An eighteenth-century treatise on law relating to women spotted what appeared to be an oddity in this area, noting that ‘Our old laws and customs relating to women are many of them very merry, though the makers of them might possibly be grave men’.1 Those focusing on classical or doctrinal legal history have often dealt with the treatment of women in the history of the common law, if not with merriment, at least with a lack of willingness to take it seriously as a worthy subject for examination. It would be a slight exaggeration to say that it has been a case of ‘Maitland says nothing, and so, as usual, no one else does either!’,2 since there have been important studies of aspects of this history in recent years, particularly by those based in history departments rather than law schools. Nevertheless, there remains a need to bring consideration of women in from the margins of all types of legal historical study, doctrinal and social, ‘internal’ and ‘external’. Not to do so would be out of line with the blossoming of modern study on women and gender, in both history and law. It can no longer be acceptable to present as a study of the history of the common law which excludes the application to half of the population of that law, or which treats half of the population as an uninteresting appendix, of relevance only in relation to real property. Such an approach risks leaving understanding of medieval law in general and that relating to women in particular cut off and mired in the analysis of legal historians of earlier eras. This book has tried to make a start with the considerable task of bringing the common law part of the ‘old laws and customs relating to women’ into the mainstream of legal history, noting some of the pitfalls to be avoided in doing so, and suggesting some possible constructions of the material which is available.
One of the points which has emerged is that in undertaking studies of women and the common law, legal historians should be prepared to embrace complexity and nuance rather than seeing attention given to women (or other groups other than the standard free, non-‘foreign’ male) as a distraction likely to produce regrettable derogation from neat narratives, such as those of the ‘rises’ of centralisation and professionalisation of the common law, and the development, proliferation and manipulation of forms of action. Chronology of the common law’s involvement in the lives of, and interest in, women is not necessarily the same as its attention to and accommodation of men and their interests.3 In addition, given the dissonances and inconsistencies seen in much learned medieval discourse relating to women, it would be odd to expect a developing body of law to stand entirely apart and to give clear, comprehensive answers on the legal position of women. It is clear that the medieval common law approach to women displayed considerable intellectual tension. A series of contradictions seem to lie at the heart of the common law in this area, with women placed between poles of unity and division; responsibility and irresponsibility; capacity and incapacity; visibility and invisibility; audibility and inaudibility. While it was a commonplace of medieval misogyny that women were unable to maintain consistent views and behaviour, in studying this material, it is tempting to feel that the charge of inconsistency would be better levelled at those involved in trying to accommodate women in the man-shaped structures of the common law. Rather than following this feeling, and falling into the trap of condescension towards the lawyers and people of long-distant ages, however, it would be more constructive to see an overall picture of fluidity in much treatment of women and in women’s relationship with the common law.
Our investigations should avoid an over-emphasis of an analysis based on hard and fast rules and exceptions. It is vital, as much in this book testifies, to understand that the medieval common law was not always a clear and straightforward body of strict rules against which ‘practice’ can be measured and exceptions identified. The relationship between law and practice in this period in particular was more complex and more intimate than that. While some rules relating to women in the medieval common law were quite settled by the later twelfth century, elsewhere, ‘the law’ might be indistinct, contested or in flux, and might not have reached a clearly defined shape before the end of the medieval period. Furthermore, on occasions when it is reasonable to discuss rules and exceptions, it is important not to look only at ‘upward’ exceptions – i.e. those instances of women somehow rising above apparently prescribed limitations – but also at those who did not manage this,4 and perhaps found themselves unable even to take advantage of those mechanisms and procedures which were prescribed as part of the common law. Both an ability to act and limitations on that ability were present in the lives of medieval women, and are to be found embedded in the medieval common law.
Just as medieval litigants frequently settled cases informally rather than pursuing them to reach a definitive conclusion, and just as medieval courts did not always come to a decision, we, looking backwards over the centuries, should not expect to be able to see all of the surviving sources and come up with one neat and definitive account of women and the medieval common law. There is scope for further refinement and revision, however, with ever closer investigation into the mass of records of the common law – the scope of which being far more than can be encompassed by one monograph or one academic lifetime – and I hope that some of the points made here will encourage or even annoy other legal scholars sufficiently to prompt them to turn to the common law records in search of women, their experiences and the intellectual environment which they encountered when faced with legal difficulties in this formative period for the common law. C.S. Kenny expressed a hope that ‘some hand, more skilful and less busy than [his] own, [would] complete the story [of married women and the law] which [he] left half-told’;5 but it is probably more sensible to adopt the view of a pioneering woman legal historian that completion is neither possible nor particularly desirable, and to embrace the idea that ‘The story does not end there. No story can end, in history.’6
1 Anon., A Treatise of Femes Coverts or the Lady’s Law (London, 1732), p. vii.
2 Hyams, ‘Maitland and the Rest of Us’, p. 229.
3 The idea of differential chronology has long been mooted in ‘mainstream’ history: Joan Kelly, ‘Did Women Have a Renaissance?’, in Women, History and Theory: The Essays of Joan Kelly (Chicago, IL, 1984), c. 2.
4 Bardsley, Women’s Roles, pp. 2, 129, 140; Mitchell, Portraits, p. 127.
5 Kenny, History, p. viii.
6 Cam, Law Finders, p. 21.