Women before the court: Law and patriarchy in the Anglo-American world, 1600–1800

Lindsay R. Moore’s Women Before the Court is an important contribution to the growing body of research on premodern women’s access to justice that has been published over the past decade.(1) Recent debates have sought to complicate the limitations of the English common law doctrine of coverture which, at least in theory, prevented married women’s independent access to justice. According to the doctrine of coverture, a woman’s legal identity was subsumed within her husband’s upon marriage and she lost control and ownership of much of her property. However, by looking closely at married women’s legal activities within the court record, historians have recently emphasised that some wives had a remarkable degree of legal and economic agency, despite their subjugated legal status and rights to property in legal handbooks. Adding to this ongoing conversation, Moore adeptly argues that the range of legal jurisdictions available in England and North America meant that coverture could, in reality, be sidestepped. Married women could appear in equity or ecclesiastical courts as these particular jurisdictions recognised their ability to enter litigation or own property separately from their husbands. By looking at women’s varied interaction with the law in the Anglo-American world across two centuries, Moore asserts that ‘the picture that emerges is one of complexity and variation’ (p. 10). 

This book addresses a lacunae in present research by offering a comparative perspective on women’s access to law in England and North America during the 17th and 18th centuries. Put simply, Moore's central thesis is that women's ability to access the law in England and North America very much depended on which particular court they were appearing in. The argument advanced in this book—that England's multi-jurisdictional legal system enhanced rather than hindered women's legal capabilities—directly challenges previous scholarship that has emphasised the debilitations of common law on women’s legal status in England and North America. Moore asserts that the variety of different religious and social contexts in North America informed, rather than dictated, the development and implementation of English legal practices in the colonies during the 17th century. While the northern colonies, such as Massachusetts and Connecticut, embraced the common law almost exclusively, the southern colonies, such as Maryland, Virginia and South Carolina, fell more in line with the multi-jurisdictional English example, which offered women greater opportunities to bring suits unaided by their husbands.

The book draws its analysis from depositions, petitions and bills of complaints found in courts within England and the American colonies, with the bulk of the evidence consisting of nearly 6,000 legal cases and over 500 petitions drawn from courts on both sides of the Atlantic. Moore also acknowledges a methodological challenge when attempting to recover women's voices from formulaic legal records that were filtered through the male-dominated legal profession. This in itself is a difficult task—historians of women and law are often faced with reconstructing events on the basis of a plaintiff’s impassioned plea, a defendant’s indignant rebuke, a lawyer’s refined argument, or the final ruling of a judge and his counsel. While recognising the dangers in solely relying on legal records to reconstruct women’s motives and actions, Moore asserts that it is 'rather self-defeating to discredit the possibility of hearing traces of women's voices in the legal record' (p. 11). Women's words were quoted verbatim within the pages of a legal suit, while others personally wrote and signed their depositions. When legal records are read critically, Moore asserts, women's actions before the law can be drawn out and reconstructed, with the acknowledgement that their actions and responses were filtered and edited within a legal system designed by and for men.

Another methodological issue that the introduction addresses is the extent to which we can locate expressions of female ‘agency’ within court records. One of the central issues of the book is understanding the extent to which the doctrine of coverture dominated and dictated women’s lives and legal actions in England and North America. The introduction acknowledges the difficulties in uncovering women’s authority and actions in the courtroom when compared with the constraints they faced in legal handbooks and in society in general. Some historians emphasise women’s overwhelming subordination in a patriarchal society, while others emphasise their ability to manoeuvre within the loopholes of the legal system. However, finding a middle ground between these two arguments, Moore asserts that women’s legal power was ‘Janus-faced’; while some women certainly felt the limitations imposed on them by coverture in common law courts, other women found ‘brilliant ways’ to navigate the legal systems and actively sought to protect their status and property before the law (p. 9). When women appeared before the law, they were not always simply expressing agency or rebelling against patriarchy, but were often ‘finding practical and sometimes ingenious methods of working within it’ (p. 10).

Part one—the courts and the law—delves deep into the variety of legal practices in England and North America. Chapter one sets out women’s legal status and rights to property in legal handbooks and statutes in England and North America. It defines women’s legal status in a variety of jurisdictions across the Anglo-American world, and examines how English legal practices were adopted and modified by colonists across the 17th century. Moore argues that the very complexity of the legal system in England gave women ‘a decisive advantage over some of their colonial counterparts’ (p. 22). While married women’s legal actions were extremely limited in common law courts, different legal jurisdictions provided women with alternative possibilities for legal redress. Special attention is paid to equity and ecclesiastical law, with both jurisdictions providing ‘some remedy for the common law’s severity towards women’ (p. 22). For instance, equity law allowed married women to own property independently of their husbands, and entitled women to pursue litigation to protect their rights to property when necessary. Even so, Moore is careful to note that the variety of jurisdictions available to English and American women ‘were not necessarily designed to increase women’s legal and economic independence’ and rightfully states that the ‘impact of these loopholes …should not be overstated’ (p. 25). Married women were often only entitled to seek legal redress when their claims concerned their household credit networks and, by extension, the management of their husbands' economic arrangements.

