PROPERTY, FAMILY AND PARTNERSHIP: MARRIED WOMEN AND LEGAL CAPABILITY IN LATE MEDIEVAL GHENT

Shennan Hutton

Three days after Christmas, 1357, Perneele, the wife of Willem Bailluz, went to the court of the aldermen of the Keure in Ghent to perform a legal act - paying part of a debt owed by her daughter.^[494] Perneele was the surety, rather like a modern co-signer, for a debt that her daughter had contracted.

Married Women and the Law in Premodern Northwest Europe representative or with his permission.⁴ Instead, the clerk merely stated that Per­neele owed the money as surety for her daughter, and that she had paid part of that sum to the creditor.

The aldermen of the Keure were the highest legal authorities in Ghent, a city that was semi-autonomous from its titular overlord, the count of Flanders, and governed itself by an unwritten customary law.⁶ According to that customary law, Perneele was â€?under the power' of her husband, but at the same time the aldermen recognized that married women had rights and obligations arising from their ownership of personal property from their families of origin and from the actions that they had taken as single women or widows.⁷ The clerk identified Perneele as a married woman (Perneele, Willem Bailluz's wife) but clearly indicated that Willem was not a surety and not present in the aldermen's court. None of the parties - the aldermen, their clerks, or the creditors - was worried about Willem later repudiating Perneele's act. How could such a casual approach to a married woman's legal capability stand up in court?

Since the customary law systems of the Low Countries, like English common law, subsumed the identity of a married woman under the coverture of her hus­band, it is usually argued that medieval married women had at best a very limited legal identity.⁸ By contrast, I shall argue that in the mid-fourteenth century, al-

For example, SAG, series 301, no. 1, fol. 168v, act no. 1, 8 January 1358; fol. 254v, act no. 4, 22 July 1361.

Thi s chapter is based on research undertaken at the Stadsarchief Gent, partially financed by a Fulbright Grant. The author wishes to thank both institutions.

J. Decavele, �Bestuursinstellingen van de stad Gent (einde 11de eeuw - 1795), De gewestelijke en lokale Qverheidsinstellingen in Vlaanderen tot 1795, ed. Walter Prevenier and Beatrijs Augustyn, Algemeen Rijksarchief en Rijksarchief in de Provincien, Studia 72 (Brussels, 1997), pp.

D. Nicholas, The Domestic Life of a Medieval City: Women, Children, and the Family in Four­teenth-Century Ghent (Lincoln, 1985); M. C. Howell, The Marriage Exchange: Property, Social Place, and Gender in Cities of the Low Countries, 1300-1550 (Chicago, 1998), pp. 27-34, 197-211; M. Carlier and T. Soens, eds, The Household in Late Medieval Cities: Italy and Northwestern Europe Compared: Proceedings of the International Conference Ghent 21st-22nd January 2000, Studies in Urban Social, Economic and Political History of the Medieval and Early Modern Low Countries, no. 12 (Leuven-Apeldoorn, 2001); M. Boone, T. De Hemptinne and W. Prevenier, �Gender and Early Emancipation in the Low Countries in the Late Middle Ages and Early Modern Period', Gender, Power and Privilege in Early Modern Europe, ed. J. Munns and P. Richards (Harlow and London, 2003), pp. 21-39; J. Gilissen, �Le Statut de la femme dans l'ancien droit belge, Recueil de la societe Jean Bodin, 12: La Femme, 2, ed. A. Gouthier (Brussels, 1962), pp. 254-62, 277-85, though married women in Ghent were subject to patriarchal restrictions, they had more access to legal economic acts and more de facto legal capability than they enjoyed in later centuries.

This study juxtaposes two bodies of sources: the Ghent custom (redacted in 1563) and the acts from the oldest annual registers of the aldermen of the Keure (from the 1330s to the 1360s). In addition to the two-century time difference, the custom is a prescriptive source, while the contracts, lawsuit settlements and judgment records in the aldermen's registers are sources of actual practice. By the mid-fourteenth century, there were written records of certain provisions of the customary law, but much remained oral.¹¹ As a result, the redacted version of the Ghent custom from 1563 is our most complete source for the customary law. Because of its accessibility, it and other written customs from the Low Countries (mostly redacted in the sixteenth century) are the most popular sources used by modern scholars to understand the Low Countries' medieval gender norms.¹² In­deed, for most of the Low Countries, there are few records of actual practice sur­viving before the sixteenth century.

306-18 [255-321]; M. Danneel, �Gender and the Life Course in the Late Medieval Flemish Town’, Secretum Scriptorum: Liber alumnorum Walter Prevenier, ed. W. Blockmans, M. Boone and T. de Hemptinne (Leuven-Apeldoorn, 1999), pp. 235-58.

