INTRODUCTION: UNCOVERING MARRIED WOMEN

Cordelia Beattie and Matthew Frank Stevens

Why Married Women?

As a number of our contributors comment, particularly those writing on pre­modern Britain, there has been a tendency in the historiography on women and the law to see married women as hidden from view, obscured by their hus­bands in the legal records.

The aforementioned view of married women's legal subjection can be, and has been, traced back to Sir William Blackstone's Commentaries on the Laws of England (1st edition, 1765), which became a standard legal textbook for nearly a century:

By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended dur­ing the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything;...

Married Women and the Law in Premodern Northwest Europe in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquire by the marriage.^[1]

However, as Mary Beard has pointed out, Blackstone was referring to the wife's position under common law;^[2] customary law, canon law and equity had different positions.^[3] But, even in the context of English common law, there is the need for further caution. Frederick William Maitland warned about the perils of relying on �unity of person' as �a consistently operative principle':

If we look for any one thought which governs the whole of this province of law [that which concerns the husband and wife], we shall hardly find it. In particular we must be on our guard against the common belief that the ruling principle is that which sees an �unity of person' between husband and wife. This is a principle which suggests itself from time to time; it has the warrant of holy writ; it will serve to round a paragraph, and may now and again lead us out of or into a difficulty; but a consistently operative prin­ciple it can not be.^[4]

Maitland argues that �the main idea which governs the law of husband and wife is not that of an “unity of person”, but that of the guardianship, the mund, the profit­able guardianship, which the husband has over the wife and over her property'.^[5] By this he means that the husband controlled the property that the woman brought to the marriage but he did not own it (�her property') and so the common law position was that her assent for various acts was needed. She should, for example, appear in court alongside her husband for any litigation concerning her land and she retained certain rights over her dower.^[6]

This picture does not apply to northwest Europe in general. Here all women, married or single, were under legal guardianship; in England single women of age and widows were legal individuals in their own right.^[7] Beyond the English realm, upon marriage the husband would usually become a woman's legal representa­tive.^[8] He would thus control �part or even all of the property that she brought to marriage, as well as the property that they jointly acquired after marriage'.^[9] But again the husband did not own the property.

Married Women and the Law in Premodern Northwest Europe

Why Medieval and Early Modern?

A long view of this topic seems logical for a number of reasons. For example, as discussed, there has been a tendency to see nothing as substantially changing in terms of married women's position under English common law between the me­dieval period and the end of the eighteenth century when Blackstone was writing, with the key change coming with the Married Women's Property Acts in the late nineteenth century.

Of course, the legal framework within which married women lived in the pre­modern era was not a static one. But its evolution followed a chronology in which the tectonic shifts in married womens legal position did not necessarily occur along other social and political fault lines in pre-modern society. There are few social in­stitutions that evolve with such conservative lethargy as the law and marriage. For example, while countless volumes and articles have now established, sometimes in minute detail, profound short- and long-term economic and political (in the broad sense) effects of the Black Death of 1347-51, the persistent debate regard­ing post-plague women has been to what extent and why women delayed marriage and motherhood.¹⁶ While debate continues regarding the extent to which women's pre-marital economic opportunities and lifecycles were affected, relative consensus now suggests that any plague-induced effects were short-term, most significant for unmarried women and overwhelmingly not reflected in the law. Perhaps the only clear exception to the immunity of married women's legal position to the varied effects of the Black Death was the compulsory service clause of the English Statute of Labours of 1351 which required unemployed men and women, including wives, when offered work, to either accept employment or endure imprisonment.¹⁷

bour Markets in the North Sea Region in the Late Medieval and Early Modern Period’, Economic History Review 63 (2010), 1-33, esp.

¹³ J. M. Bennett, â€?Medieval Women, Modern Women: Across the Great Divide’, Culture and His­tory 1350-1600: Essays on English Communities, Identities, and Writing, ed. D. Aers (London, 1992), pp. 147-75.

¹⁴ J. Kelly-Gadol, â€?Did Women Have a Renaissance?’, Becoming Visible: Women in European History, ed. R. Bridenthal and C. Koonz (Boston, 1977), pp. 137-64. See also M. E. Wiesner, Gender, Church and State in Early Modern Germany (London, 1998), pp. 63-78, 84—93, which asks if women had a Reformation and if the concepts â€?Renaissance’ and â€?Early Modern’ apply to women’s experiences.

¹⁵ J. M. Bennett, â€?“History that Stands Still”: Women’s Work in the European Past’, Feminist Stud­ies 14 (1988), 269-83.

