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’ve always been fascinated by the history of women’s rights and the laws that pertain to them. But my greatest fascination has been with the fact that women in Scotland seemed to have suffered much less male oppression than their sisters in other countries did. That fascination has led to a string of historical novels based on various laws.

Consider the plight of Lady Fiona Dunwythie who eloped at the age of 17 with a member of an enemy clan. A brutal, womanizing man, he has been missing for a fortnight.  Rumors are rife, since Fiona was the last to see him, and the two were arguing.  Let's add another wrinkle in that her good-father (i.e. her father-in-law) is dying, and Fiona’s brutal, womanizing, and now missing husband is the man’s only son.

So, how did Scottish law affect a noblewoman in Fiona’s position? It depended on a number of factors, but she is in limbo until the status of her husband can be determined. Is he alive, or is he dead?

In either event, Lady Fiona’s good-father has to make his own wishes known before he dies, and he has a duty to see to it that she is secure. That means that if she has property and is incapable of managing it herself — his judgment is all that matters here — he must assign her a guardian or trustee. If she has a child, he must also arrange for guardianship of that child. He can name Fiona if he deems her capable and believes that she will raise that child as she should, but it would be more likely for him to name a male. If the child should turn out to be his heir, the stakes increase, and the dying good-father must allow for that.

Fiona could speak for herself if she knew enough about the law to assert her rights, knew the proper person to whom she should assert them, and could get to that person. However, in reality, most women of her time knew only a bare patchwork of the laws that pertained to them, if that. Noblewomen knew more than most, of course, especially when it came to marriage, because in their cases, negotiated property and financial settlements were nearly always involved. But the likelihood that their parents would exert tremendous influence over them was also greater.

By the way, the reason that genealogists find marriage records and wills much farther back than reliable birth or death records is that marriages and deaths, especially among the landed classes, nearly always involved property.

As a widow, if Fiona is one, and if she had a tocher (dowry) that included “immovable property” (real estate), that property was considered to be her own domain. Any other property that she and her husband had or might inherit was her husband’s to control and their child’s to inherit unless the marriage was a contract marriage, with negotiated settlements that protected the property of both parties.

As it happens, Fiona ends up, unwillingly, with a trustee and guardian, Sir Richard Seyton of Kirkhill, a cousin of her husband. Having agreed to assume the responsibility, Kirkhill owes a duty to her good-father to see his wishes carried out.

Fiona does not know much about the law, but she can speak for herself. Even so, Kirkhill will legally take charge of everything when her good-father dies and will have every right to expect Fiona to submit to his authority. The problem is that even she doesn’t know if she is innocent of her husband’s murder…if he was murdered. And she’s not particularly compliant at the best of times.

With regard to her other marital rights, the household was deemed to be the wife’s “natural and proper province.” In normal cases, a woman could legally enter into contracts for food, furnishings, and maintenance of the residence. Naturally, Fiona’s is not a normal case, because she’d lived with two medieval control freaks and now has Kirkhill to contend with.

The act of marriage itself, however, was an area in which Scottish women enjoyed a much fairer status than women of other countries. So strongly did the Scots feel about that status that when Scotland and England formed the Union in 1707, the Scots insisted that their marriage laws remain as they were and be recognized as legal in every instance, although they differed dramatically from English common law.

So, even if Kirkhill is so daft as to exert his authority to the point of demanding that Fiona marry him, she can tell him to go jump in the river Annan. On the other hand, if she wants to remarry without his consent (and her husband is actually dead by a hand other than her own), she has several options.

In Scotland, any marriage was considered valid as long as both parties freely agreed that they had married each other, which led to interesting situations, especially for an author of historical fiction. The primary ways to marry were three: by ritual and, in cases of nobility, often by negotiated contract as well, which is to say the church wedding; by declaration, which required only the declaration of one party in the presence of the other, the latter not disagreeing; and by cohabitation as in common law marriage, or consent to cohabit as in handfasting. The latter two both count as cohabitation, but handfasting was more akin to a trial marriage.

In handfasting, two people agreed to live together for a year and a day. At the end of that time, if they had not had a child and she was not pregnant, they could go their merry ways. If she was pregnant or they did have a child, they were deemed to be legally married.

Except by a few Scottish people (the clergy, mostly), marriage, even in a kirk, was not considered a sacrament of the Church for the simple reason that Scots rarely paid heed to medieval Rome and remained true to their own traditions until much later.