For public performance, see E. E. Kittell, �Women, Audience, and Public Acts in Medieval Flan­ders', Journal of Women’s History 10:3 (1998), 76-7 [74-96].

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M. Danneel, Weduwen en wezen in het laat-middeleeuwse Gent, Studies in Urban Social, Econom­ic and Political History of the Medieval and Modern Low Countries, no. 3 (Leuven-Apeldoorn, 1995), pp. 282, 296; J. M. Murray, Notarial Instruments in Flanders between 1280 and 1452 (Brus­sels, 1995), pp. 94-5; R. C. Van Caenegem, Geschiedenis van het strafprocesrecht in Vlaanderen van de XIe tot de XIVe eeuw (Brussels, 1956), pp. 87-8.

E. M. Meijers, Het Oost-Vlaamsche erfrecht, vol. 3 of Het Ligurische erfrecht in de Nederlanden (Haarlem, 1936); Godding, Le Droit prive, p. 269.

Most do this cautiously, however. Godding, Le Droit prive, pp. 77-81; Gilissen, �Le Statut, pp. 254-62.

1563, the aldermen and their clerks could interpret customs in different ways as Ghent society changed. Ghentenars could change unwritten customs gradually, and still think that they were acting from tradition. For this reason, historians have cautioned against applying a rule of the redacted custom to previous cen­turies if there is no evidence of it in actual practice from the earlier time.^[497] As a result, the sixteenth-century redacted custom has limited usefulness as a source for understanding legal capability in fourteenth-century practice.

The second body of sources for this study is the contracts and lawsuit adjudica­tions recorded in the first surviving annual registers of the aldermen of the Keure in Ghent.

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Married Women and Legal Capability in Ghent ships among them, and sometimes their marital or social status. The formulas reveal what the aldermen and their clerks thought must be included to make the acts legal and binding, and, taken collectively, the acts show which provisions of the written custom were actually in force in the 1360s. In the following compari­son, it will become evident that while the 1563 redacted custom was quite clear about married women's legal incapability, the 1362 oral custom was considerably less so. In some areas, such as the inheritance and marital property customs, there was continuity between the fourteenth and sixteenth centuries, but the customs on married women's legal capability and coverture changed dramatically over the same time period.

Major Provisions of the Customary Law

One clear area of continuity was the inheritance custom which gave women own­ership and responsibility for property. Inheritance in Ghent was completely part­ible - that is, sons and daughters inherited equal shares of their parents' property (and that of other relatives), without regard for birth order.^[502] The only exception was land held in fief, which went to the oldest son. Either when she married or at the death of her parents, every middling or wealthy Ghent woman received prop­erty from her family of origin. There were no dowries, and every woman from a wealthy family was an heiress.^[503]

The marital property custom of Ghent also changed little between the four­teenth and sixteenth centuries. When two people married, all of their movable property (houses, life-rent annuities, furniture, possessions, valuables, coins) be­came community or joint property, a �community of goods' (Middle Dutch: ghe- meenen goeden; Modern Dutch: gemeenschap), owned by both, but managed by the husband during the marriage. The immovable property (rural land, city lots, and hereditary annuities) was not put into the �community of goods'. Instead each spouse held it as personal property (eigen goed). If the couple bought or otherwise acquired property of any kind during the marriage, it became community prop­erty. Any property inherited from either spouse's family of origin, however, was divided between community property (for the movable items) and that spouse's personal property (for land and immovable annuities). These rules for owner­ship and division of property did undergo one change by 1563. In response to the increasingly fluid property market, authorities changed the classification of city lots from immovable to movable property.^[504] Because movable property went into the community property, which was under the husband's control, this change decreased a wife's personal property. It may have had more far-reaching conse­quences as well, as Martha Howell argues that changes in ideas about property

Married Women and the Law in Premodern Northwest Europe played a major role in the emergence of companionate marriage.^[505] However, the marital property custom of Ghent did not undergo a major shift in Ghent as it did in Douai.^[506] Over time, the basic structure remained intact.

In contrast, the rules about management of property show distinct differenc­es. The sixteenth-century written custom stated that the husband had complete charge over community property, while the wife could only manage property or perform legal acts with his explicit permission.^[507] The husband was also to man­age his wife's personal property, but he could not sell it without her consent. As I explain below, the aldermen did not apply these principles universally in the four­teenth century. Some husbands managed their wives' personal property without their wives' explicit consent, but some married women managed both personal and community property without official permission from their husbands.

