Part III
One of the band of distinguished early twentieth-century women historians engaged in transcribing and editing legal records, to the enduring benefit of all legal historians, remarked that ‘[t]he medieval Englishman was incurably litigious’.1 In terms of numbers populating the plea rolls, it was indeed Englishmen who predominated; though there is no exhaustive study of women as a proportion of complainants or defendants, it is clear that women are a less frequent presence in common law records than men, both as plaintiffs or accusers and as defendants. Looking at a period before the relatively standardised records of the central courts began, Van Caenegem noted the ‘predictable underrepresentation’ of women in twelfth-century sources referring to litigation, with less than 5% in 1161–80 and no more than 8% at other points in the century.2 From the thirteenth century to the end of the medieval period, records are more copious, but the nature of the material, with alterations in jurisdiction and procedure, does not make it easy to draw detailed conclusions about trends in gender ratio or the reasons lying behind them. We can, however, be confident that women were always a minority presence in legal proceedings, ‘civil’ and ‘criminal’, bringing and defending actions and accusations. Some figures will suffice to show the consistently lower level of women’s participation, in comparison to men, as prosecutors, claimants and defendants. Hanawalt’s survey of ‘crimes’ in the rolls of the Lincolnshire eyre of 1202 shows women brought roughly 20% of the appeals and 17% of criminal complaints overall (the latter including all-male presentments).3 Klerman’s study of women’s appeals in the thirteenth century has shown that ‘more than a third of all thirteenth-century private prosecutors were women’, but that all appeals declined as a proportion of prosecutions over the course of the thirteenth century, and did not recover, the gap being filled by all-male modes of commencing a ‘criminal’ case. Prosecutions brought by women therefore declined considerably as a proportion of all complaints.4 A substantial minority of cases including women as ‘civil litigants’ can be seen in some thirteenth-century rolls, particularly in relation to cases involving land and with dower to the fore. Walker has noted the particular frequency of women’s dower actions in the thirteenth century.5 As many as 39% of entries relating to new cases in the Curia Regis Roll for Michaelmas 1250 included a female claimant, alone or with a man, with dower featuring as a leading cause of action amongst these.6 The decline in actions of dower, in particular, has, however, been charted in detailed studies,7 and it has been suggested that the overall pattern is one of a decline in women’s participation as claimants at common law, over the course of the later fourteenth and fifteenth centuries. A sample from the 1320s in a study by Stevens, looking at Common Pleas cases involving Londoners, showed around 26% as a minimum of cases brought by a woman, with the sample from the 1420s indicating a decline to 15%.8 The Michaelmas 1349 Common Pleas roll contains 17% cases involving women claimants (alone or with a man).9 For the Trinity 1377 Common Pleas roll, this proportion is 11%,10 and for the Easter 1440 Common Pleas roll, 8%.11 Research on the late fifteenth-century Common Pleas and King’s Bench suggests a decline to around 5% of litigants in the King’s Bench and Common Pleas.12 There is also some evidence that women were a more substantial minority in other, non-common law courts, including those developing in the later part of the period covered here.13
1 The Earliest Lincolnshir Assize Rolls, AD 1202–1209, ed. by Doris Mary Stenton, Lincolnshire Record Society vol 22 (1926), p. xvii. For attitudes to women researchers in legal history, see, e.g., Maitland’s enquiry as to whether a fellow male scholar is ‘opposed to female labour’, in the shape of Mary Bateson, proposed as a possible editor of ‘Jew rolls’: Letters of F.W. Maitland vol 1, p. 213, Letter 212 (1898).
2 106 SS, p. xxiv.
3 Barbara Hanawalt, ‘Justice without Judgment: Criminal Prosecution before Magna Carta’, in Magna Carta and the England of King John, ed. by Janet Loengard (Woodbridge, 2010), pp. 120–33, using Stenton’s Lincolnshire Assize Rolls 1202–1209.
4 Daniel Klerman, ‘Women Prosecutors in Thirteenth-Century England’, Yale Journal of Law & the Humanities 14 (2002), 271–320, 271, 287, 289, 317.
5 Walker, ‘Introduction’, in Wife and Widow ed. by Walker (Ann Arbor: University of Michigan Press, 1993), 1–16.
6 CRR vol 20, Michaelmas 1250, KB 26/143.
7 See Phifer, ‘Property, Power and Patriarchy’, especially at pp. 167, 256.
8 KB 27/239–KB 27/278; KB 27/635–KB 27/638; M.F. Stevens, ‘London Women, the Courts and the ‘Golden Age’: A Quantitative Analysis of Female Litigants in the Fourteenth and Fifteenth Centuries’, London Journal 37 (2012), 67–88. For the rate of women’s litigation in the common law courts in the fifteenth century, see also Loengard, ‘What is a Nice Englishwoman’, pp. 55–6; Emma Hawkes ‘She Will Protect and Defend Her Right …’ Women’s Knowledge of Common Law and Equity in Late Medieval England’, in Medieval Women and the Law, ed. by Menuge, pp. 145–62, 148–51.
