5

Limits and accommodation

A record from the Easter term 1321 plea roll of the King’s Bench gives details of the case of Isabella, widow of William de Bernard v. Walter de Manston and Agnes daughter of John Herdeman.¹ This case was an appeal of rape – an individual prosecution – brought by Isabella, who alleged that on 5^th August, 1320, at the hour of vespers, in the vill of Bandon, Walter grabbed her, slung her across his horse, took her to Southwark, put her in one Thomas Dod’s cellar, threw her to the ground and then and there lay with her (secum concubuit) against her will, and against the king’s peace, then fled. She said that she was ready to prove this.

Walter denied the accusation, and argued that there was a reason that the case should not even be put to proof. He said that Isabella should not be answered in relation to this appeal, because she was his wife. In support of this claim, he stated that she had previously appealed him of robbery, and on that occasion, he had made a successful defence on the basis that the pair had been married at St George’s church in Southwark and that this had been certified by the bishop of Winchester. The rolls were ordered to be searched, and the bishop’s certificate was produced.² The bishop’s certificate noted that the marriage had taken place on 25^th August, 1320, predating the alleged rape, and the appeal of rape therefore failed. A husband could not be found to have raped his wife.

1 KB 27/244 Rex m. 5d (IMG 262).

2 Record of the appeal of robbery, with certification of the marriage: JUST 3/ 41/1 m. 31 (IMG 69). This provides the additional information that Walter was a tailor, and that ­Isabella probably had some assets, since she alleged that goods worth £20 had been ­stolen from her.

This record shows a woman bringing accusations against a man (and also against another woman, the nature of whose alleged participation is unclear) with regard to wrongs she alleged he had done her, and this accusation being entertained by a court of common law. It also shows some of the limitations placed upon her by that law: her ability to act and the alleged perpetrator’s liability were both affected by the substantiated claim that they had gone through a marriage ceremony. The facts behind the case are beyond reach: was this a woman who had married a man then swiftly regretted her choice, or was it a case of rape and forced marriage which barred her from any effective action at common law? The allegations in the appeals put the robbery three days after the rape. One speculative construction is, therefore, that Walter forced Isabella to go through a marriage ceremony, then took her goods. Having failed in her appeal of robbery, because of the certification of marriage, Isabella may have brought the rape appeal in an attempt to show that the marriage was forced, but the bishop’s certificate blocked off this route. What is clearly shown, however, is that the common law both facilitated and also obstructed women’s litigation. Women were allowed within the system, but only up to a point. This might serve as a summary to more than ‘criminal’ appeals, and this chapter will also bring in other species of legal action which might be brought by women, or in relation to their claims and complaints. Despite the fact that there is little explicit discussion by medieval common lawyers of their overall view of women’s role as litigants,³ existing evidence of practice, showing the ways in which the common law accommodated and did not accommodate their claims and grievances, can go some way towards elucidating their ideas, and thus the world in which women had to operate, in their relations with the common law.

Appeals

Isabella’s actions of robbery and rape were appeals: individual prosecutions, used for allegations of serious offences. Bringing appeals was one of the most visible roles of women within the medieval common law system. They had no direct access to other forms of ‘criminal’ prosecution: the inclusion of wrongs against women in presentment or indictment, or special commissions, depended on securing the support of male jurors, coroners and officials. Although all appeals were in relative decline from the thirteenth century onwards, women’s appeals appeared in records and reports throughout the medieval period.⁴ Furthermore, they retained more of a presence in legal consciousness throughout and beyond the period than numbers alone would have suggested, as they continued to be a matter of interest for legal scholars and writers well beyond the medieval period.⁵ The picture which is emerging from considerations of the extent to which women’s appeals were limited, formally, practically, and in terms of the chances of success (however that is defined) is one of complexity and interest, which challenges legal historians to examine their understanding of the nature of the common law in medieval England.

3 For an unusual example of wider-ranging discussion of the rights of women in law suits, ranging through implications of marital status in dower, cui in vita and appeals, see Seipp 1376.028.

4 Klerman, ‘Women Prosecutors’, p. 271; Kerr, ‘Husband and Wife’, pp. 226, 232; Daniel R. Ernst, ‘The Moribund Appeal of Death: Compensating Survivors and Controlling ­Jurors in Early Modern England’, AJLH 28 (1984), 164–88, 164. Hyams, ­‘Maitland’, p. 230; ­Daniel Klerman, ‘Settlement and the Decline of Private Prosecution in ­Thirteenth-Century England’, LHR 19 (2001), 1–65, 3; Whittick, ‘The Role of the Criminal Appeal in the ­Fifteenth Century’, p. 55; Seipp 1302.189rs; 1320.006; 1351.075; 1399.011; 1405.080; 1457.022; 1468.044; 1481.042; 1497.018; 105 SS, cxlvii p. 180; lxv; 132 SS, p. 184.

5 See, e.g., F. Pulton, De Pace Regis et Regni (London, 1609), f. 156 ff; W. Hawkins, A ­Treatise of the Pleas of the Crown, 2nd edn (2 vols, London, 1724–6) II, pp. 162, 17; Bl. Comm., book IV c. 23.

Subject matter

Statements from the twelfth century onwards assert limitations on the circumstances in which a woman could bring an appeal. These are present in Glanvill, in later treatises, in the Magna Carta of 1215 and its descendants and in some records of practice. It should be noted however that these sources set out somewhat varying versions of the limitations. All accounts agree that a woman might appeal alleged killers of her husband (although, as will be discussed below, the basis for permitting her to do so is not clear). This alone is mentioned in Magna Carta 1215 c. 54, but not in such a way as to exclude the possibility of appeals for other offences.⁶ There is less apparent consensus as to the other circumstances in which she might appeal. The offence which is mentioned next most frequently as one which could form the subject matter of a woman’s legitimate appeal is rape, which may be specified or may be presented as an example of the wider category of harm to the woman’s body.⁷ Some statements include the possibility of a woman’s appeal for the killing of a foetus with which she was pregnant, following assault or other misconduct.⁸ This, too, might be regarded as a development of the idea of harm to the woman’s body, though this is never made clear. There were appeals (and other prosecutions) based on the death of a foetus, but there was variation in terms of who brought these – the woman, the father/husband or both.⁹ The absence of consensus on whether the death of a foetus was something which should found an appeal, and if so, whether such an appeal (or, indeed, some other action) should be brought by the woman, by the father/husband, by both or by neither, is not surprising, given that ideas about the nature and value of the foetus were in flux amongst common lawyers in the thirteenth and fourteenth centuries, at the same time that there were changes in the range of possible legal actions for personal injury.¹⁰

6 See Placita Corone, p. xxviii; Carpenter, Magna Carta, p. 106; JUST 1/1098 m. 72 (IMG 7352).

7 Hudson OHLE II, p. 722; Glanvill XIV, pp. 1, 3–4, 6; Bracton II, pp. 416, 419. Statements that women have appeals only for death of husband or rape: (1202) 1 SS p. 13 no. 32; Somersetshire Pleas, p. 263 no 929, JUST 1/756 m. 17d, (1243); death of husband and injury to her body only (1290) KB 27/125 m. 22d (IMG 8048).

8 Bracton II, 341; Fleta book 1 c. 23, 33; Placita Corone, xxviii; Britton book 1, c. 24, s.7. (1261); death of H, rape of virginity (and abortion). JUST1/82 m. 23 (IMG 484). No appeal for women for death of a foetus: Mirror, book IV, c. 16, p. 139. 132 SS, p. lxxix: readers disagree on whether killing a foetus amounted to felony.

9 Women’s appeals for killing a foetus: 1 SS p. 39, no 82 (1200); 1202 JUST 1/479 m. 3d (IMG 1280); Lincs RS 22, no 690 (though note those in no 629 and 638 are brought by H); JUST I/996 m. 40 (IMG 94) (1249); JUST 1/ 778 m. 50 (1256); JUST 82 m. 23 (IMG 484) (1261) 1268–9, JUST 1/569A m. 28d (IMG 8247); JUST 1/486 m. 8 (IMG 2735) (1281–4); JUST 1/1006 m. 61 (IMG 9977) (1289); JUST 1/739 m. 81 (IMG 1594) (1292).

10 Butler, ‘Abortion by Assault’, p. 16. Husband’s/male’s appeal, e.g., PCCG 16 p. 140; 1 SS 1 p. 11; JUST 1/111 m. 28d (IMG 3822) 1284. Married woman’s appeal, e.g., 1 SS p. 32 no 73 (1203). Presentment or indictment, e.g., Somersetshire Pleas, 321 no 1243 (1242–3); JUST 1/302 m. 85 (IMG 8370); JUST 1/1015 m. 13 (IMG 1231); JUST 1/547A,/ 20d (IMG 5833); KB 9/167 m. 19 (IMG 36); 1350 KB 27/365 m. 15 (IMG 7174); JUST 3/20/4 m. 44 (IMG 105) 1411–12. On the legal status and value of the foetus, see Wolfgang Mueller, Criminalization of Abortion in the Medieval West (Ithaca, NY, 2012), p. 12; Seipp 1348.302ass. Killing a foetus arose in indictments and coroners’ rolls thereafter, where the woman, too, was killed or where she was raped: see, e.g., 9 SS 114 (1361–2); KB 9/219/2 mm 12 and 13 (IMG 24 and 26); KB9/269 m. 37 (IMG 70).

Women did bring appeals of wounding and mayhem, from at least the mid-thirteenth century, without regular, obvious, objection.¹¹ These fall within the scope of those statements of their legitimate appeals, which include a general reference to bodily injury, rather than specifying rape.¹² There was clearly a threshold of severity test for appeals of wounding, since a case of 1292 showed a woman’s head wound to be considered insufficiently serious to found the action, though it was thought she could recover damages by plaint.¹³ Appeals of mayhem, unlike other appeals, were understood to focus on the obtaining of compensation rather than the corporal or capital punishment of the offender.¹⁴ An interesting matter with regard to women’s appeals of mayhem is that treatises generally defined mayhem in terms of damage to a man who might otherwise fight for the king, its masculine character being emphasised by references to damage to the testicles.¹⁵ Nevertheless, the appeal of mayhem became a more general route for those, including women, who suffered injury, to seek redress. This may well not be a matter of contradiction between ‘law’ and ‘practice’, but between gendered expression in legal treatises and a legal practice which did not recognise or did not concern itself with the explanation of mayhem as connected to fighting capability.

11 Wounding/mayhem; see, e.g., CRR XX (1250) no. 1034 p. 186; KB 27/497 m. 14 (IMG 29). KB 27/582 m. 56 (IMG 139); Wilts GD and T, p. 33; (assault on female servant, trespass) KB 27/584 m. 93d (IMG 191); KB 27/420 m. 16d (IMG 295). Presentment/indictment, see, e.g., KB 27/313 Rex m. 14 d (IMG 236).

12 See, e.g., JUST 1/1098 m. 14 (IMG 6774); JUST 1/569 m. 33 (IMG 8183); JUST 1/135 m. 16d (IMG 7066); JUST 1/568 m. 26 (IMG 8003); JUST 1/111 m. 30 (IMG 3744): see also P.R. Orr, ‘Non potest appellum facere: Criminal Charges Women Could Not, but Did, Bring in Thirteenth Century English Royal Courts of Justice’, in The Final Argument: The Imprint of Violence on Society in Medieval and Early Modern Europe, ed. by D.J. Kagay and L.J.A. Villalon (Woodbridge, 1998), pp. 141–62, 145, 147.

