes ‘Judging Female Judges’, pp. 95–7; Fortescue, DNLN, e.g. Part I c. 3, p. 192, Part II cc. 3, 8–9, 62.

16 Hawkes, ‘Judging Female Judges’, pp. 37, 98; Fortescue, DNLN, Part II c. 3.

17 Hawkes ‘Judging Female Judges’, pp. 94–6, 98; Fortescue DNLN Part II cc. 39–40.

In this work, Justice is portrayed as female. Fortescue gave short shrift to any idea that a judicial role for women was supported by this womanly presentation of Justice, however, playing down this gendered representation as a grammatical accident: justitia is a feminine noun in Latin.¹⁸ The text does, however, go further than simply reflecting the gendered nature of Latin, including clear and sometimes elaborate metaphors of justice, and different sorts of law, as female, and showing these female presences in an authoritative, judicial role.¹⁹ It has been argued that such portrayals suggest a less-than-totally negative attitude to the possibility of female judging. A somewhat similar argument has been made in relation to the appearance of female judging in literary works relating to ‘Courts of Love’, suggesting that this undermines any pose of being unable to contemplate a female judge. While we may consider that the female adjudication in the ‘Courts of Love’ was probably assumed to be a fanciful idea, serving to enforce rather than undermining the understanding that women could not judge, the more serious tone and purpose of Fortescue’s work means it can less easily be dismissed as part of a carnivalesque tradition.²⁰ Nevertheless, Fortescue’s metaphorical usages can hardly be thought to outweigh the negative view of female judging which he presses.

18 Hawkes ‘Judging Female Judges’, pp. 105–6; Marina Warner, Monuments and Maidens: The Allegory of the Female Form (London, 1985), pp. 63–70, 146–76; Fortescue, DNLN, Part 2 c. 1, p. 249.

19 DNLN, Preface, Part I c. 42, p. 239; Part I cc. 10, 15, 20, 29, 45, p. 200.

20 Andreas Capellanus on Love, tr. by P.G. Walsh (London, 1982); Peter Goodrich, ‘Law in the Courts of Love: Andreas Capellanus and the Judgments of Love’, Stanford Law Review 48 (1996), 633–75, 673; Goodrich, ‘Gynaetopia’, p. 282; McSweeney, Priests of the Law, pp. 194–5. ‘The Court of Love’, in The Chaucerian Apocrypha, a Selection, ed. by K. Forni (Kalamazoo, 2005), pp. 7–58 (l. 118); Van Houts, ‘Gender’, p. 213; H.L. Bordier, Philippe de Remi, sire de Beaumanoir: jurisconsulte et poëte national du ­Beauvaisis ­1246–1296 (Paris, 1869), pp. 268–70. See also Geoffrey Chaucer, ‘Wife of Bath’s Tale’, ­especially lines 888–918.

Potentially more troubling to any claim that there was a blanket rule against women acting as judges were the scriptural, historical and contemporary examples of women having some judicial role. Fortescue felt obliged to engage with the scriptural examples, and, like earlier commentators, concluded that Biblical support for women’s judging should not be held to provide a valid precedent for contemporary practice.²¹ Less attention was paid to the historical examples, from England or elsewhere, of rulers’ wives acting in a judicial capacity. Earlier English queens had in fact been accepted in broadly judicial roles, whether or not formally recognised as regent.²² Since the holding of certain roles and jurisdiction was considered to ‘run with’ land, other women might also inherit some judicial roles.²³ As Maitland pointed out, some women had rights over manor courts or, at an early period, had succeeded to hereditary shrievalties, which included a judicial function.²⁴ Perhaps the most interesting example of this is that of the Clifford heiresses in the late thirteenth century, who succeeded to a shrievalty and apparently took some action in person to head off jurisdictional incursions, though the legal functions associated with the role were generally delegated to men.²⁵ Fortescue dealt with women succeeding to a father who was a duke, earl or marquis, and thus having the right and responsibility to judge their subordinates. He attempted to draw the sting of this possibility, for his purposes, by portraying such female jurisdiction as acceptable, because the women in question were still subject to superior male rule in the shape of the king’s justice.²⁶ While there were indeed ways in which common law courts could correct perceived mistakes or injustices in lower-level courts,²⁷ however, there were limits to such processes, so that considerable power to judge was left to these courts. Fortescue’s explanation is not a strong one.

21 Judges 4:5; Joy A. Schroeder, Deborah’s Daughters: Gender Politics and Biblical Interpretation (Oxford, 2014); Gratian, Decretum, C. 15, q. 3. Corpus Iuris Canonici, Vol. I, ed. by Emil Friedberg (Graz, 1959), p. 750; Summa Parisiensis, C. 33, q. 5, c. 17, ed. by Terence P. McLaughlin (Toronto, 1952), p. 255; Schrage, p. 387; Van Houts, ‘Gender’, p. 217.

22 Van Houts, ‘Gender’, pp. 201, 217; P & M I, p. 466; Hudson, OHLE II, pp. 274, 500, 521; The Brut, ed. by F.W.D. Brie II, pp. 239; Benz, Queen Consorts, pp. 185, 188–9, 195; D.D.R. Owen, Eleanor of Aquitaine: Queen and Legend (Oxford, 2000), p. 45; Howell, ­Eleanor of Provence:, pp. 112–24; Elizabeth M. Hallam, The Itinerary of Edward II and His Household, 1307–1328, List and Index Society, 211 (London, 1984), p. 7; Maxwell-Lyte, Historical Notes, pp. 295–6; Maurer, Margaret of Anjou: Queenship and Power, p. 100. For French examples, see Alan Harding, Medieval Law and the Foundations of the State (Oxford, 2001), p. 114; Van Houts, ‘Gender’, p. 217; Metz, ‘Le statut de la femme’, p. 104; Schrage, ‘Women’, p. 386. For courts of queens and noble ladies, see e.g. CP 40/193 m.208 (IMG 419); Seipp 1324.053, 1328.077; 1343.230rs; 1353.073; 1425.007; 1448.025; 1456.019; SC 8/213/10642.

23 Bracton II, p. 281.

24 P & M I, p. 466; Baker, Introduction, p. 500; Louise Wilkinson, ‘Women as Sheriff’, in English Governance in the Thirteenth Century, ed. by Adrian Jobson (Woodbridge, 2004), pp. 111–24; Hawkes, ‘Judging Female Judges’, pp. 99–100.

25 Douglas C. Jansen, ‘Women and Public Authority in the Thirteenth Century’, in Queens, Regents and Potentates, Women of Power I, ed. by Theresa M. Vann (Woodbridge, 1993), pp. 91–105, 91, 96; KB 27/104 m. 11.

26 Fortescue, DNLN, Part 2 c. 15 and c. 23; Hawkes, ‘Judging Female Judges’, pp. 101–2. J. Everard, ‘Public Authority and Private Rights: Women in the English Royal Courts of Justice, 1196–1250’, in Sexuality and Gender in History: Selected Essays, ed. by Penelope Hetherington and Philippa Maddern (Western Australia, 1993), p. 129.

27 Baker, Introduction, p. 147.

On top of his partisan purpose in writing critically about women’s capabilities, we should note that Fortescue did in fact recant from his overall judgment on the issue of women reigning in his ‘Declaration on Writings from Scotland’, when the second triumph of Edward IV made it necessary to find an accommodation with the new regime.²⁸ While showing that he was not prepared to run the risk of execution over the issue of women’s rule, however, this does not suggest a genuine change of heart, and nor does it detract from the fact that the misogynist views he put in the mouths of his characters in the earlier work must have been regarded as plausible and familiar to common lawyers.²⁹ It is clear that the implications of his new view – that women could rule because, as it had now occurred to him, they were in fact always under the authority of a man, i.e. the Pope – were not followed through to a conclusion with regard to their judging capabilities.

It is interesting to note that it would appear that the idea of female involvement in judicial functions was not wholly out of the question; what was unacceptable was their presence in higher, common law, judicial roles. These were part of a masculine domain.³⁰ Less of a problem appears to have been seen with either the holding of roles which might involve some incidental lower-level judging, or the granting to women of responsibilities which might be seen as adjacent to or connected with judging. Thus, they might be ordered to apprehend ‘criminals’, they might certainly hold the right to have the instruments of justice, gallows and tumbrel, and might keep a gaol, and they also occasionally occupied quasi-judicial roles in arbitration or mediation.³¹

28 The Works of Sir John Fortescue, ed. by T. Fortescue (2 vols, London, 1869), p. 535; CPR 1467–77, p. 296.

29 See John Fortescue, Francis Gregor, et al., De Laudibus Legum Angliae: A Treatise in Commendation of the Laws of England (Cincinnati, OH, 1874), pp. xxxvii, xxxix.