9 CP 40/359.
10 CP 40/466.
11 http://aalt.law.uh.edu/Indices/CP40Indices/CP40no717/CP40no717Pl.htm.
12 Hawkes, ‘She Will Protect’.
13 Hawkes, ‘She Will Protect’, pp. 148–51; Bardsley, Venemous Tongues, p. 71. Jeremy Goldberg, ‘Echoes, Whispers, Ventriloquisms: On Recovering Women’s Voices from the Court of York in the later Middle Ages’, in Women, ed. by Kane and Williamson (London, 2013), 31–41, p. 31.
Women were also much less frequently accused or sued in common law courts than were men. For example, the Curia Regis rolls from Hillary term 1201 show a rounded up ‘male only: female included’ ratio of 88:12.14 The crown pleas roll of the eyre of London 1276 including accusations from 1251–2 to 1275–6 had a presentment rate of roughly 89:11.15 A ratio of 9:1 or lower for felony charges is noted in Hanawalt’s surveys of indictments in the first half of the fourteenth century, her survey of coroners’ rolls from Northamptonshire 1300–420, Oxford 1296–393 and London 1300–40 notes even lower proportions of female homicide suspects, 3% or less, and her study of mid-fifteenth-century Yorkshire gaol delivery rolls showed an estimated 4% of recorded felony prosecutions being brought against women.16 Other studies focused on records of homicide cases have also shown that accusations against men predominated in the thirteenth and fourteenth centuries.17 The Rex section of a King’s Bench roll of 1384 shows a ratio of entries relating to male defendant only: female defendant included of roughly 92:8.18 More specialised studies confirm varying but always lower proportion of women accused of other ‘criminal’ offences and as defendants in ‘civil’ cases.19
14 CRR vol. 1, p. 374 ff; from KB 26/21 and KB 26/24.
15 The Eyre of London 1276, ed. by Martin Weinbaum (London, 1976). The calculation is mine. The proportion of males would be higher if confession and abjuration were included, individual accused offenders (in multiple offender entries) counted or offences against the assizes of wine and cloth included.
16 Barbara A. Hanawalt, ‘The Female Felon in Fourteenth Century England’, Viator 5 (1974), 253–68; Barbara A. Hanawalt, ‘Violent Death in Fourteenth and Early Fifteenth Century England’, Comparative Studies in Society and History 18 (1976), 297–320, 305–8; Barbara A. Hanawalt, ‘Women before the Law: Females as Felons and Prey in Fourteenth-Century England’, in Women and the Law, ed. by D. Kelly Weisberg (Cambridge, MA, 1982), vol. I, pp. 165–95, 171.
17 Wilkinson, Women, pp. 142, 153–4, 156–7; James B. Given, Society and Homicide in Thirteenth Century England (Stanford, CA, 1977) c. vii; Sara M. Butler ‘Violence and Murder in Medieval Europe’, in Cambridge World History of Violence, Volume 2: AD 500–AD 1500, ed. by Matthew Gordon, Richard Kaeuper, Harriet Zurndorfer, (Cambridge, 2020), c. 16, p. 338; Carl I. Hammer, Jr., ‘Patterns of Homicide in a Medieval University Town: Fourteenth-Century Oxford’, Past & Present 78 (1978), 3–23, 13. A rate of accusation or confession of homicide by women of c. 3% and 6 % for theft offences can be seen in Eyre of London 1244.
18 KB 27/491.
19 Rose, Maintenance, p. 324, shows women as 1% of maintenance defendants. Alice Seabourne and Gwen Seabourne, ‘Suicide or Accident? A Series of 198 Cases from the Eyre Records’, British Journal of Psychiatry 178 (2001), 42–7, noted a male: female proportion of 68:32 in felonious suicides in thirteenth- and fourteenth-century eyre and coroners’ rolls. CRR vol 20. Michaelmas 1250, roll KB 26/143 has 19% of cases, including a female defendant. A sample roll of 1282 showed 91% of entries relating to civil cases involved male defendants alone, one from Hillary 1295 has male only, including a woman defendant proportions of 88:12 and a sample from a roll of 1306 gives the male-only proportion as 85%: KB 27/66; KB 27/143; KB 27/183. The common pleas section of a King’s Bench roll of 1384 showed defendants in entries in the male alone: female included proportions 92:8: KB 27/491. A sample of entries in one Commom Pleas roll for 1495 (CP 40/931) shows a ‘male alone v. female included’ ratio of roughly 94:6.