They were willing enough to celebrate the various rites and rituals but thought it was silly to require a priest just to sanctify a marriage, baptism, or funeral, especially in winter in the Highlands where, to say the least, priests were scarce.

Borderers felt the same way, even though abbeys littered the borderlands. Their attitude, and indeed that of Highlanders, was that their clan chiefs were of far greater importance than a Pope in Rome or a King in Stirling or Edinburgh. A clan chief, or the local laird of the land, often had the power of the pit and gallows (legally or otherwise), and he was right there. What could the Pope do from Rome?

 

 

 

 

Instead, the Scots allowed for other forms of such rituals—for marriages in particular but also for birth, baptism, and death. Therefore, Fiona was well within her rights (if not particularly smart) to elope originally with her awful lover, because she did not require parental approval and would not have required it as long as she was over the age of consent (which was twelve then for a female in Scotland and refers, believe it or not, to her ability to consent, not to the consent of her parents.)

Arranged marriages, which were nearly always (negotiated) contract marriages, were typical only of the upper classes. But by Scottish law, any woman could legally refuse to marry if she disliked the arrangement and was willing to assert herself and damn the consequences. Noble fathers were always powerful influences.

In the Highlands, women’s rights were nearly equal to those of the men in their clans. A woman could even be chief of the clan if elected. In the Isles and elsewhere, she had the right to attend great councils, which by law had to be open to all who wanted to attend, and to speak her mind there when she did.

By contrast, in England and most European countries, a woman was not even an entity under the law until she became a widow, when her rights were generally equal to those of men. Before that, however, under the law, she was just her father’s daughter or her husband’s wife. The father or husband, therefore, was the responsible entity in court and could do pretty much as he pleased with his wife or daughter.

Otherwise, in most countries other than Scotland, a woman did not exist legally. After the Union, even in Scotland, many rights other than the marriage rights altered to imitate English laws, including, for a time, the Scotswoman’s right to testify in court.

Therefore, in the fourteenth century, although Fiona’s trustee, Kirkhill, could manage her property, the property itself remained hers even if he should marry her, and she could will it to her children or elsewhere, as she liked. And, even after the Union, those property and marriage rights did not change.

My own heritage links strongly to the Scottish Borders, where men did tend to think more as their counterparts across “the line” did, that daughters and wives should always submit to their “wiser” counsel. But if the anecdotes from my ancestors are any indication, such thinking was more wishful than true to life. One need only think of the great Scott whose wife plunked his spurs down on his plate whenever their larder needed replenishing. He was a reiver, was he not? Get out there and “find” beef!

Divorce in medieval Scotland was practically unknown, but in England, women could not sue for divorce, period, until the mid-nineteenth century, even for cruelty. Only husbands could sue, and they could cite any number of acceptable reasons.

Moreover, an Englishwoman could not testify in court, so if her husband lied through his teeth, she had no recourse to counter him by herself. That was true even if her husband was brutal to a point that would have resulted in prison or hanging if he had done the same things to another man.

About the only good thing about being legal chattel was that her husband was generally deemed responsible for most of her actions (and his children’s as well). Divorce was not an option in England until the Reform Act of 1853, unless the unfortunate woman could manage to get to Scotland.

Scotland had its Court of Sessions, which would grant divorces to women in cases of cruelty, abandonment, adultery, and other such abuses. A problem could arise, however, if the woman then returned to England, because her husband would still have every authority over her there…unless he sued for divorce from her in Parliament.

The reason Scotswomen had such rights is that by Celtic tradition, women had always had the right to speak their minds and to make decisions for themselves. Naturally, the tendency spread throughout the country, and most of us Scotswomen have guarded those rights remorselessly. Hopefully, we will all continue to speak our minds and stand up for our rights and those of other women until they bury us.

 

Editor's Note:   Don't miss Lady Fiona's story in Amanda's latest novel Tempted by a Warrior which was released July 1, 2010.

 

Scottish Man & Women ~ 12th century

 

 

Amanda Scott is an USA Today best selling Author and has sold over 50 romance novels and is the recipient of the Romance Writers of America's prestigious RITA Award and their Lifetime Achievement award in 2007. She began writing on a dare from her husband and has sold every manuscript she has written.  Twenty-five of her novels are set in the English Regency period (1810-1820). Others are set in 15th-century England and 14th- through 18th-century Scotland, and three are contemporary romances.  You can visit Amanda at http://www.amandascottauthor.com/

 

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