Chapter two then turns to providing quantitative evidence of women’s participation in the legal system as plaintiffs and defendants across the Anglo-American world. Statistical analysis of English and American court records reveals the extent of women’s engagement with the legal system across the 17th century. Unsurprisingly, very few married women are located in common law courts in both England and North America. In London's Mayor Court, for instance, women appeared as litigants in only 10 to 11 percent of cases, while in Massachusetts Bay, women only surfaced as litigants in 6 to 9 percent of cases. Moore also discovers that the majority of women who appeared before these common law courts were widows who were drawn into litigation concerning their late husbands' credit networks. Mixed legal practices within Maryland’s Provincial Court—which practiced both common law and equity principles—gave women distinct legal advantages by allowing them to circumvent some of the restrictions that the common law doctrine of coverture imposed on them. Quantitative analysis of women’s engagement with ecclesiastical courts in England—such as the Essex Archdeacon's Court and London's Commissary Court—also reveals that over half of the plaintiffs and defendants that appeared in testamentary litigation were women. These figures further support Moore’s argument that different legal practices in England provided certain women with greater leverage to exert their rights to property and legal status before the law in comparison to their colonial counterparts. Rather than suppressing women’s legal activity, Moore convincingly argues that the English legal system instead provided women with a variety of avenues via which they could pursue legal redress when their property rights were undermined or threatened.

Part two—the family and society—is arguably the strongest section of this book. Women’s access to law and rights to property are interrogated through the lens of family relationships (functional and dysfunctional) and the variety of hierarchies within the Anglo-American household. Chapter three explores the important demarcation between the legal rights of female servants and slaves in the Anglo-American world and how this affected their access to justice. Female servants were given training and economic resources to establish independent households and begin families of their own as future mistresses. Female servants were entitled to bring legal action against their masters or mistresses for breach of contract, or when pursuing allegations of sexual abuse and maltreatment. Female slaves, on the other hand, had no legal standing under Anglo-American law. Since slaves were the property of their masters, Moore stresses that these women were the ‘legal equivalent of other chattels that a master might own’ (p. 60). While both female servants and slaves were bound under the patriarchal authority of their masters and mistresses, their ability to seek legal redress could therefore ‘vary drastically’ (p. 75). Moore finds that the ‘pivotal issue was not race but whether the woman was a contracted servant rather than a slave’ (p. 75). Contractual obligations protected the legal status and property rights of female servants, whereas female slaves ‘never had absolute or unconditional control of their bodies or persons’ (p. 76).

Chapter four looks at women’s claims for financial support, paying particular attention to the claims of married women and unwed mothers. Women who had been deserted or neglected by their husbands approached the courts to compel their husbands to provide financial maintenance for themselves and their children, while unwed mothers attempted to hold the fathers of their illegitimate children accountable for child support. Moore suggests that English authorities were mainly concerned with women and children becoming dependent on poor relief—and, therefore, a burden on taxpayers—whereas legal authorities in North America sought to uphold marital fidelity and the ideals of the patriarchal household. Chapter five then explores elite women’s involvement in inheritance disputes and family feuds. This chapter primarily focuses on disputes that concerned elite women’s landed property rights, with some reference to their management of moveable goods (p. 106). Whilst in the rest of the book Moore focuses on a wider range of women—including female servants and slaves—here her focus is limited to the legal escapades of elite women in relation to inheritance and family disputes. Questions remain over the extent to which we can see these women's legal actions over this specific aspect of property litigation as representative of the experiences of the wider female population.

