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Worthless Witnesses? Marginal Voices and Women's Legal Agency in Early Modern England

  • Alexandra Shepard

Abstract

This article explores the distribution of women witnesses in a selection of English church courts between the mid-sixteenth and early eighteenth centuries, in order to assess the extent to which women's participation as witnesses in these jurisdictions might be characterized as a form of legal agency. It shows that women's participation was highly contingent on their marital status and between places and over time and was shaped by the matters in dispute as well as the gender of the litigants for whom they testified. Although poverty did not exclude women witnesses (higher proportions of female witnesses than male claimed to be poor or of limited means), women were more vulnerable than were men to discrediting strategies that cast doubt on their authority in court. Such findings show that the incorporative dimensions of state formation did not deliver new forms of agency to women but depended heavily upon patriarchal norms and constraints.

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References

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1 For classic examples, see Thomas, Keith, Religion and the Decline of Magic: Studies in Popular Beliefs in Sixteenth and Seventeenth Century England (London, 1971); Hay, Douglas, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Hay, Douglas, Linebaugh, Peter, and Thompson, E. P. (London, 1975), 1763; Stone, Lawrence, “Interpersonal Violence in English Society, 1300–1980,” Past and Present, no. 101 (November 1983): 2233.

2 Hindle, Steve, The State and Social Change in Early Modern England (Basingstoke, 2009), 89. See also Sharpe, J. A., “‘Such Disagreement betwyx Neighbours’: Litigation and Human Relations in Early Modern England,” in Disputes and Settlements: Law and Human Relations in the West, ed. Bossy, John (Cambridge, 1983), 167–87; Brooks, C. W., Pettyfoggers and Vipers of the Commonwealth: The “Lower Branch” of the Legal Profession in Early Modern England (Cambridge, 1986); Herrup, Cynthia, The Common Peace: Participation in the Criminal Law in Seventeenth-Century England (Cambridge, 1987); Muldrew, Craig, The Economy of Obligation: The Culture of Credit and Social Relations in Early Modern England (Basingstoke, 1998). See also 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), 189209. For an overview of developments in historians’ approaches to litigiousness in early modern Europe, see Breen, Michael P., “Law, Society, and the State in Early Modern France,” Journal of Modern History 83, no. 2 (June 2011): 346–86.

3 Muldrew, Economy of Obligation, 271. See also 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.

4 Hindle, Steve, “The Keeping of the Public Peace,” in The Experience of Authority in Early Modern England, ed. Griffiths, Paul, Fox, Adam, and Hindle, Steve (Basingstoke, 1996), 213–48.

5 Braddick, Michael J., State Formation in Early Modern England, c.1550–1700 (Cambridge, 2000), 174.

6 For observations about the limited access of women to the politics of the parish, see Naomi Tadmor, “Where Was Mrs Turner? Governance and Gender in an Eighteenth-Century Village,” in Hindle, Shepard, and Walter, Remaking English Society, 89–111.

7 Oldham, J. C., “On Pleading the Belly: A History of the Jury of Matrons,” Criminal Justice History, no. 6 (1985): 164.

8 Muldrew, Economy of Obligation, 246. See also Muldrew, Craig, “‘A Mutual Assent of Her Mind?’ Women, Debt Litigation and Contract in Early Modern England,” History Workshop Journal 55, no. 1 (Spring 2003): 4771.

