Married Women and the Law: Coverture in England and the Common Law World 9780773590137

Table of contents :
Cover
Contents
Figures and Tables
Preface
:1: Introduction: Coverture and Continuity
:2: Discourse on the Nature of Coverture in the Later Medieval Courtroom
:3: Coverture and Its Discontents: Legal Fictions on and off the Early Modern English Stage
:4: Poor Law, Coverture, and Maintaining Relations in King’s Bench, 1601–1834
:5: Coverture and the Criminal Law in England, 1640–1760
:6: Women and Property Litigation in Seventeenth-Century England and North America
:7: The Sailor’s Wife, War Finance, and Coverture in Late Seventeenth-Century London
:8: Written in Her Heart: Married Women’s Separate Allegiance in English Law
:9: Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity
:10: “Concealing Him from Creditors”: How Couples Contributed to the Passage of the 1870 Married Women’s Property Act
:11: Coverture and Women’s Agency: Informal Modes of Resistance to Legal Patriarchy
Conclusion
Contributors
Index
A
B
C
D
E
F
G
H
I
J
K
L
M
N
P
Q
R
S
T
U
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W
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Citation preview

Married Women and the Law

Mary I as Queen Regnant

Married Women and the Law coverture in engl and and the common l aw world edited by Tim Stretton Krista J. Kesselring

McGill-Queen’s University Press Montreal & Kingston • London • Ithaca

© McGill-Queen’s University Press 2013 ISBN 978-0-7735-4292-1 (cloth) ISBN 978-0-7735-4297-6 (paper) ISBN 978-0-7735-9013-7 (ePDF) ISBN 978-0-7735-9014-4 (ePUB) Legal deposit fourth quarter 2013 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% postconsumer recycled), processed chlorine free This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Canada Book Fund for our publishing activities. Library and Archives Canada Cataloguing in Publication Married women and the law : coverture in England and the common law world / edited by Tim Stretton, Krista J. Kesselring. Includes bibliographical references and index. Issued in print and electronic formats. ISBN 978-0-7735-4292-1 (bound).–ISBN 978-0-7735-4297-6 (pbk.).– ISBN 978-0-7735-9013-7 (ePDF).–ISBN 978-0-7735-9014-4 (ePUB) 1. Married women–Legal status, laws, etc.–England–History.  I. Stretton, Tim, 1963–, writer of introduction, editor of compilation  II. Kesselring, Krista J., 1972–, writer of introduction, editor of compilation KD758.M37 2013          346.4201›6          C2013-906040-5          C2013-906041-3 Book designed by Pata Macedo Cover illustration by Grant Collins Set in Minion Pro 11/14

Contents

Figures and Tables vii Preface ix : 1 : Introduction: Coverture and Continuity 3 Tim Stretton and Krista J. Kesselring : 2 : Discourse on the Nature of Coverture in the Later Medieval Courtroom 24 Sara M. Butler : 3 : Coverture and Its Discontents: Legal Fictions on and off the Early Modern English Stage 45 Natasha Korda : 4 : Poor Law, Coverture, and Maintaining Relations in King’s Bench, 1601–1834 64 Kim Kippen : 5 : Coverture and the Criminal Law in England, 1640–1760 88 Marisha Caswell : 6 : Women and Property Litigation in Seventeenth-Century England and North America 113 Lindsay Moore

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: 7 : The Sailor’s Wife, War Finance, and Coverture in Late Seventeenth-Century London 139 Margaret R. Hunt : 8 : Written in Her Heart: Married Women’s Separate Allegiance in English Law 163 Barbara J. Todd : 9 : Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity 192 Angela Fernandez : 10 : “Concealing Him from Creditors”: How Couples Contributed to the Passage of the 1870 Married Women’s Property Act 217 Mary Beth Combs : 11 : Coverture and Women’s Agency: Informal Modes of Resistance to Legal Patriarchy 240 Danaya C. Wright Conclusion 264 Tim Stretton and Krista J. Kesselring Contributors 273 Index 277

Figures and Tables

Figures Frontispiece: Mary I as Queen Regnant. Detail from The National Archives, kb 27/1172, m. 1, Coram Rege Roll. Courtesy of The National Archives at Kew. 7.1 A sailor’s ticket from the Third Anglo-Dutch War. Note the wavy lines intended to deter counterfeiting. TNA, ADM 106/304. Courtesy of The National Archives at Kew. 142 7.2 Power of attorney from George Knowles, 28 December 1691. TNA, HCA 24/127. Courtesy of The National Archives at Kew. 145 7.3 Will of Thomas Dibble, a mariner, that gives sweeping powers to his wife, Mary. Proved 1 December 1690. London Metropolitan Archives, O.W. MS 9172. Courtesy of the London Metropolitan Archives. 147 7.4 Detail of the will of Thomas Dibble, showing the signatures of his captain, Humphrey Sanders, and the ship’s master, James Renwick. Courtesy of the London Metropolitan Archives. 149 7.5 Detail of the will of Thomas Dibble, showing royal, patriotic, and naval iconography. Courtesy of the London Metropolitan Archives. 153

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Tables 5.1 Marital Status of Women in Depositions 91 5.2 Characterizations of Accusations: Married Women Accused with Husbands 94 5.3 Characterizations of Accusations: Married Women Accused without Husbands 99 5.4 Role of Husbands in Depositions Concerning Married Women 100 5.5 Responses to the Charges 101 5.6 Characterizations of Accusations: Unmarried and Widowed Women 104 6.1 Women Involved in Debt Litigation in the London Mayor’s Court, 1630–1690 122 6.2 Marital Status of Women Involved in Debt Litigation in the London Mayor’s Court, 1630–1690 122 6.3 Sex of Plaintiffs in Testamentary Litigation in the Essex Archdeacon’s Court and the London Commissary Court, 1630–1641 and 1669–1688 124 6.4 Marital Status of Female Plaintiffs in Testamentary Litigation in the Essex Archdeacon’s Court and the London Commissary Court, 1630–1641 and 1669–1688 125 6.5 Women Involved in Estate and Debt Litigation in the Maryland Provincial Court 127 6.6 Marital Status of Female Parties in Estate and Debt Litigation in the Maryland Provincial Court, 1666–1670 and 1681–1683 128 6.7 Women Involved in Estate and Debt Litigation in the Maryland Chancery 130 6.8 Marital Status of Female Parties in Estate and Debt Litigation in the Maryland Chancery, 1669–1677, 1681–1685, and 1695–1700 130 6.9 Women Involved in Estate and Debt Litigation in the Essex County Quarterly Courts, 1656–1682 132 6.10 Marital Status of Female Parties in Estate and Debt Litigation in the Essex County Quarterly Courts, 1656–1682 133

Preface

Taken from the records of the court of Common Pleas, the illustration on this volume’s frontispiece depicts Queen Mary I holding the sceptre of power alongside her husband, King Philip. As a “female king” as well as a wife, Mary was exceptional in many ways, but her brief tenure as a married sovereign highlights issues surrounding women, marriage, power, and legal personhood that shaped the lives of many and that constitute the subject of this volume. When Mary became England’s first anointed queen regnant in 1553, most people proved willing to accept that her physical sex posed no hindrance to her taking the throne. A female ruler was unprecedented, but thinkable. Having most recently been ruled by a young boy king, people had practice separating the “king’s two bodies,” the body natural and the body politic.1 Mary’s possession of the crown freed her from such legal disabilities as applied to women in general. As the Act Concerning Regal Power (1554) declared, the kingly office, “invested either in Male or Female,” was to be “taken in the one as in the other.”2 But when Mary began to talk of marriage, matters complicated. In England, a woman could rule; but could a wife? English law was unusual, not only in allowing a woman to inherit the highest position in the land, but also in the degree to which it subsumed a married woman’s legal self in her spouse. Was the crown in any sense subject to the common law rules of “coverture,” which worked to allow a husband’s legal personality to cover that of his wife?

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Mary’s carefully penned marriage articles suggested some of the challenges women usually faced upon marriage: they asked the prospective groom to give up usual husbandly rights and to agree that he would not take his wife or their children from the country, or remove any jewels, ordnance, or other property, without her permission. It stipulated that while Philip would be called King, he “shall permit and suffer” Mary to reign as Queen. Only later did members of parliament somewhat audaciously add a proviso that declared her to be as much “sole Queen” after the marriage as before, simply setting aside the usual legal effects of marriage.3 Philip deemed the whole agreement deeply dishonourable, forced upon him against his will.4 Related discussions characterized the unsuccessful marriage negotiations of Mary’s half-sister Elizabeth, who ultimately and notoriously refused to wed; similar legal clauses found their way into the marriage documents of Queen Mary II, Queen Anne, and then Queen Victoria almost 300 years later. Each of these royal marriages forced contemporaries to consider the nature of wedlock and to establish exceptions that allowed the powers of a monarch to trump the disabilities of a wife, who in any other circumstance was legally subservient to her husband. The need for such exceptions, even for women of such privileged status, and over such a span of time, highlights the strength of coverture – as does the ability of coverture to persist despite these and many other deviations from its rules. Showing the cracks within the legal regime within which wives lived constitutes a first step; understanding the relationship between exceptions and norms, changes and continuity, becomes the next challenge. The essays in this volume attempt to analyze the nature of married women’s legal rights and disabilities prior to the spate of late nineteenth-century reforms. They are the fruits of an interdisciplinary workshop held in Halifax, Nova Scotia, that brought together experts in the subject of married women and the law from the fields of history, law, literature, economics, and women’s studies. As well as exchanging research findings, the participants sought to generate new ways of understanding married women’s rights and experiences and the mechanisms that allowed prejudicial legal rules relating to wives to endure for so long. In inviting contributions from scholars studying various common law jurisdictions over a span of centuries, we also

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hoped to consider how similar legal rules manifested themselves in different environments. Many of the discussions focused on the distinctive English concept of coverture. For centuries in England, then in its colonies, coverture shaped what it meant to be married. Denying a married woman an independent legal identity and control of any property that had been hers prior to marriage, coverture imposed significant restrictions on individual women and did much to support the hierarchical nature of the marriage bond, which was itself fundamental to other social and political hierarchies. Yet, as one sixteenth-century legal writer noted, many women could “shift it well enough,” subverting or evading coverture’s restrictions in creative ways.5 Indeed, coverture offered married women a number of protections not afforded their single counterparts. Nor was the doctrine monolithic or unchanging over its long history. As a number of essays in this volume show, at moments of conflict between or within jurisdictions, the rules of coverture came under stress and became subject to intellectual, legal, and popular scrutiny. It is no coincidence that they often became stricter or narrower at the very moments when the rights of other groups, such as male workers or male voters, expanded. Nevertheless, for all the stress points and scrutiny, coverture persisted for centuries. The papers in this volume explore some of the effects of coverture on women’s lives and focus on shifts in the formulation and usage of this legal custom across time and place. They do not pretend to be comprehensive in scope, but collectively, they demonstrate the variability and persistence of one of the longest-lived ideas in English legal history. Like the women who dealt with its restrictions, coverture could also “shift it well enough,” surviving and supporting changes in other areas of law, or in theories of marital and political obligation more generally. How and why this was so constitutes a key question for our contributors and, we hope, for researchers who follow. The mix between continuity and change in relations of power and domination remains a crucial problem for students of women’s history, as for those who study past and present social relationships more generally. Some workshop participants were, unfortunately, unable to contribute essays for the present collection, whether because their work is still at its early stages or because it is already due to appear elsewhere in

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print. Nonetheless, we wish to express our gratitude for their invaluable contributions at the workshop itself, some of which are reflected in various ways in this volume: Professor Holly Brewer (University of Maryland), Professor Andrew Buck (Macquarie University), Professor Lori Chambers (Lakehead University), Dr Amy Erickson (Cambridge University), Dr Jennine Hurl-Eamon (Trent University), Professor Shannon McSheffrey (Concordia University), Dr James Moran (University of Prince Edward Island), Dr Karen Pearlston (University of New Brunswick), Dr Greg T. Smith (University of Manitoba), Professor Hilda Smith (University of Cincinnati), Dr Cathryn Spence (Keele University), Professor Carla Spivack (Oklahoma City University), and Professor Susan Staves (Brandeis University). Dr Charlotte Frew was unfortunately unable to attend in person, but generously sent her paper to be read by Dr Buck. Dalhousie graduate students Andrea Shannon, Sydney Houston-Goudge, and Hilary Doda participated in the discussions and also helped direct traffic. We want to single out for special thanks Professor Philip Girard, of Dalhousie’s Schulich School of Law, who not only delivered a fascinating paper on married women’s citizenship in Canada and the empire in the late nineteenth and early twentieth centuries, but also helped organize the event itself. We wish also to thank those who so generously sponsored the workshop. The Social Sciences and Humanities Research Council of Canada provided a grant that defrayed much of the cost of the gathering. Bill Barker, the president of the University of King’s College, welcomed us with a lovely reception. At Saint Mary’s Esther Enns, the Dean of Arts, David Gauthier, Vice President Academic and Research, and the Department of History each gave generously. At Dalhousie, President Tom Traves along with Dean Kim Brooks of the Schulich School of Law and Dean Robert Summerby-Murray of the Faculty of Arts and Social Sciences all provided welcome support, as did the Department of History. To each we extend our thanks.

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NOTES 1 Ernst Kantorowicz has done the most to delineate the history of the concept of “the king’s two bodies.” He located its full articulation in the reign of Elizabeth I, but saw earlier origins, too. See The King’s Two Bodies: A Study in Medieval Political Theology (Princeton, NJ: Princeton University Press, 1957); see also Cynthia Herrup, “The King’s Two Genders,” Journal of British Studies 45, no. 3 (2006): 493–510. 2 1 Mary St. 3, c. 1. Interestingly, debate persists about whether this act was intended to confirm or to shore up the Queen’s power, on the one hand, or to restrain it: some of Mary’s supporters suggested that all laws binding monarchs bound kings, not queens. Being female, Mary might thus reign absolutely. See: Judith Richards, “Mary Tudor as ‘Sole Quene’? Gendering Tudor Monarchy,” Historical Journal 40 (1997): 895–924, and James Alsop, “The Act for the Queen’s Regal Power,” Parliamentary History 13 (1994): 261–76. 3 1 Mary St. 3, c. 2. 4 See Sarah Duncan, Mary I: Gender, Power and Ceremony in the Reign of England’s First Queen (Basingstoke: Palgrave, 2012), 63, observing that he left a document in Valladolid noting that as he gave his agreement unwillingly, he did not consider himself bound by its terms or his oath. 5 T.E., Lawes Resolutions of Women’s Rights; or, The Law’s Provision for Women (London, 1632), Lib. I, Sec. 3, 6. For speculation on the author’s identity, and the dating of the work’s composition, see Wilfrid Prest, “Law and Women’s Rights in Early Modern England,” The Seventeenth Century 6, no. 169 (1991): 173–5.

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Married Women and the Law

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Introduction: Coverture and Continuity tim stretton and krista j. kesselring

On a Sunday morning in 1891, Emily Jackson emerged from church only to be kidnapped by her estranged husband and his accomplices, and then imprisoned in his house. When the police refused to intervene, Emily’s siblings turned to the courts. The justices in Queen’s Bench declined to assist, observing that “though generally the forcible detention of a subject by another is prima facie illegal, yet where the relation is that of husband and wife, the detention is not illegal.” Days later, however, the Court of Appeal reversed this decision, saying that husbands had no right to lock up or beat their wives, and, indeed (in a bad bit of legal history), insisting that they never had. An exultant Elizabeth Wolstenholme Elmy felt that with this decision “coverture” – the common law idea that during marriage a husband’s authority and legal identity covered his wife’s – was “dead and buried.” She believed the effects on marriage would be overwhelmingly positive, leading to “the substitution in the relation of husband and wife, of the ethics of justice and equality for the old and worn-out code of master and slave.” A horrified contemporary, Eliza Lynn Linton, vehemently disagreed. She lamented that “Marriage, as hitherto understood in England, was suddenly abolished one fine morning last month!” Linton feared that a husband’s loss of the legal right to control his wife with violence marked “the virtual abolition of marriage,” and with it, surely, the end of the family.1 Despite their differences, both women suspected that pulling at a single loose thread of coverture would unravel the whole

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legal concept, grounded as it was on the overwhelming concentration of power in the hands of the husband. Nineteenth-century observers recognized the central importance of both law and marriage to the status of women. As the Jackson case illustrates, legal arenas have long served as sites to set, contest, and make public the limits on women’s rights to personal autonomy, physical integrity, property, citizenship, and custody over their children. Moreover, it was within marriage that the law most rigorously entrenched the subordination of women to men. Married women, not women in general, found themselves linked with “idiots” and minors in manifesting disabilities and deficiencies, deficiencies that in their case derived from law and culture rather than from “nature.” 2 While this much remained true for centuries, the ways in which law shaped the experiences of women who married changed over time. Changes occurred in conjunction with continuities; in England and then its colonies, this often happened around or within the distinctive common law concept of coverture. Even as coverture explained the loss of a woman’s rights when she married, it in turn had justifications that changed over time, with a wife variously understood to be the dependent subordinate of her husband or, indeed, to have become “one flesh” with him or one person at law, with his legal identity effectively erasing and replacing her own. The purpose of this book is to explore the nature of the peculiar legal disabilities faced by married women and, more particularly, how they changed or persisted over time. The contributors to this volume look across a broad swath of time and territory, with a concentration on the years before the spate of late nineteenth-century reforms. Divorce Acts, Married Women’s Property Acts, and decisions such as that in the Jackson case did not, of course, end the subordination of wives or of women more generally. But the changes to which they responded and that they in turn enabled mark enough of a disjunction to prompt separate study of what came before. We focus on England and the territories influenced by English common law, tracing developments in and making comparisons between jurisdictions within what was, broadly speaking, a unitary legal tradition.3 Despite the clear differences that existed between them, the majority of jurisdictions that operated within the regions and countries of the “common law world” claimed to use the same legal authorities,

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enacted similar statutes, and relied on common legal precedents. The disparities that arose thus throw into sharp relief the ways that similar legal rules adapted to different environments. Some of the essays in this volume directly adopt a comparative approach; elsewhere, the implications of these disparities emerge from the conversations and contrasts between essays. Among other benefits, a focus on common law jurisdictions allows a clearer focus on the peculiar relic that is coverture. Not yet securely buried or drained of all power even today, coverture for centuries shaped what it meant to be married in England and then in the territories under, or liberated from, English control.4 Taking a broad and long view can pay striking dividends. In particular, surveying decades of research into married women’s legal status across centuries and common law borders reveals the astonishing imperviousness of coverture’s rules and effects to a whole host of legal, social, economic, cultural, and religious changes. Married women’s legal fortunes and opportunities underwent numerous alterations but few, if any, significant or lasting shifts of direction. As a result, despite the emergence of new ways of shielding a wife’s property from her husband and apparent changes to attitudes to spousal violence, for example, a typical wife in New England in 1750 had much in common with a typical wife in England in 1250. Subordinated to their husbands in most matters relating to law and property, both had scant protections should their husbands turn against them. Many wives exercised a good deal of agency and crafted meaningful lives for themselves despite the legal restrictions attendant upon marriage; yet, for all this, the restrictions remained. What facilitated this persistence? Here we suggest that the very flexibility of coverture, and the ways in which its justifications could be changed to accommodate altered political and economic forms, helped interested parties to ensure that this legal fiction survived for centuries. ghg The subordinating effects of marriage had broad consequences. While they fell most heavily on wives, they affected single women and widows as well, given the possibility (and in many cases the expectation) that unmarried women might marry in the future and fall under a

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husband’s control. In the words of nineteenth-century reformer Caroline Frances Cornwallis, “the law with respect to the property of married women has influenced the position of all females.” This was not only in terms of their actual rights and obligations, Cornwallis argued, but also in terms of the “vitiating” effects of the laws on popular consciousness and on relations of the sexes more generally, so that “the indirect action is reflected in feeling and opinion” and “operates on all, married and unmarried.” 5 When it came to historical objections to women holding office or participating in political processes, for example, objectors often relied, whether explicitly or implicitly, on the effect of marriage in compromising a woman’s ability to act autonomously and quietly extended this objection to the single woman as well: She may be independent now, but that is liable to change. Again and again in Anglo-American history, extensions of citizenship or the expansion of its associated rights, entitlements, and obligations specifically excluded married women because they fell under the authority of their husbands. Early commentators believed, as Ann Hughes has observed, that the marital relationship ought to be “both hierarchical and harmonious,” like the ideal relationship between a benevolent monarch and his (or her) subjects.6 Even as some men sought to disrupt one part of this political equation, they developed new justifications to ensure that the effects of the first part persisted. In the era of the “Glorious Revolution,” John Locke famously separated “conjugal” from “political” power in his defence of contractual models of governance.7 The “Founding Fathers” – not Parents or Mothers – of the early American republic worked to free white, propertied men from the patriarchal control of kings and governors, but similarly cocooned families from their re-visioning of traditional hierarchies. The effect was to refuse this freedom to wives in particular and to women in general, both directly through decisions about office holding and voting and indirectly through the language used to characterize the new republic.8 The implications of married women’s legal position could thus be broad in scope. In their narrowest construction specific to wives themselves, the subordinating effects of marriage focused on personhood and property. In the English tradition, they became crystallized

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in the common law doctrine of coverture. Coverture held, most basically, that a husband’s legal identity covered that of the woman he married. Providing a more detailed definition is fraught with difficulties, as the language used to explain coverture changed over time, in ways implicated in its very persistence. A late sixteenth-century legal writer known only as “T.E.” offered a number of striking metaphors to explain the relationship between wife and husband. A “small brook” emptied and lost into a mighty river, or the moon that reflected only the light of her husband’s sun, “a woman as soon as she is married is called covert, in Latin, nupta, that is veiled … clouded and overshadowed.” She lived under the dominion, protection, and “supereminency” of her baron and governor. Yet, as Adam pronounced upon seeing the woman formed from his rib, he and Eve consisted of “but one flesh.” T.E. observed that two individuals who married became, “by fiction of law, one person.” In some respects “yoke-fellows” who lived equally, nonetheless law “affirms them to be una caro, regarded to many intents merely as one undivided substance.” 9 In the 1760s, jurist William Blackstone crafted a definition that proved influential for years to come, expanding upon earlier, narrower references to husband and wife becoming “one person”: “By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquire by the marriage.” 10 Although Blackstone’s work served to enshrine the principle of “unity of person” as being at the core of coverture, we might best for present purposes alight on his notion that a woman’s “condition during her marriage is called her coverture.” We might better yet turn from attempting a detailed definition to delineating effects. The main consequences of coverture at common law changed little from at least the twelfth century until the latter decades of the nineteenth century. Upon marriage a wife lost the

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ability to own or control property, enter into contracts, make a will, or bring or defend a lawsuit without her husband. A married woman’s real property – her lands – fell under her husband’s control. He did not own them and he could not sell them without her consent, to be given freely before a judge in her husband’s absence, but during his lifetime he could do with them what he wished, planting them or leaving them fallow, renting them out, and taking to himself any profits they produced. He could even lease them to another for an extended period of time, so that if his wife outlived him she could claim the revenues but would never enjoy possession. A woman’s movable property – her money, livestock, and personal possessions – became her husband’s outright. He had total control over any cash she brought to marriage or inherited or earned thereafter. He could sell her possessions, including her clothes and personal effects, or make bequests of them in his will without her permission. This extraordinary power of ownership set England apart from most other European countries and territories, where spouses held personal property separately or shared in a “community of goods.” 11 The only limits on this ownership came in the custom of paraphernalia, which allowed a wife to keep clothes and personal items after her husband died (but not while he lived), and the practice of returning to a widow any “chattels real,” interests such as debts or bonds that she brought to marriage, if they had not vested in her husband before he died. A husband’s control over his wife’s real property and ownership of her personal property helped to explain her inability to make a valid contract, sue or be sued in her own name, or make a will without his permission. Jurists later cited it as a reason to deny a wife custody of her children, too.12 If followed to the letter, the legal restrictions of coverture would have made ordinary life all but impossible. Under a strict reading of its rules a wife could not provision her home or buy wool to spin or sell the finished product. A husband could not give his wife a gift, as ownership of the gift would remain his after its unwrapping. And yet marketplaces brimmed with married women buying eggs, selling butter, and running profitable enterprises, and husbands regularly gave gifts to their wives. Most of the rules of coverture served not to guide every transaction but rather to provide clarity and direction in times of crisis or after a death. Who technically owned a particular sapphire

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ring or set of linens when the bailiffs came or when the executor or administrator settled the estate? In most cases the law answered that the husband owned his wife’s rings and linens and petticoats and financial investments, yet that did not preclude wives from regarding their personal possessions as their own, and in practice many husbands quite happily allowed their wives to manage this property and treat it as theirs.13 To use a modern analogy, when parents give gifts to their children, the children regard those possessions as their own. Yet in the eyes of the law ownership remains with the parents if the bailiffs come or if tragedy strikes and the child should die. Another reason why wives could be so active in the marketplace was the tacit presumption that they acted on behalf of their husbands. The optimistic assumption underpinning marriage and its legal effects was that a married couple formed a team, united against the world, and working towards the same ends. A wife buying or selling eggs was regarded as acting as her husband’s agent and in his best interests. The rare occasions on which this legal assumption came into question – when a husband accused his wife of operating in her own interest or when a married couple pleaded the wife’s incapacity in an effort to escape liability for debts – exposed the abiding power of coverture. The yawning gulf between laws and lived reality has led some historians to downplay coverture’s influence. Yet this is to risk misunderstanding coverture and underestimating its power. In dayto-day life the niceties of coverture mattered little to many wives and husbands, yet in ideological terms they counted for everything. In marking ownership coverture delineated inequality and confirmed the ultimate power of the husband. Moreover, it remained always available to be called upon. When the interests of a husband and a wife conflicted, even such rights to property as the wife did have proved remarkably difficult to enforce while her spouse lived. Trustees could sue a husband to ensure that trust income went to a wife, but once she had it in her hands, they found it all but impossible to keep it from him subsequently. Similarly, if a husband sold his wife’s lands without her permission most legal means of recovering it only became possible after his death. Danaya Wright’s essay in this volume shows the sometimes successful efforts of wives to evade some of coverture’s restrictions but also the extraordinary difficulties they had in doing

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so when a marriage went awry. Coverture’s role as a reserve force is clearest in the husband’s power of correction and his sexual monopoly over his wife. A husband could physically chastise his wife – within “limits,” of course – and indeed was expected and encouraged to “coerc[e] her into domestic habits.” 14 A husband could not legally be denied the right of sexual access to his wife’s body. He could use a writ of habeas corpus to repossess a wife who left without “sufficient” cause.15 That most husbands never used these prerogatives does not blunt their force as ideological props, or as weapons when unsheathed.16 In these and other ways coverture handed over to a recalcitrant or vindictive husband the keys to his personal kingdom. As several of the papers in this volume show, in the centuries prior to modern statutory reforms, specific laws and inheritance practices, available jurisdictions, and types of legal instruments affecting married women all changed significantly and could vary according to where individuals lived and the resources they could muster. Conflicts within or between different jurisdictions sometimes prompted scrutiny and change. As Lindsay Moore demonstrates here, the particular mix of jurisdictions operating in a given area meant that the experiences of married women in one place might differ significantly from those in another. The dominance of particular courts or modes of thinking waxed and waned over the decades and centuries, seen most clearly in the rise and subsequent decline of the common law, which statute has now almost completely nullified. Courts of equity developed in the latter Middle Ages, subsequently allowing women of means access to trusts and other devices to protect their property when they married. Women of lesser means found ways to make similar use of new devices such as conditional bonds.17 Well-connected women with family support and access to legal counsel often did well. Women who lacked those supports saw their rights deteriorate. Negotiated rights edged out customary inheritance; jointure all but replaced dower, well before statute killed off this forced share of a husband’s estate in 1833.18 Early students of married women’s legal status sought to detect long-term effects flowing from these changes. Some saw a steady improvement in wives’ autonomy emerging from the rising influence of liberalism, while others identified a pronounced decline resulting from the economic and social changes wrought by industrialization.19

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To optimists the Married Women’s Property Acts of the 1870s represented a key way marker on the long, slow climb towards greater equality between spouses; pessimists applauded these acts but interpreted them as a reaction against increasingly harsh restrictions on wives, pointing out that they still left the fiction of coverture intact rather than giving married women the same rights as single women. Scholars today still seek to identify patterns of change, but tend to be more skeptical of generalizations that average the experience of all married women (or men). The contrast between the 1870 Married Women’s Property Act and the Naturalization Act of the same year, which effectively expatriated British women who married foreigners, offers one example of the difficulty in trying to plot a linear story of improvement. So, too, do the reversals along the way: in one notable example, Chief Justice Lord Mansfield’s judgment that held a married woman formally separated from her husband responsible for her own contracts did not long stand before his successor, Lord Kenyon, repudiated it in 1800.20 Developments that helped some women hurt others: equitable trusts undoubtedly proved a boon to many, while causing chagrin for those facing judges who determined that the logic of the market meant they could take no dower from a trust.21 Instead of plotting clear trend lines on to existing historical chronologies, scholars now more often emphasize the gap between legal rules and lived experience, look at the extraordinary initiative and spirit shown by particular women who evaded even the most limiting legal restrictions, and highlight the intricacies of legal systems in England and its former colonies that consisted of multiple overlapping jurisdictions. Ever closer attention to archival as well as published sources has resulted in a richly textured vision of women as active litigants as well as victims of legal inequalities.22 Clearly, multiple histories of married women and the law exist, rather than one linear or overarching narrative. And yet, despite the differences between norm and practice and variations from one jurisdiction to another, coverture and married women’s legal disabilities persisted. This astonishing continuity, arching over complex patterns of change, variation, and difference, is what gives the subject of married women’s rights its particular significance. It also offers resonance for modern readers, providing an important

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example of “patriarchal equilibrium,” where prior to the latter half of the nineteenth century undoubted change produced no lasting transformation.23 The key question to ask is exactly how did coverture survive so many legal and social changes? How did legislators, judges, jurists, and lawyers persist with or adapt restrictions on married women’s rights under different economic regimes? One factor allowing the persistence of coverture lies in the very flexibility noted above and delineated in some of the essays that follow. Coverture provided a set of rules that husbands and legal officials – and wives – could draw upon when they seemed useful or try to ignore when they proved inconvenient. The norms and expectations of wider society sometimes mitigated the strictness of the law affecting married women. Coverture also brooked numerous exceptions. Law long considered a married woman’s soul and her allegiance her own; Barbara Todd’s essay examines the significance and history of the latter exception. As Lindsay Moore notes in her contribution, the church courts did not recognize coverture and permitted married women to bring and defend lawsuits in their own names without their husbands; in those areas that had church courts, married women turned to them in extraordinary numbers. In jurisdictions where they were available, courts of equity supported the development of legal instruments such as trusts that could serve to shield a married woman’s property from the clutches of her husband. Local customs in London and some other urban areas allowed married women in certain occupations to trade as if unmarried, buying and selling and entering into contracts as “feme sole traders.”24 Married women could exercise a similarly broad range of abilities acting as their absent husbands’ deputies through formal powers of attorney, a practice that Margaret Hunt’s essay shows to have become increasingly common in late seventeenth-century maritime communities as more and more men joined the navy. Coverture’s flexibility meant that married women sometimes found it useful. As Mary Beth Combs illustrates in her essay, some used it to dodge creditors and protect family assets from bankruptcy seizures, a practice that became more and more problematic in an increasingly commercialized society and contributed to the formulation and passage of the Married Women’s Property Acts of the nineteenth century. Coverture allowed married women to evade other financial

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obligations, too: Kim Kippen examines the ways in which judges trying to balance poor law provisions with their understanding of coverture came to interpret the latter as freeing mothers from the duty to support children from earlier marriages. Criminal law constituted an exception to coverture in holding married women answerable for serious offences; but, as Marisha Caswell documents, marriage nonetheless protected female offenders from liability for some crimes if done in concert with their husbands, in ways that conflicted with broader popular notions of the women’s personal responsibility. Even as some married women sought to evade coverture’s restrictions, others very frequently invoked it when it served their interests. Coverture proved sufficiently flexible that some women could bend it to their purposes, sometimes in ways that constituted active collusion. Another factor in coverture’s persistence lies in the ways lawmakers and jurists over the centuries changed their justifications for its rules. Medieval judges and commentators typically saw married women’s secondary legal status as the simple and uncontroversial result of the superior physical power of husbands compared to wives. The language of legal formulations repeated again and again that wives lived “under the power” of their husbands, a power whose physical nature is made unmistakable in the alternate expression “under the rod.” Onlookers saw this imbalance of power between spouses as self-evident, mandated by both Nature and God. All women suffered as a result of Eve’s sins, while wives, St Paul made clear, had a duty to submit to their husbands. In a society built around hierarchies of obligation and deference someone had to be subordinate in marriage: it seemed only natural that it should be the wife. As Sara Butler indicates in her essay, while the language of “unity of persons” appeared in medieval legal sources, it remained secondary, “a correlative of a husband’s authority.” The formulation of petty treason made this thinking particularly explicit: a husband who killed his wife committed only a felony, whereas a wife who killed her husband – like a servant who killed his master or a monk his abbot – committed a form of treason.25 The feudal ancestry of this thinking can be observed in legal references to husband and wife as “Baron and feme” – “lord” and “woman.” Alongside this language of submission to power developed the vocabulary of coverture, in which the common law designated

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a single or widowed woman a “feme sole” and a married woman a “feme covert,” her legal identity “covered” by her husband’s. The idea of a “covered woman” similarly denoted the power imbalance in the marital relationship, but it could also be read as suggesting protection. (It could also be read quite literally: as the sixteenth-century Homily of the State of Matrimony insisted, a married woman covered her head to “signify that she is under covert or obedience of her husband.”)26 In the sixteenth and seventeenth centuries power remained central, but the focus shifted more to God’s vision of a social hierarchy. A wife, like a servant, was “in subjection and oweth obedience.” 27 By the latter half of the eighteenth century, the explanatory force of the Bible diminished and the traditional architecture of social hierarchy faced challenges from an emerging vocabulary of equality and individual rights.28 In this changing environment William Blackstone chose in his Commentaries explicitly to reject explanations of wifely subordination that relied on the Bible or Nature. The inequality between husband and wife did not exist in the original state of nature, he argued: it was a creation of civil society. Humans had decided to treat husband and wife as one person for both their benefits, and unity of person became the guiding rationale of coverture. He and other eighteenth-century theorists latched on to “unity” as it appeared to offer a cohesive, overarching, “scientific” rationale that implied (even if it failed to deliver) equality. Relying on the logic of contract, Blackstone suggested that wives consented to this subordination when they consented to marry. A wife’s disabilities emerged from her consent to a contract – not coercion or ascribed status – and came with protections, too. This deeply conservative example of Enlightenment thinking influenced jurists for decades, especially in the United States, where Blackstone’s vision of the law of marriage held sway in many quarters until the nineteenth century.29 As Angela Fernandez shows in her essay, while two early Federalist writers used the freedoms that came with rethinking laws in a new republic to reject Blackstone’s argument, others quickly restored its guiding influence. Coverture did not continue in some unexamined, conventional way, carried by the flow of history or nature: legal authorities considered it, and considered it useful, reformulating its justifications to suit new political and economic forms.

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Subtle and rarely clear cut, the changes in explanations outlined here represented shifts in emphasis more often than sudden or radical re-descriptions. Each of the vocabularies of subordination described above overlapped and coexisted. References to “Baron and feme,” for example, persisted in legal judgments and treatises right up until the seventeenth and even into the eighteenth century, while US Supreme Court Justice Joseph Story talked of a wife being sub potestate viri – under the power of her husband – as late as 1830.30 However, the manner in which a single rule, such as the automatic transfer of a wife’s movable property to her husband upon marriage, could be justified in such different ways provides a startling example of the malleability of coverture. Early depictions of the rule implied that the raw power of the husband demanded it – if he was not given the property he might well use violence to take it – while later versions emphasized the wife’s consent, couching the transfer of ownership as practical and to the wife’s benefit, a small price willingly paid for the reward of husbandly protection. This evolution from feudal values to Enlightenment sensibilities could hardly be greater, yet the rule itself remained untouched and unchanged. As Natasha Korda reminds us in her essay, “coverture” was a fiction, in more senses than one. Fiction need not accord with the reality of everyday life to retain great power. It can both create and obfuscate, and can permit a good deal of revision while retaining the same central plot. Coverture’s flexibility and malleability did not constitute signs of its weakness but sources of strength that people used to ensure its persistence for centuries. True, as F.W. Maitland said of another legal fiction, such devices “can only be the machinery, not the working power.” 31 Married women faced peculiar legal disabilities and opportunities in other legal regimes, too, but in England and common law jurisdictions abroad, coverture for a very long time operated as a remarkably efficient mechanism in the maintenance of marital inequality. ghg In the first essay of this collection, Sara Butler examines medieval concepts of coverture. Butler asks whether the notion of “unity of

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persons” had yet come to bear. Noting that the great thirteenthcentury jurist Bracton had referenced both the husband’s power over his subordinate and his union with his wife, she turns to the Year Books to see how plaintiffs, pleaders, and others argued about coverture. They referenced and refined talk of coverture in a wide variety of causes, some of which dealt with the marital relations between women and men only indirectly. Coverture proved mutable and manipulable, thanks in part to the “conceptual interfusion” that gave it life. In this medieval interfusion, though, hierarchy and power as yet remained dominant. Natasha Korda’s essay supplements the dramas of the courtroom with those of the stage, moving us into an early modern era in which plays both commented on and participated in an ever more commercialized and commoditized world. Korda traces the ways in which playwrights used the suspension of a woman’s independent identity upon marriage to dramatic effect. Playing with the semantic registers of coverture’s veil, which both protected and concealed, they evoked the anxieties of the age. Reading these dramas alongside wills and trusts left by theatre people, Korda demonstrates the pivotal role played by the legal fiction of coverture both on and off the stage. That coverture could conceal as well as protect also emerges in Kim Kippen’s essay. Here, too, as in some of the medieval cases Butler discusses, we see judges using coverture to think through issues where one might not initially expect to see it at work: in Kippen’s paper, in the obligations created by the Elizabethan poor law to maintain relatives, as adjudicated in King’s Bench. And we see a significant shift in the way judges interpreted rules that ostensibly looked the same. Examining case law on the liability of women who remarried to support their children or grandchildren from a previous union, Kippen observes that judges, of course, deemed the women unable to pay as their assets had passed to their new husbands. But did those husbands assume a liability? Here, Kippen shows that by the early eighteenth century, judges moved from viewing the property a woman brought to marriage as carrying various encumbrances (such as the need to support her kin) to seeing it as a free, unencumbered gift. Regardless of the burden thus imposed on the parish, or the “natural” ties between a woman and her offspring, the courts came

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to privilege the autonomy of the male property owner and his right to the property brought him by his wife. Some women may well have welcomed the release from legal liability thus afforded them. Women brought before the courts on criminal charges would certainly have welcomed such a loss of personal responsibility. Coverture did not apply at criminal law, however. At least, it did not apply directly. Recognizing the power imbalance inherent in marriage, legal authorities nonetheless held that a married woman who committed certain crimes in the presence of her husband would not be held responsible. In her essay, Marisha Caswell examines the defence of “marital coercion” and, more generally, people’s perceptions of a married woman’s accountability for her own criminal acts. Relying on pre-trial depositions to access these views, Caswell demonstrates that deponents sometimes held married women to be less responsible because of notions of household unity, rather than compulsion, but generally focused on the women’s actions rather than their marital status. Whatever the dictates of coverture or defence of marital coercion, people tended to see the criminal responsibility of married and unmarried women in much the same way. That the legal implications of marriage differed depending on the court and the context is developed in Lindsay Moore’s essay. In her comparative examination of women’s legal options in England and its North American colonies, Moore challenges the historiographical convention that women in the colonies enjoyed more freedoms than their counterparts in the old country. Focusing on married women’s participation in debt and estate litigation in England, Maryland, and Massachusetts from 1630 to 1700, Moore demonstrates that women constituted a higher proportion of litigants in English courts than in the colonies. Women in both Maryland and Massachusetts lacked the option of turning to ecclesiastical courts; those in Maryland saw an equity court in their midst only after 1660 and those in Massachusetts not at all. As common law had fewer rivals in the colonies, married women there had fewer choices. Moore’s essay implicitly suggests ways in which high politics could inadvertently affect married women’s legal position, by barring the development of ecclesiastical courts and hindering the growth of equity courts in the colonies. Margaret Hunt’s contribution directly

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engages with an instance of political needs impinging on married women’s opportunities, in this case by quite consciously expanding them. In the 1690s, a regime insecure at home and at war abroad sought to strengthen its naval recruitment and financing by promoting preprinted wills with powers of attorney. With these documents, at once formulaic and remarkable, sailors could empower their wives to act as their deputies in their absence, most especially in dealing with their promissory pay tickets. These documents placated creditors and eased credit transactions, but also benefited wives. Husbands could revoke these powers at any time, but while in force, they restored most everything coverture took from a woman. The needs of the fiscalmilitary state meant that port communities would have hosted most unusual creatures: married plebeian women with fully autonomous legal personalities. The breadth of interests at work in the applicability, or otherwise, of coverture is also displayed in Barbara Todd’s essay. While criminal matters represented one key exception to common law coverture, “citizenship” represented another. From the birth of the common law through to the 1870 Naturalization Act, women acquired an indelible, natural allegiance to the lord and land of their birth that even marriage did not obliterate. Yet, as Todd shows in an essay focused on close analysis of two key cases in 1627 and 1640 about the ability of children of alien mothers to inherit from English fathers, judges chipped away at this, allowing coverture partially to absorb the alien mother’s status. Unlike the children of enslaved women, who followed the status of their mother according to civil law principle, these children would follow the status of their fathers. Trade interests, resistance to the royal prerogative of escheat, issues of race, and more impinged upon judicial rulings about married women’s separate allegiance. As Todd notes in her essay, married women’s allegiance and legal unity with their spouses became contested in the wake of the separation of the American colonies from Britain. Angela Fernandez’s essay immerses us in that early American context, as early nineteenth-century legal writers sought to determine the relationship between the laws of a new nation and their legal heritage. Demonstrating that Blackstone’s formulation of husband and wife being “one person in law” did not initially have universal purchase among American jurists, Fernandez

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seeks to explain why Tapping Reeve and Nathan Dane emphatically rejected it while James Kent endorsed it. She locates the roots of their disagreement in what can be summed up as the “shared New England background” of the former, most notably the heightened women’s activism there in revivalism, temperance, and anti-slavery movements. With intriguing echoes of the material in Moore’s essay, Fernandez also notes that Dane and Reeve’s New England background lacked equity courts, in contrast to Kent’s home state of New York, a difference that may well have contributed to their divergent views of the utility or validity of a rule that had so many exceptions. As Fernandez notes, these exceptions to coverture very often benefited the husband, a fact that emerges powerfully in Mary Beth Combs’s essay on the passage of the Married Women’s Property Act of 1870. Asking why an act granting married women distinct property rights passed then, and not in 1857 when a similar bill appeared before parliament, Combs adds to existing explanations an examination of the commercial lobby’s response to fraudulent uses of separate estates. Equitable trusts allowing married women separate property had become increasingly common among even middling shopkeeping families; as newspapers reported ever more loudly, these served as a way to conceal assets from creditors and to stave off bankruptcy. When bankruptcy reforms failed to achieve their intended aims, the commercial lobby turned its attentions to the loopholes afforded by coverture and separate estates. The Act of 1870 had a key proviso that the earlier bill lacked: it made married women liable for family debts, giving them obligations as well as rights. Women, in a sense, thus contributed to the passage of the 1870 act both by direct lobbying and indirectly through collusion with debtor husbands. In the final essay of this collection, Danaya Wright examines a variety of informal acts of resistance to coverture’s effects in both England and America. Foregrounding women’s agency and the “contested underside” of legal strictures about marital unity, Wright traces the ways in which some women struggled to retain custody of their children or property in defiance of the law. In so doing, she provides us with a final reminder that coverture, while not monolithic or insuperable, remained remarkably resilient and restrictive well into the nineteenth century.

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NOTES 1 See Mary Lyndon Shanley, Feminism, Marriage and the Law in Victorian England, 1850–1895 (Princeton, NJ: Princeton University Press, 1989), 180–3. 2 See Henry Finch, Law, or a Discourse Thereof (London, 1627), 26–7, and Frances Power Cobbe, “Criminals, Idiots, Women and Minors,” Frasers Magazine (December 1868): 777–94. 3 For studies that compare women’s common law legal disabilities with those in areas regulated by civil law and other legal traditions, see Noël James Menuge, ed., Medieval Women and the Law (Woodbridge: Boydell Press, 2000); Maria Ågren and Amy Louise Erickson, eds, The Marital Economy in Scandinavia and Britain, 1400–1900 (Aldershot: Ashgate, 2005); Cordelia Beattie and Matthew Frank Stevens, eds, Married Women and the Law in Premodern Northwest Europe (Woodbridge: Boydell Press, forthcoming). 4 Frances Dolan notes as examples of its residual effects the practice of a woman taking her new husband’s surname and the legal bar on compelling husbands and wives from testifying against each other: “Battered Women, Petty Traitors, and the Legacy of Coverture,” Feminist Studies 29, no. 2 (2003): 272. For Dolan’s broader treatment of coverture and its long-term effects, see Marriage and Violence: The Early Modern Legacy (Philadelphia: University of Pennsylvania Press, 2009). 5 Caroline Frances Cornwallis, “Capabilities and Disabilities of Women,” Westminster Review 67 (1857): 25, 30. 6 Ann Hughes, Gender and the English Revolution (London: Routledge, 2011), 23–4. 7 For the classic treatment of this separation, see Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988). 8 See especially Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill: University of North Carolina Press, 1980). 9 T.E., Lawes Resolutions of Women’s Rights; or, The Law’s Provision for Women (London, 1632), 4, 116–20, 130. 10 William Blackstone, Commentaries on the Laws of England (Oxford, [1765]– 69), 1: 430. 11 See, for example, Ågren and Erickson, The Marital Economy in Scandinavia and Britain. 12 A number of excellent works on married women’s property exist. See, in particular: Lee Holcombe, Wives and Property: Reform of the Married Women’s Property Law in Nineteenth-Century England (Toronto: University

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of Toronto Press, 1983); Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986); Susan Staves, Married Women’s Separate Property in England, 1660–1833 (Cambridge, MA: Harvard University Press, 1990); Amy Louise Erickson, Women and Property in Early Modern England (London: Routledge, 1993); Lori Chambers, Married Women and Property Law in Victorian Ontario (Toronto: University of Toronto Press, 1997). 13 For works showing how married women continued to view and treat familial property as their own, and how husbands were sometimes in accord, see, for example: Margaret Hunt, “Wives and Marital ‘Rights’ in the Court of Exchequer in the Early Eighteenth Century,” in Londinopolis, ed. Paul Griffiths and Mark S.R. Jenner (Manchester: Manchester University Press, 2000), 107–29; Joanne Bailey, “Married Women, Property, and ‘Coverture’ in England, 1660–1800,” Continuity and Change 17, no. 3 (2002): 351–72; Janet Loengard “‘Plate, Good Stuff, and Household Things’: Husbands, Wives, and Chattels in England at the End of the Middle Ages,” The Ricardian 13 (2003): 328–40; Amy Louise Erickson, “Possession – And the Other One-Tenth of the Law: Assessing Women’s Ownership and Economic Roles in Early Modern England,” Women’s History Review 16 (2007): 369–85. 14 The phrase comes from John Fraser MacQueen, The Rights and Liabilities of Husband and Wife (London, 1849), 339. 15 See, for example, Maeve Doggett, Marriage, Wife-Beating, and the Law in Victorian England (Columbia: University of South Carolina Press, 1993); Shanley, Feminism, Marriage and the Law; Elizabeth Foyster, Marital Violence: An English Family History (Cambridge: Cambridge University Press, 2005); Paul D. Halliday, Habeas Corpus: From England to Empire (Cambridge, MA: Harvard University Press, 2010). 16 Joanne Bailey, Unquiet Lives: Marriage and Marriage Difficulties in England, 1660–1800 (Cambridge: Cambridge University Press, 2003). 17 Amy L. Erickson, “Common Law versus Common Practice: The Use of Marriage Settlements in Early Modern England,” Economic History Review, 2nd ser., 43 (1990): 21–39. 18 See Eileen Spring, Law, Land and Family: Aristocratic Inheritance in England 1300 to 1800 (Chapel Hill: University of North Carolina Press, 1993) and Staves, Married Women’s Separate Property. 19 Millicent Fawcett, Women’s Suffrage: A Short History of a Great Movement (London, 1912); Alice Clark, Working Life of Women (London, 1919);

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Charlotte Carmichael Stopes, British Freewomen: Their Historical Privilege (London, 1894). 20 See Staves, Separate Property, 179–81, and Karen Pearlston, “At the Limits of Coverture: Judicial Imagination and Married Women’s Agency in the English Common Law” (PhD dissertation, Osgoode Hall Law School, York University, 2007). 21 Staves, Separate Property, 37–44. 22 Margot Finn, “Women, Consumption and Coverture in England, c.1760– 1860,” Historical Journal 39, no. 3 (1996): 703–22; Joanne Bailey, “Favoured or Oppressed? Married Women, Property and ‘Coverture’ in England, 1660–1800,” Continuity and Change 17, no. 3 (2002): 351–72; Zorina B. Khan, “Married Women’s Property Laws and Female Commercial Activity: Evidence from United States Patent Records, 1790–1895,” Journal of Economic History 56, no. 2 (1996): 356–88. 23 The phrase is Judith Bennett’s, from her deeply important examination of the subject in History Matters: Patriarchy and the Challenge of Feminism (Philadelphia: University of Pennsylvania Press, 2006). See also Staves, Separate Property: “In an important sense, the subject of married women’s property law almost has no history – if by ‘history’ we mean to imply important change” (228–9). 24 See Marjorie K. MacIntosh, “The Benefits and Drawbacks of Femme Sole Status in England,” Journal of British Studies 44 (2005): 410–38. 25 On petty treason, see, for example, Frances Dolan, Dangerous Familiars: Representations of Domestic Crime in England, 1550–1700 (Ithaca, NY: Cornell University Press, 1994), 20–88, and Marriage and Violence, 82–96. 26 John Jewel, The Second Tome of Homilies (London, 1623), 243. 27 As quoted in Dolan, Dangerous Familiars, 22. 28 Some of what follows has been rehearsed in Tim Stretton, “Coverture and Unity of Person in Blackstone’s Commentaries,” in Blackstone and His Commentaries: Biography, Law, History, ed. Wilfrid Prest (Oxford: Hart Publishing, 2009), 111–28. See, too, Holly Brewer, “The Transformation of Domestic Law,” in The Cambridge History of Law in America, vol. 1: Early America 1580–1815, ed. Michael Grossberg and Christopher Tomlins (New York: Cambridge University Press, 2008), 288–323, which also addresses the ways in which Blackstone’s formulation hid novelty under the guise of history, and for a discussion of Blackstone’s influence in the American colonies.

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29 Henrik Hartog, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000); Norma Basch, In the Eyes of the Law: Women, Marriage and Property in Nineteenth-Century New York (Ithaca, NY: Cornell University Press, 1982). 30 Hartog, Man and Wife in America; Kristin A. Collins, “Federalism’s Fallacy: The Early Tradition of Federal Family Law and the Invention of States’ Rights,” Cardozo Law Review, 26, no. 5 (2005): 1761–866. 31 F.W. Maitland, “The Early History of Malice Aforethought,” Collected Papers (Cambridge, 1911), 1: 314.

