Thu 29 October 2020 - 13:00-15:00
Alan Watson Seminar in Legal History: With Her Consent? Patriarchy, Property and Law in Early Modern Scotland - Rebecca Mason
One of the fundamental tenets of early modern patriarchal ideology centred on a woman’s incapacity to manage her property or participate in litigation without her husband’s guidance or support. Married women’s legal status and rights to property were heavily regulated in Scottish legal handbooks. Women were expected to receive their husbands’ consent before selling property or acting as litigants, and were forbidden from engaging in property transactions without their husbands’ knowledge or support. When a married woman appeared before the law, clerks would record that her husband had offered ‘his consent’ to her legal action. One particular legal matter, however, necessitated the wife’s consent. When a husband wished to sell or alienate jointly-held land, he was expected to receive his wife’s consent before the courts.
The statute of ratifications, established in 1482 under James III, required married women to independently assert before the courts that their husbands had not forcibly compelled them – either through violence or intimidation - to acquiesce ownership of their land. Ratifications are multi-faceted documents and there are questions over how to interpret these records. Do ratifications reveal married women’s considerable authority over land within marriage? Or do ratifications, in fact, reinforce women’s limited rights to property, given that their consent could potentially be given as a product of their husbands’ private coercion? Is it possible to assess whether or not married women’s consent was born of free will? Using original archival records of hundreds of ratifications submitted to burgh (town) courts across Scotland between 1600 and 1707, this lecture analyses married women’s legal authority when managing their property rights; considers the economic and social status of women participating in ratifications; and identifies the legal basis for married women’s consent to certain property arrangements before the courts. In doing so, it suggests that married women’s considerable input in their household property arrangements provided a significant number of women with legal authority that has been hitherto overlooked.
Dr Rebecca Mason is a historian of gender and law in early modern Scotland. She completed her PhD in 2019 at the University of Glasgow as part of an AHRC UK-wide project entitled ‘Women Negotiating the Boundaries of Justice: Britain and Ireland, 1100-1750’. After finishing her PhD she held an Economic History Society Postdoctoral Fellowship at the Institute of Historical Research in London. She is currently undertaking an ESRC Postdoctoral Fellowship in the School of Law at the University of Glasgow under the mentorship of Prof. Jane Mair. Her project investigates how women’s access to law and property in the past can inform understanding of women’s access to justice in Scotland today.
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