The 1563 redacted custom and mid-fourteenth-century actual practice dif­fered greatly in the area of coverture, the legally incapable status of a married woman. The redacted custom forbade married women to enter into contracts or agreements without the knowledge and consent of their husbands, unless they were �female public merchants' (openbare coopwijven) �concerning their own busi­ness and nothing else’.^[508] Like the custom of femme sole adopted in some English towns, the Ghent female public merchant was legally capable, but only for eco­nomic activities totally separated from her husband's business. Unless they were female public merchants, married women needed the permission of their hus­bands to sell or encumber their personal property, or to sue or answer a lawsuit.^[509] There were also some protections for the wife and her extended family, her �side' (zijde), as contemporary clerks put it. Her husband could not sell or pledge her personal property without her consent, and she was shielded from responsibility for his debts while he was still alive.^[510] In the 1350s, none of the rules were hard and fast. The terms �openbare coopwijf or �marchande publique^, do not appear in any of the surviving fourteenth-century ordinances or the acts from the annual registers of the aldermen of the Keure in Ghent, although they can be found in fourteenth-century documents from other cities in the southern Low Countries, such as Tournai, Liege and Brussels.^[511] While the Ghent aldermen and their clerks probably knew the term, they did not qualify a married woman's ability to act legally by explaining that she was conducting an independent business as a female public merchant.

In contrast, both the 1350s oral custom and the 1563 written custom agreed on the rights and responsibilities of the survivor after one of the spouses died. There

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was no distinction between the rights and responsibilities of the surviving husband or wife, except for fiefs. The surviving spouse inherited one-half of the community property, and could sell it freely, or take it into a second marriage.^[512] The remainder of the community property went to the heirs, either the children of the couple or, if there were no children, the closest relatives in the deceaseds family. Widows and widowers could not �flee the estate' (refuse the inheritance because the deceased's debts exceeded his or her assets), but the heirs had this option. Widows could not claim some of the estate as a dower before the debts were paid.^[513] The widow or wid­ower had the right to usufruct (lifetime use) of half of the heirs' half of the commu­nity property, but she or he could not alienate it. Full use of that property returned to the heirs when the widow or widower died. The surviving spouse also received usufruct of one-half of the deceaseds personal property under the same terms. But the deceased's personal property ultimately went to the children or to family heirs, not to the surviving spouse. As a result, the widow or widower would control three- quarters of the entire wealth of the couple for her or his lifetime, and, by remarrying, could convey half of the community property to a new family. But the custom also ensured that if there were no children, all the deceased's personal property and half of the community property would go back to the deceased's family. It also placed equal responsibility on widows and widowers, in rules that remained largely un­changed from the fourteenth to the sixteenth century. Overall, there were strong continuities in the marital property and inheritance customary law as it evolved from the mid-fourteenth-century oral custom to the 1563 redacted custom, but the 1563 custom defined and restricted married women's legal capability more sharply than early oral custom had.

Moreover, analysis of the rules the earlier oral and later written custom held in common suggests that family interests were a major reason for married wom­en's legal capability in fourteenth-century actual practice. The custom balanced the tension between the rights of the household and the rights of the extend­ed family.^[514] By awarding a large portion to the surviving spouse and children, the custom provided for the continuation of the household. By reserving the deceased's personal property for family heirs, the custom saved land, fiefs and city lots for the extended family. This solution was quite workable, as long as Ghentenars considered the extended family as cognatic or bilateral (connected through both male and female lines) rather than patrilineal (connected through a single male line).^[515]

In the mid-fourteenth century, Ghentenars probably believed in the basic prin­ciples that married women needed to submit to their husbands and husbands should control the household, although neither is directly stated in any of the early city charters or ordinances. However, oral custom placed large amounts of property in the hands of women, which meant that families had to rely on women to preserve that property for family heirs. Centuries of family reliance on women to manage property for the benefit of the family led many fourteenth-century Ghentenars to regard women as potentially helpful and useful in public perfor­mance of property management, particularly for humdrum, unimportant legal acts, such as payment of debts or standing as surety for the small debts, of a family member. Although no one would have questioned patriarchal control, the prin­ciples surrounding ownership of property and family rights were just as strongly rooted in Ghent custom. Ownership of property from their families of origin and the emphasis on rights of property ownership in Ghent custom gave some mar­ried women de facto legal capability in the mid-fourteenth century.

Married Women in the Acts from the Aldermen’s Registers

In contrast to the 1563 custom’s restrictions on married women’s public perfor­mance of legal acts, the sources of actual practice from the mid-fourteenth cen­tury reveal married women performing legal acts in their own names without written permission or consent of their husbands. When a woman performed a legal act by herself without male representation or supervision, she was acting �in her own name’. Fourteenth-century clerks used the husbands’ names to identify married women acting in their own names, but the husbands were not present with their wives in the aldermen’s court. In the number of married women who acted in their own names, I do not include women who were owners of prop­erty but did not perform any action, or wives who appeared together with their husbands. My analysis shows that of the 491 women who performed legal acts in their own names before the aldermen of the Keure between 1339 and 1361, eighty-one were married women.^[516] Married women loaned and borrowed money, bought and sold property, and brought and answered lawsuits. Except for identi­fying married women by their husbands’ names, the clerks used exactly the same legal formulas and language to record the acts of married women in their own names and acts performed by men.