30 Sixteenth-century suggestions that women could be judges in a wider range of jurisdictions: 132 SS, p. lxxi.

31 CPR 1321–24 p 350; Mitchell, Portraits, p. 116. See, e.g. 103 SS Case 34.5; KB 27/214 m. 73d; Seabourne, IMW, pp. 172–7; SC 1/23/27. Nuns running sanctuaries or as temporary gaolers: SC 8/224/11191; KB 27/491 m.22d (IMG 393). Seipp 1468.042; van Houts, ­‘Gender’, p. 212, Coutumes de Beauvaisis, c. 41, paras. 1287–8.

Lawyers: hommes de la ley

As is well known, the common law came to be dominated by professional lawyers over the course of the medieval period.³² Within this developing, professionalising world, the names and nature of roles were not static. Thus, for example, although there were some women acting in a role labelled ‘attorney’ in medieval records, or being put in the place of an absent person in litigation or standing in for a husband who was incapacitated, this did not denote the ‘professional’ role which it would later signify.³³ Although, as a recent edited collection has highlighted, there were many ways in which women might participate in intellectual pursuits and in leadership, there is no sign of women making a living as hommes de la ley or sage de la ley in the medieval common law: they were not ‘legal professionals’ in the sense of being legal clerks, serjeants at law or apprentices.³⁴ Medieval women might certainly have a functional – perhaps in some cases a sophisticated – knowledge of the law relating to themselves and their families,³⁵ but they had no opportunity to learn and practise the increasingly specialised skills of the common lawyer. Generally, this went without saying, but the same two sources mentioned above in relation to their views on women as judges also had something to say on women as lawyers. The Mirror of Justices expressed a view that women should not be pleaders, essoiners or attorneys, and Fortescue’s De Natura Legis Naturae also ruled out their participation as legal representatives.³⁶ One might infer from this exclusion an assessment of women as incapable of performing the intellectual work required, an objection to their speaking in public and perhaps a particular feeling of the inappropriateness of their speaking for a man.³⁷

32 See, e.g., Baker, Introduction, c. 10.

33 P & M I, pp. 192, 212, 218; YB 13 Edw. 3, Rolls Series, p. 186 (1339); Year Book 18 Edw. 3, Rolls Series, Introduction by Luke Owen Pike, p. xxxviii.; 3 SS, p. 56, pl. 141; Hudson OHLE II, p. 587; CRR XV 1233–7, p. 172 no 820 (W attorney for H). and p. 63 no 287; Loengard, ‘What Is a Nice … Englishwoman Doing’, p. 56 notes that the 1242–5 Curia Regis Rolls have only one woman attorney for her husband, in a plea of land: no. 1475 (1244). See also 30 SS, p. 158; Seipp 1321.226ss; SC 8/31/1504; SC 8/303/15130.

34 Women Intellectuals, ed. Kerby-Fulton and others. See Anthony Musson, ‘The Role of Amateur and Professional Judges in the Royal Courts of Late Medieval England’, in Judicial Tribunals, ed. by Mulholland, vol 1, pp. 37–57, 38.

35 See, e.g., Amanda Bohne, ‘Networks of Influence: Widows, Sole Administration, and Unconventional Relationships in Thirteenth-Century London’, in Women Intellectuals, ed. by Kerby-Fulton and others (Woodbridge: D.S. Brewer, 2020), c. 13.

36 Mirror, book II, cc. 4, 5, 30, 31; Hawkes, ‘Judging’, p. 93. Co. Litt. 128a, book II, c. 11 s. 196, book II, c. 3 p. 45.

37 1 Tim. 2:11–12; D 3.1.5; D.16.2.5. On women’s incompetence in court, see Fortescue, DNLN, p. 302 Part 2 cc. 3, 13, 41 (ignorance of law, ‘simplicity’, excessive emotion).

There was a sense in which women’s ability to perform the task of legal representation was indeed limited, not as a result of any innate lack of capacity, but because of the way in which the legal profession developed and the choices made in the course of this development. Increasing professionalisation of legal process in common law courts including the move to (French/Latin) written record served to increase and formalise exclusion of women.³⁸ Likewise, the structuring of the legal profession around the Inns of Court, deliberately and exclusively male institutions, served to entrench the shutting out of women. All of this apparently made it unimaginable for a woman to become a professional lawyer. Women were sometimes given a semi-representative role, for example, being deputed by co-executors to render charters on behalf of them all, but not a ‘professional’ one.³⁹ The fact of the Inns’ exclusively male atmosphere and the specific forms of masculinity they embodied has been emphasised in recent historical scholarship.⁴⁰ Both the masculinity of such legal institutions and the concomitant absence of women have, however, been of less interest to classical legal history, even after a century of moves towards inclusion of women within the legal profession in England and Wales. Discussions of the ‘rise’ of the legal profession, which have been at the heart of the mission of classical English legal history in the twentieth century and beyond have tended not to note the simple point that such ‘progress’ is not necessarily a positive matter for all.⁴¹ More sociologically inflected ideas which see both sides of professionalism have not found a place in this legal history.⁴² From one point of view, it is ‘stating the obvious’ to say that professionalisation means shutting out the unprofessional, but failing to give weight to this fact of exclusion perpetuates it within our legal historical narratives.

38 On professionalisation and ‘secularisation’ of the judiciary, see Brand, ‘The Age of ­Bracton’, in The History of English Law, ed. by Hudson, pp. 65–89; Paul Brand, The Making of the Common Law (London, 1992), cc. 1, 3. On the masculine nature of the professions, see BMOC. On women’s lesser literacy and exclusion from academia, see Wilkinson, Women, p. 11.

39 In 26 SS, p. 14, case 11, Montfort v. Basset, CP 40/184 m. 52d.

40 E. Amanda McVitty, ‘Engendering Erudition: Masculinity and Legal Authority at ­England’s Medieval Inns of Court’, Gender and History 32 (2020), 447–64.

41 See, e.g., Paul Brand, The Origins of the English Legal Profession (Oxford, 1992); J.H. Baker, The Legal Profession and the Common Law (London, 1986). For ‘rise’ images, see, e.g., W. Hill, ‘The Rise of the English Legal Profession’, TRHS 3 (1874), 98–162; ­Roscoe Pound, ‘What Is a Profession? The Rise of the Legal Profession in Antiquity’, Notre Dame Law Review 19 (1944), 203–28; W. Prest, The Rise of the Barristers: A ­Social History of the English Bar 1590–1640 (Oxford, 1996). For fines for having women in the Inn, see Records of the Honorable Society of Lincoln’s Inn: The Black Books, ed. by ­William Paley Baildon, James D. Walker and Ronald Roxburgh (London, 1897), IV, pp. 66, 89 (though note the society laundress: vol 1, p. xxi).

42 For more modern contexts, see Kate Leader, ‘From Bear Gardens to the County Court: Creating the Litigant in Person’, CLJ 79 (2020), 260–87; Chris Brooks, Lawyers, Litigation and English Society since 1450 (London and Rio Grande, 1998), p. 186.

Medieval women’s own views on the developing and specialising practice of common law are mostly beyond recovery, as is their engagement with legal sources. It would be very interesting to know of precursors to the law-book ownership of Winifred, mother of Sir Edward Coke, but studies of women’s book ownership do not seem to have tackled this issue yet.⁴³ No doubt, on the whole, women had no choice but to accept and submit to the institutions around them, but it does not seem impossible that some might have taken a similar view to that of Margaret Starre, present in the marketplace of Cambridge in 1381 as charters were burned, who is said to have ‘gathered the ashes of the burning documents, scattered them to the winds’, exclaiming ‘Away with the skill of the clerks, away with it!’⁴⁴ No records disclose signs of women attempting to enter legal professions: the story appears to be less like that of the guilds of relatively ‘mechanical’ medical men in France, who struggled to keep out women when the latter tried to practice, and more like the situation of the academically trained and highly literate medical specialists described in Green’s study of ‘women’s medicine’, whose monopoly of the requisite education meant that their role was entirely secure from female incursions.⁴⁵ In the case of common lawyers, centuries of male exclusivity would follow, with the legal professions even slower than the medics to open their doors to English women.

Jurors, witnesses and other creditworthy speakers

As well as judges and legal professionals, the legal system of medieval England relied on the participation of a group of ‘lay’ individuals whose function involved speaking the truth. We may conveniently label them with familiar terms, ‘jurors’ and ‘witnesses’, though we should not assume that the modern function of ‘juror’ or ‘witness’ can be found unproblematically in the medieval common law system. There has been a long discussion of the extent to which the function of ‘juror’ in the medieval common law overlapped with what a modern observer would class as that of ‘witness’, i.e. the extent to which a juror came to court to impart matters seen or known as opposed to coming to be informed by others.⁴⁶ The ‘modern’ distinction between courtroom witnesses (providers of evidence) and jurors (makers of decisions based on evidence from others) was not clearly present until at least the sixteenth century.⁴⁷ In addition, the modern lawyer’s conception of ‘acting as a witness’ amalgamates a number of functions – giving sworn testimony in court, being examined and cross-examined by lawyers and having the testimony weighed up and applied or discounted in reaching a verdict – which were not necessarily seen as pertaining to one role, with a single set of rules, in the medieval common law.⁴⁸ Scholars have noted the lack of existing contemporary accounts of criminal procedure and of such matters as the use of witnesses, and there is equally little on the provenance of evidence in ‘civil’ cases.⁴⁹ Despite these layers of uncertainty, however, there are some discernible facts and enough evidence to make some general suggestions about women’s role in these areas.

