MARRIED WOMEN, CONTRACTS AND COVERTURE IN LATE MEDIEVAL ENGLAND

Cordelia Beattie

It is a wyues ocupacyon... to go or ryde to the markette: to sell butter / chese / mylke / egges / chekens / capons / hennes / pyg- ges / gees / and all maner of cornes.

John Fitzherbert, Book of Husbandry (1523)^[425]

Fitzherberts picture of a woman buying and selling at market seems unremark­able. Craig Muldrew comments that, �In any print or painting of marketplaces in the early modern period, women are always present', while Amy Erickson adds, �In all of the illustrations that I have seen women actually predominate in the mar­ket both as buyers and as sellers.'^[426] But what if we imagine a situation in which the goods that a wife wants to buy cost more than the goods that she has sold? Would anyone extend credit to this married woman? If so, who would be liable for the debt if she did not honour it? Would it matter if she bought luxuries rather than necessities, or if the goods were for her own trade?

Two scholars have recently argued, based in part on eighteenth-century legal treatises, that a �law of necessaries' or �law of agency' gave married women in Eng­land c.1660-1860 some relief from the strictures of coverture, the common law doctrine which meant wives were under the guardianship of their husband, had no legal possessions of their own, and could not enter into economic contracts in

Married Women and the Law in Premodern Northwest Europe their own right. Margot Finn describes the �law of necessaries’ as allowing wives �to make contracts on their own behalf for necessaries, as agents of their hus­bands’.^[427] The Laws Respecting Women (1777), for example, states that �while they cohabit, the husband shall answer all contracts of hers for necessaries, for his as­sent shall be presumed to all necessary contracts...

When did this law of necessaries come into being? The legal treatise Baron and Feme: A Treatise of Law and Equity Concerning Husbands and Wives, in its third edition (1738), drew on a late medieval precedent when discussing what acts done, or contracts made, by the wife shall bind the husband: �in 11 H. 6. 30 it is the Opinion of Martin, that if a Woman buy Things suitable to the Degree of her Husband, he shall be bound by it’.^[432] This is a reference to a comment by Justice Martin, which was recorded in a year book for 1433.^[433] This and other similar late medieval year book discussions were cited during a famous legal case from 1663, Manby v.

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For legal historians the law of necessaries is largely bound up with a married woman's ability to act as her husband's agent in the Middle Ages. Frederic William Maitland summarized the fully developed common law position as follows:

During the marriage the wife can not contract on her own behalf.

She can contract as her husband's agent, and has a certain power of pledging his credit in the purchase of necessaries. At the end of the middle ages it is very doubtful how far this power is to be explained by an �implied agency'.^[437]

He also commented that, �The little that we can read about this [pledging a hus­band's credit for necessaries] in our oldest reports [c.1306] suggests that the law­yers were already regarding it as a matter of agency.'^[438] But, as the above reference to �implied agency' signals, by c.1500 a married woman would need her husband's express consent even if she was buying �necessaries', which is different from the position in the eighteenth-century treatise, The Laws Respecting Women. A sum­mary in J. H. Baker's An Introduction to English Legal History reinforces this view:

as an agent of her own husband, the wife could sometimes make contracts on his behalf.

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These brief summaries of the medieval legal position suggest not only that there was a medieval understanding of a law of necessaries, which was bound up with what we might call a law of wifely agency, but that married women's ability to make use of it actually declined over the late medieval period.

Evidence of a medieval law of necessaries or agency seems particularly sig­nificant in light of Marjorie McIntosh’s reappraisal of the borough custom which enabled some married women to trade as femmes soles, that is, subject to the same legal rights and responsibilities as unmarried women. Early twentieth-century scholars, such as Mary Bateson, Annie Abram and Alice Clark, contrasted the �freedom and autonomy enjoyed by femme sole traders with the limited oppor­tunities available to wives who remained femme couvertes de baron (“covered” by their husbands)’.^[440] More recently, Caroline Barron argued that femmes soles were among those who enjoyed a relative �golden age’ in the period after the Black Death of 1348-9. While others (such as Judith Bennett) have suggested that the custom’s significance has been over-emphasized, being applicable �to only a small group of atypical urban businesswomen’, McIntosh goes further.^[441] From a study of London’s court records in the period 1300-1630, she concludes that the femme sole status for married women conveyed fewer economic and legal benefits, and was used much less actively, than previous historians had assumed. She argues that while it might have been in the husband’s interest to require a financially unstable wife to register as femme sole, wives perhaps felt that it was more advantageous to remain as femmes couvertes, even if trading separately, as they would then have the husband’s economic backing, his participation in the event of legal action, and a chance to manipulate their ambivalent status in the courts.

Perhaps a law of necessaries or agency was a solution in common law to some of the problems posed by married women's activities in the marketplace, in a similar fashion to the custom offemme sole in borough law. Indeed, if uptake of the latter custom - which anyway only existed in a few urban centres - was always small (even in its suggested peak period of the late fourteenth and fifteenth centuries), then our attention might be better placed exploring married women's ability to act as their husbands' agents rather than their use of the custom. This essay will first examine relevant year book reports, which record legal arguments, in order to delve deeper into the matter of married women's ability to make contracts under common law. Then it will discuss the relationship between the common law understanding that married women could buy and sell as agents of their husbands, or on behalf of their households, and the borough custom offemme sole.

Year Book Evidence for a Medieval Law of Necessaries or Agency

What we now refer to as �Year Books' are abridged reports of legal arguments in specific pleas, including remarks attributed to judges, which came before the com­mon law courts of Common Pleas (or the �Common Bench') and King's Bench, at Westminster, and the general Eyres from the late thirteenth century onwards.^[445] Although their purpose has been the subject of a great deal of debate over the years, the main motive for producing them seems to have been the recording, circulation and preservation of �the intellectual aspect of litigation...