Occasionally, the clerk’s record of the contract or legal performance indicates that the wife had her husbands permission, or that he consented to her act.^[517] But, in the overwhelming majority of these cases, there is no permission clause and no special

Married Women and Legal Capability in Ghent explanation of why the wife was performing the legal act. Instead, married women simply appeared acting as solely responsible, as this sales contract from 1362 shows:

Be it known that Jan Haerkin, Gillis's son, has legally bought... from Ver Mergriete, wife of Heinric Vriend, a house... for the sum of 30 s. groot, which she maintains she has been paid.^[518]

Later in the document, Jan promised to compensate Heinric for payment of an­nuities secured by the property, a clear indication that Heinric was still alive and that Mergriete was not actually a widow. Houses were movable and thus com­munity property, which, according to the 1563 custom, was supposed to be under Heinrics control. While Mergriete may have been a coopwijf conducting a busi­ness other than that of her husband, there is no indication in the act itself that dis­tinguishes that status. There is no special explanation of why Mergriete performed this legal act alone. Married women also borrowed money and secured it with their personal property as collateral, rather than community property. For exam­ple, in 1360, Mergriete, the wife of Heinric Gheleins, swore that she owed Willem van Eeke five pounds groot, secured �on herself and all her property (up hare ende al thare)’^[519] There are no additional clauses explaining her actions, or expressing her husband’s consent or permission.

In interpreting these acts, I considered certain possibilities. The first is that these married women were actually widows. To investigate this possibility, I used prosopographical analysis to ascertain if the husbands appeared in acts dated after the woman’s appearance. In half of the twenty-six acts with married women from 1349-50, the husband was still alive, and there was no evidence that any of the husbands had died. Given the fragmentary nature of the evidence surviving from this period, the fact that half of the twenty-six married women from 1349-50 were definitely married women with living husbands strongly suggests that the clerks had correctly identified the rest as married women.^[520]

A second possibility is that the assumption of a husband’s authority over his wife was so ingrained in the custom and practice of Ghent that the aldermen and their clerks did not think it was necessary to record that the husband had actually

Married Women and the Law in Premodern Northwest Europe appeared to act for his wife, or had given her permission. However, the registers also contain fifty-one cases of husbands exercising guardianship over their wives and/or managing property owned by their wives.^[521] The clerks often signalled the husband's authority by the phrase â€?husband and guardian (man ende voogd)∖ to indicate that he was acting for his legally incapable wife. Even if the wife was in court with her husband, the act makes clear that he was authorizing her action. For example:

Be it known that Joncvrouw Lijsbette, daughter of the deceased Heinric Gruter, wife of Gherem Borluut, has come before the al­dermen... with Gherem Borluut her husband and guardian... [and] has legally sold a hereditary annuity with the consent and by the will of her legal husband and guardian.^[522]

In this case, Lijsbette's name appeared first because the immovable property - a hereditary annuity - came from her father's estate. However, the clerk emphasized that Gherem, her husband, was with her and guiding her actions. There are even cases in which one married woman was acting in her own name and another mar­ried woman was under the guardianship of her husband:

Be it known that Jan de Wulslagher and Gheraerd de Wulslagher... came before the aldermen... [and] said that they had sold Joncv- rouw Kateline van Axpoele, wife of Jan van den Wallekine, half of a city lot and one-quarter of a house... for a sum of money which Jan and Gheraerd say they have been paid... Joncvrouw Kateline, their [Jan's and Gheraerd's] sister, wife of Godeverd van Zele, and Gode- verd van Zele, her legal husband and guardian, give up any rights that they may have in the half city lot... and Joncvrouw Kateline, wife of Jan van den Wallekine, is put into ownership of it as her purchased property.^[523]

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The Kateline who was buying the property was a married woman acting in her own name.⁴⁰ But the Kateline who was the sister of the sellers appeared with her husband, who acted as her husband and guardian. If the property came from Katelines family, Jan van den Wallekine may have left it up to her to buy up parts from her relatives.⁴¹ By contrast, Godeverd van Zele accompanied his wife and acted for her. This act and many others like it show the mixing of traditional le­gal formulas with the awareness that in other courts, outside the city of Ghent, Godeverd van Zele might be able to claim that he had not consented to his wife's renunciation of her rights. Through concern to protect family interests against a lawsuit from a son-in-law, Kateline's brothers may have insisted that the clerk use that exact formula.⁴² Although the clerk did not explain the reasons for the dif­ference, the appearance of both a legally capable and a legally incapable married woman in the same act shows that the aldermen's clerks were well aware of the distinction and expressed it clearly.