43 Allen D. Boyer, ‘Sir Edward Coke 1552–1634)’, ODNB; … alle the bokes that I haue of latyn, englisch, and frensch: ‘laywomen and their books in late medieval England’, in Women and Literature in Britain, 1150–1500, ed. C.M. Meale (1993), pp. 159–82.

44 C.H. Cooper, Annals of Cambridge, vol. 1 (Cambridge, 1842), p. 121.

45 Geneviève Dumas, ‘Les femmes et les pratiques de la santé dans le ‘Registre des plaidoiries du Parlement de Paris, 1364–1427’, Canadian Bulletin of Medical History 13 (1996), 3–27; Monica H. Green, Making Women’s Medicine Masculine: The Rise of Male Authority in Pre-Modern Gynaecology (Oxford, 2008), pp. xiii–xiv.

46 Daniel Klerman, ‘Was the Jury Ever Self Informing?’, in Judicial Tribunals in England and Europe, 1200–1700, ed. by Maureen Mulholland and Brian Pullan (Manchester, 2003), pp. 58–9; Anthony Musson, ‘Twelve Good Men and True? The Character of Early Fourteenth-Century Juries’, LHR 15 (1997), 115–44, 126; Edward Powell, ‘Jury Trial at Gaol Delivery in the Late Middle Ages: The Midland Circuit, 1400–29’, in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. by J.S. Cockburn and Thomas A. Green (Princeton, NJ, 1988), pp. 78–116, 115. Green, ‘Retrospective on the Criminal Trial Jury’, pp. 370–4; Baker, OHLE VI, pp. 361–2; David J. Seipp, ‘Jurors, Evidences and the Tempest of 1499’, in The Dearest Birth Right of the People of England: The Jury in the History of the Common Law, ed. by J.W. Cairns and G. McLeod, (Oxford: Hart, 2002) c. 5.

47 Barbara J. Shapiro, ‘Oaths, Credibility and the Legal Process in Early Modern England: Part One’, Law and Humanities 6 (2012), 145–78, 153.

48 See, e.g., 21 SS, pp. xxx–xxxii; Jenkins, ‘Towards the Jury’, p. 27.

49 Bellamy, Criminal Trial, p. 8. Fortescue’s criticism of civilian systems’ use of witnesses (rather than juries), Fortescue, De Laudibus Legum Angliae cc. 21, 31.

Women were not jurors, in the sense of being summoned to ‘try’ the issue in the normal course of procedure in land cases or other ‘civil’ cases at common law, nor were they petty or presentment jurors in ‘criminal’ cases.⁵⁰ The one female institution described as a jury – the ‘jury of matrons’ for assessing whether or not a woman was pregnant with a ‘quick’ foetus – is important, but limited in its scope, not being given the task of deciding on the substance of a case in the ‘criminal’ sphere and often being subject to male supervision in its ‘civil’ incarnation, at least in the thirteenth century. It is dealt with below. The Mirror of Justices states a prohibition on women jurors in the general sense, but a specific attempt at explanation of their exclusion from jury service is not easily to be found before Blackstone’s intellectually unsatisfying statement that they are ineligible propter defectum sexus.⁵¹ Medieval statutory provisions relating to jury qualification have nothing to say about women: their concern is ensuring the presence of enough jurors of sufficient property and proximity.⁵² Over the course of the medieval period, a larger body of males may have become possible jurors: the ‘democratizing’ of the criminal trial jury has been noted.⁵³ This could only widen the gap between the participation of men and women in the legal process, since there was never any suggestion of women serving as trial jurors. We should not see the exclusion only through the lens of modern ideals of civic participation, since there are many indications that being a juror in medieval England was burdensome and possibly risky, and that not being put on a jury was seen in some quarters as a favour.⁵⁴ Nevertheless, given the increase in scope of the activities of the jury (or jury-like institutions) throughout the medieval period, drawing significant and increasing parts of the male population into contact with government and law while excluding women meant that there was an increasing gap between male and female engagement with the machinery of the legal process, making participation in the common law in a ‘non-party’ way increasingly more masculine.⁵⁵

50 Fleta book II c. 12: if needed, villeins could be on coroners’ juries, but no suggestion women could be.

51 Mirror book I c. 17; Bl. Comm. book III, c. 23; Judy M. Cornett, ‘Hoodwink’d by Custom: The Exclusion of Women from Juries in Eighteenth-Century English Law and Literature’, William & Mary Journal of Women & Law 4 (1997), 1–89, 15.

52 See, e.g., st. Westminster II c. 38, SR 1, p. 89; st. 21 Edw. I (1293), SR I, 113; st. 28 Edw. I, c. 9, SR I, p. 139; st. 34 Edw. III c. 4, SR I, p. 365; st. 42 Edw. III c. 11, SR I, p. 389; st. 2 Hen. V c. 3, SR II, p. 188, st. 1 Ric. III c. 4, SR II, p. 479; st. 11 Hen. VII c. 26, SR II, 590; Masschaele Jury 130.

53 Green, Verdict, p. 22. Clearly, only men were included.

54 See, e.g., Hyams, ‘Maitland and the Rest of Us’, p. 227, P & M I, pp. 483–4.

55 Masschaele, Jury, c. 5.

Medieval common law did not leave a definitive account of suitable and unsuitable witnesses,⁵⁶ so that it is difficult to assess with any specificity the thinking behind rules or conventions as to qualification for the role.⁵⁷ Early royal inquiries might sometimes have used female witnesses. Evidence deriving from women was accepted, in the Domesday inquests and in twelfth-century inquiries into widows and children over whom the king had rights.⁵⁸ Common law records of the later medieval period did not generally include comment on witnesses, if they were present. Reports may give fleeting references to witnessing. For example, a 1315 dower case referred to the need for ‘witnesses present at a marriage’. No qualifications beyond presence at the marriage were mentioned, but in fact only men were recorded as having been used.⁵⁹ Elsewhere, the emphasis is on witnesses being a certain age and having assets by which they might be distrained.⁶⁰ Given prevailing property regimes, the latter of these criteria favoured male witnesses. Jury lists, where these exist (and except in those relating to the ‘jury of matrons’, who might be classed, in modern terms, as witnesses as much as jurors), feature only men.⁶¹

56 See: Helmholz OHLE I, c. 5 and pp. 604–25; Mike Macnair, ‘Vicinage and the Antecedents of the Jury’, LHR 17 (1999), 537–90, 554, and Klerman, ‘Was the Jury Ever Self-­Informing’, p. 74.

57 Bellamy, Criminal Trial, p. 25. Note also that the common law idea of ‘testimony’ was not only a human process, records ‘testify to’ facts: Seipp 1309.124ss; 1309.180ss; 1311.020ss.

58 Van Houts, ‘Gender’, 208; Robin Fleming, Domesday Book and the Law. Society and Legal Custom in Early Medieval England (Cambridge, 1998), p. 260, no. 1658; p. 45, n. 66; Rotuli de Dominabus et Pueris et Puellis de XII Comitatibus, ed. by J.H. Round (London, 1913).

59 Seipp 1315.064ss; CP 40/211 m. 75 (IMG 150).

60 Seipp 1342.124rs (querying of underage witness). Distraint: Seipp 1318.021ss; 1334.065 st. 12 Edw. II, c. 2, SR I, p. 177. The requirement for landownership emphasised in relation to jurors: Seipp 1309.137ss.

61 Men disqualified from legal process because of misbehaviour as jurors: Glanvill II, 19; Seipp 1350.147, 1332.204ass; 1356.139ass; Jonathan Rose, ‘Litigation and Political ­Conflict in Fifteenth-Century East Anglia: Conspiracy and Attaint Actions and Sir John Fastolf’, JLH 27 (2006), 53–80, 61–2; 58 SS, liv–lxxi; David Millon, ‘Positivism and ­Historiography of the Common Law’, Wisconsin Law Review (1989), 684–700, 686.