It is not claimed that these figures give anything more than a very approximate picture. There is clearly a need for more intensive quantitative study, to give a more detailed idea of rates of change, a task which may be made easier for future scholars with improvements in manuscript-reading software. For the purposes of this inquiry, however, these rough figures give a sufficient indication of the probably unsurprising fact that far more cases were brought by men than women and against male than against female defendants. This general disproportion is well known to historians, even if it does not usually impinge upon legal historians’ narrative of the expansion of the scope of the common law over these centuries. Nevertheless, their lower level of participation should not efface the fact that women were present as claimants, defendants, accused in the courts of common law: there is much to consider with regard to this presence, and that is the task of this part of the book. The outline of records of three rather different cases will serve to introduce some of the themes emerging from the records of women’s involvement in court and in legal proceedings which will be explored here.
The first is in a Somerset roll of Henry III’s reign, and records the Hundred of Houndsborough reporting that one Nicholas the gardener killed Gunnilda de Norton ‘because she would not permit him to rape her daughter’, and he then fled. Gunnilda’s daughter had proceeded against him in three county courts. She was told to prosecute her suit and it was ordered that Nicholas was to be exacted and outlawed, and that there should be an inquiry into his chattels.20
The second is to be found in a King’s Bench roll record and Year Book entry of 1369. Tyryngton v Beauchamp (1369) shows a dispute centred on two women, one claiming dower and one resisting that claim.21 Joan Tyryngton and her new husband, William Tyryngton, claimed dower from the property of her former husband, Robert Fitzwyth. The claim was opposed by John Beauchamp and his wife, Joan, Fitzwyth’s daughter and heiress. The disputed point was whether Joan Tyryngton was disqualified from bringing her action because she fell within c. 34 of the Statute of Westminster II (1285), having eloped with an adulterer and not having been reconciled with her husband,22 and more specifically, whether it was enough for Joan Tyryngton simply to deny that she had left Robert of her free will rather than formally denying the whole allegation. John Beauchamp did not take an active role, but Joan Beauchamp was allowed to ‘defend her right’. The Tyryngton side managed to convince the court that what was portrayed by Joan Beauchamp’s side as an elopement had in fact been a violent abduction, during an attack in which Robert Fitzwyth had been mortally wounded, and that Joan Tyryngton’s pleading sufficed to nullify Joan Beauchamp’s allegation. The Tyryngtons triumphed and there were amercements for John and Joan Beauchamp, and Joan Beauchamp separately.23
20 JUST 1/755 m. 3 (IMG 2771) 1225; Somersetshire Pleas, no 212.
21 William de Tyryngton and Johanna his wife v. John Beauchamp del Holte and Joan his wife (1369). CP 40/435 m. 387 and m. 387d (IMG 773 and 1857); Seipp 1369.059; YB 43 Edw. III Trin. pl. 5. See Gwen Seabourne, ‘Coke, the Statute, Wives and Lovers: Routes to a Harsher Interpretation of the Statute of Westminster II c. 34 on Dower and Adultery’, Legal Studies 34 (2014), 123–42.
22 SR I, p. 87.
23 TNA E 42/227.
The last of the three illustrative cases is in a gaol delivery roll for a session at Lincoln castle in 1383, which includes the record of two people, Walter Skryvenere and Alice Cosyn, accused of receiving murderous thieves. Although both pleaded not guilty, the jury pronounced them guilty of this offence. There was a difference in their ordained fate: Alice was to be hanged, whilst Walter made a successful claim of clerical status and lived.24
These three cases show something of the range of medieval women’s participation in common law cases, in both ‘criminal’ and ‘civil’ actions, accusing and being accused of wrongdoing, claiming and defending rights, alone or with a husband, having a case brought by another with regard to a wrong to them and experiencing a variety of different outcomes. The last case in particular brings home some clear and stark differences made by common lawyers and the common law between men and women. These cases also show some of the interest and complexity of researching women’s participation in common law courts through the documents which were made and which have survived. In the first and third cases, there is a solitary, brief record on a plea roll or gaol delivery roll. In the second case, the dispute attracted the attention of law reporters as well as appearing on the plea roll. Such additional perspectives, where they occur, can be particularly valuable in illuminating the partial nature of the information which we must use. This should be accommodated – by circumspection in making claims about women and medieval law – but the imperfection of the remaining evidence is no excuse not to try to investigate and understand a crucial area of women’s interaction with law and law’s treatment of women.
