Femme Sole Status: A Failed Feminist Dream?

 

Posted by Sara M. Butler; 8 February 2019.

When reading over an anonymous reviewer’s comments on a manuscript I was writing on the subject of women’s legal disability in medieval England, I was genuinely surprised by one of the recommendations. He (or she) asked me to insert a reminder to my audience that, when it comes to the law, not all married women experienced the strictures of coverture. The legal designation of femme sole (“woman alone”) made some women an exception to the rule.

For those who are not English legal historians, allow me to explain. Inspired by scripture (Mark 10:8, “and the two will become one flesh”), for much of England’s history the law understood marriage as creating a unity of person. Once married, a wife’s legal personality merged into her husband’s: the couple became one person at law, represented in the person of the husband. The term “coverture” derives from the legal description of that unification process: a wife was deemed “covered” (protected) by her husband, thus coverte de baron – the use of the term “baron” in this instance was, of course, a recognition of the “natural” hierarchy that existed between husband and wife.

This fictionalized unity of person was not just a legal construct; it had real life implications. The wedding ceremony transformed an active, independent woman, who shared the same legal standing as a man, into a dependent at law. Accordingly, without her husband’s express permission, she could not make purchases, enter into contracts or leases, or initiate a lawsuit, even if she had participated in these activities in her own right prior to marriage. As I have written elsewhere, because coverture was not yet the finely honed tool it became in the early modern era, it did not quite result in a married woman’s civil death.[1] Yet, coverture was a formidable obstacle, incapacitating a married woman from performing many of the necessary activities of daily life without rigorous accommodations by merchants and retailers, who had no choice but to conduct financial transactions with married women on a daily basis.

This is where the legal designation of femme sole comes in. Recognizing that some men might wish to have their wives continue the thriving businesses they had founded or inherited prior to marriage, some English cities permitted a wife to register as femme sole. As such, a married woman might behave as if she was single for the purposes of conducting business. The benefits of this arrangement were twofold. The designation not only freed a woman from the constraints of coverture so that she could run a business, it protected her husband’s business interests. The White Book (Liber Albus), a customal of sorts for the city of London, clarifies that the latter was in fact the chief concern behind the status’s design, so that when it comes to a wife who trades alone,

if the husband and wife are impleaded, in such case, the wife shall plead as a single woman in a Court of Record, and shall have her law and other advantages by way of plea just as a single woman. And if she is condemned, she shall be committed to prison until she shall have made satisfaction; and neither the husband nor his goods shall in such case be charged or impleaded.[2]

To return to my initial statement: the anonymous reviewer’s request to include mention of femmes soles took me by surprise largely because so few women fell into this category in the Middle Ages that referencing femme sole in a general overview of women’s legal rights seemed senseless, perhaps even misleading. To my mind, femme sole is much like the medieval hermaphrodite: the laws have a lot to say on the issue because its very existence disrupts traditional gender norms, and thus requires exceptions ingeniously applied so as not to undermine the gender hierarchy. Yet, the attention given to the subject is largely academic and disproportionate to any reality. Actual historical examples of hermaphrodites (or femmes soles, for that matter) are few and far between.

The status of femme sole was an English phenomenon, a necessary byproduct of coverture, also an exclusively English experience. Yet, even within England, the designation was available in only a small number of urban environments, among others: Exeter, Hastings, London, Lincoln, Winchelsea, and Worcester, and none of those few urban centers has produced lists of women who registered as such. Historical arguments about the femme sole rest principally on municipal legislation and less than a handful of cases drawn from manuscript notations. A chamberlain’s account from York covering the years 1453-54 notes that Robert Horman, a tailor, paid 3 s. 4 d. for his wife to “follow the trade of the cardmaker by herself.”[3] In 1457, a London silkwoman named Agnes wife of John Gower appeared before the mayor and aldermen to ask to be permitted to act as “sole merchant.”[4] There are also a select few court cases centering on a woman’s status as femme sole; however, in each of these instances the female defendant rejected the plaintiff’s characterization of her as a femme sole (perhaps, preferring to use coverture as a shield to guard her assets). We do not have any cases of a femme sole suing a debtor in her own right. In all likelihood, this is because she knew well that her chances of being successful in a lawsuit increased exponentially if she had a man at her side.[5]

The inability of historians to uncover a plethora of concrete examples of married women registering as femme sole is striking in large part because of the historiography. Dating as far back as Alice Clark’s Working Life of Women in the Seventeenth Century, published in 1920, the femme sole has played a pivotal role in historical interpretations of women’s place in premodern society. Essentially, the legal fiction levelled the economic playing field for women, diminishing the real power of coverture by erasing its impact on daily life. It offered the potential for women to hold a “rough equality” with men. Without actual examples of married femmes soles, a positive assessment of women’s independence in the medieval marketplace is less credible.