The common law did not articulate whether and when women could be witnesses.⁶² Medieval ‘learned laws’, which had a more clear-cut ‘witness’ function, included more overt statements. Canon law sources stated a prohibition, based on the barring of women from acting in ‘civil or public functions’.⁶³ Even here, however, there is not one simple attitude to women’s participation. There were statements against women witnessing on grounds of overall weakness or mental inconstancy, but the matter was not beyond argument, and civil and canon law sources often set out exclusions, only to give copious exceptions to them, and to assume that women would in fact give evidence at times, since the weight of their evidence was also discussed.⁶⁴ English church court material shows that women did perform witnessing functions in ecclesiastical legal process, including making depositions, and occasionally acting as a sort of ‘expert witness’, examining men’s bodies, in cases in which impotence was alleged, and those of women, in relation to virginity.⁶⁵ In making any comparison with the common law, it should be borne in mind that ‘witnessing’ here might be done outside the court setting, and so, while concerns about women’s character and capacities might apply in both jurisdictions, concerns about authoritiative public speech did not.⁶⁶ Other bodies of ‘secular’ law show both explicit exclusion of women from witness roles and also a range of explicitly ‘allowed female witnessing areas’.⁶⁷ Norman and Welsh law sources, for example, both included explicit limitations on women’s capacity to act as a witness and explicit permission for them to act in this way in particular circumstances: in cases concerning pregnancy, ‘deflowering’, live birth, marriage and proof of age in the case of Normandy and in relation to virginity, but explicitly not as surety or testifier in relation to a man, or as compurgators in cases of theft or for homicide in the case of Wales.⁶⁸ Sources relating to practice in Brittany have been taken to suggest acceptance of women if no man was available,⁶⁹ and Beaumanoir’s late thirteenth-century Coutumes de Beauvaisis grudgingly accepted the value of women’s testimony as confirmation of male testimony or where there was no male testimony available, and considered the special issues relating to the credibility of women’s testimony with regard to a husband or kinsman.⁷⁰ English manorial courts also gave women a considerably lesser role than men.⁷¹

62 Butler, Forensic Medicine, pp. 130–1. P & M 1, p. 467 (suit).

63 Van Houts, ‘Gender’, pp. 201–20, 202–3; Gratian, Decretum, Part ii, Causa 33, question 5, no. xvii (Corpus luris Canonici, ed. A. Friedberg (Leipzig, 1879), p. 1255; women should not act as witnesses, even in marriage litigation; if they did so, their evidence should be treated with scepticism. Roman law implicitly countenanced the idea of female witness at a trial: D. 50, 17, 2; D. 22.5.4; 22.5.18.

64 James Brundage, ‘Juridical Space: Female Witnesses in Canon Law’, Dumbarton Oaks Papers 52 (1998), 147–56; Helmholz, OHLE I, pp. 339–40; C. Donahue, ‘Proof by ­Witnesses in the Church Courts of Medieval England: An Imperfect Reception of the Learned Law’, in On the Laws and Customs, ed. by Arnold, (Chapel Hill, NC: University of North Carolina Press, 1981), pp. 127–58, 130; G.R. Evans, Law and Theology ­(London, 2002), p. 149; Sarah B. White, ‘The Procedure and Practice of Witness Testimony in English Ecclesiastical Courts, c.1193–1300’, Studies in Church History 56 (2020), 114–30; Kane, Popular Memory, p. 49; Walter Ullman, ‘Medieval Principles of Evidence’, LQR 62 (1946), 77–87, 81 (civilian sources). Note the greater value given to male than to female testimony in the case of a clash: Donahue, ‘Proof by Witnesses’, p. 131, Tancred, Ordo, 3.12. On decreasing use of women’s testimony: Kane, Popular Memory, p. 50; Goldberg, Women in England, p. 38.

65 Donahue, ‘Proof by Witnesses’, pp. 151–2; Goldberg, Women in England, pp. 58–80, 103–17, 156; Kim M. Phillips, ‘The Breasts of Virgins: Sexual Reputation and Young Women’s Bodies in Medieval Culture and Society’, Cultural and Social History 15 (2018), 1–19, 10; Bronach Kane, Impotence and Virginity in the Late Medieval Ecclesiastical Court of York (York, 2008).

66 Helmholz, OHLE I, p. 338; White, ‘Procedure and Practice’, p. 117.

67 Van Houts, ‘Gender’, pp. 210–11; Coutumes de Beauvaisis, c. 40, para. 1259, c. 5, para 185; c. 29, para. 815; ch. 39, paras 1175–6, 1182; Walter Ullman, ‘Defence of the Accused in the Medieval Inquisition’, Law and Jurisdiction in the Middle Ages, ed. by G. Garnett (Aldershot: Ashgate, 1988), no. xv, 481–9, at 486.

68 Le Grand Coutumier de Normandie, ed. by Judith Everard (Jersey, 2009), cc. 41, 66, 121, 123, 125. Jenkins, Hywel Dda, The Law, pp. 49, 57, 60. See also Christine Ekholst, A Punishment for each Crime: Gender and Crime in Swedish Medieval Law (Boston, MA, 2014), p. 21: general exclusion, exceptions including live birth.

69 Judith Everard, ‘Sworn Testimony and Memory of the Past in Brittany c. 1100–1250’, in Medieval Memories: Men, Women and the Past, 700–1300, ed. by Elisabeth van Houts (London and New York, 2013), c. 4.

70 Elisabeth van Houts, ‘Introduction’, in Medieval Memories, p. 6; The Coutumes of Philippe de Beaumanoir, tr. by F.R.P. Akehurst (Philadelphia, PA, 1992), Chapter 39, no. 1197, p. 433; Coutumes de Beauvaisis, Chapter 39, para. 1182.

71 Wilkinson, Women, p. 139.

Common law treatises, to the extent that they discuss witnesses and evidence, usually assume masculine subjects, and rarely have anything to say about women in this context.⁷² Bracton’s expression of concern about poor sources of information for juries, for example, relates to credence being given to the words of those who are unworthy, not to the words of a woman.⁷³ Reports of medieval common law cases occasionally mention female evidence being taken, in the sense of women being questioned in relation to information they might be able to give about an offence. In a case of homicide from 1235, the record suggests that witnesses were examined one by one, and notes that these included ‘two women and a girl’.⁷⁴ Appeal cases involved women in telling sometimes lengthy stories, and show some blurring of the ‘witness’ and ‘accuser’ roles, especially in relation to widows’ appeals for the death of their husbands. Thus, for example, Alice, wife of Ellis of Ipswich, showed that, as she was on her way to market, she heard men plotting her husband’s death, then saw the attack and death.⁷⁵ In this context, as we will see in Chapter 5, it was, until the fourteenth century, necessary for women to cast themselves in the role of eye-witness to the offence or demise. Other areas of legal practice show regular use of male witnesses only; for example, although the procedure varies in some ways, records of witnesses to deal with disputes as to whether somebody is in fact alive or dead in dower and some other land cases appear to include male witnesses only.⁷⁶ Whether or not there was thought to be a rule against women witnesses, there might well be good tactical reasons not to use women as witnesses, if their evidence was liable to be disbelieved, in the event of a clash with that of men.

72 Glanvill VII, 6 (wills). Note the similar lack of clarity in relation to young witnesses: Seipp 1342.124rs; CP 40/330 m. 284 (IMG 581). Bracton IV, p. 248, rules out members of one household, but says nothing about sex.

73 Kamali, Felony, p. 261; Bracton II, p. 404. The passage uses masculine plurals.

74 F.W. Maitland, ‘The Murder of Henry Clement’, EHR 10 (1895), 294–7; Somersetshire Pleas, p. 21.

75 62 SS, p. 305, CRR VII, pp. 49–50.

76 See, e.g., JUST 1/1045 m. 44d (IMG 1635); JUST 1/60 m. 4 (IMG 1561); CP 40/92 m. 138d (IMG 735); 59 SS no 192.

There are some discussions of women bearing witness – and their rejection in this capacity – in relation to the proof of the villein status of men. In a case in the plea roll of the Lincolnshire eyre of 1271–2, men claimed as villeins are shown objecting to two women (their sisters) being used to prove their villein status.⁷⁷ Records and reports of Ralph of Lamplugh v. Thomas Bowman, a dispute as to an individual’s free or villein status, from the 1279 eyre of Northumberland, pronounced that women were excluded from being witnesses in such cases. It gave two purported justifications for this: the ‘facts’ that women are of a ‘more delicate nature than men’ and that ‘the male … is more worthy than the woman’.⁷⁸ The reports do not suggest a full ban on female evidence in all cases, however. It is acknowledged that female witness might be heard in matrimonial disputes. It also appears that there was perceived to be a particular problem with women contributing to a decision regarding a man,⁷⁹ because men (and ‘men’s blood’) were inherently superior to them and theirs.⁸⁰ Fleta too stressed the fact that the inappropriateness of female participation was in relation to male status.⁸¹ Such an idea seems to have been influential elsewhere,⁸² and seems to combine two separate strands: the inferiority of women and the particular lack of ‘fit’ of their pronouncing upon men.⁸³ Possible support for female witness with regard to status of men may, however, be found in the case of John Powderham, a man claiming to be (or to be related to) Edward II, who was executed in 1318. One of the chronicle sources dealing with the episode states that both his father and his mother were brought to court to swear to his origins, at his trial before the king and council. Clearly this was not a normal common law proceeding, and it was presumably the fact that the mother would be best placed to know that she, and not a royal lady, had given birth to John which led to her inclusion rather than a general concession as to the credibility of female witness, but it does show some worth being placed upon female testimony in this area, despite expressions of reluctance to use it which can be seen elsewhere.⁸⁴ There is also occasional discussion and evidence of women as witnesses in relation to reproduction, pregnancy or gynaecological state of other women, presentment of Englishry and the murdrum fine.