24 JUST 3/167 m. 44 (IMG 96).
4
Several records, dating from 1318 to 1322, note proceedings relating to the allegation of Agnes de Haldenby that, in 1317, she had been subjected to a break-in, robbery and extreme personal violence. As the complaint was summarised in a commission of oyer and terminer to Henry le Scrope and his colleagues, she claimed that Simon de Drayton and 23 others had broken into her house at Thrapston in Northamptonshire, taken her to Northampton, where they confined her, and had then taken her to Shuckburgh in Warwickshire, where they ripped out her eyes and cut out her tongue.25 There is elaboration of the allegation elsewhere, to include the claim that Agnes had been taken away and confined without food and drink, before the ripping out of her eyes and cutting out of her tongue, and at times further condemnation is provided by the use of inhumaniter to describe the manner of the offenders’ attack.26 The records also tell a story of royal and common law responses to the allegations, and to further claims that she was subjected to a malicious and false accusation of trespass, in order to divert her from her dogged legal pursuit of those she considered responsible for the wrongs she had suffered.27
25 CPR 1317–21, p. 292.
26 KB 27/239 Rex m. 10 (IMG 203).
27 See also: SC 8/83/4108B; CPR 1317–21, pp. 402–3, CCR 1318–23, pp. 71, 84, 402–3; KB 27/239 Rex m. 10 (IMG 203); KB 27/241 Rex mm. 2, 8, 14, 16 (IMG 225, 237, 250, 346); and Rex mm.1 d, 15d (IMG 213) (IMG 242); KB 27/243 Rex m. 13d (IMG 263) and m. 15d (IMG 267); KB 27/244 Rex m. 1 (IMG 261) and m. 5d (IMG 260); KB 27/245 Rex mm. 7 and 14 (IMG 219, 233) and mm. 1d and 7d (IMG 194 and 207); KB 27/246 Rex m. 16 (IMG 324); KB 247 Rex m.11d (IMG 180), KB 27/250 Rex m. 12 (IMG 226) and m. 6d R (IMG 211). See also CPR 1317–21, 591. Agnes seems to have obtained at least some financial recompense: CCR 1318–23, p. 377 (1321). See also RP, I, p. 375.
Agnes’s case is one of allegedly spectacular brutality. It is certainly not typical of medieval court rolls. Nevertheless, it provides a useful prompt for consideration of two important issues for those investigating women’s litigation. First, it brings up the question of ‘voice’. This has a literal and a metaphorical sense: obviously, one of the atrocities allegedly visited upon Agnes was deeply connected with removing her ability to speak and communicate, but we also always need to consider the more attenuated ideas of ‘voice’ as the possession of standing to speak in legal proceedings on one’s own behalf (a usage with contemporary support, as may be seen in statements that a woman did not have a voice in litigation without her husband: vocem agendi non habet per se sine viro)28 and the production and mediation of the words which appear in surviving documents. Finding the subjective views of women – hearing their actual words and their intended meaning – is, clearly, generally beyond us. A second matter raised by this case, which is worth considering at this point, concerns whether or not it is appropriate to regard somebody like Agnes or, indeed, any of the many other female complainants to be encountered in medieval plea rolls as a ‘victim’ or an ‘agent’.
Voice
Although women are frequently mentioned in records and reports, there are profound difficulties in knowing the extent to which we can ‘hear’ their actual words or sentiments. The issue of women’s ‘voice’ in such documents is complex, showing traces of the accents of both general social attitude and also specific legal frameworks. As well as the usual issues of authorship and scribal mediation, ‘voices’ are affected by the specific distortions of common law forms and practice. It is clear that all legal material was mediated in some way, affected by the need to play by the ‘rules of the game’ in order to achieve the desired result, and that its formulation might also be affected by ideas of acceptable and effective gender roles.29 Common law records for some cases give us a valuable opportunity to detect and consider this mediation, since, if we have both a plea roll and a Year Book report, we are in a position to compare their accounts of a case, and may see that the different species of record have different things to say about the participation and conduct of the women involved.30 We still cannot, of course, know ‘what actually happened’, but having two points of reference can be very informative and help us draw conclusions for the larger body of cases for which only one source remains.
28 87 SS, p. 85 no 170b.
29 See Tim Stretton, ‘Women, Legal Records, and the Problem of the Lawyer’s Hand’, JBS 58 (2019), 684–700.
30 Paul Brand, Observing and Reporting the Medieval Bar and Bench at Work; the Origins of Law Reporting in England (London, 1999), pp. 3–4.