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Discourse on the Nature of Coverture in the Later Medieval Courtroom sara m. butler

Alice, widow of the fifteenth-century Norwich merchant Nicholas Crome, may well be one of the most authentic commentators on the nature of coverture in later medieval England. A woman with substantial property, she was a regular target for eager suitors looking to advance in society. According to her bill of complaint, when she rejected John Williamson’s proposal of marriage, he decided to persuade her in a more heavy-handed fashion. He abducted her, bringing her to an unfamiliar town, where he “shut her into an house within four locks by the space of five weeks.” Despite her imprisonment, persistent threats to her life, and frequent beatings, she continued to rebuff his matrimonial intentions. John eventually gave up on the prospects of marriage and instead focused on getting her to reveal where she had put the deeds to her husband’s land. He brought her to St Catherine’s (in Ludham, Norfolk), where he imprisoned her for eighteen weeks. She was chained to the wall for much of this time, suffering violent assaults, but managed to withstand the temptation to divulge the whereabouts of those deeds. When he got nowhere with Alice, John turned to her mother, presenting himself as Alice’s new husband and explaining that she wanted to sell the lands to pay their debts. Immediately sensing that something was amiss, Alice’s mother approached the mayor of Norwich on Alice’s behalf, deposited the deeds in his custody for safekeeping, and requested assistance to help Alice escape from her prison. Since that time, the church had granted an annulment to Alice for her “marriage” to John; she had also taken him to chancery to halt actions

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he had taken to confiscate some of her former husband’s property. In her bill to the chancellor, Alice, clearly coached by her lawyer, made it clear that she could not have granted John land because, as it is known, husband and wife “are all one person in law”; thus “a wife may not give her husband during the coverture neither land nor good.” Thus any enfeoffment he might have made during their marriage was invalid.1 Alice’s shrewdly crafted petition not only exhibits a keen understanding of marital property law, but also identifies a vital concept of coverture that merits greater scrutiny. Coverture combines two distinct ideas. First, the power of the husband over his wife, described best in the thirteenth century by Bracton’s On the Laws and Customs of England as the wife being “under the rod” of the husband, and conceived in feudal terms as baron and feme.2 Second, unity of person, an idea inspired by scripture, which holds that upon marriage husband and wife become one person in law, represented in the person of the husband. Thus, Bracton wrote that husband and wife are “a single person, because they are one flesh and one blood.”3 Medieval conceptions of coverture clearly included both elements, but how significant or central was the second notion, that of “unity of person”? In his study of late medieval sole femes, Brian Gastle places unity of person in the past, declaring that in the fourteenth century, in particular, there was a “rhetorical movement … away from this forced identification of the wife with her husband.”4 In contrast, Christopher Cannon has recently built upon F.W. Maitland’s earlier arguments that “unity of person” had not yet become legal doctrine, observing that it “was not yet in full operation during the Middle Ages.”5 Tim Stretton has developed this argument for the early modern period, suggesting that “unity of person” acquired greater centrality in later years.6 This essay seeks to determine whether such arguments conflict with Bracton’s statement, as well as Alice Crome’s about the role of unity of person in medieval understandings of coverture. Despite many bold assertions on the topic, little research exists on the understanding of coverture and the role of unity of person in the courts of medieval England. Given the diversity of existing perspectives on the significance (or lack thereof) of “unity of person” in the medieval era, it is imperative to gain a more precise understanding of exactly how the personnel of medieval courts understood coverture and its limitations. As such, this essay

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turns to an underutilized source – the Year Books – for what they reveal of attitudes towards a married woman’s “civil death,” the power of a husband over his wife, and the ways in which coverture did or did not affect those in ambiguous unions. It ends with a brief discussion of the ways in which cases recorded in the Year Books reflected or constructed common knowledge of coverture. It concludes that “unity of person,” though present, had not yet become pervasive.

Accessing the Medieval Discourse of Coverture Because Common Law is unwritten, historians must flesh out the theory of the law from both legal practice and legal writings. The practice of law as it relates to married women’s property has been the subject of substantial investigation in recent years, and despite the exertions of working with generally terse and formulaic records of litigation, historians have cultivated a firm understanding of married women’s legal disability and relationship to property.7 Legal writings, which would seem to hold much greater promise for a profound awareness of the theory endorsing the existence of coverture, have not received the same kind of attention. Certainly, scholars have mined treatises like that of Bracton to unearth a sense of medieval jurisprudence. Nonetheless, treatises of this nature, even though penned by English jurists, are ultimately flawed, as their authors “borrowed their terminology and structure” from Roman law.8 This characteristic is imperative to our analysis of Bracton. Its depiction of the predominance of the power relationship as opposed to unity of person may well be a reflection of Roman patriarchy rather than medieval English practice. The Year Books are an indispensable means to access the legal minds of the Middle Ages and, because of their nature, unusually reliable. A later medieval creation, the Year Books record series of dialogues between king’s justices and pleaders (an early form of barristers) relating to real, often identifiable, lawsuits that came before the king’s courts, providing a necessary balance to the records of the common law courts. Where the latter are maddening in their abbreviated and financially conscious natures, normally including only the indictment and (at best) a sentence, the Year Books are brimming over with those

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deliberations that led justices to their conclusions. It is significant that medieval jurists did not intend the Year Books to establish precedent; in truth, “binding precedent” as an ideology did not exist in the medieval period.9 Rather, their existence both memorialized the feats of the profession and offered examples of arguments that law students might employ to appreciate more deeply the law and its function. Given the remarkable insight they provide into the “old boys’ club” that was the medieval legal profession, why have historians often neglected these edifying sources? The reason for this is because, as Sir Frederick Pollock explained, to read through the Year Books is a somewhat daunting task. They are “full of bewildering omissions and blundering perversions and distractive mistakes of all kind,” making it a task that Pollock believed “no man living can be expected to undertake.”10 In essence, these dialogues are one disgruntled, jargonfilled dispute after another. Medieval legal professionals apparently were haughty and disagreeable people, extremely competitive in nature, loath to permit anyone the last word, and often their arrogance prevents them from settling on a mutually agreeable conclusion. For those of us wishing to discern legal perceptions of such thorny issues as coverture, however, the Year Books are a virtual goldmine of insight. Not only was coverture a recurrent subject of conversation in the Year Books, but justices and pleaders alike voiced their views about its applicability in diverse situations. In addition, justices repeatedly turned to analogy to gain perspective on cases; because the marital relationship is so fundamental, through analogy it acted as a useful model to explain a range of hierarchical relationships. To offer an example: an exchange dating to 1335 concerning a writ of quare impedit (“why he hinders”) sued by the chapter of the church of Our Lady of Lincoln against the dean of the same church used coverture as a paradigm for the bond linking dean and chapter. The chapter charged that the dean had prevented them from presenting an appropriate parson to the vicarage of the church, a position that was vacant and was the chapter’s responsibility to appoint. In a highly technical response, the dean’s pleader observed that the chapter could not bring a writ without joining the dean as plaintiff: “it is not an understandable thing at law that the chapter can bring a writ without the dean, no more than a feme covert without her baron, or a monk

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without his abbot.”11 As husband and wife are one person in law, so, too, are dean and chapter, as are monk and abbot. If a wife cannot sue her husband at law, then neither can the chapter sue its dean, or a monk his abbot.

Legal Professionals and Unity of Person Unity of person assumed a central role in the conception of coverture as the medieval courtroom understood it. In fact, the idea that husband and wife are one person in law was a common refrain for justices and pleaders when determining the legal rights of married individuals. Legal professionals went to great pains to prove the very real existence of this legal fiction. A 1461 case from the court of Common Pleas, turning on the issue of whether a wife can take profit in her own right, confirms the medieval court’s commitment to unity of person. Justice Walter Moyle argued zealously that “the husband and his wife are one person in law … if the husband and his wife and a third (party) purchase jointly, the husband and his wife will have but half, and the third (party will have) the other half; and this proves well that the husband and his wife are but one person.”12 Justice Moyle’s reasoning did not end there; he applied the same logic to various hypothetical scenarios (including sharing a tenancy, taking profits, etc.), always reaching the same conclusion. Since at least Blackstone, legal scholars have recognized this particular example as a basic element of the medieval understanding of unity of person.13 While it is not the only usage apparent in the Year Books, it is the most straightforward. As early as 1345, justices and pleaders asserted the significance of unity of person; yet, they persistently presented the concept as a correlative of a husband’s authority. Two examples demonstrate this conceptual interfusion. In a 1365 case of conspiracy, the courts indicted husband and wife of plotting to accuse falsely a man of homicide. Justices took exception with the writ because the act of conspiring requires more than one person; thus, husband and wife, as one person, were simply incapable. Unity of person alone, though, was an inadequate justification. As one justice explained it, “it could not be understood that a wife, who was at the

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will of her husband, could conspire with him, because the whole would be accounted the act of the husband.”14 A 1440 case of petty treason reveals the same intermeshing of coverture’s two distinct components. A servant was arraigned for killing his master’s wife. Technically, petty treason was restricted to the killing of a master by his servant; the decision to label the homicide of the master’s wife also petty treason implies that unity of person was a guiding factor. However, justices rationalized their decision with reference to the husband’s dominance in the marriage, declaring a wife cannot employ servants. Even if a woman owned servants before her coverture, once married her servant becomes the husband’s servant also.15 Justices and pleaders seldom agreed on how to interpret unity of person in real-life situations. A 1456 case of trespass assault sued in the court of Common Pleas against an unnamed man and his wife exemplifies best the complexity of the issue. The dialogue discloses nothing of how the attack transpired, but it is clear that the wife, not the husband, did the assaulting. The husband worked as servant to the archbishop of Canterbury, who also happened to be chancellor of England. Thus, the husband sued a writ in chancery directed to the justices claiming privilege of chancery, a custom reserved to the chancellor’s employees (from masters down to menial servants), stipulating they might only be sued in the court of Chancery. The plaintiff ’s response challenged directly the fiction of unity of person. The plaintiff stressed two concerns: first, because the wife was not servant to the chancellor, the privilege did not apply to her, and thus the case must be sued elsewhere; second, before the last continuance, the king had replaced the archbishop with a new chancellor; thus, technically, neither was servant to the chancellor anymore. The ensuing debate expresses a great disparity in perspectives on the applicability of coverture. Serjeant Billing advocated the couple claim the privilege by referencing both facets of coverture. If servants to the servants of the chancellor also retain the privilege, then so should this wife, as “the woman is the servant to the husband, as each woman is to her husband, and because [of that] he must have the privilege.” Billing added, “and also the husband and the wife are one person in law; and thus it seems to me that the first cause is sufficient.” The justices then offered their insight. Several focused primarily on the fact that the archbishop was

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no longer chancellor, and thus the ex-chancellor was no longer eligible to claim privilege of chancery; his servant should not be able to either. Certainly, this is a valid point. Justice John Prisot also contended that unity of person was not a legitimate argument: it existed only as a legal simplification with no real bearing on the process of the law. If a writ was sued against husband and wife, and during the process the husband was excused from service to the king, if they were truly one person, the “essoin would excuse both defendants together, which is not the law.” The problem, as he saw it, is that the husband is servant but the wife is not: “the chancellor and his servants … have the privilege: and thus the wife is not servant, nor does she have the privilege.” His concluding speech reveals the dilemma with unity of person: “The husband and the wife are one person in law, in some respects it is so, and in some respects not … And to this that is said that the servant of the servant of the chancellor will have the privilege, and the wife is servant to the husband, and because of that she will have the privilege; I grant well, but the wife is not properly servant.” This led him to conclude that the couple cannot claim privilege of chancery.16 The justices never reached a definitive conclusion; nonetheless, the debate itself tells us just how complex unity of person and its application were in the medieval mindset.17

Civil Death The extinction of a wife’s legal identity, what lawyers commonly refer to as “civil death,” is the logical conclusion of unity of person. In essence, she becomes “Mrs Him”; their legal personalities are so firmly merged she cannot have a separate existence, so much so that when a woman acts in her own right at law, she is construed as acting on his behalf (that is, being his attorney, or under his influence).18 The medieval courtroom was reluctant to proclaim the civil death of the wife, as confirmed by a case of debt on an obligation from 1426 in the court of Common Pleas. This case provoked a strenuous debate on the ability of a wife to own chattels. Under the law, a married woman owned none: as Janet Loengard has nicely summed it up, “any possessions a woman had when she married, no matter how she acquired them, whether by

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purchase or gift or inheritance, or anything she acquired afterwards, immediately became the property of her husband, absolutely. He was free to use them, lend them, sell them, give them away, break them – and they could be used to pay his debts. Not only that, if he died before his wife he could dispose of them by his will and she could do nothing about it.”19 Surprisingly, medieval justices did not unanimously support this perspective. A man known only to us as Richard W. was executor to his wife Alice. Alice had also been executor of the testament of Hue Bushely. When she died, Richard inherited this responsibility. In bringing a writ of detinue against a man who owed money to Hue on an obligation, Richard caused legal professionals to pause in their daily business to understand how a man might actually come to be executor for his wife. Although the law permitted a wife to draw up a will, providing she had the permission of her husband, some justices and pleaders were baffled at the very possibility that a wife should be capable of making a will.20 Serjeant Thomas Rolf and Justice John Martin argued vigorously that a wife cannot leave a will because the whole point behind a will is to administer the goods of the dead, yet a “feme covert has no goods.” And how can the wife “give by her testament [that] which she could not have given during her life”? Rolf explained his perspective through analogy, comparing a married woman to a monk: since a monk cannot own goods, he cannot make an executor; the same situation applies to a wife. Justice William Babington took the opposite approach. In fact, “there is great diversity between a monk and a feme covert: because the monk, by his profession, is a ‘dead person in law,’ in which case he cannot make executor since he is dead; but a feme covert is not … a dead person, because during the coverture she can have an advantage.” For example, when an obligation is made to a wife, the obligation is still valid at law. Thus, in Babington’s mind, “this proves well that the feme covert can have chattels during her coverture.” Babington persisted by referencing canon law, noting that a wife is owed half of all her husband’s goods at the time of his death. Thus, of course, she should be able to make a will. Unsettled by this seemingly taboo turn in the conversation, Justice John Martin remarked that, in present company, references to canon law were not appreciated. Because “when an action is brought in our law, it must be brought according to our law … [and] by our law, a

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feme covert cannot have goods, nor is there an action by which she can demand those goods.” Therefore, she cannot make a will.21 The idea of being “a dead person in law,” as justices here referred to civil death, arose a number of times in justices’ deliberations in the Year Books. But as this case demonstrates, legal professionals had difficulty establishing the circumstances in which civil death should apply, both for wives and for monks. Nonetheless, it is some comfort to see that justices were much more content pronouncing monks as “dead people in law” than they were their own wives.22

The Power of a Husband over His Wife The Year Books constantly reaffirm the power a husband asserts over his wife. The repeated usage of the terms baron and feme construct a pervasive impression of marriage as a feudal hierarchy. A 1440 dialogue in which justices make a conscious reference to the husband as king crystallizes this ideology: “a feme covert will not be impleaded nor put to answer without her Sovereign.”23 That power relationship defined entirely a wife’s identity. Justices in a case from King’s Bench in 1340 explained that a wife was essentially a different person than she had been before marriage. On the way to court one day, William Botevileyn and his wife Margery accosted Robert Scardeburgh, justice in King’s Bench. Fuming, “Margery, in the presence of the justices, insulted Robert with contumelious words, and called him false and faithless, laying upon him that he falsely sued against her a writ of trespass in the King’s Bench in contempt of the king to 1000 marks.” Immediately, Robert sued a bill citing contempt against the king (in the person of his justice), and William and Margery were rushed into court, where Robert sat as one of the judges upon their case. Revealing a great familiarity with the law, the defendants claimed the bill was invalid because it did not properly name Margery. She insisted her name was “Margery of Muyse,” alleging to be single, having recently divorced William (“divorce” in this situation refers to a divorcium a vinculo, that is, an annulment). This technicality was sufficient to quash the case, because, as justices noted, “she was not the same person.” A wife cannot have a last name: “because when she took a husband, she

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lost every surname except the surname ‘wife of.’” The only resolution was to ask the bishop of Rochester if he had indeed performed the divorce as Margery claimed. Regrettably for the defendants, the bishop returned that “no divorce had at any time been pronounced before him between William and Margery”; thus the two were convicted.24 Coverture is the reason why the practice of taking a man’s surname at marriage was exclusive to England and its colonies for nearly 400 years.25 Union under the man’s name not only reflects the merging of legal personalities, it also highlights the vexed question of the extent to which husbands had property in their wives. The very ability of a man to sue for ravishment, that is, the taking of wife and goods, demonstrates how the law differentiates the wife from her husband’s chattels but still considers her an object to be taken (especially since her consent to being taken is not an issue).26 A husband’s authority over the person of his wife did have its limits. Among the myriad discussions of ravishment in the Year Books, one case explicitly delineates the boundaries of a husband’s authority. In 1504, a man named Vernon sued a writ of trespass in King’s Bench for taking of wife and goods. He directed the suit against an unnamed man who had given Vernon’s wife a ride to Westminster so she could sue a divorce against Vernon (here, it is unclear whether “divorce” refers to an annulment or a judicial separation on the grounds of cruelty or adultery).27 This awkward situation triggered an enlightening discussion concerning acceptable ways to take a man’s wife. The courts needed to consider carefully the circumstances of the taking: “Because in diverse cases one can justify the taking of a wife. As if a wife be thrown to the ground by a horse, or by some other accident, anyone can aid her and take her up. And if she is sick, anyone can take her to his house and give her (something) to eat and drink; and if the husband wishes to murder her, one can take her and safeguard her from damage. And even though one cannot take the wife of another person without cause, yet if it is a reasonable cause, one can take her.” One justice rationalized that sometimes taking a man’s wife might actually be doing a “favour to the husband.” What if she were trying to kill herself? Should one not take her, and thereby prevent her from doing so? The husband’s will was not the final word. If a wife commits a felony, one can arrest her, even if it is against the husband’s will. Chief Justice John Fyneux neatly summed up the

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husband’s authority: “every wife is bound to the lawful commandments of her husband: but not to every commandment, whether it be lawful or not.” Not only did he disparage the very notion that something unlawful might have transpired in Vernon’s case, but he lauded the wife for her actions. Yes, “she could have come herself to Westminster to sue the divorce, yet it was more appropriate that other persons come with her” (meaning, of course, to preserve her honest reputation).28 For our justices, this case was significant, as Vernon’s tyranny was undermining the very peace that the law is sworn to uphold: “And if a wife comes to me, and says that her husband wishes to kill her because of that she is in fear of him, and says that she wishes to go to the Justices of the Peace to get a warrant of peace against her husband, and I take her and I attend on her until she comes to a Justice of the Peace, I say that I can claim to do (this lawfully), because it is lawful for her to have peace from her husband.”29 In this rare moment of solidarity, justices and pleaders showed that coverture was not an excuse for abuse of power. Nevertheless, this stirring debate was motivated primarily out of a concern to protect men who assisted wives in need. Although the law did not permit the conviction of women in cases of ravishment, it is not hard to imagine that the courtroom response would have been considerably different if Vernon had accused a woman.30 Medieval justices were far from being champions of women. In fact, justices found a married woman’s legal disability to be a laughing matter. In a 1436 case for an undisclosed action sued at King’s Bench, the defendant, a feme covert, appeared at court alone. She reported that “she did not know if her husband was dead or not”; he had gone overseas and had not returned since. In his absence, she was condemned and put in execution. Then, her husband returned, and together the two sued a writ of error. The court held that the writ was maintainable, and reversed the record. A justice in the case humorously observed that if a husband chose not to sue the writ of error, then he has essentially brought about a divorce, as he ought not be in her company, and she could not sue the writ or purchase a pardon without him. Therefore, the man is “well discharged of her, if she be a shrew.”31 This episode was so entertaining that Justice Littleton fortytwo years later reminisced once more on the possibility of an astute husband’s “unofficial divorce” from a shrew through outlawry, again

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the Year Book suggests, to great merriment.32 All joking aside, this case exposes just how incapable a wife was to protect herself at law without the guardianship of a caring husband.

Coverture: Not Just for Wives The most striking observation about the nature of coverture is how legal professionals extended its disability to women not clearly married. Two particular dialogues exemplify how justices undermined a woman’s independence by applying the rules of coverture despite the woman’s single state. In the first example from 1421, a man sued a writ of ravishment at the court of King’s Bench. The plaintiff ’s “wife” appeared in court with official documentation attesting that she had obtained a divorce (that is, an annulment) from the plaintiff. Explaining the “ravishment,” she told the court that what her former husband was calling “ravishment” had all occurred since the divorce, and, moreover, that the defendant had lain with her, but that the act was consensual, performed with her “consent and free will.” In spite of her rationale, the husband won his case: rather than sending away to the church courts for evidence of the divorce, they determined that because a wife does not have power over her body, she did not have the authority to consent, only the husband did.33 In a second example from 1456, a pleader tried to clarify the difference between right and possession. Arguing by analogy, he declared that if a man sued a case of ravishment of wife and goods, one could not quash the case by saying that she was not legally his wife. It is enough to say that she was “his wife in possession,” if not “in right” (that is, they had behaved like husband and wife), and “he will have this action.”34 The idea of a “wife in possession” versus a “wife in right” was not the anomalous creation of an imaginative but overworked pleader. A justice in 1365 also made this distinction.35 Because most court records included, at best, the indictment and sentence, we have no way of knowing whether this line of reasoning frequently guided justices in courtroom sentencing. Yet, these two cases bring to our attention the need to recognize that coverture had a much wider impact in the medieval period, because the medieval world conceived of marriage as a process, not an act;

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thus, there were many opportunities in which “the line between the single and the married might be blurred.”36 Cordelia Beattie insists that we must recognize “degrees of marriage.” Cohabiting, separated, or divorced couples, women with absent husbands – in some respects, all of these individuals existed on a “marriage continuum.”37 While the modern world identifies these women as single, that label is not entirely appropriate for medieval England since coverture still played a critical role in shaping their lives. Beattie’s conclusion echoes that of our earlier justice: “The husband and wife are one person in law, in some respects it is so, and in some respects not.”38

Common Knowledge of the Rules of Coverture The unusually explicit statement on unity of person included in Alice Crome’s bill that began this investigation makes us question just how well informed women were about the rules of coverture. Was the theory behind coverture the preserve of these legal elites? Or, was Alice’s specialized knowledge typical? A number of cases appearing in the Year Books show that women comprehended coverture sufficiently to manipulate it to their own benefit. In 1338, when John of F. brought a writ of trespass for assault and imprisonment to the court of Common Pleas, the defendants brandished coverture as grounds to quash the writ. The writ targeted W. of P. and his wife Elizabeth, as well as their daughter Joan. John alleged that they had beaten him, and imprisoned him until he paid a fine of £100. Joan’s response was that his writ was invalid as she was, in actual fact, his wife. Eventually John admitted that they were married, but he maintained he “was compelled by force to marry her, and never afterwards assented to it.” The justices’ consensus was that a valid marriage between them was sufficient to invalidate the writ for all the named defendants.39 Some women exhibited a more nuanced understanding of coverture than the king’s justices did. In 1342 Alice of Denecombe brought a writ of trespass to King’s Bench to recover goods carried away by Nicholas le Forester. Nicholas insisted that, after Alice married Thomas of Middelton, her husband had a deed drawn up releasing Nicholas from responsibility for any future actions, including trespass

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committed against his wife. The defendant thus requested judgment as to whether the deed (presented at court) cancelled Alice’s writ. Alice responded that at the time the trespass was committed, “she was sole.” Moreover, the marriage, which the church had since annulled, was coerced. After stealing her goods, Thomas and Nicholas together “with force and arms … carried her away,” and “without the consent and against the will of Alice, [Thomas] married her, and by means of threats and through fear of death compelled her to speak the words of matrimony.” The coercion proves Thomas and Nicholas forged the deed against her will. Despite her perceptive pleading strategy, Alice Denecombe’s case was not successful. Although the court recognized the divorce (only after receiving documentation), they determined that at the time the release was made, she was feme covert and thus the deed was good.40 The suits of these few women alone are insufficient to determine that the rules of coverture were common knowledge. The broader pool of records from the royal courts allows us to confirm that these knowledgeable women were not anomalies. Rather, their awareness of a married woman’s legal disability seems typical. Women regularly referenced coverture to explain their actions, although, more often than not, the motivation was to evade legal responsibility.41 Allegations of debt provide some of the most useful examples. In 1421, when John Sygore of London appeared in Common Pleas to sue Anna Gy as her late husband’s executor for debt on a bond, she responded that on the day of the making of the writ, she was subject to coverture, as she had recently remarried, and thus the writ was invalid.42 In 1480, Rose wife of Robert Smyth of London asked the chancellor to defend her in a suit brought against her by “a great questmonger and embracer of inquest,” in the Sheriffs’ Court of London. She claimed that she was being sued falsely as a feme sole for her husband’s debts, when in reality she was “coverte de baron.”43 The ability of married wives to claim feme sole status, a licensed position that allowed wives to separate their economic interests from their husbands’ and act as single women in business transactions, contributed to that blurring of distinctions between women’s single and married states. Many cases involving defences of coverture link explicitly to this ambiguity of marital status. When Common Pleas summoned Joan Defford in

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1468 to account for her arrears on a debt, she protested that at the time of the accounting, she was in the coverture of John Dyfford, then her husband. The attorney of the bench replied that she was a single woman and not in the coverture of a husband as she claimed.44 When John Grey tried to shirk his responsibility for a bond of 50 s. made to Isabella Keyser by asserting that at the time of the writing of the writ, she was in the coverture of her husband, Isabella adamantly replied that “she was a single woman, and was not then or ever afterwards in the coverture” of the man he called her husband.45 All of these women demonstrated a good knowledge of how coverture influenced a woman’s legal accountability, but among them, only Alice Crome articulated the origin of that limitation precisely as unity of person. How did women learn the rules of coverture? Alice Crome implied it was common knowledge; certainly our legal professionals would agree. Alice wife of Hugh Tansey made a similar insinuation when she appeared in chancery in the late fifteenth century. Facing prison for a debt she alone had incurred, Alice fearlessly reminded the court that it was “contrary to the law of this land to make a woman that hath a husband to answer as a woman sole.”46 Indeed, Anne wife of John Davell’s chancery bill suggests that few women were aware a wife was capable of acting independently of her husband. When sued for debt and trespass at the Mayor of London’s court on the pretence that she was a feme sole, Anne objected that she “never was sole merchant [a married woman with feme sole status] nor knew what that term meant unto this time that necessity taught her, but was ever continually covert baron.”47

Conclusion Later medieval England was a period of transition. Although unity of person played a pivotal role in the legal understanding of coverture, courtroom disputes about the circumstances in which it should apply reveal deep-rooted uncertainty as to what extent unity of person had any real impact on a couple at law. Often, justices were more comfortable viewing a woman’s legal disability as the result of the power a husband wielded over his wife. Furthermore, justices demonstrated

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great discomfort with the civil death of the wife, a concept that would confirm the prevalence of unity of person. It is critical to acknowledge, too, that litigants were not necessarily privy to an understanding of coverture grounded in “unity of person.” While they were aware of a wife’s status under the law, only Alice Crome reveals a more specialized understanding of the reasoning for that status, and she may have been simply coached by a good lawyer. What is perhaps even more remarkable is the light the Year Books shed on the marital relationship. Dialogues about the nature of coverture present a rather dismal view of marriage and its impact on the legal personality of a wife. Both the Year Books and the court records themselves suggest that the only perquisite coverture offered to women was the ability to hide from legal responsibility. What is pertinent here is to remember that most wives did not end up in court fighting about issues relating to coverture. Investigations into legal practice have established that both the law and medieval couples found ways to work around the strictures of coverture; feme sole status was just one of those many ways. Pre- or post-nuptial agreements, jointures, uses, purchasing on credit – are all examples of methods couples used to evade a wife’s total loss of control over property and finances within the arena of marriage. In reality, wives experienced “sliding agency”; that is, “a wife had autonomy that the law might or might not recognize, dependent on the circumstances and the willingness of her husband to cover her actions.”48 Husbands might assume the role of tyrant in the marital relationship; but even with the almost unlimited power afforded to husbands by coverture, not all husbands were tyrants. Studies of men’s wills in England at the end of the Middle Ages demonstrate that, not only did husbands generally leave their wives in charge of the marital property after death, but most husbands were “uneasy” about the idea of disposing of property that a woman brought to the marriage.49 What is more, not all justices felt the same way as these ill-tempered men about the importance of married women appearing in court with their husbands. Some justices permitted women singly to sue cases, even when the law technically did not allow them to do so, because it was more important to see justice served.50 Nevertheless, the evidence of the Year Books is critical to a fuller picture of both the nature of coverture and how the medieval courts

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implemented it. The Year Books give us a sense of what wives were up against when their husbands did decide to act like tyrants. The dialogues expose an intellectually diverse group of pleaders and justices, united only in being woefully out of touch with the realities of marriage. For a multitude of reasons (from social expectations, to courtship processes and economics), medieval women did not usually choose matrimony; it was chosen for them. Yet, justices failed to acknowledge this actuality. Legal professionals heaped blame on the shoulders of the wife when she suffered for her husband’s poor choices and even suggested that she should have married more wisely. To offer a smattering of examples: in 1454, a justice complained of a woman’s “foolishness” in marrying a man who administered poorly an estate that was her responsibility.51 In 1442, a justice blamed a woman’s “foolishness” for marrying a man who breached the condition of her inheritance.52 In 1458, justices turned away a waived woman who appeared without her husband seeking a pardon. For her “foolishness,” they told her to bring her husband with her next time, “otherwise she will always remain in prison.”53 Finally, in 1465, a woman whose husband would not join her in a lawsuit was told “it is her foolishness and her own act that she married.”54 Given the influence and authority of these “grumpy old men,” their inability to recognize the pressures on women to marry meant that they were not the ideal judges to address cases of this nature. Even more worrisome, the Year Books played an important role in the education of future generations of lawyers and justices. Until the explosion in legal writing in the late sixteenth century, legal professionals learned to ply their trade by studying the Year Books. Thus, through their enduring presence in the teaching of legal professionals, the Year Books’ ubiquitous misogyny and overblown vision of coverture did have a very real impact on women and surely paved the way for single-minded jurists like Blackstone in the early modern era. NOTES 1 The National Archives, Public Record Office, Kew, Surrey [hereafter TNA: PRO] C1/79/71 (1486). Court of Chancery: Six Clerks Office: Early Proceedings, Richard II to Philip and Mary. For the purposes of this paper,

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I have modernized all English spelling for Middle English quotations drawn from the records. 2 Henry de Bracton, On the Laws and Customs of England, trans. S.E. Thorne, 4 vols. (Cambridge, MA: Belknap Press of Harvard University, 1968–77), 4: 287. 3 Ibid., 4: 335. 4 Brian Gastle, “‘As if she were single’: Working Wives and the Late Medieval English femme sole,” in The Middle Ages at Work: Practicing Labor in Late Medieval England, ed. Kellie Robertson and Michael Uebel (New York: Palgrave Macmillan, 2004), 50, 52. 5 Christopher Cannon, “The Rights of Medieval English Women: Crime and the Issue of Representation,” in Medieval Crime and Social Control, ed. Barbara A. Hanawalt and David Wallace (Minneapolis: University of Minnesota Press, 1999), 159, 170. 6 Tim Stretton, “Coverture and Unity of Person in Blackstone’s Commentaries,” in Blackstone and his Commentaries: Biography, Law, History, ed. Wilfrid R. Prest (Oxford: Hart Publishing, 2009), 127. 7 Among others, Pearl Hogrefe, “Legal Rights of Tudor Women and Their Circumvention by Men and Women,” Sixteenth Century Journal (1972): 97–105; Janet S. Loengard, “Common Law for Margery: Separate but Not Equal,” in Women in Medieval Western European Culture, ed. Linda E. Mitchell (New York: Garland, 1999), 117–30; S.J. Payling, “The Economics of Marriage in Late Medieval England: The Marriage of Heiresses,” Economic History Review 3 (2001): 413–29; Barbara Hanawalt, The Wealth of Wives: Women, Law, and Economy in Late Medieval London (Oxford: Oxford University Press, 2007). 8 David J. Seipp, “Bracton, the Year Books, and the ‘Transformation of Elementary Legal Ideas’ in the Early Common Law,” Law and History Review (1989): 180. See also Carl Güterbock and Brinton Coxe, Bracton and His Relation to the Roman Law (Littleton, CO: Rothman, 1979). 9 Brian Simpson, “The Source and Function of the Later Year Books,” 87 Law Quarterly Review, no. 1 (1971): 94–118. 10 As cited in William Craddock Bolland, “The Equipment of Year Book Study,” 11 Georgetown Law Journal, no. 1 (1922): 6. 11 Year Books [hereafter Y.B.] Trin. 9 Edw. III, ff. 18b–19b (1335). All translations are my own. I have added or changed punctuation in order to

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be more consistent with modern usage. This project is indebted to David J. Seipp of Boston University’s keyword-searchable calendar of Year Books, an excellent starting place for anyone working on the Year Books. Please see David J. Seipp, ed. “Seipp’s Abridgement,” Boston University, http://www. bu.edu/law/seipp/ (last updated 20 December 2010). 12 Y.B. Hil. 39 Hen. VI, ff. 44b-45b (1461). 13 See discussion in Stretton, “Coverture and Unity of Person,” 115. 14 Y.B. Mich. 19 Edw. III (1365); as it appears in Luke Owen Pike, ed. Year Books of the Reign of King Edward the Third (Rolls Series, no. 31, pt B, vol. 13, 1911), 346–9. 15 Y.B. Mich. 19 Hen. VI, ff. 47a–47b (1440). 16 Y.B. Mich. 35 Hen. VI, ff. 3a–4b (1456). 17 The issue of unity of person and the privilege of chancery re-emerges in at least two further cases when unity of person was thought to be even more meaningful, and yet the same difficulties were identified. In Powle’s case from the year 1581, the wife of the clerk of the crown in chancery was explicitly forbidden to claim privilege of chancery in a testamentary suit against both husband and wife, “because the wife is not impleadable there, nor her attendance requisite by the custom.” English Reports 73, pt 2 (Edinburgh: W. Green, 1907), 846. Similarly, in 1806, the courts used Powle’s case as precedent to resolve a case in which a wife was sued jointly with her husband for debts she accumulated before marriage. William Pyle, ed., Report of Cases Argued and Determined in the Court of Common Pleas, and Other Courts, vol. 1 (Boston: Wells and Lily, 1810), 253–4. 18 Elizabeth Fowler, “Civil Death and the Maiden: Agency and the Conditions of Contract in Piers Plowman,” Speculum 70, no. 4 (1995): 774. 19 Loengard, “Common Law for Margery,” 122. 20 Richard Helmholz has argued that married women’s wills all but disappeared in fifteenth-century England. See R.H. Helmholz, “Married Women’s Wills in Later Medieval England,” in Wife and Widow in Medieval England, ed. Sue Sheridan Walker (Ann Arbor: University of Michigan Press, 1993), 165–82. 21 Y.B.Trin. 4 Hen. VI, ff. 31b–32a (1426). The italics are my own. 22 Y.B. Mich. 4 Edw. IV, ff. 24b–25b (1464). 23 Y.B. Pasch. 18 Hen. VI, ff. 1a–3b (1440). 24 Y.B. Trin. 14 Edw. III (1340); published in Luke Owen Pike, ed., Year Books of the Reign of King Edward the Third: Year XIV (Rolls Series no. 31, pt B,

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vol. 4, 1888), 322–31. Variance in marital status between writ and reality is a problem that actually happened more frequently than one would think in a time when marriages were supposed to be indissoluble. See also Y.B. Hil. 6 Edw. III, f.8b (1332). 25 Amy Louise Erickson, “Coverture and Capitalism,” History Workshop Journal 59 (2005): 4. 26 The first time the consent of the women themselves was included as a concern is in a 1487 statute. See E.W. Ives, “‘Agaynst taking awaye of Women’: The Inception and Operation of the Abduction Act of 1487,” in Wealth and Power in Tudor England: Essays Presented to S.T. Bindoff, ed. Ives, R.J. Knecht, and J.J. Scarisbrick (London: Athlone Press, 1978), 21–44. 27 “Divorce” in the medieval world referred to an annulment (divorcium a vinculo), in which the church declared that the marriage was never valid in the first place, or a judicial separation (divorcium a mensa et thoro), in which the church approved the request for a couple to live separately because of one of the spouse’s cruelty or adultery. For more on this topic, please see Sara M. Butler, Divorce in Medieval England: From One to Two Persons in Law (New York: Routledge, 2013). 28 Y.B. Mich. 20 Hen. VII, ff. 2a–2b (1504). 29 This quotation is drawn from the second discussion of this case, which appears in Y.B. Hil. 21 Hen. VII, ff. 13a–13b (1506). 30 Y.B.Trin. 43 Edw. III, f. 23a (1369) includes a case of ravishment that was quashed because it was sued against a knight and his wife. 31 Y.B. term uncertain, 14 Hen. VI, f. 14a (1436). 32 Y.B. Pasch. 18 Edw. IV, f. 4a (1478). 33 Y.B. Mich. 9 Hen. V (1421); as it appears in Ralph V. Rogers, ed., Year Books of the Reign of King Henry the Fifth (Wurzburg: Privately printed, 1948), 30–1. 34 Y.B. Mich. 35 Hen VI, ff. 9a–10b (1456). 35 Y.B. Mich. 39 Edw. III, ff. 32a–33a (1365). 36 Cordelia Beattie, “Living as a Single Person: Marital Status, Performance and the Law in Medieval England,” Women’s History Review 17, no. 3 (2007): 329. 37 Ibid., 328. 38 Y.B. Mich. 35 Hen. VI, ff. 3a–4b (1456). 39 Y.B. Hil. 12 Edw. III (1338); as it appears in Pike, Year Books, no. 31, pt B, vol. 1, 360–3. See also Y.B. Hil. 12 Edw. III (1338); as it appears in ibid., 390–3.

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40 Y.B. Trin. 16 Edw. III (1342); as it appears in Pike, Year Books, no. 31, pt B, vol. 8, 240–7. 41 Marjorie K. McIntosh contends that women working as feme sole in London frequently refused to register as such, realizing that coverture acted as a useful protection for their actions at court. See Marjorie K. McIntosh, “The Benefits and Drawbacks of Femme Sole Status in England, 1300–1630,” Journal of British Studies 44, no. 3 (2005): 410–38. 42 The discovery that her second husband was actually dead at the time the writ was drafted, however, left her in mercy, owing not only the debt but also damages of 100 s. TNA: PRO CP40/641, rot. 228d. Court of Common Pleas: Plea Rolls. 43 TNA: PRO C1/64/883. 44 TNA: PRO CP40/829, rot. 117. 45 TNA: PRO CP40/754, rot. 320. 46 TNA: PRO C1/32/344 (ca. 1465–71, or 1480–83); this case is also discussed in McIntosh, “The Benefits and Drawbacks of Femme Sole,” 423. 47 TNA: PRO C1/80/12. 48 Kathleen Kennedy, Maintenance, Meed, and Marriage in Medieval English Literature (New York: Palgrave Macmillan, 2009), 32. 49 Janet Senderowitz Loengard, “Plate, Good Stuff, and Household Things: Husbands, Wives, and Chattels in England at the End of the Middle Ages,” The Ricardian 13 (2003): 334. 50 Patricia Orr, “Non Potest Appellum Facere: Criminal Charges Women Could Not – But Did – Bring in Thirteenth-Century English Courts of Justice,” in The Final Argument: The Imprint of Violence on Society in Medieval and Early Modern Europe, ed. Donald Kagay and L.J. Andrew Villalon (Woodbridge: Boydell, 1998), 141–60. 51 Y.B. Mich. 33 Hen VI, ff. 31a–31b (1454). 52 Y.B. Pasch. 20 Hen. VI, f. 28b (1442). 53 Y.B. term uncertain, 36 Hen. VI, ff. 1a–2a (1458). 54 Y.B. Pasch. 5 Edw. IV, ff. 15b–20a (1465).

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Coverture and Its Discontents: Legal Fictions on and off the Early Modern English Stage natasha korda

We may liken the fiction to an awkward patch applied to a rent in the law’s fabric of theory. Lifting the patch we may trace out the patterns of tension that tore the fabric and at the same time discern elements in the fabric itself that were previously obscured from view. Lon Fuller, Legal Fictions

Although coverture was certainly quite real in its constraining influence on early modern women’s lives and property relations, it was nonetheless grounded in a legal fiction – that of marital unity of person – a counterfactual premise known to be false, yet purportedly “accepted” as true.1 The degree and nature of this acceptance, however, is no simple matter and should not be taken for granted. For the truth of legal fictions concerns that which is “rightly or lawfully such,” rather than that which is “consistent with fact” or represents “the thing as it is” (OED, “true, adj., n., and adv.,” 3.a., 4.c.). According to Lon Fuller a legal fiction is by definition “never … made with the intention of producing belief in its truth [i.e., veracity],” but rather in its legitimacy.2 The humour of Mr Bumble’s famed reluctance to accept coverture’s fiction in Dickens’s Oliver Twist lies in his conflation of the two: “If the law supposes” that a wife acts under her husband’s direction, he asserts, “the law is a ass – a idiot. If that’s the eye of the law, the law is a bachelor, and the worst I wish the law is, that his eye

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may be opened by experience – by experience.”3 Yet in mistaking that which is “lawfully such” for that which represents “the thing as it is,” Bumble points to a larger truth – namely, the discrepancy between legal theory and the lived reality of everyday “experience.” In so doing, he lifts the “awkward patch” of the legal fiction, allowing us to glimpse the tensions that lie beneath. Bumble’s umbrage at the confabulation of the law to which he is nonetheless subject further reveals that although “not intended to deceive,” a legal fiction may still function “as accomplice in a process of deception” in that it conceals “the exercise of legislative power under the guise of [its] pretense.” 4 The legal fiction of coverture, that “husband and wife are one,” is from this perspective “a statement not of fact but of … a court possessed of the power to create and enforce rights.” 5 We here encounter an important distinction between legal and literary fictions: the willing suspension of disbelief that is crucial to literary fiction need not be so willing in the case of fictions that carry the force of law.6 Yet, as we shall see in what follows, this distinction did not prevent authors of dramatic fiction in early modern England from harnessing the power of coverture’s legal fiction, and the tensions that surrounded it, to their own aesthetic ends. In staging these tensions within the “two hours’ traffic” of a play, early modern dramatists invite scrutiny of an inherent similarity between legal and literary fictions: in both cases, the suspension of disbelief that undergirds the efficacy of fiction is temporally finite. Blackstone famously defines the fiction of coverture as a state of temporal suspension (“the very being or legal existence of the woman is suspended during the marriage”),7 and in so doing underscores its inherent transience. Suspension is, after all, a “temporary deprivation” or “cessation,” a “postponement” (OED, “suspension, n.,” 1.a, 2.a, 3.a). The impermanence of believing, much less being, in fiction would seem to be crucial to coverture’s efficacy, yet at least potentially undermining – at once the condition of its possibility and of its possible undoing – insofar as the “state of being kept in suspense,” inherent to coverture’s legal fiction, raises the spectre of “doubt, [and] uncertainty” (OED, “suspension, n.,” 6). Did wives simply stop thinking of their property as their own during marriage? Or did the legal fiction of coverture merely keep them in a state of suspense? Did women view their marital portions as gifts to their husbands? As loans? As stolen

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goods? The pervasive tensions and frequent disputes surrounding marital property in early modern England suggest that the answers to these questions were by no means certain and serve as an important reminder of the disjuncture between legal theory and everyday practice, as well as between competing systems of law. The suspense and uncertainty inherent in coverture and the resulting contention over marital property made for compelling theatre in Shakespeare’s day, not least because audiences were all too aware of the very real stakes of the fiction being played out onstage. The suspense of coverture was exacerbated by the complexity of the legal landscape in early modern England. As Amy Erickson, Margaret Hunt, Susan Staves, and others have shown, there were many ways in which wives could circumvent the rigidity of the common law, such as their use of trusts for separate estate (i.e., wives’ separate property), a practice that began in the 1580s and spread rapidly thereafter.8 Beginning in the 1590s, petitions were increasingly exhibited to Chancery by married women and their agents seeking to enforce the terms of these legal instruments, and a series of favourable rulings led to their more confident use. By such means fathers sought to protect their daughters’ assets, and wives and widows their own assets, from avaricious, impecunious, or insolvent spouses. Even ordinary women without formal trusts for separate estate, Erickson maintains, may not have “stopped thinking of certain property as theirs simply for the duration of the marriage.”9 She provides poignant anecdotal evidence of this in the case of women who inscribed their personal property, prior to marriage, with an identifying signature or mark. Such was the case with Janevive Deane, who before her second marriage to Charles Pressye of Wiltshire, esq. in 1600 demarcated her personalty “that soe shee might still keep her owne stock and goods whole, in apparancie to the worlde.”10 Deane’s insistence upon maintaining the “apparancie” of her proprietary interest in her movable property during marriage may be read as a small act of resistance to the legal shroud of coverture. It further suggests that, as Garthine Walker has claimed, “popular perceptions of ownership did not strictly adhere to legal definitions” and that “the legal framework of the common law” did not preclude “a popular understanding that some property belonged to women” during marriage.11

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Needless to say, men did not relinquish their claims on their wives’ property easily, particularly when hard-pressed by creditors.12 Margaret Hunt cites numerous cases of husbands resorting to violence when wives refused to hand over money set aside in trust, including one husband who held a dagger to his wife’s throat, threatening to “cut her Neck off” unless she would consent to sell some of her separate property to pay off his debts.13 Disputes over marital property were a frequent occurrence between husbands and wives, and as Laura Gowing has shown, such disputes often centred on goods that wives claimed as their own or “kept locked away, in their own chests.”14 Margaret and William Phillips fell into such a dispute, Gowing recounts, when Margaret refused to open her locked chest and William took an axe to it. Inside, he found brass and pewter, which he claimed “she had stolen from him,” and in the ensuing scuffle over the movables, Margaret “scratched the skin of his face … and struck his shinnes with her foote … [and] threatened to kill him with a knife.”15 At issue in such disputes, in Gowing’s view, “was the central question of shared marital property, an ideal whose full implications many of these women apparently refused.” 16 Such instances suggest that the advent of wives’ separate property – whether inscribed with identifying insignia, kept aside in legal trusts, or locked away in chests – was hardly uncontested terrain. Indeed, it was the source of considerable strife within marriages and of ideological conflict within the culture at large. Wives’ quotidian gestures of defiance, such as those described above, rend the veil of coverture, revealing its discontents – as well as its potential for dramatic fiction. This potential lay not only in the suspense surrounding the uncertain status of marital property or the outcome of a given dispute, but in the semantic register of coverture itself, which was imbued with a different kind of uncertainty. Derived from the Old French couverture meaning “covering,” coverture literally referred to “anything used to cover,” such as household bed covers, linens, or clothing (OED, “coverture, n.,” 1.a, 2, 3). Dictionary definitions routinely began with this literal sense, which was then used to characterize marital unity as a figurative “covering” of the wife’s legal identity by that of her husband (e.g., “Coverture, is a French word signifying any thing that covereth, as apparell, a coverlet, &c.

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and deduced from the verb couvrer … It is particularly applied in our common lawe, to the estate and condition of a maried woman, who by the lawes of our realme, is in potestate viri”).17 Legal writers and moralists sought to promote domestic harmony by emphasizing coverture’s status as a “protective covering; shelter; [or] refuge” (OED, “coverture, n.,” 5) for married women. Thomas Bentley, in his Mirrour for Maidens and Matrons (1582), thus claims: “the husband ought to be the head, vaile, and defence of his wife, to preserve and keepe hir from all dangers.” 18 Yet legal writers and others also acknowledged that the semantic register of coverture likewise suggested “concealment; dissimulation, deceit, [or] covert conduct” (OED, “coverture, n.,” 7) – introducing the potential disharmony that might arise from the concealed or covert agency of the so-called feme covert. Following Bentley’s normative definition of what coverture “ought to” signify, we thus find the following warning to husbands: “Be not ashamed to set a good locke where an evill wife is, and to locke up things where manie hands are.”19 As his appended maxim makes clear, marital unity of person did not preclude the possibility of multiple, competing interests (or “manie hands”) at work under coverture. If legal theory defined “wedlock [a]s a locking together” of husband and wife, in practice it was not always certain in whose hands the keys to the lock were kept.20 The two feme coverts mentioned above, Deane and Phillips, demonstrate such competing interests or independent agency in laying claim to property during marriage, albeit in quite different ways: whereas Deane seeks to undo coverture’s concealment through an eventual act of discovery that will make her movables “appar[ent] to the world,” Phillips creates a space of concealment within coverture by hiding hers away in a locked chest. In stealthily manoeuvring to wrest control of property during marriage, both women skilfully manipulate a paradox central to the common law fiction of coverture: if the feme covert could not claim ownership of her property, neither could she be prosecuted for stealing it back from her husband. In the words of The Lawes Resolutions of Womens Rights: “a woman cannot be thiefe of her husbands goods, if shee take and give them away, the receiver is no felon.”21 The feme covert’s lack of legal identity in the eyes of the common law might therefore work “to the prejudice of her selfe or her husband.”22 From this perspective, the legal shroud of coverture

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conferred privileges as well as constraints upon wives. A wife was immune from prosecution for theft not only from her husband, but while in his company, because it was supposed that she was acting (the very supposition that so riles Mr Bumble) “under his direction.” 23 It was incumbent upon the husband to disprove this assumption if he was to avoid prosecution for thefts committed or debts contracted (in his name) by his wife.24 As Aviam Soifer has eloquently argued, “legal fictions do not hold still.” Once introduced, they create new and unexpected “relationships and expectations” among those who govern with and are governed by them.25 Although the common law dictated that a wife’s legal identity and right to own property were entirely “vailed, as it were, clouded and over-shadowed”26 by her husband, the mutable contours of this “cloud,” as we have seen, were subject to contestation and concealed varied forms of female agency and possession. The dramatic potential of the ever-shifting, metaphorical “cloud” of coverture was not lost on Shakespeare and his contemporaries.27 Disputes over marital property in early modern England provided the plots for many plays, and such plots often turned on acts of concealment and discovery – which are, after all, crucial components of theatrical denouement. Domestic comedies and tragedies in particular reveal the degree to which playwrights and their audiences were attuned to the suspense and dramatic potential of the discovery space concealed behind the veil of coverture. In accordance with the dictates of genre, plays focused on domestic life mined this potential to quite different, comedic or tragic, ends. We can see this difference at work in Shakespeare’s oeuvre in The Merry Wives of Windsor and Othello.28 In both plays, the threat of wives keeping things from their husbands takes on a sexual dimension by dramatizing the danger that a wife who lays claim to marital property may not only keep it for herself, but give it away to a lover. Both plays pivot on the figure of the jealous husband whose mistrust of his wife centres on her de facto control over household property and, more particularly, household linens, which become a kind of metonymy for the hidden forms of female agency and possession coverture conceals. Linens were not only a crucial component of women’s trousseau, they were also manufactured and maintained (i.e., washed, starched, and so forth) by women, who were responsible for the cleanliness and upkeep

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of this most intimate form of coverture. It is therefore not surprising that linens were among the most common articles that husbands complained of wives conveying away from the marital home.29 The focus on linens in both plays is likewise suggestive of the new wealth and consumptive habits of the middling sort, and of housewives’ responsibility to establish household trust and credit through their diligent management of marital property. Although contemporary anxieties surrounding the concealed agency of the feme covert play a pivotal role in both plays, the generic protocols of comedy and tragedy emplot the dangers associated with wives’ de facto control over marital property in quite different ways. The Merry Wives lifts the veil of coverture, revealing women’s management of household property (and their husbands’ suspicions thereof) as a source of comic suspense and slapstick farce. The economic agency of Mistress Ford is immediately foregrounded – we are told that “she has all the rule of her husband’s purse” (1.3.49–50) – and becomes the occasion for Ford’s obsessive searching of his household to discover what she might have hidden away, like Margaret Phillips, within its “coffers” and “presses” (3.3.196).30 Yet Ford’s anxiety is revealed to be egregiously misplaced, and he is humiliated for it. “Fie, fie, Master Ford, are you not ashamed?” (3.3.199), his friend Page chides as Ford rifles through his wife’s buckbasket of dirty linens in search of her presumed paramour, Falstaff. Ford is cast as ludicrously suspicious of what his wife may be concealing within the hidden recesses of their home, as she wearily observes: “Neither press, coffer, chest, trunk, well, vault, but he hath an abstract for the remembrance of such places, and goes to them by his note” (4.2.56–9). Mistress Ford’s lengthy list of the household’s covert spaces habitually inspected by her husband underscores the excessive nature of his jealousy, which focuses on the status-commodities – and in particular the “covertures” and implements for their maintenance – that fill his home: “This ’tis to be married. This ’tis to have linen and buckbaskets!” (3.5.132–3), he whines. Ford obsessively searches his domicile, absurdly seeking the fat knight in even the minutest of receptacles, including “a halfpenny purse” and “a pepper-box” (3.5.134–8). The comedy serves to assuage anxiety regarding wives’ managerial control over marital property by revealing Ford’s concern to be misplaced.