77 The objection is not decisive, and the case is tried by jury. JUST 1/483 m. 3 (IMG 1965).

78 JUST 1/648 m. 7 (IMG 2718); JUST 1/ 645 m. 3 (IMG 2444); JUST 1/1059 m. 47 (IMG 4485); Seipp 1279.005ss. See 122 SS pp. 67–70; P & M II, p. 668.

79 122 SS pp. 67–70; P & M II, p. 668. JUST 1/648 m. 7 (IMG 2718) and JUST1/1059 m. 47 (IMG 4485); JUST 1/645 m. 3 (IMG 2444); Seipp 1279.005ss.

80 Seipp 1279.005ss. On ‘greater worthiness’ of male blood (with regard to inheritance): Seipp 1306.136rs.

81 Fleta book 2, c. 51; Britton book 1, c. 32 no. 20.

82 Welsh Law of Women, p. 19; Jenkins, ‘Towards the Jury in Medieval Wales’, in Dearest Birth Right, ed. by Cairns and G. McLeod, c. 2, p. 37. Goldberg, Women in England, pp. 123, 185 (purgation). Local jurisdictions: 18 SS pp. 185–6, 196, 21 SS p. xxx. P & M I, pp. 467–8; RP I, 146–7. (canonical purgation). P & M loc. cit state that ‘apparently in the king’s court a woman had to find male oath-helpers’, citing BNB, pl. 7: the latter shows that a woman did use men, though it is not clear that she was obliged to do so.

83 Everard, ‘Public Authority’, p. 127; LHP p. 135; Magna Carta 1215 c. 39.

84 Childs, ‘Welcome My Brother’, p. 152.

There is interesting evidence about women’s witness in connection with an aspect of the property rights of men: tenancy ‘by the curtesy of England’. A man claiming this right to hold his wife’s lands for life was required to have produced a live child with her during their marriage.⁸⁵ If there was a dispute as to whether a baby, now dead, had ever lived, would the word of women, likely, in many cases, to be the only first-hand and immediate witnesses of life or its absence, be acceptable?⁸⁶ There are statements from reports of cases in the 1270s and 1280s which suggest the exclusion of women’s testimony, and perhaps the exclusion of evidence derived from women, in curtesy cases:

[W]omen are not received by inquisitions in the king’s court …, nor can it be established to the court whether there was a child born alive or not, unless it has been by men either seen or heard to cry by them …⁸⁷

Women are not admitted to proof in the king’s court in such a case.⁸⁸

85 Baker, Introduction, pp. 290–1; Hudson, OHLE II p. 788; Glanvill VII, 18; Gwen ­Seabourne, ‘It is necessary that the issue be heard to cry or squall within the four [walls]: Qualifying for Tenancy by the Curtesy of England in the Reign of Edward I’, JLH 40 (2019), 44–68.

86 See Seabourne, ‘It is Necessary’, pp. 62–7. On men’s exclusion (or not) from childbirth, see Monica H. Green, ‘“Diseases of Women” to “Secrets of Women”: The Transformation of Gynecological Literature in the Later Middle Ages’, Journal of Medieval and Early Modern Studies 30 (2000), 5–39; Green, Making Women’s Medicine Masculine; F. Harris-Stoertz, ‘Pregnancy and Childbirth in Twelfth-and Thirteenth-Century French and English Law’, Journal of the History of Sexuality 21 (2012), 263–81, 263.

87 Extract from John Cantilupe’s Case, 1276–77 in P & M II, pp. 412–18, 416; Placitorum Abbreviatio (1811), p. 267. See also KB 27/29 m. 1. (IMG 8053) KB 27/30 m. 2 (IMG 8197).

88 JUST 1/1245 m. 95d (IMG 6462) (1284).

These statements do not suffice to show timeless hostility to the idea of female witness in such cases, however. They may represent a new and short-lived initiative in the reign of Edward I, and appear to relate only to women giving evidence in court proceedings themselves, as opposed to providing information which could be used in legal proceedings. Even in the later thirteenth century, there are cases which show some credence for female evidence in this context. Assuming that there was not a man present at the birth, at least some consultation of females is implied when jurors are recorded to have mentioned that a child was born dead, or moved, then died soon after birth.⁸⁹ Acceptance and reliance on the evidence of women whilst excluding them as legitimate and authoritative speakers in court is also apparent in records of ‘proof of age’ inquests, to determine whether an heir is of age, in which only males are recorded as witnesses to the inquest, but no secret is made of the fact that some of their testimony is derived from information supplied by a woman.⁹⁰

89 See, e.g., (1251) JUST 1/1046 m. 10d (IMG 1843); (1276) JUST 1/663 m. 3 (IMG 3688); (1279–81) JUST 1/1055 m. 9 (IMG 2989); (1288) JUST 1/1281A m. 7 (IMG 2707); JUST 1/1294 m.8d (IMG 3893) (1290–1); 1292 JUST 1/985 m. (IMG 917); (1292) JUST 1/302 m. 3d (IMG 8243); JUST 1/303 m. 6 (IMG 8644); (1295) JUST 1/625 m.35 (IMG 290); KB 27/29 m. 1 (IMG 8053).

90 Lee, ‘A Company of Women and Men’, p. 93; Sue Sheridan Walker, ‘Proof of Age of Feudal Heirs in Medieval England’, Mediaeval Studies 35 (1973), 306–23, at pp. 308, 314.

Though Bracton and other sources reproduce old ideas that midwives or other women might be deceitful with regard to reports of births,⁹¹ no rule against women’s evidence in curtesy/life cases is mentioned in any of the treatise or Year Book formulations. Nor do most of the later sources suggest a general contemporary idea that women’s accounts should be excluded in this context.⁹² That the very idea of taking women’s evidence seriously was not rejected can also be seen in a 1259 Kent case relating to a widow’s rights in land, governed by local/manorial law, but brought to the attention of royal justices.⁹³ The plea roll notes an assize which was summoned to ask whether John de Watton and four other men had unjustly disseised Denise of Wormdale of land. John and the others denied wrongdoing, their story being that Denise had held the land by way of freebench (roughly equivalent to dower), but had lost this right by court order (so not unjustly) because she had been found by the court of Milton Regis to have had a baby during her widowhood, and since it was the custom there that this ended freebench, the land had been taken by court order.⁹⁴ At the court of Milton Regis, the evidence leading to Denise’s loss of the land had come from two women, who said that they were present when Denise gave birth in a cellar in Wormdale. Their testimony was taken to be worthy of weight. An idea that there was a strong and long-standing rule of exclusion of women’s evidence in relation to live birth would not sit well with women’s particularly prominent role in proof in relation to other matters of reproduction, to which we will turn next. When legal proceedings needed to resolve a question as to the pregnancy or virginity of a woman, or whether she had given birth recently, the common law, like other systems, was prepared to give women a role.⁹⁵ The need for a decision as to whether or not a woman was pregnant came up in two main contexts: succession to land and felony.⁹⁶

91 Bracton IV, p. 361; Fleta book VI, c. 55; W.R. Childs, ‘“Welcome My Brother”: Edward II, John of Powderham and the Chronicles, 1318’, Church and Chronicle in the Middle Ages: Essays Presented to John Taylor, ed. by I. Wood and G.A. Loud (London, 1991), p. 151. Harris-Stoertz, ‘Pregnancy and Childbirth’, p. 265; Bracton II, pp. 201–7, IV, p. 299; III, p. 311; Fleta, book I, c. 15.

92 21 SS, p. 112, Le Grand Coutumier de Normandie, ed. by Everard, pp. 546, 548, 578, 586; cc. 123, 125; E.V. Tardif ed Coutumes de Normandie (2 vols, Rouen, 1896) vol. 2 p. 307 c. CXIX. No discussion of women’s exclusion: Litt., book I, c. 4; 8 Co Rep 34a; Co. Litt. book 1 c. 4 s. 35.

93 Andrew Hershey, An Introduction to and Edition of the Hugh Bigod Eyre Rolls, June 1258–February 1259: P.R.O. Just 1/1187 & Just 1/873. B266.(T), B290.[Kent] B266. JUST 1/873 mm.14 and 16 (IMG 9276, 9279).

94 Hershey, Introduction, B266.(T). On the custom of losing freebench in this way, see T. Robinson, The Common Law of Kent or the Customs of Gavelkind (1788), 162–4 1st edn 1741, 162–7; and CP 40/14 m. 21d (IMG 4782); JUST 1/1255 m. 11d (IMG 73); KB 27/333 m. 32 (IMG 65); JUST 1/1412 m. 1 (0791).

