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INTRODUCTION
Published online by Cambridge University Press: 13 October 2008
Extract
The theoretical restrictions and obligations that marriage imposed on wives and husbands throughout most of English history appear relatively clear and unequivocal. Prior to the modern era, husbands enjoyed a monopoly over the management of marital property and an obligation to maintain their wives at a level befitting the couple's social standing and material resources. Wives, meanwhile, could not independently possess and control property, and, without the permission of their husbands, they could not buy or sell goods, enter into contracts, make wills, or be parties to law suits. What is less straightforward, however, is the way individual wives and husbands accepted or resisted these restrictions and obligations in daily life.
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References
1 There is no obvious label for these cases. One possibility is ‘spousal litigation’, but this might be confused with the spousals preceding marriage; instead, this volume adopts the term ‘marital litigation’ as convenient shorthand.
2 See the Spragin and Garth cases, numbers 11 and 14 in this volume.
3 Wycherley, William, The Plain-Dealer, a Comedy as it is Acted at the Theatre Royal (London, 1677), p. 91Google Scholar.
4 Divorce by private act of Parliament, a cumbersome and expensive method usually restricted to the wealthy, only became an option after 1670; see Phillips, Roderick, Putting Asunder: A History of Divorce in Western Society (Cambridge, 1988), p. 231Google Scholar.
5 Ibid., pp. 71–77.
6 Stretton, Tim, ‘Marriage, separation and the common law in England, 1540–1660’, in Berry, Helen and Foyster, Elizabeth, eds., The Family in Early Modern England (Cambridge, 2007)Google Scholar.
7 Commentators have attempted to date the foundation of the court as early as 1348, but the earliest entry in the surviving court books was made in 1493 and modern historians agree that the court took on a recognizable institutional form during the reigns of Henry VII and Henry VIII: see Baker, Oxford History of the Laws, p. 203; Leadam, Select Cases, ix–xvi; Pollard, A.F., ‘The growth of the Court of Requests’, The English Historical Review, 56 (1941), pp. 300–303CrossRefGoogle Scholar.
8 The title ‘Master of Requests’ appears not to have been used before 1541, and the court itself had a number of different names: Baker, Oxford History of the Laws, p. 205; Stretton, Women Waging Law, p. 71.
9 Early Star Chamber proceedings are endorsed ‘comparuit apud Westmonasterium’, while early Requests proceedings are marked ‘comparuit coram Consilio’.
10 Robinson, Richard, A Briefe Collection of the Queenes Majesties Most High and Most Honourable Courtes of Recordes, ed. Rickard, R.L., Camden Miscellany, vol. 20 (London, 1953), p. 24Google Scholar. The chronicler Hall suggested that this move took place in 8 Henry VIII (1516 or 1517), although Sir Julius Caesar believed that it happened in 1496: Leadam, Select Cases, xii. The White Hall also housed the Court of Wards and Liveries: William Lambarde, Archion, Or a Commentary Upon the High Courts of Justice in England (London, 1635), p. 228; Stow's Survey of London (London, 1956), p. 418.
11 Leadam, Select Cases, xiii.
12 Thompson Cooper, ‘Haddon, Walter’, in DNB.
13 HMC Salisbury, vol. 18, pp. 324–325.
14 Masters in ordinary received an annuity, £100 per annum under Elizabeth, while masters extraordinary received little except for an expectation that they might later become masters in ordinary.
15 The statute legitimating Star Chamber is 3 HVII cap. 2.
16 Lambarde, Archion, pp. 225–228; Caesar, The Ancient State.
17 Coke, Edward, The Fourth Part of the Institutes of the Laws of England (London, 1817), pp. 96–97Google Scholar.
18 Caesar, The Ancient State, ix–xi, xiv–xvi.
19 Stretton, Women Waging Law, pp. 72–73, 148–149; Coke, Fourth Institutes, p. 97.
20 Spence, George, Equitable Jurisdictions in Chancery (London, 1846), p. 351Google Scholar.
21 These figures provide only a crude measure of levels of activity, as they do not distinguish cases mentioned more than once or take account of changes in court procedure or scribal practice, but the trajectory of change seems unmistakable.
22 Kiralfy, A.K.R., ed., Potter's Historical Introduction to English Law and its Institutions (fourth edition, London, 1958), p. 169Google Scholar.
23 In 1620, Charles bid the Lord Privy Seal, the Earl of Worcester, to sit in the Court of Requests, in Camden's words ‘as if it were undignified that such a magistrate not have a place in the judiciary’ (quasi indignum esset, ut tantus magistratus Judicaturæ locum non haberet): Camden, William, Epistolæ, ed. Smith, Thomas (London, 1691)Google Scholar, Sig. Mmm. See also Elton, G.R., The Tudor Revolution in Government: administrative changes in the reign of Henry VIII (Cambridge, 1969), pp. 134–135.Google Scholar
24 The final entries in the court's books date from 1643 and, although the office of Master of Requests persisted during the interregnum and beyond, unlike Chancery, Requests was not resuscitated after Charles II's Restoration: see D.A. Knox, ‘The Court of Requests in the reign of Edward VI, 1547–1553’, unpublished PhD thesis, University of Cambridge, 1974, pp. 6–9.
