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Maternity and Justice in the Early Modern English Court of Chancery

  • Amanda L. Capern

Abstract

This article is a case study of female litigants acting in the capacity of mother in the English equity court of Chancery between 1550 and 1700. It starts by asking how prevalent mothers were as plaintiffs and defendants in Chancery, though the burden of the article is a qualitative analysis of maternal narratives in Chancery pleadings and the use of gendered tropes such as “poor mother.” Stepmothers and women acting in loco parentis—aunts, grandmothers, and godmothers—have been included to reflect the full range of women who acted in a maternal role in early modern society and explain how they were portrayed, sometimes through a querelle des femmes lens. The different legal strategies of mothers (and their lawyers) are examined in detail and the question of the “female voice” in the archives is addressed. The intention is to demonstrate how social and legal maternal identities were used to produce strategic storytelling by mothers and their lawyers in a rhetoric that they hoped would advantage their cases. More broadly, the article addresses questions about the structural connections between law and society, especially the construction of social identity and the habitus and doctrine of equity.

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References

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1 Harris, Barbara J., English Aristocratic Women: Marriage and Family, Property and Careers (Oxford, 2002); Warner, Lyndan, ed., Stepfamilies in Europe, 1400–1800 (London, 2018).

2 Baker, John, An Introduction to Legal History (Oxford, 2000), 97100, 259.

3 Maitland, F. W., Equity: A Course of Lectures, 2nd ed. (Cambridge, 1969), 1, 107–10, 147, 153.

4 Bills in Chancery could be denied by demurrer or, if answered, supplemented by a replication and a rejoinder, with or without collection of witness depositions to a set of interrogatories. Orders and decrees of the lord chancellor were occasionally enrolled on request (and payment) of litigants.

5 The National Archives (hereafter TNA), PRO30/27/16, George Robert Waterhouse Papers and Collections: Proceedings in Chancery (1509–1666).

6 TNA, PRO30/27/16, George Robert Waterhouse Papers and Collections: Proceedings in Chancery, 22 April 1509–23 March 1622, fols. 261–62 (TNA, C 2/JasI/S38/13 Stephens v. Waterhouse, 9 October 1613). Mothers of adult children in Chancery were not uncommon and prove the point that parents continued to care for children into adulthood. See Foyster, Elizabeth, “Parenting Was for Life, Not Just for Childhood: The Role of Parents in the Married Lives of their Children in Early Modern England,” History 86, no. 283 (July 2001): 313–27.

7 Muldrew, Craig, “The Culture of Reconciliation: Community and the Settlement of Economic Disputes in Early Modern England,” Historical Journal 39, no. 4 (December 1996): 915–42; Shepard, Alexandra, “Litigation and Locality: The Cambridge University Courts, 1560–1640,” Urban History 31, no. 1 (May 2004): 528; Stretton, Tim, “Written Obligations, Litigation and Neighbourliness, 1580–1680,’” in Remaking English Society: Social Relations and Social Change in Early Modern England, ed. Hindle, Steve, Shepard, Alexandra, and Walter, John (Woodbridge, 2013), 189210; Churches, Christine, “False Friends, Spiteful Enemies: A Community at Law in Early Modern England,” Historical Research 71, no. 174 (February 1998): 5274.

8 See Capern, Amanda L., “Rumour and Reputation in the Early Modern English Family,” in Fama and Her Sisters: Gossip and Rumour in Early Modern Europe, ed. Kerr, Heather and Walker, Claire (Turnhout, 2015), 85114.

9 Hawkes, Emma, “‘[S]he will … Protect and Defend her Rights boldly by Law and Reason … ’: Women's Knowledge of Common Law and Equity Courts in Late Medieval England,” in Medieval Women and the Law, ed. Menuge, Noël James (Woodbridge, 2000), 145–61, at 145, 147–48, 151; Cioni, Maria L., Women and Law in Elizabethan England with Particular Reference to the Court of Chancery (New York, 1985); Stretton, Tim, Women Waging Law in Elizabethan England (Cambridge, 1998).

10 The data is from a Microsoft Access database created by the author from catalogues of the Chancery series C1-C11 (1558–1758) for a book project, “Going to Chancery: Family, Law and Society in England, 1550–1750,” supported by a Leverhulme Trust Fellowship, 2019–20. Thanks are due to Liz Hore, legal records archivist, and Dr. Amanda Bevan, head of legal records, TNA, for access to this catalogue data in a useable form and for offering invaluable expertise and advice for the project.