The use of these legal formulas undercuts the argument that coverture or guardianship over married women was so automatic in fourteenth-century Ghent that it was not explicitly mentioned.⁴³ The aldermen's clerks knew and used formulas that expressed the subordination of married women to their hus­bands.⁴⁴ When the clerks did not use those formulas, married women were act­ing in their own names. In the Ghent aldermen's registers from 1339 to 1361, fifty-one acts include formulas expressing the legal incapability of married women, while in eighty-one cases, married women acted in their own names. Furthermore, the apparent contradiction did not seem to concern the Ghent aldermen or their clerks, who were prepared to validate contracts and witness performance of legal acts of both legally capable women and husbands acting for legally incapable married women.

It is also possible that the aldermen verified orally that each married woman was conducting her own business, or asked her to swear that she had her hus­band's permission, but the clerks did not consider that important enough to in­clude in the written act.⁴⁵ Although there is no evidence to prove this, I think that the aldermen ascertained in some way that the woman's husband would not object before they allowed married women to act in their own names. Special cir­cumstances, such as the husband's absence or illness, or the need for a remarried widow to fulfil obligations she had taken on during her widowhood, might have been involved. However, the fact that the fourteenth-century clerks omitted this information shows that rules restricting the legal capability of married women were not as stringent and significant as they later became. It was much more com­mon in later centuries for clerks to include permission clauses.⁴⁶

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Jan van den Wallekine appears in an act written into the registers right before his wife's act, which is unfortunately only dated by the year 1353 (meaning the aldermen's official year from 15 August 1353 to 14 August 1354. Jan's act is dated 14 February 1354; an act from 14 July 1354 identifies Kateline as a widow. SAG, series 301, no. 1, fol. 122r, act no. 4, 14 February 1354; fol. 122v, act no. 1; 1, 1353-4; fol. 137v, act no. 3, 14 July 1354.

All of these people were likely closely related to each other, because they are dealing with parts of city lots and houses, divisions which occurred when several children or other family heirs inher­ited parts of one piece of property from a parent or relative.

For more on multiple legal jurisdictions and use of patrimonial language to protect family inter­ests, see Hutton, Women and Economic Activities, pp. 139-42.

Nicholas, Domestic Life, pp. 70-106; E. E. Kittell, �Guardianship over Women in Medieval Flan­ders: A Reappraisal', Journal of Social History 31:4 (1998), 896-930.

Godding, Le Droit prive, pp. 77-9. For the development of comital feudal courts, see Dirk Heir- baut, �Weduwen, erfgenamen en lenen: De evolutie van het feodale erf- en huwelijksvermogens- recht in Vlaanderen (1000-1300), Jaarboek voor Middeleeuwse Geschiedenis 1 (1998), 16-18 [7-26]

For an act which does contain a statement of the husband's consent to his wife's actions, see SAG,

Another clue that the rules were not as strict comes from the clerks' recording (or lack thereof) of a woman's marital status to indicate her legal capability. In the registers from 1339 to 1361, the aldermen's clerks omitted the marital status and name of a male relative for almost half of the 491 women who acted in their own names.⁴⁷ Instead, the woman's own name sufficed to justify her legal capa­bility. Reporting marital status to verify legal capability was not a priority of the aldermen or their clerks. The point is not that married women were defying their husbands and able to do what they wished, but that the aldermen and their clerks exhibit a lack of attention and a flexibility about married women's legal capabil­ity which contrasts sharply with the precision they devoted to the ownership of property. Later, the clerks had to spell out the husband's authority, but in the four­teenth century a casual understanding that the wife was acting with her husband's consent sufficed.

The aldermen and their clerks do not display any concern for separating a wife's business from that of her husband, or enforcing the rule from the 1563 custom that a wife could not perform legal acts in her own name involving her husband's business. The clerks did not use the phrase �female public merchant' in the 1350s, or make any discernible attempt to divide the business activities of the wife from the husband. To be sure, the clerks did not explain the reasons for debts, and most of the acts are terse and uninformative. One unusually detailed record, a property inventory from a couple who died suddenly in 1361 (probably from the plague which raged that year), included testimony of witnesses about the debts the couple owed. The clerk listed the reasons for many of the debts, which were all connected to the production of wool cloth (Ghent's major industry). The couple,

series 301, no. 1, fol. 240r, act no. 1, 6 March 1361.