95 For ‘legal matrons’ in Normandy from at least the late twelfth century, see Van Houts, ‘Gender’, p. 204.

96 See, in particular, J.C. Oldham, ‘On “Pleading the Belly”: A Concise History of the Jury of Matrons’, Criminal Justice History 6 (1985), 1–64; Sara M. Butler, ‘Pleading the Belly: A Sparing Plea? Pregnant Convicts and the Courts in Medieval England’, in Crossing Borders, ed. by Butler and Kesselring (Leiden: Brill, 2018), pp. 131–52; Sara M. Butler, ‘More than Mothers: Juries of Matrons and Pleas of the Belly in Medieval England’, LHR 37 (2019), 1–44; Harris-Stoertz, ‘Pregnancy and Childbirth’; F. Harris-Stoertz, ‘Midwives in the Middle Ages: Birth Attendants 600–1300’, in Medicine and the Law in the Middle Ages, ed. by W.J. Turner and S.M. Butler (Leiden, 2014), pp. 58–871; Bracton II, pp. 201–3; Fleta book 1 c. 31. For impotence, female evidence: Helmholz: OHLE I, pp. 549–50, Jacqueline Murray, ‘On the Origins and Role of ‘Wise Women’ in Causes for Annulment on the Grounds of Male Impotence’, JMH 16 (1990), 235–49.

A disputed claim of pregnancy could cast property rights into uncertainty for a considerable time. A good example of this can be seen in relation to the situation following the death of Gilbert de Clare at Bannockburn, when the possible pregnancy of his widow, Maud de Burgh, delayed the distribution of his lands between his sisters.⁹⁷ From an early period, there are examples in the records of disputes over whether or not a widow was pregnant with her husband’s child. Such a child might displace the heir apparent (often a brother of the husband). There was a need to determine whether there was a pregnancy (as well, at times, as a need to deal with a challenge to a baby’s legitimacy). In a disputed parentage case of 1211, enquiry as to whether a child was the biological child of those claiming to be its parents was at least partly ‘by lawful men and women’.⁹⁸ This case was looking backwards, to a pregnancy no longer persisting. From the reign of Henry III onwards, there is evidence of a more formal procedure, under the writ de ventre inspiciendo, for women claiming to be pregnant at the time of the dispute.⁹⁹ The role of women in this procedure was prominent, though there are interesting traces of a perceived need for male supervision, perhaps reflecting the suspicion shown in treatises and narrative sources that false claims would be made to keep heirs out of ‘their’ land.¹⁰⁰ There might be a requirement that the examination was to be conducted by women, but with some form of male involvement.¹⁰¹ Some versions of the writ suggest that examining groups should include men, but other accounts suggest women acting alone as examiners.¹⁰² The de ventre insipiciendo procedure continued to be valid in and beyond the fifteenth century.¹⁰³

97 J.R.S. Phillips, Edward II (New Haven, CT and London, 2010), pp. 243, 269; Michael Altschul, ‘Clare, Gilbert de, eighth earl of Gloucester and seventh earl of Hertford (1291–1314) ODNB.

98 Masschaele, Jury, p. 31; CRR VI, p. 169 (1211).

99 60 SS, pp. clii. The de ventre inspiciendo procedure used or ordered: CPR 1247–58 p. 222; CRR XX (1250) p. 141 no 844; CRR XVII 1242–3 pp. 30–1 no 121. Britton, book III c. 2 no. 13 – oath, articles, presentment. CRR IV p. 212 (1206): four married couples to see whether a woman was pregnant or had borne a child by her husband.

100 Bracton II, p. 201; Fleta, book I c. 15; P & M I, pp. 381, 389; C 245/1, no. 23. Britton book 3 c. 2 no 13–15. CRR XVII 1242–3 pp. 30–1, no 121, orders inspection by women in the presence of men.

101 See the 1221 case in 60 SS, pp. cliii – BNB 1503; pl 1605, pl 137; Bracton II, p. 203.

102 See, e.g., CRR IV 212 (1206); BNB pl. 137, 198, 1503, 1605; 87 SS, p. 75; CPR 1247–58 p. 222; Fleta book 1 c. 15; Seipp 1422.042ss; 50 SS pp. 24–7.

103 Seipp 1422.042ss; 50 SS pp. 24–7; mention of the writ, 1503: 116 SS p. 420.

In addition to the land-related cases, women were used to determine whether a woman was pregnant, when she had been convicted of felony and sentenced to death. There are recorded instances of this procedure from the early fourteenth century onwards, and the likelihood is that this was also the practice at an earlier date, since groups of women, or groups including women, were being used for other inquiries relating to pregnancy and rape in the thirteenth century.¹⁰⁴ The terminology encountered in relation to these women is not constant. They may be called ‘women’, ‘matrons’, or ‘midwives’, and described in terms of good standing and character (‘lawful’, discreet’, ‘creditworthy’, ‘wise’) or age (presumably importing an idea of experience).¹⁰⁵ There has been discussion of which women were regarded as appropriate to make these determinations, or serve on ‘juries of matrons’, with consideration of the level of expertise expected, and whether this may have changed with changing ideas about the value and appropriate treatment of the foetus.¹⁰⁶ The idea of constructing and labelling the inspecting women as a ‘jury’ was present in the early fourteenth century, and by the late fourteenth century, documents describe it, and suggest it was chosen in a way which increasingly resembles the (male) petty jury.¹⁰⁷ Records occasionally say a little more about how the matrons proceeded – e.g. palpation of the belly, examination of the breasts and questioning – or how their participation is regarded.¹⁰⁸ Despite suggestions that juries of matrons colluded in fictitious findings of pregnancy in order to spare other women execution, it has been demonstrated that this is not substantiated for the medieval and early modern period. By no means all who claimed pregnancy were found to be pregnant, sometimes there is a confirmatory record that women found pregnant did in fact give birth, and people did not behave as if a positive finding was guaranteed: claims of pregnancy were not universal.¹⁰⁹ No doubt there were mistakes, but these were not necessarily all in one direction.

104 Butler, ‘More than Mothers’, p. 14, JUST 3/104, m. 15d. Butler, ‘Pleading the Belly’, p. 138, notes 1220s use of women to examine rape victim: Pleas of the Crown for the ­Hundred of Swineshead and Township of Bristol, ed. by E.J. Watson (Bristol, 1902), pp. 133–4, no 15. Rape complainants examined by a mixed group (1241) by a jury of women, whose verdict was to be confirmed by a male jury (1282): JUST 1/359 m.35d (IMG 3219); JUST 3/35B m. 38. For thirteenth century, ‘mixed juries’ of examination of women claiming pregnancy or male supervision, see Masschaele Jury c. 4, p. 130; CRR XVII, pp. 30–1; BNB no 1605; CRR IV, p. 212. Sometimes (male) jurors are required to ­pronounce upon the existence of a past pregnancy: CP 40/179 m. (IMG 43).

105 Bracton II, p. 202 (civil context); JUST 1/966 m. 7 (IMG 8917); CPR 1436–41, 357. ­Maddern, Violence and Social Order, p. 71; JUST 3/210 m. 16r (IMG 35); JUST 3.137A m 23 (1352) (IMG 49); Butler, ‘More than Mothers’, p. 18; JUST 3/45/1, m. 5 (1332); CPR 1436–41, p. 356. The terminology resembles canon law’s ‘honest and prudent matrons’, used to discern the fact of a woman’s virginity. Helmholz, OHLE 1 p. 337.

106 Oldham, ‘On Pleading’, p. 15; Bl. Comm. book IV c. 31; Butler, ‘Pleading’, p. 138; Butler ‘More than Mothers’.

107 Butler, ‘Pleading’, p. 138; JUST 3/174 m. 2 (1387); JUST 3/178 m. 9d (1393) JUST 3.177 m. 101 (1396). See also JUST 3/188 m. 25 (IMG 70) and m. 89 (IMG 219); JUST 3/177 m. 49.

108 JUST 3/189 m. 5 (IMG 13); CPR 1436–41, 357. Maddern, Violence and Social Order, p. 71; JUST 3/210 m. 16r (IMG 35), matrons to inspect her body and ‘secrets’.

109 See Chapter 6. Successful pleas, e.g., JUST 3/113 m. 6d (IMG 27); unsuccessful, e.g., JUST 3/220 m.182 (IMG 243); JUST 3/173 m. 26 (IMG 61). Birth noted, e.g., JUST 3/36/1 m. 7 (IMG 17).