25 Elton, G.R., ed., The Tudor Constitution: documents and commentary (second edition, Cambridge, 1982), pp. 187–190Google Scholar. For procedure in Chancery, see Jones, W.J., The Elizabethan Chancery (Oxford, 1967)Google Scholar.
26 ‘We have given the power’.
27 See, for example, 12. Anne Lloyd v. Humfrey Lloyd and John Bradshaw, in this volume.
28 Paper depositions bear original signatures or marks on each page of a deponent's answers, while parchment depositions are usually signed or marked only at the end (and the signature or mark is often a copy rather than an original).
29 See, for example, 12. Anne Lloyd v. Humfrey Lloyd and John Bradshaw, in this volume.
30 REQ 1/107, p. 881. The ‘fleet’ refers to the prison off Farringdon Road, on the east bank of the River Fleet.
31 REQ 1/107, p. 971.
32 REQ 1/65 (unpaginated), 4 May; REQ 1/18, pp. 123, 183; REQ 1/35A, fo. 54; REQ 1/20, p. 773; REQ 1/17, p. 320; REQ 1/18, p. 566.
33 These thresholds remained constant throughout the period, despite the ravages of inflation, but the masters did not diligently enforce them. See REQ 1/65, 4 May (Greville case).
34 A fourth attorney practised briefly towards the end of Elizabeth's reign: see HMC Salisbury, vol. 16, pp. 55–56; REQ 1/19, p. 707. For an example of the special knowledge that Requests attorneys possessed, see REQ 1/17, p. 8.
35 Elton, Tudor Constitution, pp. 194–195.
36 CSPD 1598–1601, p. 326; CSPD Addenda 1566–1579, p. 447. A number of influential employers or patrons sought to have cases in Requests involving their servants or clients dealt with expeditiously: see ibid., pp. 454, 501, 540–541; CSPD Addenda 1580–1625, p. 45.
37 CSPD Addenda 1566–1579, pp. 208, 509–510.
38 Baker, J.H., The Common Law Tradition: Lawyers, Books and the Law (London and Rio Grande, 2000), p. 84Google Scholar.
39 According to Lambarde, serjeants had to represent litigants admitted in forma pauperis. In his words, ‘And the Kings sergeant to be sworne to give councell without fee to such as shal be accepted for poore, upon paine to be discharged of their offices’ (Lambarde, Archion, p. 173).
40 REQ 1/17, ignoring two references to ‘attorney’ without identification, one to ‘Mr [Blank]’, and one reference to Christopher Coates, who is expressly identified as one of the attorneys of Requests, but including John Warter and Thomas Cryppes, both described as solicitors ‘in this court’: REQ 1/17, pp. 17, 18, 22, 48, 57. Senior figures appeared as counsel in the court in other decades: for example, Solicitor-General Sir Edward Littleton appeared on behalf of a complainant in Easter Term 1637: REQ 1/35A, fo. 54.
41 The eight are Blake (ten), Glanville (eight), Winter (six), Scott (six), Tows (four), Thavesbie (four), Lewes (four), and Foster (four). In other periods, it is possible to find individuals, such as Thomas Caesar, appearing again and again in Requests, but these men were the exceptions rather than the norm. For the make-up of the Requests bar during the early Tudor period, see Baker, Oxford History of the Laws, p. 206.
42 On the problems associated with using court records as evidence, see Stretton, Tim, ‘Social historians and the records of litigation’, in Sogner, Sølvi, ed., Fact, Fiction and Forensic Evidence (Oslo, 1997), pp. 15–34Google Scholar; Bailey, Joanne, ‘Voices in court: lawyers' or litigants'?’, Historical Research 74 (2001), pp. 392–408CrossRefGoogle Scholar.
43 In a draft book from 1641, a scribe noted ‘this order is not in the fayre booke’: REQ 1/96, p. 163.
44 These books contain memoranda of the payment of fines and monies with original signatures or marks of litigants and witnesses, and original letters relating to cases, which do not appear in the ‘fayre’ books.
45 REQ 1/7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35A, 35B, 36A, 36B, 37, 38, 39, 40, 55, 56, 58, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 82, 83, 87, 88, 90, 92A, 92B, 93, 94, 95, 96, 97. REQ 1/12 is currently unavailable for consultation because of its poor state of repair.
46 The published calendars are: List of Proceedings in the Court of Requests preserved in the Public Record Office, List and Index Society vol. 21 (London, 1906, reprinted New York, 1963); Proceedings in the Court of Requests, List and Index Society Supplement no. 7, (4 vols, New York, 1964–1966).