The year books are largely written in Law French and their authorship is un­known. It is likely that they were not individual compilations but initially resulted from the exchange of notes generated at law school, which would help explain how very different reports of the same case can sometimes be found in different manuscripts.^[449] William Craddock Bolland suggests that these notes would have

Married Women and the Law in Premodern Northwest Europe been handed in at a scriptorium to be written up into a text. He argues that this method of composition might explain why some cases are incorrectly written into the texts for different years.^[450] (The books are generally ordered by law terms at Westminster, although in the late thirteenth century some are reports of particu­lar Eyre sessions.)

For the modern scholar, there are editions which collate all or some of the known manuscripts for the reign of Edward I, the years 1-13 Edward II, and for the reign of Richard II, published by the Rolls Series, Selden Society and Ames Foundation. More recently, David Seipp compiled a searchable database which indexes all year book reports printed in the chronological series (1268-1535) and many of those printed only in abridgements, and cross-references the modern editions.^[451] The canon of printed year books began c.1481 when the firm Lettou and Machlinia published the Year Books 33-37 Henry VI. By 1558 the canon of printed year books was held to be complete - ending with Michaelmas term 27 Henry VIII (1535) - but many years, including all those of Edward I and Ed­ward II, more than ten years of Edward III, and the entire reign of Richard II, were omitted altogether.^[452] Using the database in conjunction with references from later legal sources, I have found six examples which debate what married women could and could not do regarding contracts, spanning the period 1300-1500 (viz. c.1306, 1310, 1433, 1442, c.1499 and 1535). While it is possible that there are other relevant reports among the surviving manuscripts, discussion of these six reports enables elaboration on the brief summaries provided by Maitland and Baker, and - while each report is a comment on a specific case - the fact that many are refer­enced in later legal texts is suggestive of their impact.

Contrary to Baker's assertion that �it was settled, the two reports from the early fourteenth century reveal it was unlikely that there was a single position on mar­ried women's ability to make contracts under common law c.1300. Both cases concern actions for debt, one brought against a married couple, one against a man for his late wife's debt. The first example probably dates from 1306, although it is found in the year books dated 1312 and 1313-14.^[453] Here, Roger Peyntoun de-

manded payment for a debt from William Musket, by reason of a contract entered into by William's late wife, Alice, during their marriage. Alice had purchased two quarters of wheat but failed to pay the 7s. agreed upon. Serjeant Asshele argued that the debt was the wife's and that â€?no contract that the wife made while she was covert could place a charge upon her husband’.³⁰ Serjeant Tilton disagreed, first arguing that â€?The deed of the wife is in such a case the deed of the husband, for they are as one person, and consequently the husband ought to answer for the wife's contract.'³¹ In response to Asshele's argument that the husband only repre­sents his own person, Tilton then contended that the wife's incapacity to make a contract ought to lead to a transfer of liability to her husband, as in the case of a removable prior of a religious house whose act would bind his successor if he had benefited from the money.³² Whether the husband had benefited from the goods turned out to be the crucial point. The initial charge only stated that the wife had received the goods, not that she had received them for her husband's profit, and so the plaint failed. A note at the end of the case comments, â€?if he had counted that this same William had received, by Alice his wife, so much to his profit, he would have recovered the debt'.³³

Our second example - a case heard before the Court of Common Pleas in 1310 although its report is also included in the year book for the Eyre of Kent 1313-14 - had a quite different outcome. The case was brought by two executors, Adam de Middelton and John de Middleton, against Mauger Vavassur and his wife Alice, regarding a debt on a loan of 40 marks.³⁴ The husband alone responded and Justice Stanton stated that this was valid as â€?The wife has no property; so he who has the property shall make the law [fra la ley].'³⁵ â€?Make the law' is a reference to com-

II, Vol. XIII, 6 Edward II. A.D. 1312—1313, Selden Society 34 (1917; London, 1918), no. 41, pp. 153-6. The editors comment that that case �seems misplaced from an earlier term' and believe that it corresponds with Fitzherberts Dette, 163 (Mich. 34 Edw. I), which seems likely as the lat­ter also names the wife as Alice: ibid., p. xlix; Anthony Fitzherbert, [La graunde abridgement] (London, 1516), Dette, 163 (accessed via EEBO); cf. n.14 above. Seipp also comments that Ser­jeant Tilton, who appears in this case, stopped appearing in the rolls after 1306. The same case is included in the report for the Eyre of Kent 1313-14, which illustrates the earlier arguments about how the year books were compiled: see Bolland et al., eds, Eyre of Kent, 6 & 7 Edward II. 1313-1314, pp. 45-7.

³⁰ Vinogradoff and Ehrlich, eds, Year Books, 6 Edward II, 1312—13, p. 155. See also Bolland et al., eds, Eyre of Kent, 6 & 7Edward II. 1313—1314, p. 46. For the role of serjeants at law, see Baker, Introduction, pp. 179-81.

³¹ Vinogradoff and Ehrlich, eds, Year Books, 6Edward II, 1312—13, pp. 153-4. See also Bolland et al., eds, Eyre of Kent, 6 & 7Edward II. 1313—1314, p. 45. For a similar assertion, from a 1306 cui in vita case, see Horwood (ed.), Year Books... Edward the First (1305—1307), p. 330: â€?we think that if she was coverte when you entered, anything that she did in that case was not her own act, but the act of her husband’.