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Excessive suspicion or mistrust over what may lie hidden beneath the veil of coverture – once again evoked onstage in the form of household linens – likewise drives the suspense plot of Othello, which turns, as Thomas Rymer famously complained, on the whereabouts of a handkerchief.31 Whereas The Merry Wives deploys disproportion as a comedic strategy, Othello allows the husband’s misplaced anxieties to blossom into a cautionary tale by playing out the dire consequences that may arise from his overzealous concern with his wife’s ownership of even the smallest “trifle” (5.2.226).32 It is worth mentioning here that jealousy was associated during the period with the institution of private property, and its attendant anxieties of dispossession; it was defined as “a certaine care of mans minde, least another shoulde possesse the thing, which he alone would enjoye.”33 Richard Tofte’s 1615 translation of Benedetto Varchi’s 1545 treatise on the subject, entitled The Blazon of Jealousie, thus claims that jealousy springs from a concept of “Propertie or Right” that would “engrosse” the desired object “soly and wholy unto ourselves.”34 The seventeenth-century Ladies Dictionary similarly defines jealousy as “a meer Monopolist, a Coveter of all.”35 Jealousy’s claim to exclusive ownership was construed negatively as a form of covetousness that sought to monopolize the object of desire. Othello’s jealous obsession stems from his uncertainty as to whether the handkerchief, and Desdemona herself, belongs solely to him. Iago exacerbates this uncertainty by attributing ownership rights to Desdemona: “if I give my wife a handkerchief … Why, then, ’tis hers, my lord, and being hers / She may, I think, bestow’t on any man” (4.1.10, 12; my emphasis). Under the common law, Othello’s gift of the handkerchief to Desdemona would not have affected its status as his absolute possession, for as The Lawes Resolutions of Womens Rights summarizes: “The very goods which a man giveth to his wife, are still his owne, her Chaine, her Bracelets, her Apparell, are all the Goodmans goods.”36 Yet the legal shroud of coverture was, as we have seen, a good deal more porous than this statement suggests. Not only did women have recourse to equity and other courts to mitigate the stricture of the common law, the common law itself recognized certain exceptions to the doctrine of coverture, as Blackstone writes: “in one particular instance,” he says, “the wife may acquire a property in some of her husband’s goods … These are called her paraphernalia,” which he

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defines as the “apparel and ornaments of the wife.”37 It is worth noting in this context that while Othello uses the first-person possessive pronoun throughout the play when referring to the handkerchief, as when he spies on Cassio and Iago (“By heaven, that should be my handkerchief!” [4.1.156]), Iago’s attribution of possession significantly shifts. Although Iago initially attributes ownership to Desdemona – as above when he claims that if Othello gave it to her, “Why, then ’tis hers” (see also 3.3.443) – he later accedes to Othello’s claim on the handkerchief, but only after it is clear that it is irrevocably lost. “And did you see the handkerchief?” he asks, after Othello has seen Bianca bring it to Cassio. “Was that mine?” Othello replies, dazed. “Yours, by this hand,” Iago insists, finally granting Othello’s ownership, only to snatch it away again in the next breath: “She gave it him, and he hath given it his whore” (4.1.170–4). With the increasing use of trusts for separate estate in the early seventeenth century, references to wives’ de jure, rather than merely de facto, control over marital property began to surface in dramatic literature, and in particular in the newly topical genre of city comedy, with its satire of contemporary London life. In Ben Jonson’s Epicoene, or The Silent Woman (1609–10), for example, Truewit seeks to persuade Morose not to marry by warning him of the “incommodities of a wife” (2.4.13). Among these, he lists the likelihood that his betrothed will “have made a conveyance of her virginity aforehand, as your wise widows do of their [e]states, before they marry, in trust to some friend” (2.2.136–8).38 As in The Merry Wives and Othello, wives’ proprietary interest in marital property is here linked to the threat of sexual impropriety, that is, the conveyance of virginity before marriage. The veil of coverture is lifted to reveal (and revile) wives’ increasingly common use of legal trusts to establish separate property. “’Tis no devised, impossible thing” (2.2.141), Truewit warns Morose. Women who wield such trusts in Epicoene are cast not only as sexually promiscuous, but as intolerable shrews. Much of the play’s satire centres on Mistress Otter, a remarried widow worth “six thousand pound[s]” (4.2.72), who “commands all at home” (1.4.27). Her husband will not utter a word but “under [her] correction” (e.g., 3.1.24). Their topsy-turvy marriage is enforced, we learn, by a pre-nuptial contract, according to which she retains not only control over the property she

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has brought into the marriage, but sovereignty within the household as well. When her husband is disobedient, she chides: “Is this according to the instrument when I married you? That I would be princess and reign in mine own house, and you would be my subject and obey me? What did you bring me, should make you thus peremptory? Do I allow you your half-crown a day to spend where you will … ? Who gives you your maintenance, I pray you? Who allows you your … three suits of apparel a year? Your four pair of stockings … ? Your clean linen, your bands and cuffs … ?” (3.1.29–39) In Epicoene, household linens are not merely under the wife’s de facto managerial control as in The Merry Wives, nor a contested item of her paraphernalia as in Othello; they belong to her separate estate, legally set aside prior to marriage. As such they constitute property that she may, at her own discretion, give to her husband, rather than vice versa. Early modern playwrights’ familiarity with the advent of trusts for separate estate is evidenced by the appearance of these legal instruments not only in plays, but in the wills of theatre people and other documents of theatre history. Actor Thomas Downton (d. 1625), for example, refers in his will to marital property that had been held aside for his second wife, who was a widow when they married, as “possessed for hir & to her use,” and claims that he has “not Altered Any Estate of hers since my marriadge to her.”39 The will of John Astley, Master of Revels from 1622 to 1640, bequeaths to a woman named Bridgett Cherson alias Wainwright £4 per quarter during her lifetime, making a provision so that she might “have the whole benefitt thereof to her selfe with out her husband or any other inter medling with the same.”40 Playwright Thomas Middleton’s widowed mother, Anne Middleton, who was left a prosperous leaseholder after the death of Middleton’s father in January 1586, wisely set up a legal trust prior to her second marriage to Thomas Harvey later that year to protect her marital property. Her plan was to rent out property near the Curtain theatre, which she had inherited from her first marriage, “to tennauntes at her Will & to receave the renttes & profyttes therof comynge to her owne vse for the mayten[an]ce & relieffe of herself … & her children,” and to safeguard her children’s inheritance.41 When Anne refused to hand over the property after her marriage to Harvey, however, he “grewe into great Colloure [i.e., choler]” and lodged a

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complaint with the Lord Mayor. Anne was not intimidated, however, and once again showed considerable legal and financial savvy by having herself arrested for not delivering the portions to which her children were entitled. Knowing that under coverture her legal identity was “covered” by her husband, and that he was therefore responsible for her debts, she thereby forced Harvey to deliver her children’s portions in cash to the Lord Mayor’s Court.42 Anne Middleton’s example demonstrates that wives sometimes exploited the legal protection of coverture in sophisticated ways to their own ends. It is perhaps for this reason that Thomas Edgar claimed, “Women … are understood either married or to bee married and their desires [are] subject to their husband[s], I know no remedy though some women can shift it well enough.”43 For such women, coverture served to enable, as well as constrain, economic agency. Middleton’s plays feature highly sought-after wealthy heiresses and widows whose property, as his mother’s life so poignantly demonstrates, was in high demand as business capital. In The Roaring Girl (1611), written with Thomas Dekker, Moll Frith opts out of the institution of marriage altogether, viewing this option as a more honest strategy than that of women who “turn o’er all their wealth in trust to some kinsman,” and make their husbands “work hard for a pension” (2.2.61–3).44 Middleton thus has it both ways, criticizing coverture (“where a maiden loses one head, and has a worse i’ th’ place” [2.2.44–5]) and trust-wielding wives as well. Moll’s exceptional status as a cross-dressed “roaring girl” affords her a vantage from which to critique the overbearing citizens’ wives in the play, who exert sovereignty over their husbands and managerial control over the goods purveyed in their shops. Notable among these is Mistress Openwork, who runs a sempster’s shop with her husband, selling “fine bands and ruffs, fine lawns, [and] fine cambrics” (2.1.2–3), though the text makes clear that it is she who manufactures these linen attires for the shop’s elite customers (2.1.160–3). Significantly, in assuming the role of producer, rather than consumer, of household linens, Mistress Openwork herself succumbs to the excessive jealousy ascribed to husbands in both The Merry Wives and Othello. As in those plays, her jealousy focuses obsessively on the status and whereabouts of linens in which she has a proprietary

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interest, which are viewed as indicators of her spouse’s sexual fidelity or infidelity. When she spies her husband selling Moll a “shag ruff,” she thus scolds “I send you for hollands, and you’re i’ the low countries with a mischief ” (2.1.226–8), implying that he has been visiting Moll’s “low cunt-ries.” Yet Mistress Openwork is hardly above reproach herself, as she initially succumbs to the advances of a gallant who persuades her that her husband “keeps a whore i’ th’ suburbs” (2.1.327–8), and that she should take revenge by keeping a “friend” herself. In the end, however, she realizes her folly in trusting the duplicitous gallant and “open[s] all” (4.2.44) to her husband, averting the threat of sexual impropriety associated with her economic agency. Her very name – which literally refers to the openwork lace that adorns the linen attires she sells45 – figuratively conveys the stigma of sexual “openness” associated with working women, while suggesting that this stigma can only be averted by a feme covert who “open[s] all” to (i.e., keeps nothing hidden from) her husband. In doing so, she demonstrates her husband’s maxim that “fine wares cannot be open enough” (4.2.131). As in The Merry Wives, the dangers associated with covert forms of female economic agency hidden beneath the veil of coverture are aired, or opened to scrutiny onstage, so that they may ultimately be averted. Moll opens all in a different sense, by frankly refusing the chopped logic of coverture and forthrightly refusing to marry: “I have no humour to marry. I love to lie o’ both sides o’ th’ bed myself; and again, o’ th’ other side, a wife, you know, ought to be obedient, but I fear me I am too headstrong to obey, therefore I’ll ne’er go about it … I have the head now of myself, and am man enough for a woman; marriage is but a chopping and changing, where a maiden loses one head, and has a worse i’ th’ place” (2.2.36–40, 42–5). We may glimpse in the fictive Moll’s refusal to marry an imagined escape from the tribulations suffered by Anne Middleton during her marriage to Thomas Harvey. And yet we have also seen that Anne learned to “shift it well enough” in manipulating the law of coverture to her own ends. The real Moll or Mary Frith, upon whom Middleton and Dekker’s character was modelled, resembled Anne in this respect. Three years after the play was performed (and she famously made a post-play appearance at the Fortune theatre), on 23 March 1614, Mary Frith married Lewknor Markham at St Saviour’s church in Southwark. As Gus Ungerer has

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demonstrated, however, this marriage by no means represented  a capitulation to the popular equation of coverture with female subjection. For Frith thereafter on several occasions wielded her status as feme covert to avoid prosecution for “accions [of debt] brought against her … by reason she was Maryed to one Markham … and soe being a feme Covert, she cannot be ympleaded as a feme Sole.”46 In so doing, she engaged in a “legal double game,” for there is evidence that she never lived with her husband, and that the marriage was thus one “of convenience contracted with a view to avoiding the discrimination and disabilities resulting from coverture and to exploiting [its] loopholes.”47 It is known that Frith ran a brokerage business in London as a feme sole, trading in second-hand clothing (which may have brought her into contact with the professional stage), so in claiming feme covert status to avoid her creditors she was effectively having it both ways, albeit in a quite different sense than her fictional counterpart.48 It is no small irony that the openwork ruffs sold by Mistress Openwork, the embroidered handkerchief at issue in Othello, and the many other linen attires worn as costumes and covertures used as props by players onstage, would themselves have been manufactured and maintained by female sempsters, starchers, and laundresses (or provided second hand by brokers like Moll Frith).49 From this perspective, the plays discussed above reveal the fictive dimension not only of coverture, but of the purportedly “all-male” stage itself. For the rise of the professional stage relied on the labour, wares, ingenuity, and capital of women of all stripes, including the wives, daughters, and widows of theatre people, who worked actively alongside their male kin supplying costumes, properties, and much-needed business capital. Actors turned to female moneylenders, including the wives and widows of theatre people who had set aside trusts for separate estate, when they were in need of ready cash.50 One playing company (Queen Anne’s Men) became indebted to actor Thomas Greene’s wife Susan when he died in 1612 and left her his share in the playing company (worth £80) along with other credits (worth £37) owed to him by the company.51 Susan made further financial arrangements with the company, including two additional loans (of £57 10s. and £38) for which the company was to pay her 1s. 8d. for every playing day.52 It is worth noting that for four of the eleven years in which Susan

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had financial dealings with the company, she was married to her third husband, James Baskerville, and thus under coverture. The 1634 will of her son, actor William Browne, makes clear, however, that before she married James, she had set aside the assets she inherited from her second husband in the form of a trust held by William to her sole “use and benefitt.”53 She was wise to have done so, as several years after her marriage to Baskerville he fled to Ireland when it was discovered that he had a second wife.54 Susan Baskerville, Anne Middleton, and their peers belonged to the first generation of women to protect their assets (including shares in the all-male playing companies, stocks of costumes and properties, theatre-leases, etc.) by setting aside trusts for separate estate during marriage, to pursue such claims in equity courts, and to lend money to fund commercial ventures, including theatrical ventures, during coverture.55 References to these practices in play texts and theatre people’s wills demonstrate that the legal fiction of coverture played a pivotal role in early modern English theatre, both on and offstage. The tensions surrounding it fuelled dramatic plots in a variety of genres, as we have seen, gripping the men and women who stood in suspense in theatre audiences, for whom the fiction was all too real. NOTES 1 According to the Oxford English Dictionary, a legal fiction is “a supposition known to be at variance with fact, but conventionally accepted for some reason of practical convenience, conformity with traditional usage, decorum, or the like.” See “fiction, n.,” 5 and 5.a, OED Online, http://www. oed.com.ezproxy.wesleyan.edu:7790/view/Entry/69828?rskey=7qNcuJ& result=1&isAdvanced=false (accessed 28 June 2012). All further references to the OED are to the online edition; definition number(s) will henceforth be cited parenthetically. On coverture as a legal fiction, see J. H. Baker, An Introduction to English Legal History (London: Butterworths, 1971), 258. 2 Lon L. Fuller, Legal Fictions (Stanford: Stanford University Press, 1967 [1930–31]), 7. 3 Charles Dickens, Oliver Twist, or, The Parish Boy’s Progress, 3 vols. (London, 1838), 3: 279. See also Danaya Wright, “Coverture and Women’s Agency: Informal Modes of Resistance to Legal Patriarchy” in this volume. 4 Fuller, Legal Fictions, 5.

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5 Ibid., 33. 6 Several legal theorists emphasize this distinction. Thus, Soifer argues, “potential violence lurks beneath the fictions created by judges, while the nexus between even the most powerful literary fiction and actual force is quite attenuated.” Aviam Soifer, “Reviewing Legal Fictions,” Georgia Law Review 20 (1986): 871–912, esp. 882–3. Dolin similarly claims, “legal interpretation cannot be assimilated to literary interpretation because the production and reception of texts within the law takes place within a context of the systematic application of state-sanctioned force.” Kieran Dolin, Fiction and the Law: Legal Discourse in Victorian and Modernist Literature (Cambridge: Cambridge University Press, 1999), 10. See also Robert M. Cover, “Violence and the Word,” 95 Yale Law Journal (1986): 1601–29; Robin L. West, “Adjudication Is Not Interpretation: Some Reservations about the Law-as-Literature Movement,” Tennessee Law Review 54 (1986): 203–78; Nancy J. Knauer, “Legal Fictions and Juristic Truth,” 23 St. Thomas Law Review (2010-2011): 1–51, esp. 38–9. 7 William Blackstone, Commentaries on the Laws of England, 15th ed. (London, 1809), 441. 8 Amy Louise Erickson, Women and Property in Early Modern England (London: Routledge, 1993), 103–13. Trusts for separate estate were upheld by the Court of Chancery starting in Elizabeth’s reign; by the 1630s, one authority stated that it was “no uncommon thing for a wife to have separate property, independent of her husband.” Quoted in Peter Earle, Making of the English Middle Class (Berkeley: University of California Press, 1989), 159. See also Joanne Bailey, “Favoured or Oppressed? Married Women, Property and ‘Coverture’ in England, 1660–1800,” Continuity and Change 17, no. 3 (2002): 351–72; Maria L. Cioni, “The Elizabethan Chancery and Women’s Rights,” in Tudor Rule and Revolution: Essays for G.R. Elton from His American Friends, ed. Delloyd J. Guth and John W. McKenna (Cambridge: Cambridge University Press, 1982), 159–82; Margaret Hunt, The Middling Sort: Commerce, Gender and the Family in England, 1680–1780 (Los Angeles: University of California Press, 1996); Craig Muldrew, “‘A Mutual Assent of Her Mind?’: Women, Debt, Litigation and Contract in Early Modern England,” History Workshop Journal 55 (2003): 47–71; Susan Staves, Married Women’s Separate Property in England, 1660–1833 (Cambridge: Harvard University Press, 1990). 9 Erickson, Women and Property, 150.

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10 Ibid., 123; see also 137. 11 Garthine Walker, “Women, Theft and the World of Stolen Goods,” in Women, Crime, and the Courts in Early Modern England, ed. Jennifer Kermode and Garthine Walker (Chapel Hill: University of North Carolina Press, 1994), 83, 90. 12 Hunt, The Middling Sort, 160. 13 Ibid., 161. 14 Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford: Clarendon, 1996), 213. 15 Ibid. 16 Ibid., 214. 17 John Cowell, The Interpreter: or Booke Containing the Signification of Words Wherein Is Set Foorth the True Meaning of All, or the Most Part of Such Words and Termes, as Are Mentioned in the Lawe Writers, or Statutes of this Victorious and Renowned Kingdome, Requiring Any Exposition or Interpretation (London, 1607), sig. T3v. See also Thomas Blount, Glossographia: Or A Dictionary, Interpreting all such Hard Words, whether Hebrew, Greek, Latin, Italian, Spanish, French, Teutonick, Belgick, British or Saxon; as are now used in our refined English Tongue (London, 1656). 18 T[homas] B[entley]. The Sixt Lampe of Virginitie Conteining a Mirrour for Maidens and Matrons: or, the Severall Duties and Office of All Sorts of Women … Newlie Collected and Compiled to the Glorie of God, by T.B. Gentleman (London, 1582), 15. 19 Ibid., 16. 20 T[homas] E[dgar], The Lawes Resolutions of Womens Rights: or, the Lawes Provision for Woemen. A Methodicall Collection of Such Statutes and Customes, with the Cases, Opinions, Arguments and Points of Learning in the Law, as Doe Properly Concerne Women … (London, 1632), 124. 21 Ibid., 206. 22 Cowell, The Interpreter, sig. T3v; my emphasis. 23 Bailey, “Favored or Oppressed?” 352. 24 “[I]f shee steale goods, or receive theeves to her house, &c. and if the husband so soone as hee perceive it waive and forsake their company, and his owne house, in this case the Womans offence makes not felonie in the baron.” E[dgar], The Lawes Resolutions of Womens Rights, 206. “[S]he is in subiection unto hir husband, and can performe nothing without his consent. Neverthelesse, if the husband, hearing of his wifes vows and

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bonds, hold his peace, and saie nothing against it, nor warne not his wife the selfe same daie that he hath first notice of hir vowes so made: then his silence shall establish all hir vowes and bonds, which she hath made, and confirme them to be good both against himselfe and his wife.” B[entley], Mirrour for Maidens and Matrons, 16. 25 Soifer, “Reviewing Legal Fictions,” 877. 26 Ibid., 125. 27 On the metaphorical dimension of legal fictions, see Fuller, Legal Fictions, 10; J.H. Baker, The Law’s Two Bodies: Some Evidential Problems in English Legal History (Oxford: Oxford University Press, 2001), 44; Knauer, “Legal Fictions and Juristic Truth,” 9. 28 My argument here elaborates on earlier work in Natasha Korda, Shakespeare’s Domestic Economies: Gender and Property in Early Modern England (Philadelphia: University of Pennsylvania Press, 2002), esp. chapters 3 and 4. 29 Bailey, “Favored or Oppressed?” 364. Bailey’s evidence is culled from 1,500 cases of litigation concerning marriage in the Durham, York, and Oxford ecclesiastical courts, of wife beating, desertion, and separation in the courts of Quarter Sessions in Northumberland, Newcastle, Durham, North Yorkshire, Buckinghamshire, and Oxfordshire, and from advertisements placed in newspapers by husbands refusing to pay their wives’ debts. 30 William Shakespeare, The Merry Wives of Windsor, The Arden Shakespeare, ed. Giogio Melchiori (Walton-on-Thames, Surrey: Thomas Nelson and Sons, 2000). All further references are to this edition. 31 “So much ado, so much stress, so much passion and repetition about an Handkerchief!” Thomas Rymer, A Short View of Tragedy (London, 1693), 139. 32 William Shakespeare, Othello, The Arden Shakespeare, ed. E.A.J. Honigmann, (Walton-on-Thames, Surrey: Thomas Nelson, 1997). All further references are to this edition. 33 Edmund Tilney, The Flower of Friendship: A Renaissance Dialogue Contesting Marriage, ed. Valerie Wayne (Ithaca, NY: Cornell University Press, 1992 [1568]), 122. 34 Benedetto Varchi, The Blazon of Jealousie, trans. R[ichard] T[ofte] (London, 1615), 17, 19. 35 N.H., The Ladies Dictionary; Being a General Entertainment for the Fair Sex: A Work Never attempted before in English (London, 1694), 233.

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36 E[dgar], The Lawes Resolutions of Womens Rights, 129. 37 Blackstone, Commentaries, 435. 38 Ben Jonson, Epicoene, or The Silent Woman, ed. R.V. Holdsworth, The New Mermaids (New York: W.W. Norton, 1979; rpt. 1990). 39 E.A.J. Honigmann and Susan Brock, eds, Playhouse Wills, 1558–1642: An Edition of Wills by Shakespeare and His Contemporaries in the London Theatre (Manchester: Manchester University Press, 1993), 147. 40 Ibid., 199. 41 Mildred G. Christian, “A Sidelight on the Family History of Thomas Middleton,” Studies in Philology 44, no. 4 (1947): 490–6, esp. 494. See also P.G. Phialas, “Middleton’s Early Contact with the Law,” Studies in Philology 52, no. 2 (1955): 186–94; Gary Taylor, “Middleton, Thomas (bap. 1580, d. 1627),” in Oxford Dictionary of National Biography, ed. H.C.G. Matthew and Brian Harrison (Oxford: Oxford University Press, 2004); online ed., edited by Lawrence Goldman, May 2008, http://www.oxforddnb.com/view/ article/18682 (accessed 7 January 2010). 42 Mark Eccles, “Thomas Middleton a Poett,” Studies in Philology 54, no. 4 (1957): 516–36, esp. 519. Over the next fifteen years, husband and wife continued to fight in and out of court over Anne’s and her children’s assets. Harvey was imprisoned several times for his debts, and once in 1595 for attempting to poison Anne. Ibid., 520–2. 43 E[dgar], The Lawes Resolutions of Womens Rights, sig. B3v. My emphasis. 44 Thomas Middleton and Thomas Dekker, The Roaring Girl, ed. Paul A. Mulholland (Manchester: Manchester University Press, 1987). 45 The OED cites John Florio’s World of Wordes of 1598, which defines “open worke” as “fine net worke … as gentlewomen use to make and weare” (“openwork, n. and adj.” 1.). 46 See the complaint of Richard Pooke, hatmaker, in 1624, cited in Gustave Ungerer, “Mary Frith, Alias Moll Cutpurse, in Life and Literature,” Shakespeare Studies 28 (2000): 70. See also 68. 47 Ibid., 53–4. 48 On Mary Frith’s work as a broker of second-hand apparel, see Natasha Korda, “The Case of Moll Frith: Women’s Work and the ‘All-Male Stage,’” in Women Players in Early Modern England, 1500–1660: Beyond the All-Male Stage, ed. Pamela Allen Brown and Peter Parolin (Aldershot: Ashgate, 2005), 71–87.

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49 See Natasha Korda, Labors Lost: Women’s Work and the Early Modern English Stage (Philadelphia: University of Pennsylvania Press, 2011), esp. chapters 1 and 3. Henslowe’s “diary” lists frequent payments for linen attires and costumes ornamented with “lace wraght w th opene worcke,” and other types of needlework typically produced by women. See R.A. Foakes ed., Henslowe’s Diary, 2nd ed. (Cambridge: Cambridge University Press, 2002), 84 (fol. 43r). 50 The abstract of the 1620 will of Joan Hovell, widow of actor William Hovell, refers to “£10 and odd money due to her from John Swynnerton and John Edmondes, two players, by obligations [i.e., bonds].” Honigmann and Brock, eds, Playhouse Wills, 118. The 1635 will of actor John Shank left the considerable “somme of Threescore and Tenn poundes debt which I doe owe unto her the said mrs Morgan and for which she hath my bond.” Ibid., 187–8. 51 C.J. Sisson, “Mr. and Mrs. Browne of the Boar’s Head,” Life and Letters ToDay 15 (1936): 99–107, esp. 99; Frederick G. Fleay, A Chronicle History of the London Stage, 1559–1642 (New York: G.E. Stechert and Co., 1909 [1890]), 271. 52 Gurr, The Shakespearean Stage, 1574–1642, 3rd ed. (Cambridge: Cambridge University Press, 1992), 56. 53 Honigmann and Brock, eds, Playhouse Wills, 181. On Susan Greene (a.k.a. Browne and Baskerville) and her relationship to the playhouses and playing companies, see Fleay, A Chronicle History of the London Stage, 270–97; Sisson, “Mr. and Mrs. Browne”; and C.J. Sisson, “The Red Bull Company and The Importunate Widow,” Shakespeare Survey 7 (1954): 57–68. 54 Deposition of Thomas Basse, cited in Sisson, “The Importunate Widow,” 65. 55 For other theatre women who established such trusts, see Honigmann and Brock, eds, Playhouse Wills, 70, 143, 188, 193, 202.

4

Poor Law, Coverture, and Maintaining Relations in King’s Bench, 1601–1834 kim kippen

As the sixteenth century drew to a close, Elizabeth I’s last parliaments began drafting the most important statute of the Tudor legislative efforts to control and alleviate poverty. The final result of their efforts, the Act for the Relief of the Poor (1601), outlined a system of mandatory, locally based taxation and disbursement intended to provide not only relief for the impotent, but also work for the able-bodied and apprenticeships for poor children.1 This “new” poor law program, together with the many subsequent amending and explanatory acts that followed it up to 1834, comprised what is known, in retrospect, as the “old” poor law.2 The pervasive influence and enduring legacy of this period of poor law history has generated a rich and dynamic historiography.3 Yet despite more than a century of wide-ranging research and vigorous debate, a crucial aspect of the poor law has remained largely in the shadows of its historiography: the case law created by the high court judges of King’s Bench.4 Although this gap in the historiography is due in large part to the unwieldiness of the source material, the decisions of King’s Bench were, nevertheless, a vital component of poor law jurisprudence, and a closer study is essential to understanding how the law developed and functioned.5 More to the point, while an understanding of case law is important for the study of poor law in general, it is, in fact, critical to the history of the law for poor families. Indeed, in many areas of poor law jurisprudence, case law was the dominant source of law affecting women and children within families.6

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As a step forward toward uncovering the history of poor law case law, this essay will examine the part of the original 1601 legislation that dealt directly with the financial obligations of women under the old poor law, known as the “liable relatives clause.” It will discuss how the composition of the clause inevitably created uncertainties in its application and how the ensuing disputes were eventually decided in King’s Bench.7 Once there, the common law rules on marital property resulted at first in the circumscription and then in the eventual abolition of the financial accountability of certain family members. This was especially true in the conflicts that concerned the poor law liability of women, and this study will concentrate on those cases that determined the scope of liability for married mothers – in particular remarried mothers. In disputes involving married women in King’s Bench, the fiction of coverture would necessarily frame the court’s resolutions. However, as will be discussed, the specific application and interpretation of coverture changed over time and there were significant shifts in the court’s approach over the course of the law’s first hundred years.8 While the early period was characterized by some flexibility and openness to maternal support obligations, by the end of the period a narrower and more dogmatic application of coverture, and a literal interpretation of relations named in the 1601 act, would completely dominate the debate. This was primarily a result of a pronounced shift in how the court viewed a wife’s marriage portion. In the later seventeenth century, the bench held that the property a wife brought into the marriage came with encumbrances, which included the liability to maintain her children. In the eighteenth century, however, the court dramatically changed its view, determining that a wife’s property was a gift to her husband, without any attendant obligation to her family. In the later period, so strong was the priority given to the husband’s rights that it even superseded the duty imposed on mothers by “natural law,” maternity, or consanguinity. The eighteenth-century case law reveals that the court’s approach to coverture was often a reflection of an “active judicial choice” to privilege the autonomous male property owner and patriarchal household head.9 The result was the complete elimination of a married woman’s financial responsibilities to her children and grandchildren.

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The Liable Relatives Clause As noted above, the most noteworthy feature of the Act for the Relief of the Poor was its program of parochial collection and disbursement of funds for alleviating poverty. There was, though, another method of providing relief to the poor that, while part of the poor law program, was actually outside the parish purse.10 This much less studied aspect of the law, the “liable relatives clause,” empowered parish officials to force specific family members to support their indigent relations.11 It required “that the father and grandfather, and the mother and grandmother, and the children of every poor, old, blind, lame, and impotent person or other poor person not able to work, being of sufficient ability, shall, at their own charges, relieve and maintain every such poor person.”12 In its design, the clause was seemingly straightforward, outlining three simple legal conditions: that the supporting relation be financially able; that the relieved relation be impotent; and that the liable relation be either a parent, grandparent, or child. Thus written, it appeared to be an uncomplicated and uncontroversial scheme. In practice, however, the liability to maintain relations proved legally problematic. In the first place, the simplistic and “static” definition of relations failed to account for the instability and fluidity of early modern family formation. There was no indication of how marital status, remarriage, or legitimacy would affect the interpretation and implementation of the law. The statute was silent on how the test of liability would apply in the case of bastards, in-laws, and step-relations. It was also unclear how the test of financial “ability” would apply to mothers who were single, married, or remarried. Second, the statute described liable relations as individuals, seemingly oblivious to the hierarchical composition of the patriarchal family and the legal rules that governed its financial structure. As written, a mother’s liability seemed to be the same as a father’s. Each liable relation seemed to be on an equal footing, regardless of their status within a family. Last, the statute offered no indication as to what the primary intent of the section was and how that should influence the interpretation of liable relations in practice. Was it envisioned as a financial expedient, subordinate to the larger parochial relief system and a means of supplementing the parish rates?13 Or was it more fundamentally a legal expression of family values and

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financial responsibilities, included as part of a larger relief scheme, but independent of parochial financial needs? Thus, the description and indeed the very concept of family liability contained potential contradictions within the idea itself and within the established legal and social tenets of the patriarchal family. Inevitably, these built-in inconsistencies were bound to surface in the implementation of the law, and, in the absence of any further legislation on the subject, it would fall to the high court judges to resolve the ensuing legal disputes and determine the boundaries of family support under this new law.14

Seventeenth-Century Case Law In the mid-sixteenth century, a handful of reported cases revealed the judges’ initial approach to the poor law liabilities of married women.15 Although the doctrine of coverture normally prohibited a married woman from being either charged alone in an order or deemed personally financially liable, it was uncertain how the court would respond to this new liability of “mothers.” After all, the clause had the authority of statute and the interests of ratepayers behind it. As it happened, the reports of these early cases reveal that the bench did not regard coverture as an absolute barrier to a married woman’s obligation to support her children. Rather, it seemed to view it as a legal framework within which to approach the question of how to apply the Elizabethan poor law liability of “mothers” to married women. In 1631, the case of Draper v. Glenfield first took up the question of maternal liability.16 In this particular instance, the town of Glenfield was demanding maintenance payments from a step-grandfather named Draper. It was noted that his wife, the grandmother, had been “a person of good ability” before her marriage to him and that a grandchild from her previous marriage was already on parish relief.17 The local authorities understood that her remarriage complicated the situation and they were not sure how to proceed. As a grandmother “of ability” she was certainly liable under the poor law, but by the rules of coverture her wealth had now been transferred to her new husband. They were inclined to charge her husband and approached the assize justices for guidance. They wanted to know if Draper “should be taken

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to be a grand-father within the statute” and thus liable on the grounds that he had married a grandmother “who was before a person of good ability.” 18 Judges Hutton and Croke unequivocally affirmed that the grandmother herself could not be liable, repeating the stock rule of marital property under coverture, “that the wife, after her marriage, hath no ability at all, the husband having all given unto him by the law, by his inter-marriage with her.” 19 They added that, strictly speaking, a step-grandfather was “not a grand-father, neither within the words, nor yet within the meaning of the statute.” 20 And yet, they resolved that he could be “accounted of” as a grandfather and that it was “reasonable” to find him liable based on his wife’s wealth at the time they married. As Justice Croke explained, “if she was then of ability, it is then good reason that the husband should be charged, but not otherwise.” 21 In this first reported case, the judges had found a sort of middle ground between the statute and the demands of coverture at law. Although it was determined that a married woman could not be held personally liable because she could not meet the test of “ability,” and a step-grandfather was not included within the definition of “grandfather,” the judges were unwilling to erase the grandmother’s statutory financial responsibility for her grandchildren. They tied her liability to her marriage portion. If she had been “of good ability” when she married, then her husband, “having all given unto him by the law,” could be charged on her behalf. Within months, a remarkably similar dispute was referred to Justices Croke and Whitlock. In this case the City of Westminster had lodged a complaint at the Quarter Sessions against Edward Gerrard, who had married a woman “who ought to have contributed towards the maintenance of her grand-childe, as a grand-mother, within the statute of 43 Eliz. cap. 2.” 22 The resulting Quarter Sessions order directed Gerrard to maintain the deserted grandchild on the basis of his wife’s financial obligations under poor law. The judges initially upheld the Quarter Sessions order and unanimously agreed with the opinion in Draper: that the husband was chargeable, but that it was contingent on his wife’s property at the time of marriage. “For this estate,” they explained, “he shall be charged to be contributary [sic] within the meaning of the statute … by reason of which he is to be

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bound to contribute: but otherwise it shall be, if he hath not any estate nor advancement by his marriage with her.”23 As it happened, that was not the end of the matter, and the following term the case was “heard at great length” by Whitlocke and Croke at their chambers in Serjeants Inn.24 This time, the “true case” revealed a new, complicating twist on the subject of a wife’s financial contribution to the family.25 At the time the couple had married, neither of them was wealthy. Gerrard’s bride was a “poor widow” and he had “had no means, nor any advancement at all by her” and he was himself of “very small means.”26 It was argued, however, that over the eighteen or nineteen years of their marriage the couple had prospered and that “by the industry and good huswifry of the wife, Gerrard is now become to be a man of ability.”27 The judges were deeply divided on the implications of this new scenario. Croke was completely unwilling to expand the ruling he and Hutton had given in Draper. A step-grandfather’s chargeability was derived from the “sufficient means” he acquired from his wife by marriage.28 Croke’s further comments were even more revealing of the reasons behind this view. He pointed out that an exception to this rule would be if land descended to a wife during the marriage and the husband held it “in her right.”29 He explained: “the reason why the husband shall be charged to keep the child, where he marrieth the grand-mother being of ability, is, because by the marriage he hath acquired and got the means which the grand-mother had, out of which means the child is to be maintained; and so transit cum onere,30 he must take his wife with this charge and burthen.”31 In this view, maintaining the children was a debt or burden that was tied to her previous wealth that he now held. As a further extension of that logic, he pointed out that, in either case, the husband’s liability existed only while his wife was alive, declaring that “the husband shall not be charged after her death.”32 Justice Whitlock’s approach to coverture was less fixed on the category of property the wife contributed to the marriage and the nature of the husband’s tenure over it. He was perfectly comfortable in extending the wife’s liability and the husband’s chargeability on the basis of any financial contribution she made to the family during the marriage.33 “The justices of peace [sic] have done well, in making of

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this order against the grand-father,” he asserted, “he being now become to be a man of ability, and that by the care and industry of his wife,” adding, “that if he had been there with them, he would have made the same order.”34 In his opinion, any financial contribution of the wife was sufficient to vest an obligation of support for her children in her husband. For Whitlock, the rules of coverture required that the husband be charged in the order, but this was a technical requirement at law that should not completely erase a wife’s economic contribution to the household and the liability tied to it. In this case, however, Croke was “clearly against him” and the pair could not arrive at a clear resolution.35 In 1651, the liability of a remarried grandmother was raised a third time. In Custodes v. Jinkes, it was moved in the Upper Bench to discharge a maintenance order directed solely against a married grandmother on the grounds that “a feme covert was not bound by such an order.”36 Although the error of naming only a married woman on the order proved fatal, the comments from the bench revealed the currently held views of the court, twenty years after the Draper and Gerrard decisions. Quashing an order that charged a married woman alone for her child’s maintenance affirmed the basic rule that a married mother could not be held personally financially liable. However, Chief Justice Rolle emphasized that he was not rejecting the grandfather’s liability to maintain his wife’s grandchild. He unequivocally declared that the step-grandfather was indeed “bound to keep his wifes grandchild by the statute.”37 Although the brevity of the report does not allow for much more extrapolation, it is worth noting that Rolle did not attach any financial conditions to his affirmation of the husband’s liability. For the remainder of the seventeenth century, these three cases represented the state of reported judicial opinion on cases directly concerned with maternal liability. In these disputes, which were legal contests between parishes and step-grandfathers, the court’s approach seemed to take a middle ground between the vague language of the statute and the common law rule of coverture. Although the fiction of coverture dictated that a married woman could not be considered legally or financially independent, it did not sever the mother’s financial ties to her children. There was a clear willingness to locate the liability in her husband, either on her behalf, if it could be determined that he

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held property “in her right” while she lived, or based on her financial contribution to the family.

The Influence of Seventeenth-Century Case Law The details of these cases became public a few years later when Bulstrode’s and Style’s reports were published in 1658. Not long afterwards, Draper, Gerrard, and Jinkes began appearing in the leading JP manuals, parish law handbooks, and other legal treatises, presenting the resolutions of these cases as authoritative law for a wider audience of lay and professional readers.38 In the self-reinforcing manner of printed case law, some of these texts were cited as authorities in the arguments of later cases.39 Although no other reported cases for the next few decades turned directly on the question of maternal liability, the resolutions in these early cases left their mark on other areas of law. In 1662, both Draper and Gerrard were raised in the arguments of the famous case, Manby v. Scott, a dispute that centred on the limits of an estranged husband’s liability for the maintenance of his separated wife.40 So contentious was the issue that the case was eventually argued at length by all of the high court judges in the Exchequer Chamber. The liable relatives clause was raised several times throughout the case, and, in at least one instance, Justice Twisden pointed directly to the authority of maternal liability case law. He argued that a husband was chargeable because of the disabilities imposed on a wife under coverture. “When things are necessary,” he declared, “the law will create the means.”41 He went on to connect the resolutions of Draper and Gerrard to the situation in Manby, explaining that, “though Gerrard were no grandfather within 43 Eliz. yet for the benefit he had by his wife … he was bound to keep [her grandchild].”42 A few years later, Chief Justice Holt cited Gerrard in at least two other non-maintenance cases. Significantly, he did not simply refer to the case as an authority; rather, he added his own particular opinion on the subject, in effect further enlarging the earlier resolutions. In Walton v. Spark, Holt declared that, “if a man marries a grandmother with whom he hath any estate, and she dies, he must maintain the

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grandchildren, tho’ the relation be determin’d.”43 Shortly thereafter, in R. v. Barney, and Cowen, he reiterated his opinion and added that “the statute was construed by equity, that he was a grandfather within the statute.” 44 Not surprisingly, the resolutions of Draper, Gerrard, and Jinkes also had an impact on other areas of poor law. After the passage of the Settlement Law of 1662, liable relations case law was woven into early settlement jurisprudence involving families.45 This was especially true for disputes concerning remarrying mothers, where the effects of coverture resulted in the separation of mothers and children when the widow married a poor man with a different settlement. In one of the earliest such cases, Shermanbury v. Boldney, the rules of stepfather maintenance were raised in the arguments for and against maternal custody and settlement.46 In trying to determine the residence and settlement of a remarried widow’s child, Chief Justice Holt declared, “this cannot unsettle the children, unless the step-father be able,” suggesting that a financially liable stepfather might confer a settlement, thus allowing the family to stay together.47 Justice Eyres disagreed, pointing to the consequences for the parish ratepayers. “Tho’ the father be chargeable with maintenance,” he said, “yet they may not thereby be removed to another parish, for if so, that parish might be charged with them after the death of the father.” 48 Although the bench was divided on the children’s “custody” and settlement, the question of stepfather chargeability was completely accepted.

Eighteenth-Century Case Law After decades of silence, the subject of a woman’s liability for her relations was raised again in the early eighteenth century. This time, however, the bench began altering its approach, adopting a more dogmatic stance. The court rejected the earlier “equitable” approach, at first gradually constricting the scope of maternal liability, and then abruptly obliterating any financial accountability whatsoever. In the first decade of the eighteenth century, two cases revealed the new direction. Although the basic rules of seventeenth-century case law were accepted, a more restrictive tone was detectable. In

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R. v. Clentham the court considered a case where the wife was clearly no longer alive at the time the order was made.49 The issue had come up in previous cases, but it had always been in a hypothetical context.50 Counsel in favour of the order, relying on earlier case law, pointed out that the husband had “had a good portion” with his wife and that this was “an equitable reason” to charge him.51 Chief Justice Parker was not persuaded and expressed his inclination to halt any further expansion of the stepfather’s liability. “I am afraid if we extend this to a father-in-law that has a portion,” he explained, “it will also extend to one that has nothing with his wife.” 52 The judges were clear that they still upheld a stepfather’s liability “in the right of his wife” based on his entitlement to her portion, but when the wife dies “the relation is dissolved, and he is not by any means obliged to provide for the daughter-in-law.” 53 A year later, in R. v. St Butolphs Aldgate, the court considered the “single question” of “whether the husband of a feme covert shall be chargeable by the statute.” 54 The judges upheld the rule in Clentham that “he was during the wife’s life in her right, but not after.” 55 In this dispute, where the wife was in fact alive, it is noteworthy that the bench chose to emphasize the lifetime limitation. In both of these cases, although the court maintained the rule that a stepfather could be charged for his wife’s children, it was beginning to signal its inclination toward a more restrictive approach. Within a decade, the court dramatically altered its view of the matter. Under Chief Justice Pratt, the bench completely rejected the authority of the previous case law and abruptly reversed its position on the poor law liability of married women. In R v. Munden the court reviewed an order drawn up against a husband requiring him to maintain his wife’s mother.56 Retrospectively, it should have been an open and shut case. The Quarter Sessions order was well drafted, carefully noting that the established rules of case law had been followed: the wife was alive, both spouses were named, and it was clear that the man had had “considerable effects with his wife.” 57 Counsel in support of the order naturally cited the seventeenth-century cases that established a husband’s chargeability for his wife’s poor relations. Surprisingly, despite the long-standing acceptance of these cases, the court abruptly rejected their authority, declaring that the question “never came judicially before the whole Court till now.” 58 In particular,

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the judges disagreed with the underlying argument which held that children were a type of debt obligation tied to the property a wife brought to her marriage. The court held that her estate was a gift to her husband, carrying no connotation of debt. Notably, while the court acknowledged that the implications of this decision would be particularly “inconvenient” when a wife had children from a former marriage, they nevertheless resolved that the husband bore no obligation to his wife’s relations based on her economic contribution before or during the marriage.59 In addition, to further block any possibility of finding liability in the notion that the husband was a “father” through marriage to the mother, the court explicitly restricted the liability to natural parents. It justified this position by explaining its view of the original intent of the liable relatives clause: “By the law of nature, a man was bound to take care of his own father and mother; but there being no temporal obligation to enforce that law of nature, it was found necessary to establish it by Act of Parliament, and that can be extended no farther than the law of nature went before, and the law of nature does not reach to this case.” 60 In this view, the clause was simply the legal expression of a “natural” familial obligation. Because a stepfather was not a natural parent, the law could not have intended that he be charged. Significantly, in this shift to considerations of natural law, the court silently overlooked the remarried mother’s blood ties and her own “natural” obligation to care for her closest kin. It was a dual assault on the earlier coverture jurisprudence. A wife’s portion, previously considered held “in her right,” was now considered a “gift” without attendant obligations, while at the same time, the emphasis on liability based on “natural law” that absolved the stepfather was conspicuously not applied to married women. Coverture was sufficiently significant to override a wife’s natural obligations. The force of this shift in the jurisprudence was enduring. In two cases, heard respectively in 1726 and 1733, orders to relieve relations by marriage were overturned solely on the authority of Munden.61 It was objected in the first of these two cases, R. v. Pennoyr, that “there is no relation in blood between them, nor any obligation upon him by nature to relieve.” 62 There was no discussion of obligation tied to a wife’s economic contribution – in fact, there was no mention of a wife at all: dead or alive, of ability or not. A decade later, in the case of

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Woodford v. Lilburn (1746), there was one final attempt to resurrect the liability of the husband by raising again the issue of the wife’s economic contribution to the family at the time of marriage.63 It was noted in court that the man had “a great fortune with his wife the pauper’s mother.”64 Counsel supporting the order conceded the authority of Munden, but only in terms of its ruling on the consanguinity of relations. It did not, they maintained, defeat the grounds for liability. The earlier arguments that focused on the wife’s portion were raised again, but this time with the addition of the “doctrine of necessities”: “The word father, though prima facie to be understood of the natural father, yet it [has] been carried so far as to take in the father-in-law; for where there is a substance with the mother, he takes it cum onere, and must maintain the child who was supported with that substance before his marriage … here is no distinction between consanguinity and affinity; this is a debt of the wife’s contracting, created by parliament, and in all cases, the husband is subject to the wife’s debts, and all her necessary contracts.”65 Counsel against the liability rejected the significance of a wife’s economic contribution and any notion of debt, arguing from a completely restrictive view of coverture: “If the statute is to be construed to take in a father-in-law … then it must be done in all cases whether the father-in-law receives any fortune or not with his wife. Upon this principle it might as well be insisted, that a purchaser of the wife’s estate ought to maintain the children, and a husband is a purchaser of the wife’s substance. The instant a wife marries she loses every thing she had, for her effects are instantly vested in her husband, and the act could never intend to charge her when she has nothing. For the words are, being of ability, which expresses the very contrary. There is no difference whether the wife conveys away her substance by deed or gift or by act of law upon her marriage.”66 The court agreed and explicitly upheld the authority of Munden. To be considered chargeable, a family member had to be related by blood and financially able. Despite her “natural” ties to her children, a married woman could never be considered able and a stepfather was certainly not a blood relation. As for the idea that there was a liability vested in the transfer of ownership of a wife’s estate under the rules of coverture, the court declared: “This demand is not a charge upon

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the estate, but upon the person in respect of the estate; and if they are not of ability at the time when the demand arises, they are not chargeable by this act. And the present case is exactly the same with the Rex v. Monday, so that we are of opinion that the father-in-law is not liable in respect of any estate he had with his wife.”67 The authority of Munden was now conclusively affirmed. Although there was no discussion of it by the court, the consequence of this total eradication of liability for the maintenance of the children of remarried mothers and grandmothers was that the parish ratepayers would have to pick up the tab. By the mid-eighteenth century, Munden had not only halted any further discussion of maternal poor law liability, it had also begun influencing other areas of the law, most notably cases involving debt between in-laws. In Cooper v. Martin (1803), the arguments and resolution of the court were heavily influenced not only by Munden, but also by the earlier liable relatives case law debates.68 Counsel for both sides held a vigorous debate, reviewing nearly the entire body of liability case law. At one point it was finally acknowledged that the rule in Munden would enable a mother, “by her own act, in marrying a second husband … [to] release herself and her husband … and throw the burden of maintaining her children upon the parish.”69 The court, however, was unmoved by this consequence and maintained the authority of Munden. As Justice Lawrence explained: The early cases referred to proceeded upon a mistake, in considering the maintenance of the children as a debt of the mother, who has married a second husband, or as a debt on her estate. The wants of the children are only a ground for an order of maintenance on the parent, if of sufficient ability. But when she has parted with that ability by her second marriage she is no longer liable. The husband only takes her debts; but this is no debt of hers. Ceasing to be of ability, the maintenance of the children could not have been enforced by an order against her, and therefore could not have been enforced at all.70

Thus, the more restrictive interpretation of coverture once again held sway – regardless of the burden that would be “thrown on the parish.” Motherhood might be a “natural relation,” but for mothers

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who remarried, coverture took priority. Married women were not able, their financial contribution to the family was immaterial, and stepfathers were not fathers according to the statute.