11 Respectively, twenty-four cases and forty cases. All calculations are those of the author using Horwitz, Henry and Moreton, Charles, Samples of Chancery Pleadings and Suits: 1627, 1685, 1735 and 1785, List and Index Society 257 (Richmond, 1995), 1182.

12 Erickson, Amy Louise, Women and Property in Early Modern England (London, 1995), 114–15; Charlotte Garside, “Women in Chancery: An Analysis of Chancery as a Court of Redress for Women in Late Seventeenth Century England” (PhD diss. [AHRC Collaborative Doctoral Project], University of Hull/TNA, 2019).

13 Using Horwitz and Moreton, Samples, 1–182.

14 Horwitz and Moreton, 1–182. See Churches, Christine, “Putting Women in Their Place: Female Litigants at Whitehaven, 1660–1760,” in Women, Property and the Letters of the Law in Early Modern England, ed. Wright, Nancy E., Ferguson, Margaret, and Buck, A. R. (Toronto, 2004), 5065.

15 See Kane, Bronach and Williamson, Fiona, eds., Women, Agency and the Law, 1300–1700 (London, 2013); Wright, Ferguson, and Buck, Women, Property, and the Letters of the Law; cf. Hunt, Margaret R., “The Sailor's Wife, War Finance, and Coverture in Late Seventeenth-Century London,” in Married Women and the Law: Coverture in England and the Common Law World, ed. Stretton, Tim and Kesselring, Krista (Montreal, 2013), 139–62; Barbara J. Todd, “Written in Her Heart: Married Women's Separate Allegiance in English Law,” in Stretton and Kesselring, Married Women and the Law, 163–91.

16 TNA, C2/Eliz/M90/50 Chancery: Bill in Mayo v. Cobham and Paramor, Anne Mayo, Thomas and Francis Mayo (infants), 26 January 1587.

17 TNA, PRO 30/27/17 George Robert Waterhouse Papers and Collections: Proceedings in Chancery, 10 May 1622–2 May 1650 and Bills in Chancery 1650–1660, fol. 408 (TNA, C10/463/153 Waterhouse v. Sikes).

18 TNA, C 5/284/101 Chancery: Bill in Thompson v. Thompson, Mary, Susanna, Isabella, Arabella and Elizabeth Thompson, 20 July 1700.

19 TNA, C 2/Eliz/S19/61 Chancery: Bill in Saintclere v. Ford & Myles, Elizabeth Saintclere, 8 November 1597.

20 Scott, James, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven, 1987).

21 Meyer, Liam J., “‘Humblewise’: Deference and Complaint in the Court of Requests,” Journal of Early Modern Studies, no. 4 (2015): 261–85, at 275.

22 TNA, C 2/Eliz/S19/61 Chancery: Bill in Saintclere v. Ford & Myles, Elizabeth Saintclere, 8 November 1597.

23 Capern, “Rumour and Reputation,” 114.

24 TNA, C 2/Eliz/M13/36 Chancery: Bill in Merevall v. Thorley, Warren and Barnes, Edmund Merevall, 20 January 1587 and Bill (Revivor), Mary Merevall and Thomas Merevall (infant), 13 June 1595.

25 TNA, C 2/Eliz/M13/36 Chancery: Bill (Revivor) in Merevall v. Thorley, Warren and Barnes, Mary Merevall and Thomas Merevall (infant), 13 June 1595 and Replication (of Bill of Revivor), Mary Merevall and Thomas Merevall (infant), n.d. [1595?].

26 TNA, C 6/341/23 Chancery: Bill in Taylor and Taylor v. Bridgewater, Taylor, Rickards and Knill, Mary Taylor and Nicholas Taylor (infant), n.d. May 1698.

27 I am grateful to Tim Stretton for sharing his essay for this special issue with me ahead of publication. It sharpened and informed my thinking about subject relationships in Chancery cases.

28 TNA, C 7/255/10 Chancery: Bill in Odams v. Odams, Margaret Odams, Mathew and Mary Odams (infants), 24 June 1652. That £10 was equivalent to £800 in 2005 (TNA, Historical Currency Converter).

29 See Daybell, James, “Gender, Politics and Archives in Early Modern England,” in Gender and Political Culture in Early Modern Europe, 1400–1800, ed. Daybell, James and Norrhem, Svante (Oxford, 2016), 2546.