¹⁶ E.g. see S. H. Rigby, â€?Gendering the Black Death: Women in Later Medieval England’, Gender and History 12 (2000), 745-54.

¹⁷ J. M. Bennett, â€?Compulsory Service in Late Medieval England’, Past and Present 209 (2010), 7-51.

The essays in this volume span the period c.1200-1800, although there is a clustering around the middle of this period. Generally speaking, northwest Eu­ropean peoples showed, certainly from the latter half of the twelfth century, an increasing tendency to codify, circulate and refine the law, inclusive of elements touching upon the rights and activities of married women. Within the British Isles, for example, the influential jurists Ranulf de Glanville (d. 1190) and Henry de Bracton (d. 1268) commented upon and profoundly influenced the formation of legal practice in England, commenting on the property rights of married wom­en.^[18] Similarly, the earliest surviving redaction of the Welsh laws of Hywell Dda (the Cyfnerth redaction), including the law of married women, is thought to have been compiled in the late twelfth century, and elaborated through the thirteenth century.^[19] And, further afield, in Norway for example, old regional law codes gave way to the first national law code, of Magnus the lawmender, in 1274, which care­fully defined women's rights to property (see Hansen's essay).

As some of the essays in the volume will discuss, lawmakers, jurists and courts constantly renegotiated these same very elaborate - but sometimes impractical or simply ignored - systems of law with respect to married women. We therefore need to be wary of seeing the law as something that evolves in a single direction, whether to married women's benefit or detriment. Shennan Hutton, for example, argues that - while Ghent's unwritten custom was redacted in 1563, stating that married women could not legally enter into contracts without the express permis­sion of their husbands - the mid-fourteenth-century records of actual practice (contracts and lawsuit adjudications recorded in the aldermen's annual registers) show that there was widespread acceptance of married women's public perfor­mance of property management, with or without their husbands. Cordelia Beattie finds late medieval legal evidence that married women could make valid contracts for necessities in England, as suggested by an eighteenth-century treatise which claimed this was still the case, but also found that this ability was restricted over the course of the fifteenth century. Thus the long view enables us to assess change over time with respect to married women's legal position.

What Do We Mean by The Law?

As Sheilagh Ogilvie comments in her essay, it is important to examine what is meant by concepts that have largely been taken for granted such as �the law'. We do not just use the term to refer to law codes, legal treatises and statutes, their

Married Women and the Law in Premodern Northwest Europe enforcement in law courts, and the legal personnel involved. We have adopted a broad approach, in common with the �new legal history', which sees the law �not simply as an external mechanism regulating daily life, but as an integral part of the way in which social relations were actually lived out and experienced’.^[20] Ogilvie, for example, looks beyond the question of married women's legal autonomy (in the German-speaking world, the key issue here is that of Geschlechtsvormund- schaft or �gender guardianship') and argues that we must also examine other legal influences which circumscribed the economic options of married women, and thus their life chances and well-being in early modern Germany: the legal privi­leges of guilds and other occupational associations; and the legal powers of lo­cal communities, including local church courts' jurisdiction over the conduct of married life. Other essays presented here - those by Cathryn Spence and Alexan­dra Shepard - also use legal material (Scottish burgh court registers and English church court records respectively) to assess married women's economic activities.

�The law', then, is multi-dimensional. It is also possible to speak of many co-ex­isting and competing systems of law. Little more can be done here than to sketch out a basic map of major spheres of law, highlighting areas where the treatment of married women was particularly distinctive, as a guide for the reader in exploring the following chapters.

The major divisions of law during the Middle Ages and much of the early mod­ern period were different from those relative in modern society. In particular, in the pre-modern world, �the law' was divided principally between secular law and ecclesiastical, or �church', law. Secular law was concerned with one's temporal activities (such as trade), while ecclesiastical law was concerned with governing one's spiritual welfare (and thus with such matters as adultery). Generally speak­ing, transgressions of, or disputes under, secular and ecclesiastical law were dealt with in their respective courts, which had their own hierarchies. However, hu­man activities were often governed by a combination of secular and ecclesiastical law. Particularly pertinent to this volume is the institution of marriage, which formed the basis of both a spiritual union and a union of property - moveable and immovable - between the families of the bride and groom, and was therefore carefully regulated under both secular and ecclesiastical law. Disputed marriages, or disputes within marriage - for example regarding consanguinity or adultery - might give rise to related litigation in both secular and ecclesiastical courts, with the judgments of each potentially resulting in equally potent financial, proprietary or corporal censure.^[21] This is demonstrated in Korpiola's essay, which investigates the implications of marital dysfunction and breakdown for property possession.