Conclusion It is, of course, impossible to be certain what the original drafters of the liable relations clause had in mind. Was it envisioned primarily as a means of easing the tax burden by seeking compensation from financially able relations when their poor kin required relief? That is, did parliament include the clause as a method of indemnifying the public purse, and, to that end, did it intend that the definition of relations be interpreted liberally, in order to make able relations financially liable whenever possible? In the case of married women, the revision of the word “parents” in the 1598 act to “mothers and fathers” in 1601 appeared to indicate a clear intent to make mothers liable. Indeed, the local relief orders reviewed in King’s Bench indicated, in every instance, that the Quarter Sessions justices had interpreted “mothers and fathers” broadly, charging both remarried mothers and stepfathers with the relief of the wife’s children from her previous marriage. And certainly, the early case law seemed to align with that view, even while working within the rules of coverture. Although restrictive qualifications were raised – pre-marital maternal “ability,” estates held “in her right,” and the termination of liability upon her death – seventeenthcentury judges nonetheless maintained a mother’s liability, in the person of her husband. Although governed by coverture and its attendant property rules, there was still a whiff of “equity” in play. Or was the liable relations clause intended more as a statutory means of giving teeth to a moral obligation? That is, was it primarily intended as a legal expression of family obligations, complimentary to, but independent of, rate-based parish relief? If this was the intent, any interpretation of the law should focus first and foremost on who were proper relations according to the statute, regardless of the financial consequences to the parish. The eighteenth-century bench eventually took this view, defining liable relations based on its interpretation of “natural obligations” and “blood ties” and combining it

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with a restrictive application of coverture and common law property rights. Notably, coverture superseded a mother’s natural obligations. In this view, when a mother remarried, her property became her husband’s with no strings attached, and since only “natural” fathers could be liable, a stepfather could not be charged, and it would be left to the parish to look after his wife’s children. Whatever the intent of the original act, the removal of disputes into King’s Bench certainly had the unintended consequence of completely eliminating a married mother’s personal liability and gradually restricting the law of liable relations strictly according to common law legal conventions.71 If the Elizabethan parliament had been vague regarding its intent on the subject of the liabilities of remarried mothers, the legislators of the nineteenth century were more unambiguously direct. Among its many other reforms, the “new” poor law of 1834 abruptly halted the trajectory of the liable relations case law. Parliament clearly took exception to the judicial view that blended families bore no responsibility for the mother’s children from prior relationships, and that the financial burden should fall on parish ratepayers. While implicitly acknowledging the personal financial incapacities of a married woman under coverture, the 1834 statute explicitly transferred her maternal liability to her new husband, stipulating that her children must be supported by him until the age of sixteen “as a part of his family.”72 Less than four decades later, with the passage of the Married Women’s Property Act in 1870, the liability was further extended to the mother herself, if she had property or wages earned through her own work.73 And yet it is interesting to note that, despite the statutory extension of liabilities for the children of married women, the enduring influence of coverture could still seep through the legislative gaps. In Coleman v. Overseers of Birmingham (1881), a case that returns us full circle to the question of a grandmother’s liability, the judges of Queen’s Bench reached back into the early seventeenth century, basing their decision on Jinkes.74 Although the Poor Law Amendment Act (1834) and the Married Women’s Property Act (1870) had rejected the conservative trajectory of the case law, and clearly affirmed the liabilities of stepfathers and mothers with property, neither statute had actually mentioned grandparents. When presented with a case involving a grandmother, the local officials in Birmingham took an

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expansive view of the latest legislation, holding that the word “children” should “comprehend grandchildren.”75 The judges, however, chose a strictly literal reading of the Married Women’s Property Act, which had named only “children.” Faced with this silence on the liability of grandmothers, the court chose to fall back on the doctrine of coverture, reaching back more than 200 years for an authority on which to base their resolution. Justice Field explained: “In support of the order it was argued that the appellant was literally within 43 Eliz. c. 2, s. 7, being the grandmother of the pauper and of sufficient ability to maintain her. Then the question arises, did the statute intend the word ‘grandmother’ to apply to a woman under coverture? … We were referred to a case of Custodes v. Jinks, where Rolle, C.J., held that a woman under coverture was not liable. This case seems, ever since, to have been regarded as good law.” 76 Ironically, although the judges in Coleman v. Overseers of Birmingham had felt compelled to take a strictly literal approach to the Married Women’s Property Act, they were quite willing to read an intent into the 1601 act and effectively rewrite the liable relations clause. In the words of Justice Manisty: “We have a decision more than 200 years old that a woman under coverture cannot be made liable under 43 Eliz. c. 2, s. 7, to maintain her grandchildren … Going back to the statute of Elizabeth we find it enacting that the mother and grandmother and the children of every poor person unable to work, being of sufficient ability, shall maintain such poor person, but these words must be read as if the description were ‘mother and grandmother not being under coverture.’” 77 The court had moved beyond simply interpreting the poor law according to common law rules; it was now proposing a virtual rewrite of the liable relations clause according to the common law doctrine of coverture. NOTES 1 43 Eliz. I, c. 2, An Act for the Relief of the Poor (1601). The 1601 act is generally considered the beginning of the “Old Poor Law,” which lasted until the enactment of the first “New Poor Law” in 1834. For a useful survey of the development and significance of the preceding legislation, see Paul Slack, The English Poor Law, 1531–1782 (Cambridge: Cambridge

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University Press, 1995), 9–13; idem, Poverty and Policy in Tudor and Stuart England (New York: Longman, 1988), 122–9; S. and B. Webb, English Local Government: English Poor Law History, part I: The Old Poor Law (London: Longmans, Green, 1927), 44–59, 62–5; Marjorie K. McIntosh, Poor Relief in England, 1350–1600 (Cambridge: Cambridge University Press, 2012), 226–32. 2 On the Old Poor Law legislation that followed the 1601 act, see Webb, The Old Poor Law, 149; Slack, Poverty and Policy, 193–5; and Joanna Innes, “Parliament and the Shaping of Eighteenth-Century English Social Policy,” Transactions of the Royal Historical Society, 5th series, 40 (1990): 63–92. Annotated chronologies of the key legislation can be found in Steven King, Poverty and Welfare in England, A Regional Perspective, 1700–1850 (Manchester: Manchester University Press, 2000), 272–4, and Slack, Poor Law, 51–6. The third volume of Michael Nolan’s Treatise of the Laws for the Relief and Settlement of the Poor, 3 vols (London: J. Butterworth and Son, 1814) includes most of the relevant statutes from 5 Eliz. I, c. 4 to 53 Geo. III, c. 113. 3 For a discussion of the Old Poor Law historiography of the past one hundred years, see Paul A. Fideler, “Introduction: Impressions of a Century of Historiography,” Albion 32, no. 3 (2000): 381–407; King, Poverty and Welfare, 49–65; Slack, Poor Law, 67–70; David Thomson, “Welfare and the Historians,” in The World We Have Gained: Histories of Population and Social Structure, ed. Lloyd Bonfield, Richard M. Smith, and Keith Wrightson (Oxford: Basil Blackwell, 1986), 355–78. 4 Notable exceptions to this are Barbara J. Todd, “‘To Be Somebody’: Married Women and The Hardships of the English Laws,” in Women Writers and the Early Modern British Political Tradition, ed. Hilda Smith (Cambridge: Cambridge University Press, 1998), 343–61, and Carol Steedman, “Lord Mansfield’s Women,” Past and Present 176 (2002): 105–43. For recent acknowledgment of this gap in the historiography and the importance of the role of case law in poor law theory and practice, see John Broad “Parish Economies of Welfare, 1650–1834,” Historical Journal 42, no. 4 (1999): 990, and Steve Hindle, On the Parish? The Micro Politics of Relief in Rural England, c. 1550–1750 (Oxford: Oxford University Press, 2004), 428–32. 5 Poor law cases rapidly proliferated in King’s Bench in part because propertied interests were at stake: see Peter King, Crime and Law in England, 1750–1840: Remaking Justice from the Margins (Cambridge: Cambridge University Press, 2006), 40. Lloyd Bonfield notes that case law is particularly valuable “in assessing transitions in legal thought.” This is partly because it responded

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case by case to “actual disputes” and partly because it was not strictly bound by precedent, and thus in a “constant state of reinvention”: Lloyd Bonfield, “Seeking Connections between Kinship and the Law in Early Modern England,” Continuity and Change 25, no. 1 (2010): 61–2. 6 It has been pointed out by at least one modern critic that over the course of the development of poor law a distinct system of family law for the poor was created in the common law courts: see Jacobus tenBroek, “California’s Dual System of Family Law: Its Origin, Development, and Present Status: Part I,” 16 Stanford Law Review, no. 2 (1964): 257–317. For the origins of family law in general, see the discussion of the development of child custody law in Danaya Wright, “The Crisis of Child Custody: A History of the Birth of Family Law in England,” 11 Columbia Journal of Gender and Law (2002): 175–270. 7 The cases used for this study are predominantly based on printed law reports, with a few drawn from manuscript sources published in poor law treatises. Several scholars have cautioned against an exclusive reliance on such sources, noting that some texts are of dubious reliability and that there were other methods of circulating case law decisions, including oral and manuscript transmission. Nevertheless, the authority of the printed reports had a self-reinforcing tendency that rapidly took hold over the seventeenth and eighteenth centuries. As pointed out by Douglas Hay, “reported cases are a good guide to the law because they constitute, taken together, the extant evidence of doctrine for us and for contemporaries,” in Douglas Hay, “Dread of the Crown Office: the English Magistracy and King’s Bench, 1740–1800,” in Law, Crime and English Society, 1660–1830, ed. Norma Landau (Cambridge: Cambridge University Press, 2002), 30–1; see also Susan Staves, Married Women’s Separate Property in England, 1660–1833 (Cambridge, MA: Harvard University Press, 1990), 12–14. For a more cautionary view, see James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, 2 vols (Chapel Hill: University of North Carolina Press, 1992), 1: 102–4, and idem, “The Indispensability of Manuscript Case Notes to Eighteenth-Century Barristers and Judges,” in Making Legal History: Approaches and Methodologies, ed. Anthony Musson and Chantal Stebbings (Cambridge: Cambridge University Press, 2012), 30–52. 8 For a broader discussion of the shifting interpretation of coverture and the idea of “unity of person” in Blackstone and other legal commentators, see Tim Stretton, “Coverture and Unity of Person in Blackstone’s Commentaries,”

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in Blackstone and His Commentaries: Biography, Law, History, ed. Wilfred Prest (Oxford: Hart Publishing, 2009), 111–27. 9 Staves, Married Women, 10. In many respects, this paper affirms Staves’s conclusions that the court’s approach to coverture was often more a reflection of political inclination than legal logic. 10 There has been some research on the liable relatives clause; however, it has been focused primarily on the maintenance of the elderly in the nineteenth and early twentieth centuries. See M.A. Crowther, “Family Responsibility and State Responsibility in Britain before the Welfare State,” Historical Journal 25, no. 1 (1982): 131–45; David Thomson, “‘I am not my father’s keeper’: Families and the Elderly in Nineteenth Century England,” Law and History Review 2, no. 2 (1984): 265–86; and Marjorie Levine-Clark, “The Gendered Economy of Family Liability: Intergenerational Relationships and Poor Law Relief in England’s Black Country, 1871–1911,” Journal of British Studies 45, no. 1 (2006): 72–89. See also Sam Barrett, “Kinship, Poor Relief and the Welfare Process in Early Modern England,” in The Poor in England, 1700–1850, ed. Steven King and Alannah Tomkins (Manchester: Manchester University Press, 2003), 199–227; Pat Thane, “Old People and Their Families in the English Past,” in Charity, Self Interest and Welfare in the English Past, ed. Martin Daunton (London: University College London, 1996): 113–38; King, Poverty and Welfare, 59; and Bonfield, “Seeking Connections,” 73–6. 11 It is important to note that it was the parish that was empowered to seek relief for indigent relations, not the poor relations themselves; see R. v. Graves (1738) Sessions Cases 232, 93 English Reports [hereafter ER] 234. There was no common law right for an individual to claim support directly from relations. 12 43 Eliz. I, c. 2, s. 7. The earlier incarnation of the 1601 act, An Act for the Relief of the Poor, 39 Eliz. I, c. 3 (1598), had defined liable relations as simply “parents or children.” This definition proved problematic almost immediately, and a judicial resolution clarifying it was published a year later in William Lambarde’s, Eirenarcha: or of the Offices of the Justice of the Peace (London: 1599), 206–7. Parliament adopted this expanded definition nearly identically in the 1601 act; see Hindle, On the Parish? 428–9. 13 See Nolan, “Treatise of the Laws,” 2: 228, and Hindle, On the Parish? 11–12, 49–50. For examples of the tension that existed between the financial obligations of the state and the family see Margaret Hunt, “Wives and Marital Rights in the Court of Exchequer in the Early Eighteenth Century,” in Londinopolis: Essays in the Cultural and Social History of Early Modern

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London, ed. Paul Griffiths and Mark S.R. Jenner (Manchester: Manchester University Press, 2000), 122, and Bonfield, “Seeking Connections,” 81n96. 14 Peter King notes that situations like this created “considerable opportunities for the courts to undermine the activities of the legislature,” King, Crime and Law, 26. 15 It is likely that the drafters of the 1601 act would not have anticipated the important role that King’s Bench would play in shaping the law. Nevertheless, the high court judges had an increasingly powerful influence on the law. Initially, this occurred through their role as legal advisers to JPs while on the assize circuits, offering resolutions at the time or after conferring with other judges in chambers. It was, however, developments in the use of the writ of certiorari in the later seventeenth century that brought the disputes into King’s Bench for review; see Edith G. Henderson, Foundations of English Administrative Law: Certiorari and Mandamus in the Seventeenth Century (Cambridge, MA: Harvard University Press, 1963), 25–7, 83–106, 143; and J.H. Baker, An Introduction to English Legal History (London: Butterworth, 1979), 120–1, 129, 172–3. 16 Draper, against the Town of Glenfield in the County of Leicester (1631), 2 Bulstrode 345, 80 ER 1173. 17 Ibid. 18 Ibid. 19 Ibid. 20 Ibid. Although the wording in the report is a little unclear on the court’s view of Draper as “grandfather” according to the liable relatives clause, the leading Justice of the Peace handbooks and poor law treatises reported that he was deemed “a grandfather within this statute” if his wife brought wealth to the marriage: see Michael Dalton, The Country Justice: Containing the Practice, Duty and Power of the Justices of the Peace (London, 1727), 250. See also Dalton, Country Justice (London, 1677), 156; William Nelson, The Office and Authority of a Justice of the Peace (London, 1704), 378; Samuel Blackerby, Cases in Law: Wherein Justices of Peace Have a Jurisdiction (London, 1717), 188; Joseph Shaw, The Practical Justice of Peace, 2 vols (London, 1728), 2: 173; and Robert Foley, Laws Relating to the Poor from the Forty-Third of Queen Elizabeth to the Third of King George II (London, 1739), 42. 21 2 Bulstrode 345, 80 ER 1173. 22 Civitas Westminster against Gerrard (1632), 2 Bulstrode 346, 80 ER 1174. 23 Ibid. (italics added).

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24 See the commentary about the case in Cooper v. Martin (1803), 4 East 76, 102 ER 759; quotation at 4 East 80, 102 ER 760. 25 2 Bulstrode 346, 80 ER 1174. 26 Ibid. 27 Ibid. 28 Ibid. 29 2 Bulstrode 347, 80 ER 1174. On a husband’s tenure of his wife’s land, see Frederick Pollock and Frederic William Maitland, The History of English Law before the Time of Edward I, 2 vols (Cambridge: Cambridge University Press, 1895), 2: 405–8. 30 “Land passes with encumbrances.” In a later settlement case involving the child of a remarried woman, it was remarked that Justice Powell had echoed this justification, declaring that, “a man must take a wife with the incumbrances [sic]”; see R. v. Giles in the Fields (1733), Sessions Cases 56, 93 ER 57, quotation at Sessions Cases 57, 93 ER 58. 31 2 Bulstrode 347, 80 ER 1175 (italics added). 32 2 Bulstrode 347, 80 ER 1174. 33 For some examples of “husbands’ encomiums to the economic contribution of ‘careful industrious wives,’” see Keith Wrightson, “The Politics of the Parish in Early Modern England,” in The Experience of Authority in Early Modern England, ed. Paul Griffiths, Adam Fox, and Steve Hindle (New York: St Martin’s Press, 1996), 14. Strictly speaking, a feme covert’s economic contributions to the household belonged to her husband; Pollock and Maitland, History of English Law, 2:402. 34 2 Bulstrode 347, 80 ER 1175. 35 Ibid. 36 Custodes v. Jinkes (1651), Style 283, 82 ER 713 (italics added). For a discussion of husbands and wives appearing as joint complainants and defendants in general and in the Court of Requests, see Tim Stretton, Women Waging Law in Elizabethan England (Cambridge: Cambridge University Press, 1998), 135–9. 37 Style 283, 82 ER 713. It was added in later commentaries on the case that the sessions “ought to” have charged her husband – either alone or together with his wife: see William Sheppard, A Sure Guide for His Majesties Justices of Peace (London, 1669), 222; Dalton, Country Justice (London, 1727), 250; Shaw, Practical Justice, 2: 174; Richard Burn, The Justice of the Peace and Parish Officer, 2 vols (London, 1755), 2: 261.

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38 See Sheppard, Sure Guide (London, 1669), 219–22; Dalton, Country Justice (London, 1677), 156; R. Chamberlain, The Complete Justice, Enlarged (London, 1681), 290–1; Nelson, Office and Authority (London, 1704), 378; Blackerby, Cases in Law (London, 1717), 188; Shaw, Practical Justice, 2: 151–2, 2: 173–4; Dalton, Country Justice (London, 1727), 250; Joseph Shaw, Parish Law: or, a Guide to Justices of the Peace (London, 1733), 188, 207–8, 241; Foley, Laws Relating to the Poor (London, 1739), 42–5; Charles Viner, A General Abridgement of Law and Equity, 23 vols (London, 1742), 16: 417; and Burn, Justice of the Peace (1755), 2: 261. Although these texts are not, strictly speaking, case reports, they regularly reprinted the pertinent details of the nominate reports. Some were well respected and widely read as reliable sources of case law. 39 See for example references to Dalton, Foley, and Burn in Walton v. Spark (1695), Skinner 556, 90 ER 250; R. v. Taylor (1765), 3 Burrow 1680, 97 ER 1043; Tubb v. Harrison, (1790), 4 Term Reports 119, 100 ER 926; and Cooper v. Martin (1803), 4 East 80, 102 ER 760. 40 Manby v. Scott (1661–63). For references to the 1601 statute, see 1 Keble 206, 83 ER 902; 1 Keble 341, 83 ER 982; 1 Keble 383, 83 ER 1008; and 1 Keble 444, 83 ER 1044. 41 1 Keble 383, 83 ER 1008. 42 Ibid. 43 This case and others, as indicated below, were sometimes reported under different case names and spellings. The differences are noted where applicable. Walton v. Spark (1695) in Comberbach 320, 90 ER 503; Cases and Resolutions of Cases, Adjudg’d in the Court of King’s Bench Concerning Settlements and Removals (London, 1742), 161; and Holt 571, 90 ER 1215; Waltham v. Sparkes in Skinner 556, 90 ER 250 and 1 Lord Raymond 41, 91 ER 924 (quotation at Comberbach 321, 90 ER 503). Holt’s contention that Gerrard’s wife had been dead was regarded as an error by later commentators: see, for example, Richard Burn, The Justice of the Peace and Parish Officer, 4 vols (London, 1766), 3: 430. 44 Rex v. Barney, and Cowen her Mother (1697/8), Comberbach 405, 90 ER 556 (italics added). 45 13 & 14 Cha. II, c. 12, An Act for the better relief of the poor of this kingdom (1662). 46 Shermanbury v. Boldney (1693) in Comberbach 208, 90 ER 432; and Cases and Resolutions, (1742), 207; Shermanbury v. Bolney in Carthew 279, 90 ER 765.

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47 Comberbach 208, 90 ER 432 (italics added). It should be noted that Holt seems to be overlooking the established out-relief rule in maintenance orders. 48 Ibid. 49 R. v. Parish of Clentham in Lincolnshire (1710) in Foley, Laws Relating to the Poor (1739), 39–41. 50 See note 43 above. Burn, Justice of the Peace (1766) 3:430. 51 Foley, Laws Relating to the Poor (1739), 40. 52 Ibid. 53 Ibid., 40–1. 54 R. v. St Butolph’s Aldgate (1711) in Foley, Laws Relating to the Poor (1739), 42 (italics added). 55 Ibid. 56 R. v. Munday (1719) in Cases and Resolutions, (1729), 111; Fortescue 303, 92 ER 862; and Foley, Laws Relating to the Poor (1751), 58–9. R. v. Munden in 1 Strange 190, 93 ER 465. In later reports it is sometimes referred to as R. v. Monday. 57 Fortescue 303, 92 ER 862. 58 1 Strange 190, 93 ER 465. Chief Justice Pratt remarked that there were several problems with the seventeenth-century case law. Dismissing them altogether, he pointed out that in one “the judges were divided” and in another it was “only a case at a judge’s chamber.” 59 Fortescue 303, 92 ER 862 and Foley, Laws Relating to the Poor (1751), 59. 60 1 Strange 190, 93 ER 465. 61 R. v. Pennoyr (1726) in Sessions Cases 141, 93 ER 143. R. v. Benoier in 2 Lord Raymond 1454, 92 ER 446; and Foley, Laws Relating to the Poor (1751), 59–60. R. v. Kempson (1733) in Sessions Cases 67, 93 ER 67; 2 Barnardiston K B 329, 94 ER 533; and 2 Barnardiston K B 364, 94 ER 556. R. v. Dempson in 2 Strange 955, 93 ER 964. 62 Sessions Cases 141, 93 ER 143. 63 Woodford v. Lilburn (1746), in A Collection of Decisions of the Court of King’s Bench upon the Poor’s Laws (London, 1770), 47. 64 Ibid. 65 Ibid. 66 Ibid. (italics added). 67 Ibid. Interestingly, treatise writer Thomas Williams suggested that if the parish had charged the mother before her marriage, the liability would then

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have been considered one of the “legal debts and incumbrances [sic]” tied to her estate, obligating her husband to maintain her children. Thomas W. Williams, The Whole Law Relative to the Duty and Office of a Justice of the Peace, 4 vols (London, 1794), 3: 660. 68 Cooper v. Martin (1803), 4 East 76, 102 ER 759. See also Tubb v. Harrision (1790), 4 Term Reports 118, 100 ER 926. In this specific case, involving an assumpsit for necessaries, the stepfather had voluntarily maintained his wife’s children and was now seeking reimbursement for the expenses of supporting one of the children. 69 4 East 81, 102 ER 760. 70 4 East 84, 102 ER 761. 71 For a similar view of the unintended consequences of the use certiorari in administrative law matters and the resulting “predominance of case law,” see Paul D. Halliday, Dismembering the Body Politic: Partisan Politics in England’s Towns, 1650–1730 (Cambridge: Cambridge University Press, 1998), 24–5. 72 4 & 5 Will IV, c. 76, s. 57 (1834). See also Archbold’s comments on the possible intent of the clause and its potential complications: John F. Archbold, The Act for the Amendment of the Poor Laws, with a Practical Introduction (London: Saunders and Benning, 1835), 96–7. 73 33 & 34 Vict., c. 93, s. 14. 74 Coleman v. Overseers of Birmingham (1881), The Law Reports, QBD, vol. 6 (1881), 615. 75 Ibid., 616. 76 Ibid., 618 (italics added). 77 Ibid., 619 (italics added).

5

Coverture and the Criminal Law in England, 1640–1760 marisha caswell

In 1751, John Barras accused Thomas Sharp of breaking into his house and stealing £18 in gold. In his examination before the Justices of the Peace (JPs), Sharp offered an unusual defence. He “confessed that he stole the said purse and money and gave the same to his wife, but that he did it very unwillingly being forced to it by his said wife and who broke open a window in the said house and swore she would stabb him if he would not get into the said house and fetch out the money, which upon her said threats he did by breaking open a box in the said house whereout he had often seen the said John Barras take money to pay workmen’s wages.” 1 This is an interesting, albeit unique, case. Sharp’s emphasis on his wife’s threats stands in stark contrast to the usual legal presumption that husbands coerced wives into criminal activities, which underpinned married women’s supposedly limited liability in the early modern criminal justice system. Coverture denied married women a fully independent legal identity, but criminal law constituted a key exception: married women could be, and very often were, held fully accountable for their own criminal actions. Yet even here echoes of coverture moderated notions of personal responsibility. Legal authorities held that, for some crimes, married women acting in the presence of their spouses might not be held accountable, based not on a notion of unity but on subordination and coercion. How, one might ask, did this legal notion of limited liability accord with popular perceptions?

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Using pretrial depositions filed among the northern assize records, this essay explores how the marital status of women accused of theft-related offences between 1640 and 1760 affected how victims of crime, witnesses, and the accused perceived their criminal responsibility. Such an analysis moves the discussion of coverture and marital status beyond property to address larger questions of women’s legal identities and how ordinary people, not just legal officials, applied and interpreted legal concepts in their everyday lives. An examination of perceptions of women expressed in the depositions reveals that interpretations of women’s actions were informed by ideas about the household and marital relations but that, on balance, a woman’s actions mattered more to observers than her marital status. Upon marriage, all women became subject to the common law doctrine of coverture – the most notable consequence of which was a married woman’s almost complete lack of property rights.2 While coverture did not directly apply in criminal cases, a married woman’s civil subjection meant that she had a limited liability in certain circumstances.3 This is most evident in the defence of marital coercion, which held that a married woman who committed a crime with her husband – with the exceptions of murder and treason – was presumed to be acting under his coercion and was therefore not liable for her offence.4 A number of legal authorities attempted to explain this defence and its applicability. In The Countrey Justice (1618), Michael Dalton explained that “If the husband and wife together doe steale goods, this shal[l] be taken to be the onely act of the husband, and not to be felonie in the wife. But a woman covert, alone by her selfe (the husband not knowing thereof) may commit Larcenie, and may be either principall or accessarie.”5 Expanding on this idea in A Treatise of the Pleas of the Crown (1716–21), William Hawkins argued that “A Feme Covert is so much favour’d in respect of that Power and Authority which her Husband has over her, that she shall not suffer any Punishment for committing a bare Theft in Company, with or by Coercion of her Husband.”6 Writing at the end of the period studied in this paper, William Blackstone offered a similar reading of the favourable effects of subjection. Observing that while neither children nor servants could use the defence of compulsion, nonetheless, he noted, “in some cases

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the command or authority of the husband, either expressed or implied, will privilege the wife from punishment even for capital offences. And therefore if a woman commit theft, burglary, or other civil offences against the laws of society by the coercion of her husband, or even in his company, which the law construed a coercion, she is not guilty of any crime, being considered as acting by compulsion and not of her own will.”7 The defence was limited, but in theory the law recognized the husband’s authority over his wife, even in criminal matters. Legal theorists were important, but the early modern criminal justice system was participatory; its proper functioning depended on the active participation of individual victims who made the decision about whether or not to prosecute.8 These decisions did not necessarily follow the guidelines set out by legal theorists such as Dalton, Hawkins, and Blackstone. Moving beyond the legal theory reveals that while marital status played some role in how people assigned criminal liability to married women, notions of coercion did not, at least at the pretrial stage. The source base for this essay consists of pretrial depositions drawn from a random sampling of fifty-five northern assize deposition files between 1640 and 1760.9 Depositions are pretrial recordings of the evidence about a particular case, including accusations brought by victims of crime, witnesses’ discussions of the offence, and responses of the accused. As Malcolm Gaskill has shown, in a system based on active participation, the pretrial depositions offer rare insight into plebeian understandings of crime, criminals, and criminal responsibility.10 The extensive information contained within the depositions make them a particularly useful source to see how ordinary people, not legal theorists, understood marital status and how it affected women’s criminal responsibility. That being said, depositions are not without their problems, most notably in regards to the question of voice and the fact that they do not indicate the outcome of the case. There are no verdicts in the depositions, and many cases in the depositions did not result in a formal trial.11 As such, depositions reflect notions of criminal responsibility, not the actual liability of the alleged offenders. Since this essay is focused on discovering what people thought of women accused of crimes and their negotiations between the competing demands of married women’s legal status and the need to hold someone

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Table 5.1 Marital Status of Women in Depositions1 Marital status Married Accused with husband Accused without husband Unmarried (spinster) Widow Unspecified 2 Total

Number

Percentage

194 86 108 68 33 152 447

43.4 19.2 24.2 15.2 7.4 34 100

1 The depositions are drawn from a sampling of 55 files from the northern assize depositions, TNA: PRO ASSI 45/1/2-45/26/4. 2 These cases contained no indication of the marital status of the accused.

accountable for alleged crimes, the detailed information contained in the depositions provides particular insight into popular perceptions of married women’s criminal responsibility. The depositions deal with married women involved in numerous types of crimes, but this essay focuses on married women’s involvement in theft-related offences. The category of theft covers a wide range of crimes of varying degrees of severity; with the exception of petty larceny, all forms of theft were classified as felonies.12 Theft-related offences were the most commonly prosecuted crimes during this period and were theoretically excusable under the defence of marital coercion. The sampled files record a total of 447 women involved in theft-related offences, 194 of whom were classified as married, 68 as spinsters, 33 as widows, and the remaining 152 contained no indication of a woman’s marital status (see table 5.1).13 It is within these cases that one should be able to find the defence of marital coercion at work or at least some sense among deponents of a married woman’s lack of criminal liability, which would indicate the extent to which marital status mattered to the individual victims of crime. Within the depositions, deponents – including victims of crime, witnesses, and the accused – neither referenced the defence of marital

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coercion nor suggested that married women were less responsible for their alleged criminal behaviour than other offenders. This suggests that people did not consider married women’s criminal responsibility to be limited by the coercion of their spouses. Instead, the people in the depositions had very clear ideas about the unified nature of the household, which coverture and its emphasis on marital unity were designed to uphold. This unity was about co-operation and the joint purpose of husband and wife, as is evident in both the standard marriage sermon and the Homily on Marriage. Both emphasized the idea of mutual help and society and “perpetual friendly fellowship between husband and wife.”14 This idea underlay many perceptions of marriage and the household, which people understood and expressed in various contexts, including the criminal law. The legal treatises may have focused on marital coercion, but the various deponents did not; instead, they focused on the household structure and where the accused fit into their understandings of proper marital roles and relations. Differences depended on the alleged involvement of a woman’s husband, not her marital status. This resulted in similar perceptions of married and unmarried women accused of theft-related offences. Within this general pattern, understandings of the ideal household, which were connected to plebeian understandings of coverture and its consequences in daily life, shaped ideas about women in the depositions. These understandings were not about coverture as a legal doctrine, but rather as a subtext. As this essay argues, coverture informed and shaped women’s criminal liability only indirectly. Notwithstanding married women’s lack of independent legal identities, people had little difficulty depicting married women as criminals.

Married Women Accused with Husbands Within the depositions, the presence or absence of a woman’s husband played the most significant role in how deponents determined the extent of her criminal responsibility. This is not surprising given the parameters of the defence, which held that it only applied to

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women accused with their husbands. As Matthew Hale explained in Historia Placitorum Coronae (1736): “If a feme covert alone without her husband, and without the coercion of her husband, commit treason, or felony, tho it be but larciny [sic], she shall suffer the like judgment and execution, as if she were sole; this is agreed on all hands.”15 Of the 194 depositions discussing married women and theftrelated offences, 86 involved a husband and wife accused together. It is in these cases where one would expect to find evidence of either the defence of marital coercion or some sense of a married woman’s limited liability. In 41 (47.7 per cent) of the depositions a husband’s presence seemed to excuse or cover his wife’s responsibility for her actions. While it is not always possible to determine why the deponents attributed responsibility for the crime solely to the husband, it is interesting to note that they did not refer to coercion or compulsion in their discussions of the alleged offences. Deponents’ failure specifically to reference the defence of marital coercion suggests that it did not play a large role in understandings of married women’s responsibility for their alleged criminal behaviour. Instead, married women’s limited responsibility seems to be due to larger ideas about the household, informed by the subtext of coverture. This subtext largely manifested itself in the idea of a unified household that seems to have informed deponents’ understandings of the married women in question, even if they did not reference it explicitly. The household nature of crime was present in two general characterizations: the first, where a wife’s household duties provided legitimate cover for her actions (household crime); and the second, where deponents saw husband and wife working together in a common criminal enterprise (joint interest). There was some variation, but as table 5.2 indicates, these two models largely characterize the majority of depositions where husband and wife were accused of a theftrelated offence together. The first characterization, where a wife’s household responsibilities provided legitimate cover for her actions, comes across most clearly in cases of animal theft. Animal theft was predominantly, although not exclusively, a male crime; yet wives sometimes lurk around the edges of the accusations with their alleged involvement subsumed into

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Table 5.2 Characterizations of Accusations: Married Women Accused with Husbands1 Type of accusation2

Number of accused

Direct accusation Joint interest Husband covers wife: Peripheral involvement Household crime Husband covers wife, unspecified Total

3 42 41 6 16 19 86

Percentage 3.5 48.8 47.7 7 18.6 22.1 100

1 Source: Sampling of 55 files from TNA: PRO ASSI 45/1/2-45/26/4. 2 The type of accusation is based on how deponents characterized the women’s involvement in the alleged offences and attributed responsibility. Accusations were separated into general categories based on the allegations contained in the depositions. Direct accusation refers to deponents viewing the accused as fully responsible for her actions, with no circumstances suggesting otherwise. Joint interest refers to cases where the deponent sees husband and wife as jointly responsible for their action. The third category, in which the husband’s criminal identity covers his wife’s, is separated into three sub-categories. Peripheral involvement refers to cases where the deponent believes the woman was involved, but was not the main protagonist. Household crime refers to cases where women were involved in the crime, but their actions were excused or explained based on her household role, most notably in relation to the gendered division of labour. In the final sub-category of a husband covering his wife, unspecified, the deponents mentioned the wife but attributed responsibility for the offence solely to the husband, with no explanation as to why.

their larger household duties. Take for example the 1746 depositions against William Barker for stealing sheep. John Duck, the victim of the theft, explained how he had searched Barker’s home, where he found “some sheep fat and several pieces of mutton salted down in a pot putt into a box and another box set upon it” within a cupboard.16 When asked about the meat, Barker explained that he had received the sheep from two sailors and that “his wife salted the meat and set it open in the house in a Tub.”17 Barker’s wife may have prepared the allegedly stolen goods, but the deponents did not seem to hold her criminally

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responsible. While she may not have known the mutton was stolen, it is interesting to note that only one of the three informants mentioned her in his deposition, and this was in conjunction with her role preparing the food.18 Similarly, when Charles Peace confessed that he had stolen two sheep from William Ingham in 1753, he explained that he had killed the sheep in his house with his accomplice, Paul Widdup, who had taken “a forequarter, a leg, the head, the heart, and the fat of one of the said sheep and the rest was salted by [Peace’s] wife and kept in a tub in his house.”19 Peace alluded to his wife’s involvement in treating the stolen meat, but he did not see this as criminal behaviour. Nor did his accomplice even mention Peace’s wife in his confession, explaining simply that he and Peace had killed the sheep together.20 In both these cases of animal theft, the unnamed wives were conforming to their wifely roles and assisting their husbands in preparing food. The food may not have been legally obtained, but nobody seemed to hold the women responsible for their involvement in the alleged felony or for receiving stolen goods, an offence in its own right. These cases suggest that crime could be a familial enterprise and that wives were often involved in these actions even if their participation did not necessarily translate into criminal responsibility.21 The domestic nature of the involvement, the conformity of these women to their normative roles, and perhaps their ignorance of the crime seem to have ensured that their husband’s presence covered their liability. This seems to be less about ideas of marital coercion than about ideas of the household and people’s understandings of proper household roles. In this sense, these examples conform to Garthine Walker’s concept of the criminal household, where the gendered division of labour often provided women with legitimate “cover” for acquiring, exchanging, and selling stolen goods.22 It was the household structure, not marital coercion, which influenced how deponents attributed liability in these cases. The previous cases were not about coercion, although they still contained a sense of married women’s limited liability. But a husband’s actions did not always excuse or cover his wife’s criminal behaviour. Forty-two (48.8 percent) of the depositions in which a husband and wife were accused together contain an element of joint interest where deponents, including both victims and witnesses, held husband and

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wife accountable, suggesting an idea of co-defendant responsibility rather than co-defendant immunity (see table 5.2). This was the criminal household in the truest sense, where the joint interest of a unified household manifested itself in criminal behaviour. In these cases, a wife’s criminal identity was not erased, but rather placed firmly within the unified household that was at the heart of plebeian understandings of coverture. In 1663, Thomas Fletcher, a shoemaker of Newcastle, explained how somebody had broken into his shop and stolen seven pairs of boots and four pairs of shoes. Searching for his stolen goods, Fletcher “found two & twenty paires of shoes & three paire of bootes in the house of one James Coltheard of this towne shipwright & one pair of the said shoos on the said Coltheard’s feet.”23 Fletcher was one of a series of victims who had had their shops broken open and who found the stolen goods in James Coltheard’s house.24 This series of accusations seems to indicate that James was responsible for the thefts, but a JP examined both James and his wife Dorothy about the goods, suggesting that somebody believed they were both implicated in the crime. This sense of dual responsibility may have been because Dorothy took a more active role in the case than the women in the previously examined examples. When James was questioned about the shoes Fletcher found on his feet, he answered “his wife bought them, but of whom he knowes not.” James maintained that he was not sure where any of the stolen goods found in his house came from.25 Dorothy, on the other hand, explained that William Hobson, a servant to Thomas Lowrey, “came with a great sort of shoos & boots to her house, & desired leave of her to lay them in her house and said he had found them.” She also claimed that Hobson had brought a number of the other goods in question to her house, with the exception of a pair of curtains and a carpet that she had bought from Jane Clerk.26 Unlike the previous cases of animal theft, it was Jane, the wife, who acquired the stolen goods. Dorothy and James’s joint involvement becomes even more apparent in ten recognizances from December 1663 that bound a number of people to prosecute and give evidence against “James Colthe[a]rd and Dorothy his wife” at the next assizes.27 The victims may not have indicated Dorothy’s involvement in their depositions, but the recognizances suggest that they, or the JP taking the evidence, believed

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both Dorothy and James were responsible. This belief pointed to an understanding of a unified household where husband and wife worked together, as was expected, albeit in a criminal fashion. The 1675 case of John and Anne Baites contains a similar sense of dual responsibility. Daniel Micklethwaite deposed that someone had stolen thirty-five yards of cloth from his tenters. Searching for this cloth, Micklethwaite found John and Anne “possessed of the said peece of Carsy and two peeces of Carsy more … whereupon he caused the said Cloth to be secured and the partyes to bee convayed before a Justice of the peace.” 28 The JP examined both John and Anne, who gave somewhat conflicting testimonies. John confessed to having stolen the cloth, but said “that his wife was present when hee tooke the said Carsy of the Tenters.” 29 In contrast, Anne claimed “That shee was not present when hee tooke the said peece of Carsy of the Tenters nor doth shee know where hee had the other two peeces of Carsy except hee bought them of one George that hee mett uppon the high way.” 30 The JP then bound Micklethwaite in a recognizance for £40 to give evidence and “preferr an Indictm[en]t of the said fellony at the next General Gaol Delivery.” 31 While the recognizance did not specify whom Micklethwaite was to prosecute, the information in the depositions and the fact that the recognizance appeared below Anne’s examination, suggests that this was a case where the JP and Micklethwaite saw John and Anne as jointly responsible. They saw this as a criminal household rather than one in which the husband assumed all liability. 32 The evidence from the depositions suggests that the defence of marital coercion was not often a factor in how people perceived married women’s responsibility for their alleged criminal behaviour. While there was some sense of a married woman’s limited liability, this seemed to come from ideas about proper household roles rather than marital coercion. People tended to hold a married woman criminally responsible when it was clearly evident that she had been involved in the alleged theft, or when her normative household role could not provide a legitimate cover for her behaviour. In the minds of deponents, though not at law, criminal responsibility in these cases was shared between husband and wife. The shared responsibility imputed to the accused couples in these cases reflects the ideal of a unified household that was central to the subtext of coverture. It was this unity of purpose, not the

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legal doctrine based on coercion, which apparently underlay people’s understandings of marriage and criminal responsibility, at least when husband and wife were accused together. In this sense, marital status mattered. But, as the following discussion demonstrates, it was only a factor when husband and wife were accused together, not when a wife was accused without her husband.

Married Women Accused without Husbands Even in theory, the defence of marital coercion was limited to women accused with their husbands. It is therefore not surprising that it was not a factor in the 108 depositions containing married women accused of theft-related offences without their husbands. In the majority of these cases marital status did not play much of a role beyond the classification of the accused as the “wife of ” a particular person. Instead, the deponents focused on the alleged actions of the accused and had no difficulty attributing responsibility for these actions to married women. The direct accusations, limited role of husbands in the depositions, and the responses of married women to accusations of wrongdoing all indicate that marital status was less important than alleged criminal behaviour, at least at the pretrial stage. The majority (82.4 per cent) of depositions involving a married woman acting without her husband contain direct accusations, where the deponents alleged that the woman in question was solely responsible for her alleged accusations (see table 5.3). John Batley’s 1662 accusation of Mary Bramwell for housebreaking contains a characteristic direct accusation. Batley told the JP that he had left home one afternoon and when he returned, he “found that somebody had gone into his house at the broaken walls, and whereas they left the doore of the house tyed with a stringe, they found it open at their returne and further missed certain eateinge stuff.” Although Batley found the food in Edward Bramwell’s house, he suspected Edward’s wife Mary and caused her to be apprehended. Batley did not explain why he suspected Mary, but he held that “Mary confessed to [him] before the Constable that the bread found in the said Bramwell house was taken out of [his] house by hir the said Mary Bramwell.”33

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Table 5.3 Characterizations of Accusations: Married Women Accused without Husbands1 Type of accusation2 Direct accusation Joint interest Peripheral involvement Other Total

Number of accused 89 1 15 3 108

Percentage 82.4 0.9 13.9 2.8 100

1 Source: Sampling of 55 files from TNA: PRO ASSI 45/1/2-45/26/4. 2 The categories used in this table follow those used in table 5.2. Direct accusations were those where the deponent held the woman fully responsible for her alleged actions. Joint interest saw husband and wife working together. Peripheral involvement refers to the woman acting as an accessory.

Similarly, the 1736 accusation against Elizabeth the wife of Thomas Curley does not indicate that Elizabeth’s marital status limited her responsibility for the alleged criminal actions. Ann Wilkinson deposed that she saw Elizabeth “carrying several pewter dishes,” which she suspected were stolen. Wilkinson then went to Elizabeth “and took the eight pewter dishes … from the said Elizabeth Curley, who said that they were Mr. Salkelds and thereupon [Wilkinson] got a Constable and carried her the said Elizabeth Curley before Robert Sorsbie Esquire.”34 Henry Salkeld, the pewterer in question, explained how eight pewter dishes had been stolen out of his shop, “and that he found the same dishes in the custody of Ann Wilkinson who told [him] she took them from one Elizabeth Curley whom she suspected to have stol[e]n them.”35 Like the previously examined case of Mary Bramwell, the deponents in Elizabeth Curley’s case did not reference or even allude to marital coercion or any sense of limited liability. Instead, they held both women fully responsible for their actions. Accusations against married women accused of theft-related offences without their husbands largely conformed to the pattern of direct accusations found in these two cases.36

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Table 5.4 Role of Husbands in Depositions Concerning Married Women1 Role of husband 2 Primary actor Joint interest Passing mention Classification Other Total

Married woman accused with husband 38 (44.2%) 46 (53.5%) 0 0 2 (2.3%) 86 (100%)

Married woman accused without husband 5 (4.6%) 4 (3.7%) 24 (22.2%) 72 (66.7%) 3 (2.8%) 108 (100%)

1 Source: Sampling of 55 files from TNA: PRO ASSI 45/1/2-45/26/4. 2 These categories are based on interpretations of how deponents characterized a husband’s role in the alleged offence. In the first category, the husband was the primary actor. In the second, husband and wife worked together in some fashion. In the third category, a deponent made passing mention to the husband, but he was not privy to the alleged crime. The fourth category refers to cases where the husband was only mentioned in relation to the classification of the woman as the “wife of ” a particular man.

The limited role that marital status played in how deponents assigned responsibility is also evident in the role husbands played in these depositions. As table 5.4 indicates, husbands were largely absent from the accusations, suggesting that deponents saw the accused and her actions as separate from her husband and marital identity. In 1651, for example, Jennett Yeats explained how Elizabeth Benson came to her house “and pretending … to be [sick] went from one roome to another for the space of three houres and after she was gone from her house [Yeats] found certaine of her household goods to be wanting.” Yeats did not mention Benson’s husband in her deposition, and the only indication that Benson was married was in her classification as the “wife of William Benson” in the title of her examination.37 Benson’s criminal identity was separate from her husband’s, despite a shared legal identity. In his 1689 accusation of Anne Fowler for pickpocketing, Robert Cookson explained how he had called at John Fowler’s house and that

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Table 5.5 Responses to the Charges1 Response 2 Denied offence Husband’s authority Confession No response Total

Married women accused with husbands 22 (25.6%) 4 (4.65%) 4 (4.65%) 56 (65.1%) 86 (100%)

Married women accused without husbands

Unmarried women

53 (49.1%) 1 (0.9%) 23 (21.3%) 31 (28.7%) 108 (100%)

41 (40.6%) 0 41 (40.6%) 19 (18.8%) 101 (100%)

1 Source: Sampling of files from TNA: PRO ASSI 45/1/2-45/26/4. 2 Women’s responses to allegations in the depositions were classified into the following four categories. In the first, women denied that they had committed the alleged crime. In the second, women alluded to or referenced their husband’s authority. It is important to note that they did not explicitly state that their husband ordered them to commit the crime, but rather, alluded to this authority. In the third category, women confessed that they were guilty of the alleged offence. The fourth category refers to depositions where women did not respond to the charges.

Fowler’s wife Anne had stood next to him while he was bridling his horse. Cookson then “felt hir hand in his left pocket and thereupon he putt her from him with his hand asking what she had to doe there whereupon his horse slipping his bridle he putt his hand in his pocket and found his bag and money gone.”38 Cookson mentioned Fowler’s husband in reference to the house and in classifying Anne, but not in conjunction with the crime. His presence in the deposition was about providing information concerning the case, not in lessening Anne’s liability. The treatment of husbands as peripheral probably reflects the belief that a husband played no role in determining his wife’s criminal responsibility if she was accused without him. The seeming unimportance of marital status in understandings of criminal responsibility comes across in the responses these women gave to the charges against them in their examinations (see table 5.5). One would expect that some of the accused women would at least at-

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tempt to appeal to the defence of marital coercion, or at least their husbands’ presence, in their examinations; however, this was not the case. Of the 110 women who responded to their charges, only five alluded to their husbands’ authority. In February 1641, for example, Edward Skurfield testified that someone had taken some linen apparel and household goods from his trunk. He found these goods in Robert Foster’s house and questioned Robert’s wife Barbary, who claimed that her husband and his brother Joseph had brought her the linen and “willed her to make them shirts of it.” 39 In 1681, when searching for his stolen mare and foal, George Wiley found them in Edward Burley’s yard. Wiley questioned Burley’s wife, who said “that she would neather medle nor make until hir husband came home.”40 These two women may have alluded to their husband’s authority, but this was not the same thing as marital coercion and seems to indicate larger understandings of household roles, not any sense of limited liability. In fact, the only defendant to cite coercion in all these records was Thomas Sharp, with whom we began.41 Instead of relying on the defence of marital coercion, most married women accused of theft-related offences simply denied any wrongdoing. This tactic was in keeping with the general practice in the early modern criminal justice system; denying an offence was often the best way to counteract a charge. In 1682, for example, Margery Davison explained that her house had been broken open and that £5 10s and a gold ring had been stolen from the premises. She suspected Margaret the wife of Peter Kempley and got a warrant to apprehend her. Davison then deposed that Margaret offered her £5 1s 6d and two “single pennies … hopeing to have bin unprosecuted.”42 In response to these charges, Margaret claimed that “she is not at all guilty of what is layd to her charge by the said Margery Davison.” 43 In 1750, Martha Collier explained how her house had been broken into one night and “several goods & chattels … particularly a silver cup with a spread eagle engraved thereon [were] feloniously stole[n] out of her said house by some person or persons unknown.”44 In a related deposition, Joseph Buckle, a goldsmith of York, explained how Elizabeth the wife of George Price had brought some silver plate to his shop to sell, including the silver cup. Buckle suspected the cup was stolen and took Elizabeth before the mayor of York, who charged her

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with stealing the said goods.45 In response to these charges, Elizabeth claimed “that she did not break the said house open or steal any goods or chattels but saith that she found the cup.”46 The women examined in this section were all wives, but their marital status seems to have been a way to identify or describe them, not their defining characteristic. Deponents and the women themselves saw their actions as more important than their marital status. These depositions suggest that although marriage changed a woman’s legal status, it did not necessarily change people’s understandings of her behaviour and alleged criminal acts.

Unmarried Women The limited role that marital status played in how people determined a woman’s criminal responsibility in the pretrial depositions comes across even more clearly when one considers the similarities between the characterizations of married women accused without their husbands and those of single and widowed women. In both groups of depositions, people generally held the accused fully responsible regardless of her marital status. Accusations made against unmarried women were as direct as the accusations against married women accused without their husbands (see tables 5.3 and 5.6). In 1670, Alexander Moore explained how someone had broken into his house and stolen a number of goods, including curtains and some of his daughter Katherine’s clothing. Moore deposed that he held “Lionell Charleton of Howlerhirst, Thomas Charleton, and Ann Dodd [spinster] of the same in great [suspicion] for breaking of the house and stealing of the cloaths.” To support this assertion, Moore stated that his daughter Katherine challenged Ann Dodd about a “petty coate” that she wore “which was made of the curtains above specyfied.”47 In a separate deposition, Elizabeth Milburne claimed that Dodd had brought the clothes in question to her house where she desired lodging.48 Both Milburne and Moore directly accused Dodd of being involved, and their accusations against Moore are quite similar to the accusations against married women examined in the previous section.

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Table 5.6 Characterizations of Accusations: Unmarried and Widowed Women1 Type of accusation2 Direct accusation Peripheral involvement Other Total

Number of accused 94 5 2 101

Percentage 93.1 4.9 2.0 100

1 Source: Sampling of files from TNA: PRO ASSI 45/1/2-45/26/4. 2 The categories used in this table follow those used in tables 5.2 and 5.3. Direct accusations are those where deponents held the woman was fully responsible for the crime. Peripheral involvement refers to cases where deponent believed the woman was involved but not the main protagonist, most often as an accessory.

The 1749 depositions against Mary Hesle, a spinster of York, contain a similarly direct accusation. The deponent Charles Cottrell explained how he had a number of goods, including food and clothing, stolen from his house “by some person or persons unknown but he suspects the said house was broke and the said goods so stolen by one Mary Hesle a washer woman who lodges at Joseph Garwoods and washed at this informant’s house.”49 Elizabeth Wood confirmed that Cottrell had been in possession of the goods in question and explained that upon searching for them she “found the abovesaid things in the house of Mary Hesle which she confesses she stole.”50 James Rowe, the mayor of York, examined Hesle twice concerning the alleged felony. She denied the offence in her first examination; in her second she confessed that “she did take the said goods but did not break the house but went in at the window which was open.”51 This was probably a strategy on Hesle’s part to lessen the charges, but it demonstrates that everyone from the victim of the theft, Cottrell, to the various witnesses, to Hesle herself, believed Hesle was fully responsible for her actions. The depositions contain no sense that Hesle’s gender or her marital status played any role in perceptions of her criminal behaviour or responsibility.52 The limited influence that marital status had on people’s perceptions of a woman’s criminal responsibility also comes across in the

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1740 accusations against Hellen Ingham, which discuss her actions as both a wife and a widow. Hellen was charged with breaking into Bryan Hill’s barn and stealing beans from the barn, which she denied in her examination.53 The depositions concerning this offence indicate that Hellen was a habitual offender. William Allanson, for example, explained that he had “frequently miss’d corn as well thresh’d as in sheaf out of the said barn, which he … was thoroughly convinc’d must have been feloniously taken out of the said barn.” 54 What is particularly interesting in this case is Hill’s assertion that he had “always had a suspicion of Hellen the wife of the said Peter Ingham now widow of the said Peter to have feloniously taken the said corn so missed.” 55 In this statement, Hill indicated that Hellen’s marital status did not play a role in how he determined her criminal responsibility. Marital status here had little impact on understandings of criminal responsibility. The similarities between how people understood married and unmarried women’s criminal responsibility is also evident in cases where a married woman was accused with an unmarried woman. Consider for example the 1756 depositions against Mary the wife of Stephen Speight and Elizabeth Webster singlewoman. In her deposition, Ann White explained how she had been sharing a bed with Elizabeth Webster, who got up in the middle of the night and left the house. When she awoke, White “found the locks of her drawers and cupboard opend,” and a number of goods had been taken out of the cupboard. White further deposed that she had “just cause to suspect that the said Elizabeth Webster hath feloniously taken away all the aforesaid goods.”56 In her examination, Webster confessed to having stolen the goods and explained that she had carried them to the house of Mary Speight, who then “went along with [her] taking the goods with ’em to the house of John Fox … where part of the said goods were found by John Wilson the Bailiff.” Webster indicated that Mary knew the goods were stolen when she alleged that Mary asked her for “half a crown, for her husband Stephen Speight, that he might not make a discovery of the goods being in his house.” 57 The JP examined Mary’s husband Stephen concerning the offence, but he indicated that his wife had been involved, not him. He had even advised Mary “to get quit of ’em [the stolen goods], lest some harm sho’d happen to her.” 58

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From the depositions, it appears that Elizabeth stole the goods, but Mary had been involved as the receiver and in hiding the stolen goods. While the deponents such as Ann White held Elizabeth responsible, this was they believed because she had been the one who actually stole the clothes. Yet, the deponents still implicated Mary and held her responsible for her involvement. This case demonstrates that marital status alone was not the deciding factor in how people perceived a person’s criminal responsibility.59 In this example, the case seemed to rest on the actions of those involved, rather than their marital status. Instead of being a way to determine liability, marital status was merely a way to classify the accused.

Conclusion In 1725, a London jury convicted John England for grand larceny but acquitted his wife Sarah because she was “acting by the Consent and under the Authority of her Husband.”60 Marital status could, and did, play a role in determining a woman’s liability in the formal structures of the assize courts. However, an analysis of the northern assize depositions indicates that marital status did not play a role in the pretrial processes of the early modern criminal justice system. People within the depositions did not generally believe a woman’s marital status dictated her criminal liability; many held that these same women were responsible for their alleged criminal actions despite the legal defence of marital coercion and the women’s complicated legal status. A comparison of the married and unmarried women accused of theftrelated offences in the depositions demonstrates marital status played only a limited role in how people assigned criminal responsibility in the depositions. People whose goods were stolen were less concerned with the gender or marital status of the accused than they were with describing her alleged actions to the magistrate.61 Marital status was an important way to classify the accused and often acted as a means of identification. But it did not dictate how the deponent thought of a woman’s criminal liability. Instead, these deponents focused on the behaviour of the accused. The only time marital status seemed to make a difference was when a married woman was

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accused with her husband and the deponents placed these actions in the context of the household. In this sense, it was larger understandings about the unified nature of the household that people saw as important, not the legal implications of a woman’s marital status. This was about coverture as a subtext, not coverture as a legal doctrine. It should also be noted, however, that these understandings took place in the pretrial stages and did not address how judges and juries assigned criminal liability in the formal structures of the assize courts. At the pretrial stage at least, coverture functioned largely as an idea about social organization that underlay people’s understandings of married women rather than as a legal doctrine that affected a married woman’s legal rights and identity. Indeed, that married women could be held individually responsible for so many of their criminal actions – whether informally, as seen here, or formally at law as Blackstone and others acknowledged for serious crimes – proved an important exception to notions of unity of person. Perhaps this was why Frances Power Cobbe could draw on women’s criminal responsibility in her 1869 call for women’s rights. As she asserted, “So long as you allow I possess moral responsibility and sufficient intelligence to know right from wrong (a point I conclude you will concede, else why hang me for murder?) I am quite content, It is only as a Moral and Intelligent Being I claim my civil rights. Can you deny them to me on that ground?” 62 Cobbe’s argument speaks to the paradoxes inherent in coverture, where a married woman could have an independent legal identity in the criminal context, but not in other realms of citizenship. NOTES 1 Examination of Thomas Sharp (1751), The National Archives, Public Record Office, Kew, Surrey [hereafter TNA: PRO] ASSI 45/24/3/65. Assizes: Northern and North-Eastern Circuits: Criminal Depositions and Case Papers. 2 The historiography of coverture focuses primarily on how women negotiated coverture’s property restrictions. Some key studies include: Maeve Doggett, Marriage, Wife-Beating and the Law in Victorian England (Columbia: University of South Carolina Press, 1993); Amy Louise Erickson, Women and Property in Early Modern England (London:

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Routledge, 1993); Hendrik Hartog, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2000); Susan Staves, Married Women’s Separate Property in England, 1660–1833 (Cambridge, MA: Harvard University Press, 1990); Tim Stretton, Women Waging Law in Elizabethan England (Cambridge: Cambridge University Press, 1998). 3 Deirdre Palk, Gender, Crime and Judicial Discretion, 1780–1830 (London: Boydell Press, 2006), 21–4. 4 Janelle Greenberg, “The Legal Status of the English Woman in Early Eighteenth-Century Common Law and Equity,” Studies in EighteenthCentury Culture 4 (1975): 174. 5 Michael Dalton, The Countrey Justice (London, 1618), 237. 6 William Hawkins, A Treatise of the Pleas of the Crown (London, 1716–21), 2. For other explanations see: Sir Edward Coke, Third Part of the Institutes (London, 1644), 108; Sir Matthew Hale, Historia Placitorum Coronae (London, 1736), 43–8; The Complete Justice (London, 1736), 140, 240, 263, 282; Jacob Giles, The Modern Justice (London, 1716), 158. 7 William Blackstone, Commentaries on the Laws of England (London, 1765), 1: 432. 8 Peter King, Crime, Justice and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000), 17. 9 The deposition files (TNA: PRO ASSI 45) contain the extant depositions for a particular year or in some cases for multiple years. Each file contains multiple depositions for various offences which occurred during the given year. The sampling was random in the truest sense. When choosing which files to use, I ensured that I had a minimum of three files from each decade to ensure a representative sample. I then went through the files searching for references to alleged female offenders, who were then entered into a database which attempted to track their experiences with the criminal justice system from deposition to trial to punishment. 10 For a discussion of depositions as a source see: J.A. Sharpe, Crime in Early Modern England, 1550–1750, 2nd ed. (Harlow: Longman, 1999), 52; Malcolm Gaskill, Crime and Mentalities in England (Cambridge: Cambridge University Press, 2000), 24; Cynthia Herrup, “New Shoes and Mutton Pies: Investigative Responses to Theft in Seventeenth-Century East Sussex,” Historical Journal 27, no. 4 (1984): 824. 11 For a discussion of pretrial processes see King, Crime, Justice and Discretion, 17–128.