That surviving common law documentation may give a misleading picture of the level of women’s participation in litigation is apparent from a study of the Year Book report and plea roll record in Tyryngton, for example.31 Aspects of female activity and participation are played down in the report, which focuses on the arguments of (male) legal professionals at the expense of others involved, while the record may over-emphasise women’s role in proceedings, diminishing the participation of some of the legal professionals.32 There are also differences in terms of personal and factual details: the plea roll gives the names of the parties, the plaintiffs’ attorney and the abductor, landholding and geographical locations, dates of events, stages of legal process, including the fact that Joan Beauchamp defended the action herself after her husband had defaulted. It also includes more details on the consequences of the litigation. The Year Book reporter apparently regarded William Tyryngton as unworthy of note and glossed over the independent role played by Joan Beauchamp, but gave additional information which is not on the plea roll: information of a sort calculated to interest legal professionals, concerning fellow lawyers, the serjeant and judge and the key points of pleading.33 The Plea Roll sets out proceedings and arguments as if it was only the parties who were present in court, though the Tyryngtons at least had an attorney and there seem to have been serjeants on both sides. Fortescue, in his De Natura Legis Naturae, may have imagined a court dispute including a woman arguing her own case, but this was unlikely to have been the situation in the central courts of common law, either in his day or in the fourteenth century. Even portrayals of litigation which state that a woman ‘comes in person and says …’ are likely to be masking the involvement of a serjeant.34 There are occasional reports which suggest that a woman did speak in court, and this cannot be ruled out, but given the increasing technicality of the law and its language, requiring expertise which could only be obtained in institutions which excluded women, it is very unlikely to have been usual.35
31 See above p. 98 and Gwen Seabourne, ‘Copulative Complexities: The Exception of Adultery in Medieval Dower Actions’, in Law and Legal Process: Substantive Law and Procedure in English Legal History, ed. by Matthew Dyson and David Ibbetson (Cambridge, 2013), pp. 34–55; and, e.g., Walker, ‘“Litigant Agency” in Dower Pleas in Royal Common Law Courts in Thirteenth and Early Fourteenth Century England’, JLH 24 (2003), 1–22 ‘Litigant Agency’; Hanawalt, ‘Whose Story Was This? Rape Narratives in Medieval English Courts’, in Of Good and Ill Repute: Gender and Social Control in Medieval England, ed. by Barbara A. Hanawalt (Oxford: Oxford University Press, 1998), pp. 124–41.
32 Brand, Observing and Reporting, pp. 3–4. Bracton III, p. 358, envisages woman setting out dower claim in person or by attorney.
33 Walker, ‘Wager of law’; st. Westminster II, c. 3.
34 See, e.g., CP 40/317 m. (IMG 668).
35 See Walker, ‘Litigant Agency’, p. 13; YB Trin. 20 Edw I pl. 85; Seipp 1292.134rs, which appears to be JUST 1/302 m.33d; JUST 1/303 m. 21; Brand, Origins, p. 47.
Distortions of the levels of participation and initiative by those involved in a case can also be affected by common law conventions and rules relating to married women, who could not generally take legal action without the participation of their husbands. This means that it is not usually possible to distinguish the woman’s and the man’s role in bringing such an action. Also worthy of note as, in a sense, effacing the involvement of women are the instances in Year Book reports of serjeants identifying themselves with their clients, to the extent of taking on the persona of a party. If their client was a woman, they do not appear to have felt any inhibition from speaking ‘as’ her, even when this involved them asserting a relationship with a man. For example, Serjeant Passeley’s assertion that a presentment ‘should not hurt us, for at that time we were covert by a husband and within age’ puts him in the place of his female client in a way which might seem surprising if we assume either rigidity of gender ideas or unmitigated misogyny in medieval men.36
36 17 SS, p. 31, Knyveton v. Abbot of Newboth (1308).
Of the interaction between women and their lawyers, we know little, though Walker has drawn attention to one example of a woman being harried by attorneys desperate to represent her.37 Year Books may give additional clues to attitudes in the courtroom, when women were involved. In Tyryngton, for example, the Year Book includes a digression about what would have happened if a baby had been produced as a result of the adultery which was alleged against Joan Tyryngton: would it have been presumed the legitimate offspring of her husband? This appears to illustrate the idea of women and gender relations as legally interesting, and problematic. Recording of such material gives glimpses into the mental world of the common lawyers, and the attitudes women faced when their cases were litigated in common law courts, as well as highlighting the unmappable distance between what happened in court and much of the remaining documentation.38 Other reports give occasional clues to the courtroom experiences of women (and girls): for example the cases cited in Brand’s article about young widows’ qualification for dower include references to intimate questioning of young girls as to what they had done in bed with a husband before his demise, and to physical inspection, apparently by male lawyers, to ascertain whether the young widow was of an age to be capable of ‘supporting a husband’ (i.e. coping with being penetrated by him).39
The voice of all litigants was constrained by the man-made forms of the common law, the formulaic writs, the rules of pleading and of proof.40 Constraints – both external and internal – can also be seen to some extent even in the less regulated common law bills and plaints and in petitions. Portrayals of women in petitions, for example, adopted what were considered appropriate and effective language and emphasis.41 These include portrayals of the petitioner as having been wronged, perhaps repeatedly, or fearing being wronged, suffering and highlighting the influence, power of others and the lack of power, influence and assistance of the petitioner.42 This is not the only representation, however; there are also instances of women shown in more active roles, coming together to petition in groups, or portrayals of them taking their own steps to resist injustice or crime, including protecting or rescuing their husbands and protecting other women from spousal abuse.43
37 Walker ‘Litigant Agency’, p. 13; CP 40/180 m. 18d (IMG 36).
38 For chronicle and literary examples of women speaking in court before the king, see the case of Isabel of Arundel, above XXX; Cannon, ‘The Rights of Medieval Englishwomen’, p. 157.
