On 17th January 2023, Dr Rebecca Mason gave a paper to the Centre entitled: ‘Coercion or consent? Property and women’s legal agency in early modern Scotland’. Introduced to the in-person and online attendees by Professor Karin Bowie, Mason is a former University of Glasgow Centre for Gender History PhD student who is currently on a 9-month Research Officer post at the Scottish Parliament, advising on justice, equality and women’s rights. Mason’s PhD (2019) focused on the position of women in British and Irish justice systems from 1100-1750. In the proceeding years, Mason’s research has taken a more specifically Scottish focus through projects and roles examining women’s relationship to the law in contemporary and historical Scottish contexts, engaging with academics, policymakers and legal practitioners.
Mason began by laying out the rationale for her current research, referencing Elizabeth Ewan’s 1992 article ‘Scottish Portias: Women in the Courts in Mediaeval Scottish Towns’ as a key springboard for this paper and her research approach more broadly. Ewan’s work was the first to specifically explore the role of women in legal courts in Scotland. Highlighting that Ewan’s groundwork has yet to be built upon, Mason aims to reinvigorate Ewan’s legacy by further exploring women’s agency in the Scottish legal system.
Crucially, Ewan had raised important questions about the distinctiveness of women’s interactions with the Scottish legal system during this time. Therefore, a key argument of Mason’s paper was that women’s access to justice in early modern Scotland was a lot more fluid than has been previously recognised. Reading legal sources – often written by men – against the grain would allow Mason to gain insights into women’s experiences in the everyday milieu of the courts, rather than solely focusing on top-down legal doctrines. Mason suggested that in the complexity of individual cases, women’s interactions with the legal system were not as rigid as the doctrines and rules would have us believe.
An example demonstrating this point was given around the issue of ‘consent’ – technically required by married women to plead or defend a lawsuit. Using evidence from sources such as a lawyer’s handbook, Mason’s evidence suggested that the Court of Session appeared to be confused by issues around ‘consent’ on a number of occasions during this period. For example, assuming that married women were always acting at the behest of their husbands had caused issues for legal proceedings. One example given was a case in which a merchant was pursuing a husband for debts allegedly incurred by the man’s wife. Demonstrative of the tendency for cases of this nature to go on for some time, a year later the accused woman had left her husband and the court ruled that there should be no action against him. Further indicating the fluidity of the legal concept of ‘consent’ in this period, Mason also highlighted the frequency of husbands posting notices or even shouting from town crosses instructing people not to deal with their wives who, in some instances, may have fled their marriages.
Mason then zoomed in further to explore burgh court cases, showing the high percentage of female litigants in a sample from Glasgow’s burgh courts for the year June 1657-June 1658; women appear as primary pursuers in 20% of cases and as primary defenders in 27%. According to Mason, this was mirrored at burgh courts in other areas of Scotland at the time. When women did not appear as primary pursuers or defenders, they sometimes appeared as ‘cautioners’ who vouched for others in cases often dealing with crimes like debt or bad behaviour. For Mason, evidence of women taking on important legal duties indicated the their ‘trustworthiness and esteem’ within the legal system, acknowledging their ‘competencies’ in areas where, officially, they had lower status. Through this, Mason highlighted the importance of looking more creatively at these sources.
Throughout the paper, Mason kept an eye to the wider British and European context at the time; this highlighted the value of situating the Scottish context within wider British or European contexts, examining similarities and differences. For example, a similar study of the burgh courts in England (Muldrew) showed that, during this period, women had much less involvement than in Scotland. At other points during the paper, Mason’s comparisons with Europe serve to highlight not only the distinctiveness of Scots law in its capacity for women to take a more equitable role in the legal system than elsewhere, but also the importance of avoiding British- or European-wide generalisations.
Mason continued by highlighting the importance of considering that women were nevertheless still restricted by the patriarchal system in which these legal proceedings were functioning. Despite some evidence suggesting that husbands would have to go to considerable lengths to stop people dealing with their wives in a legal context, they often had the final say, particularly if the case prejudiced them in any way. In instances when wives were called upon to ratify cases dealing with the sale of their husband’s land for example, it would have been difficult for them to have gone against this. This led Mason onto the issue of ‘coercion’; how could a woman prove that she was coerced to resign her property rights, for example? Mason highlighted that it was often difficult for women to legally challenge their husband over property rights during his lifetime. Issues around ‘coercion’ highlighted the potential challenges of Mason’s source material, particularly the difficulty of verifying what was said.
Mason concluded by referring back to Ewan’s seminal 1992 paper, claiming that ‘perhaps now, thirty years on from Ewan’s plea, is the time to include these ‘Scottish Portias’ in the male-dominated history of Scots law.’ Mason’s paper deftly demonstrated this, showing how her approach can reveal fresh insights into the relationship between women and the legal system in early modern Scotland, and Scottish women’s history in general.