The use of women in determinations of pregnancy or non-pregnancy for legal purposes had Roman law antecedents, and one might deduce rationales for it based on expertise (assumed or actual) or on perceived inappropriateness of males making such investigations in relation to birth and women’s bodies.¹¹⁰ To a certain extent, common lawyers displayed a disinclination to involve themselves in the area of female reproductive matters. They were uncertain – or affected uncertainty – about some aspects of pregnancy.¹¹¹ The work of the matrons was described in mysterious terms, as looking for ‘private signs’ of pregnancy, and doubt was expressed in the fifteenth-century courtroom about the duration of pregnancy (one fifteenth-century serjeant memorably suggesting that it might last seven years).¹¹² Earlier treatises did not seem as uncertain, however, positing a fairly accurate gestation period,¹¹³ and jurors did not necessarily shrink back from answering questions on women’s pregnancies and the circumstances in which they began. A good example may be seen in a 1314 assize case turning on the legitimacy of one Agnes. The jurors said that she had been born one year and three weeks after her putative father’s death, that the mother had not seemed pregnant straight after this death, ‘had told neighbours that she was not pregnant, and she was seen and examined by those neighbours and found not pregnant’. They were asked about opinion as to the mother’s ‘incontinence’ after her husband’s death, and felt able to answer that another man was reputed to be Agnes’s father and the spouses had no surviving child.¹¹⁴ Examination of women was not always seen as something inappropriate or impossible for men. In the case of a woman making an essoin of ill-health, i.e. claiming to be unable to attend court because she was too ill, the procedure was apparently inspection by knights, as with men, and there is evidence that this was carried out. Thus, for example, in 1194, four knights viewed and confirmed the sickness of a woman, Margaret, wife of David of Peachley, and even a prioress might be inspected in this way.¹¹⁵ Judges also made an assessment of the maturity of girls or young women in some cases, considering themselves perfectly capable of judging their age through physical inspection.¹¹⁶ The state of medieval common lawyers’ knowledge – or admitted knowledge – about women’s bodies and their reproductive capacities is a matter of some uncertainty.

110 Oldham, ‘On Pleading the Belly’, p. 2; D. 25.4.5.10.

111 For disagreement about the consequences of exceeding the gestation period in legitimacy cases, see Harris Stoertz, ‘Pregnancy and Childbirth’, p. 280; Bracton II, pp. 203–4.

112 Butler, ‘More than Mothers’, p. 28; Seipp 1422.042ss. The expression is ‘par vii ans’, which is translated in 50 SS p. 25 as ‘after seven years of age’, but the context suggests length of gestation rather than maternal age. It is tempting to speculate as to whether this statement represents humour, the adoption of a ‘tall tale’ of lengthy gestation, or a corruption of a statement about the possibility of deeming H2 to be the father of a child born at seven months into a marriage, which had been entered into straight after the death of H1.

113 Bracton II, 203; Britton, book 3, c. 2 no. 15 (40-week presumption).

114 JUST 1/1350 m. 995d (IMG 995).

115 67 SS, p. 161; Rot. Cur. Reg. vol 1 p. 29; 53 SS plea 467. On the prioress, whose inspection confirmed illness, see 67 SS, p. 113 and below p. XXX. On this process, see Fleta book VI c 99; st. Westminster II (1285) c. 17. Male inspectors are expected in writs in 87 SS pp. 27–8, no 38–9; pp. 10–11, no 29; p. 42 nos 26–8, and are seen being sent or reporting on the health of a woman claimed to be ‘languid’ in, e.g., 60 SS p. 58 no 37, CRR 88 (1225) m 36; 53 SS p. 352 no 715 (1219); 84 SS p. 222 no 4239 (1209).

116 See, e.g., Seipp 1344.154rs, 1367.041, 1401.035.

Proof of pregnancy might rely on the ‘matrons’, but in some cases, at least in cases of proving the absence of pregnancy, the common law used other mechanisms. The woman’s own word might be given some weight, as might a more general inspection. In an assize case of 1287, the parties were in dispute as to whether John (brother of Robert) or Henry (perhaps his posthumous child) was entitled to the land formerly held by Robert from Ralph. Henry was born 40 weeks and 11 days after Robert’s death, and considerably longer after the point at which it was likely that Robert could have impregnated Henry’s mother, Beatrix. Ralph was stated to have acted upon Beatrix’s sworn statement that she was pregnant with Robert’s child. The jurors, however, stated that after Robert’s death, Ralph had held an inquisition to find out who was Robert’s heir. Beatrix was present and was asked whether she was pregnant or not. She swore that she was not, removed her outer clothing, and it was apparently regarded as clear that she was not (visibly) pregnant. On the strength of this, Ralph had initially received John as Robert’s heir. In both versions, credence was apparently given to the assertion of Beatrix.¹¹⁷

117 JUST 1/11 m. 10d (IMG 115); Plac. Abbrev., pp. 221, 234; KB 27/124 m.12d (IMG 7660) and m. 14 (IMG 7475); KB 27/142 m. 26 (IMG 3008), m. 26d (IMG 3137); 58 SS 33, p. 29.

The witness of women to birth might be accepted in other ways. They may have given evidence in some sense in ‘neonaticide’ cases. Thus, a Norfolk gaol delivery roll of 1381 contains an indictment of a woman who had allegedly given birth alone, killed her baby and concealed the body, evidence of this having come from a midwife and other women. The accused was acquitted, but the evidence of the women seems to have been taken seriously.¹¹⁸ Women’s witness to death also had some relevance, in relation to the appeals of married women, in respect of the killing of their husbands. As will be discussed in Chapter 5, for the earlier part of the period under consideration, some weight was given to the presence or witnessing of the event by the widow bringing the appeal. In relation to women’s own violent death, there is an indication that in cases of death which was not immediate, their identification of the killer might be taken seriously in common law processes, as was apparently the case in the reign of Henry III, when a coroner’s roll of 1269 recorded that a woman, fatally wounded in an attack on her family, had identified some of the culprits before she died.¹¹⁹

The presentment of Englishry process was a required step in dealing with suspicious deaths in parts of England in the first half of the period of this book, finally being abolished in 1340. In the period and places in which this process applied, communities were required to affirm that a dead person was ‘English’, or not Norman, on pain of a financial penalty.¹²⁰ In some counties, but not all, women might be used to present Englishry.¹²¹ Rules are often stated in terms of the side of the family from which the witnesses originate (i.e. that they come from the father’s side or mother’s side) rather than their own sex. Equality of ‘sides’ is common, though some county rules favoured witnesses from the father’s side, or the ‘birds of a feather flock together’ idea of female witnesses for female corpses, male witnesses for male corpses.¹²² The impression which is given is of a variety of local rules with different perspectives on the role of sex and family within this area: women were not necessarily incapable or untrustworthy, but some opted to exclude them. The common law thus had notice of and accommodated opposing views and practice concerning women’s involvement as non-party actors in legal proceedings.

118 JUST 3/164 m. 42 (IMG 86).

119 9 SS p. 14.

120 F.C. Hamil, ‘Presentment of Englishry and the Murder Fine’, Speculum 12 (1937), 285–98; Paul Brand, Kings, Barons and Justices: The Making and Enforcement of Legislation in Thirteenth Century England (Cambridge, 2003); Hudson OHLE II, pp. 405–9; Bruce O’Brien, ‘From Mordor to Murdrum: the Preconquest Origin and Norman Revival of the Murder Fine’, Speculum 71 (1996), 321–57. Britton, book I c. 2 no 15; Fleta book 1 c. 30; Bracton, II, pp. 391, 393.

121 Bracton II, p. 376; Fleta book 1 c. 30; Somersetshire Pleas, App. B.

122 For the idea that women should be used to prove matters in relation to women and men for men, see Helmholz, OHLE 1, p. 15.

Another partly ‘witness-like’ function was that of ‘first finder’ in relation to homicide. Bracton made it clear that women (and minors) were potentially responsible in relation to violent deaths and must be examined by coroners.¹²³ Women as well as men, if present at such a death or finding a corpse, were to be identified and examined. It was to be pronounced whether they had discretion and could speak. In a sense, they were suspects, and would be held until it was decided they were not suspected.¹²⁴ There are numerous records of them acting or being treated as first finders in this way.¹²⁵ Women were also expected to raise the hue and cry – at least in cases which they would make the subject of an appeal, and might do so at other times, for offences to themselves or to others.¹²⁶ The position of ‘oath-helper’ or compurgator was also somewhat witness-like, and essentially involved supporting the credibility of a party rather than giving testimony as to particular facts. In common law sources, there is little information with regard whether women could act as oath helpers, as opposed to using them, and no positive evidence that they did so.¹²⁷ Local law did in some cases allow women to act as compurgators,¹²⁸ though elsewhere women might be barred from such roles.¹²⁹

123 Bracton II, pp. 243, 342.

124 SR I, p. 40. Britton book 1 c. 2 no 5; book 1 c. 10.

125 E.g. JUST 1/569A mm. 25, 28 (IMG 8166, 8172); Butler, Forensic Medicine, p. 161; Hanawalt, ‘Voices and Audiences’, p. 162.

126 (Wife of deceased): JUST 1/804 m. 49 (IMG 2385); Wilts GD and T no. 141, 795 (burglary). Deceased’s female servant raises hue: KB 27/282 m. 5 (IMG 306). See also Samantha Sagui, ‘The Hue and Cry in Medieval Towns’, HR 87 (2014), 179–93; Janka Rodziewicz, ‘Women and the Hue and Cry in Late Fourteenth Century Great Yarmouth’, in Women, Agency and the Law, ed. by Kane and Williamson (London: Pickering & Chatto Publishers, 2013), pp. 87–97.