13 JUST 1/409 m. 7 (IMG 17).

14 See, e.g. a 1284 case JUST 1/111 m. 30 (IMG 3744).

15 Bracton II, p. 409; Fleta book 1 c. 38; Mirror book 1 c. 9. Baker, OHLE VI pp. 513, 553. On wounding and mayhem: Bracton II, pp. 408, 411; Fleta book 1 c. 25; Seipp 1407.011 1484.038; 1498.005. On castration: Bracton II, p. 408, borrowing from D. 48.8.3.4–5.

Beyond homicide, rape and mayhem, the overall position is one of some uncertainty. A tension has been identified in this area between apparent rules and actual practice, with women observed to have been allowed to bring appeals where this should not have been allowed. The presence of what have been classed as ‘unconventional appeals’ has been taken to indicate that ‘the rules’ were ‘feebly enforced’.¹⁶ This might be due some reconsideration. One of the main ‘transgressions’ was women’s relatively frequent appeals for robbery. We have seen that Isabella de Bernard had brought such an appeal, before her appeal of rape. Clearly this offence was not listed in the treatises amongst the legitimate subject matter for their appeals, but while the more usual view was that women should not, strictly speaking, be allowed to bring appeals of robbery, this was not so unquestioned that we can label all examples of such appeals as clear exceptions to a definite rule.¹⁷ Some robberies involved assault to the person and might, therefore, be associated with the ‘damage to the body’ category of legitimate appeal.¹⁸ A record of a case of 1212 shows a woman’s apparent uncertainty as to whether she could in fact bring an appeal of mayhem and robbery,¹⁹ suggesting that it was not out of the question at that point that she could bring an appeal of robbery, at least in combination with another perhaps more securely legitimate, matter. Isabella de Bernard’s allegation of robbery also seems to have been based upon a scenario which involved physical force. Numerous women did bring appeals of robbery alone without objection based on sex,²⁰ and some later opinions did in fact include robbery as a legitimate female appeal.²¹ The exclusionary rule here is not as clear as has been assumed. Other sorts of appeal seem to be clearer ‘exceptions’, especially those for killings of those other than a husband or for harm to a husband which had not (yet) resulted in death,²² and outlying female appeals of arson, (possibly) sorcery and ejection from a home.²³ There are instances of objection that particular appeals are not allowed to women, but these are comparatively few. The presence in Year Books of ‘unconventional appeals’ shows that they did not horrify common lawyers or judges. Perhaps the overall picture can be framed as one of loose or evolving rules as much as strict law v. looser practice. Statements of the law are not consistent, not reasoned and do not provide a complete code; the records also suggest inconsistency.²⁴

16 Kerr, ‘Husband and Wife’, p. 245; Placita Corone, p. xxviii.

17 Seipp 1313.305ss. 24 SS, p. lxxx.

18 Green, Verdict, p. 60. Note a prioress appealing for robbery: JUST 1/956 m. 38 (IMG 7841). The example appeal of robbery in Placita Corone, at p. 10, is certainly violent.

19 Alice v Coventry (1212), 1 SS, p. 38 pl.105; Plac. Abbrev., 84. For uncertainty, see also 24 SS, p. lxxx.

20 See Orr, ‘Non potest’, and, e.g., 24 SS, p. xxx; Seipp 1302.212rs; 1313.288ss; 1344.162rs; JUST 1/996 m. 23d (IMG 145); JUST 1/804 m. 48d (IMG 2550); 1 SS, p. 6; KB 27/596 m. 49 (IMG 115); KB 27/839 m. 58 (IMG 136).

21 105 SS, p. cxlvii on c. 34. no. 66 p. 87; pp. 180, 184; Pulton, De Pace, p. 159.

22 See, e.g., KB 27/125 m. 22d; KB 27/181 m. 55; Stenton LRS vol 22 no 630; JUST 1/804 m. 57d (IMG 2567); JUST 1/996 m. 27d (IMG 152); JUST 1/996 m. 33 (IMG 81); Somersetshire Pleas, pp. 18–19; p. 232 no. 764. 1242–3, JUST 1/756 m. 13d (IMG 2888). Appeals by W for not (yet) fatal assault on H: 1 SS, pp. 10, 24, 25; Somersetshire Pleas p. 347. JUST 1/756 m. 17d p. 260 no 962.

23 P & M II, p. 552: Placit. Abbrev. 62; arson: JUST 1/1256 m. 55 (IMG 210). JUST 1/996 m. 39 (IMG 94).

24 Hudson, OHLE II, p. 723.

In a sense, it is hardly surprising that there might be uncertainty or disagreements about exclusion, since the reasons for including women at all were never clearly articulated. Allowing women the initiative in some ‘criminal’ proceedings was not the product of a single, clear, rationale: reasons for allowing women’s appeals may have ranged from the desire to ensure prosecution in situations with a likely lack of other witnesses, through the location of damage (physical or economic) in the woman personally, to an idea of a woman’s right or duty to seek revenge in certain circumstances. Glanvill appears to take into account ideas of witnessing, kinship and the ‘one flesh’ metaphor, under which violence against the husband might be deemed violence against the wife herself.²⁵ This is extended in some later sources to call the death of the husband a ‘dismemberment’ of the wife.²⁶ Revenge and interest based on the woman’s economic loss are noted by later common lawyers as reasons for a widow to be allowed to bring an appeal,²⁷ and her role as a likely witness seems important elsewhere.²⁸ Opinions might differ as to whether the right to bring an appeal resided in only one individual (so that if the ‘wrong’ person appealed, the appeal would fail) or whether more than one person might be entitled to bring an appeal, and, further, if there was a ‘pecking order’, how a woman’s claim would rate against those of others. This debate or uncertainty, too, reveals a lack of consensus on the foundation of a right to appeal. Britton insisted that the male was to be received before the female, but also that the ‘next of blood’ was to be received before the more remote, setting up the possibility of competing principles.²⁹ A case of 1353 showed a degree of disagreement with regard to the relative importance of sex and closeness of relationship or inheritance rights, in relation to who should bring an appeal.³⁰ There are examples of objections to a male relative’s appeal, on the grounds that the slain man has left a living widow,³¹ suggesting that there is a ‘pecking order’, with the widow ranked first, and it seems unlikely that the many husbands whose wives appealed in relation to their death had no male kin. There are even suggestions by a fifteenth-century judge – supported to some extent by a reading from the end of the fifteenth century or very beginning of the sixteenth century – that the widow’s right is so strong that a wife who has taken part in her husband’s killing can appeal her own partners in crime.³² Given ideas as to ‘petty treason’, to be discussed below, this seems odd, and no cases supporting such a view have been found. Nevertheless, it is interesting that the suggestion could be made, showing strong support for the widow taking the lead in the search for justice or vengeance. There are also examples of what may be a more permissive regime, less insistent on the widow’s pre-eminent right and with more than one person having the right to appeal.³³ A fifteenth-century reading, which Baker dates c. 1455/60, admits that there is some disagreement as to the relationship between the right of the widow and the heir of a slain man to bring an appeal, and, in particular, the right of the heir to bring an appeal if the widow does not do so at all or in a timely manner.³⁴

25 Hudson OHLE II, p. 722; Glanvill XIV, 3. Placita Corone, p. xxviii.

26 132 SS lxix, p. 265.

27 Seipp 1407.029; 1442.085; 132 SS, p. 385.

28 P & M II, p. 485; Britton, book I, c. 24, note q.; Whittick, ‘Role of the Criminal Appeal’, pp. 57, 65.

29 Britton book 1, c. 2 no 7.

30 Debate on the relative claims of a female cousin and heir and a male rival: Seipp 1353.150ass.

31 Seipp 1314.017ss; Klerman, ‘Women Prosecutors’, p. 293; Susanne Jenks, ‘Occidit … inter brachia sua: change in a woman’s appeal of murder of her husband’, JLH (2000), 119–22, 120.

32 Seipp 1421.092rog; 132 SS, p. 271. Compare Seipp 1449.070abr. st. 3 Hen. VII c. 2. For a ‘pecking order’ between brothers, see KB27/218 m. 10 (IMG 24); Seipp 1412.047abr.

33 SR II, 511, expects the widow of a murdered man or the heir to bring an appeal. Whether there is a ‘pecking order’ between them is unclear.

34 132 SS, 268.

Where there is some indication of motivation or policy, limitation of women’s right to appeal might be based more or less squarely on low estimations of women’s capacities and ideas as to their appropriate role.³⁵ Extreme ideas of the relevance of sex can be seen in the argument that the contamination of womanhood travelled down the generations, and a right to appeal could not even be passed on to a man through a female ancestor.³⁶ Incapacities imposed upon women by the common law might also lead to their exclusion. Legislation of 1285 concerning appeals expressed a concern that somebody might bring a false appeal, but then not have the resources to compensate the disgruntled accused, leaving him without a satisfactory means of redress. This was not stated to be about appeals by women, but their lower economic position might mean that they could have been used by others to bring appeals in this way, before the statute put ‘abettors’ of such an appeal at risk of being held financially responsible for the damage caused to the defendant.³⁷ Another limitation imposed upon women which might affect their perceived suitability to bring appeals was the convention that women did not take part in trial by battle, the traditional mode of proof for the appeal. Bracton stated that a woman could not do battle ‘because of her sex’.³⁸ The Mirror gave a partial elaboration upon this, to the effect that the sex disqualification was based upon the fact that men and women were not peers or equals (the assumption being made that the defendant would be male). For good measure, but without explanation, it was said that women could not do battle with other women either.³⁹ It was true that women did not participate in trial by battle in appeals, though there is a chronicle report of a battle supposedly ordered, albeit not fought, in 1402 between a woman and an elderly Franciscan friar.⁴⁰ A reported case of 1313 supports the view that the fact that women could not engage in these judicial duels contributed to the limitation of their right to appeal.⁴¹ By this time, trial by battle was in decline, but clearly the connection persisted in the minds of common lawyers.⁴² The fifteenth-century ‘ordinary gloss’ of the common lawyers on Magna Carta c. 34 (1225; c. 54 of 1215) also used the explanation for the restriction of women the fact that women’s appeals involved removing from (male) defendants the possibility of trial by battle. As Baker notes, there are some logical flaws in such an explanation (at least as a whole explanation for a reduction of women’s possibility of appealing), in that it did not rule out other instances in which a defendant would not have been able to wage battle (e.g. actions brought by those too young or old to fight).⁴³

35 R.H. Helmholz, ‘Magna Carta and the ius commune’, University of Chicago Law Review lxvi (1999), 297–371, 350–2.

36 Seipp 1322.020; 1442.085; 1477.012; 51 SS p. 95 case 24.

37 st. Westminster II (1285) c. 12.

38 Bracton II, pp. 402, 403; Fleta book 1, c. 32.

39 Mirror, book III, c. 23. See also CRR XV 1233–7, pp. 191–2 no 905.

40 Mirror book III, c. 23; Orr, ‘English Women’, p. 27; Seipp 1356.077. Bellamy, Law of ­Treason, p. 145; F. S. Haydon (ed.), Eulogium historiarum sive temporis, Rolls Series, 9 (3 vols, London, 1858–63), vol. 3, p. 389.