³² Vinogradoff and Ehrlich, eds, Year Books, 6Edward II, 1312—13, p. 156. See also Bolland et al., eds, Eyre of Kent, 6 & 7 Edward II. 1313-1314, p. 47.

³³ Ibi d.

³⁴ Seipp 1310.039ss and 1313.455ss. For the editions see F. W. Maitland, ed., Year Books of Edward II, Vol. III, 3 Edward II. A.D. 1309-1310, Selden Society 20 (London, 1905), 4A-C, pp. 67-8; Bolland et al., eds, Eyre of Kent, 6 & 7Edward II. 1313-1314, p. 48.

³⁵ Maitland, ed., Year Books of Edward II, 1309-1310, 4B, p. 67. purgation and one of the issues in this case was whether it was sufficient for the husband to do this alone or whether he should be joined by his wife. In another of the year book manuscripts for 1310 (as well as in the version written up under the Eyre of 1313-14) we are told that the defendant, through his lawyer, argued â€?if any contract were made by our wife, it was against our will and pleasure, and we do not think that the husband is bound to answer to contracts made by her during the coverture’.^[454] The justices clearly agreed with this argument, although the plaintiff’s lawyer asked them to reconsider as otherwise they would have no remedy for the debt. Chief Justice Bereford told him to know better another time or, in Bolland’s translation, â€?You should have thought of all that before you lent your money [to a married woman].’^[455]

On this evidence it seems unlikely that, as Baker has claimed, �it was settled by 1300 that she [a wife] could bind her husband to a sale of goods which came to his use or profit’ The report for the c.1306 case does note that a plaint alleging that the husband had profited would have been successful. In the second example this ar­gument was not raised and the winning one was that a married woman’s contract ought not to bind her husband. Further, the defendant in this case made a point of arguing that any contract �was against our will and pleasure’ (�fut encounter nos- tre gree et nostre volunte’), which already has shades of Baker’s argument that by 1500 the husband was bound �only if he had either given his wife prior authority to act for him, or subsequently ratified a contract for his benefit’^[456]

Our next pertinent example is from a century or so later: the 1433 year book report cited in Baron and Feme and Manby v. Scott. The report discusses the buy­ing of necessities, although the case was actually an action of debt brought against a monastery.^[457] It raises the respective positions of monks and married women un­der the law, as do a number of year book reports (we saw above that the husband’s liability for his wife in the c.1306 case was compared to that of a prior taking over a religious house from another prior).^[458] One William Scot brought an action of debt before the Court of Common Pleas against Fountains Abbey. The central issue was whether the original debtor, a monk called Roger, had the power and authority to buy necessities for the House, as he was alleged to have borrowed twenty pounds with which to buy wheat �for the use and profit of the Abbey’ The defence claimed that he was never the abbot (as the plaintiff’s writ had named him), nor was he an officer of the House, a cellarer, a cook, or another officer, who might have had that power and authority; he was just a monk, a dead person un­der the law, and the debt could not be pursued. It was at this juncture that Justice Martin intervened:

If my wife borrows from one, and clothe herself better than belongs to my estate, I will not be charged to pay back this loan, even though it came to the use and profit of the husband, because his [my] wife must �of necessity' be clothed, but because she went above her es­tate, the husband will not be charged, thus it seems that it will be accounted his [the plaintiff's] folly that he made this contract with a co-monk who was no officer of the Abbey.^[459]

For Martin, it does not matter who used and profited from the goods (a commu­nity, a husband) if the person doing the purchasing acted beyond her/his status, either by buying better clothes or by taking on a role that was not his in the abbey. The reading that the anonymous author of Baron and Feme took from this report of a case - about whether a monk, who did not hold an office in Fountains Abbey, could bind the House to a contract he made - was Martin's implication that if a wife borrowed to clothe herself according to her husband's, and therefore her, es­tate then the husband would be charged because she �of necessity' must be clothed. This is our first example of what we might call a law of necessaries and it seems telling that the case was not actually about a married woman. This suggests that Martin thought his point about what a married woman could (and could not) do was sufficiently commonplace by 1433 that it could be used as an analogy in a case about a monastic debt, which perhaps compensates for the long interval between the reports discussed here.

Our fourth example is a report from 1442, cited in the Manby v. Scott case.^[460] It also concerned an action against a monk, and an analogy to a married woman was again made, although here the point about the husband's liability was challenged. In a case for debt brought before the Court of Common Pleas, the plaintiff was al­leged to have loaned twenty pounds to the defendant abbot's predecessor, who had obliged himself to pay by a written bond. The plaintiff claimed that the sum was converted to the use of the defendant abbot's House and thus the defendant, as its current abbot, should honour it. The defence (Serjeant Markham) sought to argue that the plaintiff's action was invalid because it pertained to two matters rather than one: one of a contract arising from the loan, and the other of the written obligation. Thus Markham actually argued for the defendant's liability for the contract, with analogy to a wife's purchase of something that came to her husband's use:

in several cases even if a contract be not valid to have an action against me, yet by a thing done afterwards it will be valid; because I put that your wife buy something from me, now you will not be charged for this against me, but if afterwards this comes to your use, now you will be charged; and it will be the same law if your servant buy anything, etc.; thus here even though the contract that the pre­decessor made was not of such force at first that the successor will be bound by this, yet when the predecessor converted the sum to the use of the House, this made the contract effectual to bind the House [my italics].^[461]