The division between civil and criminal law, perhaps that which springs first to mind in the modern era, was less distinct in the pre-modern era, particularly

in the Middle Ages. Many of the systems of law in northwest Europe - such as the Celtic Brehon Law and Laws of Hywel Dda observed in Gaelic Ireland and native-controlled Wales respectively - relied overwhelming on complex systems of payments to wronged parties and their extended families, rather than punish­ments, to resolve disputes for both â€?civil’ misdeeds (such as breach of contract) and â€?criminal’ misdeeds (including homicide). These systems, by their very na­ture, had to gauge the worth of individuals so that compensation for misdeeds could be set accordingly, with both gender and condition (particularly freedom or servility) being key determinants of personal worth. Transgressions against women and serfs were consistently redeemable by lesser payments than those due for wronging men.²² Within this context, the identity of the party wronged was of equal importance to the nature of the illegal act, be it what we would now consider â€?civil’ or â€?criminal, in determining the magnitude of the breach of law.

While primarily compensatory legal systems were not dominant in northwest Europe c.1200-1800, the contemporary social relevance of their then �common sense’ approach to social differentiation, and in many areas their legacy, is deeply ingrained in the legal codes of virtually all northwest European societies. For ex­ample, while in later medieval England a free landowner might be sued for un­justly dispossessing or assaulting another free landowner, he was within his rights to arbitrarily redistribute lands occupied by his servile tenants and to punish them corporally if he felt it justified. With respect to gender, while a man might be sued for assaulting another man of similar condition, he might freely chastise his wife as a corrective to her behaviour. Likewise, just as an individual’s social �worth’, or position, was gauged for the setting of compensation payments, the measure of legal authority accorded persons to act independently in society, to make their own contracts or to bear direct responsibility for their actions or the management of their estates, was also dependent on their gender and condition. With respect to married women, the French phrase coverte de baron was used in legal records in England as a general term to describe the legal state of married women, whose autonomy was eclipsed by their husband under the law and customs described in English as �coverture, giving rise to the nomenclature of femme couverte (some­times anglicized as �feme covert’). Variations of coverture - if not always so called - existed throughout northwest Europe in the pre-modern era.

Coverture was expressed in national law codes and closely observed in judicial forums of primary importance, as provided for litigation between (and against) tenants in chief. For example, in England, a married woman could not sue or be sued without her husband in the national courts of Common Pleas and King’s Bench. However, the customary law employed in local judicial forums, where the tenants of greater landowners or members of urban liberties with special judicial privileges ordinarily resolved their disputes, might apply coverture less strictly or consistently. Miriam Muller’s essay argues that it was sometimes ignored entirely in late medieval English manor courts and that previous scholars have mistak-

Jenkins and Owen, eds, The Welsh Law of Women; R. Thurneysen et al., Studies in Early Irish Law (Dublin and London, 1936). For Ireland, see G. Kenny’s essay in this volume.

Married Women and the Law in Premodern Northwest Europe enly assumed it had more of an influence there than it did; while Spence's essay illustrates the commonality with which early modern Scottish wives contracted legitimate debts within the framework of local legal regimes. Lizabeth Johnson's essay highlights the inconsistency with which it was applied in similar Welsh courts, and Beattie's essay suggests that urban liberties such as Norwich or Lon­don strategically relaxed the strictures of coverture for the convenience of trade in the late medieval period. In Ireland and Wales, indigenous traditions co-existed alongside those imported from England.^[23] As Kenny argues in her essay, while the Anglo-Irish legal system ensured that married women were under the rule of their husbands, this was not the case in the Brehon law according to which Gaelic Irish society functioned. In Wales and England, local customary law faded at the end of the Middle Ages, but where strong central legal systems and law codes failed to take root, as in early modern Germany, the result was the multiplicity of regional variations of gender guardianship addressed by Ogilvie. As discussed above, Hut­ton's essay on Ghent argues that it was when customary law was codified in 1563 that married women lost some of their legal capabilities.

