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Women, Legal Records, and the Problem of the Lawyer's Hand

  • Tim Stretton

Abstract

Court records provide invaluable evidence of the existence of laws and notional rights affecting women and how these were (or were not) enforced and exercised. Many documents provide tantalizing glimpses of female thinking and echoes of female voices, but these remain elusive because of the influence of the lawyers, scribes, and officials who helped shape and record them. This article examines the multiple difficulties that researchers face in distinguishing women's contributions from those of lawyers in legal records, and argues that the artificial nature of legal processes complicates conceptions of “authentic” female voices. It suggests ways to address methodological problems and concludes that focusing on multiple voices and processes of collaboration may bear more fruit than seeking to extract individual women's private thoughts and words.

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References

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2 These are in addition to the gendered nature of law itself. Smart, Carol, “The Woman of Legal Discourse,” Social and Legal Studies 1, no. 1 (March 1992): 2944.

3 Ginzburg, Carlo, The Cheese and the Worms (London, 1980); Ladurie, Emmanuel Le Roy, Montaillou (New York, 1978).

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6 Chartier, Roger, Cultural History: Between Practices and Representation (Cambridge, 1988), 43.

7 Kane, Bronach and Williamson, Fiona, introduction to Women, Agency and the Law, 1300–1700, ed. Kane, and Williamson, (London, 2013), 116, at 2–3.

8 Kane and Williamson, introduction to Women, Agency and the Law, 1300–1700, 2.

9 Johnson, Tom, “The Preconstruction of Witness Testimony: Law and Social Discourse in England before the Reformation,” Law and History Review 32, no. 2 (February 2014): 127–47, at 127, 146.

10 Gertz, Genelle, Heresy Trials and English Women Writers, 1400–1670 (Cambridge, 2012); Bodden, M. C., Language as the Site of Revolt in Medieval and Early Modern England: Speaking as a Woman (New York, 2011), 57; Bodden, M. C., “Women, Legal Discourse, Interpretative Maneuvers and Negotiating Safety,” Imago Temporis, no. 8 (2014): 297326.

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12 Dolan, Frances, True Relations: Reading, Literature, and Evidence in Seventeenth-Century England (Philadelphia, 2013), 2, 116.

13 Dolan, True Relations, 18, 111–53.

14 Dolan, 153.

15 Shagan, Ethan, review of True Relations in Shakespeare Studies, no. 43 (2015): 290–94, at 291.

16 Stretton, Tim, “Social Historians and the Records of Litigation,” in Fact, Fiction and Forensic Evidence: The Potential of Judicial Sources for Historical Research in the Early Modern Period, ed. Sogner, Sølvi (Oslo, 1997), 1534.

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18 Hannah Leah Crummé and Amanda Bevan, “Shakespeare's Daughters and Female Inheritance,” National Archives (blog), 11 March 2016, http://blog.nationalarchives.gov.uk/blog/shakespeares-daughters-female-inheritance/.

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21 The National Archives (hereafter TNA), STAC 8/61/33, Bate v. Bate.

22 Churches, Christine, “‘The Most Unconvincing Testimony’: The Genesis and Historical Usefulness of the Country Depositions in Chancery,” Seventeenth Century 11, no. 2 (September 1996): 209–27; Churches, Christine, “False Friends, Spiteful Enemies: A Community at Law in Early Modern England,” Historical Research 71, no. 174 (February 1998): 5274; Bailey, “Voices in Court.”

23 Beattie, Cordelia, “A Piece of the Puzzle: Women and Law as Viewed from the Late Medieval Court Chancery,” Journal of British Studies 58, no. 4 (October 2019), 751–67.

24 Stretton, Tim, Women Waging Law in Elizabethan England (Cambridge, 1998), 113–16.

25 TNA, REQ 1/11, 35–36; TNA, REQ 1/18, 405–6.

26 Astarita, Tommaso, Village Justice: Community, Family, and Popular Culture in Early Modern Italy (Baltimore, 1999), xiiixxii at xxi.

27 Fortescue, John, A Learned Commendation of the Politique Lawes of England (London, 1567), fols. 42v–46r; see also Churches, “Most Unconvincing Testimony,” 209, 218–19.

28 Taylor, Hillary, “The Price of the Poor's Words: Social Relations and the Economics of Deposing for One's ‘Betters’ in Early Modern England,” Economic History Review 72, no. 3 (August 2019): 828–47.

29 Falvey, Heather, “Relating Early Modern Depositions,” in Remembering Protest in Britain since 1500: Memory, Materiality and the Landscape, ed. Griffin, Carl J. and McDonagh, Briony (London, 2018), 81106, at 95.

30 Daniel Lord Smail, “Witness Programs in Medieval Marseilles,” in Goodich, Voices from the Bench, 227–50, at 229.

31 Butler, Sara, The Language of Abuse: Marital Violence in Later Medieval England (Leiden, 2007), 136; Churches, “Most Unconvincing Testimony,” 212–14.

32 Butler, Language of Abuse, 142.

33 Jeremy Goldberg, “Echoes, Whispers, Ventriloquisms: On Recovering Women's Voices from the Court of York in the Later Middle Ages,” in Kane and Williamson, Women, Agency and the Law, 1300–1700, 31–41, 169–71, at 36–37, 39.

