Coercion or Consent? Women, Property and Legal Authority in Early Modern Scotland

Abstract

During the early modern period women’s ownership of property was significantly constrained by the marital relationship. Scots law stipulated that much of a woman’s property passed to her husband on marriage and that her ability to sell, control or dispose of much property without her husband’s consent was severely restricted. Yet, despite such strict legal rules, jurists were aware that a married woman could be placed in a difficult position if her husband abused his position, with legal procedures introduced to mitigate a husband’s extensive property powers. As a result, a husband could not sell land his wife brought to the marriage, or any land they held jointly, without her consent, indicated by her signature or mark on the deed and her declaration in a private examination that she acted under her own free will and not under coercion or pressure from her husband. This article interrogates the legal requirement of the wife’s consent in Scots law from two conflicting positions: first, as a restraint on the husband’s administrative powers in that she was entitled to openly challenge a mortgage or sale; and second, as an endorsement of the husband’s superior position in that she was most likely unable to publicly challenge her husband’s patriarchal authority during his lifetime. In doing so, it argues that women’s legal authority in early modern Scotland was complex and, at times, contradictory, and that this legal ambiguity entitled the courts to make decisions that routinely looked beyond fixed rules when women’s property rights and patriarchal rules overlapped.