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In the 1420-1 register, for example, there are nine acts with married women. Five have em­powerment or permission clauses from the husband. Three explain that the married woman is �haer zelfs wijf, literally her own woman, which may have been the equivalent of public female merchant, or indicate that the woman is separated from her husband (which is mentioned in one of these three acts). The phrase �haer zelfs wijf’ never appears in the mid-fourteenth-century reg­isters. In only one 1420 act, the purchase of a bed on credit, is there no reason given for a married woman to be acting in her own name. SAG, series 301, vol. 26, no. 1, fol. 3v, act no. 1; fol. 10v, act no. 12; fol. 12r, act nos. 4 and 5; fol. 13r, act no. 11; fol. 13v, act no. 9; fol. 14r, act no. 6, and fol. 14v, act no. 6.

The 491 women who acted in their own names have the following marital status categories: 63 were single (identified by their fathers' or brothers' names); 81 were married; 109 were widows; 12 were religious (10 nuns and 2 beguines), 9 had mixed status (for example, married in one act; widowed in a later act). The remainder - 217 women - were identified by their own names alone, not by marital status or the name of a male relative.

Wouter and Aechte van Vinderhoute, contracted six debts together, but Aechte, by herself, contracted two debts, one of which was for warp-winding (measuring and winding warp threads on a loom).^[524] There is no explanation of how a wife could legally contract debts alone for a business she shared with her husband, nor any indication that Aechte's acts were exceptional.

Between the two extremes of married women acting in their own names and legally incapable married women represented by their husbands was a third cat­egory of married women who appeared together with their husbands without any language of subordination. This group was larger; in 148 cases, married couples appeared before the aldermen to perform legal acts together. The clerks recorded these joint performances by listing the husbands' and wives' names together every time they were mentioned. In the following act, both the buy­ers and the sellers of this city lot and house were husbands and wives acting together:

Be it known that Ghiselbrecht van Coudenhove and Joncvrouw Mergriete his legal wife came before the aldermen... [and] related that they had sold all the rights that they had in a house and city lot... to Wasseline van den Pitte and Joncvrouw Kateline his legal wife... And this is for a certain sum of money that Ghiselbrecht and Joncvrouw Mergriete maintain that they have been paid by Was- seline and Joncvrouw Kateline... and Ghiselbrecht and Joncvrouw Mergriete give up all the rights... and do everything they are sup­posed to do... [to transfer the property] to Wasseline and Joncv- rouw Kateline.^[525]

The sale of a city lot required a public performance of the sale and transfer of own­ership, and both couples performed the act together. In the act, the clerk stated the wives' names immediately following the husbands' names eight times, and used the pronouns �they' (zij, sij) and �theirs' (haerlieder) consistently. This identifica­tion of husbands and wives performing acts together offers proof of economic partnership in marriage. The wife was not merely consenting to the sale or pur­chase of the property, but engaging in every aspect of the act.

This sense of partnership is heightened in cases in which the wife's action can­not be interpreted as consent required by custom. There was no legal requirement for wives to consent to loans or debt contracts their husbands made involving community property, and yet husbands and wives often appeared together loan­ing and borrowing money, as in this act from 1362:

Be it known that Godin de Wayere and Verghine his legal wife have said that they legally owe 12 lb. groot to Martin Berde, [payable] on themselves and all their property with no exceptions wherever it lies inside Ghent or outside.^[526]

According to the redacted custom of 1563, husbands completely controlled the community property without any requirement for their wives' consent. Howev­er, it is quite common in the mid-fourteenth-century registers for husbands and wives to appear together swearing to pay debts. This suggests that the preference of fourteenth-century creditors was to have both spouses perform the legal act (and thus share the liability), even though, as we will see, the aldermen held wid­ows and widowers responsible for debts contracted by their spouses. Husband- and-wife economic partnerships, appearing in nine per cent of all acts performed before the aldermen, offer further evidence of widespread acceptance of married women's performance of certain legal acts.

Factors Giving Married Women Some Legal Capability

Although a number of political, economic and social factors contributed to the de facto legal capability of some married women in mid-fourteenth-century Ghent, this essay focuses on the legal factors alone.^[527] The first legal factor was the empha­sis the aldermen placed on ownership of property, particularly in contrast to the lack of emphasis they placed on marital status. Almost every economic act in the registers clearly indicates who owned the property and how the principals in the act were related to the property. In the fourteenth century, if the property in ques­tion came from the wife's side of the family, the clerks listed her name first, and sometimes only her name. For example, in 1350, a clerk recorded an arbitration agreement in an inheritance dispute over household goods. The clerk introduced the two parties as �Hughe van der Most' and Mergriete Pollepels and her husband, but never again referred to Mergriete's husband.^[528] Instead, the clerk recorded Mer- griete's name alone ten times in the list of items decided by the arbiters, even though all but one of the items were movable property, belonging to the commu­nity property of the couple rather than to Mergrietes personal property. However, the arbiters, the clerk and the aldermen indicated that she was the most important party because the inheritance came from her family. They were not concerned enough about her husband's agreement to record it to prevent a future lawsuit, probably because he never objected and the goods in question were fairly inex­pensive. If a married woman was managing property that came from her family of origin, the aldermen and their clerks seem to have considered her legally capable.