The real question, of course, is: have medievalists even noticed that the femme sole was largely a mythical figure? There are only two dedicated studies of the medieval femme sole and their arguments run in opposite directions. Brian Gastle, writing in 2004, sees that “by the end of the fourteenth century, femme sole wives had become almost commonplace.”[6] As proof, Gastle seems to include every instance in which a wife acts outside her husband’s control. This methodology, of course, is inherently flawed: wives frequently had to conduct business in the absence of their husbands, but as Cordelia Beattie has written, doing so was not an example of women acting as if they were single; rather, it was an early version of the “law of necessaries.”[7]

Writing just one year later, Marjorie McIntosh, underscores the rarity of solid examples of medieval femmes soles, leading her to conclude that the “status was of limited importance in economic and legal terms.”[8] Indeed, she argues that the designation “was not seen as desirable by working women” (a statement that might have shocked poor Alice Clark!).[9] McIntosh observes that some women may have represented themselves as femme sole in their business transactions, but they chose not to register as such because being a femme coverte provided greater “legal maneuverability.”[10] A male plaintiff was much less hesitant to sue her if he knew that he might have to take on her husband in court. More important still, coverture provided the ultimate “legal dodge.”[11] The responsibility fell to the creditor to ensure that a married woman had her husband’s permission before entering into any agreement with her. Thus, if she was in fact a femme coverte, any contracts she entered into independently were not legally binding.

Study of the few disputes revolving around a woman’s supposed femme sole status in the late medieval court of Chancery can contribute a number of insights to these debates.

First, they make it clear that femme sole is the term favored by historians; “sole merchant,” or some variant of it, was the actual descriptor applied in both London custom (uxor quæ sola mercandizat), and Chancery petitions (always, sole merchaunt).[12] What’s in a name? Femme sole is the flipside of femme coverte: thus, the term itself subtly invokes coverture even while speaking to a woman’s independent state. Femme sole also highlights the performative nature of marital status, a somewhat subversive proposition. If it is acceptable for a wife to act as a single woman for business purposes, when else might she pretend to be single? Is the mantel of coverture something that can be removed so effortlessly? The use of “sole merchant” evades these debates entirely. The term is devoid of gender: theoretically, it might apply equally to a man as to a woman. Thus, unlike femme sole, it is not a reminder that a married woman is doing something extraordinary.

Second, Chancery petitions add another dimension to the undesirability of the status. Femme sole status provided unscrupulous creditors an opportunity to sue married women independently for their husbands’ debts. The petition of Joan, wife of John Kirton, lays out the usual scenario. Her husband was purportedly indebted to Thomas Bailly for the sum of five marks for nonpayment. In the hopes of inspiring eventual repayment, Thomas had Joan’s husband imprisoned. John then charged Joan and other “friends” to negotiate with Thomas on his behalf, hoping to be awarded “longer days of payment” (i.e. more time to repay the debt). He also endeavored to gain Thomas’s permission to “go at large,” on the premise that he has a better chance of repayment if John is working than sitting in prison. Thomas’s agreement led to John being released from prison. But, of course, John did not keep his promises. As a result, Thomas decided to adopt what he hoped might be a more fruitful tactic: he had Joan arrested and thrown in prison, claiming that the debt was in fact hers as sole merchant. Joan’s petition to the chancellor, penned while she was in prison, makes clear that “she never undertoke to pay nor ever bought or sold with the same Thomas” and yet because of his “great might” she expected to be condemned, “against all right and good conscience.” She begged the chancellor for a corpus cum causa directed to the sheriffs of London to have her case removed into Chancery for consideration.[13] Of course, as is typical of all medieval Chancery cases, the court’s verdict has not survived so we don’t actually know what happened to Joan in the end.

At times, zealous creditors waited until the husband was out of town before initiating litigation. Henry Shepper, a parish clerk in London, had just departed for Rome on pilgrimage when Richard Wyld, described as citizen and salter of London, sued an action of debt for 44s in the sheriffs’ court of London against Henry’s wife, Margery. Richard claimed that Margery was sole merchant, while Margery insisted that she had always been “covert baron under her said husband.”[14] Elizabeth Broun’s husband, John, was away “beyond the sea” in the employ of the Duke of Burgundy when Thomas Brighton, a London fuller, took out a plaint against her for her husband’s debts of 34s and 4d. The first suit failed: the court declared that she was “covert baron” and thus Thomas would have to wait until her husband returned before he could proceed with his lawsuit. Astutely, in his next plaint he alleged that she had borrowed the money from him as sole merchant, and Elizabeth was certain that she would soon face conviction and a prison sentence.[15]