41 Seipp 1313.305ss.

42 Baker, Introduction, p. 544; M.J. Russel, ‘Trial by Battle and the Appeals of Felony’, JLH 1 (1980), 135–64.

43 132 SS, lxxix, pp. 266, 269, 279.

Building on the fact that women were neither allowed nor required to fight battles, and that this might form a link with their limited role in appeals, modern commentators have added the idea of a fear that women, because they would not have to risk themselves in battle, would be put up to bringing malicious and ill-founded appeals. While there are allegations of false accusation, however, there is a need for care in evaluating them and in drawing conclusions. Some ‘false appeals’ may have been exaggerations of actual wrongs rather than complete fabrications, and some may not have been false at all.⁴⁴ While we should not take at face value accusations in legal records, our doubt should not be selective: the recording of an appeal as ‘false’ is not any more trustworthy than the allegation in the initial appeal, and allegations of conspiracy to concoct and bring a false appeal may be untrue.⁴⁵ The best evidence of false appeals by women may be their own allegations that they were forced to bring appeals (though even here we cannot be sure of veracity).⁴⁶ It should be noted that allegations of the bringing of false accusations are by no means confined to appeals by women, and that women are not singled out by contemporaries as particularly likely to bring a false appeal.⁴⁷ Statements of fear of the number of false appeals of homicide in a late thirteenth-century statute, for example, do not cite women as the concern, and it is minors and (male) approvers who are noted in enactments as posing a specific problem in this area, not women.⁴⁸ The existence of ‘false appeal’ allegations or findings against women is not a strong argument for their particular likelihood of bringing dishonest proceedings, nor for the fear that they would do so. In addition, if the manipulation of women into bringing false appeals was feared, that would seem to be a reason to bar all appeals by women against men, giving the right to male kin in the event of homicide of a married man, for example, rather than allowing some female appeals, but the common law did not go down that path.

44 Apparent exaggeration of an attack, brought as appeal of wounding: JUST 1/756 m. 17d (IMG 2897).

45 Coss, Lady, p. 140. Alleged conspiracies to have a woman bring a false appeal: KB 27/160 m. 44 (IMG 2156); SC8 77/3832; Rose, Maintenance, p. 115; KB 27/369, Rex m. 55d (1352), (IMG 9775). See also Rose, Maintenance, p. 125; JUST 1/166, m. 49d, (IMG 9781 and 127); JUST 1/24, m. 47 and 47d (IMG 110, 231).

46 See, e.g., SC8/50/2493; Coss, Lady, p. 140; 96 SS no 672 (1256).

47 Alleged baseless appeals: Whittick, ‘Role of the Criminal Appeal’, p. 68; SC 8/77/3832; 221/11030; 41/2028. KB 27/514 m. 26; SC 8/50/2493; Seipp 1345.053rs; KB 27/134 m. 27d (IMG 1770). Odio et atia: e.g., two women ordered to gaol: JUST 1/778 m. 50 (IMG 7903); see Kamali, Felony, p. 291, Susanne Jenks, ‘The Writ and Exception de odio et atia’, JLH 23 (2002), 1–22. For consequences of maliciously brought accusations, see, e.g., (1340) KB 27/322 Rex m. 11 (IMG 371).

48 st. Westminster II c. 12, SR I, p. 81. Statute of Conspirators, SR I, p. 145; Anthony. Musson and Edward Powell, Crime, Law and Society in the Later Middle Ages (Manchester, 2009), p. 119; SR I, p. 165, c. 34. For a complaint about women’s litigation, particularly that of Alice Perrers, see RP II, p. 329 and note XXX, though this does not concern false appeals.

The ‘conventional’ categories for women’s appeal were themselves neither straightforward nor free from restriction. The appeal for death of a husband was not without difficulty. A remarried widow might lose her right to appeal, for example, on the basis that when she married a new man, ‘her grief is thus at an end’.⁴⁹ Another limitation might be caused by the requirement, seen in some prescriptive sources, that the woman’s husband was killed, or died, ‘in her arms’.⁵⁰ Sometimes, it appears that the allegation was that he actually did die in her arms (not a particularly far-fetched scenario, if she was present when he was attacked), but often this formula was no more than a justification of her action by an indication of her presence at his death, whether factually true or not, casting her in a witness-like role.⁵¹ The importance of the ‘in her arms’ formula has been shown to have changed over time: crucial in the reign of Edward I, it dropped out of use by the reign of Richard II, having come to mean only that the couple had been lawfully married. Because an exception could be raised to an appeal brought by a woman for the death of her husband on the grounds that she was not his wife, even without this phrase, its inclusion now appeared redundant.⁵²

49 Richard Littleton, 1493, CUL MS Hh 3.6 f.5, cited in Whittick, ‘Role of the Criminal Appeal’, p. 65. Disputes as to marriage, divorce: Seipp 1376.028; 1410.023; 1425.145abr; KB 27/516 m. 32 (IMG 67), Jenks, ‘Occidit’.

50 For this formulation in appeals, e.g., JUST 1/643 m. 4 (IMG 542); KB 27/313 Rex m. 22d (IMG 252). See Placita Corone p. xxviii; Jenks, ‘Occidit’, p. 120, Mirror, book II, c. 7; BNB no 1600; Glanvill, XIV c. 3; Bracton, II, pp. 388, 397.

51 KB 27/114 m. 50d (IMG 6155). Jenks, ‘Occidit’; Placita Corone, p. 5; Fleta book 1 c. 33.

52 Jenks, ‘Occidit’, p. 120; Coke, Inst. II, 68. For the phrase used for holding somebody to facilitate a third person’s attack: e.g., JUST 1/934 m. 4 (IMG 5656). See also 1 SS, p. 59.

While widows were understood to be the only women able to bring appeals of homicide, appeals of rape were not explicitly limited to a particular subset of women, and Bracton expressed the view that they could be brought by female children, by virgins and by sexually experienced women.⁵³ Nevertheless, the treatise sees the virgin as the paradigm complainant, with men who rape other women subject to lesser penalties at most.⁵⁴ A large proportion of cases allege ‘defloration’, supporting the idea that rape of virgins was the central concern, and documents of practice suggest that thirteenth-century rape appeals were almost always brought by unmarried women (and some by girls as young as seven had to appeal in the same way as adults).⁵⁵ Married women were certainly restricted in that they could not bring appeals of rape against their own husbands – the problem faced by Isabella de Bernard, the woman found to have married Walter Manston, in the case at the beginning of this chapter.⁵⁶ The shielding of rapists and abductors who managed to force women into a form of marriage led to legislation in the fifteenth century, but remained a conundrum.⁵⁷ A married woman also required the co-operation of her husband to bring appeals of rape by another man.⁵⁸ A more shadowy area of possible restriction related to female villeins, especially with regard to rape by their lord. At the end of the period, Littleton thought it worth emphasising that they did have a right to an appeal of rape, suggesting that there had been some doubt about the matter (that is to say, doubt as to the right to bring an appeal, not whether a lord could force sex upon his villeins).⁵⁹ In addition, considerable limitations existed, in terms of the readiness to class as non-forcible, not against the woman’s will and non-rape (or not appealable rape) many cases of penetration. Thus, instances of previous, allegedly consensual sex with the defendant, or the pregnancy of the woman, were good exceptions.⁶⁰

53 JUST 1/1256 m.64 (IMG 0228), SC 8/199/9943. Objections to execution, use for non-­virgins: Mirror, book V, c. 1.

54 Bracton II, p. 415. Mirror book II, c. 31; J. Carter, ‘Rape and Medieval English Society: The Evidence of Yorkshire, Wiltshire and London, 1218–76’, Comitatus 13 (1982), 33–63, 50. Britton, book 1 c. 15, defines rape as a felony, whether or not the woman is a virgin.

55 Kerr, ‘Husband and Wife’, pp. 226, 243, Roger D. Groot, ‘The Crime of Rape Temp. Richard I and John’, JLH 9 (1988), 324–34, 324–5. For an appeal by a seven-year-old, see JUST 1/1256 m. 64 (IMG 228); SC8/199/943.

56 See also KB 27/365 Rex m. 1 (IMG 7144) (jury presentment, pardon because the defendant married the girl or woman in question), and 115 SS pp. 98–101, KB 27/925 m. 87d, KB 27/923 m. 54d.

57 Seabourne, IMW, pp. 100–3; SC8 336/15869; SC8 27/1316; RP IV, 498; RP V, 14b–15b.

58 See, e.g., 1 SS p. 92 no 141 (1221); Seipp 1302.157rs, 1407.012. Appeal of robbery of W, brought by H and W. KB 27/518 m. 20d (IMG 305). Complications imagined relating to a revoked divorce, with the woman raped during the period between divorce and ­revocation: 105 SS pp. cxlvii, 180.

59 Litt., book II, no. 190; P and M I, p. 39; Hyams, KLP, p. 150; Pulton, De Pace, 159b.

60 Bracton II, p. 416; Mirror, book III, c. 21; Kerr, ‘Husband and Wife’, p. 243; Elise Bennett Histed, ‘Medieval Rape: A Conceivable Defence’, CLJ 63 (2004), 743–69; KB 27/566 m. 21 (IMG 51).

All appellors might be frustrated by the technical requirements of the appeal.⁶¹ The level of detail required to be stated and repeated was demanding, as can be seen in an appeal by Felicia, widow of John Gervaise of Stamford against Richard son of Robert, for the death of her husband. Richard objected that he was a clerk and also noted that the appeal was insufficiently clear about several matters: which of two possible feasts of St Andrew and which of two possible churches of Our Lady at Stamford were meant as reference points for the scene of the crime; whether the ‘ten feet from the steps’ location was to the east or west of the aforesaid steps; what was the material of the murder weapon’s blade; and what the precise location of the fatal wound, in inches from the jaw of the deceased. Doubts about naming and assigning parentage of the victim were also raised.⁶² Appeals brought by men had similar difficulties.⁶³ In all appeals, it might be claimed that the action was brought for improper motives, or was ‘false’.⁶⁴ Any appellant might face violence or other forms of pressure or influence which hampered them in trying to bring their cases. We hear, for example, of a woman bringing an appeal of rape allegedly assaulted to stop her doing so,⁶⁵ of another woman who was said to have been prevented from pursuing her appeal by a trumped-up suit, causing her to be imprisoned at a critical point,⁶⁶ and yet another alleging that threats were making it impossible to bring an appeal for the death of her husband.⁶⁷ Anyone bringing an appeal also faced financial and legal penalties if the case was abandoned or no conviction obtained. The importance to women of these ‘gender neutral’ difficulties with the appeal was, however, disproportionately large, since their alternative routes to prosecution were fewer. As well as facing all of the same difficulties and complexities of bringing an appeal which faced men, women also faced additional hurdles and problems. It might be argued that a woman’s marital status disqualified her, but the same did not apply to a man.⁶⁸ Some requirements were not specifically for women’s appeals, but might nevertheless have been particularly challenging for women. Thus, in particular, a raped woman must exhibit physical signs of the offence. Blood and torn clothes are suggested in some treatises as appropriate and perhaps necessary evidence that the penetration was against the woman’s will, suggesting a need for quick and intimate exhibition.⁶⁹ It is true that all appellors had to act swiftly, and that those appealing for wounds as well as raped women had to exhibit themselves, but it seems plausible to suggest that the action required of a raped woman presented a particularly heavy and possibly discouraging burden, since the exhibition may well have been more intimate than that of other injuries, and the matter was regarded as more shameful than receiving a wound,⁷⁰ and since there is unlikely to be a complete discontinuity between the psychological and psychiatric response of medieval and modern women to a rape, and there is modern evidence that being subjected to rape is particularly likely to lead to conditions which would subdue the ability to take immediate, decisive action such as initiating a prosecution.⁷¹

61 Sara M. Butler, Forensic Medicine and Death Investigation in Medieval England (New York and Abingdon, 2015), p. 157. Rape appeal quashed for ‘trivial matter’, see SC 8/199/9943. Discussion of procedure on women’s appeals: Seipp 1324.112; 1339.045rs; 1367.088ass; 1342.161rs; 1342.287ass.

