Book review: Timothy Stretton's Women Waging Law

My critique group expressed skepticism about my character’s ability to hide her property from a future husband. If all you have for legal advice is a pettifogger from an Inn of Chancery or, God save you, your parish priest, you probably couldn’t manage it. But if you’ve got a good lawyer — one who studied at an Inn of Court, like Francis Bacon — you will have access to clever legal devices invented over the course of the sixteenth century for the very purpose of concealing assets from untrustworthy relations.

If you’re a modern novelist, you can learn all about these conveyances and the women who employed them in Timothy Stretton’s indispensable book, Women Waging Law in Elizabethan England. (1998.) Cambridge University Press.

The cover here is linked to Amazon, but alas, the book is not priced for us mortals. Even a used paperback is almost $60. You’ll have to find it in the law library or get it through Interlibrary Loan. It’s worth the extra trouble, I guarantee!

The best introduction to this wonderful work isprovided by Dr. Stretton on the flyleaf:

“This book investigates the surprisingly large number of women who participated in the vast expansion of litigation in sixteenth and seventeenth century England.

Making use of legal sources, literary texts and the neglected records of the Court of Requests, it describes women’s rights under different jurisdictions, considers attitudes to women going to court and reveals how female litigants used the law, as well as fell victim to it. In the central courts of Westminster, maidservants sued their masters, widows sued their creditors and, in defiance of a barrage of theoretical prohibitions, wives sued their husbands.”

Who did Sally sue?

The book is a scholarly work, so the prose is formal, but clear, even elegant at times, and mercifully free of trendy jargon. It’s also loaded with telling anecdotes straight from the court records.

Here’s the London widow Dame Mary Cheeke, whose husband had named her as the executrix of his will (a common practice.) She came to suspect the bailiff and steward of the estates of fraud, so she fired them and began a series of legal actions (suits) that lasted 6 years to recover the lost profits.

Widow Susan Ashley recovered a copyhold interest (a traditional form of land ownership) in her local Court Baron by arguing that she had been named in the copy, but her late father had surrendered it without her consent when she was 17 and powerless to oppose him. She sued for ownership in the Court of Requests and won.

Thomazin Buckford was administratrix of late husband’s estate. She asked her uncle to act as the ‘instrument’ of a trust. He was to arrange bonds and convenants with her new husband to make sure she was provided a reasonable jointure. (Jointure is the widow’s portion; a guaranteed estate or sum of money for her support, even if there are other heirs.)

A wide gulf existed between the harsh laws created by Parliament and the lenient application of those laws by juries and justices. We must remember that criminal and civil justice was a community effort in the sixteenth century. The persons responsible for reporting crimes, arresting the suspects, and judging the cases were neighbors and kinsmen of those being judged. The world was small, out there in the towns and villages where people interacted; much smaller than the abstract society contemplated by the gentlemen of the House of Commons. The law demanded death by hanging for felony theft, so juries often revalued the stolen goods to reduce the crime to a misdemeanor.

If the laws were too harsh, people found ways to avoid applying them. And if the laws were unreasonable, women went to an equity court to find a way around them.

Women hiding their assets

I have a character (Lady Alice Trumpington) whose mother’s first husband was a wealthy merchant. Knowing his young wife was bound to marry again, he created trusts to protect assets for her support when her future husband died, or for her children, if she had any.

We have such legal instruments and also call them trusts. The legal term goes back to mid-fifteenth century: “The confidence reposed in a person in whom the legal ownership of property is vested to hold or use for the benefit of another…” (OED.)

A related principle was the doctrine of separate estate, which allowed a woman to own property over which her husband had no rights. This contradicted the common law principle of coverture, in which a woman was legally “covered” by her husband. She had no separate standing whatsoever; she could neither own property nor be prosecuted for a crime. She was legally invisible.

Sensible people, including judges, recognized that coverture could lead to forms of gross injustice. Equity courts grew up alongside the common law courts, starting back in the thirteenth century. The first one was the Court of Chancery, where the Chancellor dispensed the mercy of the king. Demand stimulated the establishment of others, like the Court of Requests, whose records Stretton studied in depth for this book.

Equity was designed to consider fairness in specific circumstances, rather than the strict application of the law. “Common law looked to the cause, while equity looked to the person.” Common law followed rules, cases, and statutes; equity courts could make their own judgments based on the facts of the case at hand and the circumstances of the litigants.

A court of equity could say, “Look, this woman brought properties worth this much per annum to the marriage. Now that the husband has died, it’s only fair that she get those same properties back.”

Equity was women’s way out from the strictures of coverture. The Court of Requests, which physically resided in Whitehall, was intended from the start to be a remedy for the common person. It quickly became the favorite of women. The Masters of Requests (the judges) allowed themselves wider latitude, accepting cases that couldn’t be tried anywhere else, if they thought the case deserved consideration. You might not have the exact legal documents required by the common law, but you might have witnesses who remember what was promised or letters expressing a deceased person’s intentions. Common law couldn’t consider such forms of evidence, but equity could.

The Court of Requests was also a bargain. Most suits in Chancery cost between £50 and £400. You could press your suit in Requests for as little as 20 shillings. Of course, you still had to pay for food and lodging in the London area for yourself and your witnesses, not to mention transportation to and from. You’d also pay clerks and messengers to copy and deliver documents. And I for one would want new clothes; we are talking about London, after all.

Enfeoffing your feoffees

How did trusts work? You set up a system of legal blinds. One person owned the legal title to a property, while another enjoyed the “use” — income from rents. (We’re nearly always talking about land in these cases.) A woman could transfer ownership of her land to a third party before she married. That third party was then the legal owner, called the ‘feoffee to uses’ or the trustee. He was obligated by the ‘trust in them bestowed’ to act on behalf of the woman, managing the lands and passing on rents or retaining the interest for the duration of the marriage and then returning it to the woman or her heirs.

That’s a lot of trust. Feoffees were usually NOT toy poodles; that’s just a weird association thrown up by the writers’ irresponsible brain. Trustees were usually male relatives, although a widow could own property in her own right and thus also serve as a feoffee. You might have several, to help keep each other honest.

If your feofees let you down and refused to hand over your property in due course, you could sue them too. And now we understand why the legal profession enjoyed a boom in numbers and revenues during the Tudor century. Lawyers made fortunes designing trusts, serving as trustees, and suing other lawyers for doing or failing to do the same.

 

 

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