Third, the petition of John Fynkell, knight, raises questions about the process of discerning whether a married woman was in fact femme sole. John tells the chancellor that his beef lay with Joan Horne, a recent widow, once married to William Horne, knight and alderman of London. During her husband’s lifetime, John had contracted to sell £61 worth of silks to Joan, believing that she was sole merchant, as he describes it, “that she after the custom of London might in her own name buy and sell and that all contract and bond by her and in her sole name made should not withstanding her coverture be good and effectual in the law to all her creditors.” The proof of her status, as John implies, was the fact that she had her own seal (in reality, not an indication of femme sole status). Eventually she failed to pay him for the silks; both she and her husband refused to acknowledge the debt, and so he then turned to the city, only to discover that “no manner of record could be showed to prove her after the custom of London to be sole merchant.” Since her husband died, he had renewed his attempts to have her pay her debts, without much success, leaving John to turn to the chancellor as a last ditch attempt at repayment.[16]

Finally, the petitions challenge popular knowledge of femme sole status. Anne Davell’s statement to the chancellor is pertinent here. Facing prison for an 18s debt to singlewoman Christian Baxter, that she argues her husband, a debtor in Ludgate prison, entered into, Anne makes it clear that her activities reflect what “many other poor women done,” that she “never was sole merchant nor knew what the term meant until this time that necessity teaches her but was ever continually covert baron.”[17] Anne’s statement may have been a coy masquerade, hoping to sweet talk her way out of being punished for failing to settle a debt. It may also have been a frank admission.

Far from the economic freedom that historians once envisioned, these cases instead suggest that femme sole status was a) a legal dodge for women hoping to avoid responsibility for repaying debts; and b) a weapon for devious creditors eager to compel their debtors’ wives to cough up the money they could not squeeze from their husbands. Was there more to the story?  The feminist in me can only cling to the hope that there was.

Feature Image: “The Moneylender and his Wife,” Quentin Massys (1456). Public Domain via Wikimedia Commons.

[1] Sara M. Butler, “Discourse on the Nature of Coverture in the Later Medieval Courtroom,” in Married Women and the Law: Coverture in England and the Common Law World, ed. Tim Stretton and K.J.Kesselring (Montreal: McGill-Queen’s University Press, 2013), 24-44.

[2] H.T. Riley, ed., Munimenta Gildhallae Londoniensis; Liber Albus, Liber Custumarum et Liber Horn, 3 vols (London: Longman, Green, Longman and Roberts, 1862), vol. III, 38.

[3] P.J.P. Goldberg, ed., Women in England, c. 1275-1525 (Manchester, 1995), 189.

[4] CLRO, journal 6, f. 182 28 October 1457, as cited in Marjorie K. McIntosh, “The Benefits and Drawbacks of Femme Sole Status in England, 1300-1630,” Journal of British Studies 44 (2005), 417.

[5] I have discussed this in Sara M. Butler, “Medieval Singlewomen in Law and Practice,” in The Place of the Social Margins, ed. Andrew Spicer and Jane Stevens Crawshaw (New York and London: Routledge, 2017), 59-78.

[6] Brian W. Gastle, “‘As if she were single’: Working Wives and the Late Medieval English Femme Sole,” in The Middle Ages at Work: Practicing Labor in Late Medieval England, ed. Kellie Robertson and Michael Uebel (New York: Palgrave Macmillan, 2004), 52.

[7] Cordelia Beattie, “Married Women, Contracts and Coverture in Late Medieval England,” in Married Women and the Law in Premodern Northwest Europe, ed. Beattie and Matthew Frank Stevens (Woodbridge: Boydell, 2013), 133-54.

[8] McIntosh, 425.

[9] McIntosh, 412.

[10] McIntosh, 427.

[11] McIntosh 412.

[12] Riley, vol. I, 204.

[13] The National Archives (TNA) C 1/64/607 (1475-80, or 1483-85): Kirton v. Sheriffs of London.

[14] TNA C 1/73/119 (1386-1486), Shepper v. Wylde.

[15] TNA C 1/64/434 (1475-80, or 1483-85), Broun v. The Sheriffs of London.

[16] TNA C 1/201/32 (1493-1500), Fynkell v. Horne.

[17] TNA C 1/80/12 (1486), Davell v. The Mayor and Sheriffs of London.

One comment

  1. Sara
    Thanks. Interesting as always.
    Jon

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    Jonathan Rose
    Professor of Law & Willard H. Pedrick Distinguished Research Scholar Emeritus
    Sandra Day O’Connor College of Law, Arizona State Univiersity,
    609 E. Carter Dr.
    Tempe, AZ 85282
    (480) 839-2104
    mailto:Jonathan.Rose@asu.edu
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