62 24 SS 100 ff.

63 See, e.g., relating to location: KB 27/872 m.5d (IMG 459).

64 See, e.g., KB 27/177 m. 63d (IMG 5809); KB 27/177 m. 69d (IMG 5826), SC8/179/8928. Alleged false appeal by women: (robbery) KB 27/602 m. 27d (IMG 156); (H’s death) KB 27/514 m. 26 (IMG 54); SC8/298/14865. Malicious procuring of indictment by men, e.g., JUST 1/1107 m. 20d (IMG 8597); woman claiming men conspired to indict her, falsely, of theft: KB 27/533 m. 35d (IMG 210). For the ‘de odio et atia’ procedure, see Susanne Jenks, ‘The Writ and the Exception de odio et atia’, JLH 23 (2002), 1–22.

65 KB 27/479 m. 29, 29d (IMG 176, 7144). See also, e.g., Seipp 1368.106ass, assault in ­Westminster Hall.

66 Seipp 1341.102rs.

67 SC8/345/E1330. See also SC8/334/E1192.

68 Marital status, e.g., KB 27/432 m. 60 (IMG 123); KB 27/516 m. 32 (IMG 67). Villein status: Seipp 1344.162rs, excommunication: Seipp 1329.072, 1329.171ass; KB 27/276 Rex m.9 and 9d (IMG 253 and 17).

69 Glanvill, XIV, 6; Bracton II, p. 394; OHLE 1, pp. 721–35. Placita Corone, p. 25. 60 SS ccii; Britton book 1 c. 17; Mirror book III, c. 21 p. 103.

70 See, e.g., Corinne Saunders, Rape and Ravishment in the Literature of Medieval England (Woodbridge, 2001), pp. 159–60, 171–2, 196.

71 See, e.g., Carlo Faravelli, Alice Giugni, Stefano Salvatori and Valdo Ricca, ­‘Psychopathology after Rape’, American Journal of Psychiatry 161 (2004), 1483–5; ­Jean-Michel Darves-Bornoz, ‘Rape-related Psychotraumatic Syndromes’, European Journal of Obstetrics & Gynecology and Reproductive Biology 71 (1997), 59–65; R. ­Campbell and S. Raja, ‘The Secondary Victimization of Rape Victims: Insights from Mental Health Professionals Who Treat Survivors of Violence’, Violence and Victims 14 (1999), 261–75; Karen G. Weiss, ‘Too Ashamed to Report: Deconstructing the Shame of Sexual Victimization’, Feminist Criminology 5 (2010), 286–310; A. Feist, J. Ashe, J. Lawrence and D. McPhee, Investigating and Detecting Recorded Offences of Rape (Home Office Online Report 18/07, 2007), p. 24. Anna Mӧller, Hans Peter Sondergaard and Lotti Helstrom, ‘Tonic Immobility During Sexual Assault: A Common Reaction Predicting Post Traumatic Stress Disorder and Severe Depression’, Acta Obstetricia et Gynecologica Scandinavica 96 (2017), 932–8.

A group of fifteenth-century plea roll cases show both the importance of women’s appeals for the death of their husbands at the hands of powerful interests, and also the problems in seeing them through, when opposed by those with influence, in a time of tension and weak central control. In the case of the murder of Nicholas Radford, killed in 1455, the usual criminal process did not work, due to the influence of local nobles and to the inability of his sick wife to bring an appeal.⁷² The wife of William Tresham suggested that the offenders’ threats were making it impossible to use the local sheriff and coroner to take action for the killing of her husband.⁷³ Agnes Glover v Walter Devereux, William Herbert and others (1457) shows an appeal brought by a widow against a group of powerful men, following an episode in which Devereux, Herbert and associates took over Hereford and its institutions for a period in 1456, forcing local judicial authorities to find Glover guilty of killing Herbert’s kinsman, so that he could be hanged.⁷⁴ The irregular hanging had to be forced into the appeal formula, significantly distorting the apparent facts, showing the difficulty of using the appeal process to take action against an abuse of justice of this sort. Despite the many difficulties and obstacles, some women might show great determination in bringing appeals, against principals, accessories and those allegedly on the fringes of involvement in the deaths of their husbands. This can be seen, for example, in the efforts of an early fifteenth-century woman, Alice atte Wode, to pursue those she accused of responsibility for her husband John’s ‘contract killing’ death at Westminster, despite the fact that they had been violent towards her and her husband in the past.⁷⁵ Alice’s less robust sisters should not, however, be ignored.

72 G.H. Radford, ‘Nicholas Radford’, Transactions of the Devonshire Association. xxxv. 251–78; SC8/138/6864.

73 RP V, pp. 211–12; TNA C 65/101 m. 2–3.

74 KB 27/784 m. 85; KB 27/781 Rex mm. 1d and 26d and KB 27/782 Rex m. 22; Seipp 1457.022. See, e.g., A. Herbert, ‘Herefordshire, 1413–61: Some Aspects of Society and Public Order’, in Patronage, the Crown and the Provinces in Later Medieval England, ed. by Ralph A. Griffiths (Gloucester, 1981), pp. 103–22; Ailsa E. Herbert, ‘Public Order and Private Violence in Herefordshire, 1413–61’, MA Thesis, University of Wales, Swansea 1978; Gwen Seabourne, ‘Judging a Hereford Hanging: Agnes Glover v. Walter Devereux, William Herbert and others, 1457’, Midland History 45 (2020), 2–17.

75 Seipp 1405.080; 1405.098; KB 27/575 Rex m. 10 d (IMG 85); KB 27/577 Rex m. 2d (IMG 263); KB 27/577 Rex m. 2 (IMG 124); KB 27/578 m. 11 (IMG 25); KB 27/578 m. 57d (IMG 392); 35 SS, pp. 86–92, civ–cvi.

An exhaustive study of the ‘success rate’ of appeal cases is beyond the scope of this monograph. Information about ultimate resolution or end of these actions is very imperfect, and it is not clear how one ought to define ‘success’ in any case. There are examples of convictions and executions as a result of women’s appeals.⁷⁶ It is, however, relevant to note that all indications are that the overall picture is one of few completed cases and convictions, a point particularly emphasised in treatments of appeals of rape.⁷⁷ This may lead to a questionable line of reasoning, from the low number of convictions to a view that this suggests that a high proportion of the allegations are likely to have been false, and, in the case of rape, that they may have been made for the purpose of achieving a disapproved marriage by means of settlement or else as the revenge of a discarded woman.⁷⁸ Seeking material compensation after rape or indeed after the slaying of a husband was, however, a course of action both practical and long-rooted, and it does not say anything about the truth of the allegation.⁷⁹ In rape cases settled by marriage, the records sometimes give a good indication that this was far from being a way of attaining a desired marriage, as we see in one early thirteenth-century Cornish case, in which a settlement by marriage between rape complainant and accused was allowed after a jury had accepted that there had been a violent attack, in that the woman complaining of rape had been seen bleeding.⁸⁰ Scholarship has made a welcome move away from seeing financial settlement as obviously less desirable to the complainant than pursuit through the courts, and away from the idea that a conviction and capital punishment was the only ‘successful’ outcome for the prosecutor.⁸¹ This broader approach to the purposes of legal action can be bolstered by consideration of the tendency in all ‘bodily harm’ appeals to an emphasis on compensation rather than the physical punishment of the offender.⁸² Settlement was, and remains, a frequent way of ending all manner of legal disputes.⁸³ In relation to rape, more recent scholarship has emphasised the financial and other risks run by women bringing appeals as a reason to doubt the falsity of their allegations. If they withdrew, or the appeal failed, serious consequences could follow, including imprisonment and financial penalty for them or those who had supported them: they were unlikely to risk frivolous suits.⁸⁴ There are other reasons which might be suggested for the failure of women’s appeals, especially rape appeals, to end in conviction, including the possibility that such appeals may not be taken seriously by male authorities and juries.⁸⁵ The low ‘completion rate’ and ‘success rate’ in women’s appeals are noteworthy, but there is a need for caution in the conclusions which may be drawn from them.

76 See, e.g., appeals for death of H: JUST 3/167 m. 71 (IMG 154); JUST 1/189 m. 25 (IMG 60).

77 Low conviction rate in all women’s appeals, and rape in particular, see, e.g., Wilkinson, Women, pp. 148, 151–2; Orr, ‘English Women’, pp. 145–9, 154, 206, 248; Kerr, ‘Husband and Wife’, p. 243; Settlements in rape appeals, see also Somersetshire Pleas no 848 p. 248, p. 256 no 887; JUST 1/1043 m. 8. For arbitration and compensation for homicide, c. 1475, see Whittick, ‘Role of the Criminal Appeal’, p. 64. Low conviction rate in rape indictments: Butler ‘Violence and Murder’, p. 339, Edward Powell, ‘Jury Trial at Gaol Delivery in the Late Middle Ages: The Midland Circuit,1400–1429’, in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. by J.S. Cockburn and T.A. Green (Princeton, NJ, 1988), pp. 78–116, 101.

78 C.A.F. Meekings (ed.), 1235 Surrey Eyre vol 1 (Surrey Record Society, 1979), p. 123; Placita Corone, p. xxviii. See Klerman, ‘Women Prosecutors’, p. 302; Coss, Lady, p. 140, C.A.F. Meekings, Crown Pleas of Wiltshire Eyre 1249 (Wiltshire Archaeological Society, 1961), pp. 80, 88–90; J.B. Post, ‘Ravishment of Women and the Statutes of Westminster’, in Legal Records and the Historian, ed. by John Baker (London, 1978), pp. 152–3.

79 Whittick, ‘Role of the Criminal Appeal’, p. 65. Financial penalties for rape: M.H. Kerr, ‘Angevin Reform of the Appeal of Felony’, LHR 13 (1995), 351–91, 361; P & M II, p. 516 (1256). Marriage settlement after a violent rape: 1 SS (1201), 7. Whittick, ‘Role of the Criminal Appeal’, p. 63. For variation over time in judicial attitude towards settlement, see Klerman, ‘Women Prosecutors’, p. 274; Klerman, ‘Settlement’, pp. 15–18.

80 Hanawalt, ‘Justice without Judgment’, p. 124; 1 SS, no. 7, p. 3.

81 Ernst, ‘Moribund Appeal of Death’, p. 171; Klerman, ‘Women Prosecutors’, p. 312; ­Hurnard, King’s Pardon, p. 204.

82 KB 27/583 Rex m. 6 (IMG 163) Settlement and pardon for one who had abducted a woman and removed her eye(s) and tongue, 1408: CPR 1405–8, p. 310.