Markham's argument that - as the original debt had been put to the use of the House - the current abbot should be liable for his predecessor's debt, rests on an assumption that a wife could bind her husband to a sale of goods that came into his possession. Not everyone agreed; Chief Justice Newton argued that it was �not law' that a person was liable for something if it simply came to his use, and he used the example of a gift:

because on this it would ensue that if after such purchase made by the servant and the same servant wanted to give the thing thus bought to the master, by this the master will be charged in an ac­tion, which is not law; it must be, if the husband or the master will be charged for a purchase made by the wife, or servant, that this buying be done to the use of the husband or the master, and then it will befall that the husband or the master come to have the thing afterward, he will be charged by this agreement [my italics].^[462]

Thus Newton's position is that, for the contract to be binding on the husband, it needed to be done on his behalf and then the goods come into his possession. This suggests prior consent on the part of the husband, whether express or im­plied. The position has something in common with Martin's argument of 1433: a contract for something that came to the use and profit of the husband was not necessarily binding. Nevertheless, it is of note that in this report from 1442 - again concerning a monastic debt - Markham assumed that a married woman could bind her spouse to a sale of goods which simply came to his use or profit, as was suggested by the c.1306 case. The debate in this legal action continued into a sub­sequent proceeding.^[463]

Our fifth example is from a year book report dated 1505, but perhaps actually originating from a case heard in 1499.^[464] It explicitly concerns a married woman's contract and raises further distinctions: between a married woman making a nec­essary purchase (which did not bind the husband to the debt) and the husband agreeing afterwards with her necessary purchase or commanding the wife to make a necessary purchase (which might have bound him). A case had been brought before King's Bench for trespass. The plaintiff alleged that he had sold to a married woman certain goods for twenty pounds and that the husband had then paid him and taken the goods. He was now suing the husband for trespass (for taking the goods), and Serjeant Yaxley - who was pleading his case - claimed that the sale was void because a femme couverte could not make a contract. Justice Rede was the first to disagree, asserting that if a married woman bought clothing (�draps') and the husband agreed to it afterwards, that was a valid contract and so it was in this case. Chief Justice Fyneux also maintained that the plaintiff should accept this argument but elaborated on what should and should not bind a husband:

a married woman [feme covert] cannot do anything that redounds to the prejudice or charge of her husband by contract, but she is â€?able' to do things by which her husband will have advantage; be­cause if I give goods to a married woman, this is good, and the hus­band can agree to this, but if a married woman makes a contract, or buys something in a market, this is void, because it can be that this will be a charge to the husband; but my wife can buy a thing to my use, and I can agree to this, and so if I command my wife to buy a necessary thing, if she buys these, I will be bound by this [purchase] by this general command; and if my wife buys a thing to keep my â€?household', such as bread, etc. and I have no knowledge of this, even though it be expended in my household, I will not be charged for these.⁴⁷

For Fyneux the key issue was that the wife's actions should not prejudice the hus- band.⁴⁸ Thus the husband could agree to her actions subsequently and make her purchase valid but if he did not know about a purchase - even if it was bread for the household, which the household consumed - he would not be liable for it.⁴⁹ Fyneux's argument thus differs from Martin's position in 1433 that a wife could buy necessities without any prior command or subsequent agreement as long as they were in keeping with her and her husband's estate. Fyneux did allow, though, for a husband to issue a â€?general command' to his wife to buy â€?a necessary thing’. This report lends support to Baker's statement that â€?by 1500 it was clear that the husband was bound in such a case only if he had either given his wife prior au­thority to act for him, or subsequently ratified a contract for his benefit’

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�femme couverte ne puit faire chose que tourne son baron en prejudice ou charge per son contract; mes ele est “able” de faire chose, pur quel son baron aura avantage. Car si jeo donne bien a femme couverte, ceo est bon, & le baron puit agreer a ceo: mes si femme couverte fait contract, ou achete chose en marche, ceo est voide, pur ceo que puit estre que ceo serra charge al' baron. Mes ma femme puit achete chose a mon use, & jeo puis agreer a ceo: & issint si jeo commande ma femme de acheter chose necessaire, si ele achete ceux, jeo serai lie per ceo per cest commandement general. Et si ma femme achete chose a garde mon “houshold”, come pain, &c. & jeo nay conusance de ceo, coment que il soit expende en mon “houshold”, jeo ne serai charge pur ceux': Seipp 1505.064 (the Law French and the English have been amended).

For another case in which it is argued that the wife cannot do something to the damage of the husband, see Seipp 1439.010 (Sjt Fulthorpe; but cf. Sjt Portyngton).

Cf. Loengard, �Common Law for Margery', p. 123: �Obviously if a woman ordered a leg of lamb and her husband ate it for dinner, the case would seem fairly clear.'

Our sixth example is from a year book report of 1535, which concerned John Holygrave's plaint before King's Bench that Henry Knightsbridge owed him £6 15s. The original debt had been owed by Oliver Tateham whom Holygrave had had imprisoned in the Bread Street Compter. Knightsbridge had asked Holy­grave's wife, in her husband's absence, to let Tateham go free in exchange for him (Knightsbridge) undertaking the debt (in legal parlance, assumpsit).^[465] She agreed but Knightsbridge now denied that he had taken on the debt, arguing - through his lawyer - that the evidence was not good and that the assumpsit was void be­cause it was made with a married woman without prior command from her hus­band and because a wife could not do any act that would be to the prejudice of her husband (which had been Fyneux's starting point in the previous example).^[466] However, all the justices agreed that the undertaking was good because the hus­band had agreed to it afterwards. One of the justices, Spelman, took the opportu­nity to say more about what things a wife was legally â€?able' to do:

