Women and the Irish chancery court in the late sixteenth and early seventeenth centuries

Abstract

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.