Part three—the economy and equity—serves as a final chapter and a conclusion to the monograph. Moore asserts that legal and economic expansion in England and North America during the 18th century provided women with greater opportunities to approach the law and defend their property rights, with many women increasingly appearing as borrowers, traders, investors, and financiers of property. The idea that the growing financial independence of women in England and the colonies led to the ‘erosion of patriarchy as the basis for family relationships’ is perhaps a little overstated (p. 134). This particular argument is complimentary to the claims advanced in Amy Froide’s Silent Partners: Women as Public Investors During Britain’s Financial Revolution, 1690-1750 (2017), and I was surprised to see this monograph missing from the bibliography. While I agree that women emerged as investors and financiers of property during the 18th century, I was not convinced that the expansion of the credit economy provided women—especially those who were married—with greater financial independence. This argument also directly challenges previous scholarship that explores the expansion of legal devices and married women’s ability to exert legal autonomy over their property during the 18th century. For instance, Maria Ågren in her Domestic Secrets: Women and Property in Sweden, 1600-1857 (2009) has argued that married women in 17th-century Sweden held considerable property rights in marriage that prevented husbands from selling or alienating their wives’ inherited land without directly co-operating with their wives’ kingroup. However, rapid commercialisation and rising land prices by the 18th century meant that wives’ inherited property was increasingly subsumed within their husbands’ landed wealth in a bid to protect the wealth and status of creditors, and by extension, the property rights of men.

Moore makes reference to the ‘increasing use’ of the law of necessaries in England and the colonies in granting married women ‘more economic power’ under common law during the 18th century in order to evidence the idea that women’s increased participation in the credit economy led to the ‘erosion of patriarchy’ (p.136). The law of necessaries—which stemmed from the medieval period—certainly allowed married women to independently act on behalf of their husbands when purchasing household property, or clothing and food for themselves and their children. Husbands relied on their wives’ help in provisioning the household and administering the marital economy as household mistresses, and the impracticalities of coverture meant that women were able to approach equity courts when recording their household’s credit networks. Even so, the law of necessaries was not necessarily designed to bestow financial independence on married women. In fact, the law of necessaries was arguably a by-product of the patriarchal construction of household gender relations. Married women’s independent recourse to law was often only legitimised and permitted, rather than hindered, when their legal actions benefitted the household as an economic unit. While the idea that patriarchy was increasingly eroded over the course of the 18th century is indeed compelling, Moore largely relies on statutes and legal treatises when forming this opinion. A more thorough discussion of relevant contracts and litigation could have substantiated the assertion that women were active participants in (rather than passive casualties of) the expansion of the capitalist economy in 18th-century England and North America.

At times, Moore conflates ‘England’ with ‘Britain’ (pp. 2, 3, 6) despite the fact there is little engagement with scholarship on women’s legal status in Scotland or Wales. This word choice, while admittedly minor, arguably obscures and homogenises Scottish and Welsh women’s experience of law within a ‘British’ framework. For instance, the common law doctrine of coverture did not apply to women in Scotland, even after the 1603 Union of the Crowns and the 1707 Act of Union. As Scots law was founded on civil legal principles, women’s legal status and rights to property were closely aligned with civil legal practices elsewhere on the Continent, including France and Sweden.(2) The doctrine of coverture is often regarded as the benchmark for explaining women’s subjugated legal status and limited rights to property during the early modern period, despite the fact that coverture was only practiced within English common law courts. Acknowledgement of the diverse legal experiences of women living in Scotland and Wales, and reference to the range of customs and legal practices within different legal systems in Britain and elsewhere in Europe, would have strengthened Moore’s analysis, especially given the comparative nature of the book.(3)

Moore intersperses her statistical analysis with illustrative examples of women's independent engagement with the law. From the female servant pursuing her abusive master for sexual assault, to the female slave who petitioned the court for her freedom upon her arrival in England, this book skilfully ties together the varied experiences of women living and litigating in England and North America across the early modern period. The book will be of interest to historians of women and legal history in Britain and the Atlantic, and should be commended for bringing together scholars who are prone to focus on particular countries or jurisdictions as case studies.

Notes

1. Cordelia Beattie and Matthew Frank Stevens, eds., Married Women and the Law in Premodern Northwest Europe, vol. 8, Gender in the Middle Ages (Woodbridge, 2013); Bronach Kane and Fiona Williamson, eds., Women, Agency and the Law, 1300-1700, Body, Gender and Culture 15 (London, 2013); Tim Stretton and Krista J. Kesselring, eds., Married Women and the Law: Coverture in England and the Common Law World (Montreal, 2013).Back to (1)
2. Julie Hardwick, The Practice of Patriarchy: Gender and Politics of Household Authority in Early Modern France (Pennsylvania, 1998); Julie Hardwick, Family Business: Litigation and the Political Economies of Daily Life in Early Modern France (Oxford, 2009); Maria Ågren, Domestic Secrets: Women and Property in Sweden, 1600-1857 (Chapel Hill, 2009).Back to (2)
3. For Scotland see Cathryn Spence, Women, Credit and Debt in Early Modern Scotland, Gender in History (Manchester, 2016); For a global perspective see Jutta Sperling and Shona Kelly Wray, eds., Across the Religious Divide: Women, Property and the Law in the Wider Mediterranean, ca. 1300-1800 (New York, 2009).Back to (3)