83 See, e.g., in the land context, J.M. Kaye, Medieval English Conveyances (Cambridge, 2009), p. 18.

84 Imprisonment: Seipp 1321.141ss, JUST 1/721 m. 12 (IMG 353); 1325.147; 60 SS ccii; KB 27/720 m. 96 (IMG 196); st. of Wales 1284, c. 3, SR I, p. 56; Seipp 1348.247ass; 1366.106. Note st. Westminster II c. 12, SR I, p. 29.

85 SR I, p. 211; men of Grimsby in mercy for failure to attach a rape accused: JUST 1/479 m. 1 (IMG 1247). Dropped or failed appeals might be taken over in the king’s name: see, e.g., JUST 1/1256 m. 64 (IMG 0228).

Other litigation initiated by or in the name of women

In addition to the appeals discussed above, women also brought a variety of less formal ‘criminal’ complaints bills or plaints and ‘civil’ actions at common law,⁸⁶ relating to rights in land, and wrongs they claimed had been done to them, seeking compensation, the return of land or another remedy. Those litigating at common law represented a relatively broad range of women, from queens downwards (though there were restrictions on the access of villein women to common law courts).⁸⁷ It was by no means the case, however, that the common law was neutral as to sex and gender, or that women were accommodated as well in litigation as were men. The common law limited their ability to litigate via its rules on the disabilities of married women, and also through more indirect means, through choices about which sorts of action to entertain and facilitate.

86 On plaints and bills, see Crook, Records of the General Eyre, p. 7; Helen M. Cam, ‘Studies in the Hundred Rolls’, 57; Alan Harding, ‘Plaints and Bills in the History of English Law, Mainly in the Period 1250–1330’, in Legal History Studies 1972, ed. by Dafydd Jenkins (Cardiff, 1975), 30 SS; 24 SS pp. xxi–xxx; 60 SS.

87 For mid-thirteenth-century land actions, see Loengard, ‘What Is a Nice … Englishwoman Doing’. In relation to appeals, Klerman, ‘Women Prosecutors’, pp. 314, 316, has found that most women bringing appeals were of modest circumstances. Queens, see, e.g., Seipp 1304.091rs; 1352.031; 1344.006rs; 1430.071;1433.072; 1479.033, KB 27/28 m. 3 (IMG 7965); KB 27/784 m. 59d (IMG 401). Prioresses, e.g., Somersetshire Pleas case 1521; CP 40/401 m.166d, CP 40.427 m. 84 (IMG 170); Seipp 1292.226rs; 1306.047rs; 1317.012ss; 1321.211ss; 1442.038; 1364.160ass; KB 27/430 m. 23 (IMG 157); Elizabeth Makowski, ­English Nuns and the Law in the Middle Ages: Cloistered Nuns and Their Lawyers 1293–1540 (Woodbridge, 2012), p. 29; Seipp 1455.023. For women labelled poor, see, e.g., 87 SS, p. lxxix.

As is well known, wives were subject to particular constraint with regard to litigation.⁸⁸ First, they could not sue their husbands at common law; thus a woman whose husband alienated her land had to await his death or their divorce to take action,⁸⁹ and a man sued for trespass against a woman might claim to be her husband, to defeat her suit. Thus, for example, it would have been regarded as a valid exception to a 1310 trespass case, in which Katerine de Ramesden alleged that Philip de Herdewyk and another man had beaten her and taken her chattels, if the Bishop of Lincoln had confirmed when asked to certify the matter that Philip was in fact Katerine’s husband, as he claimed,⁹⁰ since it was a clear rule that a wife could not sue a husband.⁹¹ This spousal immunity was occasionally used in the opposite direction; thus there is a 1338 case in which a male claiming false imprisonment was met with the objection that the defendant was his wife, and so he could not sue her.⁹² There was also a rule that wives could not sue in ‘civil’ actions without their husband’s co-operation, and that seems to have been maintained strongly.⁹³ Should a married woman attempt to bring a trespass action on her own, for example, she would be met by the plea that because she had a husband, she should not sue alone.⁹⁴ Fifteenth-century common lawyers seem to have had a Latin rhyme, expressing the impropriety of a married women suing alone.⁹⁵ As a consequence of this limitation, women would also face problems in litigation if they changed marital status during its course, and cases frequently revolved around whether a woman was single or married at a particular point.⁹⁶

88 See Chapter 2.

89 Sutherland, Assize of Novel Disseisin, p. 112.

90 CP 40/183 m. 142 d (IMG 285).

91 Seipp 1482.135 (which included some argument as to when this had to be raised).

92 He claimed that the ‘marriage’ was forced: Seipp 1338/009rs; CP 40/313 m. 215 d (IMG 0433).

93 Kerr, ‘Husband and Wife’, p. 232. Executrix, remarriage, status issues: KB 27/725 m. 13 (IMG 25); divorce in a novel disseisin action: KB 27/497 m. 28 (IMG 57); debt: JUST 1/302 m. 41d (IMG 8500); trespass, pleading as to whether a woman is sole or covert: KB 27/376 m. 57d (IMG 3280). See, e.g., JUST 1/367 m. 36d (IMG 241); Seipp 1365.111. JUST 1/1066 m. 6 (IMG 3708); JUST 1/956 m. (IMG 7898); JUST 1/367 m. 5 (IMG 12). KB 27/558 m. 22, m. 22d (IMG 46, 275); JUST 1/367 m. 33d (IMG 236); JUST 1/955 m. 13 (IMG 7593).

94 KB 27/626 m. 95d (IMG 518).

95 Seipp 1465.133.

96 60 SS, p. lxxii; 105 SS p. xxxiii; Seipp 1317.004ss. Some issues remained debatable in the sixteenth century, see, e.g., 121 SS, p. 350 (1549).

Women defendants were equally constrained by the disabilities in litigation which were imposed upon wives. If a case was brought which could affect the rights of a wife to an interest in land, but her husband failed to appear or participate, she was at risk of losing her interests, since in general a woman must have her husband’s co-operation to defend her interest in land.⁹⁷ Wives may have been caused problems by a husband’s defaults or unfitness, or his (possible but unproven) death.⁹⁸ Under Edward I, there was statutory intervention to allow the wife to act alone if her husband did not help, and common lawyers subsequently devoted particular attention to determining exactly when a wife could act alone.⁹⁹ It would be possible to see the common law in this area as ‘favourable’ to wives in comparison to husbands, for husbands could also lose out if they were unable to secure the participation of a wife in an action involving both of them, and that problem did not prompt comparable legal assistance. In these situations, which receive attention in several law reports, common lawyers felt obliged to follow their own construction of the marital relationship and state the maxim that a wife was ‘amenable to her husband’s will’, despite the fact that they also showed a lack of belief in this as a current and inevitable reality, repeating that wives were ‘now’ less amenable to a husband’s will than had formerly been the case. An interesting example of this may be seen in a Herefordshire case, Isabella, widow of William de Myners v. Alice wife of Adam de Penbrugge, recorded in the Common Pleas Roll for Michaelmas 1316. This concerned Isabella’s attempt to claim dower lands currently held by Alice and her husband. Alice had failed to appear on more than one occasion and her husband, Adam, did not want this to scupper his chances of holding on to the land. He argued that Alice’s default should not affect him, because Alice had left him. This received an unfavourable reception however: the response was that a wife ought to be amenable to the will of a husband. Adam therefore received no concession, and the court ordered that Isabella should be allowed her dower.¹⁰⁰

97 Prior to legislative intervention, royal favour might be given to allow a woman to litigate alone: CRR X, p. 245 (1221); Orr, ‘English Women’, p. 40; CRR I pp. 153, 382 (1200–1) 62 SS, p. 367.

98 Issues with proof of the death of a male relation: Seipp 1310.032ss; 1309.054ss; 1362.005ass; 1346.011rs, disappearing and reappearing H: Seipp 1478.026. For a conditional resolution in such a case: Seipp 1285.052ss.

99 st. Westminster II c. 3. Plucknett, Statutes, pp. 49–50, 76, 89, 131–2, 159; 17 SS p. 76, 28A; p. 150 no 76A. See, e.g., 104 SS Case 18; (joint tenancy) Seipp 1292.232rs; 1292.115rs; 1292.174rs; 1292.232rs; 1306.118rs; 1310.134ss; 1310.178ss; 1311.275ss (Bereford grumbling that the law is too favourable to women and hard on men); 1312.292ss; 1315.008ss; 1323.028; 1400.007; 1410.028; 1424.057; 1336.010; 1337.074rs; 1337.125rs; 1337.150ass; 1338.274ass; 1340.142rs; 1402.060; 1406.026; 1418.029; 1421.080rog; 1425.115; 1431.072; 1447.012abr; 1480.001; 1481.087; 1341.026rs. W received on H’s default, see, e.g. 98 SS pp. 595, 763; Walker, ‘Wager of Law’, p. 35. For suspicion that joint ownership could be abused, see RP, I, p. 66.

100 See, e.g., Isabella, widow of William de Myners v. Alice wife of Adam de Penbrugge, CP 40/215 m. 212 (IMG 431), which is probably YB M. 10 Edw. II (52 SS) 24. Seipp 1316.055ss; 52 SS pp. 24–5. See also, e.g., 1306.196rs; 1330.823ss; 1304.057rs; 1324.180; 1355.072; 1365.129ass; 1369.055; 1371.010; 1400.007; 1424.057; 1473.019; 1311.268ss; 1337.134ass. Statement that W is amenable to H’s will, but not vice versa: 1424.057, 1448.080abr. H unable to produce W: 1310.158ss. Noting that W’s default can damage H: 1318.024ss; 1313.479ss. Procedure in relation to the production of W by H seen as changing or contentious: 1310.200ss; 1310.202ss; 1311.052ss; 1336.045. Limits: Seipp 1369.055; 1370.015; 1473.019. 1318.007ss; 1324.180; 1325.098; 1336.045; 1369.055; 1371.010, 1469.068; 1410.028; 1336.045.

Given the various licit and illicit means which husbands had to compel their wives’ obedience and participation, however, it would be an odd perspective which saw it as a favour to allow some relief to wives, themselves without any such right to chastise or to compel, so that they could defend their interests when a husband defaulted. There is no need to suppose that all husbands and wives were likely to be unsupportive towards their spouses’ interests in litigation – and, indeed, there were also fears of their co-operation to disadvantage and delay others in litigation through clever manipulation of their marital status.¹⁰¹ Should there be a lack of amity, however, the fact that a wife might possibly be allowed to act alone, should her husband default, can hardly be seen as putting her in a position of ‘favour’ in the context of her other disadvantages.