30 See Shepard, Alexandra, Accounting for Oneself: Worth, Status and the Social Order in Early Modern England (Oxford, 2015); Gowing, Laura, Domestic Dangers: Women, Words and Sex in Early Modern London (Oxford, 1996); Shepard, Alexandra, “The Worth of Married Women Witnesses in the English Church Courts, 1550–1730,” in Married Women and the Law in Premodern Northwest Europe, ed. Beattie, Cordelia and Stevens, Matthew Frank (Woodbridge, 2013), 191212; cf. Gowing, Laura, “‘The Manner of Submission’: Gender and Demeanour in Seventeenth-Century London,” Cultural and Social History 10, no. 1 (2012): 2545; cf. Cordelia Beattie, “‘Your Oratrice’: Women's Petitions to the Late Medieval Court of Chancery,” in Kane and Williamson, Women, Agency and the Law, 1300–1700, 17–30.

31 See Zierhofer, Wolfgang, “Speech Acts and Space(s): Language Pragmatics and the Discursive Constitution of the Social,” Environment and Planning 34, no. 8 (August 2002): 1355–72.

32 Crawford, Patricia, “The Construction and Experience of Maternity in Seventeenth-Century England,” in Women as Mothers in Pre-industrial England, ed. Fildes, Valerie (London, 1990), 338, at 11, 21.

33 Barbara J. Harris, English Aristocratic Women; Harris, Barbara J., “Defining Themselves: English Aristocratic Women, 1450–1550,” Journal of British Studies 49, no. 4 (October 2010): 734–52, figures at 739; Harris, Barbara J., “Aristocratic and Gentry Women,” History Compass 4, no. 4 (2006): 668–86.

34 Stanzel, Franz Karl, A Theory of Narrative (Cambridge, 1982), 4, 146, 154. See also Miller, D. A., Narrative and Its Discontents: Problems of Closure in the Traditional Novel (Princeton, 1981), 157–58.

35 TNA, C 5/500/16 Chancery: Answer in Hobson v. Hobson, Barbara Hobson (infant) and Emma Hobson, 22 March 1679.

36 TNA, C 5/500/16 Chancery: Bill in Hobson v. Hobson, Elizabeth Hobson, 15 March 1679.

37 Farge, Arlette, The Allure of the Archives (New Haven, 2013), 48.

38 See, for example, Bradshaw's Ghost being a Dialogue between the said Ghost, and an apparition of the Late King Charles [] (London: s.n., 1659).

39 TNA, C 2/ChasI/B28/17 Chancery: Bill in Blanchard v, Blanchard, Mary Blanchard and Thomas Blanchard (infant), 25 November 1620 and Answer, Ann Blanchard, 18 January 1620/1.

40 TNA, C 7/446/69 Chancery: Bill in Tomes v. Wharton, Elizabeth Tomes and Anthony Tomes (infant), 25 June 1660. The equivalent of £30 is about £2,000 in spending power today.

41 See Klinck, Dennis R., Conscience, Equity and the Court of Chancery in Early Modern England (Farnham, 2010), 194–45.

42 TNA, C 2/Eliz/K1/53 Chancery: Bill in Kendall and Kendall v. Wright, Rogers and Whitney, Anne Kendall and John Kendall (infant), 12 May 1591.

43 TNA, C 2/Eliz/E1/39 Chancery: Replication in Edwards v. Edwards, Robert Edwards and Katherine Edwards, 12 October 1580.

44 TNA, C 6/252/29 Chancery: Bill in Green v. Mawson, John Green, Edmund Green, Mary Green, Dorothy Green (all minors) and Mary Green, mother and “Next Friend,” 23 October 1685.

45 TNA, C 24/1099 Chancery: Interrogatories in Green v. Mawson, Mary Green, and John Green, Edmund Green, Mary Green, Dorothy Green (all minors), n.d. April 1686.

46 TNA, C 2/ JasI/C26/63 Chancery: Bill in Cockes, and Cockes v. Cockes, Goosey and Coles, Elizabeth Cockes, 4 May 1617.

47 TNA, C 2/Eliz/E1/39 Chancery: Replication in Edwards v. Edwards, Robert Edwards and Katherine Edwards, 12 October 1580.

48 TNA, C 2/JasI/B21/38 Chancery: Answer in Brooke and Burgh v. Blake, William Blake, 19 November 1618.

49 TNA, C 2/Chas I/B41/6 Chancery: Bill in Barthram v. Reade, Johan Barthram and Thomas Barthram, n.d. 1644.

50 TNA, C 2/Chas I/B41/6 Chancery: Bill in Barthram v. Reade, Johan Barthram and Thomas Barthram, n.d. 1644.

51 Bailey [Begiato], Joanne, “Voices in Court: Lawyers or Litigants?Historical Research 74, no. 186 (November 2001): 392408, at 392.