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12 For an overview of the various property offences see J.M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton, NJ: Princeton University Press), 140–90. 13 In order to determine a woman’s marital status, I looked for her classification as a wife, spinster, or widow in the title of the deposition. I then read the deposition to see if anyone referenced her marital status. If a deponent assumed she was married, I classified the accused as married. 14 “The Form of Solemnization of Matrimony from The Book of Common Prayer (1559),” and “An Homily of the State of Matrimony from The Second Tome of Homilies (London, 1563),” in Daughters, Wives and Widows: Writings by Men about Women and Marriage in England, 1500–1640, ed. Joan Larsen Klein (Urbana and Chicago: University of Illinois Press, 1992), 5, 13. For discussions of the early modern household see Keith Wrightson, Earthly Necessities: Economic Lives in Early Modern Britain (New Haven, CT: Yale University Press, 2000). 15 Hale, Historia Placitorum Coronae, 43. 16 Information of John Duck (1745), TNA: PRO ASSI 45/23/2/16E. 17 Examination of William Barker (1745), TNA: PRO ASSI 45/23/2/16B. 18 Information of Thomas Fowler, Robert Agar, and John Duck (1745), TNA: PRO ASSI 45/23/2/16C–16E. 19 Confession of Charles Peace (1753), TNA: PRO ASSI 45/25/1/107. 20 Confession of Paul Widdup (1753), TNA: PRO ASSI 45/25/1/176. 21 For similar cases of animal theft see: Information against Francis Knagge and his wife (1648), TNA: PRO ASSI 45/2/2/82–5; Information against John Fenton and Mary the wife of John Fenton (1685), TNA: PRO ASSI 45/14/2/42–43A; Information against Francis Dunn and George Pinckney (1689), TNA: PRO ASSI 45/15/3/87–8. 22 Garthine Walker, “Keeping It in the Family: Crime and the Early Modern Household,” in The Family in Early Modern England, ed. Helen Berry and Elizabeth Foyster (Cambridge: Cambridge University Press, 2007), 76–8. 23 Information of Thomas Fletcher (1663), TNA: PRO ASSI 45/6/3/28. 24 Informations of Thomas Hale, Edward Stanys, Andrew Robinson, Charles Clarke, Bartram Browne, Thomas Fletcher the younger, and George Simpson (1663), TNA: PRO ASSI 45/6/3/22–5, 28v–28A. 25 Examination of James Coltheard (1663), TNA: PRO ASSI 45/6/3/27–27v.

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2 6 Examination of Dorothy Coltheard (1663), TNA: PRO ASSI 45/6/3/26–26v. 27 Recognizances taken before Sir James Clavering against James Colthird and Dorothy his wife (1664), TNA: PRO ASSI 45/7/1/46–55. 28 Information of Daniel Micklethwaite (1675), TNA: PRO ASSI 45/11/2/7–8. 29 Examination of John Baites (1675), TNA: PRO ASSI 45/11/2/7–8. 30 Examination of Anne Baites (1675), TNA: PRO ASSI 45/11/2/7, 8A. 31 Recognizance of Daniel Micklethwaite (1675), TNA: PRO ASSI 45/11/2/8A. 32 See also: Information against Jasper Mitchell and Sarah his wife (1656), TNA: PRO ASSI 45/5/3/56–9; Information against Richard Nicholson and Margaret his wife (1665), TNA: PRO ASSI 45/7/2/183; Information against John Braithwaite and Anne his wife (1685), TNA: PRO ASSI 45/14/2/21; Information against John Gudding, Frances his wife, and Anne his daughter (1723), TNA: PRO ASSI 45/18/1/52; Information against William Clark and Ann his wife (1734), TNA: PRO ASSI 45/21/1/16. 33 Information of John Batley (1662), TNA: PRO ASSI 45/6/2/11. 34 Information of Ann Wilkinson (1737), TNA: PRO ASSI 45/21/1/37. 35 Information of Henry Salkeld (1737), TNA: PRO ASSI 45/21/1/33. 36 See for example: Information against Anne Norman (1650), TNA: PRO ASSI 45/3/2/111; Information against Elizabeth the wife of Andrew Hodghon (1670), TNA: PRO ASSI 45/9/3/37–40; Information against Mary the wife of William Stuart (1725), TNA: PRO ASSI 45/18/3/28; Information against Ann the wife of Robert Wilson and Margaret the wife of John Scott (1747), TNA: PRO ASSI 45/23/4/102A–102B. 37 Information of Jennet Yeats and Examination of Elizabeth Benson wife of William Benson (1651), TNA: PRO ASSI 45/5/1/12. 38 Information of Robert Cookson, TNA: PRO ASSI 45/15/3/29. See also: Information against Isable Gross (1737), TNA: PRO ASSI 45/21/1/52–5; Information of Robert Hudson against Jane Watson (1747), TNA: PRO ASSI 45/23/3/104B; Information against Elizabeth Price (1750), TNA: PRO ASSI 45/24/2/93B–93C. 39 Examination of Barbary Foster the wife of Robert Foster (1641), TNA: PRO ASSI 45/1/3/12. 40 Information of George Wiley, TNA: PRO ASSI 45/13/1/17. The other depositions in which a wife alluded to her husband’s authority include: Examination of Mary Burbank the wife of Ralph Burbank (1665), TNA: PRO ASSI 45/7/2/21A; Examination of Isabell the wife of John Harrison (1665),

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TNA: PRO ASSI 45/7/2/54A; Examination of Mary Robinson the wife of Samuel Robinson (1740), TNA: PRO ASSI 45/21/4/61. 41 Information concerning Thomas and Mary Sharp (1751), TNA: PRO ASSI 45/24/3/65, 67, 68A. 42 Information of Margery Davison (1682), TNA: PRO ASSI 45/13/2/61. 43 Examination of Margaret the wife of Peter Kempley (1682), TNA: PRO ASSI 45/13/2/61. 44 Information of Martha Collier (1750), TNA: PRO ASSI 45/24/2/93B. 45 Information of Joseph Buckle (1750), TNA: PRO ASSI 45/24/2/93B. 46 Examination of Elizabeth the wife of George Price (1750), TNA: PRO ASSI 45/24/2/93C. 47 Information of Alexander Moore (1670), TNA: PRO ASSI 45/9/3/110. 48 Information of Elizabeth Milburne (1670), TNA: PRO ASSI 45/9/3/112. 49 Information of Charles Cottrell (1749), TNA: PRO ASSI 45/24/1/49B. 50 Information of Elizabeth Wood (1749), TNA: PRO ASSI 45/24/1/49C. 51 Examinations of Mary Hesle (1749), TNA: PRO ASSI 45/24/1/49D–49E. 52 For similar cases see: Information against Margaret Gordon, spinster (1660), TNA: PRO ASSI 45/5/7/34–6; Information against Mabell Blaithwate spinster (1682), TNA: PRO ASSI 45/13/2/17–19A; Information against Isabell Ward spinster (1733), TNA: PRO ASSI 45/19/4/58; Information against Ann Donkin spinster (1753), TNA: PRO ASSI 45/25/1/23–6. 53 Examination of Hellen Ingham, widow (1737), TNA: PRO ASSI 45/21/4/28. 54 Information of William Allanson (1737), TNA: PRO ASSI 45/21/4/29. 55 Information of Bryan Hill (1734), TNA: PRO ASSI 45/21/4/31. 56 Information of Ann White (1756), TNA: PRO ASSI 45/25/4/146. 57 Examination of Elizabeth Webster (1756), TNA: PRO ASSI 45/25/4/145. 58 Examination of Stephen Speight (1756), TNA: PRO ASSI 45/25/4/147. 59 For other cases that concern married and unmarried women see: Information against Alice Fulburne and Elizabeth the wife of William Wilson (1640), TNA: PRO ASSI 45/1/3/13–14; Information against Elizabeth Hodghon and Jane Wheats (1670), TNA: PRO ASSI 45/9/3/37–40; Information against Jane Steel, Mary Steel, and Dorothy Johnstone (1681), TNA: PRO ASSI 45/13/1/27–36. 60 Old Bailey Proceedings Online (www.oldbaileyonline.org, version 6.0, 17 April 2011), August 1725, trial of John England and Sarah his wife (t17250827-61).

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61 For a discussion of how gender affected decisions in the criminal justice system see Palk, Gender, Crime and Judicial Discretion. 62 Frances Power Cobbe, “Criminals, Idiots, Women, and Minors, (1869),” in ‘Criminals, Idiots, Women, and Minors’: Victorian Writing by Women on Women, 2nd ed., ed. Susan Hamilton (Peterborough, ON: Broadview Press, 2004), 108–9.

6

Women and Property Litigation in SeventeenthCentury England and North America lindsay moore

While women in the seventeenth-century English world remained subordinates at the level of both household and state, they nevertheless appeared as litigants before the courts to protect their rights to property. Under both English and American law, a woman’s marital status primarily defined her legal identity: under common law, the doctrine of coverture meant that married women had no legal standing apart from their husbands. Though coverture seriously circumscribed the ability of married women to pursue cases in common law courts, the availability of legal jurisdictions other than common law, especially equity and ecclesiastical law, provided women with alternative avenues to protect their legal rights to property. This essay adopts a comparative, transatlantic approach to explore women’s legal capabilities in different areas of the English world. It demonstrates that in some respects, married English women retained more legal options than did their counterparts in the colonies. Although the work of Atlantic historians and transnational legal scholars reflects the growing interest in broadly conceived comparative studies, historians of both English and American women have remained largely isolated from these currents in historical literature.1 This insulation is remarkable given the voluminous research on English and colonial women that has appeared since the early twentieth century. In colonial historiography, a strong trend toward American exceptionalism has argued that colonial women possessed more freedom, independence, and legal capabilities than their counterparts in England.

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This trend seems to have begun with Richard Morris’s work in the 1930s on colonial women’s relationship to the law. Morris argued that colonists adopted policies that favoured women’s property rights and their ability to contract, sue, and act independently in the marketplace once liberated from a feudal past and outdated English precedents.2 Morris’s belief that colonial women’s lives were substantially better than English women’s set the tone for scholarship on colonial women for the next five decades. Cornelia Hughes Dayton’s work on women and the law in colonial Connecticut has argued that the New England colonies had done much to erase the sexual double standard in the prosecution of fornication and illegitimacy in the seventeenth century. It was only in New England, Dayton argues, that Protestant dissenters had established a more egalitarian society that “departed in significant respects from the double sexual standard deeply embedded in early modern English culture.”3 While colonial scholars have made some attempt to place colonial women in relationship to their English counterparts, their works lack a sustained engagement with the current historiography on British women as well as British archival sources. As a result, the comparisons that colonial scholars have drawn have tended to reiterate Morris’s old argument that women’s legal standing drastically improved when they left England for America. If colonial historians have, for the most part, been reluctant to engage substantially in British sources, studies on women’s legal standing in early modern Britain have not, in general, drawn comparisons with the status of women under colonial law. One notable exception to this is Rosemary O’Day’s recent work on women’s agency in early modern Britain and the North American colonies. However, while O’Day’s book focuses on the experiences of women in England, Scotland, Ireland, and Wales compared to those of women in America, because of her reliance on women’s diaries, letters, and accounts, her analysis is limited to elite women in the eighteenth century.4 Yet the wide availability of litigation records on both sides of the Atlantic makes it possible for us to go beyond her analysis by examining women from a broader range of social levels. The focus of this essay is women’s involvement in debt and estate litigation in southeast England, Massachusetts, and Maryland from 1630 to 1700. In their roles as administrators and executors, women

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had reason to participate in this kind of litigation as they collected and disbursed amounts owing to or from the estate. Based on an analysis of over 3,000 cases drawn from a variety of legal jurisdictions, this essay demonstrates that women, especially married women, benefited substantially from the availability of legal jurisdictions other than the common law. Because in common law courts married women were bound by the doctrine of coverture, both English and colonial wives, as well as widows and single women, appeared before these courts infrequently.5 However, the ecclesiastical courts, which routinely allowed even married women to appear as litigants independently from their husbands, provided an avenue for legal redress for English women pursuing litigation over the administration of estates, the division of movable property, and the payment of legacies. As will be shown below, women made up well over half of the litigants who appeared before these courts in the seventeenth century. Though women comprised a large percentage of the litigants who appeared before the ecclesiastical courts, these court records relating to property litigation have been surprisingly overlooked as a source for women’s history.6 Further, these records show that English women contributed to the growing litigiousness of seventeenth-century English society.7 Contrary to the large body of historiography arguing that colonial women possessed more legal independence than their English counterparts, this essay also shows that English women appeared as parties to litigation much more frequently than colonial women. The supremacy of the common law in the colonies, and the concomitant solidification of coverture as a barrier to married women’s legal activity, placed colonial women at a disadvantage relative to their English counterparts, who had a range of legal jurisdictions from which to choose. While the establishment of equity courts in Maryland had somewhat improved women’s ability to pursue litigation in the colony by the end of the seventeenth century, women’s legal options in Massachusetts were more limited.

I A woman’s legal standing, and her ability to pursue or defend legal cases independently of a male representative, was defined differently

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according to the legal jurisdiction in which the case was heard. Under English and colonial common law, a woman’s legal standing depended upon her marital status. Common law granted single women and widows, as femes sole the same legal status as men: they could sue and be sued, own property and inherit property in their own names, and make wills bequeathing their property to heirs. However, as is explained more fully in the introduction to this volume, married women, or femes covert, had no legal identity apart from their husbands. While some urban areas such as the City of London upheld the right of married female businesswomen to make and defend legal contracts in certain circumstances, according to the letter of the common law, a married woman could not enter into a contract.8 Though English and colonial common law restricted the legal rights of married women, at the same time it protected a woman’s right to a portion of her husband’s land if she outlived him. Common law in England and the English colonies guaranteed a widow the use of one-third of any land her husband held in fee simple, either at his death or at any time during his life. This portion, also known as dower rights, had come into common practice in England by the fifteenth century as a way to protect a woman’s interest in the money and property she had brought into the marriage and had helped to maintain through her labour and oversight.9 Common law protected a widow’s right to collect her dower whether her husband made a will or not. Under the terms of the Statute of Wills of 1540, a testator could devise all of his freehold and copyhold land to heirs of his choice without the hindrance of common law or manorial customs. However, while this meant that a testator could legally disinherit his children by the terms of his will, the statute maintained the right of widows to collect one-third of their husbands’ estates and explicitly barred men from bequeathing their wives’ dower lands to other persons.10 Though a woman’s dower lands would descend to the next male heir after her death, common law guaranteed a widow an income during her lifetime and ensured that she would share in the benefit of the estate to which she had contributed throughout her life. While the increasing use of jointures had made the collection of dower rights less common in England by the seventeenth century, colonial women continued to rely on common law to protect their

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rights to a portion of their husbands’ estates.11 A married male testator could not legally bequeath the land reserved for his wife’s dower, although he could choose to disinherit his sons and daughters.12 A Maryland law of 1642 guaranteed a widow the use of at least onethird of her husband’s real estate; if her marriage had been childless, she would receive the use of the entire estate.13 While widows’ portions were relatively generous in the Chesapeake, a widow’s right to collect her dower in Massachusetts was more uncertain. The Massachusetts legal code of 1648 gave widows the use of a “competent portion” of the estate but left the exact allotment of land and movable property to the discretion of the magistrates. According to the law, widows had to meet certain guidelines before they could collect their dower rights. The law stipulated that a widow must have lived “with her husband in this jurisdiction”; if she had lived separately from her husband, it had to have been “with his consent or through his meer default, or inevitable providence, or in the case of divorce where she is the innocent partie.” Further, it spelled out that only widows who “shall not commit or foster any strip or wast” to the land or houses on the estate would be judged suitable of its possession.14 Common law also allowed a wife who had received power of attorney from her husband to come before the court to pursue legal cases in his name. Power of attorney was frequently used by the wives of colonial merchants, who were often away for months or even years at time. Though a wife’s ability to appear before a court of common law depended upon her presentation of a letter of attorney from her husband, this provision allowed wives some degree of flexibility to pursue legal cases at their own discretion.15 Though common law and coverture were the foundation for women’s relationship to the law in the English world, equity and ecclesiastical jurisdictions provided alternative means for women in England to protect their property. Both jurisdictions permitted exceptions to the doctrine of coverture, allowing married women in certain circumstances to sue and be sued as parties in their own rights. The temporary suspension of a woman’s status as a feme covert in these legal jurisdictions made it possible for some women to sue even their own husbands if they wished. Though both the equity and ecclesiastical courts allowed married women legal identities separate from that of

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their husbands, their fields of jurisdiction were very different. Equity courts had, since the fifteenth century, claimed jurisdiction over marriage settlements and jointures, and later trusts, providing an elasticity that was lacking under the more strict rules of common law. Equity courts upheld the doctrine of “separate estates,” a legal instrument that allowed a married woman to retain independent control of her property for her separate use and prevented it from falling under the control of her husband. These legal devices worked because the land or other property was held in trust for the woman during her period of coverture by one or more feoffees or trustees who were obligated by law to act on her behalf.16 While equity allowed exceptions to the doctrine of coverture by upholding devices such as the separate estate, ecclesiastical law virtually ignored the assumption that married women should be legally represented by their husbands. From the twelfth century until their abolition in 1857, the ecclesiastical courts heard cases concerning a variety of issues, including moral offences, slander and defamation, and matrimonial causes.17 However, testamentary litigation comprised the majority of suits heard before the courts, including conflicts that arose regarding a person’s right to act as an executor of a will, the capacity of the testator to make a will, and the payment of legacies stipulated by the testator.18 The ecclesiastical jurisdiction over these affairs was based on the assumption that the motive for bequests was the health of the deceased’s soul after death. The church courts’ jurisdiction over bequests extended only to movable goods; land was never at issue in a case heard before the ecclesiastical courts, although sometimes leases for land were included in inventories of movable property bestowed by a testator to a legatee.19 The majority of property at issue in testamentary litigation consisted of legacies, usually the payment of a cash sum, and household goods, utensils, and furniture. If these disputes concerned real property or marriage settlements, they could also be heard at common law or equity. Ecclesiastical rules of inheritance in cases of intestacy stipulated that a widow was entitled to inherit one-third of her husband’s movable property, with her children splitting the remaining two-thirds equally between them.20 The vagaries of ecclesiastical law, especially concerning the division of movable property between half-siblings and the extent to which the

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law of coverture applied to the devolution of chattels to a widow, meant that women were at the centre of many of these testamentary cases.21 Though most women did not make wills, they commonly acted as executors and administrators of estates.22 This process included proving the will in court, exhibiting inventories, filing accounts, and dividing movable property among heirs in cases of intestacy. Amy Erickson has estimated that about 70 per cent of all people filing accounts in the province of Canterbury were women, usually the widow of the deceased. The presumption that a widow was usually best placed to probate her husband’s estate was seen as a natural outgrowth of her investment in the estate during her lifetime and her guardianship of any young children produced by the marriage. Widows who acted as executors had nearly complete control over their late husbands’ estates and were charged with arranging and paying for funeral and burial expenses, paying the legacies specified in the will, and discharging the deceased’s debts and collecting his credits. As executors of an estate, a widow received not only the bequests her husband gave her in his will (or her dower thirds, whichever was greater), but also the use of the portions of any of her children during their minorities.23 In the colonies, the lack of a well-developed system of equity and the non-existence of the ecclesiastical jurisdiction meant that the common law primarily defined the legal identity of colonial women. The courts of equity, which by the seventeenth century had grown in England into elaborate and effective arbiters of women’s property, were both unpopular and unnecessary in the early colonies. Because equity law was based on the prerogative power of a Lord Chancellor, many colonists associated equity and courts of Chancery with the attempts of the Tudor and Stuart monarchs to disregard common law liberties. Additionally, in the seventeenth century few colonial families had accumulated enough wealth to warrant sophisticated legal devices such as jointures and separate estates. For these reasons, northern colonies such as Massachusetts, Connecticut, and Rhode Island never established courts of equity.24 The southern colonies, however, began to borrow some of the procedures of equity by the middle of the seventeenth century. Maryland officials founded a court of Chancery in 1660, though in its early decades the court functioned very differently than its English counterpart. Until the late 1690s, the

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majority of business heard in the Maryland Chancery was not on the behalf of private parties as in England, but mainly concerned the Lord Proprietor’s interest in the lands of people who died without legitimate heirs.25 However, as the number of wealthy families increased and the class structure became more elaborate in the eighteenth century, the courts of equity in southern planter colonies such as Maryland, Virginia, and South Carolina transformed into sophisticated protectors of married women’s separate property.26 The ecclesiastical legal jurisdiction, so frequently used by women in England throughout the seventeenth century, never took root in colonial North America. Religious divisions plagued the colonies throughout the seventeenth century, and the prospect of bringing the colonial population under the jurisdiction of a single church would have been well beyond the scope of colonial authorities. Colonial common law courts thus oversaw the administration of wills and estates, a process that in England would have fallen under the jurisdiction of the ecclesiastical courts. Colonial women who acted as executors or administrators were charged with presenting the will to the county court, drawing up an inventory of land and movable goods, and collecting the bonds, receipts, and accounts of debt due to the estate. In Maryland, high mortality rates and the frequency of widowhood allowed women to control and inherit both real and movable property. The vast majority of Maryland men, 89 per cent, who left wills between 1640 and 1710 named their wives as the executors of their estates.27 In Connecticut, New York, and Virginia, both judges and statutory law upheld a widow’s right to administer her husband’s estate in cases of intestacy.28 As the mediators between the heirs, creditors, and the courts, administrators were also charged with the task of keeping track of inventoried, perishable goods consumed by the family, any wages earned by family members, and all debts contracted in the course of maintaining the family.29 While these duties could be burdensome, as the sections that follow reveal, some women seem to have very willingly taken on probate responsibilities and the legal action that often accompanied them. Acting as an executor or administrator of a decedent’s estate gave women at least temporary control of a substantial amount of property and allowed them to manage the division of the estate to some degree to their own benefits.

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II In England, women were drawn into a variety of different legal jurisdictions for the collection or payments of debts, or initiated or responded to suits as executors or legatees of an estate. However, the level of women’s participation in each of these jurisdictions could vary drastically. In common law civil litigation, for example, women appeared infrequently as parties to suits. Even in the City of London, which had a local tradition of enforcing the business contracts of married female traders as if they were feme sole, women comprised a small minority of litigants in the common law courts. Table 6.1 examines a sample of 1,350 cases heard before the London Mayor’s Court between 1630 and 1690. The Mayor’s Court was headed by the mayor and the city aldermen, and heard litigation concerning disputed contracts and debt collection on behalf of the many traders who lived within the city limits.30 The table reveals that throughout the seventeenth century, female litigants appeared before the Mayor’s Court infrequently. The proportion of cases in which a woman was named as a party fluctuated between 7 and 14 per cent.31 As table 6.2 shows, the majority of the women appearing before this court, 103 of the 140 plaintiffs or defendants (74 per cent), were widows. Many of these women acted as the administrators or executors of the estates of their deceased husbands, initiating or responding to suits for debts owing to or from the estate. In contrast to the high proportion of widows appearing before the court, married women accounted for only 7 per cent of female litigants. Those who did appear were all named as joint parties with their husbands. The majority of these women were also acting as administrators or executors of the estates of their deceased husbands but had remarried while the estate was still being settled. Single women, described in the court documents as “spinsters,” appeared in only 6 per cent of cases. Taken together, these tables reveal that coverture continued to be rigidly applied in this English common law court throughout the seventeenth century. Few female litigants appeared before the court at all, and when they did they tended to be widows. Married female litigants rarely appeared before the courts, even in a jurisdiction that had historically been sympathetic to enforcing the contracts of wives as

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Table 6.1 Women Involved in Debt Litigation in the London Mayor’s Court, 1630–16901 1630–31 1640 1650–51 1660–61 1670–71 1680–81 1690 Total

Number of female plaintiffs

Number of female defendants

Number of cases with a woman as party

Number of suits sampled

12 10 9 10 10 14 16 81

11 5 18 5 5 9 6 59

23 (11%) 15 (7%) 27 (14%) 15 (7%) 15 (9%) 23 (13%) 22 (11%) 140 (10%)

215 207 189 214 150 175 200 1,350

1 The cases drawn from each date range are part of much larger collections of several hundred debt cases heard before the London Mayor’s Court. London Metropolitan Archives, Mayor’s Court Original Bills, CLA/024/02, 1630–90.

Table 6.2 Marital Status of Women Involved in Debt Litigation in the London Mayor’s Court, 1630–16901 Marital status Widows Married (all named as joint parties with husbands) Single Unknown2 Total

Number of cases 103 (74%) 10 (7%) 9 (6%) 18 (13%) 140 (100%)

1 London Metropolitan Archives, Mayor’s Court Original Bills, CLA/024/02, 1630–1690. 2 This category includes women who appeared as a party in a suit, but whose marital status was unclear from the court documents.

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feme sole. While this point reinforces the large body of historiography on the limitations English women faced under coverture, it also serves to highlight the contrast between the levels of women’s litigation in the common law courts and other English legal jurisdictions. In the English courts of equity, for example, women made up a much higher proportion of litigants than in the common law courts. Tim Stretton’s work on women in the Court of Requests in the late sixteenth and early seventeenth centuries reveals that women were named as litigants in one-third of cases in the court.32 Women’s participation in the court of Chancery in the seventeenth century may have been even higher. Wilfrid Prest estimates that as many as 40 per cent of cases heard in Chancery were brought by or directed against women.33 These numbers reflect equity justice’s more flexible conception of married women’s legal identities. Yet the jurisdiction in which women appeared most frequently was not equity, but the ecclesiastical courts. English women took full advantage of the legal freedoms allowed them by ecclesiastical law, which virtually ignored coverture both in theory and in practice. While women’s involvement in defamation litigation before the ecclesiastical courts has been the subject of studies by Laura Gowing, women also appeared in the much larger volume of testamentary litigation heard before the church courts. Women appeared frequently in these courts as litigants in cases concerning the right to act as an administrator of an estate or to collect legacies due to them under the terms of a decedent’s will. This important, yet decidedly less sexy, segment of ecclesiastical litigation reveals a remarkable level of women’s participation. A sample of 136 cases from the Essex Archdeacon’s Court and the London Commissary court illustrates this point. These courts were courts of local jurisdiction under the authority of the archdeacon or his deputy whose power extended over local probate matters.34 Table 6.3, which examines the level of women’s participation in these courts, shows that women initiated well over half of the testamentary cases brought before theses courts both before and after the Civil Wars. Female litigants appeared in 56 per cent of the cases heard before these courts between 1630 and 1641, and in 57 per cent of the cases heard between 1669 and 1687. In contrast, men comprised the minority of plaintiffs in these courts, commencing 42 per cent of suits brought in the 1630s and 40 per cent of the suits between 1669 and 1687.

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Table 6.3 Sex of Plaintiffs in Testamentary Litigation in the Essex Archdeacon’s Court and the London Commissary Court, 1630–1641 and 1669–16881 Plaintiffs

1630–41

1669–87

Male Female Unknown Total

24 (42%) 32 (56%) 1 (2%) 57 (100%)

32 (40%) 45 (57%) 2 (3%) 79 (100%)

Total cases examined 56 77 3 136

1 The cases examined for each date range are part of much larger collections of several hundred cases heard before the Essex Archdeacon’s Court and the London Commissary Court. Essex Record Office, Chelmsford, England, Archdeaconry of Essex Depositions, D/AE/D8. London Metropolitan Archives, Guildhall Manuscripts, 9065a, vol. 8, Depositions of the London Commissary Court.

Table 6.4, which examines the marital status of female plaintiffs before these courts, shows that 43 per cent of the women who appeared before these courts were widows. This fact is not surprising given that many of these women appeared before the courts to initiate or defend a suit over a will or estate of a deceased husband. However, what is remarkable about women’s participation in these courts is the high proportion of married women appearing as sole plaintiffs. Roughly 38 per cent of the plaintiffs who appeared in the Archdeacon’s and Commissary Court were married women, most of whom initiated litigation independently of their husbands. As table 6.4 shows, married women appeared as co-parties with their husbands in only a small minority of cases. Taken together with the data presented for the common law courts, tables 6.3 and 6.4 show that ecclesiastical law allowed women, especially married women, a great deal of latitude in pursuing their own cases before the courts. Though common law courts bound women tightly by the doctrine of coverture, ecclesiastical law provided women with an opportunity to pursue their rights to control and possess portions of their families’ estates. As these numbers show, in the ecclesiastical courts, married female litigants appearing before the courts

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Table 6.4 Marital Status of Female Plaintiffs in Testamentary Litigation in the Essex Archdeacon’s Court and the London Commissary Court, 1630–1641 and 1669–16881 Marital status

Number of cases

Widows 33 (43%) Married 29 (38%) named as sole plaintiff 24 named as co-party with husband 5 Single 6 (7%) Unknown 9 (12%) Total 77 (100%) 1 Essex Record Office, Chelmsford, England, Archdeaconry of Essex Depositions, D/AE/D8. London Metropolitan Archives, Guildhall Manuscripts, 9065a, Vol. 8, Depositions of the London Commissary Court

independently of any male representative was fairly common. Married women routinely appeared before the court in cases in which their husbands were not mentioned at all. For example, in 1681 Elizabeth Summers Emberson sued the executor of the estate of her former sweetheart in the Essex Archdeacon’s court for a £100 legacy she claimed was due to her under the terms of his will. Though the court documents state that Elizabeth had recently married John Emberson, Elizabeth is named as the only plaintiff in the case, and it is clear that she prosecuted the case independently of her husband. Elizabeth’s claim for a legacy argued that Robert Greene had spelled it out in his will, and witnesses who spoke on her behalf emphasized that Elizabeth and Robert Greene had been very close friends. Elizabeth Turner, one of the witnesses who spoke on behalf of Elizabeth Emberson, testified that Robert Greene “whilst he lived and for some yeares before he dyed did bear a great love and affection towards the said Elizabeth … and did severall times declare that he did intend to marry her.” Elizabeth Emberson, however, had refused

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Robert’s offer because he “being a Quaker would be married after the manner and according to the usual way of the Quakers marrying, which she the said Elizabeth thought illegall and contrary to the law.”35 Though Elizabeth Emberson apparently refused Robert Greene’s proposal of marriage, when Elizabeth did finally marry, her status as the wife of John Emberson posed little threat to her ability to sue for her unpaid legacy. Married women not only initiated litigation in the ecclesiastical courts, they also acted as defendants. It was not uncommon for two kinswomen to be pitted against each other as they sparred over the right to act as executor of an estate. For example, in 1688 Elizabeth Winston, widow of Edward Winston, brought suit in the London Commissary Court for the right to administer the estate of her deceased husband. The defendant was Edward Winston’s married daughter, whose husband is mentioned in a deposition from the case but is not listed as a party in the suit.36 This case and others like it show that in England, married women, as well as widows and singlewomen, could enter into litigation without the representation of a husband or another male family member.

III Seventeenth-century colonial women inhabited a remarkably different legal environment than English women. The focus on common law in the colonies, and the limitations married women under coverture faced in common law courts, meant that colonial women had few options for independent legal action. In Maryland, an examination of the level of women’s participation in the Provincial Court and the court of Chancery shows that women’s involvement in these courts was limited. The Provincial Court, a court of common law based in the colonial capital of St Mary’s City, had begun to meet regularly by the early 1630s and had jurisdiction over estate litigation and all civil cases involving sums more than £10. Though high mortality rates and the tendency of women to remarry quickly meant that Maryland women were likely to be involved in the probate process at least once in their lives, the number of women who appeared in estate and debt litigation

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Table 6.5 Women Involved in Estate and Debt Litigation in the Maryland Provincial Court1 1666–70 1681–83 Total

Number of female plaintiffs

Number of female defendants

Number of cases with a woman as party

Number of suits sampled

21 48 69

30 15 45

51 (25%) 63 (13%) 114 (17%)

200 470 670

1 The number of suits sampled from the Maryland Provincial Court is based on a relatively small number of total cases heard before the court during the years listed. Between 1666 and 1670, the court heard only a few hundred cases concerning estate administration and debt. By the 1680s, however, the caseload of the court had risen dramatically. Between 1681 and 1683, the court heard several hundred cases concerning estate administration and debt. “Proceedings of the Provincial Court, 1666–1670,” and “Proceedings of the Provincial Court, 1681– 1683,” Archives of Maryland, Maryland State Archives, 819 vols (Baltimore: 1883–), vols 57, 70.

remained low. Table 6.5, which examines the percentages of women involved in estate and debt litigation heard before the Provincial Court, shows that women appeared as parties to a suit in 25 per cent of the cases sampled between 1666 and 1670. Fifteen years later, the number of cases involving women had dropped to 13 per cent. As in English common law courts, the majority of female litigants who appeared before the Maryland Provincial Court were widows. Table 6.6 shows that 60 per cent of the women appearing before the court were widows involved in litigation concerning the estates of their deceased husbands. Married women formed a significant minority of women before the Provincial Court. However, unlike women in the English ecclesiastical courts, they did not pursue this litigation independently of their husbands. In all forty-five of the cases sampled in which a married woman appeared before the Provincial Court, she is named as a co-party with her husband. These women were generally the widows and executors of the estates of former husbands and had remarried while the estate was still being legally settled.

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Table 6.6 Marital Status of Female Parties in Estate and Debt Litigation in the Maryland Provincial Court, 1666–1670 and 1681–16831 Marital status Widows Married (all named as co-party with husband) Single Total

Number of cases 69 (60%) 45 (40%) 0 (0%) 114 (100%)

1 “Proceedings of the Provincial Court, 1666–1670,” and “Proceedings of the Provincial Court, 1681–1683,” Archives of Maryland, Maryland State Archives, 819 vols (Baltimore: 1883–), vols 57, 70.

When a man married a Maryland widow, he not only gained a wife, but he also very likely inherited a variety of legal suits in which she had become involved during her widowhood. The number of widows who appeared before the Maryland Provincial Court suggests that it was not necessary for women to remarry in order to pursue their cases at law. However, those who did choose to remarry could still remain active in the legal cases in which they were involved. One example of a Maryland woman who saw through probate no fewer than three husbands’ estates, and then died a wealthy widow herself, was Jane Fenwick Smith Taylor Eltonhead. In 1649, Jane entered a suit in the Provincial Court as a co-party with her third husband William Eltonhead against one Richard Banks for the recovery of 680 pounds of tobacco due to the estate of Jane’s deceased second husband, Phillip Taylor. Though William Eltonhead was, under common law, the legal representative of his wife, the court documents make clear that Jane was involved in the prosecution of the case. She testified as to the amount of tobacco due and produced two bills to the court as evidence.37 While under coverture, women such as Jane Eltonhead appeared at the behest and discretion of their husbands, and their involvement was by no means necessary or guaranteed. However, her case suggests that while all married women appearing before the Provincial Court acted as co-parties with their husbands, at least some

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of these women played a substantial role in the prosecution of the cases in which they were involved. The decline in the proportion of women appearing before the Maryland Provincial Court is remarkable given that the number of women living in the colony rose steadily throughout the seventeenth century.38 However, the decreasing participation of women appearing in Maryland’s courts of common law may be related to their increase in other legal jurisdictions. As the Maryland court of Chancery adopted more of the procedures of its English equivalent, including the increasing recognition of jointures and separate estates, women began to appear in larger numbers. Chancery had jurisdiction to recover a debt on grounds of breach of trust, which at common law could not be defended. Table 6.7 examines the participation of women involved in estate and debt litigation in the Maryland Chancery in a sample of 352 cases heard between 1669 and 1700. The table shows that the percentage of cases in which a woman appeared as a party remained relatively modest throughout the century, ranging from a low of 6 per cent in the early 1680s to a high of 16 per cent in the late 1690s. However, as the overall number of cases in Chancery rose during the final years of the seventeenth century, women began to appear more often. Indeed, the rising level of women’s participation in Chancery is directly related to the falling number of women appearing in the Maryland Provincial Court examined in table 6.5. As in the Provincial Court, the women who appeared before the Maryland Chancery tended to be recently remarried women pursuing litigation to settle the estates of their late husbands. As table 6.8 reveals, roughly two-thirds of the women who appeared before the Maryland Chancery were married. However, though women could bring cases independently of their husbands in equity courts, very few women actually did so. In all of the cases sampled for table 6.8, married women always appeared as co-parties with their husbands. One example of a Maryland woman involved in litigation in the court of Chancery illustrates the type of case in which married women were involved. Anne Avery Hasslewood, as the executor of the estate of her late husband John Avery, entered a breach of trust case in Chancery in 1678 against her son-in-law, Benjamin Granger, for the recovery of £24 in cash and over 3,000 pounds of tobacco. According to the

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Table 6.7 Women Involved in Estate and Debt Litigation in the Maryland Chancery1

Number of female plaintiffs

Number of female defendants

5 1 6 12

4 2 33 39

1669–77 1681–85 1695–1700 Total

Number of cases with a woman as party 9 (4%) 3 (6%) 39 (6%) 51 (14%)

Number of suits sampled

63 49 240 352

1 The relatively low number of cases heard before the Maryland Chancery between 1669 and 1677 and 1681–1685 made it possible for me to examine all the estate and debt litigation cases heard between these time frames. However, for the date range 1695–1700, I took a sampling of 240 cases from a larger set of several hundred cases. “Proceedings of the Court of Chancery, 1669–1679,” Archives of Maryland, vols 51, 748

Table 6.8 Marital Status of Female Parties in Estate and Debt Litigation in the Maryland Chancery, 1669–1677, 1681–1685, and 1695–17001 Marital status Widows Married (all named as co-party with husband) Single Total

Number of cases 16 (33%) 35 (67%) 0 (0%) 51 (100%)

1 “Proceedings of the Court of Chancery, 1669–1679,” Archives of Maryland, vols 51, 748.

court records, Anne had entered the case in Chancery because she had no case “by the strict rules of the comon law to enforce a discovery of such clandestine frauds & transaccons & trusts,” that she alleged against Granger, which had been a “great hindrance of the execucon

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of the deceaseds last will and testament.” Acting as a joint-party with her new husband, John Hasslewood, Anne filed a bill of complaint against Granger for repayment of the sums so that Avery’s debts could be paid and his estate settled. In her bill, Anne alleged that Granger and his wife, who was Anne’s daughter, had accompanied John Avery on a business trip to England and that Granger had taken control of a large sum of Avery’s money after he unexpectedly died on the voyage home. She stated that “John Avery dyed before he came on shore leaving all his money & goods in the possession of the said Benjamin Granger.” Anne demanded “an account of the said money & goods or satisfaccon for the said sume & to acquaint her with what other goods or money he have in his custody,” but “he absolutely refused.” Though Benjamin Granger “did positively deny that he had or received of the said John Avery any of his goods,” in the end, the court decided in Anne Avery’s favour. The court ordered that John Avery “did lend to & entrust the same Benjamin Granger with severall quantities of goods & divers sumes of money,” and ruled that he pay Anne the cash, tobacco, as well as costs of suit.39 While women’s use of equity courts may have been on the rise in Maryland by the end of the seventeenth century, in Massachusetts the common law exclusively defined women’s legal standing. A sample of cases from the Quarterly Courts held in Salem and Ipswich between 1656 and 1682 reveals women’s legal involvement in early colonial Massachusetts. In addition to hearing civil causes from property worth under £10 and non-capital cases, the Quarterly Courts heard cases concerning probate and will administration, and oversaw local affairs such as the maintenance of roads and bridges, the regulation of wages, and poor relief.40 Table 6.9, based on a sample of 539 cases, reveals that women appeared in less than 10 per cent of estate and debt cases heard between 1656 and 1682. While these numbers are roughly consistent with the level of women’s participation in common law courts in England (examined in table 6.1), unlike women in England and Maryland, women in Massachusetts had no other legal options outside of the common law. Massachusetts women were therefore tightly bound by the common law restrictions on women’s legal action. That Massachusetts women were subject to the strictures of common law coverture is also revealed in the fact that very few married women

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Table 6.9 Women Involved in Estate and Debt Litigation in the Essex County Quarterly Courts, 1656–16821 1656–62 1668–70 1678–82 Total

Number of female plaintiffs

Number of female defendants

Number of cases with a woman as party

Number of suits sampled

7 11 8 26

4 4 8 16

11 (6%) 15 (8%) 16 (9%) 42 (8%)

170 200 169 539

1 The numbers of cases from each date range are part of an only moderately larger group of a few hundred cases. Records and Files of the Quarterly Courts of Essex County, 1636–1686, ed. George Francis Dow (Essex Institute, MA: 1911), vols 2, 4, 7, 8. Hereafter cited as Essex County Quarterly Courts

appeared before the courts. Table 6.10, which examines the marital status of female parties before the Essex Quarterly Courts, shows that only 29 per cent of the women who appeared before the courts were married. Further, these women did not appear as independent agents to initiate or defend their cases, but were named as co-parties with their husbands in all cases. As in England and Maryland, the majority of women appearing before the courts, 29 out of 42, or 69 per cent, were widows. Though women infrequently appeared before the Massachusetts courts, when they did appear, they could be staunch defenders of their rights to act as administrators of estates and to manage the payment of legacies to heirs. For example, in 1665 Ezekiel Rogers sued his aunt, Mary Rogers, the widow and executor of the estate of her late husband, in the Ipswich county court over a legacy of £400 supposedly due to him from the estate. When Ezekiel was given only £160 at his uncle’s death, he sued his aunt, Mary, for the remainder. As the administrator of her late husband’s large estate, appraised in the inventory at £1,400, Mary Rogers had a substantial interest in seeing that her control of the property was protected against the claims of her nephew. Witnesses on

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Table 6.10 Marital Status of Female Parties in Estate and Debt Litigation in the Essex County Quarterly Courts, 1656–16821 Marital status Widows Married (all named as co-party with husband) Single Total

Number of cases 29 (69%) 12 (29%) 1 (2%) 42 (100%)

1 Essex County Quarterly Courts, vols 2, 4, 7, 8.

her behalf stated that Mary’s husband had been very much dissatisfied with the conduct of Ezekiel, “particularly his familiarity with John Smith, his servant, the Scotchman.” Mary herself testified that Ezekiel would have had a larger portion of his uncle’s estate “if he had been attentive to Mr Rogers.” Further, she claimed that if consanguinity “and bearing of the same name was sufficient to give title to men’s estates, we should have little need of law,” and that “as for damage sustained by Ezekiell, they never knew any man to lose what he never had.”41 While the court initially ruled in Ezekiel’s favour in March 1665, by June the case had come up for rehearing at Mary’s request, and the verdict was still pending.42 By September 1665, the Ipswich court had reversed its verdict in the case and ordered that Mary was not obligated to pay the remainder of Ezekiel’s claimed legacy.43

IV The absence of an ecclesiastical jurisdiction in the North American colonies, so frequently used by women in England, meant that colonial women lacked an avenue of legal redress that allowed them to pursue litigation independently of male representatives. While the numbers of women appearing before the Maryland court of Chancery show that equity had made some headway in giving women a more flexible

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jurisdiction in which to pursue litigation over property, colonial women’s participation in common law courts remained low and even seems to have declined slightly throughout the period. In contrast, the multi-jurisdictional legal system in England offered women more substantial opportunities for legal redress than those enjoyed by their colonial counterparts. The number of women appearing in estate litigation heard before the ecclesiastical courts reached a truly remarkable level both before and after the Civil Wars. In no other legal jurisdiction in the English-speaking world did women appear in such high proportions. Further, in the ecclesiastical courts, married women appearing independently of their husbands comprised a substantial portion of the litigants. Though coverture continued to be a limiting factor for women in common law courts, the concept seemed to have been wholly inapplicable in the ecclesiastical courts. Setting English and colonial female litigants side by side allows us to refocus our view of the legal capabilities of women in the English world. Contrary to a historiography that has for decades argued for the greater independence and freedom of colonial women relative to their English sisters, a closer look at the archival sources on both sides of the Atlantic reveals that, in at least some respects, English women enjoyed a substantially better legal position than their colonial counterparts. Though both English and colonial women assumed the same roles as the administrators of estates, colonial women had fewer legal opportunities to protect the power that estate administration brought them or to pursue goods and legacies left to them by the wills of their family members. NOTES Research for this essay has been supported by the Mellon Foundation, the Cosmos Club, the Huntington Library, and the North American Conference on British Studies. 1 Karin Wulf has also recently noted this gap in Atlantic World historiography. See “Women and Families in Early (North) America and the Wider (Atlantic) World,” part of a roundtable titled “Rethinking Gender, Family, and Sexuality in the Early Modern Atlantic World,” in History Compass 8, no. 3 (2010): 242.

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2 Richard Morris, Studies in the History of American Law: With Special Reference to the Seventeenth and Eighteenth Centuries (New York: Octagon Books, 1930), 126–8, 200. 3 Cornelia Hughes Dayton, Women before the Bar: Gender, Law, and Society in Connecticut, 1639–1789 (Chapel Hill: University of North Carolina Press, 1995), 161. Dayton makes much the same argument in “Was There a Calvinist Type of Patriarchy? New Haven Colony Reconsidered in the Early Modern Context,” in The Many Legalities of Early America, ed. Christopher Tomlins and Bruce Mann (Chapel Hill: University of North Carolina Press, 2001), 346. 4 Rosemary O’Day, Women’s Agency in Early Modern Britain and the American Colonies (London: Pearson Longman, 2008). 5 For the English dimension, this has been noted by Tim Stretton and Craig Muldrew. See Stretton, Women Waging Law in Elizabethan England (Cambridge: Cambridge University Press, 1998); Muldrew, “‘A Mutual Assent of Her Mind’? Women, Debt, Litigation, and Contract in Early Modern England,” History Workshop Journal 55, no. 1 (Spring 2003): 47–71. 6 While Laura Gowing has examined defamation litigation and Amy Erickson has made extensive use of the probate records of the ecclesiastical courts, litigation concerning property and legacies heard before the ecclesiastical courts has not been the subject of extensive study by historians. See Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford: Clarendon Press, 1996); Amy Louise Erickson, Women and Property in Early Modern England (London: Routledge, 1993). 7 Christopher Brooks, “Litigation, Participation, and Agency in Seventeenthand Eighteenth-Century England,” in The British and Their Laws in the Eighteenth-Century, ed. David Lemmings (London: Boydell Press, 2005), 155–81. 8 Sara Mendleson and Patricia Crawford, Women in Early Modern England (Oxford: Oxford University Press, 1998), 37–9; Erickson, Women and Property in Early Modern England, 24–5; Stretton, Women Waging Law, 31–3. Barbara Harris, English Aristocratic Women, 1450–1550: Marriage and Family, Property and Careers (Oxford: Oxford University Press, 2002), 18–19. For the legal status of tradeswomen, see Marjorie K. McIntosh, “The Benefits and Drawbacks of Femme Sole Status in England, 1300–1630,” Journal of British Studies 44, no. 3 (2005): 410–38.

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9 William S. Holdsworth, A History of English Law, 18 vols (London: 1903– 1972), 9: 196. 10 32 Hen. VIII, c. 1, 1540. Erickson, Women and Property in Early Modern England, 27. 11 J.H. Baker, The Oxford History of the Laws of England, vol. 6: 1483–1558 (Oxford: Oxford University Press, 2003), 677. 12 Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (New York: Knopf, 1996), 111–12; Carole Shammas, “English Inheritance Law and Its Transfer to the Colonies,” American Journal of Legal History 31, no. 2 (April 1987): 158–9. 13 “An Act touching Succession to Goods of Intestate Persons, 1642” in “Proceedings and Acts of the General Assembly, January 1637/8-September 1664,” Maryland State Archives, Archives of Maryland, 840 vols (Baltimore: 1883–2010), 1: 156–7. 14 The Book of the General Lawes and Libertyes (Boston, 1648), 17–18. 15 Linda L. Sturtz, “‘As Though I My Self Was Pr[e]sent’: Virginia Women with Power of Attorney,” in The Many Legalities of Early America, ed. Tomlins and Mann, 250–71. On powers of attorney, see also the essay by Margaret Hunt in this volume. 16 Baker, The Oxford History of the Laws of England, 6: 617–21; Stretton, Women Waging Law, 26–7, 109–10; Amy Erickson, “Common Law versus Common Practice: Marriage Settlements in Early Modern England, Economic History Review 43, no. 1 (February 1990): 24–5. 17 Martin Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge: Cambridge University Press, 1988). Gowing, Domestic Dangers. 18 Lloyd Bonfield, “Testamentary Causes in the Prerogative Court of Canterbury, 1660–96,” in Communities and the Courts in Britain, 1150–1900, ed. Christopher Brooks and Michael Lobban (London: Hambledon Press, 1997), 145. 19 Erickson, Women and Property in Early Modern England, 32–4. 20 Ibid., 27–8. 21 R.H. Helmholz, The Oxford History of the Laws of England: vol. 1: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford: Oxford University Press, 2004), 398. 22 A decedent who left a will named an executor of his estate, but the title of administrator was given to those administering an estate in cases of intestacy.

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23 Erickson, Women and Property in Early Modern England, 27, 32–5, 156–71. 24 Shammas, “English Inheritance Law and Its Transfer to the Colonies,” 157. Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986), 88. 25 “Proceedings of the Court of Chancery, 1669–1679,” Archives of Maryland 51 (1934): xxii–xxxi. 26 Salmon, Women and the Law of Property in Early America, 88, 185–6. 27 Lois Carr and Lorena Walsh, “The Planter’s Wife: The Experience of White Women in Seventeenth-Century Maryland,” William and Mary Quarterly 34, no. 4 (1977): 543, 555–9. 28 Dayton, Women before the Bar, 40–2. Joan Gundersen and Gwen Victor Gampel, “Married Women’s Legal Status in Eighteenth-Century New York and Virginia,” William and Mary Quarterly 39, no. 1 (1982): 118–19. 29 Toby L. Ditz, Property and Kinship, Inheritance in Early Connecticut, 1750–1820 (Princeton, NJ: Princeton University Press, 1986), 144–5. 30 See Baker, The Oxford History of the Laws of England, 6: 265–72, 281–3. 31 These numbers are roughly consistent with the numbers of women appearing in debt litigation in other mayoral jurisdictions. Craig Muldrew has estimated that cases in which a woman appeared as a party in the Exeter Mayor’s Court accounted for under 16 per cent of debt litigation heard before the court in the seventeenth century. See Muldrew, “‘A Mutual Assent of her Mind’? Women, Debt, Litigation, and Contract in Early Modern England,” 55n51. 32 Stretton, Women Waging Law, 39 33 Wilfrid Prest, “Law and Women’s Rights in Early Modern England,” Seventeenth Century 6, no. 2 (1991): 181–2. 34 J.P. Anglin, “The Court of the Archdeacon of Essex, 1571–1609: An Institutional and Social Study” (PhD diss., University of California, Los Angeles, 1965), 16–17. Baker, The Oxford History of the Laws of England, 6: 233–4. 35 Emberson v. Greene (20 January 1681), Essex Record Office, Archdeaconry of Essex Depositions, D/AE/D9. 36 Winston v. Pennington (1688), London Metropolitan Archives, Guildhall Manuscripts, 9065a, vol. 8, Depositions of the London Commissary Court. 37 “Judicial and Testamentary Business of the Provincial Court, 1637–1650,” Archives of Maryland, 4 (1887): 527.

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38 James Horn, Adapting to a New World: English Society in the SeventeenthCentury Chesapeake (Chapel Hill: University of North Carolina Press, 1994), 31; Carr and Walsh, “The Planter’s Wife,” 545. 39 “Proceedings of the Court of Chancery, 1669–1679,” 526–31. 40 Joseph Smith, Colonial Justice in Western Massachusetts, 1639–1702 (Cambridge, MA: Harvard University Press, 1961), 66–76; George Haskins, Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York: Archon Books, 1960), 32–3. 41 George Francis Dow, ed., Records and Files of the Quarterly Courts of Essex County, 1636–1686. 9 vols. (Salem, MA: Essex Institute, 1911), 3: 227–35. 42 Ibid., 3: 263. 43 Ibid., 3: 275.