39 Brand, ‘Deserving and Undeserving’, pp. 5–6; 20 SS, pp. 189–91; Seipp 1310.108ss.
40 See, e.g., Baker, Introduction, cc. 4 and 5.
41 Gwilym Dodd, Justice and Grace: Private Petitioning and the English Parliament in the Late Middle Ages (Oxford, 2007), pp. 214, 283; SC 8/1/31; SC 8/6/292; SC8/7/336; 41/2011. SC8/43/2103.
42 See, e.g., SC8/49/2410; SC 8/41/2026; SC 8/17/850; SC8/7/336; SC 8/6/292 and Rose, Maintenance, p. 58, SC 8/33/1623.
43 See, e.g., SC8/120/5983 120/5985; 346/E1388; SC8/57/2833; SC8 307/15333; 280/13994. JUST 1/739 m. 55d (IMG 1739).
Victims, agents, both and neither
It has become common in discussions of medieval women to deploy the terms ‘agent’ (or ‘agency’) and, separately or by way of contrast, ‘victim’. These terms, ‘victim’ and ‘agent’, however, raise some particular problems in the area of wrongs to women and women’s complaints, which must be considered. They encourage a strong distinction between roles or perspectives which cannot easily be separated, and they may have other, more general distorting effects, for example by encouraging focus on those able to take action rather than those rendered less able to do so by a variety of factors and structures, including the legal.44
There is a tendency, in recent histories of women and gender, to claim that other historians portray women as victims, and that this must be corrected. Thus, for example, a statement in a recent study of women’s intellectual leadership claimed that ‘… modern scholars have … tended to study … women, generally, as victims’.45 In such statements, ‘victim’ tends to be coloured, explicitly or implicitly, with disapproval; thus we see the construction of the ‘passive victim’, the ‘cowering victim’, the ‘helpless victim’, the ‘willing victim’, the victim set in opposition to the saint or virago or to the ‘agent’.46 I would like to suggest that there is a need to reconsider some of this species of ‘victim talk’. In such commentary, ‘victim’ seems, at times, to have unstable or overlapping meanings, covering both one who has been wronged on a particular occasion and also importing a larger-scale judgement on an individual or group, generally oppressed by some situation or structure.47 The latter ‘holistic’ usage alienates many modern commentators on women’s history or gender history, who do not see or do not wish to tell a story of general disadvantage or victimisation of medieval women.48 It is interesting to note that, despite such frequent usage in modern works, ‘victim’ is not a word generally encountered in classical medieval common law sources, and its use in other writings of the medieval period might be very different, with one prevalent image – that of Jesus as victim – likely to have lent it a much less negative resonance to contemporaries.49 We should also note that the word ‘victim’ is sometimes brought in in later translation, when the original source describes one who is wronged in much more mundane, neutral terms.50 Although none of this should be a bar to its use in modern commentary, it should serve to raise questions as to whether considering wrongs to medieval women or reaching a negative conclusion as to their situation is appropriately summarised in this way, with the word ‘victim’. Some clarification and improvement in this area of discussion may be introduced by appealing to the considerable modern legal scholarship interrogating the usage of ‘victim’, especially that by scholars of criminal justice.51 It would, for example, be useful to bear in mind distinctions between the ‘bilateral individualist construction of victimhood’ (relating to a person affected by an identifiable action) and broader constructions of a person’s or a group’s entire existence as partaking of the nature of victimhood.52 This general status idea has sometimes been unpopular within modern feminism or ‘gender and law’ worlds, especially in the study of sexual violence. Here, we often see the replacement of the label rape or abuse ‘victim’ with that of rape or abuse ‘survivor’ and the questioning of ‘victim feminism’.53 Nevertheless, other parts of feminist study of rape, more focused on particular events, accept the word and some degree of generalisation: thus we have the idea and term ‘victim-blaming’. There has been some attempt to rehabilitate ‘victim’ in both of its meanings, arguing for the acknowledgement of victimisation and the possibility of learning from it, without condemning or writing off those who are (at least sometimes) victims.54 This seems to be an appropriate model for examination of women raising complaints and accusations of wrongdoing in the medieval courts of common law: those who suffered – or say that they suffered – wrongs are worthy of our interest and attention, and are an important part of the picture of women’s relationship with the common law.
44 See Karras, Common Women, p. 7.
45 Kerby-Fulton, ‘Introduction’; in Women Intellectuals and Leaders, ed. by Kerby-Fulton and others, (Woodbridge, 2020), p. 1.