Sir, a wife is �able' to do acts that will be to the advantage of her hus­band, and to his disadvantage also, and these will be good by the husband's agreement. To his advantage she can; as if an obligation be made to her, or a feoffment, or a gift of goods, if the husband agrees, this is good. So can she disadvantage the husband, as if she disseises a man, and then the husband agrees, now the husband is disseisor ab initio, and this agreement will have relation to the time of the disseisin. So it is if a married woman [feme coverte] sells goods, or gives away goods, and then the husband agrees to this, these are made perfect sales, and gifts, and the cause is, the agreement afterwards makes them profit, and the reasoning, as has been said, is because a married woman does not have any will, but the will of the husband is her will, and so when the husband agrees to an act done by his wife, this agreement makes this the act of the husband. As the case where the wife [femme] gives away the husband's goods, or sells them, and afterwards the husband agrees; now by this agreement this is the gift or sale of the husband, and the husband will be bound by this agreement.^[467]

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Although the case was about whether Knightsbridge taking on Tatehams debt was valid or not (because the agreement had been made with Holygrave’s wife), rather than about a married woman buying goods, it is nevertheless instructive that Spelman argues that the same principle applies to a whole range of actions: subsequent agreement to a wife’s act makes it the husband’s act. He argues - in contrast to Fyneux - that a wife could act to the disadvantage of her husband.⁵³

We have seen that justices did not always agree as to what a married woman could do, both within a particular case and over the course of the late Middle Ages. If we were to look for a general pattern, though, it seems from the reports discussed that over the course of the fifteenth century there was greater restriction on married women’s ability to make valid contracts for necessities. In 1433 Martin argued by implication that a wife could expect her husband to honour a loan if she had used it to buy clothing suitable to her estate because that was a necessity. In 1442 Newton countered that a husband could not be held liable for things that simply came to his use; instead his wife must have bought the things for his use, implying the purchase was done at his behest, with his subsequent possession of them signifying his agreement. Then c.1499 Rede noted that a wife’s purchase of clothing was made valid if her husband agreed to it afterwards, and Fyneux went further in stating that a husband should not even be charged for bread that his household consumed if he had not issued a command - whether specific or gen­eral - for his wife to buy such necessities.

If we track a law of (wifely) agency, then there is a different and more complex trajectory than the long-term trend towards restriction which we find in the law of necessities. The c.1306 case ruled that a husband should be liable for a wife’s contract if he profited from it, whereas the 1310 case concluded that the husband should not be held liable for contracts made during coverture. Fyneux argued c.1499 that a married woman could �do things by which her husband will have advantage’ but �cannot do anything that redounds to the prejudice or charge of her husband by con­tract’. However, Spelman in 1535 argued that �a wife is “able” to do acts that will be to the advantage of her husband and to his disadvantage also’. The acts are broader than the purchasing of �necessities’ but in most of the examples discussed - whether they relate to a law of necessaries or a law of wifely agency - the husband was required to give his consent, implicitly or explicitly, either before or afterwards.

& ceux sera bonne per l' agrement le baron. A s' avantage ele poit; come si une obligation soit fait a luy, ou feffement, ou donne des biens, si le baron agre, ceo est bon. Issint poit ele disavantager le baron; come si ele disseisist un home, & puis le baron agre, or le baron est disseisor ab initio, & cest agrement aura relacion al' temps del' disseisin. Issint est si feme coverte vende biens, ou donne biens, & puis le baron agre a ceo, ceux sont parfait vende, & donne: & la cause est, la agrement apres fist eux profit, & la reason come ad este dit, est pur ceo que une femme covertte n'ad ascun volonte, mes la volonte del' baron est s' volonte; & donq quand le baron agre a un acte fait per sa femme, cest agrement fait cest l'acte le baron. Come le cas ou la femme donne biens le baron, ou vende eux, & apres le baron agre; or per cest agrement ceo est le donne ou vendicion del' baron, & le baron sera lie per cest agrement': Seipp 1535.067 (the Law French and the English have been amended).

⁵³ See also Seipp 1410.028 (CJ Gascoigne: â€?for a wife’s default will be adjudged her husband's de­fault, because to his will she is amenable').

We now need to consider the extent to which other legal jurisdictions - such as those of borough courts and Chancery’s court of conscience - stepped in to clarify or arbitrate what common law had left open regarding married women’s contracts.

Beyond Common Law

For Janet Loengard, the borough custom offemme sole was �a more effective way of permitting some [married] women to function in the commercial world’ than the common law supposition that a wife might be acting under her husband’s �general authority’.^[468] However, as discussed earlier, McIntosh has disputed how commonly that custom was used by married women. In this section we will consider what borough custom had to say concerning married women and con­tracts, but the focus will be deliberately indirect - on two Chancery cases in which London’s customs about married women and trade are raised and dis­puted - with the intention of offering a perspective which prioritizes the actual practice of the time rather than legal theory. While there are undoubtedly risks in putting too much weight on a few suggestive examples, the advantage of this approach is that - by considering evidence from a court which did not rely on common law principles - we can obtain a better sense of how the doctrine of coverture was modified and adapted to suit households’ needs. Further, with­out forgetting that the year book discussions related to actual court cases, and Chancery petitions, responses and depositions are clearly the products of law­yers and a legal system, the latter were composed with the intention of reflecting the point of view of the lay participants.^[469]