52 See Hardwick, Julie, “Women ‘Working’ the Law: Gender, Authority and Legal Process in Early Modern France,” Journal of Women's History 9, no. 3 (Fall 1997): 2849, at 45.

53 Dolan, Frances, True Relations: Reading, Literature, and Evidence in Seventeenth-Century England (Philadelphia, 2013), 117.

54 See Yavneh, Naomi and Miller, Naomi, eds., Maternal Measures: Figuring Caregiving in the Early Modern Period (Aldershot, 2001); Moncrief, Kathryn M. and McPherson, Kathryn, eds., Performing Maternity and Early Modern England (Aldershot, 2007); Bamford, Karen and Miller, Naomi, eds., Maternity and Romance Narratives in Early Modern England (Farnham, 2015).

55 TNA, C 5/486/5-6 Chancery: Bill in Gee v Hotham and Gee, Mary Gee, Robert Gee and Richard Gee, 21 February 1679 and 29 May 1682; TNA, C 5/85/7 Chancery: Answer in Gee v. Hotham and Gee, John Hotham, 28 February 1679; author's emphasis.

56 Pollock, Linda, “Childbearing and Female Bonding in Early Modern England,” Social History 22, no. 3 (October 1997): 286306; Barbara Harris, “Regional and Family Networks: The Hidden Role of Sisters and Sisters-in-Law,” in Daybell and Norrhem, Gender and Political Culture, 107–22; Warner, Stepfamilies in Europe.

57 TNA, C 6/396/62 Chancery: Bill and Answer in Crowe v. Crowe, Lulman and Lulman, Hester Crowe, 15 April 1697 and Elizabeth Crowe, 30 April 1697.

58 TNA, C 6/396/62 Chancery: Answer in Crowe v. Crowe, Lulman and Lulman, Elizabeth Crowe, 30 April 1697.

59 See, for example, Joan's ale is new or: a new merry medley, shewing the power, the strength, the operation, and the vertue that remains in good ale, which is accounted the mother-drink of England (London, 1680); The lawes against witches [] Also the confession of Mother Lakeland, who was arraigned and condemned for a witch […] (London, 1645); The prophesie of Mother Shipton (London, 1641).

60 Raffield, Paul, Images and Cultures of Law in Early Modern England: Justice and Political Power, 1558–1660 (Cambridge, 2004).

61 Churches, “False Friends, Spiteful Enemies,” 52, 70.

62 See Tim Stretton, “Stepmothers at Law in Early Modern England,” in Warner, Stepfamilies in Europe, 91–107.

63 TNA, PRO 30/27/17 George Robert Waterhouse Papers and Collections: Proceedings in Chancery, 10 May 1622–2 May 1650 and Bills in Chancery 1650–1660, fols. 117–18, Waterhouse v. Copley, 21 July 1628 (TNA, C 2/ChasI/W76/10; earlier case in 1624 also at TNA, C 2/ChasI/W112/31). See also counter case and depositions at TNA, C 2/ChasI/C 112/23; C 21/W73/1; C 21/C 13/23; C21/C 19/20.

64 TNA, C 2/ JasI/C26/63 Chancery: Bill in Cockes, and Cockes v. Cockes, Goosey and Coles, Elizabeth Cockes, 4 May 1617.

65 For a narrative account reconstructed from Chancery records at TNA and Danby family papers at the North Yorkshire Record Office (NYRO) of the whole family litigation and Margaret Danby's guardianship of her son's estate, see Capern, “Rumour and Reputation.”

66 NYRO, ZS* Family Papers: Copy of Pleadings, Danby v. Danby, 1675.

67 “An account of my mothers suffering written under her owne hand” [Copy of Chancery deposition of Anne Danby, 1683], NYRO, OUTFAC 141.

68 “An Account” [Copy of Deposition, 1683], NYRO, OUTFAC 141; TNA, C 22/780/8 Chancery: Depositions in Danby v. Danby, 1676–1677.

69 “An Account” [Copy of Deposition, 1683] NYRO, OUTFAC 141; see Capern, “Rumour and Reputation.”

70 Fortier, Mark, The Culture of Equity in Early Modern England (Aldershot, 2005); Fortier, Mark, The Culture of Equity in Restoration and Eighteenth-Century Britain and America (Farnham, 2015); Klinck, Conscience, Equity and the Court of Chancery; Watt, Gary, Equity Stirring: The Story of Justice beyond Law (Oxford, 2009).

Maternity and Justice in the Early Modern English Court of Chancery

  • Amanda L. Capern

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