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Published online by Cambridge University Press: 21 March 2016
Of all the crown courts in sixteenth- and seventeenth-century Ireland, the chancery court has received the most favourable judgement from historians. Through its exercise of equity, the chancery court has been perceived as a mediator between English common law and Gaelic customary law. Equity provided the chancellor with the possibility of considering a judgement from the point of view of ‘reason and conscience’, to ensure what W. J. Jones has called the ‘protection of the innocent from the ruthless specifications’ of common law courts. In Irish terms this meant that the chancellor was prepared to consider Gaelic forms of partible inheritance from the standpoint of equity. In Gaelic society land descended according to a variety of customs which, it was argued in chancery, had been observed ‘time out of mind’ in a particular family or region and therefore in fairness or equity might be upheld even if they were contrary to common law practice.
This benign view of the Irish chancery court’s attitude to Gaelic customary law has much in common with the attitude of the English chancery court towards women. Historians of early modern England have portrayed chancery as a judicial forum which provided women with legal redress which would have been denied them at common law. Female litigants in the sixteenth-century English chancery court included single, widowed and married women. Under common law, only single women and widows were entitled to legal representation in their own right. Married women, as femmes couvertes, were legally merged with their husbands on marriage, and so could not bring cases in their own name at common law. In the English chancery court, however, a small number of married women were permitted at the discretion of the chancellor to sue on their own without their husbands. In the course of the sixteenth century the English chancery also contributed to the extension of the legal franchise of women.
1 Jones, W.J., The Elizabethan court of chancery (Oxford, 1967), p. 423Google Scholar.
2 Nicholls, K. W., ‘Some documents on Irish law and custom in the sixteenth century’ in Anal. Hib., no. 6 (1970), pp 103-29Google Scholar. Partible inheritance was not formally declared illegal until 1606. See Nicholls, K. W., ‘Irishwomen and property in sixteenth-century Ireland’ in MacCurtain, Margaret and O’Dowd, Mary (eds), Women in early modern Ireland (Edinburgh, 1991), p. 17Google Scholar.
3 See Cioni, Maria L., ‘The Elizabethan chancery and women’s rights’ in Guth, Delloyd J. and McKenna, John W. (eds), Tudor rule and revolution: essays for G. R. Elton from his American friends (New York, 1982), pp 159-83Google Scholar; eadem, , Women and law in Elizabethan England, with particular reference to the court of chancery (New York & London, 1985)Google Scholar; Erickson, Amy Louise, ‘Common law versus common practice: the use of marriage settlements in early modern England’ in Econ. Hist. Rev., 2nd ser., xliii (1990), pp 21–39CrossRefGoogle Scholar; eadem, , Women and property in early modern England (London, 1993), pp 114–28Google Scholar; Stretton, Tim, Women waging law in Elizabethan England (Cambridge, 1998), pp 25–9CrossRefGoogle Scholar.
4 Cioni, ‘Elizabethan chancery & women’s rights’.
5 I would like to thank the staff of the National Archives for facilitating access to these records.
6 See Nicholls, ‘Some documents on Irish law & custom in the sixteenth century’ for a brief introduction to the chancery records.
7 Jones, Elizabethan court of chancery, pp 14–15, 177–336, provides a detailed description of procedure in the English chancery court in the sixteenth century.
8 N.A.L, RC 6/1/12. See also entry books of recognisances to the Irish chancery court (B.L., Add. MSS 19837–42). Dr Jane Ohlmeyer is currently directing a pilot project to examine the links between the surviving records of the court.
9 There is a typescript calendar by Kenneth Nicholls to the documents in the reading room of the National Archives. For the purpose of this study, the original documents for all cases listed in the calendar as having a woman litigant or dealing with a dispute involving a woman have been examined.
10 Joint cases were also common in the Elizabethan court of requests, although Tim Stretton has concluded that few were joint in name only and in most cases the women had an active involvement in the legal dispute: see Stretton, Women waging law in Elizabethan England, pp 135–9.
11 N.A.I., Chancery Pleadings (henceforth C.P.). Box A/108.
12 Ibid., Box A/15.
13 Ibid., Box O/142.
14 Ibid., Box A/192.
15 Ibid., Box A/9. See also Stretton, Women waging law in Elizabethan England, pp 139–43, for similar delays in cases brought by women to the English court of requests.
16 N.A.I., C.P., Box A/78; ibid., Box G/10; ibid., Box G/136; ibid., Box M/74; ibid., Box N/94.
17 Ibid., Box M/74.
18 See, for example, ibid., Box 1/62; ibid., Box J/143.
19 Erickson, Women & property in early modern England, p. 86.
20 Jones, Elizabethan chancery, p. 324.
21 N.A.I., C.P., BoxM/172.
22 Ibid., Box C/23.
23 Stretton, Women waging law in Elizabethan England, pp 76–9.
24 Jones, Elizabethan chancery, p. 324n.
25 Erickson, ‘Common law versus common practice’, pp 21–39; eadem, Women & property in early modern England, pp 114–22; Stretton, Women waging law in Elizabethan England, pp 38–41,105.
