Posted by 10 July, 2017

On June 28-29 we welcomed 40 researchers to Swansea University for our 'Litigating Women' symposium. This was the annual 'Symposium by the Sea' of Swansea's Centre for Medieval and Early Modern Research (MEMO). Echoing the overall aims of our project, this was a truly international and comparative event, with papers and discussions spanning over six centuries, nine countries, and at least 13 different legal jurisdictions. This was reflected in the broad range of speakers and delegates, coming from 10 countries and 29 institutions, and from backgrounds in history, English, law, and archives. The value of this wide-ranging programme was evident in the many comparisons and contrasts that were made across the two days. While each paper offered rich insights into the detailed research on 'litigating women' within numerous contexts, the discussion generated during each session also raised important linking themes and questions. These issues, at the heart of our project, bridge divisions of chronology, geography, and jurisdiction, considering how and why women engaged with the legal process, and how historians read and interpret women's litigation in legal records.


PI Deborah Youngs introduces the symposium

Across the whole programme, papers considered why women went to court: what were their motivations; what did they actually want, or hope to achieve, from litigation? Issues of women's legal strategy and knowledge were also raised. These considerations influenced why women went to court, which court they went to (with multiple jurisdictions offering remedy to similar issues), and how women's litigation worked in practice. Should all litigation be interpreted as evidence of dispute, or could going to court be more strategic?

These issues have important implications for our reading of women's actions in the legal record. Almost every session prompted questions on women's legal agency and how we identify and interpret this. Many papers addressed women's negotiation of the limits on their legal status, the representation of their own interests, and their ability to act despite patriarchal structures that subordinated or silenced them. Several papers highlighted women's role in litigation in claiming or defending their property rights. Daniel Power's discussion of female litigants in the final phase of the Anglo-Norman realm (1204-60) detailed some of the specific ways that landowning women used the law to recover land on both sides of the channel, suggesting that perceived disadvantages in female status could be turned to their advantage. Harriet Kersey also highlighted the persistence of some women in litigating over property, demonstrated through the complex division of the Marshal estate among the Ferrers daughters in the thirteenth century. Both papers drew attention to the strategic use of the law by noblewomen, underlining the point that some women could be highly litigious when circumstance dictated. Janet Loengard's keynote further addressed the importance of land and its centrality to much of women's litigation during the central medieval period. These were often complex cases whereby women sought to claim their dower rights, and Loengard suggested that while the thirteenth century may have begun with promises for women under Magna Carta, the limitations on their landholding increased as the century progressed.

Other papers asked questions concerning the legal status and actions of married women. As much recent work on this topic has demonstrated, it is becoming increasingly apparent that the legal actions of wives may not have been as restricted as the picture painted by legal treatises. Experiences differed between places and jurisdictions. Stephen Hewer questioned the existence of coverture in medieval English Ireland, demonstrating through numerous examples that there was not a straightforward yes/no answer. Similarly, through a case study of one Nottingham woman, Teresa Phipps explored the legal categorisation of women according to their marital status in borough courts, and outlined the possibilities for wives to litigate independently despite being under coverture. Kaat Capelle also considered the 'bargaining power' of wives in sixteenth-century Antwerp, addressing the difference in their status in theory and practice. Coining a phrase that perhaps more usefully conceptualises married women's negotiation of different legal systems, Peter Larson suggested that a more fluid 'culture of coverture' may have been at play in Durham's Halmote Courts, rather than a fixed doctrine.


'Litigating Women' symposium delegates

If some women had more legal agency than traditional assumptions might suggest, much of the discussion also highlighted that agency is not easily identifiable, and nor is it a term that can be applied to women's litigation without much critical analysis. Loreen Giese addressed questions of female agency in complaints of marital cruelty in London's early modern consistory court, highlighting the problems inherent in historians' definition and assessment of female actions in court records. Molly Corlett's paper on slander in northern England also drew on stories told by and about women, comparing church court and manorial jurisdictions, and the way in which slander cases were shaped by ties of community and neighbourhood. These issues span all studies of women's legal action: is the telling of legal 'stories' enough to assess women's agency? Is the ability of women to act in court equal to agency? How did women know how to tell these stories; where did community knowledge come from? And if we don't know what women wanted, or why they went to court, can we really assess agency?