127 Using them: see, e.g., Seipp 1283.012ss; 1304.008rs; 1310.039ss; 1313.456ss; 1469.074.

128 18 SS 1 pp. 183, 186; 21 SS p. xxx.

129 21 SS p. xxx. Women could take oaths: 132 SS, p. 60. They could perform the ordeal, generally that of hot iron, rather than water, see further below, p. 145 note 136. They could do homage, with adjustments: Britton book III, c. 4, 17.

A different sort of witnessing, also relevant to the common law, was adding one’s seal to a charter. There was no overt exclusion of women from this activity. Noblewomen in particular might be asked to seal and confirm a land transaction, and an increase in female attestations over the course of the twelfth century has been noted.¹³⁰ Even so, women charter witnesses remained a distinct minority, and they might not have been performing quite the same function as male charter witnesses. It is possible that married women, named in charters relating to their husbands’ transactions, or widows, named in the context of their sons’ transactions, were often noted less because of their inherent creditworthiness and more in order to tie them into the transaction and make it more difficult for them to challenge it later.¹³¹ This would explain why, despite appearing on the witness lists of ‘private’ transactions, women do not seem to have been produced in court to confirm transactions: they were not seen as witnesses of the same type.¹³² This appears to be in line with the idea, seen above in relation to curtesy and proof of age, that the main inhibition was against women performing the witness-in-court function. There is no sign that women were thought incapable of taking an oath, but, as well as a general feeling against women speaking authoritatively in court, there may perhaps have been an issue with regard to the theoretical requirement for a charter witness to fight a duel, as suggested in Glanvill, there being a strong assumption that this was inappropriate for a woman.¹³³

130 Susan M. Johns, Noblewomen, Aristocracy and Power in the Twelfth Century Anglo-­Norman Realm (Manchester, 2003), c. 5. On whether inclusion in a witness list indicates presence, see D. Broun, ‘The Presence of Witnesses and the Writing of Charters’, in The Reality behind Charter Diplomatic in Anglo-Norman Britain, ed. by Dauvit Broun (Glasgow, 2011), pp. 235–90; F.W. Maitland, ‘History from the Charter Roll’, EHR 8 (1893), 726–8, 727; Paul R. Hyams, ‘The Charter as a Source for the Early Common Law’, JLH 12 (1991), 173–89, 188–9, 182–3.

131 Note variation as to whether or not W included in H’s charters, Johns Noblewomen, 89. 90: See also, e.g., David Postles, ‘Choosing Witnesses in Twelfth-Century England’, Irish Jurist 23 (1988), 330–46, 335.

132 Johns, Noblewomen, pp. 81, 86, 92–4; P & M 1, pp. 484–5; John Hudson, Land, Law and Lordship in Anglo-Norman England (Oxford, 1997), p. 142, c. 5 and c. 6; JUST 1/111 m. 2d (IMG 3772); JUST 1/183 m. 5 (IMG 1754). Debt case, male witnesses listed, e.g., CP 40/317 m. 308 (IMG 626). Note, however, the expectation that a woman might have to bear ­witness to the terms of a transaction: Philippa C. Maddern, ‘Widows and Their Lands and Texts in Fifteenth Century Norfolk’, Parergon 19 (2002), 123–50, 129; TNA E 210/4949.

133 LHP 5, 35; Broun, ‘Presence of Witnesses’, p. 273; Glanvill, X.12. The fact of having property in the relevant area was also important for the credit of a witness: JUST 1/418 m. 13 (IMG 2567).

Overall, the picture with regard to women’s witnessing roles is far from clear. Perhaps the safest conclusion is that there were not absolute rules here. There were different ideas at play in this field, some which pushed towards women’s inclusion in circumstances regarded as particularly female, perhaps especially in the dangerous and mysterious area of women’s reproductive systems, and others which pushed towards exclusion or at least lesser credibility and value of women’s testimony.¹³⁴ By the time the common law sources came to discuss witnessing and proof in a more systematic way, women were not seen to be a problem worthy of particular attention. The discussion is in terms of the need for ‘credible’ witnesses. Whether this means that it was settled that women could not generally be witnesses, or that they could, is not clear.¹³⁵ Concern seems to have turned to the narrower question of whether married women could give evidence against their husbands.¹³⁶ Women were, however, specifically rejected as jurors until the twentieth century.¹³⁷

134 See, e.g., M. Madero, ‘Savoirs féminins et construction de la vérité: les femmes dans la preuve testimoniale en Castille au XIII^E siècle’, Crime, Histoire et Sociétés 3 (1999), 5–21.

135 Butler and Baker’s Case 3 Co. Rep. 25a, 36a–b; Statute of Frauds 2 Car. II, c. 3. Co. Litt 6b has little more to say, though logically its citing of occasions when female ­witnesses are not allowed suggests no general rule against female testimony. William Nelson, Lex Testamentaria (London, 1714), p. 578; Baker OHLE VI 515. Some early modern ­jurisdictions used women in relation to the discovery of ‘witches’ and rape of children: Malcolm. Gaskill, Witchcraft and Evidence in Early Modern England’, P & P 198 (2008), 33–70, 39, 48; C. Holmes, ‘Women: Witnesses and Witches’, P&P 140 (1993), 45–78, 47, 65; Bellamy, Criminal Trial, p. 173; Hale, HPC, I, p. 633.

136 Co. Litt. 6; Anon., A Treatise of Femes Coverts or the Lady’s Law (London, 1732), p. 109.

137 Bl. Comm., Book III, c. 23.

Conclusion

Women’s participation in the common law as non-party actors was severely limited. The nature of this limitation, and contemporary thought around it, is, however, of far greater interest than Maitland and his followers have supposed. It is best seen not as an obvious rule with some curious but ultimately trivial exceptions, but as a highly contingent preference, based on a shifting set of justifications. Just as a woman might be excluded from parliament ‘because she is a woman’, exclusion of women from participation in legal processes was sometimes made explicit, a direct disapproval or barring of their participation, based on misogynist views of women’s capacities and character.¹³⁸ Often, however, their exclusion was passed over in silence or was the indirect result of other, gendered, legal or social factors, such as their perceived inability to fight in trial by battle or the inferior position, in which the common law placed them with regard to property or a disinclination to allow them to speak in public with authority.¹³⁹ When there was seen to be a need to allow women’s participation, medieval common lawyers, like other educated medieval men, seem to have been relaxed about criticising women’s nature and competence while in fact relying upon their knowledge and information.¹⁴⁰ Such need was perceived in particular in cases regarding other women and their bodies, and those in which choices made by the system to allow some women some rights in land meant that it was necessary to involve them. Women did perform important ‘law-related’ functions, from acting on a ‘jury of matrons’ to witnessing charters, to giving and taking homage, and their regular appearances as executors for their husbands or male relations suggests some confidence in their competence.¹⁴¹

138 P & M I, p. 466, RP IV, p. 270 (1425).

139 For disquiet about ‘scolding’ (particularly associated with women), see Sandy. ­Bardsley, Venomous Tongues: Speech and Gender in Late Medieval England (Philadelphia, 2006). Note, however, the need for women’s personal appearance and speech in appeals: ­Klerman, ‘Women Prosecutors’, p. 307.

140 Bronach Kane, ‘Women, Memory and Agency in the Medieval English Church Courts’, in Women, Agency and the Law, ed. by Kane and Williamson, c. 3, pp. 43–62.

141 On homage, see Glanvill IX 1, 2 (a woman could receive but not do homage); Bracton II, 228 ff (she could do both); P & M II 286 (no further discussion); P & M II 338; Wilkinson, Women, p. 110; 100 SS p. 49 case 4.10; CP 40/416 m. 430, 1363M. H. Maurer Margaret of Anjou, 9. PCCG, 40: woman appears to be head of a mainpast. See also 10 SS p. 113 no. 116.

Women’s more general absence is also worthy of comment rather than dismissal. It had, no doubt, a reflective relationship with the power and authority of women, shutting them out from possibilities of influence in a social sense.¹⁴² Legal historians should keep in mind the likelihood that this absence will have had an impact on the development and administration of the law itself as well as upon those women who found themselves before a court in a distinct minority. The nature of this impact upon the law is naturally impossible to prove, but we may see its probable influence, for example, in some of the failures to mention or choices not to mention women in prescriptive sources, as described in Chapter 1, in the more impractical metaphorical constructions of women seen in Chapter 2, and in some of the legal formulae and exculpatory or mitigating doctrines formed with a masculine paradigm in mind, which will be discussed in Chapters 5 and 6. The absence of women must be allowed its weight and importance, and neither be dismissed with a glib summary nor allowed to be overlooked in favour of occasional and attractive examples of female influence.

142 Everard, ‘Power and Authority’, p. 123.