46 J.R.S. Phillips, Edward II (New Haven, CT and London, 2010), p. 291; Skoda, Medieval Violence, p. 61; Karras, Common Women, p. 7; Carole Weinberg, ‘Victim or Virago: the Construction of Guinevere in Laȝamon’s Brut’, Reading Medieval Studies 35 (2009), 27–43; Victims or Viragos, ed. by Catherine Lawless and Christine. Meek (Dublin, 2005).
47 Hanawalt, Wealth of Wives, p. vii.
48 See, e.g., Caroline Dunn, Stolen Women in Medieval England: Rape, Abduction and Adultery 1100–1500 (Cambridge, 2012), p. 95.
49 See, e.g., Helmut Koester, ‘Jesus the Victim’, Journal of Biblical Literature 111 (1992), 3–15; Skinner, Studying Gender, p. 134.
50 Note its use to translate home in 97 SS, p. 203 no. 1.
51 Tyrone Kirchengast, ‘Victim Lawyers, Victim Advocates, and the Adversarial Criminal Trial’, New Criminal Law Review 16 (2013), 568–94; Jessie K. Liu, ‘Victimhood’, Missouri Law Review 71 (2006), 115–77; Laura Jeffery and Matei Candea, ‘The Politics of Victimhood’, History and Anthropology 17 (2006), 287–96; A. Leisenring, ‘Confronting “Victim” Discourses: The Identity Work of Battered Women’, Symbolic Interaction 29 (2006), 307–30.
52 Stephen L. Carter, ‘When Victims Happen To Be Black’, Yale Law Journal 97 (1988), 420–47, 435.
53 Rebecca Stringer, Knowing Victim: Feminism, Agency and Victim Politics in Neoliberal Times (London and New York, 2014), p. 12.
54 See, e.g., R.M. Hayes, K. Lorenz and K.A. Bell, ‘Victim Blaming Others: Rape Myth Acceptance and the Just World Belief’, Feminist Criminology 8 (2013), 202–20; T.C. Kulig and F.T. Cullen, ‘Where is Latisha’s Law? Black Invisibility in the Social Construction of Victimhood’, Justice Quarterly 34 (2017), 978–1013; Stringer, Knowing Victim, p. 2. The term is acceptable to government. http://esrcvictims.org/. Accessed 29TH July, 2020.
Agency, the concept sometimes placed in opposition to victimhood,55 has many useful qualities as a perspective from which to view medieval women and their relationship with the common law, but also some difficulties. First, and least importantly, it is a confusing word for those trained in common law, who understand this word in a very different way. Agency in the legal sense is a long-established term, rooted in the positioning of the agent in relation to, on the one hand, a ‘principal’ for whom the agent acts, and, on the other, a third party or third parties.56 In contrast, ‘agency’, as used in historical writing, may be used without much or any definition, and where definitions are given or can be deduced from context, they vary from that which may formerly have been described as ‘power’, to the range and scope of things a person ‘actually could or could not do’, to capacity for independent action.57 Agency in this sense can be private, individual, collective, conscious or unconscious; it may or may not be tied to the effecting of change.58 It seems to operate at several different levels of abstraction or generality. It may be a state of things, or something which can be exercised or enjoyed.59 At its most extreme, agency is assigned even to spaces and inanimate objects.60 It does not seem to be too ignorant a claim that there is some vagueness about this term, nor that it may seem to skate over the problem of volition, and have the tendency to treat willed and coerced action as virtually equal, a serious difficulty for considerations of offences against the medieval common law, in which there is considerable evidence that a ‘guilty mind’ as well as particular action was relevant to the application of penalties.61
55 See, e.g., 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, 51–2.
56 See, e.g., R.J.C. Munday, Agency: Law and Principles, 3rd edn (Oxford, 2016); Baker, Introduction, pp. 526–7.
57 Kane and Williamson, ‘Introduction’, in Women, Agency and the Law, ed. by Kane and Williamson (London, 2013); Kim M. Phillips, ‘Masculinities and the Medieval English Sumptuary Laws’, Gender and History 19 (2007), 22–42, 32; Elizabeth Fowler, ‘Civil Death and the Maiden: Agency and the Conditions of Contract in Piers Plowman’, Speculum 70 (1995), 760–92; Lisa Benz St John, Three Medieval Queens: Queenship and the Crown in Fourteenth Century England (New York, 2012), pp. 9, 17.
58 See, e.g., Garthine Walker, Crime, Gender and Social Order, p. 212; Anthony Giddens, Social Theory and Modern Sociology (Oxford, 1987), pp. 219–23; Anthony Giddens and Philip W. Sutton, Essential Concepts in Sociology (Cambridge, 2014), p. 23; Skinner, Studying Gender, p. 46; Kane, Popular Memory, p. 22.
