When Women Went to Court: Gendered Agency in European Legal Systems, 1300-1800

Guest post by Julie Hardwick, 9 September 2022.

In July, 1725, Justine Gantier walked along the streets in Lyon, France’s second city, to the greffe (the building that served as the depository of legal documents and evidence) for the royal court of first instance (a sénéchausée). There she handed a court official a bundle of seven letters she had received from her intimate partner, Louis Delagard. Perhaps in consultation with her lawyer, or perhaps on her own initiative because seemingly women did not usually provide such evidence, she deposited them as evidence in support of her paternity suit against him. Gantier was six months pregnant and Delagard had reneged on his repeated promises to marry her. Her actions transformed those letters, the material culture of intimacy that originally embodied the connection and commitment between them, into legal evidence of betrayal.

Archives Départementales du Rhône, BP3525 20 July 1725,
Dossier of Gantier and Delagard

For Gantier and the many other women who filed paternity suits of this kind, the legal system was a key route to mitigate the impact of men’s unpredictability as emotional and sexual partners. Local courts were broadly supportive of women in these situations, and routinely held men responsible for the reproductive consequences of their sexual activity: they order men to pay their partners’ costs for labour and delivery (these might include a rented room leased from a landlady who specialized in providing pre- and post-natal care for single women for the duration) and charged them with physical custody of the baby and responsibility for its upbringing.  They sometimes held them in prison even during the investigation to be sure they did not literally run away from their responsibilities!

Yet recognizing women’s access to the legal system across premodern Europe has often been challenging for historians. Prescriptive laws that seem to constrain women’s legal rights (for example, coverture) and archivists’ practices have until recently kept them largely out of sight. I explored Gantier’s story in Teresa Phipps and Deborah Youngs’ new edited collection, Litigating Women: Gender and Justice in Europe, c. 1300-c. 1800. The collection emerged from a multi-year team project to interrogate women’s historical experiences of justice as actors rather than subjects of legal doctrine, Women Negotiating the Boundaries of Justice, and includes contributions by Susan McDonough, Kristi DiClemente, Chanelle Delameilleure, Michaela Antonín Malanílová, Sparky Booker, Cordelia Beattie, Peter Larson, Rebecca Mason, Margaret Lanzinger, Janine Maegraith, Mia Korpiola, Mary O’Dow, and myself.    

What do we learn from this collection of historical examples and analysis which ranges broadly across western Europe, across five centuries, and across the many different types of litigation in which women were active?  Female litigators’ very varied stories vividly demonstrate women’s ability to leverage the legal system and reveal broader aspects of their everyday activities.  They tell the new story of women’s relationship to the premodern legal system in Europe, one that emphasizes how ordinary it was for women to access the legal system as a resource, building on the burgeoning regional case studies of recent years. The case studies in the new edited collection highlight women’s litigation initiatives in roughly (sometimes overlapping) four thematic groups: property, intimacy, process, and archival practices.

Property

Women of all ranks and marital status often sought to use the courts to protect their property in many forms, familial and commercial: Margaret Stanmere brought several cases against townsmen in North Wales in the same session in 1401 in her local town court.  One was for trespass, one for debt, one to recover payment for malted oats. She routinely used her local court to resolve common problems. [See the chapter by Teresa Phipps and Deborah Youngs.]

Luiseta Bariesse brought a series of cases to her local court in Marseilles in 1395 and 1396 as she sought to protect her needs after her husband’s death over those of other claimants. The court met outdoors in a local marketplace where she told her story of herself as a mother, manager and mourner that would circulate among neighbors and acquaintances as well as be written into the legal record. [Susan McDonough]

Margaret Nugent, in mid fifteenth-century Ireland, sought to use both an episcopal consistory court and the Irish Parliament’s function as an equity court to secure her dower lands after her husband’s death even though they had been separated and her husband’s lands had been seized for his failture to answer for felonies. Although she was a wealthy widow, like many women of all ranks, she mobilized different jurisdictions with their own legal codes and purview to manage her situation to her advantage. [Sparky Booker]