47 It is possible that pleadings from the Dunford case, no. 20 in this volume (and the Searle, Tresham, and Tuttle cases listed in Appendix 1), may survive within these boxes.
48 Two cases are countersuits in which defendants became complainants. The archive contains evidence of a thirty-fourth case, but it is an undated petition addressed to the Privy Council and carries no endorsements by Requests masters or clerks: Johan Morgan als Andrewes v. John Andrewes, REQ 2/166/129.
49 Documents from the longest case in this volume, 11. Joan Spragin v. Martin Spragin et al., contain over 19,000 words of text.
50 The only materials not to be included are entries from affidavit and witness books, and draft orders and decrees in instances where the final copies have survived.
51 REQ 1/12 covers the years 1568 and 1569 but, as mentioned above, it is in such poor condition that it is currently unavailable for consultation. The List and Index Society calendar that covers these years (see n. 46 above) contains little information, compared with the manuscript calendars for later periods, about the marital status of litigants or the subjects of actions.
52 It is possible that these numbers are artificially low due to the absence of calendars of pleadings for these years, but the lack of references in court books is nevertheless striking.
53 For details of Caesar's career, see Hill, L.M., Bench and Bureacracy: The Public Career of Sir Julius Caesar, 1580–1636 (Stanford, CA, 1988)Google Scholar.
54 Caesar, The Ancient State, xxiii. I am indebted to Charles Donohue for his observations about marital litigation in the Parlement de Paris.
55 REQ 1/23, p. 65; and see p. 218 below.
56 SP 12/183/66. In contrast to Caesar, Seckford (or Sackford) was a common lawyer, not a civilian: see Appendix 2; Stretton, Women Waging Law, pp. 146–147; and the Puttenham case, no. 6 in this volume.
57 Anthony N. Shaw, ‘Tregonwell, Sir John’, in Oxford DNB; C.S. Knighton, ‘Petre, Sir William’, in Oxford DNB; D.F. Corcos, ‘Petre, Sir William’, in History of Parliament 1509–1558.
58 Norman L. Jones, ‘May, William’, in Oxford DNB.
59 Powell, C.L., English Domestic Relations, 1487–1653 (New York, NY, 1917), p. 63Google Scholar.
60 Susan Doran and Jonathan Woolfson, ‘Wilson, Thomas’, in Oxford DNB; P.W. Hasler, ‘Wilson, Thomas’, in History of Parliament 1558–1603.
61 CSPD 1547–1580, p. 473. See also CSPD 1591–1594, pp. 281–282.
62 Leadam, Select Cases, and the entry in the DNB suggest that he was sworn master in 1598, but he does not appear in the court books until 1603.
63 W.J. Jones, ‘Dunn, Daniel’, in History of Parliament 1558–1603.
64 Evidence in the court books suggests that James appointed Dr Daniel Dunn in 1603, but Leadam, Select Cases, and the author of the entry in the DNB disagree (see n. 62 above).
65 For details of the conflict between Chancery and the common law, see Baker, J.H., ‘The common lawyers and the Chancery: 1616’, The Irish Jurist, 4 (1969), pp. 368–392Google Scholar.
66 Guildhall MS 213, pp. 71–72. A document in the Alford papers dating from the early 1620s, entitled ‘Heades to be Considered of concerning the Chancerye’, suggested that ‘ther be no more masters of the Chancery but six wherof three of the temporall law, 3 of the Civill law’; see Wallace Notestein et al., eds, Commons Debates 1621 (New Haven, CT, 1935), vol. 7, p. 587.
67 The other civilians were Arthur Ducke, sworn master in ordinary at Oxford on 31 August 1643, and Edmund Peirce, sworn master extraordinary 1 December 1644: Privy Council Registers Preserved in the Public Record Office: Reproduced in Facsimile, 12 vols (London, 1967–1968), vol. 12, pp. 215, 231.
68 REQ 1/61, 23 January.
69 REQ 1/61, 13 June.
70 REQ 1/68, pp. 180, 186; REQ 1/72, p. 87.
71 REQ 1/28, p. 528.
72 REQ 1/61, 18 June, 21 June, 27 June, 26 November, 28 November; REQ 1/64, 18 November.
73 SP 16/403, pp. 59, 60, 215.
74 CSPD 1636/7, p. 272; CSPD 1638/9, pp. 612–613; CSPD Addenda 1625–49, p. 618; SP 539/9. Dame Mary did, however, petition the House of Lords, the Lord Keeper, the Lord Privy Seal, the Archbishop of Canterbury, and King Charles in her own name: CSPD 1637/8, pp. 436, 575–576; SP 16/280, p. 53; CSPD 1638/9, pp. 612–613; CSPD 1640, p. 605.