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Note that this entry is a product of its time, and should be read in that
context. Footnotes have been omitted to make the text easier to follow. Also
note that scanning and editing may have introduced a few errors into the
transcription. Because of these errors, if you need to use this information in
an academic paper, please consult the original, available at many libraries.
This continues the entry under "Women" in the 1911 Encyclopedia Britannica.
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Northern Europe Law
A few of the more interesting matters in which the old common and statute law of
England placed women in a special position may be noticed. A woman was exempt
from legal duties more particularly attaching to men and not performable by
deputy. She could apparently originally not hold a proper feud, ie. one of which
the tenure was by military service. The same principle appears in the rule that
she could not be endowed of a castle maintained for the defence of the realm and
not for the private use of the owner. She could receive homage, but not render
it in the form used by men, and she was privileged from suit and service at the
sheriff's tourn. She was not sworn to the law by the oath of allegiance in the
leet or tourn, and so could not be outlawed, but was said to be waived. She
could be constable, either of a castle or a vill, but not sheriff, unless in the
one case of Westmorland, an hereditary office, exercised in person. in the 17th
century by the famous Anne, countess of Dorset, Pembroke and Montgomery. In
certain cases a woman could transmit rights which she could not enjoy. On such a
power of transmission, as Sir H. Maine shows, rested the claim of Edward III. to
the crown of France. The claim through a woman was not a breach of the French
constitutional law, which rejected the claim of a woman. The jealousy of a
woman's political influence is strikingly shown by the case of Alice Perrers,
the mistress of Edward III. She was accused of breaking an ordinance by which
women had been forbidden to do business for hire and by way of maintenance in
the king's court.
By Magna Carta a woman could not accuse a man of murder except of that of her
husband. This disability no doubt arose from the fact that in trial by battle
she naturally did not appear in person but by a champion. She was not admitted
as a witness to prove the Status of a man on the question arising whether he
were free or a villein. She could not appoint a testamentary guardian, and could
only be a guardian even of her own children to a limited extent. Her will was
revoked by marriage, that of a man only by marriage and the subsequent birth of
a child. By 31 Hen. VI. c. 9 the king's writ out of chancery was granted to a
woman alleging that she had become bound by an obligation through force or
fraud. By 39 Hen. VI. C. 2 a woman might have livery of land as heiress at
fourteen. Benefit of clergy was first allowed to women partially by 21 Jac. I. c
6, fully by 3 Will. & M. c 9 and 4 and 5 Will. & M. c. 24. Public whipping was
not abolished until 57 Geo. III. c. 75, whipping in all cases until I Geo. IV.
c. 57. Burning was the punishment specially appropriated to' women convicted of
treason or witchcraft. A case of sentence to execution by burning for petit
treason occurred as lately as 1784. In some old statutes very curious sumptuary
regulations as to women's dress occur. By the sumptuary laws of Edward III. in
1363 (37 Edw. III, cc. 8-14) women were in general to be dressed according to
the position of their fathers or husbands. Wives and daughters of servants were
not to wear veils above twelve pence in value. Handicraftsmen's and yeomen's wives
were not to wear silk veils. The use of fur was confined to the ladies of
knights with a rental above 200 marks a year. Careful observance of difference
of rank in the dress was also inculcated by 3 Edw IV. c. 5. The wife or daughter
of a knight was not to wear cloth of gold or sable fur, of a knight-bachelor not
velvet, of an esquire or gentleman not velvet, satin or ermine, of a labourer
not clothes beyond a certain price or a girdle garnished with silver. By 22 Edw.
IV. C, I, cloth of gold and purple silk were confined to women of the royal
family. It is worthy of notice that at the times of passing these sumptuary laws
the trade interests of women were protected by the legislature. By 37 Edw. III.
c. 6, handicraftsmen were to use only one mystery, but women might work as they
had been accustomed. 3 Edw.IV. c. 3
forbade importation of silk and lace by Lombards and other alien strangers,
imagining to destroy the craft of the silk spinsters and all such virtuous
occupations for women. In some cases the wives and daughters of tradesmen were
allowed to assist in the trades of their husbands and fathers; see, for
instance, the act concerning tanners, I Jac. I. c. 22. Some trading
corporations, such as the East India Company, recognized no distinction of sex
in their members. The disabilities imposed on women by substantive law are
sometimes traceable in the early law of procedure. For instance, by the Statute
of Essoins (12 Edw. II. St. 2), essoin de servitio regis did not lie where the
party was a woman; that is, a woman (with a few exceptions) could not excuse her
absence from court by alleging that she was on public duty. The influence of the
church is very clearly traceable in some of the earlier criminal legislation.
Thus by 13 Edw. I. st. 1, c. 34, it was punishable with three years'
imprisonment to carry away a nun, even with her Consent. The Six Articles, 31
Hen. VIII. c. 14, forbade marriage and concubinage of priests and sanctioned
vows of chastity by women.
In Scotland, as early as Regiam Majestatem (12th century) women were the object
of special legal regulation. In that work the mercheta mulieris (probably a tax
paid to the lord on the marriage of his tenant's daughter) was fixed at a sum
differing according to the rank of the woman. Numerous ancient laws dealt with
trade and sumptuary matters. By the Leges Quatuor Burgorum female brewsters
making bad ale were to forfeit eightpence and be put on the cucking-stool, and
were to set an ale-wand outside their houses under a penalty of fourpence. The
same laws also provided that a married woman committing a trespass without her
husband's knowledge might be chastised like a child under age. The St atuta
Gilde of the I3th century enacted that a married woman might not buy wool in the
streets or buy more than a limited amount of oats. The same code also ensured a
provision for the daughter of one of the gild-brethren unable to provide for
herself through poverty, either by marrying her or putting her in a convent. By
the act 1429, c. 9, wives were to be arrayed after the estate of their husbands.
By 1457, c. 13, no woman was to go to church with her face covered so that she
could not be known. 158f, c. 18, was conceived in a more liberal spirit, and
allowed women to wear any head-dress to which they had been accustomed. 162 I,
c. 23, permitted servants to wear their mistress's cast-off clothes. 1681, c.
80, contained the remarkable provision that not more than two changes of raiment
were to be made by a bride at her wedding. In its more modern aspect the law is
in most respects similar to that of England.
Next page > Husband and Wife
More of this article: General | Mosaic Law,
Ancient India | Roman Law | Christian Law
| Northern Europe Law | English Law
| Husband and Wife | Criminal Law
| Education | Professions
| Nursing and Medicine | Government and Politics
| Women Practicing Law | Women as Clergy
| Women's Rights Agitation | Woman Suffrage
| Woman Suffrage 1865-1906 | Woman Suffrage 1906-1910
| Woman Suffrage Societies | Woman Suffrage New Zealand and Australia
| Woman Suffrage America | Woman Suffrage Europe
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Part of a collection of etexts on women's
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