The aldermen's casual grant of legal capability to married women may also have arisen from two other situations: the acts of a remarried widow dealing with the affairs of her first family; and business deals conducted by women (with men and other women). Since the clerks seldom recorded reasons for debts, it is impossible to be sure of this. However, some acts, such as the following from early 1361, suggest either a family relationship or business dealings among the three women:

The Joncvrouw wife of Gillis van der Boengaerde was ordered to pay [as a settlement] Joncvrouw Aechte Brunsch and her sister, the wife of Pieter Coninc, 28 shillings groot within the next fourteen nights.⁵³

In this case, the clerk did not even record the first names of the married women, an indication that their identities were primarily as married women. There are two likely explanations for this settlement: it was either an inheritance dispute, in which case the three women were relatives; or the three women were involved in a business deal which led to the lawsuit. The clerk recorded the debt as owed and payable to the married women themselves, not to their husbands, even though the money was community property.

Partible inheritance and the view that women and their descendants were le­gitimate and responsible members of the extended family also helped give mar­ried women de facto legal capability. Parents usually gave some movable and some immovable property to their daughters when the girls married.⁵⁴ For example, in 1362, Margriete, the widow of William de Lange, gave her daughter a hereditary annuity as a wedding gift, probably along with movable property. The hereditary annuity gave the daughter, Ysabelle, thirty pounds per year, guaranteed by fiefs belonging to the mother. This annuity was Ysabelle's personal property, which her new husband, Robbrecht, could not sell without her consent. If Ysabelle died not reach a settlement on the division of the estate, the aldermen of the Gedele asked each to nominate two arbiters. Those arbiters then tried to reach a compromise. Only if that failed would the aldermen themselves decide the division.

⁵³ SAG, series 301, no. 1, fol. 231r, act no. 5, 20 January 1361: â€?Der Joncvr. Gillis wijf vander Boen- gaerde was ghewijst dat zoe vermoeden soude Joncvr. Aechten Brunsch ende haren zuster Pieters Coninx wijf van XXVIII s. gro. binnen XIIII nachten naest commende.'

⁵⁴ SAG, series 301, no. 2, fol. 1r, act no. 2, 9 June 1359. See also fol. 225r, act no. 1, 1360-1.

Married Women and the Law in Premodern Northwest Europe without children, the annuity would return to her mother and family heirs. The property was preserved for the family because Ysabelles children would be family members and, if she had none, Robbrecht would not inherit the annuity. However, giving children personal, immovable property also meant that families had to rely on married sons and daughters, as holders of part of the family's �patrimony’, not to consent to the sale or risk of their personal property. It was in the interest of families to train daughters to be wise managers of property and empower mar­ried women to have a voice in decision-making about property. In addition, be­cause husbands and wives were responsible for each other's debts, wealthy families had to be concerned that the personal property held by their sons and daughters might have to be sold to pay the debts of an insolvent daughter- or son-in-law.

There was no protection of a widow's property from the debts of her husband, or a widower from the debts of his late wife.^[529] Ghent's succession custom was built on the idea that community property would be divided between the surviving spouse, on one side, and the �heirs', on the other side. Rather than assigning an ex­ecutor, the surviving spouse and the heirs had joint responsibility for carrying out a series of procedures for dividing the estate, satisfying the creditors, and distrib­uting the bequests.^[530] The widow or widower and the heirs had to split the debts, unless the heirs fled the estate, in which case the surviving spouse had to pay all the debts. Even though the redacted custom of 1563 allowed husbands to claim that they had not consented to debts owed by their late wives (thereby repudiating the debt), in fourteenth-century actual practice, the aldermen did not allow this. When married women borrowed money, their husbands could not later repudi­ate the debt. For example, in 1361, the mercer Lisbette van den Conkele sued Jan Bollaerd because Bollaerd's deceased wife owed her thirty shillings groot. Bollaerd protested to the aldermen that he did not know about the debt. The aldermen lis­tened to testimony from witnesses on both sides, including the information that the wife's heirs had fled the estate. But in the end, the aldermen ordered Bollaerd to pay the thirty shillings, thus holding a husband responsible for debts contracted by his wife without his express permission.^[531]

The aldermen were also strict with widows who claimed lack of knowledge. Just eighteen days after they ordered Jan Bollaerd to pay Lisbette van den Conkele, the

aldermen judged a lawsuit brought by a cleric, Brother Jan Inghele, against Kate- line, the widow of Jacob van Smettelede. Inghele claimed that Jacob had borrowed twenty shillings groot from him and demanded repayment. The widow coun­tered that �she had not known or heard of the debt during the life of her husband Jacob’.^[532] The aldermen reduced the amount she had to pay to twelve shillings, but ordered the widow to pay. Although there were undoubtedly many other factors that went into the aldermen’s decisions (notably the testimony of witnesses, which was not recorded), these cases show that the aldermen held spouses responsible for debts with little consideration for gender differences. This meant that creditors could make loans to married women without the fear that their husbands would repudiate the debt. This made all women more credit-worthy, because changes in their marital status would not affect their liability.