59 Bronach Kane, ‘Women, Memory and Testimony in the Medieval Ecclesiastical Courts of Canterbury and York’, in Women, Agency and the Law, ed. by Kane and Williamson, (London, 2013), pp. 43–62, 44; S.H. Rigby, ‘Introduction’, in A Social History of England 1200–1500, ed. by Rosemary Horrox and W. Mark Ormrod (Cambridge, 2006), p. 9.
60 Joanne Begiato, ‘Beyond the Rule of Thumb: The Materiality of Marital Violence in England c. 1700–1857’, Cultural and Social History 1 (2018), 39–59.
61 Note the infrequency of ‘agency’ in Kamali, Felony, a legal historical account of intention.
More importantly, an emphasis on women’s agency in the sense of action pushes into the background those women who cannot be described in more or less active terms. ‘Litigants, witnesses and suspects’ fit into a narrative of active women, those sustaining injuries but not taking legal action themselves, those accepting or enduring, or never being in a position to consider taking action, less so. Even a recent avowedly ‘subversive’ account of legal history emphasises agency, thus shoring up the law’s traditional interest in the active over the passive, and certainly over those on the receiving end of overwhelming exertion of power.62 It would be wrong to see an equation of active with male and passive with female (though there are some medieval texts make just this link),63 but it is worth at least considering whether the very strong emphasis on ‘agency’ may be particularly unhelpful in the study of medieval women and the law.
Strongly emphasising the active as positive may also mask the fact that participation in litigation is not necessarily a wholly positive sign either for an individual woman or for women overall. For example, the frequency of widows’ pursuit of their dower through the courts is well known, but rather than emphasising the ‘agentic’ aspect of such litigation, it may be more appropriate to be open to seeing it as a sign of the ease with which a woman’s right could be denied and delayed, obliging her to take expensive and inconvenient legal action.64
Too close a focus on agency may also be associated with a tendency to look only at ‘upward exceptions’ to limitations – stressing those who overcame apparently clear limitations – rather than also considering ‘downward exceptions’ – examining instances of apparent oppression involving stretching, or going beyond the limiting rules or, indeed, questioning the clear nature of the rules themselves. In addition, a wish to downplay ‘victimhood’ risks exaggeration of the possibility of evading, negotiating or manipulating patriarchal structures, including legal processes, which was realistic for medieval women.65 Giving victimhood its due does not mean rejecting examples of women who transcended limitations, nor belittling efforts of women to do so; it does mean balancing these with indicators of women who did not transcend limitations, or who encountered additional and illicit obstacles.66 This is as true for historical study as it is for present day law and policy.
62 Sandberg, ‘The Time for Legal History’, p. 31.
63 See Ruth Mazo Karras, Sexuality in Medieval Europe: Doing unto Others (New York, 2012).
64 Walker, Wife and Widow, Introduction, pp. 1, 6.
65 Bellamy, Criminal Trial, p. 164; Caroline Dunn, ‘Damsels in Distress’, p. 33.
66 See, e.g., Klerman, ‘Women Prosecutors’, p. 272 (women pressured to marry despite the formal requirement of consent); Rowena Archer, ‘How Ladies … Who Live on Their Manors ought to Manage Their Estates’ Women as Landholders and Administrators in the Later Middle Ages’, in Woman is a Worthy Wight, ed. by P.J.P. Goldberg (Stroud, 1997), p. 199; Hawkes, ‘She Will Protect’, pp. 148–51.
A final matter which casts some doubt on the advisability of focusing too exclusively on women’s agency in relation to law is that doing so may tend to lead to the passing over of instances in which women’s complaints, and wrongs to women, were initiated by men: women’s kin or their neighbours. From a modern viewpoint, this appears problematic, patriarchal and antithetical to women’s agency. Nevertheless, numerically speaking, cases in which the complaint is made by a man or by men, with regard to a wrong to a woman, are very significant. Given our general lack of knowledge as to the process which lay behind instances of accusation such as presentments and indictments, we should entertain the possibilities (a) that women’s complaints may have lain behind the formal initiation of process by men, and (b) that women saw some value in having wrongs done to them brought to the common law, even in an indirect, male-led fashion. These instances of action by men, in relation to women, must form part of the story of women and the medieval common law, and will be mentioned in the next chapter.
Conclusion
Agnes de Haldenby – according to the claim recorded in surviving documents – was the victim of an appalling attack. She was also sufficiently active in pursuing the wrongdoers to qualify as having exercised ‘agency’ on most definitions of that concept. Clearly, there is no need to set these ideas up in opposition to one another, nor to see her case from only one perspective. Equally clearly, we must know that there are at least gaps, and possibly distortions, in the account left to us in the records. There are discrepancies with regard to her injuries, and there is silence on who was helping her to present her case, since, in the circumstances, unless her allegation was a complete and particularly bold lie, she cannot possibly have done this herself. Hers is an extreme case, but it has lessons which are more general for those of us examining women and their participation as litigants in cases at common law.