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Women Negotiating the Boundaries of Justice in Britain, 1300–1700: An Introduction

  • Alexandra Shepard and Tim Stretton

Abstract

This introduction places the articles featured in this special issue of the Journal of British Studies within the context of recent scholarship on late medieval and early modern women and the law. It is designed to highlight the many boundaries that structured women's legal agency in Britain, including the procedural boundaries that filtered their voices through male advisers and officials, the jurisdictional boundaries that shaped litigation strategies, the constraints surrounding women's appearance as witnesses in court, the gendered differentiation of rights determined by primogeniture and marital property law, and the boundaries between legal and extralegal activity. Emphasizing the importance of a nuanced approach, it rejects the construction of women's litigation simply as a form of resistance to patriarchal norms and also urges caution against overestimating or oversimplifying the choices available to women in legal disputes or their latitude to operate as autonomous individuals. Gender intersected in British courts with locality, resources, jurisdiction, social status, and familial, religious, and political affiliations to inform different women's access to justice, which involved negotiations between unequal actors within various constraints and in complex alignment with multiple and often competing interests.

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Copyright

Footnotes

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The editors thank Garthine Walker and Patricia Skinner for their contributions to the Women Negotiating the Boundaries of Justice workshop that gave rise to this special issue.

Footnotes

References

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1 This collection of articles originated in a workshop held at Cardiff University in April 2016, sponsored by the Arts and Humanities Research Council funded project Women Negotiating the Boundaries of Justice: Britain and Ireland, c. 1100–c. 1750 (AH/L013568/1).

2 Batlan, Felice, “Engendering Legal History,” Law and Social Inquiry 30, no. 4 (Fall 2005): 823–51; Hardwick, Julie, “Women ‘Working’ the Law: Gender, Authority and Legal Process in Early Modern France,” Journal of Women's History 9, no. 3 (Autumn 1997): 2849.

3 Batlan, Felice, “Introduction: Making History,” Chicago-Kent Law Review 87, no. 2 (2012): 335–46.

4 Okin, Susan Moller, “Patriarchy and Married Women's Property in England: Questions on Some Current Views,” Eighteenth-Century Studies 17, no. 2 (Winter 1983–84): 121–38; Erickson, Amy Louise, Women and Property in Early Modern England (London, 1993); Spring, Eileen, Law, Land, and Family: Aristocratic Inheritance in England, 1300 to 1800 (Chapel Hill, 1993); Whittle, Jane, “Inheritance, Marriage, Widowhood and Remarriage: A Comparative Perspective on Women and Land,” Continuity and Change 13, no. 1 (May 1998): 3372; Bardsley, Sandy, “Peasant Women and Inheritance of Land in Fourteenth-Century England,” Continuity and Change 29, no. 3 (December 2014): 297324.

5 See, for example, Cioni, Maria, Women and Law in Elizabethan England, with Particular Reference to the Court of Chancery (New York, 1985); Churches, Christine, “Women and Property in Early Modern England: A Case Study,” Social History 23 (May 1998): 165–80; Gowing, Laura, Domestic Dangers: Women, Words and Sex in Early Modern London (Oxford, 1998); Leneman, Leah, Alientated Affections: The Scottish Experience of Divorce and Separation, 1684–1830 (Edinburgh, 1998); Crosswhite, Anastasia B., “Women and Land: Aristocratic Ownership of Property in Early Modern England,” New York University Law Review 77, no. 4 (October 2002): 1119–56; Harris, Barbara, English Aristocratic Women, 1450–1550: Marriage and Family, Property and Careers (Oxford, 2002); Hanawalt, Barbara, The Wealth of Wives: Women, Law, and Economy in Late Medieval London (Oxford, 2007); Laurence, Anne, “Women and the Transmission of Property: Inheritance in the British Isles in the Seventeenth Century,” Dix-Septième Siècle 244, no. 3 (2009): 435–50; Bonfield, Lloyd, “Finding Women in Early Modern English Courts: Evidence from Peter King's Manuscript Reports,” Chicago-Kent Law Review 87, no. 2 (March 2012): 371–91; Butler, Sara, Divorce in Medieval England: From One to Two Persons at Law (London, 2013); Moore, Lindsay, “Women, Property, and the Law in the Anglo-American World, 1630–1700,” Early American Studies 14, no. 3 (Summer 2016): 537–67; Spence, Cathryn, Women, Credit and Debt in Early Modern Scotland (Manchester, 2016).

6 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; 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. James, Noël Menuge (Woodbridge, 2000), 145–61.