9 For a summary of the proportions of female litigants in the central courts, see Stretton, Tim, Women Waging Law in Elizabethan England (Cambridge, 1998), 3842. On defamation litigation, see Haigh, C. A., “Slander and the Church Courts in the Sixteenth Century,” Transactions of the Lancashire and Cheshire Antiquarian Society, no. 78 (1975): 113; Sharpe, J. A., Defamation and Sexual Slander in Early Modern England: The Church Courts at York (York, 1980); Ingram, Martin, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge, 1987), chap. 10; Gowing, Laura, Domestic Dangers: Women, Words and Sex in Early Modern London (Oxford, 1996), chap. 2. On married women's representation among litigants in various jurisdictions, see Beattie, Cordelia and Stevens, Matthew Frank, eds., Married Women and the Law in Premodern Northwest Europe (Woodbridge, 2013); Stretton, Tim and Kesselring, Krista J., eds., Married Women and the Law: Coverture in England and the Common Law World (Montreal, 2013). See also Bonfield, Lloyd, “Finding Women in Early Modern English Courts: Evidence from Peter King's Manuscript Reports,” Chicago-Kent Law Review 87, no. 2 (2012): 371–92.

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

11 For example, see Walker, Garthine, “Expanding the Boundaries of Female Honour in Early Modern England,” Transactions of the Royal Historical Society, no. 6 (1996): 235–45; 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; Gowing, Laura, “Ordering the Body: Illegitimacy and Female Authority in Seventeenth-Century England,” in Negotiating Power in Early Modern Society: Order, Hierarchy and Subordination in Britain and Ireland, ed. Braddick, Michael J. and Walter, John (Cambridge, 2001), 4362; Gowing, Laura, Common Bodies: Women, Touch and Power in Early Modern England (New Haven, 2003).

12 Michael J. Braddick and John Walter, “Grids of Power: Order, Hierarchy and Subordination in Early Modern Society,” in Braddick and Walter, Negotiating Power in Early Modern Society, 1–42.

13 Braddick, State Formation, 172–74.

14 See, for example, Muldrew, Economy of Obligation, chap. 8; Vermeesch, Griet, “The Social Composition of Plaintiffs and Defendants in the Peacemaker Court, Leiden, 1750–54,” Social History 40, no. 2 (April 2015): 208–29.

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

16 On the jurisdiction, process, and business of the church courts, see R. H. Helmholz, The Oxford History of the Laws of England, vol. 1: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford, 2004).

17 Chapman, Colin R., Ecclesiastical Courts, Their Officials and Their Records (Dursley, 1992).

18 Churches, Christine, “‘The Most Unconvincing Testimony’: The Genesis and Historical Usefulness of the County Depositions in Chancery,” Seventeenth Century 11, no. 2 (September 1996): 209–27; Kane, Bronach and Williamson, Fiona, eds., Women, Agency and the Law, 1300–1700 (London, 2013). See also Dolan, Frances E., True Relations: Reading, Literature, and Evidence in Seventeenth-Century England (Philadelphia, 2013); Stretton, Tim, “Women, Legal Records and the Problem of the Lawyer's Hand,” Journal of British Studies 58, no. 4 (October 2019), 684700. On subornation, see Hindle, Steve, “‘Bleeding Afreshe?’: The Affray and Murder at Nantwich, 19 December 1572,” in The Extraordinary and the Everyday in Early Modern England: Essays in Celebration of the Work of Bernard Capp, ed. McShane, Angela and Walker, Garthine (Basingstoke, 2010), 224–45; Shapiro, Barbara, “Oaths, Credibility and the Legal Process in Early Modern England: Part 1,” Law and Humanities 6, no. 2 (December 2012): 145–78; Shapiro, Barbara, “Oaths, Credibility and the Legal Process in Early Modern England: Part 2,” Law and Humanities 7, no. 1 (June 2013): 1954.

19 Hardwick, Julie, Family Business: Litigation and the Political Economics of Daily Life in Early Modern France (Oxford, 2009), 9092.

20 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 73, no. 3 (August 2019): 828–47.

21 Sir Edward Coke in Slade's case, 4 Co. Rep. 91a at 95a; Baker, J. H. and Milsom, S. F. C., Sources of English Legal History: Private Law to 1750 (London, 1986), 441.

22 Statute of Perjury, 1563, 5 Eliz. c. 9; Coke, Edward, The Third Part of the Institutes of the Laws of England, 6th ed. (1680), 164.