7

The Sailor’s Wife, War Finance, and Coverture in Late Seventeenth-Century London margaret r. hunt

For coverture to work properly the husband needed to be there in person a good part of the time. Otherwise how could his wife be “at one” with him? It was a problem familiar to many early modern maritime households: a sailor’s long absences from home and high likelihood of mortality made it hard to sustain the fiction that he and his wife were a single legal entity, merged in body and spirit. And the tension grew more visible in the later seventeenth and early eighteenth centuries as expanding trade and the growing frequency and intensity of naval warfare sent more and more men to sea, often for years. This essay, which focuses on the 1690s and the Nine Years’ War, explores some newly popular printed legal devices of the later seventeenth century that strengthened the ability of sailors’ wives to control chattel and other property, made it easier for them to sue in court, enhanced their ability to negotiate within local credit and debt networks, and empowered them to demand monies owed to their husbands by the Royal Navy and private shipowners. While sailors’ wives certainly gained legal power and more financial independence in this period, this essay argues that this was a somewhat ambiguous benefit that often served the fiscal-military state more than it did either women or their families. Early modern mariners and their kin tended to live in fairly concentrated communities in the coastal and riverine villages and towns of the British Isles, with an especially large number gravitating

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toward London. There were and are varying views as to the number of seamen in England in the late seventeenth and early eighteenth centuries, and much depends upon one’s definition of “seaman.” But the most plausible estimate is that in 1700 there were perhaps 40,000, around 12,000 of whom were based in London.1 It is even harder to enumerate these men’s kinfolk, though it is clear that they were more numerous than used to be thought. While it is still common to imagine that sailors as a group avoided permanent family ties, new research suggests that many sailors married, and even those who did not often found it in their interests, for reasons that will become clear below, to maintain close economic and presumably emotional ties to mothers, sisters, or sweethearts on shore.2

Sailors and Their Kinfolk in the Early Modern Legal Records Mariners and their kin are extremely well represented in the surviving probate records of late seventeenth- and early eighteenth-century London. At first sight this seems odd, for few mariners were very comfortably off, and it is commonly assumed by social historians that plebeian people did not, on the whole, make wills because they had few assets to pass on and could not afford the cost of having a will drawn up. But unlike other plebeians, sailors were very prone to leave wills; indeed the probate records for the seventeenth century are crammed with them. That the Prerogative Court of Canterbury records thousands of sailors’ wills is perhaps understandable given its “overseas” jurisdiction; but the same is true of many more local probate venues, such as the Commissary and Consistory Courts of London and the various other courts that served London and its environs.3 Undoubtedly this is partly the result of sailors’ elevated death rates. There is admittedly some debate about how high the mortality was on early modern ships. Under normal conditions death rates in some branches of seagoing trade (the European trade and parts of the Atlantic trade) seem actually to have been lower than those on land, perhaps due to a fairly consistent food supply on board ship, though in other branches (the East India trade, the slave trade) mortality was

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higher.4 Even at the best of times sailors were susceptible to epidemic diseases contracted in the close quarters of ships or picked up in microbe-ridden global entrepôts like Barbados, Tangier, Naples, St Helena, or Surat. On longer voyages sailors were subject to diseases of deprivation, such as scurvy. And all sailors were vulnerable to accidents and shipwrecks. War aggravated the situation, giving rise to many more epidemics and leading to the loss of more ships – and, of course, to deaths in battle, a less significant source of fatalities than disease but not a negligible one.5 The later seventeenth and early eighteenth centuries were characterized by almost incessant war, including the three Anglo-Dutch wars (1652–54, 1665–67, and 1672–74 respectively), the Nine Years’ War (1688–97), and the War of Spanish Succession (1701–14), so mortality rates were especially high across the period under discussion here. All this is germane to our theme because the high volume of sailor deaths not only led to the proving of many wills, but also generated other kinds of legal business as creditors flocked in and bickering relatives picked at whatever remained. For if probate was the most common venue for sailors and their kin to leave a mark on the written record it was by no means the only one. In general the labouring classes were less likely than their social betters to initiate lawsuits, though as Craig Muldrew has shown they were very vulnerable to court actions themselves, especially actions by creditors.6 But sailors and their kin seem to have been more assertive litigants than might have been predicted from their social status alone. At least for London one factor that encouraged greater involvement in the law courts was the multiplicity of available legal venues. London was home to a number of courts happy to take up the ordinarily smallscale disputes of mariners and their relations; it also had the heavily utilized prize and instance courts of the High Court of Admiralty, where the focus was wholly upon maritime affairs.7 In addition the Royal Navy was headquartered in London, as were a number of other important bodies like the East India Company, and it seems likely that the relatively informal but still quite legalistic petitioning and hearing processes maintained both by the Navy commissioners and by the various overseas trading companies encouraged a greater degree of familiarity with the law among mariners and their wives than obtained for other largely plebeian occupational groupings.8

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Fig. 7.1 A sailor’s ticket from the Third Anglo-Dutch War. Note the wavy lines intended to deter counterfeiting.

Deferred Payment of Sailors’ Wages and the “Chose in Action” A more important encouragement both to will making and to litigation was the simple fact that sailors possessed something that was worth bequeathing and suing over. Sailors may not have been rich, but as labouring people went they were relatively well paid.9 The rub was that their pay tended to be delayed, often for long periods. Sailors almost always went unpaid for the duration of a voyage, and Navy sailors, in particular, often had to wait months or even years for their money even after they got home. This meant that when the payoff finally came the sums of money involved could be substantial indeed; on the other hand, by that time sailors and their families were

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typically ruinously in debt. In the seventeenth century and possibly earlier the Royal Navy and some merchant companies began issuing standardized promissory notes to sailors as a pledge of future cash payment (see figure 7.1). “Sailors’ tickets,” as these instruments came to be called, represent a type of property technically known as a “chose in action” (“chose” is French for “thing”; “action” suggests the right to demand something or take legal action to convert its potential value into a usable good – usually cash). A chose in action, in this context, is essentially a right to demand or sue for repayment of a debt. The ticket itself constituted the proof that this “property,” consisting of the right to demand arrears of wages at some later date, corresponded to the labour and service of a specific person, that is to say the sailor named on the ticket. Tickets were usually paid off at a previously advertised time and place – theoretically when the man’s ship reached its home port – and a sailor was supposed to be there in person to receive the money. But sailors were often “turned over” onto other ships, impressed from merchantmen onto Navy ships, or otherwise unable to attend the payout, which put them at risk of having to wait months or years for a second opportunity to get the ticket paid. The obvious way to preempt this was for the sailor to have an agent on shore – ideally a wife or other trusted family member, or less ideally a creditor – who had custody of his ticket or tickets and was legally empowered to stand in the pay lines and receive the money. And since sailors’ tickets were often used by family members as collateral for credit or “sold” at a steep discount for cash, there was additional pressure on sailors to delegate to relatives and creditors the formal right to transact other kinds of business involving tickets.

The Printed Power of Attorney The solution proved to be an ancient device called the letter or power of attorney. This was a formal legal instrument by means of which one person endowed another (the “attorney”) with various “powers” which might include the right to represent him in court, control over his assets, or the right to demand payment in his absence for his debts, including

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his choses in action. In medieval times and into the early modern period, and sometimes beyond, powers of attorney were handwritten and specially tailored to the needs of individual clients, the vast majority of whom were fairly well-off men. It is difficult to know when they passed down the social scale and into maritime communities, though a few people (perhaps more often ships’ captains than common sailors) were using them by the beginning of the seventeenth century. A sailor could choose anyone he wanted as his attorney – his mother or father, a brother or sister, a sweetheart, a comrade, or a creditor – but the most conventional choice was a wife. A letter of attorney could be fairly narrow and permit “power” over only one type of transaction, such as the right to demand and receive payment from one employer, one voyage or one ticket or part of a ticket (the power of attorney shown in figure 7.2 is of this type), but it was more common for it to be quite broad, essentially allowing the “attorney” to act in the man’s name in any and all financial or legal matters in whatever way she (the attorney) thought best. This expansiveness was reflected in the term for a letter of attorney in early modern maritime communities: it was known colloquially simply as a “Power.” Preprinted letters of attorney designed expressly for sailors were probably an innovation of the latter half of the seventeenth century. Like the sailor’s ticket, they testify to some of the less well-studied ways that print was beginning to influence daily life. Unfortunately, while powers of attorney are often mentioned in Navy, East India Company, Admiralty Court, and other records, actual specimens are hard to come by. For what it is worth, I have seen few printed Powers in maritimerelated records for the 1670s, though I have seen handwritten ones; by the 1690s most of the Powers one sees are printed ones. I am referring here to “pure” powers of attorney as opposed to powers contained in wills, of which, as we will see, a great many have survived. The difference print made had primarily to do with cost – purchasing a preprinted form was far cheaper than having a lawyer or scrivener draft one – and ease of use. Printed powers of attorney only required that a man fill in the blank with his name and the name of his ship, insert his attorney’s name, and get the document witnessed. This is likely to have made the Power a much more standard feature of maritime household economics than it had been before.

Fig. 7.2 Power of attorney from George Knowles, 28 December 1691.

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Powers certainly represented a boon for women, since they tended to award wives sweeping powers (these are detailed later in this essay). Still, it is hard to say how much of a departure this was. It is certainly possible that Powers simply reinforced, in a more legalistic form, customs and practices of female independence and legal agency that were a traditional feature of maritime communities. On the other hand, the very expansiveness of many Powers, and the way they seek to cover every legal eventuality would seem to suggest something different and more systematic than the more ad hoc, opportunistic, informal, and at times desperate agency of women left at home without their husbands. For purposes of this essay I tend to assume both that practices of female independence were not new in these communities and that the Power improved women’s options especially once it moved into print and became more common. One reason for this was that maritime life became more bureaucratized and legalistic in the later seventeenth century than it had previously been, and new large bureaucracies like the Royal Navy and the East India Company took readily, even eagerly, to the printed Power. For one thing, they were thought to be a way to combat abuses of the attorney system, notably a growing problem of what today would be called “identity theft,” often involving forged or doctored letters of attorney. The Navy, in particular, seems to have welcomed the shift to print precisely because the new printed Powers were relatively uniform, easy to read, and difficult to counterfeit. Indeed they took additional steps to police their use by demanding that officials at the Navy Ticket Office or at East India House, or, failing that, ships’ officers, personally witness the act by which a sailor appointed his attorney and signed or marked the piece of paper giving that attorney her or his “powers.” Creditors also helped to popularize these instruments. Between voyages many sailors got into debt to their landlady or landlord, their local alehouse keeper or eating house, or the people who lent them money to purchase their “kit” before they sailed. Creditors often demanded their sailor-debtors’ pay ticket as collateral, but they had no legal standing to demand actual payment on a ticket by a third party unless they were specifically empowered to do so by the person named on the ticket’s face. In this sense creditors were even less entitled than wives, who could at least make noises about the right to support.10

Fig. 7.3 Will of Thomas Dibble, a mariner, that gives sweeping powers to his wife, Mary.

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In any event both creditors and wives benefited from cheap printed “Powers” that allowed them to pawn or sell their tickets, pass muster in venues like the Navy Pay Office or East India House, and sue in a court of law.

A Sailor’s Will One very popular refinement on the simple preprinted power of attorney was a power of attorney contained within a preprinted will. This device empowered the sailor’s attorney to make demands, sue, etc. with respect to the sailors’ choses in action and other assets while the man was alive. In addition it typically made the attorney the executor/ trix of the sailor’s will and generally the sole beneficiary after he died. It is these hybrid wills/Powers, cheap, thoroughly formulaic, and tailored to fit the needs of sailors and their kin, that flooded the London probate courts of the later seventeenth and early eighteenth centuries. Tens of thousands of them have survived to the present day, testifying powerfully to the revolutionary potential of print. Let us look in detail at one of these wills/Powers. The will shown in figure 7.3 was executed in August of 1690 in Wapping by one Thomas Dibbell, an able seaman who had signed on to one of their majesties’ “hired ships,” an East Indiaman named the Modena (the Royal Navy routinely hired large, armed merchant ships into the fleet in wartime to bolster its strength). Less than four months later Dibbell was dead, likely a victim of the massive typhus epidemic that swept through the fleet that autumn.11 This will/Power was printed in an italic font or perhaps using some sort of intaglio technique, the intent being to make it look, at first glance, like a handwritten, scrivener-produced will. And it left blank spaces in which to insert Dibbell’s name, the name of his ship, and the name of his attorney, executrix, and sole beneficiary, his wife Mary. In this case, as in many others, the solemn filling-out, signing, and witnessing of the will was part of the ritualized process whereby Dibbell was recruited onto the ship. This is shown plainly by the fact that the witnesses to the will included the captain and master (chief navigator) of the ship he was about to embark upon, who at the time were trolling about East London in search of a crew (see figure 7.4).12

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Fig. 7.4 Detail of the will of Thomas Dibble, showing the signatures of his captain, Humphrey Sanders, and the ship’s master, James Renwick

It is not difficult to picture the setting. Formula wills for sailors were probably available at most East London and riverside scriveners’ shops and perhaps local alehouses and taverns as well. And there is no mystery about where this one came from because it bears the words “for Sam. Wills at Wapping New Staires.” The recruiters probably threw the will and its witnessing and sealing in for free as one of the inducements to Dibbell to sign on. It is likely that the will was filled in, “signed” (Dibbell was capable only of a squiggled mark), sealed, and witnessed in Sam Wills’s scrivener’s shop since Mr Wills himself acted as another of the witnesses. Or the whole scene may have unfolded in one of the nearby riverside pubs for which Wapping New Stairs was, and still is, well known. Either way it was almost certainly ratified in the customary fashion by drinks all around.

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A Wife’s Power Like other English wives, Mary Dibbell would have owned no movable property in her own right: all cash, wages, or household goods she possessed or brought to the marriage belonged legally to her husband. She also laboured under a legal disability: a wife could not ordinarily appear in court. She was permitted limited ownership over real property (land), but that was a moot issue in this case because the couple was poor, almost certainly in debt, and probably owned little more than the clothes they stood up in. This is not mere conjecture. It is pretty evident that they were in a bad way because four months later Mary Dibbell was forced to renounce her executorship of Dibbell’s estate to her main creditor, one Widow Edith Musgrave – which suggests strongly that Thomas Dibbell’s enlistment was an effort to stave off destitution or imprisonment for debt.13 The Dibbells were exactly the sort of family likely to be most strongly affected by the partial embargo on merchant shipping that accompanied the outbreak of the Nine Years’ War, an embargo aimed at forcing experienced sailors onto Navy ships rather than allowing them to ship out on merchantmen for higher wages. By August of 1690 they were probably desperate, and the prospect of Navy pay, even if the actual payout was far in the future, would have been enticing to both of them: as an able seaman Dibbell would have received 24 shillings a month, and presumably he got a month’s pay in advance. But Mary has to have been concerned about how to safeguard her position going forward, given that she would be the one left dealing with the creditors and trying to keep a roof over her head (it is unclear whether or not the couple had any children). And of course both of them knew Thomas might never come back, as in fact he did not. As it was, Mary Dibbell must have been at least somewhat reassured by the terms of the will/ Power Thomas Dibbell signed under the eye of his new commanding officers, and looking at it, it is not hard to see why (see Appendix I for a transcription). The formula will/Power to which Thomas Dibbell affixed his mark makes Mary Dibbell his executrix and leaves her all his worldly goods should he die. But the most striking feature of the will is that fully twothirds of it is devoted to giving Mary Dibbell powers while Thomas is

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still alive. How extensive are these powers? First the will/Power gives her the right to “ask, demand and receive” from the Royal Navy or any other entity any monies due to Thomas Dibbell, and it exhaustively lists the many kinds of payments this might involve: smart money (a type of payment made to encourage men to enlist), prize money, bounty payments, ordinary wages due for service in the Royal Navy, and any payments whatsoever received for serving on a merchant ship. The framer of this formula will/Power must have been well aware that sailors’ wives often found themselves in pursuit of their husbands’ choses in action, which all of these technically were, and the document fully authorizes Dibbell’s attorney to do anything necessary to get the money. The will goes further though. It gives Mary Dibbell the right to manage and administer any rental or other properties belonging to her husband. Unfortunately this was almost certainly meaningless in their case since they were so poor, but this is a formula will, so it tries to cover all eventualities. Somewhat more realistically it gives Mary Dibbell the right to demand and collect any other monies, goods, debts, and so on due to her husband from any source whatsoever. And it specifically authorizes her to go to the law to “sue, arrest, attach, seize, imprison, prosecute and condemn, and to compound and agree and out of prison to release and discharge” any person or persons in pursuit of any debt due to Thomas Dibbell. Finally it permits Mary to transfer the Power to any other party of her choosing, and then take it back again, and in general to act with as “firm and valid and irrevocable” an authority as Thomas himself. Armed with this piece of paper, Mary Dibbell could demand all kinds of payment on her own and her husband’s behalf, sue in court, arrest people for debt, negotiate debtor agreements, and place a pay ticket in pawn or sell it to a ticket discounter (the latter two transactions required a temporary or permanent transfer of the power of attorney to the pawnbroker or discounter, which explains why the Power has to be transferrable). She could, in short, act in all respects as if she were an autonomous legal personality with comprehensive rights to all forms of property and all the powers necessary to preserve them. Coverture virtually destroyed a married woman’s ability to act as an autonomous legal subject, but this instrument goes to

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considerable trouble, point by point, to restore everything coverture took away. Two aspects of coverture remain enshrined, if obliquely, in this and other Powers, one of them, under the circumstances, probably of some advantage to Mary Dibbell, the other not. The first has to do with “her” movable goods: clothes, household goods, or wages she might earn on her own. At first glance one might assume that the Power only gives her the right to sue, demand, etc. in relation to her husband’s creditors (i.e., the Navy and other entities owing him money). That would conform to the “deputy husband” model so familiar to historians of women. But because all her movables were technically his, in fact she now had a right to the management of all family monies, debts, etc., including those she obtained by her own labour. She could now act in every way as though both his and “her” property were now hers alone. The less beneficial side of all Powers and all wills, as well as the hybrid will/Power we have been discussing here, was that they could be revoked and withdrawn at any time by the person who originally executed them, in this case Thomas Dibbell. Creditors often sought to pre-empt the testator’s right to change his will or revoke a Power by demanding he post a bond that would be forfeited if he did so. But this option was probably not readily available to wives, though women did sometimes sue their husbands for revoking their powers of attorney.14 This should serve as a reminder that, whereas the legal superstructure of the Power was exceedingly strong while it was in force, it stood upon a foundation of individual volition. And while the Power did become a feature of many late seventeenth-century mariners’ marriages, like holy matrimony itself it was very vulnerable to a husband’s personal caprice. That, above all, is why we cannot say that this or any other power of attorney, comprehensive as they often were, truly extinguished coverture.

The Fiscal-Military State and Women The shortage of Navy sailors was a major anxiety during wartime, and recruiters were always looking for more and better techniques of

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Fig. 7.5 Detail of the will of Thomas Dibble, showing royal, patriotic, and naval iconography.

persuasion. It seems likely that the Royal Navy saw wills/Powers like that of Thomas Dibbell as a benign form of bribery. Seeing that provisions would be made for their future security in the form of the will/ Power, families, especially wives, would talk their men into enlisting, or at least refrain from encouraging them to desert, which women were frequently said to do. Or at least that was the logic. Also at play, at least in 1690, were the concerns of a new, and as yet insecure, regime. This is shown by the engravings that decorate many of the formula wills intended for mariners, Dibbell’s being no exception. On the top left of the Dibbell will is a medallion-shaped double-portrait of William III and Mary in profile, bordered in laurel leaves, with “God preserve our gracious King William and Queen Mary” running around it (see the detail in figure 7.5). In the middle is the Stuart coat of arms to which the escutcheon of the House of Nassau has been added (William was styled “William of Orange and Nassau”). This is supported, as was customary, by the crowned lion and unicorn, and it bears the familiar royal mottoes “Honi soit qui mal y pense” (the Order of the Garter) and “Dieu et mon droit.” The use of the Stuart arms emphasizes Mary Stuart’s claim to the throne as James II’s daughter, as well as William

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III’s more distant claim to the throne through his wife, and by virtue of his being the grandson of Charles I. To the right is the official Navy seal (“sigillum oficil navale”) with its three anchors encircled by the words “Pray God Preserve the Fleet.” Only a year out from the Revolution of 1688–89 these images labour mightily to assert the royal couple’s legitimate claim to the throne while also enlisting the Almighty in the project of preserving both the new regime and the fleet. And they speak directly to Navy sailors, a constituency whose uncertain loyalty was a matter of considerable concern to William and Mary’s government.15 These highly politicized images, which presumably had been approved by the Admiralty or the Navy Board, do raise the question of what the Navy had to gain from all this. Was the need for new recruiting tools really enough to justify the Navy lending its prestige to the undermining of coverture, even on a temporary basis? This was not a purely notional issue. The Dibbell will, very typically, encourages and empowers Mary Dibbell to demand payment from Navy officials, which meant that, at some point, she would be turning up at the Navy Ticket Office. And if thwarted there she was practically being invited to petition and demand a hearing before the Navy Board. The Navy’s surprisingly sanguine attitude toward the prospect of thousands of legally empowered women, many of them far from submissive, descending upon its principal officers is well worth pondering, especially since the Navy Board records show that that was exactly what happened – indeed it had begun to happen considerably before 1690.16 To understand the Navy’s logic one needs to look at seventeenth-century state finance. The English state, like a good many others in the early modern period, financed its wars on credit. The Royal Navy seldom had sufficient ready money for daily operations, and therefore it relied heavily upon the expedient of making both contractors and sailors wait a very long time to be paid. This was, in effect, a forced loan, levied, at least in the sailors’ case, on people who had little means of redress and not much to fall back upon.17 As we have seen sailors were usually only paid when their ships returned to their home port, and especially in the 1690s payment was often delayed significantly longer than that. The Navy did not make it easy or straightforward to get tickets paid, both because there often was no

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money and because even when Parliament consented to vote a fresh supply the Navy frequently used the money for other purposes.18 This was bad enough for the sailor himself; no one likes to do hard labour for highly uncertain return. But at least he got food, drink, and a place to sleep when on active duty. The most immediate sufferers from this policy were demobilized sailors, sailors’ families, and the neighbourhoods in which they lived. The delayed payment of thousands of tickets could cause financial havoc in maritime communities as cascading debts and lack of liquidity, coupled with the high prices that always accompanied war, ate into people’s credit, livelihoods, and morale. And as it turned out, many families could not afford to wait, which explains the rise of ticket discounters in maritime communities – men or women prepared to “buy,” that is, pay ready cash for the ticket and accompanying power of attorney at a steep discount with the seller standing to lose 40 per cent or more off the face value of the ticket. Financing war on the backs of sailors and their families imposed very high transaction costs on maritime communities, and those costs, in both time and money, were perforce shouldered by women, especially wives, because most of the men were out on the ships. It was women who typically retained the tickets and the Powers, kept track of when the payouts would occur, and stood in line at the pay tables. It was women who negotiated with the landlady, or for food to feed the family, and generally nurtured the increasingly desperate credit arrangements that barely kept these communities afloat. And yes, it tended to be women who haunted the pay office, petitioned and attended the hearings before the Navy commissioners. Women also became very familiar with discounters, pawnshops, the law courts, and debtors’ prisons. And not infrequently they were the ones perpetrating various frauds with tickets, in some cases paying a heavy price for it. This highly imperfect system was disadvantageous to both sailors and their relatives. But it seems clear that wives and other attorneys, armed with “Powers” and prepared to act assertively in the name of the man whose ticket it was, greased the wheels of a fundamentally exploitative system. They certainly gave the impression that something was being done. And because people who insistently make demands are more likely to have them answered than those who do not, some of the

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time they must have succeeded in speeding the process up. Certainly the fact that they had all the powers their husbands did must have made them more efficient generators of revenue in the local marketplace; at least they were not operating with both hands tied behind their backs. But at the same time the system was very heavily stacked against them. The agents of the fiscal-military state colluded in giving sailors’ wives legal powers not ordinarily granted to other wives, but it was in the interests of the war machine not the women themselves. And yet it is unreasonably pessimistic to think that the thousands of Powers circulating around London, many of them giving extensive powers to wives, had no positive impact at all on individual women and their families. And it is certainly worth considering what they mean for our notions of plebeian family life. Marxist and socialist theorists long argued that plebeian families, unlike better-off ones, practised a kind of rough and ready egalitarianism, due to the fact that the former owned little or no private property and both women and men had to work.19 Women’s historians have tended to be rather skeptical of this claim; however, the widespread use of powers of attorney in maritime communities suggests that, under some circumstances, and in some occupational groups, the older picture may have been at least partially right. Women in maritime families could and did enjoy a good deal of power. Still, “egalitarianism” may not be the best term for what was going on here. First, the power of attorney initially arose as a legal instrument because the husband was absent. Second, the Power could be rescinded at any time at the man’s pleasure. Coverture might be dead in the day to day, but it could be resurrected with disquieting speed. Clearly the Power gave wives greater ability to act independently in relation to the fiscal-military state and particularly the Royal Navy, as well as the courts and “state-like” bureaucracies like the East India Company, though it is impossible to know to what degree a woman’s learned habit of taking control of such matters carried over once her husband came home. What we do know is that by the late seventeenth century some wives or widows of sailors began setting up as “solicitrixes,” self-styled “experts” prepared to help sailors and others manoeuvre their way through the Navy bureaucracy for a fee. Others became professional ticket discounters. Groups of women began clubbing together to pay parliamentary lobbyists to push money bills, and some

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were involved in sailors’ demonstrations against the Navy Board and in front of the houses of parliament over alleged corruption in the Navy ticket office. Litigation by sailors’ female relatives, much of it disputes about tickets, had become fairly common in the London courts by the latter seventeenth century; it is even possible to find large groups of wives and widows bringing what would today be called “class action” suits in the Admiralty Courts against such entities as the East India Company over their husbands’ wages.20 We may be seeing here the way that incitements to female legal and bureaucratic agency, helped by newly popular and mass-produced legal instruments, and with at least partial collusion by the state, could change the legal landscape for some married women.

Conclusion Even in the dark days before the passage of the various Married Women’s Property Acts, coverture was never monolithic. This essay is in part a case study of a not-insubstantial community whose basic needs were not particularly well served by coverture and which evolved various ways to get round it. One may debate whether the widespread use of powers of attorney and wills highly beneficial to mariners’ wives actually undermined coverture or merely “suspended” it, and it must also be taken into account that women in these communities were already more than normally accustomed to operating assertively in the public sphere. Still there is no question but that these devices allowed many women to operate far more freely and securely in the marketplace, the law courts, and within some large bureaucracies than they would otherwise have done. It is easy to view coverture primarily in terms of the private lives of male and female individuals within the context of marriage. This essay argues that coverture as well as efforts to weaken coverture need to be seen in a large context that includes neighbourhoods, the economy, and the state. In seventeenth-century maritime communities “private” concerns were impossible to disentangle from “larger” forces. This was a distinctive occupational subculture where the men were often absent and indebtedness was rife. Putting together any

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semblance of family life seemed to demand the at least temporary empowerment of wives. But the weakening of coverture in the latter seventeenth century, selective and occupationally concentrated as it was, had less to do with women or the well-being of families than it did with military needs. The popularizing of preprinted wills and wills/Powers certainly benefited wives as well as creditors, but it was primarily a way to encourage naval recruitment. And Navy officials reconciled themselves to women who operated with authority in the public sphere – and even encouraged them – because they saw this as a way to dampen down strife over pay and soften or alleviate the worst effects of coercive deficit financing. The powers awarded to seamen’s wives were real, but they probably would not have been anywhere near as extensive if the primary beneficiaries had been women themselves.

Appendix I Thomas Dibbell’s last will and testament naming his wife, Mary Dibbell, as his attorney. London Metropolitan Archives O.W. MS 9172 (London Commissary Court, signed and witnessed 8 August 1690; proved 1 December, 1690). The spelling and some of the syntax have been modernized, some punctuation has been added, and there has been an attempt to show which parts of it were preprinted and which were filled in by hand. Know all men by these presents [i.e., the present document] that I Thomas Dibbell of Wapping in the County of Middlesex now outward bound to sea in their Majesties’ hired Ship the Modena have and by these presents do make Ordain and Constitute my Trusty and well-beloved Wife Mary Dibbell the bearer hereof my true and lawful Attorney irrevocable for me and in my name and for my Use to Ask demand and receive of and from the Right Honourable the Treasurer or Paymaster of their Majesties’ Navy and Commissioners for Prize money and whom else it may concern as well all such Wages and pay, Bounty money, prize money and all other sum and sums of money whatsoever as now is and which hereafter shall

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or may be due or payable unto me pursuant to their Majesties’ gracious Declaration of the 23 of May 1689. And also all such portions, salaries, smart money and all other monies and things whatsoever which now and at any time hereafter is and shall be due to me for my service or otherwise in any of their Majesties’ Ships, frigates or vessels or any merchant Ship or ships. As also to demand, recover and receive of all other person and persons whatsoever whom it doth or may concern All and singular such other sum and sums of money, goods, wares, effects, wages, debts, due claims and demands whatsoever which now and hereafter is or shall be due and payable unto me either by Bond, Bill, book, account or otherwise howsoever. And moreover in my name and for my proper use to devise and let by lease in writing or otherwise All or any of my Messuages, Lands or tenements to such person or persons and for such term of years, Conditions and reservations as my said Attorney or her Counsel shall think fit and Convenient, Giving and hereby granting unto my said Attorney my full and whole power in the premisses [i.e., the foregoing properties] and to recover and receive all and singular the sum and sums of money, matters and things aforesaid and upon non-payment thereof or any part thereof all such person and persons whom it may concern, and where need shall require their Executors, Administrators and goods to sue, arrest, attach, seize, imprison, prosecute and condemn and to compound and agree and out of prison to release and discharge. And upon receipt of the said premises or any part thereof Acquittances, releases or any other Discharge for me and in my name to make, Seal and deliver and one Attorney or more to substitute and at pleasure to revoke and generally to Act and do all other Acts, matters and things whatsoever needful and necessary to be done in and touching the premisses as fully and effectually as I might or could do if I were personally present Ratifying and allowing for firm and valid and irrevocable all and whatsoever my said Attorney shall lawfully do or cause to be done in or touching the premisses by Virtue of these presents. And I the said Thomas Dibbell considering the Uncertainty of this transitory life do make and declare these presents to contain my last Will and Testament (that is to say) all and singular such wages, sum and sums of money, lands, Tenements, Goods, Chattels and Estate whatsoever wherewith at the time of my decease I shall be possessed or invested or which

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shall then belong or of Right appertain unto me I do give, devise and bequeath unto my said Wife Mary Dibbell and to her Heirs & assigns to have & to hold forever and I do hereby nominate and appoint her full and sole executrix of this my last will and testament and do revoke all former Wills and Deeds of Gift by me at any time heretofore made and do ordain these presents to stand and be for and as my only last Will and Testament. In Witness whereof I have hereunto set my hand and seal the Eighth day of August Anno Domini 1690 and in the Second year of the reign of our Sovereign Lord & Lady King William & Queen Mary &c Signed, Sealed and Published and Declared in the presence of Humph Sanders [Captain of the Modena] James Renwick M[aste]r [of the Modena]

The mark of Thomas Debbill The mark of Henry Hawkes Thomas Burge Sam Wills Scr[ivener]

NOTES 1 N.A.M. Rodger, The Command of the Ocean: A Naval History of Britain, 1649–1815 (New York: W.W. Norton, 2004), 206. That estimate is for 1702 and encompasses “deep-sea” sailors but not rivermen. Over 35,000 seamen and marines were “borne” (entered) on Royal Navy ships’ books in 1691, while at the height of the War of Spanish Succession at least 42,000 men were “mustered” onto Navy ships (muster figures are more exact, and generally lower) of which some unknown number were men with little or no prior seagoing experience. The figures for men “borne” and “mustered” are from Rodger’s Appendix VI, “Manpower,” 636–7. 2 Jennine Hurl-Eamon, “Insights into Plebeian Marriage: Soldiers, Sailors, and Their Wives in the Old Bailey Proceedings,” The London Journal 30, no. 1 (May 2005): 22–38, particularly stresses sailors’ uxoriousness. 3 London and Greater London wills were proved in a large number of courts including the Prerogative Court of Canterbury, the London Consistory, the Commissary Court of London, the Archdeaconry Court, and Consistory, Commissary and Archdeaconry Courts for Surrey and Middlesex.

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4 Peter Earle, Sailors: English Merchant Seamen 1650–1775 (London: Methuen, 1998), 130–1. 5 Rodger, Command of the Ocean, 213–14. 6 Craig Muldrew, The Economy of Obligation: The Culture of Credit and Social Relations in Early Modern England (New York: St Martin’s Press, 1998). 7 On the Admiralty Courts (primarily the instance courts) see especially George F. Steckley, “Litigious Mariners: Wage Cases in the SeventeenthCentury Admiralty Court,” The Historical Journal 42, no. 2 (1999): 315–45. As Steckley handily shows, not only did huge numbers of mariners (he estimates some 62,000 in the seventeenth century) sue shipowners in Admiralty Court (most often for wages), but they usually won. 8 Margaret R. Hunt, “Women and the Fiscal-Imperial State in the Late Seventeenth and Early Eighteenth Centuries,” in A New Imperial History: Culture, Identity and Modernity in Britain and the Empire, 1660–1840, ed. Kathleen Wilson (New York: Cambridge University Press, 2004), 29–47. 9 In the seventeenth century ordinary seamen in the Navy were paid 19 shillings per month; able seamen 24 shillings when on active service. Officers’ pay generally depended upon the rating of the ship on which they served. Rodger, Command of the Ocean, 61. 10 For an important essay on women’s common law right to pledge their husband’s credit for their own “necessaries,” though from a later period, see Margot Finn, “Women, Consumption and Coverture in England, c. 1760– 1860,” The Historical Journal 39, no. 3 (1996): 703–22. There is some question as to whether the “law of necessaries” applied to women of the labouring classes, yet seventeenth-century sailors’ wives certainly routinely assumed they could pledge their husband’s credit for rent or food, as well as demand payment for debts due to their husband, even in the absence of a Power. Still there is no question that a written Power enhanced their bargaining position. 11 Dibbell died on 19 November when the Modena had reached Deal on her return journey from Ireland. See The National Archives, Public Record Office, Kew, Surrey [hereafter TNA: PRO] adm 33/139 (Navy Net Book for the Modena). Records of the Admiralty. 12 For the officers of Dibbell’s ship see TNA: PRO ADM 51/4262, Captain Humphrey Sanders’s log (Their Majesties’ Hired Ship Modena, 1690–91), and adm 52/69, Master James Renwick’s log (Their Majesties’ Hired Ship Modena, 1690–91). 13 See London Metropolitan Archives O.W. MS 9172, verso side. Widow

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Musgrave could have been their landlady or simply one of the many moneylenders who plied their trade among sailors. 14 Presumably coverture itself would have presented an impediment to posting a bond against the non-performance of some action by one’s “other half.” However, I see no reason why a husband could not be forced to post such a bond by his wife’s relatives, though I have yet to see such a case. For a wife who sued her sailor husband in the Court of Exchequer for revoking her Power and thereby impoverishing her and her children, see Mary Duncan and Thomas Bowley, procheine amy v. William Duncan and Thomas Steer (Michaelmas, 3 George I), TNA: PRO E112/980/303. I discuss this case in detail in Hunt, “Women and the Fiscal Military State.” 15 The Royal Navy was closely identified with the recently deposed James II, who had long taken a strong interest in naval affairs. On earlier instances of naval disloyalty see B.S. Capp, Cromwell’s Navy: The Fleet and the English Revolution, 1648–1660 (Oxford and New York: Clarendon Press, 1989). 16 The records of the Navy Board (TNA: PRO ADM 106) are full of evidence of women’s activities in this regard. See also Hunt, “Women and the FiscalImperial State.” 17 When merchant owners failed to pay them, sailors or their wives or widows could sue for their wages in the High Court of Admiralty (and very many did). But that avenue was not available to Navy sailors or their relations due to the principle of Crown immunity to civil and criminal suits. 18 See Rodger, Command of the Ocean, 292, for instances of the Navy using the monies set aside by parliament for paying sailors’ wages for other expenses, including shipbuilding, ship repairs, and the erecting of a new Admiralty Office. 19 Friedrich Engels, The Origin of the Family, Private Property, and the State (Peking: Foreign Languages Press, 1978 [orig. 1884]). 20 Hunt, “Women and the Fiscal-Military State.”

8

Written in Her Heart: Married Women’s Separate Allegiance in English Law barbara j. todd

In the summer of 1617 a young English merchant lay dying in the Polish town of Elbing. Nicholas Stephenson had left his family’s lands in Suffolk to become a citizen of London and member of the Skinners Company. Then he had joined the Eastland Company trading in the Baltic. He had married a Polish wife, Barbara, and had a young son, Richard. Now, seriously ill, he called the chaplain of the company, Nathaniel Ward, and Theophilus Eaton, one of the leading Eastland merchants, to help him draw his will.1 If Stephenson himself did not realize it, certainly Ward, who was trained both as a cleric and as a lawyer,2 would have immediately known that Stephenson faced a very tricky legal problem. By law young Richard Stephenson was not an English subject because he had been born in Poland and his mother was Polish. Ward knew that the old statute De Natis, passed in 1351, required that both parents be English for the Polish-born boy to be able to inherit Stephenson’s English lands. Barbara Stephenson’s allegiance to the king of Poland stood in the way. Together the men framed a will to protect the family as best they could. Choosing three London Eastland merchants (including Eaton) to be executors, they drew a will giving all Stephenson’s lands to the use of the three executors. Would that work to avoid the consequence of the boy’s alien status? Barbara Stephenson is a shadowy figure, known only through Nicholas’s will. Yet, because by English law she held Polish allegiance independent from her husband, she is a central actor in a case that

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began to change the principle of married women’s separate allegiance, one of the most enduring exceptions to doctrines of coverture. In this essay I propose to trace the beginnings of the story that began with Barbara Stephenson and ended with the Naturalization Act of 1870, which subordinated the independent allegiance of wives to the nationality of their husbands.

Married Women’s Allegiance Even those who imagined the strongest versions of common law coverture reserved two exceptions to the theory that subsumed the wife’s personal and legal identity under that of her husband. First, even while saying that man and wife were biblically “one flesh,” writers acknowledged that a wife’s soul was her own.3 This paper examines the second exception: the acknowledgment that all women, including wives, bore personal allegiance to their sovereign under common law. Whether we call it citizenship, nationality, subjecthood, or allegiance, English law had long recognized this fundamental aspect of personal identity as belonging separately to the wife.4 Thus as Linda Kerber, one of the few scholars to consider this question, has noted, “women’s national citizenship contained deep within it an implicit challenge to coverture.”5 Wives’ separate allegiance grew out of the fundamental principle that any person, female or male, owed allegiance from birth. Sir Edward Coke, writing early in the seventeenth century, emphatically articulated the principle: “yet are all subjects of what quality, profession, or sex soever … firmly bounden to their allegiance … because it is written by the finger of the law in every one of their hearts.”6 Women’s birth allegiance was understood within related principles. First, because allegiance was natural it was indelible. This was summed up for lawyers in the maxim “nemo potest exuere patriam” (no one can expatriate him or herself). Thus allegiance could not be changed by marriage. Second, since birth allegiance was tied to place (birth within English lands, that is, in the king’s “ligeance”) it carried with it the right and capacity to hold land. A native-born or naturalized woman could inherit or purchase land, but an alien, man or woman, could not. This was the problem in the Stephenson family case.

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But beginning in the seventeenth century, the fundamental principle of wives’ separate allegiance was highlighted by being challenged. Jurists and legislators grappled with the problems raised when coverture came into tension with allegiance when English subjects married aliens. First challenged was the capacity of wives as mothers to pass their separate allegiance to their children. Eventually, in the Naturalization Act of 1870 the separate allegiance of all wives (whether British or alien) was entirely subordinated to the nationality of their husbands.7 Since that is the end point of the story that begins with Barbara Stephenson, it is useful to outline the act’s provisions. Its main purpose was to clean up problems, particularly with the United States, raised by the principle of indelibility. British subjects who had become naturalized US citizens had been deemed by the British government still to be subjects. By clause four, such persons were now to be deemed aliens. Once the rule of indelibility of allegiance was breached, legislators used clause ten to address another nagging problem: the “great inconveniences” that arose because British women who married alien husbands remained British subjects.8 That problem was solved by taking away wives’ separate allegiance in sweeping terms: “A married woman shall be deemed to be a subject of the state of which her husband is for the time being a subject.” Although it was not widely discussed, one of the “great inconveniences” was that English women married to aliens created an anomaly in coverture: their alien husbands could not, by common law rules, take title to their wives’ real estate, so title remained vested in the wife throughout the marriage.9 The act of 1870 also resolved that problem. Most aliens, it was argued, sought British naturalization only to hold real estate;10 so the statute also enacted that aliens would no longer be barred from acquiring real property. This also neatly removed what legislators saw as the main deterrent women might have to giving up their allegiance, the loss of capacity to inherit real property. One member of parliament commented, “since the bill abolished all distinctions … as to the enjoyment of property,” “no harm could result … because it was only political status that was in question.”11 Another member observed that a wife’s status would be changed only “sentimentally,” since her “legal status” (with respect to property) would not be altered.12

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The 1870 act thus accomplished several ends: by allowing aliens to hold real property, it made it possible for an alien husband to have his “proper” role in the system of coverture. It also completed the subordination of the alien’s English wife by depriving her of her separate political tie with her monarch, and thus her state. Although 1870 did not abolish the principle of a woman’s personal allegiance, it fully subordinated any wife’s allegiance under coverture. It required almost a century of struggle to restore full separate allegiance to English wives.13 My purpose in this essay is to tell the story, unknown to scholars of coverture, of how wives’ separate allegiance “written by the law in their hearts” was slowly whittled away through two and a half centuries before the Victorian statute.14 First I briefly outline some of the pre-modern evidence of married women’s independent allegiance. Then I will return to the situation of Barbara Stephenson, an alien mother, and look in detail at the arguments and contexts of two reported cases, the King v. Eaton (1627) and Bacon v. Bacon (1640), showing how women’s separate allegiance was entangled with issues as diverse as the politics of the forfeiture of land by escheat and the culture of chattel slavery. Finally, a brief survey of later developments will sketch how separate allegiance both persisted and was challenged before the 1870 act.

Married Women’s Allegiance before the Eighteenth Century In thinking about married women’s separate allegiance, it is useful to keep in mind the distinction made in the debates in 1870 between economic and political status. Allegiance had two faces: one was “feudal” and thus, insofar as it was the basis of landholding, economic. A woman’s personal birth allegiance to the crown (as well as fealty to the immediate lord) allowed her to hold land as heiress, as dowager, as free bencher, and so forth. When, as we shall see below, women took oaths of allegiance it was mainly for this economic purpose. Ironically, it was in their economic role as proprietors, in which by common law wives were supposedly most subordinate, that their separate allegiance had most impact and was most persistent.15

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Growing up alongside the feudal theory of allegiance was the theory of allegiance as political, to a state, a nation, a body politic as well as, or even instead of, a monarch. As citizenship was increasingly framed in the discourse of civic humanism, office holding and political participation marked the citizen, not mere birth allegiance. In that framework it was easier to imagine wives as politically engaged only through their husbands. If wives’ separate allegiance had ever given them political standing, certainly that standing was very attenuated by 1700. Seventeenth-century English female critics of women’s status focused on exclusion from office holding rather than allegiance. Margaret Cavendish, Duchess of Newcastle, spoke for politically ambitious wives: “And as for the matter of Governments … we are excluded from intermeddling therewith, and almost from being subject thereto; we are not … bound to the State or Crown; we are free, not Sworn to Allegiance … we are not made Citizens of the commonwealth, we hold no Offices, nor bear we any Authority therein.” 16 The principle of natural birth allegiance of women as stated by Coke had no place in Cavendish’s rhetorical flourishes. True, few women born in England were, as the Duchess observed, “sworn to Allegiance.” The Statute of Marlborough (1267, clause 10) had excused “women” (not just wives) from attending sheriff’s tourns (and by extension court leets), which were the arenas in which some English men, occasionally, did take such oaths. But as Coke had observed, that did not mean that women (or men who did not take oaths) were “free” from allegiance.17 Furthermore, as the Duchess was no doubt well aware, many women, and indeed many wives, did take oaths of allegiance. In 1606 Catholic wives were specifically subject to clause 9 of 3 James I c. 4 (posed entirely in gender-inclusive terms), which required an oath of allegiance from recusants. In 1641 the House of Commons required the Protestation Oath to be taken by all “inhabitants” and in a few localities wives joined in the oath taking.18 The oaths of allegiance abjuring the Stuart succession, required by statutes of 1701 and 1714, were mainly aimed at office holders, but caught up many married women by requiring the oath from executors, guardians, and petitioners in Chancery.19

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By far the largest number of married women who swore oaths of allegiance did so not for these “political” reasons, but because of the economic nature of allegiance. Any woman not born a subject, married or not, who was to hold land by purchase, inheritance, or dower right had to be naturalized by act of parliament or be made a denizen by royal letters patent.20 A handful of married women appear in fifteenth-century records as being admitted to the allegiance of the king as “liege women.” Many were wives of nobles, but in 1440, Gertrude Limes, wife of a merchant of London, received letters of denization to be “the king’s liegewoman” provided she swore liege homage.21 Hundreds more wives took oaths of allegiance in the seventeenth century, when the procedure for seeking parliamentary naturalization required that a married woman, like any other adult, swear the oath in either the House of Lords or the House of Commons.22 About two or three times a year on average when parliament was in session, wives entered these most public of political spaces to swear their independent allegiance. Wives acquiring denizen status by letters patent swore their allegiance elsewhere (commonly in Quarter Sessions courts).23 The Duchess of Newcastle undoubtedly knew some of the foreign wives of royalist exiles who were naturalized early in the Restoration, and she doubtless knew very well that they had sworn oaths of allegiance. But they swore allegiance, not as we do in the modern sense of allegiance to “country” and for political access, but for economic reasons. Since the duchess was arguing about political allegiance the evidence of the oaths of these naturalized wives was beside the point. Another group seeking naturalization were children born abroad of English parents. The English principle of birth allegiance by ius soli assumed that it was birth within the dominions of the monarch, that is “within the ligeance,” that made one a subject and thus able to hold land. But in 1351 the statute De Natis ultra Mare adjusted the idea of ius soli to take account of the situation of children of loyal English parents “born in parts beyond the sea.” De Natis did not give nationality in a modern political sense; it gave heritability, the economic right to land.24 It read: “all Children Inheritors, which from henceforth shall be born without the Ligeance of the King,

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whose Fathers and Mothers at the Time of their Birth be and shall be at the Faith and Ligeance of the King of England, shall … bear the Inheritance … as the other Inheritors.”25 The separate allegiance of the mothers of these children was important to the authors of the statute when they highlighted the equal importance of the allegiances of both parents.26 De Natis was well known and much discussed by later lawyers,27 and in the early seventeenth century it was evoked in the debate about the English status of James’s Scottish subjects. Still, children born abroad who were likely to inherit land continued to be naturalized even if both parents were English,28 and certainly since his mother was Polish, young Richard Stephenson would eventually have been naturalized. But his father died prematurely, and consequently Stephenson’s situation became the subject of one of the first leading cases in nationality law (The King v. Eaton, 1627, followed by Bacon v. Bacon, 1640) to test whether the foreign allegiance of the mother would bar children from inheriting English land. Both of these cases involved English merchants settled in Elbing in Poland. The English community there grew substantially in the first decades of the seventeenth century.29 In some families both husband and wife were English, but commonly an English merchant had married a local woman. What was the status of their children? De Natis had clearly stated that both father and mother must be “of the ligeance.” But if the mother was alien and the child could not inherit, the alien mother would obliterate the father’s Englishness. The question of the separate allegiance of the mother became entangled in the legal politics of the day. Common lawyers, long opposed to Roman or civil law, were disturbed because it would mean that Roman law of enslaved status, partus sequitur ventrem (offspring follows the womb), would prevail. If the foreign-born child could not inherit, the child’s English lands might be forfeited by escheat to the crown. Not only would the family be harmed economically, but escheat was one of the increasingly contested king’s rights. Wives’ separate allegiance was not only in tension with coverture, it was entangled with the early seventeenth-century politics of civil law, of slavery, and of royal prerogative.

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The King versus Eaton After Nicholas Stephenson died in Poland, his executor Theophilus Eaton brought the will to England and proved it at the end of January 1618. Enquiries about the validity of the will followed.30 The case about the inheritance finally came to trial almost a decade later. Although Stephenson had owned some freehold lands, the trial focused on his copyhold in the manor of Mildenhall, part of the royal Duchy of Lancaster. It was brought by the king’s attorney general against Eaton (as executor and trustee), and was tried in the Duchy Chamber at Westminster.31 It was heard there by two justices of the court of Common Pleas, Sir Henry Yelverton, a puritan who had occasionally stood in opposition to some aspects of royal prerogative, 32 and Francis Harvey. It was argued by two prominent sergeants at law, Thomas Athowe33 for the King and Edward Henden for Eaton-Stevenson.34 Although decided in 1627, R. v. Eaton was not reported in print until 1683 from a collection of manuscript reports in Law French.35 But it was known by those who heard the arguments and was, as we shall see, influentially recalled by Sir George Croke in 1640 in the later case of Gertrude Bacon.36 Although the allegiance of Barbara Stephenson and other foreign mothers was central to the argument, the case was equally important for contemporaries because it was about the politically vexed issue of escheat.37 Escheat occurred most commonly when an owner had no heir, or when an owner was convicted of felony. In these situations the land escheated to the immediate lord (in the case of felony after a year’s occupation by the monarch). In two situations, though, the land escheated permanently to the monarch: when traitors were convicted and their blood declared attainted, and when an alien held property or when descent could only be traced through an alien. Escheat of alien property and for felony, like better-known prerogative claims such as wardship,38 was controversial. Courtiers and other petitioners competed for the patronage gifts of escheated lands.39 Escheators in every county were responsible for seizing lands if there was the possibility of escheat. Another of the escheators’ duties was collection of the controversial tax of ship money.

