Abstract
This essay highlights the ways that legal fictions about the extent to which disability limits agency have historically been used to prevent women from exercising many of the rights of legal adulthood, particularly those related to marriage and property. In the late thirteenth century, English law began to limit the activities of people with cognitive and sensory disabilities, on the grounds that they lacked the understanding necessary to consent. These laws ostensibly existed to protect people who could not protect themselves. However, using the records of late medieval lawsuits, I show that as women inherited land at unprecedented rates during the fourteenth century, men fraudulently alleged that women were disabled in order to gain control of their property.
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Notes
Land held of the king-in-chief was held directly from the king rather than another lord. A knight’s fee was the amount of land required to sustain one knight, and a tenant-in-chief’s duties to the Crown were determined by the number of knight’s fees they held.
Rules limited the worst impulses of guardians. The daughter of a knight could not be married ‘disparagingly,’ and could marry freely if she paid her guardian the amount for which her marriage could have been sold (Walker, 1982, 123–5).
As was the case with many wards, Sibyl’s mother was still alive and held a third of the estate by dower when these events occurred.
The terms ‘deaf and dumb’ and ‘deaf and mute’ [surdus et mutus], while highly offensive today, are used throughout English translations of the records documenting Sibyl’s case. I use them only when quoting these sources.
While women could marry at 12, it was atypical for a woman to marry this young in the fourteenth century, when women frequently stayed unmarried into their twenties (Karras, 2011, 1030).
Incompetent people could nevertheless inherit property because English law differentiated between possessory and proprietary right.
‘Idiocy’ was only vaguely defined by medieval jurists. Essentially, an ‘idiot’ was someone who lacked the capacity to manage their own affairs from birth and did not enjoy moments of lucidity.
Around a third of those accused of mental incompetence at this time were women, but a greater number of inquisitions focused on women. This reflects the fact that cases involving women were more contentious than those involving men, and thus were often appealed and relitigated.
English law provided some remedy for this by dictating that a woman’s lord had final say over who she could marry, and wards could not be married ‘disparagingly.’ However, the Church’s view that mutual consent made a marriage valid complicated this, and lords’ interests did not always align with those of families.
The courts oversaw inquisitions involving married ‘idiots,’ but their marriages had taken place prior to when they became incapacitated, or the person was identified as an ‘idiot’ due to uncertainty about what legal ‘idiocy’ entailed, as it was still a nascent concept.
Records stating that Margaret is an ‘idiot’ refer to John as her fiancé. However, the writ overturning this finding refers to him as her husband. It is easy to imagine that this was because if the lands had been Margaret’s through inheritance, John would not have been able to alienate them unless they were married.
Illustrating this, despite the fact that people with disabilities are assaulted at such alarming rates, most people with cognitive disabilities are not taught sexed, because they are assumed to be incapable of both desire and the ability to consent (Sampson, 2006, 280).
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Buhrer, E. Disability and consent in medieval law. Postmedieval 10, 344–356 (2019). https://doi.org/10.1057/s41280-019-00136-w
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DOI: https://doi.org/10.1057/s41280-019-00136-w