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The Waning of Dower Right: the Widow in the Context of a Transforming Society” (MA Thesis, University of Houston, 2008), Beginning at 134

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The Waning of Dower Right: the Widow in the Context of a Transforming Society” (MA Thesis, University of Houston, 2008), Beginning at 134 PROPERTY, POWER AND PATRIARCHY: THE DECLINE OF WOMEN’S PROPERTY RIGHT IN ENGLAND AFTER THE BLACK DEATH ______________ A Dissertation Presented to The Faculty of the Department of History University of Houston ________________ In Partial Fulfillment Of the Requirements for the Degree of Doctor of Philosophy ______________ By Michael J. Phifer May, 2014 PROPERTY, POWER AND PATRIARCHY: THE DECLINE OF WOMEN’S PROPERTY RIGHT IN ENGLAND AFTER THE BLACK DEATH ______________ An Abstract of a Dissertation Presented to The Faculty of the Department of History University of Houston ________________ In Partial Fulfillment Of the Requirements for the Degree of Doctor of Philosophy ______________ By Michael J. Phifer May, 2014 ABSTRACT The social and governmental response to the Black Death in England undermined the social strength of women’s property rights and created a late-medieval patriarchal structure, within both the family and society, qualitatively different from that of the earlier fourteenth century. Women’s property rights developed at common law along with men’s and enjoyed the same robust legal protection. From the late twelfth century through the first half of the fourteenth century, the legal and social strength of women’s property rights increased. The common law definition of dower and of legitimate marriage expanded throughout the period. Developments, particularly in the later thirteenth century, that enhanced the tenant’s control of property increased the strength the property rights of both men and women. After the Black Death the acceptance of the use – the medieval antecedent of the modern trust – as part of a broader attempt to strengthen governance at all levels of society, enabled the circumvention and ultimately avoidance of women’s property rights and concentrated control of familial property in the hands of the patriarch. The use, either on its own or together with other mechanisms, allowed husbands to circumvent and then entirely avoid dower right, which was the first of women’s property rights affected by the change. Statistical analysis of litigation from the court of common pleas documents the substantial diminution of dower litigation and thus dower right through the mid-fifteenth century. Social acceptance, by both men and women throughout the socio- economic strata of society, of the benefits of concentrated patriarchal control of property reinforced the trend and reduced the social strength of women’s property right. iii ACKNOWLEDGEMENTS I appreciate deeply the time, effort and consideration that all of my committee members devoted to this project. Special thanks and enduring gratitude are, of course, due to Robert Palmer, without whose unwavering support, patience, guidance and diligence none of this would have been possible. Working closely with him has been both an honor and a joy, and I look forward to many years of continued association. I have also benefited from the friendship, support and suggestions of a wonderful group of colleagues whom I have the fortune of having found in the program. I owe also tremendous gratitude to my good wife who has endured the pains and deprivations that such endeavors generate. For her support I am forever indebted and grateful. iv TABLE OF CONTENTS List of Charts.……………………………………………………………………………vi Chapter 1: Introduction...…………………………………………………………………1 Chapter 2: Historiography.………………………………………………………………16 Chapter 3: Socio-Legal Development of Women’s Property Rights.…………………...51 Chapter 4: Women’s Property Right to the Mid-Fourteenth Century...……….…….….80 Chapter 5: Securing Dower...…………………………………………….……….……111 Chapter 6: Dower after the Black Death..…………………………….…….………….160 Chapter 7: The Social Renovation of Late Medieval Patriarchy.…………….….…….205 Chapter 8: Women’s Property Right in the Century after the Black Death…..……….247 Chapter 9: Conclusion…………………………………………………………………285 Appendix……………………………………………………………………………….298 Bibliography….…………………………………………………..…………………….312 v LIST OF CHARTS 4.a Joint Feoffments of Husband and Wife in the Close Rolls…………………………101 6.a Dower Litigation Volume in Common Pleas.………………………………………167 6.b Common Pleas Dower Litigant Marital Status...…………………………………...178 8.a Common Pleas Property Litigation Volume...…………………………….…….….256 8.b Common Pleas Property Litigation Trends..………………………….……….……256 8.c Claimants in Common Pleas Litigation Involving Women……….…….………….267 8.d Tenants in Common Pleas Litigation Involving Women..….…………….….…….268 8.e Common Pleas Final Concords – Grantees.………………………………..