- Women Waging Law in Elizabethan England
That women have often been victimized by the law, particularly with respect to property rights, has been a recurring theme in recent historical writing. While not denying this fact, Stretton has taken a novel approach in treating “women and the law”. His is one of women’s “going to”, or engaging, the law. If “going” does not have precisely the same historical meaning as “waging”, the title nonetheless conveys the notion that women were not simply passive victims. Indeed, Stretton demonstrates that they often ignored their legal handicaps and aggressively used the law, occasionally even turning the combination to their advantage.
Although women as victims and women as litigants inevitably overlap in substance, they differ markedly as well. Herein resides the contribution this work makes to both legal and social history. In Tudor and early Stuart England litigation was virtually a way of life, and women, it seems, were often ardent participants in this phenomenon. As they experienced unfair laws and discrimination, they initiated lawsuits. As plaintiffs—wives, widows, maidservants—they sued, respectively, husbands, creditors, and masters.
Stretton’s is not a narrow-based presentation of women and laws. He reviews the historiography of the subject, noting in particular the contributions and limits of feminist historians. He believes that the subject has been short-changed because many who write about the subject are not adequately trained in legal history, particularly in matters of civil as opposed to criminal law. Then, too, he wonders about the way in which women fit into the “culture of litigation”—how as litigants they were perceived in a patriarchal society. In establishing a context he considers not only lawyers and judges but also playwrights, moralists, and satirists.
Because much of the litigation undertaken by women occurred in the Court of Requests, Stretton has recounted the history of that court, its volume of litigation, jurisdiction, procedures, costs, and much else. Above all, he emphasizes its relatively speedy process and its relative effectiveness. Although litigation in that court was not inexpensive, it was affordable for many and access was relatively easy. The Court of Request records, while leaving much unsaid, do indicate issues pursued by women litigants irrespective of the legal impediments. Of course there were litigants and there were litigants: Stretton devotes a chapter to unmarried women and widows and another to married women in the Court [End Page 471] of Requests. The unmarried and widows often engaged in litigation related to marriage settlements, jointures, uses and trusts. The chapter on married women in Requests focuses on the oft-discussed doctrine of coverture, which stripped women of their legal rights once they married; yet even here Stretton cites instances when women fought back despite the many obstacles.
One of Stretton’s best chapters treats women in the world of legal custom. Here, as always, he is careful to define his terms—custom itself, copyhold, and their relationship with the common law. While recognizing that the potential flexibility of custom sometimes played to women’s advantage, he judges it risky to assume that women would have fared better had not custom lost out to the common law. Then, too, he makes allowances for customs that differed from one manor to the next. As with his handling of custom, Stretton is creative in examining typically employed pleading strategies and such trappings as language, conventional images, and stereotypes—especially in cases involving reputation and honor. In all this we get some sense of how judges and lawyers reacted to women as litigants and how they regarded the arguments and verbiage used.
For anyone imbued with the notion that “women and the law” is an overused theme, this book will quickly dispel it. The author engages the subject from diverse perspectives, supports his arguments well with many examples, and reaches convincing conclusions. Notably, he writes well and prudently avoids antagonizing others engaged in dealing with this very contentious subject.
Stretton’s focus on civil litigation is immensely important for a variety of reasons. That it opens new avenues for viewing...