We are concerned here with the â€?English’ side of Chancery, the Chancellor’s jurisdiction to deal with bills of complaint, so called because its records are pre­dominantly in Middle English.^[470] The key aspect of the â€?English’ side is that it did not operate according to the principles of common law. Although some scholars prefer to call the late medieval Chancery a â€?court of conscience’ rather than of eq­uity, the important point is that the Chancellor decided cases according to some notion of what was fair or just as opposed to strict rules of evidence.^[471] In order for a case to fall under the remit of the â€?English' side, the petitioner had to claim that she or he would not receive justice in another jurisdiction, for example, because the case was not actionable under common law, there was a lack of supporting documentation, the petitioner was too poor to afford legal counsel, or the op­ponent was so powerful that a trial in another jurisdiction would be unfair. Com­pared with common law procedure, bringing a case to Chancery was a less formal process and so could be swifter and cheaper.⁵⁸

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The first petition in which London's customs about married women and trade are raised concerns a married woman denying that she was a â€?soul mar­chaunt', a term that the late fifteenth-century petitions use rather than femme sole.⁵⁹ Anne Davell, wife of John Davell, a London citizen and draper, had been found by a jury in London's Sheriffs' Court to be â€?soul marchaunt' and to owe Christine Baxter, a single woman, 18s. In Anne's petition to Chancery in 1486, it is claimed that she â€?never was soul marchaunt nor wist [knew] what that terme ment unto this tyme that necessitie ticheth hir, but was ever continually covert baron'.⁶⁰ Was this just a legal ploy to avoid paying the 18s., or might there be some truth to Anne's claim?

The wider context to the accusation was that Christine had first sued Anne's husband, John Davell, for 18s. - also in London's Sheriffs' Court - but this action had lapsed. However, John was still committed to Ludgate prison because he owed diverse sums of money to a number of people. Christine then pursued Anne for the same amount, by way of a trespass charge.⁶¹ According to Anne's petition, this was just opportunistic and due to Christine's â€?pure malice and evil will’.⁶² In the course of her defence, Anne's petition does imply that she had been involved in buying and selling, but also claims that she had only done so under the protection of coverture:

she never aught hir [Christine] peny nor never bought nor sold with hir nor with noon' othre creature the daies of hir life but undre the commaundement authoritie privilege and libertie of hir said husband as many other pour' women doon’⁶³

London, 1300-1550 (Cambridge, 2007), pp. 113-18.

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For more on the court of Chancery, its process and its records, see C. Beattie, �Single Women, Work and Family: The Chancery Dispute of Jane Wynde and Margaret Clerk', Voicesfrom the Bench: The Narratives of Lesser Folk in Medieval Trials, ed. M. Goodich (New York, 2006), pp. 179-82.

E.g. see The National Archives, Kew (hereafter TNA), Early Chancery Proceedings, C 1/47/91 (1472-3 or 1475), C 1/64/434, C 1/64/883, C 1/66/229 (all 1475-80 or 1483-5), C 1/73/119 (1386-1486), C 1/110/125 (1486-93), C 1/201/32 (1493-1500); I discuss the last two petitions in C. Beattie, �“Living as a single person”: Marital Status, Performance and the Law in Late Medieval England', Women's History Review 17 (2008), 327-40, p. 335. Petitions are undated but references to specific Chancellors in the bills' addresses set date limits in the absence of other information. TNA, C 1/80/12 (1486).

The 18s. in this action being �damages' for an unspecified offence.

TNA, C 1/80/12; this is formulaic language.

TNA, C 1/80/12.

The reference to acting under her husband's �commandment, authority, privilege and liberty' suggests that she operated as her husband's agent. Anne's petition also claims that this is something �many other poor women do'. We might want to be wary of putting too much weight on the adjective �poor' as this was a term fre­quently used in Chancery petitions, both to get the Chancellor's sympathy and to ensure that the petition met one of the requirements for moving a case to this legal jurisdiction (that the petitioner was too poor to get justice in another court).^[472] The Davells had clearly fallen on hard times, as John had been imprisoned for debt, but prior to this he was a citizen and draper and thus presumably part of London's mercantile elite. So we are left with the claim that Anne bought and sold under the commandment and authority of her husband �as many other women do'. This claim is important in two respects: it counters the accusation that Anne was really a �sole marchaunt' by casting her as her husband's agent and it asserts that this was a common practice.

Anne's claim in her Chancery petition of 1486 can be usefully compared with the closest year book example. Chief Justice Fyneux, with reference to the c.1499 case, argued that if a husband commanded his wife �to buy a necessary thing' he would �be bound by this general command'. Necessaries were usually defined as food, drink, clothing and medicine. While Anne was certainly responsible for such purchases, it is likely that her economic activities went well beyond this. According to Anne's own petition, since her husband's imprisonment, she had nothing from which �to fynde him mete and drinke during his beeing in prisone save onely the daily labour and hand crafte of your said beedwoman [petitioner] havyng iij children upon' hir hand at hir daily birdyn' and charge'.^[473] Thus Anne's conception of agency went beyond that of the justices in the king's courts; Bailey, from her eighteenth-century material, had suggested that this broader understanding of agency might have been how the law of necessaries was used in practice.

Our next Chancery petition goes further in its suggestion that London custom allowed married women a greater degree of agency than that granted to them under the common law. It is also from the late fifteenth century and relates to a case brought by a London vintner, William Lovell, and his wife, Elene, against William Hull, a mason, concerning silk bought from Elene by William Hull's late wife, Agnes. We have a number of surviving documents relating to this dispute: three petitions (two from the married couple, one from William Lovell alone after Elene's death), answers from Hull to two of the petitions, two replications from the petitioners (the first from Lovell and his wife, the second from Lovell alone), and the statements of three witnesses.^[474] From these, we learn that the Hulls had allegedly agreed to seal and deliver a bond as security for the cost of the silk but had failed to do so and, when the Lovells took actions against them in the city of London, the Hulls contested the charges by waging their law (that is, swearing an oath, together with eleven supporters) that they owed the Lovells nothing. In the Chancery case, William Hull went as far as to claim that he had no knowledge of Agnes buying the silk. Of particular interest here is the petition from William Lovell alone in which he paints a picture of how, during the frequent absences of mercantile husbands, their wives would take over the running of their households and all that this entailed. There is little surprising in this general picture.^[475] How­ever, Lovell goes further and says that:

the comune gise [custom] within the saide citee is and of longe tyme hath been that the wyfes of men of worship and thrifte in- fraunchised in the same citee have by the sufferaunce of their hus­bands in thabsence of them used to by and selle all' manere of mar- chaundise towardes thencreece [the increase] and lyving of them and their household' the dutees of alle whiche bargaines comming or growing hath alwey ben contente by suche wifes or for nowne paiement of them by their husbondes.^[476]8