The final factor contributing to this de facto legal capability for married women was the relative lack of importance of these legal acts. The dispute between Hughe van der Most and Mergriete Pollepels, two wealthy patricians, centred on house­hold goods, not on vast tracts of property. All the male parties - the husbands, arbiters, aldermen and clerks - treated the participation of married women in these rather unimportant legal acts in a routine, non-controversial manner. The aldermen emphasized enforcing the terms of debt contracts and following the customs for rightful ownership of property much more strenuously than issues of married women’s legal capability. There were many legal acts that married women did not perform, those concerning large business deals, international trade, guild leadership, and political activities, which means that married women were only legally capable within a very limited realm. Within those constraints, however, in act after act with married women acting in their own names or alongside their husbands, there is no evidence of controversy, no explanation, and no hint that the act is anything outside of routine, ordinary practice. In the 1350s, elite men did not seem to be concerned about these married women’s activities as a threat to male authority.

Some men seem to have accepted the right of a married woman to be involved in household decisions and, especially, in decisions about property from her side of the family. Many married women who acted in their own names were actu­ally carrying out a joint strategy of the couple in economic partnership. Symoen de Necker and Lijsbette van Sotteghem offer a good example. Symoen, a former alderman of the Keure, and his wife Lijsbette went before the aldermen on 28 June 1350 to settle a dispute with another woman over a house which had come from Lijsbettes side of the family.^[533] On 2 July, Lijsbette van Sotteghem went back alone to the aldermen to perform a related act - the transfer of ownership of the house. The aldermen transferred ownership of the house (community property) to Lijsbette alone, not to Symoen and Lijsbette together.^[534] There can be little ques-

Married Women and the Law in Premodern Northwest Europe tion that Symoen agreed with his wife's activity, but he did not think it necessary to accompany her to court. Lijsbette went to the aldermen to carry out the strategy of the married couple. Although Lijsbette's action broke numerous rules from the 1563 redacted custom, such as the lack of explicit permission from the husband and the wife's management of community property, neither the aldermen nor their clerks thought that was unusual enough to require explanation. Nor did they include any permission or consent clauses in the second act.

The question of whether the limited legal capability that Ghent married wom­en enjoyed prevailed throughout the Low Countries is difficult to answer. Every city and locality in the Low Countries had its own customary law, and although there are broad similarities, such as partible inheritance, there are also important differences, which have always made it difficult to make accurate generalizations about the customary law throughout this exceptionally decentralized region. The marital property custom of Ghent was followed in areas of northern France, such as Artois, Brabant and Hainault, but not in Bruges or Douai, which followed the custom of the universal community.⁶¹ Although marriage contracts were not al­lowed in Ghent, they were central to family strategies in Douai.⁶² The Ghent rule that husbands and wives had to pay each other's debts and could not flee the estate played a significant role in making married women legally capable on occasion. However, in Bruges, Douai and other areas, widows had more flexibility and pro­tection from creditors.⁶³ Where there are no surviving records of actual practice before the sixteenth century, the extent to which married women had de facto legal capability must remain an open question.

Reliance on the rules of the sixteenth-century redacted customs of all these areas to explain the medieval legal position of married women in the Low Coun­tries would be a grave mistake, nevertheless. Ghent evidence of actual practice from the middle of the fourteenth century indicates that customary practices, such as partible inheritance, bilateral family structures, and community mari­tal property systems heavily mitigated the general legal principle that married women were covered by their husbands. In 1350, there is little evidence of most of the detailed rules in the sixteenth-century custom restricting married wom­en's activity, such as permission clauses, or separation of a wife's activities into coopwijf status. Instead, fourteenth-century actual practice was more fluid and flexible, emphasizing property over patriarchy, and tolerating ambiguities that would later be impossible.

wijf sNeckers, ende Lente Moelgies vors. quam voer scepenen mids pais faisant [ende] onthuucie hare van desen huse ende dedere ver Lijsbetten toe.'

⁶¹ Godding, Le Droit prive, pp. 270-80, 196, 303, 569.

⁶² Howell, Marriage Exchange, pp. 29-36.

⁶³ Coutume Gand, rubric 20, nos. 19 and 20, p. 92; Godding, Le Droit prive, pp. 295-6, 304-6; Dan- neel, Weduwen, p. 263; Howell, Marriage Exchange, pp. 29-36; Murray, â€?Family, 115-25.