Joan Mayland sued the executors of a man who died before he paid her for a quart of malt vinegar and Alice Del Somerhouses sued her village for failing to pay her for a horse taken for carriage duty in North-Eastern England in the fourteenth and fifteenth centuries. Women’s access to the courts, or lack thereof, was rooted in local and contingent factors rather than contemporary views about women or patriarchy as a flat category. [Peter Larson]

Jonet Love, a married daughter, sued a remarried widow, Agnes Montgomery, her deceased father’s wife, in a Glasgow commissary court in 1670. Jonet sought delivery of her inheritance from her father and Agnes – with her new husband – sought to retain the disputed property in part because coverture indicated it now belonged to the new husband. Like Love and Montgomery, married women were often involved in disputes over property despite the prescriptions of coverture. [Rebecca Mason]

Lady Elin Johansdotter was involved in several cases in different courts in diverse disputes between members of her elite family in early seventeenth-century Sweden. For instance, she brought a suit against her stepchildren in 1614-17 over her deceased husband’s morning gift to her; she was sued for arson and slander; and she was a party with her second husband and others to the suit against her stepdaughter’s husband for not respecting their 1617 settlement and for criminal vandalism. [Mia Korpiola]

Intimacy

Women used the courts as part of their strategy to manage their intimate lives, using the publicity of telling their stories and the leverage of the legal system to help them manage the endless challenges intimacy could involve for a premodern woman:

Jeanne de Sartrouville went to an ecclesiastical court in Paris in 1385 to deny that she had consented to marry Guy Kaerauroez who had sued her to recognize what he claimed was a legally binding marriage contract. She countered that instead his friends had attacked her so she agreed under duress but did not consent. Guy admitted to the court her version was correct. [Kristi DiClemente]

Kateline Vanderstraten made a declaration in 1458 to her local court in Leuven, affirming that she had willingly eloped with her intimate partner and their marriage was based on mutual consent rather than his abduction of her. [Chanelle Delameillieure]

Barbara von Herwigsdorf asked the ecclesiastical court in the archdiocese of Prague in 1424 to recognize her marriage to Laurencius, claiming they had exchanged vows. She could not provide witnesses, however, and  the court released him from her claim. [Michaela Antonín Malaníková]

Elizabeth Leeson and Catherine Sarah Cunningham litigated in Dublin ecclesiastical and civil courts in the mid eighteenth century and appealed their cases to London. Leeson pursued a man who had promised to marry her and fathered her child, and then denied it. Cunningham pursued a man who claimed he had not consented to marry her in a private ceremony that his family did not know about. They both persisted across several years and through multiple legal systems and eventually won in court, although with high social and personal costs as they experienced public denigration from the men’s aristocratic families. [Mary O’Dowd]        

Process

Women sought to take advantage of the many moving, complementary, often overlapping pieces of the legal process to manage their situations to their best advantage: Maria Moriana petitioned the English Chancery Court to move her case from a civic court while Alice SeintJohn petitioned the Chancery Court to send her case back to the civic court in the fifteenth century. Their different choices highlight how female litigants chose to exercise their capacity to act in a landscape of multiple jurisdictions.  [Cordelia Beattie] 

Margaretha Hofer went to court in the German-speaking Tyrol in 1565, accompanied by her gender guardian, to claim her outstanding parental inheritance share from her brother, Urban Hofer. It was the start of four years of conflict between the siblings over their inheritances and other matters as their dispute fueled conflict between them and Urban’s wife even while they were co-residents in the same household. The court and a group of arbiters eventually awarded Margaretha a lifetime provision in a process that highlights how important informal dispute resolution and arbitration were. They were often integrally linked to a formal court process. [Margareth Lanzinger and Janine Maegraith]

Archival Practices

Archival practices have often hidden as much or more than they revealed. Archival collections have often hidden, mostly inadvertently, much of women’s agency from us. Dramatic events like the 1922 explosion of mines stored in the basement of the Irish Public Record Office during the Irish Civil War destroyed a huge volume of Irish legal records and many records across Europe were lost to fire, flood or wartime bombings. As Mary O’Dowd shows, English appeal court records of Irish cases can in fact illuminate much of what was thought to be lost forever in Irish legal history. 