The associated issue of storytelling and the construction of legal records and narratives was also recurrent throughout the conference. While this isn't a particularly new approach to the study of women's legal action, the expanding body of research on women's litigation - exemplified by the PhD research presented at the symposium - allows for questions to be asked concerning women's voices across a growing range of legal records, jurisdictions and contexts. Megan Johnston explored the narratives employed by and about women in relation to enclosure riots, while Charlotte Young's discussion of women's appeals to the committee for sequestration also raised issues concerning the framing of petitions for the return of land. Questions considered the multiple layers of legal documentation, the influence of gendered tropes and discourses employed by litigants or complainants, the role of lawyers and attorneys, and the way complaints were raised in different jurisdictions. Julie Hardwick's keynote on the relationships of 'emerging adults' in Old Regime France also identified common narratives employed in paternity claims, and the creation of a 'legal memory' through the construction of these records. While legal documents offer a rich record of women's engagement with the law, these discussions reminded us once again that they cannot be read at face value.

The session on women's voices directly addressed the multiple ways in which female speech and complaints were entered into the legal record of different courts. This included the raising of grievances and misbehaviour via the hue and cry (Susan Maddock), complaining through detailed stories in church courts (Loreen Giese), and the contrasting (mis)representations of women's litigation in the plea rolls and Year Books of the medieval central courts. Gwen Seabourne's comparative analysis of a single case recorded in these two different sources highlighted the various issues of identification, appropriation and ventriloquism that occurred when recording women's litigation. These issues all act as filters in the legal process, influencing our ability to understand the nature of women's presence in court and their actual role in litigation.

But despite numerous issues of interpretation, the papers also made it clear that women could be regular litigants who were integrated into the legal system, and knew how to use the law to seek redress or further their own agendas. Susan Maddock's discussion of the leet records of Lynn identified women's frequent involvement in the raising of the hue and cry a means of claiming a role in the policing of misbehaviour - and suggested that they were treated equitably by the court. Susan McDonough called for a rethinking of the most 'marginal' category of women through her analysis of prostitutes' engagement with criminal law in late medieval Marseille. Here women participated in a legal process that was both spatially and metaphorically public by choosing to bring their complaints to court in claiming and defending their rights, and by acting as witnesses and pledges for others. Charmian Mansell highlighted the regular role that female servants another group often labelled as marginal played as witnesses in English church courts, revealing the value in their testimony and their social networks beyond their employer's household. Sara Butler's keynote on medieval juries of matrons highlighted this important and authoritative legal role that was only available to women, tracing the identities, skills and backgrounds of these women through various legal and cultural references. The papers demonstrated the importance of examining women's interaction with the law in practice, rather than resting on assumptions about female legal status: what women couldn't do under the law, the nature of female identity, the gendering of honour, women's marginality, or their definition according to marital status (among others). Numerous papers called for reassessment (or at least a critique) or these assumptions, though we were also warned of the dangers of too positive an interpretation of women's litigation. Despite suggestions of female agency, we must remember that the law did severely limit women, and avoid applying our own value judgements without considering the contemporary context of the records with which we are working.

The diversity of the programme also served to highlight the importance of context in determining women's litigation, both in terms of the geographical and commercial setting in which different courts operated, and the variations between jurisdictions and statuses of women. Laila Scheuch's comparative analysis of women's use of divorce law in Germany and France during the Revolutionary Period (1792/98-1804) explored how women's use of law and judicial agency differed according to cultural surroundings, even in situations where the same legal framework applied. The commercial context in which women experienced the law was also discussed. Capelle's exploration of Antwerp wives' 'bargaining power' raised the question of the importance of the commercial setting and the women's economic status in determining their legal agency. In contrast, Anna Knutsson's paper on female smugglers and eighteenth-century Swedish sumptuary laws exemplified how women's marketing roles (in this case illegal ones) brought them into contact with the law, with gender being a factor involved in negotiating outcomes for male and female smugglers.

Together, the papers and discussions demonstrated the many continuities in women's legal status across periods, places, and jurisdictions. It was also clear that there are many shared methodological and analytical considerations for research that may deal with seemingly dissimilar records or legal contexts. Yet the wide range of subjects addressed also pointed to variations in lived experiences within this bigger picture of continuity. We heard in detail about a number of individual 'litigating women' whose involvement with the law cannot be neatly defined according to statistical patterns or generalisations about the status of women. This balance of continuity and difference is not something that can be easily accounted for. An alternative application of Judith Bennett's discussion of change versus transformation and the 'patriarchal equilibrium' in women's work may prove to be useful here in discussions of legal status.[1] Nevertheless, the two days spent discussing litigating women demonstrated the need for continuing conversations that may help us further understand the nature of women's litigation and their negotiation of justice.

For a Storify of the symposium, click here


The Women Negotiating the Boundaries of Justice project team

[1] Judith M. Bennett, 'Confronting Continuity', Journal of Women's History, 9 (1997), pp. 73-94; 'Patriarchal Equilibrium' in Bennett, History Matters: Patriarchy and the Challenge of Feminism (Manchester, 2006), pp. 54-81.

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