23 In 1590, judges in King's Bench had to decide if the court could hear a defamation suit over the words “Pierce hath taken a false oath in the Consistory Court at Exeter.” After much deliberation, the judges heard the case and found for Pierce; Pierce v. Howe 1 Leon. 131. See Gordon, Michael D., “The Invention of a Common Law Crime: Perjury and the Elizabethan Courts,” American Journal of Legal History 24, no. 2 (April 1980): 145–70, at 155.

24 Sir Fortescue, John, On the Laws and Governance of England, ed. Lockwood, Shelley (Cambridge, 1997), 30, 47.

25 Shepard, Accounting for Oneself. The compilation of this dataset, a version of which is available from the UK Data Archive, was funded by a grant from the Economic and Social Research Council (RES-000-23-1111) and completed with the research assistance of Dr. Judith Spicksley. The data was drawn from depositions generated by the dioceses of Canterbury, Chester, Chichester, Ely, London, Salisbury, and York (including the archdeaconry records of Lewes and Richmond), and from the Cambridge University Courts (which also deployed civil law procedure).

26 The accuracy of witnesses’ statements of worth is discussed at length in Shepard, Alexandra and Spicksley, Judith, “Worth, Age and Social Status in Early Modern England,” Economic History Review 64, no. 2 (May 2011): 493530.

27 Hardwick, Family Business, 60.

28 Shepard, Accounting for Oneself, 19.

29 Almost all (93 percent) of the observations of men's marital status occurred when identified with their wives on their being called together as witnesses.

30 For the pitfalls of interpreting labels that apparently signal marital status, see Erickson, Amy L., “Mistresses and Marriage: or, a Short History of the Mrs,” History Workshop Journal 78, no. 1 (Spring 2014): 3957; Baker, J. H., “Male and Married Spinsters,” American Journal of Legal History 21, no. 3 (July 1977): 255–59.

31 Shepard, Accounting for Oneself, chap. 3.

32 Alexandra Shepard, “The Worth of Married Women in the English Church Courts, c.1550–1730,” in Beattie and Stevens, Married Women and the Law in Premodern Northwest Europe, 191–211; 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.

33 Erickson, Amy Louise, “Coverture and Capitalism,” History Workshop Journal 59, no. 1 (Spring 2005), 116, at 3–4.

34 Shepard, Alexandra, “Poverty, Labour, and the Language of Social Description in Early Modern England,” Past and Present, no. 201 (November 2008): 5195.

35 European civil law procedure prescribed that the “integrity of witnesses should be carefully investigated to assess: their social rank; their honor; whether he is rich or poor, lest he may swear falsely for the purpose of gain.” Samuel Parsons Scott, ed., The Civil Law: Including the Twelve Tables, the Institutes of Gaius […], vol. 1 (Cincinnati, 1932), 232.

36 Shepard, “Poverty, Labour, and the Language of Social Description”; Shepard, Accounting for Oneself, chap. 4; Hindle, ‘“Bleedinge Afreshe?” See also Capp, Bernard, “Life, Love and Litigation: Sileby in the 1630s,” Past and Present, no. 182 (February 2004): 5583.

37 Wiltshire and Swindon History Centre, D1/42/56, fol. 17v.

38 Cambridge University Archives, V.C.Ct.II.1, fol. 42v, Cambridge University Library (emphasis added).

39 Canterbury Cathedral Archives, DCb/PRC 39/29, fols. 176, 177, 178.

40 Canterbury Cathedral Archives, DCb/PRC 39/33, fols. 276, 277, 313.

41 Table 6 represents a sample of causes drawn from the dioceses of Chester, Chichester, Ely, and York, the archdeaconries of Lewes and Richmond, and the Cambridge University courts, owing to the more systematic recording of cause type in these records. The number of causes represents the sample of causes in which witnesses were cited and were asked about their worth, and therefore does not include causes that were initiated but did not lead either to the citation of witnesses or the questioning of witnesses about their worth. Witnesses were interrogated about their worth in up to 83 percent of causes. See Shepard, Accounting for Oneself, 12–13.