French professional archival practice, standardized across the country from the nineteenth century onwards, routinely sorted out women’s legal actions in the form of paternity suit petitions and placed them in a separate category called declarations of pregnancy (déclarations de grossesse) as if they were particular actions rather than part of routine varied legal activity in local courts otherwise archived by year. They associated them with a 1556 royal Edict on Clandestine Pregnancy and a myth that the edict required young single women to register their pregnancies with a public official. It did not.[1] Yet archival practice constantly reinforced that association for historians who thus viewed the legal records as evidence of the state disciplining women when in fact they demonstrate women mobilizing their local courts as a positive resource to help them.  The same professionalized archival practice filed legal records of the finding of fetal remains around Lyon and other cities as “accidents” even when the records documented likely abortions.  As I discuss in Sex in an Old Regime City, these archival practices help explain why it took me over 20 years to find evidence of women’s efforts to interrupt their pregnancies.

Conclusions

What are the keys now for understanding women’s relationship to the legal system in the light of these tantalizing snippets of women’s stories in their many iterations?

  • No stable “female” legal experience existed across premodern Europe, not even in regions with the clearest centrality of versions of coverture, just as there was no single male experience. There “was no single legal discourse governing women’s legal status or rights” [p.4] as Phipps and Youngs note in their introduction. Premodern legal systems were pluralities, with a mass of often overlapping and sometimes conflicting jurisdictions. Women commonly used different parts of the legal system as tools in their everyday lives, and this usage was ordinary while criminal discipline of women was highly unusual.
  • Women often had substantial knowledge of the law and legal process, especially in instances where they most often might have cause to litigate like family matters or debt cases. This understanding was essential to their ability to garner the resources to litigate.
  • Coverture was complicated as a practice, heavily dependent on how issues intersected with other legal protocols of particular courts and with local customs and conditions. Variables are central to understanding women’s legal experience. Marital status, rank, wealth, region, time period, political, religious and ethnic contexts and so on all mediated women’s experiences.
  • Legal records are complex texts and all our efforts to understand women’s intersections with the legal system have to acknowledge the many factors that shaped what was said and what was recorded as well as what happened.
  • Women’s agency, perhaps more usefully delimited as women’s capacity to act, was often contingent.  Patriarchy’s asymmetrical gender relations offered women opportunities to manoeuvre through, across, and in the interstices of legal systems that could hold men accountable but did not necessarily involve resistance or mitigation. Women sometimes sought protection from the law and sometimes used the law to assert their rights.
  • The infinite variety of women’s experiences continue to make legal records central in exploring many aspects of women’s lives beyond the law, including those of Jewish, Muslim, heretical and African descent not included in this volume.  While the value of court records has been well established in the last fifty years of social history, including women’s history, they continue to offer enormous potential for critical future work.

Justine Gantier’s access to the legal system to defend her reputation and protect her (childfree) future was not simple.  She needed to have reasonable knowledge about how this option could work. She needed to fit the profile that courts and communities supported:  women in stable, ongoing, consensual relationships that were feasibly headed towards marriage rather than women who kissed different men every weekend or women who were victims of sexual violence.  She needed to have a network that she could mobilize to produce witnesses who would speak favorably to her situation. She needed to be willing to tell her story to men she did not know who were far higher in status.  She needed to submit to an examination of her body by a surgeon and midwife to confirm her claim of pregnancy. She might have been hoping to settle out of court quickly after her legal petition with the help of formal and informal mediators like notaries, clergy, neighbors, employers, and kin. The life experience that led her to court likely involved a lot of upset for her even if she “won” the case – disappointment, anxiety, uncertainty, fear along perhaps with a bit of relief when an agreement was reached.

But for her, like women across premodern Europe, law offered litigating women access to gendered justice in a variety of important forms for a wide range of ordinary life challenges.


Julie Hardwick works at the intersections of legal, economic, social and family/gender history in early modern France. She is the John E. Green Regents Professor of History at the University of Texas at Austin.


[1]  It remains unclear how or why nineteenth-century archivists decided to pull these particular kinds of women’s actions and classify them as a separate category.  Prof. Tom Hamilton recently suggested to me that that it might have been a misguided effort to declutter the court records and remove actions that they did not consider part of the usual court dossier.

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