34 Goldberg, “Echoes, Whispers, Ventriloquisms,” 34–35.

35 TNA, REQ 2/132/29, mm. 1, 2, 4, Smith v. Smith.

36 Jones, W. J., The Elizabethan Court of Chancery (Oxford, 1967), 242–44.

37 Falvey, “Relating Early Modern Depositions,” 99; Goldberg, “Echoes, Whispers, Ventriloquisms,” 37.

38 Bronach Kane, “Women, Memory and Agency in the Medieval English Church Courts,” in Kane and Williamson, Women, Agency and the Law, 43–44; Goldberg, “Echoes, Whispers, Ventriloquisms” 40.

39 Bailey, “Voices in Court,” 394–406; Churches, “Most Unconvincing Testimony.”

40 Bailey, “Voices in Court,” 406–7.

41 Beattie, “Single Women, Work, and Family” 18.

42 Smail, “Witness Programs in Medieval Marseilles,” 240–46.

43 Smail, Daniel Lord, The Consumption of Justice: Emotions, Publicity, and Legal Culture in Marseille, 1264–1423 (Ithaca, 2003).

44 Shepard, Alexandra, Accounting for Oneself: Worth, Status and the Social Order in Early Modern England (Oxford, 2015).

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46 Fox, Adam, Oral and Literate Culture in England, 1500–1700 (Oxford, 2000); Fox, “Oral and Literate Culture in Early Modern England: Case Studies from Legal Records,” in Sogner, Fact, Fiction and Forensic Evidence, 35–52.

47 Wood, Andy, The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge, 2013).

48 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, at 22.

49 Bailey, “Voices in Court,” 407.

50 Michael Goodich, introduction to Goodich, Voices from the Bench, 3.

51 Dolan, True Relations, 120.

52 See, for example, Kamali, Elizabeth Papp, “Law and Equity in a Medieval English Manor Court,” in Texts and Contexts in Legal History: Essays in Honor of Charles Donahue, ed. Witte, John Jr., McDougall, Sara, and di Robilant, Anna (Berkeley, 2016), 257–75.

53 Beattie, for example, provides transcriptions of the case she analyzes in “Your Oratrice,” 157.

54 Gowing, Laura, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford, 1996), 232–62.

55 Stretton, Women Waging Law in Elizabethan England, 178–215; see also Meyer, Liam J., “‘Humblewise’: Deference and Complaint in the Court of Requests,” Journal of Early Modern Studies, no. 4 (2015): 261–85.

56 Dolan, True Relations, 145–48.

57 Gowing, Domestic Dangers, 3–4.

58 Shepard, Accounting for Oneself.

59 Ingram, Martin, “Law, Litigants and the Construction of ‘Honour’: Slander Suits in Early Modern England,” in The Moral World of the Law, ed. Coss, Peter (Cambridge, 2000), 134–60; Shepard, Alexandra, Meanings of Manhood in Early Modern England (Oxford, 2003); Stretton, Women Waging Law in Elizabethan England, 192–94.

60 Bailey, Merridee, “Most Hevynesse and Sorowe: The Presence of Emotion the Late Medieval and Early Modern English Court of Chancery,” Law and History Review 37, no. 1 (February 2019): 128.

61 TNA, C33/171, fols. 91v–92; Richard Cust, ed., The Papers of Sir Richard Grosvenor, 1st Bart. (1585–1645) (Stroud, 1996), ix–xxxiii at xi, xiii, xix.

62 Hunt, Arnold, “Recovering Speech Acts,” in The Ashgate Research Companion to Popular Culture in Early Modern England, ed. Hadfield, Andrew, Dimmock, Matthew, and Shinn, Abigail (Farnham, 2014), 1330.

63 Goldberg, “Echoes, Whispers, Ventriloquisms” 40.

64 Dolan, True Relations, 118.

65 Smail, “Witness Programs in Medieval Marseilles,” 230.

66 Smail, 248.

67 TNA, REQ 2/234/61, m.1, Lloyd v. Lloyd; on the editing and amending of depositions, see Falvey, “Relating Early Modern Depositions,” 96–98.

68 Shapiro, Barbara J., A Culture of Fact: England, 1550–1720 (London, 2000); Hutson, Lorna, The Invention of Suspicion: Law and Mimesis in Shakespeare and Renaissance Drama (Oxford, 2007).

69 Gaskill, Malcolm, “Witchcraft and Evidence in Early Modern England,” Past and Present, no. 198 (February 2008): 3370.

70 Bennett, Lyn, Women Writing of Divinest Things: Rhetoric and the Poetry of Pembroke, Wroth, and Lanyer (Pittsburgh, 2004).

71 Suzuki, Mihoku, “Daughters of Coke: Women's Legal Discourse in England, 1642–1689,” in Challenging Orthodoxies: The Social and Cultural Worlds of Early Modern Women, ed. Haude, Sigrun and Zook, Melinda S. (Farnham, 2014), 165–92.

72 Kane, “Women, Memory and Agency,” 45.

73 Anglo-American Legal Tradition, 2015, http://aalt.law.uh.edu.

Women, Legal Records, and the Problem of the Lawyer's Hand

  • Tim Stretton

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