42 See note 9.

43 For the overrepresentation of men, and especially older men, in customary disputes more generally, see Shepard, Alexandra, Meanings of Manhood in Early Modern England (Oxford, 2003), 221–30; Wood, Andy, The Memory of the People: Custom and Popular Senses of the Past in Early Modern England (Cambridge, 2003), 297315. See also Whyte, Nicola, “Custodians of Memory: Women and Custom in Early Modern England,” Cultural and Social History 8, no. 2 (May 2011): 153–73; Stretton, Tim, “Women, Custom and Equity in the Court of Requests,” in Women, Crime and the Courts in Early Modern England, ed. Kermode, Jenny and Walker, Garthine (Chapel Hill, 1994), 170–90, at 184.

44 On pew disputes, see Marsh, Christopher, “Sacred Space in England, 1560–1640: The View from the Pew,” Journal of Ecclesiastical History 53, no. 2 (April 2002): 286311.

45 This proportion compares favorably with the proportion of female witnesses in testamentary litigation (28.3 percent) in the prerogative court of Canterbury between 1660 and 1700; Bonfield, Lloyd, Devising, Dying and Dispute: Probate Litigation in Early Modern England (Farnham, 2012), 230.

46 Bonfield, Devising; Houlbrooke, Ralph A., Death, Religion and the Family in England 1480–1750 (Oxford, 1998), 191.

47 Todd, Barbara, “Freebench and Free Enterprise: Widows and their Property in Two Berkshire Villages,” in English Rural Society, 1500–1800: Essays in Honour of Joan Thirsk, ed. Chartres, John and Hey, David (Cambridge, 1990), 175200; Erickson, Amy Louise, Women and Property in Early Modern England (London, 1993), 158.

48 London Metropolitan Archives, London Commissary Court, 9065A/5 [unfoliated], 18 November 1623.

49 Lindsay Moore, “Women and Property Litigation in Seventeenth-Century England and North America,” in Stretton and Kesselring, Married Women and the Law, 113–38, at 123–25. In the prerogative court of Canterbury, women comprised 46.5 percent of proponents and 46.2 percent of respondents; Bonfield, Devising, 227.

50 Jordan, William Chester, Women and Credit in Pre-Industrial and Developing Societies (Philadelphia, 1993); McIntosh, Marjorie K., “Women, Credit, and Family Relationships in England, 1300–1620,” Journal of Family History 30, no. 2 (April 2005): 143–63; Shepard, Alexandra, “Crediting Women in the Early Modern English Economy,” History Workshop Journal 79, no. 1 (Spring 2015): 124; 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; Spicksley, Judith, “Women, ‘Usury’ and Credit in Early Modern England: The Case of the Maiden Investor,” Gender and History 27, no. 2 (August 2015): 263–92.

51 In London defamation litigation, female witnesses comprised 60 percent of deponents in causes sued between women, compared to 46.5 percent of deponents in all defamation causes; Gowing, Domestic Dangers, 49.

52 This table refers to a smaller subset of 960 cases, drawn from the dioceses of Chester, Chichester, Ely, and York.

53 Pennington, David, Going to Market: Women, Trade and Social Relations in Early Modern English Towns, c. 1550–1650 (London, 2015), chap. 6; Gowing, “Ordering the Body.” See also Ling, Sofia, Jansson, Karin Hassan, Lennersand, Marie, Pihl, Christopher, and Ågren, Maria, “Marriage and Work: Intertwined Sources of Agency and Authority,” in Making a Living, Making a Difference: Gender and Work in Early Modern European Society, ed. Ågren, Maria (New York, 2017), 80102.

54 Stretton, Women Waging Law, 43–55, 67–68, 212–14.

55 Breen, “Law, Society, and the State,” 385.

Worthless Witnesses? Marginal Voices and Women's Legal Agency in Early Modern England

  • Alexandra Shepard

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