Other aspects of litigation were not overtly set up to disadvantage women, but were modelled upon a masculine paradigm which ignored them, or did not necessarily suit them. This may appear to have been the case, for example, in relation to essoins, legitimate delays of legal process. In particular, it is notable that Bracton and Fleta’s treatments of essoins concentrate on masculine paradigms, with no discussion of pregnancy as a legitimate reason not to go to court.¹⁰² The choice of masculine examples in these works is common enough, and does not suggest that there would be a particular problem with using pregnancy as a reason not to attend. It seems that there was some idea that there was a specific essoin relating to pregnancy, not mentioned in the treatises, as some records include reference to an essoin de malo puerperii, de puerperio or de malo ventris.¹⁰³ The lack of treatment of the matter in the treatises (in contrast, for example, to Bracton’s inclusion of an account of the implications of a supposedly ill man being found to have put his trousers on) does, however, mean that we are left without much information as to how it would work and at what stage of pregnancy it would be allowed.¹⁰⁴ Records of practice show that pregnant women might receive leave to use an attorney in cases in which personal presence was usually necessary, and scattered statements in law reports show something of the thinking of common lawyers in this area. Thus, Fortescue is shown stating that a pregnant woman could have an attorney, and that this is to avoid loss of the delivery.¹⁰⁵ A Year Book report of 1382 uses the example of a ‘greatly’ pregnant woman as a paradigm case of somebody who could not travel to court, so might have an attorney, but there is little information available as to how early in pregnancy this would be allowed.¹⁰⁶ Another area without information is the question of how a dispute as to the woman’s condition would be resolved, whether by some version of the ‘jury of matrons’ procedure, seen in relation to land cases and deferral of execution, or by male inspection, as was prescribed in the case of women claiming other forms of illness.¹⁰⁷

101 st. Gloucester 1278, c. 10; SR I, p. 49.

102 Glanvill I, 18, 19, 28; Bracton IV, pp. 71, 91–5, 113, 124, 127, 143; Fleta book 6 c. 10; Britton 6.6 and 6.7.

103 67 SS, p. 342 no 3416, includes a woman’s essoin de malo puerperii, and similarly 84 SS, no. 3144 (1208), 3720 (1208–9), 3889 (1208–9), 3913 (1208–9), for this or de puerperio. For a failed 1201 attempt to make an essoin de malo ventris, see CRR I, p. 383.

104 Bracton IV, pp. 124, 128.

105 Seipp 1440.115.

106 Seipp 1382.056am. See also: JUST 1/704 m. 21d (IMG 8315) (delay granted to woman ­lying in childbirth); CCR 1272–9, p. 228 (pregnant noblewoman excused coming to ­recover inheritance in person); CCR 1279–88, 548; KB 27/260 Rex m.9; CP 40/154 m. 92d (IMG 773); 1443.060 (dower defendant ‘grossly pregnant’); CPR 1374–77, p. 405 (attorney allowed for pregnant woman defendant in dower case). For lawyers’ discussion of pregnancy and ­participation in litigation, see, e.g., Seipp 1367.018, 1430.058; 1465.158.

107 For orders that men should inspect women claiming to be too ill to attend, see: 67 SS, p. 113, CRR 1 pp. 432, 459 (prioress 1201); CRR XV 1233–7 p. 55 no 146; CRR XX (1250) no 99 p. 16, p. 44 no 262; Seipp 1402.045; 1430.058. Somersetshire Pleas no 585. For juries of matrons, see Chapter 3.

There are complaints of women being prevented from participating, even as far as the rules allowed, by force, or vexatious legal processes in retaliation for their actions or by deception. For example, plea rolls contain complaints by a mother that her daughter was removed from her home in an attempt to stop her bringing an assize,¹⁰⁸ by a husband that his wife was similarly stolen away in order to obstruct a land case,¹⁰⁹ by a widow that the man holding land she claimed in dower had trumped up a trespass suit to delay her in her action.¹¹⁰ There are examples of pretences that a living woman was dead¹¹¹ and of women cheated by their lawyers.¹¹² Litigation could be expensive, and while law reports make a point of noting apparent generosity to or pity for ‘poor women’, this was far from solving the problem of funding litigation for most women, and it was recognised elsewhere that – unsurprisingly – rich women were likely to do better than the poor.¹¹³ Women’s petitions, which show what were perceived as plausible complaints about failures to do justice according to common law and gaps in the common law in relation to their grievances, covered matters as diverse as difficulties recovering land, offences against the person, enforcement of debts, trying to avoid paying up on unjust claims and recovery of land or property.¹¹⁴ It was plausible for women to claim that they had been blocked from their common law rights as a result of delay, intimidation, poverty, corruption, cheating or forfeiture for another’s offence.¹¹⁵ Occasionally, women made requests which stretched somewhat beyond their own situation for new rules or changes in the law, or at least its practice, the better to serve women in general, as can be seen in requests for a change in the age at which girls should be able to obtain lands, and for a limit on widespread granting of charters of pardon.¹¹⁶ Women might, of course, also act badly, and be the subject of complaints. Concern might be expressed about their abusive participation in litigation (maintenance), as can be seen in an ordinance of 1376 ‘concerning women pursuing business in … the king’s courts’. Although this is expressed in apparently general terms, however, the focus is upon the alleged misbehaviour of one particularly scandalous individual, Alice Perrers, and it should be noted that most of the maintenance statutes, from the late fourteenth century onwards, emphasise men rather than women as the problem.¹¹⁷

108 The mother wanted to bring the action for her: JUST 1/956 m. 18d (IMG 7909).

109 JUST 1/1080 m. 11 (IMG 1917).

110 Rose, Maintenance, p. 81. The widow won in a plea of conspiracy and trespass against him: KB 27/144, m. 27 (IMG 58) (1295).

111 CP 40/41 m. 3 (IMG 3645).

112 See, e.g., Seipp 1337.033rs; 1355.245ass; 1365.129ass; 30 SS no 143.

113 See Seipp 1309.014ss, 1310.144ss, 1330.154, 1333.066, 1338.131rs, 1344.146rs; Musson and Powell, Crime, Law and Society, p. 255; T. Wright, Political Songs, ed. by Peter Coss (Cambridge, 1996), pp. 224–9. 30 SS No 143 p. 119.

114 Dodd, Justice and Grace, p. 19. Request for protection for the future: SC8/231/11510; 254/12684; 275/13736; 266/13282; 268/13356. Theft, seeking recovery of goods: SC 8/259/12902; 309/15420; 301/15011. SC 8 266/13293 (W complains of lack of conviction for a woman who poisoned her husband). SC 8/303/15149, 304/15151 (woman claiming wardship of an ‘idiot’ who has been abused). Rape, e.g., SC 8/295/14797, 199/9943; SC 8/76/3756 and 336/15869 (mothers trying to get action against daughters’ rapists and abductors). Personal injury: SC8/39/1922; SC 8/55/2713; SC 8/23/1109. Abduction: SC 8/39/1937.

115 See, e.g., SC 8/61/3027; SC 8/ 117/5806; SC8/2/76; SC8/3/146; SC8/341/16087; SC8/120/5956.

116 See, e.g., SC 8/28/1398. SC8/39/1937.

117 RP II, p. 329; George Holmes, The Good Parliament (Oxford, 1975), pp. 6, 68–9; W. Mark Ormrod, ‘The Trials of Alice Perrers’, Speculum 83 (2008), 366–96, 394. ‘Ladies’ were included in a request for action relating to maintenance in 1388: Rose, Maintenance, p. 218; Westminster Chronicle, pp. 358–9; ladies giving livery mentioned as a problem in a 1429 statute: Rose Maintenance, p. 286; 8 Hen. VI, c. 4 (1429), SR II, pp. 240–1.

It is beyond the scope of a short monograph to do this justice, but it is worth raising the issue of the need for legal history to consider through a gender lens the scope of actions entertained – and not entertained – at common law. The choices being made by ‘law-finders and law-makers’ as to which matters should be recognised as worthy of remedy, and to whom actions should be made accessible and useful, did not represent a gender-neutral process.¹¹⁸ In addition, an increase or decline in the use of actions which were specifically for women represents a change in women’s level of participation in the common law. Chief of the ‘civil’ actions only available to women (or women and their husbands) were the actions relating to dower.¹¹⁹ This was a major area of common law activity and has received important attention in recent years.¹²⁰ In the mid-fourteenth century, dower cases by women alone or by women with a new husband were some of their most frequent actions. Nevertheless, the overall pattern was one of decline, as dower began to be supplanted by other methods of providing for widows.¹²¹ As noted above, the decline in dower was not the only way in which widows became a less important part of the ‘case-load’ of common law courts, there was also a move away from intervention to uphold widows’ rights in relation to chattels, this being left to other jurisdictions.¹²² The decline of important woman-focused actions could be seen as forming part of a pattern of masculinisation of the scope of common law over the medieval period.

118 Cam, Law Finders and Law Makers.

119 See also certain writs of entry designed for women: e.g., 87 SS pp. 99, 292–3, 296.

120 See, e.g., Brand, ‘“Deserving”; J.S. Loengard, ‘“Of the Gift of Her Husband”: English Dower and Its Consequences in the Year 1200’, in Women in the Medieval World, ed. by J. Kirshner and S. Wemple (Oxford, 1985), pp. 213–55; Joseph Biancalana, ‘Widows at Common Law: the Evolution of Common Law Dower’, Irish Jurist 23 (1988), 255–329; Sue Sheridan Walker, ‘Litigation as Personal Quest: Suing for Dower in the Royal Courts, circa 1272–1350’, in Wife and Widow, ed. by Walker (Ann Arbor, 1993), pp. 81–108; Walker, ‘Wager of Law and Judgment by Default in Pleas of Dower in the Royal Courts of Late Thirteenth and Fourteenth Century England’, in The Life of the Law, ed. by Peter Birks (London, 1993), pp. 25–42; Walker, ‘Litigant Agency’ in Dower Pleas in Royal Common Law Courts in Thirteenth and Early Fourteenth Century England’, JLH 24 (2003), 1–22; Paula Dobrowolski, ‘Women and Their Dower in the Long Thirteenth Century 1265–1329’, in Thirteenth Century England VI (Woodbridge, 1997), pp. 158–9. Note changing family property practice: Coss, Lady, p. 86.