7 Staves, Susan, Married Women's Separate Property in England, 1660–1833 (Cambridge, MA, 1990); Erickson, Amy Louise, “Common Law versus Common Practice: The Use of Marriage Settlements in Early Modern England,” Economic History Review 43, no. 1 (February 1990): 2139.

8 Finn, Margot, “Women, Consumption and Coverture in England, c. 1760–1860,” Historical Journal 39, no. 3 (September 1996): 703–22; Bailey, Joanne, “Favoured or Oppressed? Married Women, Property and ‘Coverture’ in England, 1660–1800,” Continuity and Change 17, no. 3 (December 2002): 351–72; McIntosh, Marjorie K., “The Benefits and Drawbacks of Femme Sole Status in England, 1300–1630,” Journal of British Studies 44, no. 3 (July 2005): 410–38; Erickson, Amy Louise, “Possession—and the Other One-Tenth of the Law: Assessing Women's Ownership and Economic Roles in Early Modern England,” Women's History Review 16, no. 3 (July 2007): 369–85; Beattie, Cordelia and Stevens, Matthew Frank, eds., Married Women and the Law in Premodern Northwest Europe (Woodbridge, 2013); Kane, Bronach and Williamson, Fiona, eds., Women, Agency and the Law, 1300–1700 (London, 2103); Shepard, Alexandra, “Minding Their Own Business?: Married Women and Credit in Early Eighteenth-Century London,” Transactions of the Royal Historical Society 25 (December 2015): 5374.

9 Stretton, Tim, “Coverture and Unity of Person in Blackstone's Commentaries,” in Blackstone and His Commentaries: Biography, Law, History, ed. Prest, Wilfrid (Oxford, 2009), 111–27; Stretton, Tim and Kesselring, Krista J., eds., Married Women and the Law: Coverture in England and the Common Law World (Montreal, 2013).

10 Churches, Christine, “‘The Most Unconvincing Testimony’: The Genesis and Historical Usefulness of the Country Depositions in Chancery,” Seventeenth Century 17, no. 2 (September 1996): 209–27.

11 Wrightson, Keith, “The Politics of the Parish in Early Modern England,” in The Experience of Authority in Early Modern England, ed. Griffiths, Paul, Fox, Adam, and Hindle, Steve (Basingstoke, 1996), 1046; Braddick, Michael J., State Formation in Early Modern England, c. 1550–1700 (Cambridge, 2000); Hindle, Steve, The State and Social Change in Early Modern England, 1550–1640 (Basingstoke, 2000).

12 Braddick, State Formation, 101–2.

13 Braddick, Michael J. and Walter, John, “Introduction: Grids of Power: Order, Hierarchy and Subordination in Early Modern Society,” in Negotiating Power in Early Modern Society: Order, Hierarchy and Subordination in Britain and Ireland, ed. Braddick, Michael J. and Walter, John (Cambridge, 2001), 142. See also Amussen, Susan Dwyer, An Ordered Society: Gender and Class in Early Modern England (Oxford, 1988).

14 Amussen, Susan Dwyer, “Punishment, Discipline, and Power: The Social Meanings of Violence in Early Modern England,” Journal of British Studies 34, no. 1 (January 1995): 134; Walker, Garthine, Crime, Gender and the Social Order in Early Modern England (Cambridge, 2003); Shepard, Alexandra, Meanings of Manhood in Early Modern England (Oxford, 2003).

15 Churches, “Women and Property,” 179.

16 Dolan, Frances E., True Relations: Reading, Literature, and Evidence in Seventeenth-Century England (Philadelphia, 2013). See also Bailey, Joanne, “Voices in Court: Lawyers’ or Litigants’?,” Historical Research 74, no. 186 (November 2001): 392408.

17 Medieval scholars of women, by contrast, have paid local courts considerable attention; see, for example, Miriam Muller, “Peasant Women, Agency and Status in Mid-Thirteenth- to Late Fourteenth-Century England: Some Reconsiderations,” in Beattie and Stevens, Married Women and the Law, 91–113; Bardsley, “Peasant Women and Inheritance of Land.”

18 Stretton, Tim, Women Waging Law in Elizabethan England (Cambridge, 1998), 180–87.

The editors thank Garthine Walker and Patricia Skinner for their contributions to the Women Negotiating the Boundaries of Justice workshop that gave rise to this special issue.

Women Negotiating the Boundaries of Justice in Britain, 1300–1700: An Introduction

  • Alexandra Shepard and Tim Stretton

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