Throughout the transition from medieval to early modern society, the emer­gent state, embodied to a greater or lesser extent by a feudal lord or monarch, took an increasingly prominent role in the codification and manipulation of the law. In parallel to this, a clearer distinction emerged between criminal acts, as transgressions of the law of the lord or monarch and prosecutable by the state, and civil wrongs done by one private party to another, for which the law provided a remedy and judiciary within which to prosecute it. During the same period, when distinctions between �criminal' and �civil' aspects of the law became sharper, the servile condition largely ceased to exist in northwest Europe, and the state came increasingly to treat men with greater equality. However, coverture remained a key feature of the law in northwest Europe. The special legal position of women, and in particular married women, regarding their legal abilities and disabilities was more closely enumerated rather than abolished. And, as illustrated by some of the essays in this volume (for example, those by Beattie and Hutton), the clearer articulation of women's legal rights in the later medieval and early modern peri­ods was as likely to lead - in legal theory at least - to the further circumscription of wives' legal capacities as it was to secure their rights.

Key Themes

Some areas of married women's interactions with the law stand out as recurrent points of concern for the pre-modern peoples of northwest Europe and thus as recurrent foci of the research presented in this volume. These can, as noted at the outset, be summarized under the following four headings: married women's rights regarding the possession of moveable and immovable property; married women's

capacity to act as agents of their husbands and households in transacting business; married women's interactions with the courts; and marital property at the dissolu­tion of marriage. Each of these four topics - while not in themselves exhaustive of married women's interactions with the law - can be further divided into general areas of study, all of which contain some degree of ambiguity regarding the posi­tion of married women.

The law's regulation of married women's ability to possess moveable and im­movable property was generally cognizant of the transference of property to the control of the husband, but this transference was not always absolute. Often new husbands could not lay claim to all of their wives' moveable property, such as debts, except in right of the wife (see Matthew Stevens' essay). A wife's personal effects, such as her clothing and jewellery, were often considered her own, giv­ing rise to confusion if wives should be required to assess their own worth (see Shepard's essay), and disputes should the wife alienate or run away with personal effects of substantial value (see the essays by Johnson and Korpiola). And married women were not always wholly in possession of the immovable property they brought into marital unions, especially where - for example, in Ghent, Norway or Sweden - the woman's wider kin retained certain rights to the property restricting its free alienation (see the essays by Hutton, Hansen and Korpiola).

Married women's capacity to transact business as agents of their husband or household was fraught by a natural conflict between the appealing practical util­ity of wives acting on their husband's behalves, and the legal necessity that the husband alone be accountable for the household as an economic unit. In both England and Scotland there were legal provisions for wives to purchase household necessities (such as food, drink, clothing and medicine - see the essays by Beat­tie and Spence), and one would assume that there were similar provisions across northwest Europe. Further, dependent upon location, in some circumstances (for example, in war), when practising certain occupations (for example, mercery) or in urban environments (for example, London) it was acceptable for women to make some agreements either independently of their husbands or as their agents (see the essays by Korpiola and Beattie).^[24] The extent of a wife's accepted modes of independent action also differed sharply both between local and competing legal jurisdictions and within jurisdictions as they evolved through the pre-modern era (see the essays by Kenny, Ogilvie and Beattie).

Women's interactions with the law, within the court, could be similarly incon­sistent. Court records offer an especially valuable insight into contemporary in­terpretations of how the law, and in particular coverture, should be applied. For example, studies of local court records from medieval England and Wales high­light the remarkable frequency with which the conventions of coverture might simply be ignored, in contrast with national legal custom, should doing so be felt expedient (see the essays by Muller and Johnson). And on a more subtle level, Johnson's essay argues that even the form that the matter took in court (for exam-

Married Women and the Law in Premodern Northwest Europe ple, presentment or interpersonal litigation) might affect the apparent autonomy of women before the court.

Finally, the distribution of marital property at the dissolution of a marriage - through judicial separation or death - could often be complex. For example, in cases of adultery or homicide, strong prohibitions against the retention or recep­tion of property by the guilty party or his/her heirs could effectively impoverish or enrich a wife (see Korpiolas essay). Likewise, strict rules typically governed the extent to which a wife could transfer moveable and immovable property acquired through one marriage union to another (see Hansen's essay).

Collectively, these foci of research serve to illustrate both how fruitful the study of married women and the law can be, in contrast to the past historiographical tendency to see such women as hidden from view in legal materials, and the scale of the task awaiting future historians. It is hoped that this collection will inspire other scholars to add to our increasing knowledge about married women and the law in the premodern past. One of its key arguments is that there has been a tendency to overplay the extent to which coverture applied. The collection points up differences between the English common law position, which gave husbands guardianship over their wives and their wives' property, and the position else­where in northwest Europe, where wives' property became part of a community of property. However, it also argues that we need to be attuned to further nuances over time and space and in different legal jurisdictions.