121 See above at 48.

122 See above at 49.

While other actions and aspects of procedure were not overtly confined to women or men, aspects of their structure and definition might be designed to a masculine model, perhaps less accommodating to women. This sort of issue is raised in the next chapter with regard to pleas of self-defence, but it might also be relevant, and is certainly a question which should be asked, in relation to the structure of ‘civil’ actions. One very well-known change which occurred in medieval English land law was the provision of forms of action which dealt not with questions of right, but with more limited questions associated with seisin.¹²³ Some, at least, of these involved consideration of physical taking of possession, possibly in the face of opposition, and had a role for physical ‘self help’. Thus, to bring an action of (novel) disseisin, it was necessary to have been regarded as having been in seisin, and it was acceptable to take physical action to regain seisin, if there was an attempted ouster. Bracton certainly sees such action in masculine terms, quoting a scriptural tag from the gospel of Luke about a strong, armed man.¹²⁴ Clearly women were not incapable of engaging in physically forceful actions, though examples suggest that they might need or use male help to gain the appropriate degree of control of land.¹²⁵ Gendered aspects are little explored in existing scholarship.¹²⁶ It is, however, worth at least raising the issue of whether social expectations and norms relating to women’s behaviour might have left them at a particular disadvantage in actions structured around taking, demonstrating and maintaining physical possession. Did any such disadvantage diminish with the attenuation of the physical requirements for seisin in the later thirteenth century or the limitation of force in relation to taking possession of land from the time of Richard II? Giving any reliable answer to such questions would require a large-scale quantitative study of actions, over a long period of time, and it is not particularly surprising that it has not yet been attempted. Noting that there might be questions relating to gender, however, and including them within the ‘overall story’ of common law development, does not seem to be too much to expect. In a similar vein, it is worth considering the increased formality requirements of the common law from the late thirteenth century onwards, in areas such as the covenant and the ‘forty shilling limit’ in debt,¹²⁷ through a ‘gender lens’, inquiring whether, as seems likely, the increased formality, requiring both expense and the involvement of male professionals and value thresholds for common law suits, when combined with women’s subordinate economic position and lower level of literacy, were a particular additional constraint on the utility to women of common law actions, sending them elsewhere for remedies. The standard legal historical narrative, however, has not chosen to include such considerations.¹²⁸ That narrative could also be expanded to include discussion of the gendered nature of the wrongs selected and passed over for potential remedy at common law. The nature of the offences and harms typically alleged in the expanding trespass jurisdiction in later medieval common law are worth examining in this light.¹²⁹ The interaction between social norms and trespass jurisdiction meant that it could be less useful to women than to men. Thus, while women did bring actions for trespass to the person, and false imprisonment, and sought compensation for the injuries done them,¹³⁰ some beatings – by husbands on wives and by masters on servants – were not within the ambit of trespass actions, as long as the conduct in question was not clearly unreasonably violent according to contemporary views.¹³¹ Approval of chastisement of a wife by a husband and chastisement of girls by those in authority over them is well evidenced.¹³² Females could, likewise, legitimately be confined in the marital context, if they were villeins, or in the context of the woman’s law-breaking.¹³³ The development from trespass to ‘trespass on the case’ actions, bringing a wider array of scenarios within the ambit of the common law courts, is also ripe for examination with attention to its impact upon the proportionate advantage brought to men and to women by the expansion of jurisdiction in this direction.¹³⁴ There are some tentative bases upon which a pattern of increasing masculinisation of the common law might be constructed, and there is some corroboration in studies suggesting that there was a decline in the proportion of actions brought by women in courts of common law over the course of the fourteenth and fifteenth centuries.¹³⁵ Even if this is not open to full proof, or not accepted, the possibility raised here that patterns of development were not the same for women as for men should militate against unquestioning, unified, portrayals of the linear progress of the common law.

123 See, e.g., Baker, Introduction, pp. 250–5.

124 See, e.g., Hudson OHLE II c. 24; Simpson, A History of the Land Law, p. 31; Bracton II, pp. 18, 21.

125 Donald W. Sutherland, Assize of Novel Disseisin (Oxford, 1973), pp. 106–7, 118; Lincs RS 22 no 1425. See, e.g., Sutherland, Assize, p. 118. See also the story of a woman claiming land occupying it overnight, protesting her right: JUST 1/1300 m. 8d (IMG 4781). Women unable to claim their land in a court because of threats by their uncle, kept out for seven years: JUST 1/1149 m. 9 (IMG 1615).

126 Sutherland, Assize pp. 148, 166, 174; Statutes of forcible entry 1378–1429. 2 Ric. II st. 1 c. 6 (1378), 2 Ric. II st 2 c. 2; 5 Ric. II st 1 c. 7; 15 Ric. II c. 2; 4 Hen. IV c. 8; 8 Hen. VI c. 9. Women were sometimes portrayed leading forceful actions to enforce property rights, so that this is not entirely a matter of curbing masculine force: see, e.g., 103 SS p. 371 case 34.7, KB 27/217 m. 35d.

127 See, e.g., Baker, Introduction, pp. 340–1.

128 See, e.g., Baker, Introduction, c. 18, p. 343; Ibbetson, Historical Introduction, pp. 23–8; Baker, ‘Deeds Speak Louder than Words: Covenants and the Law of Proof 1290–1321’, in Laws, Lawyers and Texts, ed. by Susanne Jenks and others (Leiden, 2012), pp. 181–203.

129 For trespass, see, e.g., Ibbetson, Historical Introduction, cc. 3, 4, 6.

130 See, e.g., Seipp 1368.106ass; 1483.004; KB 27/510 m. 35 (IMG 77). SS 100 p. 170, KB 27/499 m. 22d 1386H; JUST 1/158 m. 3 (IMG 8982); married woman beaten and mistreated, trespass plea (she, not H, recovers 30s). Plaint, jury find a man guilty of assault on a woman, she recovers damages: JUST 1/188 m. 14 (IMG 3248). Writ of entry for land transfer for marriage, which did not happen: CP 40/317 m. 49 (IMG 101).

131 See Sara M. Butler, Divorce in Medieval England: From One to Two Persons in Law ­(London, 2013), p. 71; P & M II, p. 436; JUST 2/67 m. 6.

132 Butler, Language of Abuse, pp. 27, 33 and c. 6; 100 SS, 103 SS p. 26. Male kin killing girls by beating, portrayed as chastisement: KB 27/626 m. 26d (IMG 591). Coroner’s jury say felonious killing. Father says not guilty. A man hits a seven-year-old girl in the head, once, she dies three days later: this was said to be chastisement by a kinsman, not done with intent to kill her: JUST 1/1334 m. 27 (IMG 2593).

133 This included, from the later fourteenth century, her failure to accept employment: 100 SS, p. 47 case 4.3, p. 81 case 8.8, p. 100 case 10.3 KB 27/295 m. 2d; KB 27/233 m. 89; KB 27/450 m. 67 1375T.

134 See Baker, Introduction, pp. 350–68, 427–36.

135 See above, 79–81.

Making statements on what the common law might have done, but did not, is fraught with danger. There are, however, intriguing insights to be gained into what women might have wanted from the common law system, but which the makers of the common law did not choose to make part of its regular jurisdiction, from some of the matters raised in ‘non-standardised’ forms of complaint, bills and plaints, particularly in the thirteenth and early fourteenth centuries. Wrongs which they alleged, and for which they asked a remedy, included some matters which might have formed the basis for a common law action, but also went beyond this. Thus, we see allegations of assault, insult, defamation, economic loss from a cancelled marriage, loss of land or home, rape and sexual offences which did not fit into the definition of felonious rape, harassment of a pregnant and then recently delivered woman by litigation in ecclesiastical court, abduction of daughters.¹³⁶ While straightforward complaints of physical assault, for example, were entertained relatively frequently in ‘regular’ common law cases throughout the medieval period, from the thirteenth century onwards, sexual offences on women other than felonious rape, which were seen in plaints, did not often appear in trespass suits or, if they were part of the allegation, were not made explicit in the records which have survived. Insults did not come to be a regular part of common law jurisdiction until the sixteenth century, despite some sign that individual women wanted common law action here. To the extent that insults were covered by medieval common law, the focus of prescriptive sources was on insults to great men rather than women, though there is one, late, case at least which suggests that prominent women might be considered to be covered by the law; a complaint by Jacquetta, duchess of Bedford, that she had been slandered, heard in the Council and recorded on the Patent roll, may refer, obliquely, to the Scandalum Magnatum provisions.¹³⁷ When the common law did develop a more wide-ranging action for defamation, it did so in a gendered manner, accommodating more masculine concerns and leaving some of those particularly affecting women to other jurisdictions.¹³⁸ That, however, is a story which belongs to the Early Modern period.

136 Assault: CRR XX (1250) no 1230 p. 217; JUST 1/306 m. 4 (IMG 9057); JUST 1/1080 m. 10 (IMG 1912). H and W bring plaint for assault on W. JUST 1/628 m. 5 (IMG 478) damages go to H and W; H and W complain of defamation: JUST 1/650 m. 24d (IMG 278). ­Women’s plaints for smashed teeth: JUST 1/23 m. 100 (IMG 1226); mayhem: JUST 1/1015 m. 12 (IMG 1228); JUST 1/934 m. 28 (IMG 5709); failed marriage: JUST 1/408 m. 99 (IMG 807); ejectment: JUST 1/486 m. 47d (IMG 2915); being put in stocks and raped (1290): JUST 1/541A m. 15d (IMG 3675); false imprisonment, e.g., JUST 1/541A m. 48d (IMG 3747); JUST 1/302 m. 77 (IMG 8354); JUST 1/573 m. 58d (IMG 843). False imprisonment of H: SS 60 no 20. Removal and mistreatment of a cow: JUST 1/628 m. 5d (IMG 499). Recovery in rape plaints: JUST 1/1016 mm. 12, (IMG 1303, 1309).

137 P & M II, p. 535; st. Westminster I. c. 34, SR I, p. 35; 2 Ric. II. st. 1, c. 5; 12 Ric. II. c. 11. See RP III pp. 168–70; SR II, p. 9, st. 1 Ric II c. 5 uses ‘gentz’, but mentions male positions only. Uncertainty as to whether it applies to women: Richard Crompton, L’authoritie et iurisdiction des courts de la Maiestie de la Roygne (London, 1637), p. 34; Thomas Starkie, Treatise on the Law of Slander, Libel, Scandalum Magnatum and False Rumours (London, 1813), p. 170. See CPR 1467–77, p. 190; RP VI, p. 232.

138 See, e.g., Baker, Introduction, c. 25; Laura Gowing, ‘Gender and the Language of Insult in Early Modern London’, History Workshop Journal 35 (1993), 1–21; David Hewitt, ‘Some Cases from the Defamation Jurisdiction of the Archdeaconry of Richmond’, JLH 19 (1998), 251–69.

Men’s actions for women’s injuries

We have seen above some of the limits placed on women’s capacity to litigate at common law.¹³⁹ The fact that a woman could not litigate herself did not, however, mean that there was no chance wrongs done to her could be brought to the attention of the common law. Surviving collections of presentments and indictments, all made by groups of males as well as commissions and petitions identified as made by males, include accusations of the commission of many different offences against women, from homicide to fraud.¹⁴⁰ A wide range of women, from the wealthy to the lowly, can be seen portrayed in these actions as having been wronged. There are knights’ widows, for example, but there are also those at the bottom of the social scale, as can be seen in a late fifteenth-century presentment from Southwark, stating that John Burnham, master of the Hospital of St Thomas, kept two common meretrices, Joan Sakkefeld and Joyce, in his room as his concubines, ‘knew them carnally’ whenever he wished and would not let them out to hear mass or other service for a year and more, amongst other offences. (He said he was not guilty, but made a fine ‘to save trouble and expense’.)¹⁴¹

As well as bringing apparently ‘altruistic’ actions in relation to wrongs done to unconnected women, men might also bring actions relating to wrongs against or involving a woman connected to them. Bracton saw this as harm to the man through ‘his people’ or ‘those in his power’ (potestas), and noted that, as between spouses, there was no symmetry: while the husband could bring an action for a wrong to his wife, she could not do so if he should be wronged.¹⁴² Plea rolls from the thirteenth century onwards contain actions in relation to raptus/ravishment of a wife, or loss of services of a daughter.¹⁴³ These offences are portrayed as damaging to the man who is bringing the action, but this does not mean either that they were not also seen as damaging to the woman or girl in question, or that they indicate a chattel-owner property relationship between the man and woman or girl. Such a relationship would not be consistent with the fact that when an action of trespass was brought for assault on a wife, it was not brought by the husband alone, but by the husband and wife together. Thus, for example, a fourteenth-century husband and wife might sue a surgeon for harm to the wife.¹⁴⁴ When percussive abortion was treated as a trespass, if the assaulted woman was married, this might be formulated as a wrong to her husband or to her and her husband.¹⁴⁵

139 Other limitations included those on villein women: see, e.g., in relation to false imprisonment: JUST 1/1084 m. 27 (IMG 4671); CP 40/423 m. 231d (IMG 1318), assault: JUST 1/483 m. d (IMG 2262); JUST 1/483 m. 59d (IMG 2262). Limits on ‘foreign’ women, see above at 29 See also Seipp 1483.010, KB 27/885 m.39d (IMG 290). Slain or allegedly slain women could not, of course, pursue those responsible.