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Since Mildenhall was a royal manor King Charles had a double claim to the escheat. The copyhold would revert to him as lord of the manor if Stephenson’s will was invalid. If Stephenson’s son was alien, the king could claim by prerogative escheat because the next alternative heir, Stephenson’s younger brother, Alexander, had had the misfortune to be convicted and executed as a felon for stealing a horse; Nicholas’s lands could not pass through him to another heir.40 As we saw above, Nathaniel Ward had helped to draw Stephenson’s will to avoid escheat by making Eaton and the other executors owners as trustees.Ward was ideologically opposed to escheat and was later able to assert his opposition again when, as one of the leading colonists, he authored the Body of Liberties, the legal framework for the Massachusetts Bay colony. 41 Ward stated in Article 10, “All our lands and heritages shall be free from … wardships … Escheates, and forfeitures, upon the deaths of parents or Ancestors, be they naturall, casuall or Juditiall.”42 Although the validity of Stephenson’s will was discussed, in the end the case turned entirely on whether young Richard Stephenson was capable of inheriting his father’s lands. Thomas Athowe, in his argument for the king’s claim, focused on Barbara Stephenson’s alien allegiance as barring inheritance. He stressed the danger of allowing the offspring of an alien mother to hold lands. By De Natis a child born abroad could inherit only by having both an English father and English mother. Hence if Richard Stephenson were to inherit, Barbara would have to be understood to be legally English, absorbed under the coverture of her English husband. Inheritance would thus “indenise” an alien woman. It would be “a mischief ” to the king if a wife could be naturalized simply by her marriage to an English man. The “mischief ” Athowe evoked could have been merely as to the escheat (that is, a loss of a royal property right). But Athowe went on to argue that it would have broader implications for the coherence of the English nation. Here the mother was Polish – that was threateningly exotic enough – but Athowe goes on: “si home Anglis marry feme Turk ou Infidel il aver issue que poet inheriter icy.”43 English lands, indeed Englishness, would be invaded by enemies of Christianity, the ethnic or racial other. In evoking the “infidel” Athowe no doubt also had in mind an even greater danger: in Calvin’s Case in 1607 Coke

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had highlighted a demonic threat: “All infidels are in law … perpetual enemies … for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility.”44 Here was the key problem of De Natis and the separate allegiance of a wife or mother. If by De Natis both parents must be English, an alien mother must be made fictionally English (but without swearing allegiance). Otherwise the child would be alien and her status would absorb that of the English husband. For Athowe that was the lesser evil: Barbara Stephenson’s separate allegiance meant that her child could not be a subject and hence the land would escheat. Edward Henden argued the case for Eaton against the king. His agenda was to prove that young Stephenson was a subject without “contaminating” Polish blood, and without the threatening prospect raised by Athowe of naturalizing the foreign mother simply by marriage or childbirth. To make his argument he needed to erase Barbara Stephenson’s separate allegiance entirely. Henden began by downplaying the place of birth; he argued that it was only the allegiance of the father that mattered. Stevenson was in Poland, a friendly country, for merchandising and trade by the king’s licence and for the betterment of England. Trade policy must moderate the law of nationality. Then Henden cited several cases showing that inheritance could be proved solely in the paternal line, concluding that the blood between father and son is as though the son did not have the blood of the mother. In any case, Henden went on, it was a principle of English law (in contrast to Roman law regarding the status of slaves) that partus sequitur patrem non matrem. On this point English common lawyers usually referred themselves to the related situation of villenage in which the English rule had always been that in a marriage between a bond and a free person the offspring would follow the father.45 And so it should be in Stephenson’s case, said Henden, evoking the authority of the well-known text, Sir John Fortescue’s De laudibus legum Angliae.46 De laudibus had been written in the late fifteenth century to argue for the superiority of common law over civil law. Chapter 42 considered the English rule of partus sequitur patrem. Since all seventeenthcentury lawyers, and many laymen, would have known this work, and

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since its arguments would have framed their views on coverture and the problem of the alien mother’s status (as well as the development of chattel slavery in the English colonies), it is worth making a brief excursus here to review Fortescue’s argument. First, not surprisingly, Fortescue evokes scripture to assert that the woman is subject to the husband since they are “one flesh.” He also evokes Aristotelian ideas of generation: the male is more worthy, and hence contains the female. In any case the son of a freeman should be free because it would be cruel to commit to bondage a freeman’s son and thus diminish liberty. “Wicket and cruel is he that favours not libertie.” Of course that leaves the problem of the child of the freewoman married to a bondman (or English woman married to an alien). But, argues Fortescue, it is not so severe to do the same in that case, “for she has made herself one flesh with the bondman of her own free will,” like those who sell themselves into bondage. She is in fact absorbed into her husband, who “plants his seed” in his own ground. Finally, even if the parents had been unmarried, the bastard child would be free, since having “no parents” it would be too cruel to choose the bond status over the free. Having evoked the well-known passage from Fortescue, Henden continued his learned argument, asserting that even if the child’s parents had not been married, the child would still be English. Suddenly Judge Henry Yelverton interrupted. Would both counsel agree that if young Richard Stephenson were not alien, he would inherit? Athowe and Henden agreed, overriding any problems with the validity of the will. Yelverton then enthusiastically reported that he and his fellow judge Francis Harvey (who appears to have been absent at this sitting) had been busy polling the other judges about the case (the report quotes Yelverton as saying grandly “touts les Judges in Angle terre”). Opinions of all the judges were, of course, sought only in the most important cases, perhaps most memorably in recent years in Calvin’s Case. And Yelverton reported the results of his survey: “it was not scrupled by any of them but that the issue was denizen.” Yelverton summarized the thinking. First Stevenson was abroad by the king’s licence as a merchant. Second, partus sequitur patrem. Third, “the blood between father and son communicated the father’s nature to

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him.” Furthermore, several of the judges had observed (in a key point) that the phrase in De Natis, “fathers and mothers,” should be read as distributive “fathers or mothers” rather than “copulative.” Then Yelverton made another surprising statement: the judges also agreed that the child would have allegiance separately and simultaneously (“utriusque”) to the King of England and to the King of Poland. For Yelverton, the mother’s allegiance was not obliterated or absorbed, but remained to extend a new concept of dual allegiance to the child from birth.47 Yelverton thus ruled abruptly against the royal escheat: Stevenson’s inheritance, and thus Eaton’s title as trustee, was good. And so it was remembered by those who heard the verdict. That, however, is not quite the end of the report. The unnamed reporter added that as an attorney he was insecure about advising a client that this was a good precedent. He thus inquired of another leading lawyer, Sir Thomas Crewe,48 who recalled that in fact the absent Harvey did not agree with Yelverton. Furthermore, Crewe reported, the Chief Baron of the Exchequer49 also recalled that the judges of Exchequer had never delivered such an opinion and were inclined in fact to take the opposite position to what Yelverton reported. Although Crewe himself said that he agreed with Yelverton’s ruling, the reporter advised his client to make his inheritance rights secure by letters of endenization and not to rely on this case as precedent. So what was Yelverton’s motivation in pushing what was a major innovation in the law of nationality and coverture? He had crossed swords with Coke in the past (on the issue of the dower rights of Coke’s wife), and perhaps Yelverton saw an opening to make his mark with his own views on doctrines of allegiance on which Coke had argued so fully in Calvin’s Case. The phrase “all the judges of England” suggests that Yelverton wanted to parlay Eaton into a major case on nationality. Perhaps his motives were political. Although Yelverton generally supported royal prerogative, he had also gained a reputation for opposition to abuses of some royal innovations, for example on monopolies. Did he oppose the escheat as an aspect of prerogative? There is also a possibility of religious connection. Perhaps Yelverton’s strong puritan proclivities also inspired him to favour the interests of Eaton, a puritan who in a few years would join Nathaniel Ward and migrate to Massachusetts, eventually becoming governor of the New Haven colony.50 Probably

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all of these “extraneous” factors contributed something to Yelverton’s enthusiastic innovation in the law of women’s allegiance. The verdict in Eaton ruled that the child of a mixed marriage would follow the nationality of the English father. Less authoritatively it reports that judges agreed that the crucial phrase in De Natis, “fathers and mothers,” could be read “fathers or mothers.” But what Eaton did not do is challenge the fundamental idea that wives have their own allegiance. Barbara Stephenson remained Polish. The report of R. v. Eaton was not published for another half-century, and what judges relied on for the next important case on mother’s allegiance, Bacon v. Bacon, was only the memory of the case as decided in favour of one “Stephens” by “Yelverton and Hobart” [sic] as recalled by Sir George Croke. Croke was justice of Common Pleas in 1627 and thus would have supposedly been involved in Yelverton’s polling of all the judges.51

Gertrude Bacon Yelverton’s ruling in Eaton acknowledged the equal and separate allegiance of the alien mother. In Gertrude Bacon’s case the alien mother’s allegiance became entirely irrelevant. And, at least in one judge’s opinion, the wife’s allegiance was absorbed into that of her husband. While Eaton’s case seems to have been partly framed in the politics of resistance to escheat, in Bacon’s case the line of alternative inheritance was secure, so escheat was not likely. The decision in Bacon was more about adapting law to advance economic policy. That is not surprising, since Gertrude was a member of one of the great mercantile families of the early seventeenth century, the Cockaynes, and her case would have been of interest to the powerful Eastland Company. Although she was born two years before the Stephenson boys, Gertrude Bacon’s case reached the court of King’s Bench in 1640, fourteen years after Eaton. Gertrude was the Polish-born daughter of another Eastland merchant, John Bacon. She claimed a freehold farm in Bramford, Suffolk.52 John Bacon was the eldest son of farmer Thomas Bacon and his wife Lore Clench. Lore Clench’s father or kinsman, John Clench, was a leader among the Ipswich merchants

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trading in cloth to Poland.53 When Thomas Bacon died in 1610 and Lore succeeded for life to his farm,54 one obvious alternative career for John was to work in the Polish trade in Elbing. There he met and married Elizabeth, the daughter of Francis Cockayne (reported as “Cockley”), son and Polish agent for the great London merchant William Cockayne (who also employed Nicholas Stephenson).55 While Elizabeth was pregnant with Gertrude, who was later born in Poland and named after her Cockayne grandmother, John Bacon died in 1615. I have been unable to discover whether John Bacon made a will. He may not have known when he died that his wife was pregnant, and since his wife was the daughter of an Englishman he may not have worried about the possible alien status of the child, something that concerned Nicholas Stephenson two years later. In 1640 Gertrude had returned to England and was living near London. Meanwhile Lore Bacon, Gertrude’s other grandmother, had remarried and her new husband had issued leases for most of the family lands. But now both Lore and her husband were dead, so Gertrude launched a case in Chancery to recover her father’s inheritance.56 Eventually a case was also begun in King’s Bench to test Gertrude’s status as subject or alien, using an action of trespass against her cousin, James Bacon, son of the next younger brother of Gertrude’s father.57 This may well have been seen as a test case by the mercantile community. The case was reported by Sir George Croke,58 who ruled on the matter with Sir John Bramston, chief justice, and Sir Robert Berkeley.59 Croke reports only the opinions of the three judges, not the arguments of counsel. The judges seem to have had little difficulty in deciding in favour of Gertrude’s claim. She was a “natural born subject” or “denizen” because her father was English, “living beyond the seas for merchandising.” But in reaching that conclusion, new doctrine as to the nature of coverture and allegiance was articulated. Gertrude’s case, like that of Richard Stephenson, turned on the question of whether her father’s nationality could be passed to her. The judges might have debated whether Gertrude’s mother, herself a daughter of an English merchant by a Polish wife, was alien (later commentators declared that the mother was in fact also deemed English).60 But the judges were determined to assert that the child of an English merchant must be denizen and an heir. To achieve this, they

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had to confirm that the mother’s status was irrelevant, and in doing so, they absorbed the mother’s separate allegiance. Berkeley argued it did not matter what the mother’s status was (“it was not material although Bacon’s wife be an alien”), for she was under coverture. He used the standard phrase “sub potestate viri.” And then in a bigger step, she was consequently “quasi under the allegiance of our King.” What had been dual allegiance of the child and the separate allegiance of the mother in Eaton, now extended to absorb, at least partially, the allegiance of the mother. Justice Bramston’s opinion then took up the train of thought that Serjeant Henden had argued in Eaton. “Although the civil law is that partus sequitur ventrem, 61 yet it is not so in our law; the child shall be of the father’s condition … by the common law.” Bramston’s view that it is by “common law” may well have its origins in John Rastell’s early sixteenth-century works, which introduced the notion that travel by licence was sufficient to make the child of an English father “not alien.”62 But then Berkeley joined back in to “correct” Bramston with an equally innovative reading: “or rather by the statute of 25 Edw. 3. st. 2” (De Natis) such children should be “accounted the King’s lieges, as their father is.” This built on Yelverton’s account of opinions in Eaton that De Natis meant father or mother.63 Croke then made his contribution, recalling the (as yet unreported) decision in Eaton: “they all agreed the sooner, by reason of a case which I remembered was argued in the Duchy Court before Hobart [sic] and Yelverton.” Gertrude Bacon was a natural-born subject and thus rightful owner of the land in Bramford. Berkeley’s opinion that Gertrude’s mother was sub potestate viri does what was disturbing in Eaton: it naturalizes the “alien” mother, now “quasi under allegiance.” The case establishes the principle that the mother’s allegiance is irrelevant to her child’s status and, indeed, is absorbed into her husband’s status. These ideas reached a wide audience through Croke’s Reports (in the volume published in 1657) and probably even more readers through the Abridgement, first published in 1658.64 There it is reported simply that the mother was an alien, but the child is denizen because the mother was sub potestate viri, “and it is not as the civilian partus sequiter [sic] ventrem, but the childe shall be of the fathers condition.” The abstract, however, does not highlight that the wife is “quasi under allegiance,” although that was also important for the history of coverture.

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From Gertrude Bacon’s Case to the 1870 Naturalization Act So far this essay has shown that the principle of a wife’s separate allegiance (if the wife was alien) was a casualty of the advance of England’s trade abroad in the context of resistance to the politics of royal prerogative. Three strands of the story remain to be teased out. First, the use of the phrase partus sequitur ventrem in these cases was contemporary with the rise of questions in the American colonies about the status of children of alien African mothers. Gertrude Bacon’s case was decided in counterpoint to the adoption of the partus rule in North America. The second strand is the “other shoe” in the story of maternal allegiance. If an English father alone could convey English subjecthood, why should not an English mother also pass her allegiance to her children? The third strand is the wife’s allegiance itself. Eaton and Bacon hinted that the allegiance of even a mother of English descent might be absorbed by coverture, but later cases sustained the rule of wives’ separate allegiance until the act of 1870 rewrote this aspect of coverture.

Elizabeth Key and the Partus Rule In 1655 the case of Elizabeth Key forced Virginians to address the question of descent of subject status, and as a result in 1662 partus sequitur ventrem, so disdainfully rejected in Eaton and Bacon, was adopted as central doctrine of the law of slavery in the British colonial world. Elizabeth, the daughter of an English planter, Thomas Key, was born about 1630 outside of wedlock to an enslaved African woman (whose name is not recorded and who was almost certainly of alien birth).65 Elizabeth’s father eventually acknowledged paternity and then celebrated her baptism. He died in the 1640s, and by 1655 Elizabeth was living on the estate of another leading planter, John Mottram. When Mottram died that year, the overseers of his will inventoried his estate and listed the young mixed-race woman as one of the “negroes.”66 Elizabeth denied that she was enslaved. A case was brought in Quarter Sessions by those responsible for Mottram’s estate and eventually appealed to the colonial Assembly. The questions were parallel to

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those being decided in England about questions of alien status. Did Elizabeth’s status follow that of her father (was she free and English) or of her mother (was she alien and enslaved)? Since she was illegitimate, legal rules of bastardy should have prevailed: she was “no one’s child,” and as we have seen, Fortescue had given grounds for arguing that in this case, free status should prevail. Certainly there was no legal ground for Elizabeth to inherit her mother’s status.67 Colonists were certainly aware of the Roman rule of descent of slave status by partus sequitur ventrem in Spanish law. Virginians also had plenty of access to works that stated that the rule was not applicable in English law (copies of both Fortescue, discussed above, and Henry Swinburne’s often-reprinted Treatise on Wills, which also refers briefly to the rule,68 were in colonial libraries).69 Although Croke’s report of Bacon did not appear until two years later, some colonists were doubtless aware recent cases had discussed the effect of partus on questions of alien status. For example, the governor of the colony, Edward Digges, was a lawyer who had been a student at Gray’s Inn when the case was argued in 1640.70 In the end Elizabeth was declared to be of free status (and by the charter, an English subject, as were all those born in the colony) by a committee of the Assembly, and surely in consultation with legally trained officials, including the governor Edward Digges, and thus with some knowledge of Bacon as well as Fortescue and other works distinguishing the English partus rule. The father’s English status outweighed the alien mother, whose status would otherwise dominate. Partus sequitur patrem made Elizabeth Key free just as it had given subject status to Gertrude Bacon. In 1662 (partly in response to the Key case), partus sequitur ventrem was enacted in the Virginia law code: “Whereas some doubts have arisen whether children got by any Englishman upon a negro woman should be slave or free, Be it therefore enacted … that all children borne in this country shall be held bond or free only according to the condition of the mother.” The printed title summed it up more succinctly: “Negro women’s children follow the status of the mother.”71 This would be the case whether or not the mother was married (African women were not prohibited from marrying in any way until 1691, when interracial

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marriage was forbidden in Virginia).72 Race (and alien status) trumped coverture, facilitating the reproduction of slavery. The idea that an alien mother’s status or allegiance could predominate dismayed English jurists. The alien mother, first associated with the alien Turk or infidel in Eaton, could now also be envisioned as African and enslaved. Chattel slavery in the English legal world made the prospect of a child inheriting any mother’s allegiance, even an English mother, even more problematic. In this connection it is noteworthy that in a popular treatise by Charles Molloy, De Jure Maritimo, the rule of descent of status as defined in Bacon was discussed not only in the chapter on aliens, but also in the chapter on slavery and freedom.73

Descent of Status from an English Mother Gertrude Bacon’s case (and Eaton as discussed there) established that coverture would absorb the alien mother’s allegiance (at least “quasi”). But what of the reverse case of an English mother married to an alien, infidel, or, for that matter, African, husband? If De Natis meant father or mother, would the child born abroad of an English mother also acquire the status of a subject, entitled to inherit her property (or property through her)? Or would coverture of allegiance apply also when the husband was not English? A dictum by Sir Matthew Hale in a fourth seventeenth-century case, Collingwood v. Pace (1664), proved to be very influential in determining that an alien husband would indeed absorb his wife’s capacity to pass English allegiance. Hale is well known in the history of coverture for his sweeping statement in the case of Manby v. Scott in 1662 that “the Will of the Wife is subject to the Will of the Husband.”74 Two years later, Hale asserted another extension of the reach of coverture in the Collingwood case. At question was whether the lands of the rectory of Kingston could descend between naturalized Scottish-born brothers, or if the estate would escheat. Common law required that descent between brothers be traced through a parent who could hold title, and the father of the brothers was a Scot born before James became King of England, and thus an alien not able to hold land. But here, too,

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the majority of judges resisted escheat, this time with the innovative theory that naturalization by parliament overrode the father’s alien status and made the brothers heritable from each other. Some of the judges did speculate briefly about whether the mother, had she been English, might have replaced the father in tracing descent. Several precedents suggested that the mother’s blood could make the brothers heritable. But Hale went out of his way to close off such a possibility in an entirely unfounded dictum that extended the decisions in Eaton and Bacon: “yet it is without question, that if an English woman go beyond the seas and marry an alien, and have issue born beyond the seas, the issue are aliens; for the wife was sub potestate viri.”75 Later handbooks followed Hale and took Eaton and Bacon as extending to preclude descent from an English mother.76 Charles Molloy’s De Jure Maritimo is also important here. Molloy conflates Hale’s dictum with the decision in Bacon, which he cites as the authority for the statement “if an English woman go beyond the Sea, and there marry an Alien, and have issue born beyond the sea, that issue are aliens.”77 Hale’s dictum was then influential in the case of the Count Duroure, a century later, in which it was finally ruled that the child born abroad of an English mother married to an alien was not able to inherit English land.78 In the meantime, legislation was also excluding descent of the mother’s allegiance. Although some statutes were ambiguous,79 4 Geo II c. 21 (1730) stated explicitly that it was only the children born abroad of British fathers who could be “taken as natural born subjects.” Only “natural born” subjects could serve in parliament, and this general statute was aimed at protecting the foreignborn sons of a leading Whig politician.80 The importance of allegiance as political was highlighted similarly in the concern expressed for the plight of sons excluded from their mother’s lands (who thus could not hold many public offices) in hearings leading to the Aliens Act of 1844. It was duly enacted that such children could inherit, although unlike their cousins who had British fathers, they were not to be considered natural born subjects.81 And then after 1870 when all aliens could hold lands, a wife’s separate allegiance was deemed of no political import, and hence easily erased.

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Separate Allegiance of Wives Despite all these changes the principle of a wife’s personal separate allegiance, though challenged, remained intact. Only the descent of the mother’s allegiance had been tested in law. In the early nineteenth century, though, cases were reported in which wives’ personal allegiance was examined with respect to claims arising from the revolutions in the American colonies and France. In the important essay cited at the beginning of this essay Linda Kerber discusses two American cases that considered the separate allegiance and the lands of American wives of men loyal to Britain. In Martin v. Massachusetts82 the state court broke radically with the centuries-long principle of wives’ separate allegiance. They ruled that Anna Martin was compelled by coverture to follow her husband; she could not be a loyalist because she had no independent allegiance to be exercised and hence her property could not be seized. But in a later case in the US Supreme Court, Justice Joseph Story strongly restated the old principle in Shanks v. Dupont.83 He observed that even though Ann Shanks followed her British officer husband she could not change her allegiance by marriage, citing the common law principle of nemo potest exuere patrem. But she could, he continued, independently acquire British status. It is testimony to how little the history of married women’s separate allegiance has been understood that a scholar of Kerber’s skill could mistakenly believe that Martin was decided by the “traditional” perspective, and that Story was introducing a new exception to coverture.84 Nonetheless, Kerber is correct in observing that separate allegiance pulled “the concept of political rights out from under coverture.” At the same time British courts were continuing to affirm the principle of married women’s separate allegiance in cases focused on property seized by the revolutionary government of France from French wives of British subjects. Counsel argued that the French-born women had been made British by marriage and were thus eligible for compensation. In each case the court ruled that marriage alone did not change allegiance.85 Some women were indeed awarded compensation, but because they were independently domiciled in England at

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the time their property was seized, and thus entitled to the protection of the British government. But the principle of married women’s separate allegiance did not long survive. These foreign-born women lost their separate allegiance in 1844 when the Aliens Act declared that “any woman married … to a natural-born Subject or Person naturalized” was herself naturalized.86 Then, as we have seen, in 1870 separate allegiance as an exception to coverture under common law was finally entirely eliminated.

Conclusion This essay has traced the story of a central facet of personal identity within coverture, and has shown how “extraneous” issues, such as escheat, trade policy, and race, worked within a web of patriarchal assumptions to erase separate allegiance. When the story began, allegiance of women was understood primarily in economic terms. Once allegiance was reconceived as political and as the basis for male office holding and voting, women’s allegiance seemed to matter less. Legislators bemoaned, and then remedied, the situation of the sons of English mothers married to aliens, barred from office by their inability to own land. But as for the mother herself, supporters of the 1870 act argued, if a wife lost her allegiance by marriage “no harm could result … because it was only political status that was in question.” It is one of the ironies of the history of coverture that at the moment when women were claiming political rights, wives’ citizenship as political was finally fully erased. Only one MP spoke against this part of the 1870 statute. William Lawrence recognized that a woman’s allegiance marked her fundamental personal identity. He could not understand how members “could in this wholesale manner deprive women of rights they possessed.” “Upon this question at least,” wives were now becoming “mere chattels.”87 NOTES 1 The National Archives, Public Record Office, Kew, Surrey [hereafter TNA: PRO] PROB 11/131/97. Will proved in the Prerogative Court of Canterbury.

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2 K. Grudzien Baston, “Ward, Nathaniel (1578–1652),” Oxford Dictionary of National Biography (Oxford University Press, 2004; online ed. 3 For example, Bracton, as quoted in Tim Stretton, “Coverture and Unity of Person in Blackstone’s Commentaries” in Blackstone and His Commentaries, ed. Wilfrid Prest (Oxford: Hart, 2009), 115. 4 I use “allegiance,” the term seventeenth-century people would have known. 5 Linda Kerber, “The Paradox of Women’s Citizenship in the Early Republic: The Case of Martin vs. Massachusetts, 1805,” American Historical Review 97, no. 2 (1992): 351. 6 2 Inst. 121. So far as Coke was concerned the fundamental division of human beings was not between bond and free (as it had been for Bracton), nor between male and female, but between subject and alien (see, e.g., 7 Coke Rep. 17a; 77 English Reports [hereafter ER] 397). For Blackstone, “the first and most obvious division of the people is into aliens and naturalborn subjects” (Commentaries, I, ch. 10). Keechang Kim in Aliens in Medieval Law: The Origins of Modern Citizenship (Cambridge: Cambridge University Press, 2000) discusses the shifts from distinctions of bond and free, as laid out in the high medieval texts like Glanvil and Bracton, to the framework of alien and subject. If Kim is correct, this occurred only in the fifteenth and sixteenth centuries. If so, the cases discussed here are not introducing instability in a long-existing doctrine, but are part of a process of understanding a still unstable system of thought. 7 33 & 34 Vict c. 14. 8 William Page Wood, Lord Chancellor, Hansard’s Parliamentary Debates, 3rd ser., vol. 199, col. 124. 9 As Montague Lush noted after the fact in The Law of Husband and Wife (London, 1884), 34–5. 10 See, for example, Alexander Cockburn, Nationality (London, 1869), 180. 11 Sir Roundell Palmer, Hansard, 3rd ser., vol. 199, col. 1741. 12 George Jessel, ibid., col. 1742. 13 See M. Page Smith, “Subject to Empire: Married Women and the British Nationality and Status of Aliens Act,” Journal of British Studies 40, no. 4 (2001): 522–56; Pat Thane, “The British Imperial State and the Construction of National Identities,” in Borderlines: Genders and Identities in War and Peace, 1870–1930, ed. Billie Melman (New York: Routledge, 1998), 29–45. On similar developments in the US, see Candice Bredbenner, A Nationality

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of Her Own: Women, Marriage, and the Law of Citizenship (Berkeley: University of California Press, 1998). 14 The best general survey is Clive Parry, “British Nationality Law and the History of Naturalisation,” Estratto dal Volume V Della Raccolta “Comunicazioni e Studi” Dell’Istituto di Diritto Internzionale e Straniero della Universita de Milano (Milan, 1954). Digital version at http://www. uniset.ca/naty/parry.htm. 15 Of course, my reader is now saying, “but husbands swore fealty and did knight’s service for their wives’ lands.” But they did not do homage for their wives’ land unless they were themselves entitled to hold by curtesy, that is after the birth of a child. 16 CCXI sociable letters written by the thrice noble, illustrious, and excellent princess, the Lady Marchioness of Newcastle (London, 1664), 27 17 2 Inst 121. 18 The allegiance of those taking the oath was explicitly acknowledged; see Sara Mendelson and Patricia Crawford, Women in Early Modern England (Oxford: Oxford University Press, 1998), 397–9, and Anne Whiteman “The Protestation Returns of 1641–2,” Local Population Studies, no. 55 (1995): 19–20. 19 13 Wm. III, c. 6; 1 Geo I, c. 2. Whether to take the oath was extensively discussed by the Duchess of Chandos and her female circle: Rosemary O’Day, Cassandra Brydges, Duchess of Chandos, 1670–1735: Life and Letters (Woodbridge: Boydell, 2007), 54–6. 20 On alien wives and dower, see Coke Litt 31b. 21 Anne Curry, ed., The Parliament Rolls of Medieval England, vol. 10 (London: Boydell and Brewer, 2005), 162–4; Calendar of Patent Rolls Preserved in the Public Record Office: Henry VI, vol. 3 (London: Public Record Office, 1907), 430 22 7 James I c. 2. 23 William A. Shaw, ed., Letters of Denization and Acts of Naturalization for Aliens in England and Ireland, 1603–1700 (Publications of the Huguenot Society of London, vol. 18, Lymington, 1911). At least 88 wives swore the oaths in parliament, the bulk in the first two-thirds of the century. More than 500 wives were made English subjects by endenization. 24 That this was equivalent to making the children natural subjects is assumed by many later commentators. But Kim, Aliens in Medieval Law, 158, emphasizes the change of language in the act naturalizing the children of

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three English merchants married to alien wives (33 Henry VIII c. 25), whose children are to be “henceforth … kings natural subjects as lawfull persons borne within this Realme of England.” 25 25 Edw III c. 1 (italics added). 26 Much ink has been spilled explicating “fathers and mothers,” especially by Francis Plowden, An Investigation of the Native rights of British Subjects (London, 1784), and A Disquisition Concerning the Law of Alienage and Naturalization (Paris, 1818), but no commentator has argued that these wives did not have their own allegiance. The last sentence of the statute evokes the physical power of coverture: “so always that the Mothers of such Children do pass the Sea by the License and Will of their Husbands.” Kim, Aliens in Medieval Law, 103–25, discusses this sentence in the context of his argument that excluding aliens from holding land arose from the technical difficulties of proving legitimate birth. 27 Many copies survive of a sixteenth-century manuscript discussing the act: Kim, Aliens in Medieval Law, 170. 28 A late example is Charles May, 1698 “of English parents but born out of your Majesty’s allegiance” (Shaw, Letters of Denization, 251). 29 Ninety-seven English families were resident in Elbing in the period 1600– 40; see J.K. Fedorowicz, England’s Baltic Trade in the Early Seventeenth Century (Cambridge: Cambridge University Press, 1980), 55–6. 30 As recorded in inquisitions and depositions in the Duchy of Lancaster files: TNA: PRO DL 4/69/71. 31 The case is recorded in the Duchy Decrees, TNA: PRO DL5/29, fos. 441v, 442. Preliminary proceedings are noted at fos. 320, 328, 338v-9, 342, 380v, 428v, 436. 32 S.R. Gardiner, “Yelverton, Sir Henry (1566–1630),” rev. Louis A. Knafla, Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004; online ed.). 33 Made serjeant at law 1614; see Wilfrid Prest, The Rise of the Barristers (Oxford: Clarendon Press, 1986), 341. 34 Made serjeant 1616; knighted and appointed a Baron of the Exchequer 1639. See Prest, Barristers, 368. 35 Littleton 23 (124 ER 117–21). The manuscript was once owned by Edward Littleton, so the reports were published in his name. Among the many inaccuracies of the report, Stephenson is reported as “Sterson” and the manor is reported as “Minold.” On the reports see Christopher W. Brooks,

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“Littleton, Edward, Baron Littleton (1589–1645),” Oxford Dictionary of National Biography. 36 In the 1650s Eaton was also known by archival references: Justice Kelyng cites it as “Duchy 442 Book of Decrees” (1 Keble 219; 83 ER 909). 37 On escheat generally see Frederick Hardman, “Law of Escheat,” Law Quarterly Review 4, no. 3 (1888): 318–44; and K.J. Kesselring, “Felony Forfeiture in England, c. 1170–1870,” Journal of Legal History 30, no. 3 (2009): 201–26. 38 The statute confirming the abolition of wardship (12 Car. 2, c. 24, s. 8) empowered fathers to appoint guardians for their children, reinforcing another aspect of coverture; see Danaya C. Wright, “De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy,” Law and History Review 17, no. 2 (1999): 247–307. Both mothers’ rights and wives’ allegiance suffered collateral damage in the constitutional battles over prerogative. 39 An initial survey of the Calendar of State Papers Online reveals a number of examples of petitions for escheated lands of traitors, especially in Ireland, some for lack of heirs, and at least one for real property held by an alien (Calendar of State Papers, Domestic Series, of the reign of Charles II, 1663–1664, Vol. 3. Jan 1663-Aug 1664. Vol. LXXVIII., 100. August 1663. Petition of Col. Robt. Phillips to the King for the escheat of Sam. Truelove, mariner, late of Stepney, who being an alien, died possessed of several lands and tenements which are escheated to His Majesty). 40 TNA: PRO DL 4/75/2. Even without Alexander’s felony, there was some authority for treating escheat for alienage like corruption of blood, but most held that land would pass to the next heir. In a 1444 case involving one Adrian of Bruges, Hil. 22 Hen VI, pl. 5 (Siepp No. 1444.005), Justice Newton advised the parties that the issue of one who had crossed the sea without the king’s licence could not inherit and the land would escheat. But by Doctor and Student (1528) as cited in Brooke’s Graund Abridgement (London, 1573), under denizen (pl. 14, and pl. 7), when the eldest son is alien, the land goes to the next available heir rather than escheat by alienage (discussed by Kim, Aliens in Medieval Law, 156). 41 Baston, “Ward.” 42 The Massachusetts Body of Liberties (1641), http://history.hanover.edu/texts/ masslib.html. 43 “If an English man married a Turkish woman or an Infidel, their issue

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would be able to inherit here.” The glissade from a Polish wife to the more alien “Turk or infidel” may have been an easy extension: Poland was at the edge of “Christian” Europe and had for some time been regarded as the forefront of defence against the expanding Ottoman Empire. 44 7 Coke Rep 17a. Calvin’s Case determined that Scots born after James I’s English accession could hold English land. 45 Bracton is a partial exception. He first says a child of a female serf will be serf, first following the common law rule of bastardy, but then acknowledging this would be true even if the parents (free father, bond mother) were married. But then he adds if the child of such a couple were conceived in a “free bed,” the child would be free. But on the other hand, the child of a villein father and free mother will be villein. Henri de Bracton, de Legibus et Consuetudinibus Angliae, trans. Travers Twisse, 6 vols (London, 1878–83), 1: 30–3. 46 Written by Sir John Fortescue (ca 1397–1479), published in English as A learned commendation of the politique lawes of Englande (London, 1567) and many times reprinted. 47 Coke argued for a simultaneous allegiance in Calvin’s Case, allegiance to the king’s body and to the land of birth. Theorists also recognized that a dual allegiance was required temporarily of a resident alien. 48 A puritan, serjeant at law, Speaker of House of Commons. 49 Probably Sir John Walter, d. 1630. 50 Troy O. Bickham, “Eaton, Theophilus (1590–1658),” Oxford Dictionary of National Biography. Yelverton was not so radical, but he was a strong supporter of a preaching ministry, and thus probably involved with the “feofees for impropriations” in which Crewe and Yelverton’s nephew Christopher Sherland were both active. 51 Christopher W. Brooks, “Croke, Sir George (ca 1560–1642),” Oxford Dictionary of National Biography. 52 Not Cramford, as reported. 53 Henryk Zins, England and the Baltic in the Elizabethan Era (Manchester: Manchester University Press, 1972), 179. 54 By Thomas Bacon’s will (TNA: PRO PROB 11/116/553). Various pedigrees submitted to the International Genealogical Index (IGI) (at www. familysearch.org) show Lore as daughter of John Clench and marrying Thomas Bacon.

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55 Information on Francis and Stephenson comes from William Cockayne’s 1599 will (TNA: PRO PROB 11/94/461). Cockley is a very uncommon name; it could easily have been a mishearing or erroneous transcription of Cockayne. Succession to mothers’ names is also suggestive. A pedigree submitted to the IGI by Sharon Fleiner has Francis Cockayne marrying a Gertrude Hancigrouc or Grond, ca 1592. Francis Cockayne’s mother’s name was Elizabeth. Although I have not been able independently to confirm the marriage of Francis with Gertrude, or John with Elizabeth, the balance of evidence is that Gertrude was a member of the Cockayne line. 56 Bacon v. Alston, TNA: PRO C 3/423/22. 57 Gertrude’s attorney, John Curtis of the Inner Temple, whom she married in August 1642, perhaps also already had a personal interest in the case. See Joseph Foster, London Marriage Licenses, 1521–1869 (London, 1887), col. 368: Gertrude is recorded as “aged 22” of Walthamstow, Essex, her parents dead. See also Suffolk Record Office, Ipswich Branch, HA61/436/518. 58 Cro Car 601; 79 ER 1117. 59 Croke (d. 1642) opposed ship money and was generally understood to be a “parliamentarian.” Bramston supported the king on ship money but was discharged from office by Charles in 1642 for failing to join him. Berkeley supported ship money, for which he was later dismissed by parliament (see ODNB entries for each judge). 60 A marginal note in the 1792 edition of Croke’s Reports, later used as a headnote in the English Reports reprinting, gives legal weight to this implied assumption about Elizabeth Cockley/Cockayne’s status: “the daughter of an Englishman, though born abroad, may be an English parent.” 61 A digital word search reveals that this is the first of only three times that this phrase, so notorious in the law of slavery, is used in the vast collection of the English Reports. Coke uses the phrase at 1 Inst 123. 62 See Kim’s discussion, Aliens in Medieval Law, 155–7. Bramston may also have remembered Hyde v. Hill (later reported by Croke), in which it was ruled that if English parents go abroad without licence, the child will be alien. 63 Berkeley, who was appointed to King’s Bench in 1632, was thus not among those judges supposedly polled by Yelverton, but in 1627 he was a rising serjeant at law. 64 An Exact Abridgement of the Reports of that Eminent Lawyer Sir George Crook knight (London, 1658).

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65 Elizabeth’s case has been discussed by numerous scholars, generally as an example of the resistance and resourcefulness of the young woman and as an episode in the development of the partus rule as a foundation of American chattel slavery. Taunya Lovell Banks, “Dangerous Woman: Elizabeth Key’s Freedom Suit – Subjecthood and Racialized Identity in Seventeenth Century Colonial Virginia,” Akron Law Review 41, no. 3 (2008): 799–837, begins to consider the case in the context of allegiance. My reading of the case places more weight on the role of Elizabeth’s godfather, Humphrey Higginson, who was appointed Elizabeth’s guardian by Key using a form of apprenticeship indenture and who was a member of the governor’s council when the case was decided in 1655; see William Hening, The Statutes at Large, 13 vols. (New York, 1823), 1: 408. Many documents in the case are printed in Warren M. Billings, ed., The Old Dominion in the Seventeenth Century: A Documentary History of Virginia, 1606–1700 (rev. ed., Chapel Hill: University of North Carolina Press, 2007), 195–9, and in Frank Walczyk, ed., Northumberland County Record Book (Coram, NY: Peter’s Row, 2002). 66 Northumberland County Record Book, 133. 67 In fact the common law rule of bastardy prevailed until the twentieth century, so in a 1912 case an unwed English mother of a child born abroad could not pass her nationality to her child (I know of no cases on the subject earlier). See the brief discussion by M.S.A., Law Quarterly Review 44, no 2 (1928): 151–3. 68 Henry Swinburne, A Brief Treatise of Testaments and Last Wills (London, 1635), 75–6. 69 Warren M. Billings, “Justices, Books, Laws and Courts in SeventeenthCentury Virginia,” Law Library Journal 85, no. 2 (1993): 285, 287. 70 Joseph Foster, The Register of Admissions to Gray’s Inn, 1521–1889 (London, 1889), 213. 71 Hening, Statutes at Large, 2: 170 (Act of 1662, c. 12). Thomas Morris erroneously suggests that this innovation was merely following the English law of bastardy; see Southern Slavery and the Law, 1619–1860 (Chapel Hill: University of North Carolina Press, 1996), 45 72 Hening, Statutes at Large, 3: 86–7 (Act of 1691, c. 16). 73 Charles Molloy, De Jure Maritimo et Navali; or a Treatise of Affairs Maritime and of Commerce (3rd ed. London, 1690), 358, 367. 74 Discussed by Stretton, “Coverture,” 119.

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75 1 Ventris 422, 86 ER 268. This is so extraordinary an obiter dictum that Francis Plowden believed that Ventris’s report was erroneous (Plowden, An Investigation, 112). However, Keble’s report (1 Keble 673; 83 ER 1176) and Hale’s manuscript notes of his opinion (Lambeth Palace, MS 3479, fol. 131v) confirm his intent. In the manuscript he uses “partus sequitur patrem” rather than “sub potestate viri.” 76 Matthew Bacon is an exception. In A New Abridgment of the Law by a Gentleman of the Middle Temple, 5 vols. (London, 1735), 1: 77, he concludes that reading De Natis in the disjunctive means “if an English Woman goes beyond Sea and takes an alien Husband, the children there born shall inherit her.” 77 Molloy, De Jure Maritimo, 367. Molloy is then cited back as an authority in a note in the 1716 edition of Ventris’s report of Hale’s opinion in Collingwood at 1 Ventris 427. 78 Doe on the Demise of Count Duroure against Jones (1791), 4 TR 301; 100 ER 1031. 79 11 Wm III. c.6; 7 Anne c. 5 para. 3. 80 Parry, “British Nationality Law,” 399. 81 7 & 8 Vict. c. 66, clause 3. 82 1 Mass.Rep. 348 (1805). 83 28 US 242 (1830). 84 Kerber, “Paradox of Women’s Citizenship,” 372–7. 85 The Countess de Conway, 1834 (11 Knapp 364; 12 ER 522), Marie Louise Girardot André in 1821 (discussed in Conway), and Count de Wall’s case (1848) VI Moore 216, 13 ER 666. 86 7 & 8 Vict. c. 66, clause 16. 87 Member of parliament for London, uncle of the feminist William PethickLawrence (Hansard, 3rd ser., vol. 199, cols. 1740, 1741).

9

Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity angela fernandez

Coverture was supposed to operate in the United States in the same way it operated in the rest of the common law world. Generally speaking, a married woman was incapable of owning property or making a contract. She was, like a slave, an extension of her husband’s household and not a full legal person. As William Blackstone famously put it, referencing Sir Edward Coke’s Coke Upon Littleton, “by marriage, the husband and wife are one person in law” and that person was the husband, “under whose wing, protection, and cover, she performs every thing.”1 English law was generally taken to be American law on the point. However, there was in fact significant variation on the topic of one-person in the first half of the nineteenth century in the three northeastern states under consideration here: New York, Massachusetts, and Connecticut. This chapter examines the views of jurists and law textbook writers from these three states and explains the causes of and context for these variations. Tapping Reeve (Connecticut), Nathan Dane (Massachusetts), and James Kent (New York) were important early American jurists who expressed views about marital unity. All three men were “Fading Federalists,” using their legal expertise and their positions as law-book writers and law teachers as a way to continue to exert influence lost to them in the political world. However, they disagreed about the maxim from Coke and Blackstone that husband and wife were one person in law. Where Kent endorsed the conventional English view, both Reeve and Dane disagreed, arguing forcefully against the maxim. The views

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of Reeve and Dane were based on elements of their common New England background, which Kent simply did not share. There were differences, in other words, in the way that the one-person-in-law maxim was received in early America. It was not a mantra for every lawyer and legal writer.

New England Tapping Reeve wrote in his 1816 treatise on the law of husband and wife that “the law does not view the husband and wife as one person.”2 He pointed to a number of examples to support his rejection of “the maxim that the wife has no existence during the coverture, and is destitute of volition.” A married woman could exercise a “naked authority,” that is to say act as an agent for the husband for the benefit of the husband. She could be a guardian and give a receipt.3 “We find her often an active agent, executing powers, conveying land, suing with her husband, and liable to be sued with him, and liable to punishment for crimes.”4 Two chapters of his treatise Baron and Femme dealt with a married woman’s power to will real estate separate to her.5 Case law in Connecticut had gone against him on one-person.6 However, he managed to convince students from his private law school to pass a statute empowering married women to make a will in 1809.7 Nathan Dane included a section on husband and wife in his General Abridgement and Digest of American Law (1823). In it he wrote the following: “The old maxim, once so general and unyielding, that the wife’s existence was incorporated in that of her husband’s, or suspended during the coverture; that she had no will of her own, no volition, no self control, and no power to act but as his servant or agent, now seems almost done away with … The maxim, they are one person in law, according to Blackstone, and other eminent law writers in England … has been almost done away with in time and practice; for numerous are the cases in which baron & feme are viewed in courts of law, as well as of equity, as two distinct persons.”8 Dane gave even better examples than Reeve did of instances in which it made no sense to think of husband and wife as one person. First, a deed or devise of land vests in her (with usufruct to him); “hence as to real estate

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they are clearly two distinct persons in law.” 9 Second, in equity “they are generally distinct persons, and may contract with each other in many cases, and especially with the formality of a trustee.” 10 Third, “if they agree to live separate, this contract between them is recognized in law as well as in equity” and both have to agree to cohabit again.11 Fourth, “in equity she may sue him by her prochain ami” (e.g., for alimony).12 And, fifth and sixth, Dane pointed out, as Reeve did, that “in case of crimes, they are two distinct persons” and a wife may be her husband’s attorney.13 Consider these other examples: wife beating was not self-abuse, murdering one’s wife was not suicide, sex was not masturbation.14 Dane also took up the point about a married woman making a will. In England the Statute of Wills (1540) stated that a married woman could not make a will of land; personal property she could will only with her husband’s consent as all her personal property became his upon marriage (except her paraphernalia). Dane insisted, as Reeve did, that this statute of Henry VIII was “never adopted here.” 15 Even for a conveyance, Dane argued that “by American law, in Massachusetts and Connecticut, if not all the states” allowing a married woman to convey with the husband (her conveying her estate, the inheritance that has vested in her, and he conveying his life interest in that estate) “unquestionably implies she is of a capacity to do it; the maxim she has no existence during the coverture, and no will, has no foundation; for if so, she could not execute a naked power.” 16 Even in English law, the examination for conveyances of her land acknowledged that she has a will that must consent, as the examination is supposed to be for making sure she does act freely.17 Dane wrote: “Enough has been said in this Chapter to shew the notion a wife has no will, is a mere fiction, almost without foundation in fact. She is, in no sense, an idiot, or non compos; nor does the criminal law view her as one, in any case; and we have already seen, in scores of cases, even the laws of property view her as able to convey or devise, and even alone, where her husband has no interest affected thereby, as where she executes a power as trustee, has separate property, and is separated by judicial sentence, or has a husband [who has] excluded her country.” 18 Enough has been said here to show that both of these New England jurists categorically rejected one-person-in-law as a true legal statement.

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New York James Kent began his section on husband and wife in his famous Commentaries with the following statement, cited to Coke (rather than Blackstone): “The legal effects of marriage, are generally deducible from the principle of the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the marital union.”19 Not only did Kent call one-person a principle, as opposed to what Reeve and Dane called it, a maxim, it is something from which he claimed that one could deduce the legal effects of marriage. Where a maxim was something flexible and malleable that one could and perhaps should move safely away from, a principle was scientifically useful and could not be heedlessly discarded. It was something legitimate, profound, and fundamental, deserving of recognition and respect.20 There was no separate Chancery Court in either Connecticut or Massachusetts. However, New York, like England, had such a separate court. This probably made it easier and in some ways more natural, institutionally speaking, for Kent to make statements about what the law was at common law, which could then be qualified with exceptions about what was nonetheless available at equity. Mary Beard’s point in Woman as Force in History was of course that Blackstone had not done this, making categorical statements about the position of married women at law without pointing out the exceptions in equity.21 Kent did exactly the same thing despite the fact that he himself had been Chancellor for nine years and would have known better than anyone the substance and weight of those exceptions. However, it is not surprising to see Kent following the English approach, as he was generally very pro-English in the Commentaries.22 New England, by contrast, came from a puritan past, which often prided itself on a rejection of English law. Cornelia Hughes Dayton has shown in her work on the New Haven Colony and Connecticut that full-blooded “Puritan Jurisprudence” was gone by 1750. Features of what she termed “a Calvinist style of patriarchy” such as rejection of a double standard for sexual misconduct did not survive the eighteenth century.23 Nonetheless, there were residual features that can help explain differences between Kent and

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the New Englanders on this issue of rebellion on one-person. So, for instance, adultery was a very central concern to the New Englanders, whereas Kent took a much more cavalier attitude towards it. Kent thought that allowing total divorce for adultery was a bad idea, preferring the English approach of a partial divorce or separation from bed and board. Connecticut never allowed separation from bed and board, preferring instead full divorce. “Lone husbands or wives, it was believed, were subject to intense temptations to enter into extramarital sexual liaisons – sins that would cause God to frown on New England’s holy experiment.”24 They took seriously, in other words, the biblical injunction: “To avoide fornication, let everie man have his wife, and let everie woman have her owne husband.”25 Connecticut’s divorce policy was the most liberal in New England and the Englishspeaking world and access to total divorce on the grounds of desertion and adultery was relatively commonplace.26 Kent wrote in a distinctly anti-puritan voice on the topic of adultery that the adultery of the husband “ought not to be noticed, or made subject to the same animadversion as that of the wife.” He noted that Montesquieu, Pothier, and Taylor in his Elements of the Law “all insist, that the cases of husband and wife ought to be distinguished, and that the violation of the marriage vow, on the part of the wife, is the most mischievous, and the prosecution ought to be confined to the offence on her part.”27 A double standard was certainly present in puritan jurisprudence. Connecticut used the traditional definition of adultery from the Old Testament as an act committed with a married woman, thereby exempting sex married men had with single or widowed women.28 However, a married man who committed the offence with a married woman could expect as harsh and perhaps more harsh response from authorities than the married woman, at least in the earlier period. There would have been hardly a trace of this kind of opposition to the double standard by the nineteenth century in the population at large; however, conservative religious types like Reeve and Dane would still have been concerned to retain this more egalitarian and moralistic strain in their jurisprudence and would never have written about adultery in the way that Kent did, namely, that it was fine for men and problematic only for women.29 Indeed,

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Reeve expressly rejected the definition of adultery as an offence that could only be committed by or with a married woman.30 A married man’s sexual relationship with an unmarried woman would then be included. Yet the harshness towards women, exemplified most famously in puritan New England’s witchcraft trials and scenarios such as the one portrayed by Nathaniel Hawthorne in The Scarlet Letter, had a point. According to Dane, one of the bad effects of “the old fiction, a wife has no existence and no will” was evident in “the old action of trespass vi et armis for criminal conversation with the plt’s wife.” In this action, the defendant’s connection to the plaintiff ’s wife was presumed to be of violence and force since she was presumed to be “so very destitute of a will, that she could not consent to commit adultery.” Yet, under the criminal law, she could be adjudged to have “wittingly and willingly receive[d] him [the defendant] to her bed, and is as guilty as he is.”31 Women, Dane was keen to emphasize, could indeed consent to the commission of adultery. Kent’s objection to the use of adultery as a ground for total divorce, rather than using the English system of separation from bed and board, was that it led to “fraud and corruption.”32 This is because, as Kent explained, the legislature in 1787 authorized the Court of Chancery to pronounce total divorces, in the case of adultery upon a bill filed by the aggrieved party.33 As Chancellor, he would have seen a number of cases in which, as he put it, “the sin of adultery was sometimes committed on the part of the husband, for the very purpose of the divorce.”34 Given how he felt about men committing adultery, namely, that it was not something the law should take notice of, the objection here was less the one the New Englanders would have had about the commission of the sin and was likely related to sanctioning the practice of committing a fraud on the court over which he presided. Adultery, unless married women were committing it, was not of great concern in Kent’s eyes. He wrote that “all Christian states favour the perpetuity of marriage, and [with] suspicion and alarm watch every step to dissolve it.”35 Although a great admirer of the Romans, he thought they had erred to “permit the liberty of divorce to a most injurious and shameful degree” by allowing either party to renounce the marriage “at pleasure.”36

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Why? An important question here is why Reeve and Dane rebelled on oneperson-in-law. The answer I think is that both Reeve and Dane were embedded in a New England culture in which there was a nascent “women’s rights” voice. Both were associated with elite and middleclass women’s initiatives – in Reeve’s case, revivals, in Dane’s case, temperance – and both of them were against slavery. So, for instance, Reeve’s friend Lyman Beecher talked in a sermon after Reeve’s death about how important Reeve was to “New Divinity” and the revivals and conversion experiences of people in Litchfield during “the Second Great Awakening.”37 Reeve’s first wife, Sally Edwards Burr, was a granddaughter of Jonathan Edwards, the minister who led “the First Great Awakening.” Her brother was the famous Aaron Burr and their father, Aaron Burr Senior, was the president of the “New Light” college in New Jersey that would become Princeton. Her mother, Esther Edwards Burr, was famous for her piety.38 Beecher’s mentor at Yale College was Timothy Dwight, whose mother was another of Edwards’s daughters. Reeve was an active member of the Domestic Missionary Society, the Connecticut Bible Society, and the New England Tract Society.39 He was also the chairman of a group Beecher planned “for the Suppression of Vice and Promotion of good Morals,” run by Reeve’s second wife, Betsey.40 After his post in Litchfield, Beecher went to Boston and became very involved with the temperance movement. One of his daughters, Catherine Beecher, ran a host of revival activities out of her house and school for girls in Hartford, and she also wrote a treatise on domesticity and how to be a good wife and mother.41 Another, his youngest daughter, Isabella Beecher, organized the Connecticut Women’s Suffrage Association.42 And Harriet Beecher Stowe of course wrote Uncle Tom’s Cabin.43 Reeve was involved in one of the famous cases that helped bring a formal end to slavery in Massachusetts, a case that involved a household slave named Elizabeth Freeman, who was known as “Mumbet.”44 Dane was said to have drafted the anti-slavery clause in the North West Ordinance, and he wrote that slavery was inherently morally problematic – not because in his view, blacks and whites were equals but due to the corrupting effect of slavery on white people.45 He was one of the founding members and the president of

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the Massachusetts Society for the Suppression of Intemperance and contributed financially to that organization.46 Kent shared much in common with Reeve and Dane in the sense that all three of these men belonged to the Federalist Party and saw their direct political power decrease in proportion to the loss of influence of that party in their respective states. Each also turned to law-book writing in earnest as a consequence. As Daniel Hulsebosch has put it: “Federalists turned to the nonlegislative dimensions of law and legal training, the areas of legal culture that were beyond the reach of electoral politics … If they could not control decision making directly, they could try to control the raw material on which decisions were made: the reports, treatises, handbooks, and educational institutions that inculcated law’s purpose … [resulting in the] painstaking acculturation of lawyers and judges in a supposedly nonpartisan legal culture.”47 Reeve, Dane, and Kent were all Federalists who did this – Reeve with his school and his treatise, Baron and Femme; Dane with his abridgment, the proceeds from the sale of which were used to hire Joseph Story, whose treatises were produced as a condition of his occupancy of the Dane Professorship at Harvard;48 and Kent with his Columbia professorship and the Commentaries. Reeve had been very vocal in his opposition to the Jeffersonian Republicans shortly after Jefferson’s election as president in 1800, so much so in fact that his newspaper articles landed him a seditious libel prosecution that was subsequently dropped.49 It took some time for power to shift in Connecticut and Massachusetts, until of course the Hartford Convention in 1814–15, which, fairly or unfairly, spelled the death knell for the Federalist Party.50 The Republicans won the state election in 1817 and the so-called “Peaceful Revolution” of 1818 brought in a new state constitution that ended establishment of the Congregational religion and a clearer separation between legislative and judicial powers.51 Reeve reached the age of seventy in 1815 and was replaced in his position as Chief Justice of the Supreme Court by a political rival and rival treatise writer and law-school operator, Zephaniah Swift.52 Reeve print-published Baron and Femme in 1816, calling it a description of English law that he hoped would take root in other states.53 Dane had been involved in the process to ratify the Federal Constitutional Convention, and although he was invited to the Massachusetts

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Convention in 1820, he was not expected to accept.54 He was sixtyeight at the time and had become almost entirely deaf.55 He withdrew from public life and turned in earnest to the completion of his eightvolume A General Abridgment and Digest of American Law (1823) and his “ponderous” six-volume A Moral and Political Survey of America, never published.56 Kent successfully fought at the New York Constitutional Convention in 1821 for the retention of his position as Chancellor, which he was permitted to keep until he retired at the age of sixty in 1823; however, he was unsuccessful in having that age limitation removed from the constitution.57 Many of the reforms adopted at that constitutional convention were intended to decrease the political influence of judges, including the abolition of the Council of Revision that could review laws passed by the state legislature.58 Kent was on that Council as Chancellor, along with the Governor and judges from the Supreme Court. He went kicking and screaming into this forced retirement, thought about founding a private law school in Albany like Reeve’s, although this never materialized, returned to private practice, and took up his professorship at Columbia again.59 The first volume of his Commentaries on American Law appeared in 1826. What is important to appreciate is that despite the similarities between these three men, old Federalists, and the way that age, reform, and democratic change in each of their respective states put them out to pasture, Kent was not coming culturally from the same place as the New Englanders. He did not eschew all religion, but he saw the causes that Reeve and Dane associated themselves with, staples of elite New England philanthropy and activism in which “respectable” women were very involved (revivals, temperance, abolition), as misguided forms of extremism.60 So, for instance, his biographer, John Theodore Horton, tells us that Kent thought that revivals were “crazy” and “if possible, he was more contemptuous of the temperance movement than of abolitionism.” 61 He continues: “‘Our religionists are fanatics,’ he said, ‘our temperance societies are pushing to disgusting excess and becoming intemperate in temperance.’ When a committee called upon him to urge that he sign a prohibitionist pledge, he stoutly refused to grant their request. ‘Gentlemen,’ he said, ‘I refuse to sign any pledge. I never have been drunk, and by the blessing of God I

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never will get drunk, but I have a constitutional privilege to get drunk and that privilege I will not sign away.’” 62 These quotations are from Kent’s letters to his brother Moss and would have contained his frank appraisal of what he thought “religionists” like Reeve and Dane were up to with revivals, temperance movements, and abolition. Horton wrote that “both temperance and abolitionist agitation proceeded, in his [Kent’s] analysis, from those extremes of opinion which he [Kent] branded with the name of ultraism and regarded as dangerous to the public taste and tranquility.” 63 Just how religious Dane was is a matter of debate. Short biographical accounts refer to the fact that he never skipped church on Sunday, even when his deafness had reached the point where he could not hear a word of the sermon.64 He certainly took an academic interest in religion. The first chapter of A Moral and Political Survey of America surveys of many of the world’s religions (e.g., Confucianism, Hinduism, Buddhism, Islam).65 He expressed a bias towards rationalism in religion and was extremely suspicious of revelation, i.e. miracles, enthusiasms, and what he called “inspiration.” And he appears to have agreed with the characterization of religion as a necessary and “pious fraud.” This cerebral approach to religion was consistent with the movement away from what Perry Miller famously called the “head” over the “heart” in Congregationalism.66 Proponents of New Divinity and the Second Great Awakening like Beecher, Reeve, and Dwight were concerned to show that unlike the First Great Awakening, which garnered criticism for being overly emotional, this way of breathing new life into Calvinist doctrine was oriented around light rather than heat. Gone were the three- or four-day camp festivals. Revivals were “quiet and subdued” affairs, “unaccompanied by exuberance and physical manifestations.”67 Meetings were held in churches or private houses and were led by settled ministers, not itinerant preachers.68 “In all gatherings there was an insistence on calm, austere behavior.”69 And conversion experiences themselves were thought to be the product of a slow, rational process rather than a sudden, emotional one. I have been unable to find out which church Dane went to and which Protestant sect he belonged to. Things were different in Massachusetts than Connecticut given the presence of Unitarianism, the other more liberal branch of Edwards’s descendants that eventually

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gave birth to the transcendentalism of Boston-based Whig culture.70 Dane was unlikely to have been associated with it and would have been suspicious of even the more conservative side of Congregational or Presbyterian revivalism (both sects contained pro and con revivalists). So, for instance, he wrote that “an enthusiastic new light views the best morals in his Bible as if but of little value, and almost below his attention, whilst he wraps himself in its mysteries with fervent zeal.” 71 This was not written by someone who thought of himself as a “New Light.” The less emotional religion was in Dane’s eyes the better. The value of religion lay in its ability to promote good morals and manners. The law was one way to try to secure these. Dane and Reeve then both embodied a particular New England perspective, which helps explain their rebellion on one-person-inlaw and promotion of legal rights for married women. However, little or no recognition of the New England perspective survived. Conservatives like Kent would not have wanted to acknowledge it. They wanted to make truth by continuing to insist on one-person. So, for instance, one of Reeve’s students, who settled in the Northwest Territory, Ohio, published a book for women setting out their legal rights and duties.72 Reeve had evidently convinced him on the point about allowing married women to make wills, as he noted with pride that “in Ohio the rule [was] as liberal as possible” and calling a rule to the contrary “one of the most curious pieces of barbarism extant.”73 However, this student asserted an unwavering allegiance to one-person, writing, referring explicitly to Blackstone, that “the first great principle of Scripture, the unity of husband and wife, is repeated by the law. They are in law, one person.”74 Reformers who might have appreciated the “progressiveness” in Reeve and Dane rejecting oneperson probably did not acknowledge it, as it was in their interests to paint the situation in as dire terms as possible in order to make a compelling case for change. As Dirk Hartog has put it, Blackstone provided “the common currency of legal and political descriptions of marriage, relied on by voices on all sides of the political spectrum.”75 Yet in doing that, in using Blackstone to stand for the truth about married women’s property rights in the nineteenth century, we cover over a more interesting truth and reality about just how contentious this was.