26 N.A.L, C.P., Box B/264; ibid., Box A/40. See also ibid., Box A/342; ibid., Box B/131; ibid., Box M/72.
27 Ibid., Box 0/139.
28 As one woman put it, she was a ‘poor fatherless widow’ (ibid., Box B/195).
29 Ibid., Box K/130. See also ibid., Box E/42, for another case involving an ‘unlettered’ widow.
30 Ibid., Box 1/220.
31 Ibid., Box C/46.
32 Jones, Elizabethan chancery, pp 400–17.
33 N.A.L, C.P., Box 1/245.
34 Ibid., Box B/321.
35 Ibid., Box J/109.
36 Ibid., Box C/96.
37 Ibid., Box O/130.
38 In only two of the bills examined was reference made to the litigants pleading in forma pauperis, and in one of these it was alleged that the claimant was worth ‘at least £22’ (ibid., Box AA/152). See also ibid., Box C/210.
39 Ibid., Box M/72.
40 Ibid., Box G/58
41 Ibid., Box C/141.
42 This analysis is based on an examination of 259 bills in N.A.I., Boxes A and G
43 N.A.L, C.P., Box C/92.
44 Ibid., Box H/4.
45 In seven other bills plaintiffs requested that the chancellor issue a corpus cum causa to have a case which was being held in another court transferred to his court. In addition, two plaintiffs asked the chancellor to order a sheriff to implement legal decisions.
46 N.A.L, C.P., Box H/82.
47 Ibid., Box E/97.
48 See Cioni, ‘Elizabethan chancery & women’s rights’, pp 160–61, for a similar use of the injunction by women in the English chancery court.
49 N.A.L, C.P., Box N/24.
50 Ibid., BoxK/271.
51 Ibid., Box M/138.
52 Jones, Elizabethan chancery, pp 10–16.
53 Ibid.
54 Richardson, H. G. and Sayles, G. O., The Irish parliament in the middle ages (Philadelphia, 1952), pp 159, 174–5,214-21CrossRefGoogle Scholar. See also McGlynn, Margaret, ‘Equitable jurisdiction in the Irish chancery court’ (unpublished M.Phil, thesis, University College Dublin, 1990)Google Scholar.
55 See, for example, Stat. Ire., Hen. VI, pp 699–705,715-19; Stat. Ire., 1–12 Edw. IV, pp 686–9; Stat. Ire., 12–22 Edw. IV, pp 89–91,165-9,357-63.
56 Ellis, S.G., Reform and revival: English government in Ireland, 1470–1534 (Woodbridge, 1986), pp 143–64Google Scholar.
57 The transition from the use of dower to that of jointure has not as yet been well documented in Ireland, but for England see Spring, Eileen, Law, land and family: aristocratic inheritance in England, 1300–1800 (Chapel Hill & London, 1993), pp 39–65Google Scholar.
58 See Bean, J.M.W., The decline of English feudalism, 1215–1540 (Manchester, 1968), pp 118–79Google Scholar, for the popularity of this type of settlement in fourteenth- and fifteenth-century England.
59 Ibid., pp 162–77.
60 On the impact of the Statute of Uses in England see Bonfield, Lloyd, Marriage settlements, 1601–1740 (Cambridge, 1983), pp 1–45CrossRefGoogle Scholar; Spring, Law, land & family. On the development of the concept of the separate estate of the married woman see Cioni, ‘Elizabethan chancery & women’s rights’; eadem, Women & law in Elizabethan England, pp 132–73.
61 Wills and deeds cited in inquisitions (N.A.I., RC 5, RC 9). Most of the single women presenting bills in the Irish chancery on their own were concerned with the refusal of their fathers’ heirs or of the feoffees to carry out their fathers’ wishes in respect to their marriage portions.
62 For Elizabeth Butler, first duchess of Ormond’s defence of her separate estate see Field Day anthology of Irish writing, iv (forthcoming).
63 Cioni, Women & law in Elizabethan England, pp 175–6.
64 Ibid.
65 The chancellor also heard cases concerning other customs, particularly those enforced in Irish towns, some of which enabled a man to bequeath purchased land to women. See Nicholls, ‘Some documents on Irish law & custom in the sixteenth century’; see also N.A.I., C.P., Box B/112; ibid., Box B/296; ibid., Box C/72; ibid., Box G/141; ibid., Box H/4; ibid., Box 1/74; ibid., Box 1/136; ibid., Box R/122.
66 Nicholls, ‘Some documents on Irish law & custom in the sixteenth century’, p. 108.
67 N.A.I., C.P., Box U/35.
68 Gráinne O’Malley’s petition to Elizabeth I, 1596 (Cal. S.P. Ire., 1592–6, pp 133–6).
69 See Walsh, Paul, The will and family of Hugh O Neill, earl of Tyrone (Dublin, 1930), pp 16–46Google Scholar, for O’Neill’s marriages and those of his sons and daughters.
70 N.A.I., C.P., Box AA/58
71 Nicholls, ‘Irishwomen & property in sixteenth-century Ireland’, p. 22.
72 N.A.L, C.P., Box B/231. This bill is undated, but internal evidence suggests a date in the first years of the reign of James I. O’Doherty rebelled against the English administration in 1608.
73 The evidence suggests that before the outlawing of Gaelic partible inheritance in 1606 the chancellor was more open to considering the equity of Gaelic customs.
74 Richard Stanihurst, Rowland White and Sir John Davies were among those who noted the discrepancy in the laws relating to women. See O’Dowd, Mary, ‘Women and colonisation: the Irish experience, 1550–1650’ in Brotherstone, Terry, Simonton, Debbi and Walsh, Oonagh (eds), Gendering Scottish history: an international approachGoogle Scholar (forthcoming).
75 Spring, Law, land & family; Bonfield, Marriage settlements, 1601–1740, pp 1–45.