……….280 8.f Common Pleas Final Concords – Grantors…………………………………………281 vi 1. Introduction The governmental and social reaction to the Black Death fundamentally weakened women’s property rights through the mid-fifteenth century. In response to the demographic crisis, the government of Edward III implemented legal changes designed to strengthen governance throughout society. Part of that objective was to empower the husband within the family by allowing him greater control of his property through which he could better govern the members of his family. Men, with cooperation from women, used that enhanced authority first to circumvent dower right, the widow’s claim to a portion of her late husband’s property and a fundamental property right of women. Society more broadly responded to the strengthening of governance by developing a more stratified social hierarchy – a hierarchy that was particularly patriarchal but within which women individually found new status. Within the family the husband was certainly dominant. His wife, although subordinate to him, benefited from his empowerment. She was, by virtue of his new status and her relationship to him, herself empowered by his authority. Children became increasingly subordinate to their parents, as servants became to their employers. The new patriarchy made women’s control of property appear increasingly improper and inconsistent with the authority and power of the husband. From the last quarter of the fourteenth century through the first half of the fifteenth century, the trend that had reduced the social importance of dower right, reinforced by social attitudes that promoted the subordination of women, children and servants to patriarchal authority, similarly reduced women’s property rights in general. The law is a social construct that not only reflects social expectations but also provides a framework in which individuals act. Legal change occurred in a broader social context, just as the society had a distinctive law. The courts, after all, resolved fundamentally social disputes. 1 Laws could and certainly did affect behavior and influence choices, sometimes in the ways in which legislators intended and sometimes in ways that were entirely unforeseen. Even the most diligently crafted legislation was open to further interpretation. The cumulative social reaction to legislation – the way in which society used the law and the way in which the courts interpreted and enforced the letter of the law, often in response to social pressures – inevitably produced unexpected results. Different modern perspectives have generated different interpretations of those medieval legal developments. As he pulled together English legal history as a discipline at the beginning of the twentieth century, F.W. Maitland looked back at the early development of the common law from the vantage point of the reign of Edward I. Edward was, in Maitland’s estimation, a consummate legislator.1 Maitland had good reason to see the king in such a manner: Edward’s reign had produced some of the most influential legislation concerning the early common law. Because he was working backward from a defined end point, however, Maitland conceptualized all of the developments between 1176 and the later thirteenth century as a linear and incremental process that tended to reinforce the tenant’s control of land and to expand incrementally the common law’s jurisdiction. S.F.C. Milsom turned Maitland’s model upside down. Milsom set the early developments of the common law in their proper social context. The reforms of Henry II, he maintained, had been relatively limited and targeted measures to standardize lordly authority that inadvertently generated tremendous socio-legal change.2 If Maitland’s model was essentially a top-down approach to legal change in which the ‘legislator’ mostly achieved whatever he intended, Milsom’s was a bottom-up approach in which the efforts of individuals to use the law for their own diverse ends taken together in the aggregate shaped the law, often in 1 F.W. Maitland, The Constitutional History of England, (Cambridge: Cambridge University Press, 1919), 19. 2 S.F.C. Milsom, The Legal Framework of English Feudalism, (Cambridge: Cambridge University Press, 1976), 177-8. 2 ways radically different from the legislative intent. Those two fundamentally different models of change, however, are not mutually exclusive. Socio-legal change following the Black Death reflects a confluence of legislative intent and social motivations that combined to produce significant change in the intended direction but far beyond what had been envisioned.3 The law also influenced society as individuals worked within the framework that it established. Property rights at common law, therefore, played a crucial role in determining the ways in which people could control and use the land, and how they made often very complex provisions for family members. The principle of primogeniture clearly advantaged the eldest son and did so to the detriment of his brothers
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