It has been assumed that Lovell was referring to London’s custom of allowing mar­ried women to trade as iffemmes soles.^[477] I disagree and will first show how the two �customs’ differ, before arguing that the �gise’ Lovell refers to actually shares more with common law thinking on married women as agents than with the borough custom offemme sole, while also surpassing the common law position.

London’s custom of allowing married women to trade as if femmes soles was copied into the city’s Liber Albus in 1419:

And where a woman coverte de baron follows any craft within the said city by herself apart [apar luy soule], with which the hus­band in no way interferes [dount le baroun se melle rienz], such a woman shall be bound as a single woman as to all that concerns her said craft [soun dit craft]. And if the husband and the wife are impleaded, in such case, the wife shall plead as a single woman in a Court of Record, and she shall have her law and other advantages by way of plea just as a single woman. And if she is condemned, she shall be committed to prison until she shall have made satisfac­tion; and neither the husband nor his goods shall in such case be charged or impeached.^[478]

The custom concerns women who worked separately from their husbands and in a different trade from their husbands (�follows any craft... by herself apart, with which the husband in no way interferes'). The Chancery case revolved around the buying and selling of silk, but William Lovell was described as a vintner, which suggests that husband and wife were operating in different trades. However, the custom is pri­marily about removing responsibility for a wife's debts from her husband, whereas Lovell's petition says that husbands would honour their wives' debts if their wives did not pay them. The petition also refers to wives working �towards thencreece [the increase] and lyving of them and their household', and the �them' on the previous line quite clearly referred to the husbands (�in thabsence of them'). Indeed, Lovell's point seems to be that wives had to take on their husbands' roles in their absence. Further, Lovell's petition is at pains to suggest that his wife's actions were by his �sufferaunce', that is, he had given permission for her to buy and sell.^[479] This term �sufferaunce' is not only used with reference to the custom but also when Lovell's petition goes on to set out the precise circumstances behind the debt:

nowe late Elyne wife of your said besecher in his absence by his sufferaunce sold unto Agneys late wife of William Hull of London mason by his sufferaunce in his absence for cause and in fourme aforesaid asmoche silke as amounted by bargayne betwixt them ac­corded to the some and value of xxij. li [my italics].^[480]

The emphasis is on both husbands agreeing to the buying and selling and being absent, with the implication being that the wives were acting as their agents.^[481]

What is the �gise' or custom to which Lovell's petition refers? A custom relat­ing to debt in Liber Albus does mention wives acting on behalf of their husbands:

where plaint of debt is made against the husband, and the plaintiff declares that the husband made the contract with the plaintiff by the hand of the wife of such defendant [parmy la meyn la femme le defendaunt], in such case, the said defendant shall have the aid of his wife, and shall have a day until the next Court, for taking counsel with his wife.^[482]

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The central element here is that the husband can consult his wife in a debt case brought against him only.^[483] For our purposes it is telling that the wife's involve­ment in the contracting of the debt, acting as her husband's agent, appears com­monplace, but it does not amount to a legal custom to that effect. It is possible that Lovell was referring to something less formal by his use of the word �gise', such as a common practice.^[484] We should not confuse the writing down of customs with their origins. Thus while the first known record of London's femme sole customs was in the now lost Darcy's custumal of the 1330s and 1340s, the practice may actually have dated back to the early thirteenth century.^[485]

It is plausible to suppose that urban jurisdictions, which would have experi­enced the greatest volume of wives buying and selling goods, might step in to clarify what common law had left debatable. A custom from Norwich c.1340 is one such example:

In the case where the wife of any one without her husband's knowl­edge [preter scienciam viri sui] has accepted a loan from her neigh­bour, a citizen of this city, with or without gage, the husband must answer for the loan made to his wife in his absence, so long as the man and wife are on good terms, to wit so long as the wife of the said man is cohabiting with her husband at the time when the debt was made, or living separate by his assent and goodwill, so long as there is common knowledge of the said wife's good conduct, and that she does not (without being harshly and cruelly expelled by her hus­band's malice for no fault or demerit of hers) deceitfully or wrong­fully separate herself from her husband by her own wilfulness, and that she does not separate herself to make mischief; for in such case if any of these things can be proved, the husband is not bound to restore the loans thus taken. And creditors should be warned that without the husband's consent they lend to a wife, separating herself thus wrongfully from her husband, only at their own risk.^[486]

The custumal is mostly concerned with who was liable for the debts of wives who lived separately from their husbands. It is stated that the husband was still liable if he had made her leave or if he had assented to her leaving and was only not liable for her debts if she had left without his consent. This last exemption not-