140 See, e.g., SC8/97/4826; JUST 1/1032 m. 1 (IMG 2684); KB 27/351 m. 19 (IMG 1954); e.g., CPR 1313–17, 403 (1315); SC 8/26/1281; Dodd, Justice and Grace, p. 184; SC 8/27/1305; SC8/23/1108. Man hanged for killing woman: KB 27/439 m. 7 (IMG 164).

141 Knight’s widow: KB 9/232/2 m. 6 (IMG 18); prioress (obtaining damages for the beating of a nun): JUST 1/457 m. 4 (IMG 4780). KB 27/921 m. 9d (IMG 552) May 1491. Prostitute (stipendiaria) bringing an appeal: Hanawalt, ‘Justice without Judgment’, p. 131; 1 SS, no. 16, pp. 6–8.

142 Fleta book II c. 1; Bracton II, p. 438.

143 Milsom, ‘Trespass’, p. 211; KB 26/121 mm 22d, 24d, 29. See also Wilkinson, Women, p. 150; Kerr, ‘Husband and Wife’, p. 228; Caroline Dunn, ‘The Language of Ravishment in Medieval England’, Speculum 86 (2011), 79–116; Seabourne, IMW, cc. 4, 5, 7; 100 SS section 8. For men’s appeals for the rape/ravishment of their wives, see, e.g., KB 27/689 m. 23d (IMG 249). Father sues for ravishment of daughter: 1315.088ss, 100 SS xlv. Man sues for assault on his female servant, and his loss of her services: e.g., CP 40/705 m. 385 (IMG 784). Action for imprisoning P’s daughter and servant, answered by the plea that the daughter went off willingly with the defendant after an agreement to marry: KB 27/450 m. 76 (1373) (IMG 1314). Damage to or sexual misconduct with, a servant treated as damage to a master or, more rarely, mistress: C 1/158/47; C 1/1/92; KB 27/450 m. 76 1373. For women suing for removal of their villeins, see, e.g., CP 40/401 m. 166d, Hil 1360. Discussion of the wrong done to H by W’s adultery: Seipp 1486.003.

144 Milsom, ‘Trespass’, p. 571; KB 27/414 m. 37d (1364). Note querela by both spouses in relation to beating of the pregnant wife, damaging the foetus: JUST 1/804 m. 41 (IMG 2368); Pugh, Wilts Trailbaston no 793, assault on a wife; damages go ‘to the husband in the wife’s name’.

145 Presented/indicted, e.g., Somersetshire Pleas, No 1243; JUST 1/302 m. 85 (IMG 8370); JUST 1/1015 m. 13 (IMG 1231); JUST 1/547A m. 20d (IMG 5833); KB 9/167 m. 19 (IMG 36); JUST 3/20/4 m. 44 (IMG 105) 1411–12. Men’s appeals for this: PCOG 16 p. 140; SS 1 p. 11; JUST 1/111 m. 28d (IMG 3822) 1284. Women’s appeals for this: JUST 1/ 778 m. 50 (1256); JUST I/996 m. 40 (IMG 94) (1249); JUST 1/1006 m. 61 (IMG 9977) (1289). Butler, ‘Abortion by Assault’; Pardons for assaults resulting in miscarriage: CPR 1272–81, 444; CPR 1301–7, 303. Trespass action by widow for beating causing miscarriage: KB 27/26 m. 18 (IMG 773); JUST 1/1015 m. 8. (IMG 1220). CPR 1317–21 p. 465, 470: 1319 complaint by H and W. CPR 1422–29, 229 (1424), Complaint by H, and by H and W separately. Assault, loss of baby, claimed damages for H and W: JUST 1/1557 m. 17 (IMG 3055).

Also impinging upon the question of whether the harm was understood to be to the litigating man or also to the woman are the Plea Rolls’ numerous examples of the different raptus offences, brought not by women, but by husbands, or by community indictment or presentment.¹⁴⁶ An analysis which emphasises the likelihood that some of the events behind the accusations involved wives who had consented to leaving (with ‘consent’ understood in a modern sense) aligns better with the idea of a focus of actions on wrong to the man than does an acceptance that a significant proportion of actions may have been based on facts which cannot now be classed as consensual. Some ‘ravishment of wife and goods’ cases were probably brought after courses of events in which there had been no active resistance on the part of the wife, and juries do sometimes state that the true facts behind the complaint were an elopement,¹⁴⁷ but it is not possible to deduce from cases which make no such statement that the alleged abduction was fictitious, and we cannot be certain of the proportions, nor what degree of will and agreement was understood to be enough for a jury to class it as voluntary: how far beyond an absence of effective resistance did the situation have to go before it would be classed as not involuntary?¹⁴⁸ On the distance between medieval common law ideas of sex being ‘not against the will’ of a woman and modern requirements for consent in relation to sex, for example, it is difficult not to feel suspicion about the level of free choice regarded as sufficient to negate any offence, when considering a case of 1295 in which the complainant was found by a jury to have been removed from her mother’s house against her will, but it was considered that the subsequent penetration was ‘not against her will’.¹⁴⁹ Likewise too ready a deduction that, because a number of clerics were indicted and pardoned or complained that they had been falsely accused of rape or ravishment, presentments or indictments of these offences were frequently based on consensual (in contemporary or modern understanding) fornication may wrongly set in opposition the interests of women and those bringing such actions, and may thus fail to reflect the extent to which they were acting on the woman’s behalf as well as that of the husband or community.¹⁵⁰ As noted above, it is important to ensure that historical writing is not influenced by too-quick inferences of a lack of veracity of allegations of rape in particular,¹⁵¹ and it does not seem obviously implausible that clerics might have been more than usually inclined to misuse their relative power in order to abuse women. Frequent complaint of false allegation may suggest false allegation, but might just as well suggest high motivation to challenge accusations or convictions, and capacity to do so.¹⁵² In the end, we cannot know, but, as suggested above, should avoid treating allegations of false accusation with any more credulity than we accord the accusations themselves.

146 Rape presentments and indictments, e.g., KB 9/361 m. 36 (IMG 73); KB 27/483 m. (IMG 131); attempts and accessories: JUST 3/167 m. 23 (IMG 198); KB 27/351 m. 22 (IMG 1960); KB 27/598 m. 10 d (IMG 561). Taking and abduction of female neifs: KB 27/626 m. 70 (IMG 155). Presentment of rape/ravishment of damsels: JUST 1/383 m.58d (IMG 1804); JUST 1/383 m. 17 (IMG 1499). Husband, guardian or father’s action for ravishment, e.g, CRR XX no. 38 (1250), p. 8; SC 8/23/1108; C1/69/232; C1/46/47, C1/234/71; C1/158/35; Wilts GD and T, pp. 369, 724.

147 KB 27/513 m. 16 (IMG 42) jury: D incited her (excitavit & procuravit) to elope, but did not ravish her; 100 SS p. 88.

148 Butler, Divorce, pp. 32, 49, 53; Seabourne, IMW, c. 7. For cases in which W was apparently driven off by H, see Seabourne, ‘Copulative Complexities’. For success for the complaining husband, settlements or pardons for alleged ravishers, see KB 27/514 m. 255 (IMG 96); KB 27/498 m. 81 (IMG 178); KB 27/443 m. 53 (IMG 106); KB 27/515 m. 5d (IMG 194); KB 27/518 m. 70d (IMG 406); KB 27/516 m. 19d (IMG 200); KB 27/517 m. 5d (IMG 216). Felonious rape, ravishment, abduction, detention, presentment: KB 27/508 m. 1 (IMG 111); KB 27/594 m. 14d (IMG 590). For abduction of wife and goods cases, with a defence, see, e.g., KB 27/218 m. 7d (IMG 14) (the man an attorney claims is husband of the woman is claimed not to exist). Exception of excommunication for adultery in ravishment of wife case: KB 27/517 m. 66 (IMG 517). Alleged conspiracy between men: KB 27/515 m. 3d (IMG 190).

149 Seipp 1295.003rs; JUST 1/1098 m. 76 (IMG 7359).

150 Clergy attempts to seek pardon for rape, and allegations by them of false accusations: KB 27/742 m. 6 (IMG 386); KB 27/758 m. 16 (IMG 208): SC 8/97/4844; C 1/7/22; C 1/61/349; C 49/27/14 (RP V, pp. 152–31). Helen Lacey, The Royal Pardon: Access to Mercy in Fourteenth Century England (York, 2009), p. 89. Musson and Powell, Crime, Law, 3.12 JUST 3/203 m. 49; R.L. Storey, ‘Malicious Indictments of Clergy in the Fifteenth Century’, in Medieval Ecclesiastical Studies in Honour of Dorothy M. Owen, ed. by M.J. Franklin and C. Harper-Bill (Woodbridge, 1995), pp. 221–40.

151 The tone of some commentary on raped women has rightly been described as ‘callous’: Mitchell, Portrait, p. 120. See also Russell, ‘II Trial by Battle’, p. 138.

152 Accusations of attempted seduction, assault and imprisonment of a wife: Seipp 1482.115; 1482.126. Accusations of other offences, e.g., theft: JUST 3/173 m. 17 (IMG 41); KB 27/957 Rex m. 1 (IMG 111); KB 27 638 m. 19d (IMG 581). Clerical crime, other than rape, does not seem to have been doubted in the same way. See W. Rye, ‘Clerical thieves temp.­Edward I’, Norfolk Antiquarian Miscellany 2 (1880), 194.

Conclusion

Both presence and absence are important. The participation of women in the common law as litigants, although less common than men’s participation, was usual, and women from relatively low to high stations in life are encountered in the plea rolls of the common law courts. The participation of women in general was often precarious, however, and was different to the participation of men. The technical and intellectual tools to limit women’s ability to bring legal actions were present all along, from the statements concerning the range of appeals they could bring to the gathering of ideas of ‘coverture’, and should it suit those in power to use them, women’s routes to participation could be blocked. It has been pointed out that it is worth considering ways in which the common law may have become more masculine over the course of the medieval period. There appears to have been a decline in the opportunities available for women to bring their cases at common law – with the increasing emphasis on indictments rather than appeals, for example, and with the decline of the hue and cry, a way for women to cause the initiation of proceedings.¹⁵³ Changes may well not have been implemented with the intention of downgrading women’s level of participation: certainly there is no overt statement of a wish to do so. Likewise, decisions on the scope of common law actions and remedies, and the requirements for successful actions, do not reflect a conscious decision that actions useful to men should be accommodated by common law, and those desired by or needed by women should not. Nevertheless, an account of common law developments which neglects the possibility of different effects of doctrinal developments on men and women needs to be updated.

153 Bardsley, Venemous Tongues, pp. 38–40, 77.