Married Women and the Law in Premodern Northwest Europe withstanding, the custumal generally assumes that a husband was liable for his wife's debts, even if she acted without his knowledge, which is further than the justices of the year book discussions were prepared to go. This position is closer to that of The Laws Respecting Women (1777), which states that �while they cohabit, the husband shall answer all contracts of hers for necessaries, for his assent shall be presumed to all necessary contracts, upon the account of co-habiting’.^[487] If the assumption in Norwich in the mid-fourteenth century was that husbands were li­able for contracts made by their wives in their absence, then this could have been a more widely held view.^[488]

Whether Lovell, in his petition to Chancery, was referring to a formal custom or to a common practice that had not been codified, William Hull challenged the petition's claim by asserting that he knows of no such custom in the city of Lon­don. As discussed above with Davell's petition, there could have been some truth to this, or it could just have been an expedient claim. Hull's response does not rest on this one issue, though, since he also claims that he had no knowledge of his own wife's actions:

the seid William Hull seyth that his wyffe bought never the seid silk nor no parcel therof to hys knowing... nor never understood nor knewe that his wife ever any such silk had in hir life nor she any such silk bought by his consent will nor knowing.^[489]

Hull's legal strategy was clearly to deny liability by asserting that his wife did not have his consent and that he had no knowledge of any such actions. Hull wanted the case to be judged under common law. As we have seen in the year book re­ports, the husband's lack of initial consent and certainly the lack of subsequent agreement could be a successful argument under common law. However, the examination of three silkwomen as part of this case damages his claims as they not only depose that Agnes bought and sold silk with them and diverse men and women, including Elene, wife of William Lovell, but that Hull had honoured some of his wife's debts after her death and sought to collect others.^[490]

Clearly both William Lovell and William Hull used the arguments (and tried to use the jurisdictions) that would best serve their purposes, whether to have the debt honoured or to avoid it. But for both men the crucial issues were wheth­er they had given their wives permission to buy and sell and whether they had knowledge of their wives' actions, both key elements in the common law debates.

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The case clearly reveals that the two wives had been involved in buying and sell­ing, as had other married women, with all three of the female deponents being described as wives.^[491] Although Agnes is referred to by two of the deponents as a silk throwster, there are no references to any of the women acting as femmes soles, with Margaret Duram deposing that her transactions with Agnes were supported by obligations made between William Hull and his wife Agnes on the one hand and William Duram and his wife Margaret on the other.^[492] This lends support to the claim in Lovell's petition that it was a common custom in London for wives of citizens to buy and sell all manner of merchandise with the permission of their husbands, and also backs up the claim in Anne Davell's petition that she bought and sold under the authority of her husband �as many other... women doon''.

It is also worth spelling out that, although the buying and selling of silk by women like Elene Lovell and Agnes Hull would have been of benefit to their households, it clearly related to their own work and not that of their husbands, as was the case with Anne Davell's economic activities discussed earlier.^[493] In these examples it would seem that some understanding of a �law of agency' - even if it was understood more as �a common gise' beyond the pale of common law juris­diction - enabled them to make contracts. As Bailey has argued for a later period, in practice a law of agency might have been of use for wives' own occupations as well as the buying of household necessities. Such evidence, of married women act­ing as agents, might help explain the suggested low uptake of the custom offemme sole in late medieval London. It might also explain why scholars of late medieval England have not found evidence of the latter custom beyond a few urban centres. Thus there is a need for more research on this important issue.

Conclusion

The arguments heard in a number of late medieval English courts - whether they were advanced by the serjeants and justices in Common Pleas or King's Bench or the parties in Chancery cases - suggest that there were ways around the doctrine of coverture, especially when the managing of households was at stake. For com­mon law, this took the form of what has been called a law of necessaries or a law of agency, but there was no clear-cut position as to when these applied. We have seen that over the course of the fifteenth century there was greater restriction on married women's ability to make valid contracts for necessities. The husband's consent, implicit or explicit, before or after the purchase, was needed - in contrast with the position outlined in The Laws Respecting Women (1777), where assent is presumed. The need for consent was also the case for women acting as their hus­bands' agents, although here there are some indications that the range of actions

Married Women and the Law in Premodern Northwest Europe considered valid by the justices increased over the period c.1306 to 1535.

It also seems likely that borough custom went even further and this area would repay further investigation. For example, the Norwich custom of c.1340 assumes that a husband is liable for his wife's debts, even if she acted without his knowledge. Also, in William Lovell's late fifteenth-century Chancery petition, it is claimed that it was a common gise' for the wives of London citizens to be given permission to buy and sell all manner of goods in their husbands' absence, and these debts would be honoured by the husbands, if not settled by the wives. We can compare this with Chief Justice Fyneux's argument in King's Bench c.1499 that a husband could command his wife to buy a necessary thing, such as food, and he would be bound by this �general command', but that otherwise her contracts for purchases at the market, including bread consumed in his household, would be considered invalid if he had no knowledge of them. Thus, common law - which seems more geared towards the running of private, non-mercantile households than mercan­tile ones - allowed wives to make contracts, but all purchases were subject to re­view and approval (or potential veto) by the husbands, who could therefore refuse to honour deals they did not like. In contrast, Lovell's petition suggests that the London custom was that wives of citizens enjoyed advance blanket approval from their spouses to buy and sell various goods (not just purchase household neces­sities) and that the husbands were bound by those bargains, even if they disliked them, which would seem to be a necessary position in an urban market. That Hull tried to get the case moved to a common law court is indicative that common law was more restrictive than borough custom on this matter, needing consent to be clearly given and proven rather than assumed.

While restrictions were clearly still in place, it is evident that married women's ability to make valid contracts was not entirely hampered by coverture nor only alleviated by the borough custom allowing them to register and trade as femmes soles. These findings validate the use of technical legal sources to explore the social history questions with which this essay started.