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How Do You Kill a Legal Fiction?76 Dane thought that adherence to one-person had to do with two things: (1) “an undue adherence to fictions and old maxims of law”; and (2) “religion, morality, and public policy of a rigid cast.”77 What Reeve and Dane did not seem to understand was that it was precisely because one-person was a fiction that it could not be disproved by pointing to reality. Yes, reality would throw up a large number of exceptions, but the exceptions could never kill the fiction because it was only ever meant to be a fiction, selectively employed. No one thought that husband and wife were literally one person.78 The one way in which the one-person fiction was literal, i.e. in the sex act, was the one thing that was never mentioned, although it is almost certainly where this comes from (the idea in the Bible of husband and wife as “one flesh”) and might be what Dane had in mind (at least indirectly) when he referred to “religion, morality, and public policy of a rigid cast.” Interestingly, some of the more conservative judges saw a difference between the sexual activity of a married woman with separate property and one without. The former came dangerously close to being seen to be more like a kept mistress than a legitimate wife.79 Her separate property threatened to turn her marriage into “little more than legalized prostitution” with “no higher object than sexual intercourse, and the sanction of legitimacy for … offspring,”80 as she was setting herself against the interests of her husband and the common union. Marriage ought to be understood as, in their words, “a union of hearts and interests.” 81 The point that women were separate from their husbands in so many ways would be seen as insignificant given the importance of the way in which they were one person, literally in the sex act. The old moral, legal, or religious commitment to its centrality rendered everything else insignificant, an exception. We might recall here the old requirement of consummation of a marriage to its legal validity.82 We obviously view this very differently than people in the early nineteenth century would have, given differences in the way that we view sex, not least the uncoupling of sexual pleasure and reproduction for both men and women. However, “oneness” for those in the early nineteenth century was not just more likely to have been seen through a religious lens.

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It was probably also influenced by the way that people in the early modern period saw the boundaries between persons as porous.83 So, for instance, a commingling of spirit was thought to arise from any activity involving the exchange of bodily fluids like kissing or even sharing a meal or drinking from a common cup.84 Actual intercourse then would have been thought of as really capable of making two persons one in a deep and profound sense that could be seen to justify making it the rule and anything that did not fit the exception. When does the number of exceptions reach a tipping point and swallow the general rule, Reeve and Dane asked. Why attach all this prima facie presumption to the sex act giving us one-person, we might add, especially once bodies are no longer viewed as porous between persons? On the question of rule/exception, it must be noted that the exceptions themselves were mostly things that would be of use and benefit to a married man.85 So, for instance, it would be convenient to him for his wife to be able to give a receipt in the event that he was not at home or available to give it. So too, allowing her to act as a guardian might be to his liking if he did not want to trouble himself with it. Certainly empowering her to act as his attorney and exercise a “naked authority,” something that was by definition explicitly to his benefit, would be helpful to him. Even her ability to will her separate property would usually benefit him, as she would most often choose him to will her property to – “who better to give her property to than her own dear and loving husband?”86 Allowing her to be liable for her own debts when she was living separate from him was also to his benefit, as he would not be responsible for paying those debts. He would be unlikely to disagree with making her (and not him) responsible for her crimes. Indeed, one might conclude from these examples that the fiction actually operated in exactly the way that male jurists meant it to, namely, selectively, and the exceptions were not actually exceptions but were rather coming in and out of the fiction in just the way that was intended. In other words, married women were meant to move in and out of being under cover as was thought to be desirable and convenient.87 We must note, however, that exceptions to one-person were not to the exclusive benefit of the husband. A wife might actually sue her husband in equity, she might will the fee simple of her real estate to someone other than him, and it was obviously of great value to her

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to be able to obtain credit if she lived separate from him. However, this was simply the machine in operation, and it was a machine with many moving parts. The important thing to retain was the rule/exception formulation. Yet Reeve and Dane had a point. If there were enough exceptions and those things were important – more important than the “oneness” that came from the sex act – perhaps they could eventually swallow the rule and in that way kill the legal fiction. This starts to look very much like a matter of perception. Was the glass half-empty or half-full? Were husband and wife one person, in which case she could not make a contract with her husband except via a trustee, or were they “generally distinct persons [who] may contract with each other in many cases, and especially with the formality of a trustee”?88 It really could be put either way. The law/equity distinction created a lot of room for play, allowing the rules to be stated in a conservative way, while providing the actual wiggle room that men and women needed for their benefit. Without a prior commitment to the paradigmatic nature of one-person, the content of which was supplied by what Dane called “religion, morality, and public policy of a rigid cast” and the way that it seems to have silently but strongly put sex at the heart of things, little could be said for viewing it in the conservative way.

Cautionary Note So were Reeve and Dane “feminists”?89 Such a question is in one sense anachronistic. However, it is worth asking if we can see in their thought something that we would consider today to be progressive in some way.90 We know a lot about how later moral reform initiatives that involved middle-class women were seriously problematic. So, for example, in the Progressive era, women’s courts doling out “feminized justice” were not necessarily engaged in “feminist justice” in the sense that they targeted the poor, the wrong kind of woman, and so on.91 That kind of policing of morality was very much present in the New England/Evangelical culture that Reeve and Dane belonged to, as it was in Dane’s emphasis on one-person leading to the untenable conclusion that a married woman was unable to consent to adultery.

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A feminist would certainly want to say that a married woman could so consent but would question, I think, the emphasis being put on the desire to police female sexuality. Reeve’s own sex life raised some eyebrows. Shortly after his wife’s death, he married his much younger housekeeper. Elizabeth (Betsey) Thompson was twenty-four in 1798, making her twenty years younger than Sally and thirty years younger than Reeve.92 In the months after Sally’s death, the only child of Sally and Reeve’s marriage, Aaron Burr Reeve, was already calling Betsey “Mama.” 93 Sally had been in delicate health for many years. One of Reeve’s students thought that the marriage was a mark of Reeve’s eccentricity.94 This kind of practical response to a wife and mother’s death – marry the woman who is already in the house and who has been mothering the child/children – is similar to the practice of widowed men marrying their dead wife’s sister.95 One-person-in-law made this incest according to some – a deceased wife’s sister would be the widower’s sister and marrying her should be prohibited.96 However, this happened so frequently (e.g., when a sister moved in after her sibling’s death in childbirth to help care for the household) that it was impractical to make it illegal, at least outside England.97 Dane was very consistent in his condemnation of sex-related transgressions. So, for instance, in A Moral and Political Survey of America, ancient Germany garnished the highest marks of the societies surveyed, higher than either Greece or Rome in terms of their political system and for “morals and manners.” Adultery was rare, according to Dane, and unpardoned when found, polygamy also infrequent, infanticide and restraining reproduction a sin.98 Dane called it a wise measure taken by the ancient Germans “to preserve female chastity” to fine “a man for touching a woman not his wife, and according to the part he touched.”99 He tied the principle of “one wife at the same time, and female rights generally” to Christianity and noted that it was “the law of the Roman government from its origin, and generally of the Greeks in practice, and other European nations when pagans.” 100 He thought ancient Germany was the place which “laid the foundation of female rights.” 101 Yet, it was also a place where “unnatural prostitutes” or “lewd women” were, along with cowards, “smothered in the bogs in order to conceal effeminacy and pollution.” 102

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When Dane wrote about women’s rights, or when Reeve’s book was noted as being in favour of women’s rights, it was not the kind of orientation we would feel comfortable calling feminist today. Indeed, it is not clear it was even equality-oriented. Dane was inconsistent on this. For instance, he wrote at one point that “there is nothing in the history of mankind that is a better test of the pure morals, wise government, and even of correct religion in a nation, than the happy condition and generous treatment of women as friends and equals.”103 However, in this same passage he goes on to say that women should be treated “as companions not equals; as justly entitled to personal liberty, and to share in property; to be executors, administrators, guardians, and witnesses as well as men, to education for usefulness and refinement to be helpmates to men, and not as mistresses or courtesans to charm and seduce them.” 104 The point and the advancement, as Dane saw it, was to cease to treat women as slaves or sexual objects. In what he called the “savage state” women were “slaves and drudges[,] ugly and forbidding; the men cold and unfeeling attached to women by animal instinct only, and void of sentimental love.” 105 However, “the last stages of refined corruption” were equally problematic: “women were again in a miserable condition; as a large body of them became the mere instruments of luxury.” 106 He saw “the middle stages” as one where men would have “the sentimental feelings of love, as well as instinctive desires, in the highest degree.” 107 This was a state in which “men treat[ed] women with lenity and indulgence” and “in which education and the social intercourse of the sexes, make generous men, and chaste women; as the want of them make mere savages in the woods, or animal lovers in opulent cities.” 108 In this stage, a man learned “to treat a woman well in principle” and as an “end for his own reputation.” 109 Both Dane and Reeve likely saw themselves as belonging to this civilized “middle stage” and, indeed, thought of their own marriages along these companionate lines, as vehicles for expressions of sentimentality and generosity. Reeve, for instance, was reported to have allowed his first wife Sally to remain in control of the property she brought into the marriage.110 Dane thought “women held their respectable rank in America, by having secured to them by the laws, nearly the same rights men have.” 111 Equality was not the point, at least not the most important point, and sexual independence was

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clearly not contemplated; yet something friendly towards women was being expressed. These were women’s rights as these men would have conceived of them. As limited as these might seem to us now, it is remarkable to find someone like Dane casting his eye over so many different cultures and religions and speaking approvingly of the nearequal treatment of men and women whenever possible.112 It would be misguided, I think, to look in Reeve and Dane for expressions of feminism that square well with our own. What is important, however, is to register that something significant was afoot here. The nineteenth century was not some homogeneously regressive period that can or should be summed up in the one-personin-law principle (as per Kent) or maxim (as per Reeve and Dane). When one-person came to be indelibly associated with Blackstone, I would venture to say that it became in effect a mantra that covered in a mindless (rather than a mindful) way a more interesting reality and truth. It was part-truth, part-fiction, even as a legal fiction. However, one-person was not an effortless triumph in the early American period. The New Englanders certainly put up a good fight in their didactic texts, even if what motivated them and what they put forward was ultimately conservatism differently configured, what Cornelia Hughes Dayton has called one of many “different styles and strands of patriarchy.”113 The point is to try to understand what shape this particular reconfiguration took and create space for it in our ordinarily monolithic understanding of the Blackstone mantra and its reception. NOTES This essay has benefited greatly from presentation in its early stages at the wonderful workshop organized by the editors of this volume in Halifax, Nova Scotia, on “Married Women and the Law in Britain, North America and the Common Law World” in June 2011; at a Faculty Workshop at my home institution in October 2011; and on a panel at the annual meeting of the American Society for Legal History in November 2011. 1 William Blackstone, Commentaries on the Laws of England (Oxford, 1765), 1: 430.

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2 Tapping Reeve, The Law of Baron and Femme; of Parent and Child; of Guardian and Ward; of Master and Servant; and of the Powers of Courts of Chancery (New Haven, 1816), 89. 3 Ibid., 121. 4 Ibid., 130. 5 See ibid., 137–60. 6 “By the common law, the husband and wife are considered as one person in law, the existence of the wife being merged in that of the husband, or suspended during the coverture.” Dibble v. Hutton, 1 Day 221 (Ct. Sup. Ct. Errors 1804) at 235. 7 See Angela Fernandez, “Tapping Reeve, Coverture and America’s First Legal Treatise,” in Law Books in Action: Essays on the Anglo-American Legal Treatise, ed. Angela Fernandez and Markus D. Dubber (Oxford and Portland, OR: Hart, 2012), 63–81. 8 Nathan Dane, General Abridgment and Digest of American Law (Boston, 1823), 1: 330–1. 9 Ibid., 332. 10 Ibid. 332–3. 11 Ibid., 333. 12 Ibid. 13 Ibid. 14 Hendrik Hartog, Man and Wife in America: A History (Cambridge, MA: Harvard University Press, 2002), 107. 15 Dane, Digest, 1: 373. 16 Ibid., 370. 17 Ibid., 371. 18 Ibid. 19 James Kent, Commentaries on American Law (New York, 1827), 1: 109. 20 Thanks to Markus Dubber for making this point. 21 See Mary Beard, Woman as Force in History: A Study in Traditions and Realities (New York: Macmillan, 1946). 22 See, e.g., Kent, Commentaries, 1: 102–3: “the weight of judicial authority appears, however, to be decidedly in favour of the binding force and universal application of the doctrine of English law.” 23 See Cornelia Hughes Dayton, Women before the Bar: Gender, Law, and Society in Connecticut, 1639–1789 (Chapel Hill: University of North Carolina

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Press, 1995); Cornelia Hughes Dayton, “Was There a Calvinist Type of Patriarchy? New Haven Colony Reconsidered in the Early Modern Context” in The Many Legalities of Early America, ed. Christopher L. Tomlins and Bruce H. Mann (Chapel Hill: University of North Carolina Press, 2001), 337–56. 24 Dayton, Women before the Bar, 116. 25 1 Corinthians 7:2, quoted in ibid., 119. 26 The situation in Massachusetts was different, where it was more English and where separation from bed and board was available. England and Massachusetts each allowed fewer than 150 divorces between 1670 and 1799; Connecticut magistrates granted nearly 1,000. See Dayton, Women before the Bar, 112. 27 Kent, Commentaries, 1: 89. 28 Dayton, Women before the Bar, 32. 29 Ibid., 215–16, where Dayton notes that the protests of mid-eighteenth-century evangelicals over the double standard and general declension in morals were taken up later by female moral reformers of the 1820s and 1830s. 30 “In the case of adultery, it may be proper to remark, that it is the adultery known to the common law, as understood in the spiritual courts in England, which furnished cause for divorce; which is, where a married person has illicit commerce with any person. It is not material whether the person with whom the offence be committed, is single or married; which is a more extensive offence than the adultery punished by our statute [i.e., in Connecticut], which does not punish the offence of illicit commerce as adultery, unless committed by or with a married woman.” Reeve, Baron and Femme, 207. 31 Dane, Digest, 1: 337–8. 32 Kent, Commentaries, 1: 88. 33 Ibid., 82. 34 Ibid., 88 n.g. 35 Ibid., 97. 36 Ibid., 83. 37 Lyman Beecher, “Memoir of the Honourable Tapping Reeve,” Christian Spectator (February 1827): 62–71, 66–7. 38 Suzanne Geissler, Jonathan Edwards to Aaron Burr, Jr.: From the Great Awakening to Democratic Politics (New York and Toronto: Edwin Mellen Press, 1981), 101–2. See also The Journal of Esther Edwards Burr, 1754–1757,

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ed. Carol F. Karlsen and Laurie Crumpacker (New Haven, CT: Yale University Press, 1984). 39 Jacqueline Calder, “Life and Times of Tapping Reeve and His Law School” (paper prepared pursuant to a master’s degree, University of Vermont and Litchfield Historical Society Internship, 1978), 46. Copies available at the Litchfield Historical Society and Yale Law School Library. 40 Autobiography of Lyman Beecher, ed. Barbara M. Cross, 2 vols (Cambridge: Harvard University Press, 1961), 1: 186–8. 41 Kathryn Kish Sklar, Catharine Beecher: A Study in Women’s Domesticity (New Haven, CT: Yale University Press, 1973), 64–72. 42 Ellsworth S. Grant, The Miracle of Connecticut (Hartford: Connecticut Historical Society, 1992), 259–60. 43 Although the apocryphal story contends that Abraham Lincoln attributed the start of the Civil War to this book, the Beechers were actually less proabolition than was commonly thought even by their contemporaries. See Autobiography, 1: 115–16. See also Sklar, Catharine Beecher, 132–4. 44 Arthur Zilversmit, “Quok Walker, Mumbet, and the Abolition of Slavery in Massachusetts,” William and Mary Quarterly 25 (1968): 614–24. 45 Andrew J. Johnson, The Life and Constitutional Thought of Nathan Dane (New York; London: Garland, 1987), 154–6 (on slavery). 46 Henry A. Chaney, “Nathan Dane,” The Green Bag 3 (1891): 548–58, 555–6. See also “Memoir of Hon. Nathan Dane,” Proceedings of the Massachusetts Historical Society 2 (April 1835): 6–10, 8, which calls the group “the Massachusetts Temperance Society”). 47 Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 278–9. 48 G. Blaine Baker, “Story’d Paradigms for the Nineteenth-Century Display of Anglo-American Legal Doctrine,” in Law Books in Action: Essays on the Anglo-American Legal Treatise, ed. Angela Fernandez and Markus D. Dubber (Oxford and Portland, OR: Hart, 2012), 82–107, 89. 49 Robert George Wetmore, “Seditious Libel Prosecutions in 1806 in the Federal Court in Connecticut: United States v. Tapping Reeve, and Companion Cases,” 57 Connecticut Bar Journal (1983): 196–210. 50 James M. Banner, To the Hartford Convention: The Federalists and the Origins of Party Politics in Massachusetts, 1789–1815 (New York: Knopf, 1970). 51 M. Louise Greene, The Development of Religious Liberty in Connecticut

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(Boston and New York: Houghton, Mifflin, 1905; New York: Da Capo Reprint, 1975), 473. 52 For comparisons and conflicts between Reeve and Swift, see Fernandez, “Tapping Reeve, Coverture and America’s First Legal Treatise.” 53 Reeve, Baron and Femme, preface. 54 Chaney, “Nathan Dane,” 557. Dane “was chosen a member for the prestige of his name, although it was understood beforehand that he would not attend.” 55 Dictionary of American Biography, s.v. “Nathan Dane.” 56 The word “ponderous” is from Chaney, “Nathan Dane,” 557. The original manuscript of Nathan Dane’s A Moral and Political Survey of America is the property of Wellesley College Library, Special Collections. I rely here on a copy digitized from microfilm in 2010 by the Institute for Intermediate Study (IFIS) in Monroe, Connecticut. 57 John Theodore Horton, James Kent: A Study in Conservatism, 1763–1847 (New York: D. Appleton-Century, 1939), 245–51. 58 Ibid., 251–2. 59 Ibid., 267–8. 60 Ibid., 115, where Horton notes that Kent always rented a pew in the Wall Street Presbyterian Church. 61 Ibid., 309. 62 Ibid., 309–10. 63 Ibid., 310. 64 “Memoir of Hon. Nathan Dane,” 9. A close version of this was repeated in Chaney, “Nathan Dane,” 557, which was based on the account given in Andrew Preston Peabody, Harvard Graduates Whom I Have Known (Boston, New York: Houghton, Mifflin, 1890), 12–26, 22. 65 The chapter is called “Ancient Morals and Theology, Their Influence Traced to America” and it runs from pp. 1 to 120 of the manuscript. The purpose of the survey was to assess the extent to which those religions were consistent or inconsistent with Christianity. Dane usually wrote quite respectfully of nonChristian religions and cultures in this part of the book, with the arresting exception of Judaism and Jews. See pp. 70–91. 66 Perry Miller, The Life of the Mind in America: From the Revolution to the Civil War (New York: Harcourt, Brace, and World, 1965). 67 Charles Roy Keller, The Second Great Awakening in Connecticut (New Haven, CT: Yale University Press, 1942), 53. 68 Ibid., 53–4.

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69 Ibid., 54. 70 Ibid., 229. See also Daniel Walker Howe, The Unitarian Conscience: Harvard Moral Philosophy, 1805–1861 (Middletown, CT: Wesleyan University Press, 1970). 71 Dane, A Moral and Political Survey of America, vol. 1, chap. 1, p. 66. 72 Edward Deering Mansfield, Legal Rights, Liabilities, and Duties of Women (Salem, 1845). 73 Ibid., 211–12. 74 Ibid., 263 (emphasis in the original). 75 Hartog, Man and Wife in America, 116. 76 Thanks to Karen Knop for putting the question to me in this way. 77 Dane, Digest, 1: 337 78 See Christopher Tomlins, “Affairs of Scale: Toward a History of the Literature of Law,” in Law Books in Action: Essays on the Anglo-American Legal Treatise, ed. Angela Fernandez and Markus D. Dubber (Oxford and Portland, OR: Hart, 2012), 220–42, 230. 79 Hendrik Hartog, “Wives as Favorites,” in Law as Culture and Culture as Law: Essays in Honor of John Philip Reid, ed. Hendrik Hartog, William E. Nelson, and Barbara Wilcie Kern (Madison, WI: Madison House, 2000), 292–321, 308. Thanks to Tim Stretton for direction to this source. 80 Quoting New York judges, Chief Justice Ambrose Spencer and Justice Jonas Platt. Ibid. 81 Ibid., 309. 82 Thanks to Edward Iacobucci for making this point. 83 See John R. Gillis, “From Ritual to Romance: Toward an Alternative History of Love,” in Emotion and Social Change: Toward a New Psychohistory, ed. Carol Z. Stearns and Peter N. Stearns (New York: Holmes and Meyer, 1988), 90–121, 93. 84 Ibid., 91. 85 Thanks here to Yasmin Dawood for asking when if ever exceptions to the fiction operated to the disadvantage of husbands. 86 Hartog, “Wives as Favorites,” 307. 87 Moving in and out of legal personhood actually seemed to be a feature of those who were supposed to lack it. Slaves, for instance, could inherit under wills and speak in a court of law as witnesses in certain cases even though they were supposed to be the quintessential category of non-person: property. See Adrienne Davis, “The Private Law of Race and Sex: An

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Antebellum Perspective,” 51 Stanford Law Review (1999): 221–88; Laura F. Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009), 87, 128. Thanks to Mayo Moran for making this point. See Mayo Moran, “The Mutually Constitutive Nature of Public and Private Law,” in The Goals of Private Law, ed. A. Robertson and H.W. Tang (Oxford: Hart, 2009), 17–45, 28, who calls attention to this point and discusses “the shifting status of women who married, their movement into and then eventually out of a property-like status.” 88 Dane, Digest, 1: 373. 89 See Tomlins, “Affairs of Scale: Toward a History of the Literature of Law,” 229, who concludes from my description of Reeve that he was a feminist. 90 Hartog, for instance, writes that Kent, “sounding a bit like a late twentieth century radical feminist, characterized marriage as a relationship of such overwhelming structural domination that granting a woman a formally independent right to use her own property, without the interposition of trustees, was nothing but a sham independence, one that merely subjected her to the greater power of her husband.” Hartog, “Wives as Favorites,” 307. Hartog sees Kent as more progressive than I do based on an analysis of a separate property case Kent was passionate about, Jacques v. Methodist Episcopal Church, in which Kent wanted to invalidate a wealthy widow’s decision to give property to her second husband during the marriage in violation of a trust that had been set up before the marriage for her separate property. See “Wives as Favorites,” 302–11. Hartog acknowledges the importance of Reeve’s book, calling it “the most important legal treatise dealing with marriage during the first half of the nineteenth century” and noting that Reeve “entirely avoided the language of unity.” See Man and Wife in America, 107. However, Hartog describes Reeve as “entirely conventional in his assumption that marriage meant a woman had placed herself in necessary and inescapable relation to her husband, under his legal power” (Man and Wife in America, 100). Hartog also notes that Reeve “constantly pushed towards greater contractual freedom for wives, more so than any other treatise writer. Yet, he saw coercion as the looming shadow behind all of the doctrinal constraints” (“Wives as Favorites,” 299n12). It sounds like Hartog would be suspicious that Reeve’s support for separateness was really regressive rather than progressive. However, Hartog appreciates that Reeve too was wary of coercion.

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91 Angela Fernandez, “Feminized Not Feminist Justice at the Toronto Women’s Court,” review of Amanda Glasbeek, Feminized Justice: The Toronto Women’s Court, 1913–1934 in JOTWELL (The Journal of Things We Like (Lots) University of British Columbia Press, 31 March 2011, http://legalhist.jotwell. com/. This was already starting to happen in Connecticut once fornication was decriminalized for white men. In the 1750s and 1760s, fornication starts to become a crime only for women and increasingly disreputable women – e.g., poor women, domestic servants, women in interracial relationships, women who repeatedly bore children without marrying. See Dayton, Women before the Bar, 161. 92 Calder, “Life and Times of Tapping Reeve,” 14. 93 Marian C. McKenna, Tapping Reeve and the Litchfield Law School (Dobbs Ferry, NY: Oceana, 1986), 93. 94 Edward Deering Mansfield, Personal Memories, Social, Political, and Literary, with Sketches of Many Noted People, 1803–1843 (Cincinnati: R. Clarke, 1879), 127. 95 See Charlotte Frew, “The Marriage to a Deceased Wife’s Sister Narrative: A Comparison of Novels,” Law and Literature 24, no. 2 (2012): 265–91, 273–80, which describes two English novels in the 1870s in which a strong “mother narrative” is used to mitigate the more worrisome sexual dimensions of this relationship and thus harness pro-reform sentiment to overrule the 1835 English Act that made “affinity marriage” illegal in England. Thanks to Krista Kesselring for direction to this source. 96 Hartog, Man and Wife in America, 106. 97 Kent noted that Noah Webster had discussed this issue in his 1790 lectures and that it had been made lawful in Connecticut by statute. See Kent, Commentaries, 1: 73. Frew argues that greater permissiveness on the issue was possible in the colonies, specifically Australia in the later nineteenth century, due to the fact that class distinctions and social status were less significant than they were in England, or, at least, status and wealth were free to be made. See “The Marriage to a Deceased Wife’s Sister Narrative,” 282–3. The United States would have been the same in the early nineteenth century. 98 Dane, A Moral and Political Survey of America, vol. 1, chap. 3, p. 226. 99 Ibid., 227. 100 Ibid., vol. 1, chap. 1, p. 14 (although noting that another scholar thought Christianity permitted polygamy).

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101 Ibid., vol. 1, chap. 3, p. 232. See also chap. 1, 93–4: “To the old Germans from whom we have naturally and politically descended many fundamental principles of law and liberty, indirectly and many of our best principles on which women are treated in the marriage state.” 102 Ibid., vol. 1, chap. 3, p. 225. It seemed as if an “unnatural prostitute” might have referred to a gay prostitute given the reference here to effeminacy. However, I think the effeminacy refers to the cowards, as Dane wrote a number of pages later: “we have seen that lewd women were of no importance, but, with cowards, were sunk in the bogs.” See 243. 103 Ibid., 240 (emphasis added). 104 Ibid., 241 (emphasis added). 105 Ibid., 240–1. 106 Ibid., 241. Dane likely had Rome in mind here. He wrote in his chapter on ancient Greece and Rome that “Roman greatness unquestionably stood on morals and religion, frugality and discipline, and perished in luxury and ease” (vol. 1, chap. 2, p. 154). 107 Ibid., vol. 1, chap. 3, p. 241. 108 Ibid. 109 Ibid. 110 See Helen Evertson Smith, Colonial Days and Ways, As Gathered from Family Papers (New York: Century, 1900), 304–5. 111 Dane, A Moral and Political Survey of America, vol. 1, chap. 3, p. 240 (emphasis added). 112 See, for example, ibid., vol. 1, chap. 1, p. 62: Dane reports that in Egypt, women were “early well treated, in most respects, by the men, who considered them as equals and companions; generally had but one wife, and no concubines. They rightly preserved virgin chastity by law and manners; allowed their women personal liberty, daughters to inherit estates with sons; and widows a support out of their husbands’ estates” (emphasis in the original); see also ibid., 102, where Dane points out that there was no primogeniture among the ancient Greeks and they “had the highest regard to the marriage state and the happiness of domestic life; they held adultery to be a crime of the blackest dye; a second marriage though not absolutely forbidden was disreputable.” 113 Hughes Dayton,“Was There a Calvinist Type of Patriarchy?” 338.

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“Concealing Him from Creditors”: How Couples Contributed to the Passage of the 1870 Married Women’s Property Act mary beth combs

Late nineteenth-century England adopted a law that forever changed the property rights of married women: the Married Women’s Property Act of 1870 gave women married after 1870 the right to own and control many forms of personal property and earnings made in a trade carried on separately from the husband. Contemporaries hailed the act as a major achievement of the women’s movement because they believed that it had the potential to alter women’s independence, investment decisions, and wealth. In 1857, a slightly different version of the bill to reform the property rights of married women was defeated in parliament. In the 1869 vote, however, liberals and conservatives supported the legislation. A number of theories exist about why the act was passed in 1870 but not in 1857, and what events, specifically, led to the legislative change. That married women received property rights at all, in a malegoverned society where men controlled much of the property and women had no right to vote in parliamentary elections, has consumed the curiosity of all the major contributors to the study of married women’s property legislation on both sides of the Atlantic. In the literature that focuses on the legal and parliamentary history of the act, scholars agree that the motivations behind its passage were complicated, and as a result there exist a number of theories that concentrate on different participants and motivations. One explanation is a political hypothesis that focuses on the efforts of the feminist movement and a shift in parliamentary ideology that favoured gender equality before

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the law.1 A second explanation is a political hypothesis that focuses on a shift in parliamentary ideology that favoured class equality before the law.2 The third is a public interest hypothesis that focuses on reactions to an increase in fraud that involved the separate estates of separated women.3 All have discussed, in some detail, the conflict between law and equity. This essay presents new evidence to support a different potential motivation that has not been discussed previously in the literature but that may help answer the question of why the act was passed in 1870 but not in 1857. The act, which made married women liable for familial debt, was a reaction to the commercial lobby that complained about an increase in fraud involving the separate estates of married women. One additional issue discussed in this essay relates to the alliance that was built across groups who all wanted change but for different reasons. Important aspects of this analysis involve acknowledging the tensions created between law, equity, and bankruptcy.4 Drawing upon the evidence of Chancery Court records, bankruptcy disputes among middle-class shopkeepers, newspaper reports, trade papers, and a study of the parliamentary debates on married women’s property, this essay examines the limitations of the common law at a time when some middle-class shopkeeping couples used equity and married women’s separate property as insurance against bankruptcy. It reveals the complex interaction of motive and opportunity that contributed to the establishment of expanded property rights for married women.

I English common law held that a woman, on marrying, relinquished her personal property (movables such as money, furniture, and livestock) to her husband’s ownership; by law he was permitted to dispose of it at will.5 She retained legal ownership of her real property (immovables such as land and housing); therefore, he could not dispose of such real property without her consent. The wife had no legal right to manage it, however: she could not sell the land or housing, or use it to invest, without her husband’s consent.6 As a feme covert, a wife’s legal identity came under the cover of her husband; by law she could not make a

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contract, sue or be sued without her husband, or leave property by will. Shaped by the doctrine of coverture, the law with respect to married women enabled the husband to assume “profitable guardianship … over the wife and over her property.”7 In March 1856 a petition with over 26,000 signatures requesting reform of the law of property with respect to married women was submitted to both houses of parliament.8 The petition, drafted by Barbara Leigh Smith and her circle of feminist reformers, criticized the legal treatment of married women and gained support from radicals in parliament such as John Stuart Mill. The opening words of the 1857 Married Women’s Property Bill clearly stated the main criticism made by feminist reformers: “the law of property with respect to married women is unjust in principle, and presses with peculiar severity upon the poorer classes of the community.” Meanwhile that same year the Divorce and Matrimonial Causes Act was passed. For those who could afford to pay £300 for an uncontested divorce and as much as £1,000 for a contested divorce, the act legalized divorce and granted a divorced woman the economic and legal autonomy enjoyed by her single and widowed sisters, that of feme sole.9 In 1857 the majority of the members of parliament were not willing to admit to the possibility of separate wills within marriage. The 1857 Married Women’s Property Bill was defeated. As Shanley aptly explains, while the Divorce Act “gave legal recognition to de facto marital breakdown,” a law granting property rights to married women “would have recognized the existence of two separate wills within an ongoing marriage.”10 In 1868 a new Married Women’s Property Bill was presented to parliament and after much discussion and argument was passed and became known as the 1870 Married Women’s Property Act. The act of 1870 gave a married woman rights over her earnings in any trade or occupation carried on separately from her husband. In addition she gained the right to control her personal property if held in savings bank accounts, public stock and funds, shares in joint stock companies, or shares in industrial, provident, or friendly societies. She gained the right to personal property and sums of money under £200 left to her in wills (a sum roughly equivalent to the annual income of a lowermiddle-class family), as well as the right to control the rent from any

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freehold and copyhold property left to her in wills. Significantly, the act also made a married woman responsible for any debts she incurred before marriage, and it made her jointly responsible with her husband for the maintenance of her children and grandchildren. Lastly, the act made her responsible for the maintenance of her husband, if he were to “become chargeable to any union or parish.” The act made the wife partly liable for familial debt.11 Why did a Married Women’s Property Bill fail in 1856 but succeed in 1869? In both the 1856 and 1869 parliamentary debates leading politicians supported the doctrine of coverture and resisted the demand from within certain quarters to grant married women individual and distinct property rights. Members of parliament instead emphasized a certain ethic of responsibility – that of “honourable” men to “protect” women. The narrative of protecting women implies that since husbands are the heads of the home – the sole providers – women have no need to own or manage property. Any woman who claims a right to property necessarily implies that she does not trust her husband. It was held that wives “should prefer that spirit of mutual confidence, which was the great element of happiness in marriage, to the possession of the most unlimited power over their property.”12 Those in society who identified with the traditional models of male protection, paternalism, and “separate spheres” upheld by the doctrine of coverture promoted an ethic of care that preserved a sense of patriarchal responsibility. Somewhat paradoxically, legislators who believed the law should grant the husband “unlimited power” over the property of the wife also believed the law must protect a woman left destitute by the ill ways of a profligate husband. This aspect of the ethic of protection is evident in the trusts created by men for their wives and daughters, and in court decisions that protected the property of middle- and upperclass women in bankruptcy cases. Matters dealing with the trusts and separate estates of married women, and with bankruptcy cases tied to the property of married women, were settled in equity. The courts of equity also handled cases that included, among others, disputes over inheritance, lands, debts, and marriage settlements, and it was here that the conflicts between equity, common law, and bankruptcy – as they related to married women’s property – began to grow.

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II For centuries the court of Chancery had been widening the gap between the legal fiction and the reality of economic relations within marriage. Many scholars have shown that the patriarchal model of marriage entrenched in English law had spawned a variety of legal ways to protect married women’s property from potential squandering by their spouse.13 This legal circumvention of coverture centred on the establishment of trusts and separate estates enforceable in equity. As indicated in one maxim of equity, aequitas erroribus medetur, the job of equity had long been to compensate for the arcane inadequacies of the common law. Trusts commonly were created by wealthy parents for daughters at the time of marriage as a part of a marriage settlement, or at the time of the death of a parent, where by will men left property in trust for daughters and wives. By allowing for the creation of trusts, the courts of equity recognized “the separate existence of the wife, inventing a process by which through the medium of trustees, a separate property could be secured to the wife free from the control of her husband.”14 In equity virtually any trust created for a married woman (e.g., by her father) that settled on her any form of property was acceptable. Any sane person of legal age could settle the trust.15 Such arrangements were championed by those members of parliament who sought to ensure that the financial support of wives and children would not be undermined by profligate husbands. Member Shaw-Lefevre, quoting a letter from Judge Emory Washburn, professor of law at Harvard University, noted that the dual system of common law and equity “often saves a family from the consequences of the recklessness or misfortunes of the husband or father by saving from the reach of creditors the estate which belongs to the wife.”16 Thus the legal loopholes of trusts and separate estates, although leading to contradictions between common law and the law of equity, were consistent with the patriarchal model because their intent was to protect women and their children from possible destitution. Such was the case in Duncombe v. Greenacre (1860), where a bankrupt who was the trustee for the separate property of his wife demanded to use £1,000 of her property to pay his debts. The wife

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refused and sued in equity to obtain the legal right to control her property. In the ruling Lord Chancellor Campbell stated, “I may, without impropriety, express my satisfaction that, according to established principles and rules, the [court] has been able in this instance to protect a married woman against the misconduct of a husband, who has attempted to make away with the provision made for her by her father and has left her and her children destitute.”17 If Mr Greenacre could not pay the debts out of his own earnings or property, the ruling in equity ensured that the creditors could not collect from Mrs Greenacre. Members of parliament often cited similar cases in parliamentary debates. A second case, Gleaves v. Paine, was heard in 1862 and involved one Mrs Gleaves, who threw herself on the mercy of the court. Her husband had obtained a loan of £700 by mortgaging her real estate, and shortly after he obtained the loan he went bankrupt and defaulted on his debts. The creditors to her husband claimed the right to her property. Mrs Gleaves filed a complaint in Chancery, arguing that since her husband only had the right to the income accruing from her real estate, the income was all the creditors were entitled to claim – not her real property. Her complaint included a plea on behalf of the Gleaves’s seven children and warned of their imminent destitution, since she “had no property or means of support for herself and her children except the mortgaged property.”18 Mrs Gleaves won her case. Lord Chancellor Westbury ruled in her favour, stressing the necessity of “making a reasonable provision for the performance of the moral obligation of the husband to maintain the wife.” Furthermore, Westbury lamented that “much of the litigation in this country and … much of the difficulty in the administration of justice are due to the fact that the jurisdiction is divided between different Courts and conducted upon different principles … The justice of a Court of law is one thing, the justice of a Court of Equity is another, the justice of a Court of Bankruptcy is a third; and it is from that confusion that this very simple case has become complicated.”19 This “simple” case carries the markings of the social, ideological, and legal conflicts embedded in the debates about married women’s property rights. Alongside his critique of the legal system, Westbury’s

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reference to the moral obligation of the husband to maintain the wife underscored a preference for common law ideology. A third case, Ashton v. Blackshaw (1869), presented similar legal troubles for the creditor trying to collect. In 1869 Annabella Ashton sued with a next friend for household furniture confiscated by a creditor to her husband. She claimed the furniture had been set aside in trust as her separate property. Ashton included with her complaint a schedule of items of household furniture and effects confiscated by the creditor, who apparently took everything from teaspoons to the marital bed.20 Though most common among the aristocracy and higher ranks of the middle class, in the nineteenth century the trust increasingly began to be used by middle-class shopkeepers. A sample of inheritance tax records taken from the 1850s to the 1880s suggests that by the latter decades of the century over one-third of male shopkeepers left property to wives and daughters in trust. Specifically 21 per cent (28/131) in the 1850s directed their executors to sell the business property and to hold the sums in trust for the wife. In samples of similar size the percentage increased steadily over the next three decades to 24 per cent of wills in the 1860s, 30 per cent in the 1870s, and 36 per cent in the 1880s.21 Legal textbooks such as James Traill Christie’s Concise Precedents of Wills advised the will-writing tradesman to settle property on his wife by trust, “however wealthy and whatever confidence the testator has in him.”22 Enoch Cartwright, a victualler from Walsall, and thousands like him took the advice. When Cartwright made his will on 15 August 1860, he appointed as executors and trustees Joseph Taylor “of the Green Dragon Hotel Staff ” and victualler James MacLachlan. Cartwright devised the household “furniture, plate, linen and effects” to his wife absolutely, and directed his remaining property to be sold and held in trust for his wife “and proceeds thus: an annuity of £200 to wife for life and at death as she may appoint.”23 A note written in Cartwright’s inheritance tax record in November 1861 indicated that since there was only £1,280 available to meet the legacy the desired annuity would not be possible. Either Mrs Cartwright herself was independently wealthy or some savvy investing occurred between then and the time of her

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death two years later. Before she died in 1863 she exercised her power of appointment and devised to her two children property worth £3,323 that included three shops and four houses.24 The Cartwrights serve as a synecdoche for a middle class resorting to equity at a time when credit problems worsened and credit collection concerns heightened. For both the financially secure and the insolvent tradesman “the trust form was appropriated on a large scale … since it could be divided between income for support and capital … and had the subsidiary advantage of keeping part of the family assets safe from creditors even under unlimited liability.”25 It is not clear whether Cartwright’s trustees sold the business and reinvested the money in other forms of real estate; however, there is no reference made to the business in Mrs Cartwright’s will. It seems likely that the wishes of Mr Cartwright were carried out. At the very least, his directions to set up a trust for his wife ensured that she would not endure the humiliation suffered by the chemist’s wife in Collins’s Jezebel’s Daughter, whose husband had died in debt and left her in poverty.26 Mainly because of trusts and separate estates, by the early nineteenth century the rules of equity with regard to the property of married women had become “diametrically opposed to the rules of the common law.”27 Cases in equity, such as Duncombe v. Greenacre, Gleaves v. Paine, and Ashton v. Blackshaw, that shifted the law with respect to the property of married women also shifted the ground on which debtor–creditor relations rested. Creditors found it difficult to collect debts from a middle class resorting to trusts and separate estates, with more debts tied to married women’s property. Equity even allowed for the creation of a trust after a woman’s marriage. The provision is crucial for the story of property rights because it allowed a husband to settle property on his wife after marriage. Such an act was impossible under the common law, which held that the husband and wife, being one legal individual, could not make gifts or loans to one another.28 Once in place, and regardless of their original purpose and intent, the legal loopholes of separate estates and trusts provided a route whereby debtors and bankrupts could hide resources from creditors. Moreover by associating assets with their wives, debtors could try to prevent creditors from seizing them. A married man, at any time during his life – even after marriage – could

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attempt to provide against bankruptcy by setting aside property for his wife in trust “for her sole and separate use.” For the husband and wife who saw even a small probability of bankruptcy in their future there existed one saving chance to avoid destitution: the married woman’s separate estate. R.J. Morris researched the subject, particularly with respect to upper-middle-class marital property and marital separation. Morris asserts that there was more default combined with separation between married couples. Furthermore, he suggests that “separate estate and separation were … common elements in the cases in which tradesmen and tradeswomen and others failed to collect legitimate debts.” 29 Separation complicated collection.30 In addition, I have found that some married couples in intact marriages colluded and used trusts and separate estates in an attempt to evade creditors and defeat the law of debt. Their actions also complicated collection and thus shifted the ground on which debtor– creditor relations rested. An example of such a case was detailed in The Grocer in November 1868: The bankrupt [Thomas Jones, Grocer and Draper], on the 10th ultimo, executed a post-nuptial settlement of some leasehold houses in this town to which his wife is entitled, and it is the intention to impeach this deed and endeavor to set it aside. On the 24th ultimo this trader committed an act of bankruptcy, and it was said that a considerable portion of his estate had been removed from the premises. Messrs. Pickett and Price, solicitors, subsequently caused summonses to be served on the wife and other of his relatives, and the result of the examination by MR. Price on the 30th ultimo was, that, upwards of 100L worth of goods was found concealed between the flooring and the ceiling of the rooms in the bankrupt’s house, beneath coal in the cellar, and in the neighbor’s houses. 31

Such manoeuvres made the process of debt collection harder and less certain. The case of Carew v. Lonergan (1861) provides a second example. Carew, a creditor to Lonergan, alleged that the defendants William Lonergan and his wife Caroline Lonergan signed a postnuptial settlement in which William settled property on Caroline in the form of a trust that paid an annuity of £350 per year (a sum large

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enough to comfortably support the lifestyle of a lower-middle-class family with at least one servant). Carew further claimed that at the time of the settlement Lonergan was in “insolvent or embarrassed circumstances” and the settlement “was executed … with the intent to defeat or delay [Lonergan’s] creditors.” According to Carew the couple foresaw bankruptcy in their future and conspired to defeat the law of debt.32 In a similar case, Everett v. Littlewood (1861), the plaintiff and creditor Francis Everett claimed that the defendants William Littlewood and his wife Sarah Littlewood “concocted … a scheme for the concealment of the property” owed to Everett.33 The decision reached in Spirett v. Willows (1865), however, made it clear that the court would rule in favour of the creditor in cases like Carew v. Lonergan and Everett v. Littlewood, “if the debt of a creditor by whom a voluntary settlement is impeached … existed at the date of settlement, and it is shewn that the remedy of the creditor is … delayed, hindered, or defrauded by the existence of the settlement.”34 Such was the case in Fraser v. Thompson (1859), where Thompson, a trader, had settled property on his wife prior to their marriage and promptly after the marriage declared bankruptcy. There was sufficient evidence to convince Lord Chancellor Campbell that the husband was bankrupt at the time of the settlement, and that the wife knew he was in financial distress and “assisted in concealing him from creditors who came to demand payment of their debts.”35 Since the husband did not have legal right to any property (his creditors had that right) the court decided that the settlement of property on the wife could not be considered legal. Again, when it could be proven that “the remedies of creditors [were] delayed, hindered [or] defrauded” the court ruled in favour of the creditors.36 While manipulations of individual cases are interesting in themselves, one might ask how common were these cases and what was the extent of their coverage in public discussions and possible impact on policy debates. In a study of 4,600 Chancery Court cases filed between 1851 and 1869, I found that 54 cases, or about 1 per cent of the total, involved married couple shopkeepers involved in trade debts. Problems with debt default and collection were linked by the dual motives of economic survival in difficult financial times and of protecting women. Although the percentage of cases out of the total is small, these cases

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received a great deal of attention in the press, were reprinted and commented on in trade papers, discussed in legal circles and in the County Courts Chronicle, and raised in parliamentary debates. Thus the combination of the publicity they received, their perceived frequency, and their collective pressure on existing institutions, including the credit system, may have played an important role. Had the law with respect to the property of married women been clear, traders and legislators argued, the cases never would have gone before the court in the first place. Not surprisingly the rulings that came into direct conflict with bankruptcy law infuriated creditors, who lost substantial sums of money to debtors like Gleaves and Lonergan. There also is evidence of a common belief among tradespeople, legal representatives, and the bench that other tradespeople in debt frequently tried to conceal from creditors what property they had left. Consider the case of Thomas Nelson, a bankrupt grocer, which was reported in The Grocer on 12 December 1868. Nelson’s lawyer, Mr R. Griffiths, asked that Nelson should have an allowance, and in placing this request, he argued that “[Nelson] had not disposed of his property, as was so commonly done, before filing his petition, but finding himself in difficulties, he came to the court with a substantial estate.” The Grocer reported that the judge granted the discharge, and allowed the bankrupt 50s a week from the date of adjudication. 37 Furthermore, as Margot Finn has established, “creditors … sought to depict married women as persons who could owe money and enter into credit arrangements in their own right” as they sought to collect debts from households whose assets were protected either by the common law, or by trusts and separate estates.38

III An examination of the legal environment preceding the 1870 act with regard to debt collection and bankruptcy provides some strong evidence about what may have motivated tradespeople to lobby for reform to the extent that the kinds of cases mentioned above would have remained on the minds of parliamentarians as they debated the Married Women’s Property Act. In short, bankruptcy law and

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debt collection procedures were plagued with inefficiencies and legal loopholes. Creditors were desperate to create a more efficient debt collection procedure, which inevitably involved closing as many legal loopholes as possible. Specifically, throughout the century middle- and upper-class debtors primarily used the legal mechanism of bankruptcy, while the traditional debt collection system determined the fate of working-class insolvent debtors. In a study of county court records running from 1857 to 1913 Johnson found that 90 per cent of the cases brought before the court were brought against members of the working class by middleclass tradesmen and tradeswomen.39 Meanwhile the bankruptcy courts were clogged with cases concerning bankrupt “grocers, publicans, builders, farmers … boot and shoe makers, tailors, drapers, butchers, and bankers” who owed money to other traders.40 Bankruptcy provided a favourable alternative to delinquency. Bankruptcy had been limited, since 1571, to the trader – “any merchant or other person, using or exercising the trade of merchandise by way of bargaining, exchange, rechange, bartry, chevisance, or otherwise, in gross or by retail … or seeking his or her living by buying and selling.”41 Most insolvent debtors who fit the law’s definition of a trader opted for bankruptcy over delinquency because the future earnings of the bankrupt were protected from creditors. The bankrupt could not be imprisoned and under some circumstances could be released from his debts.42 In both courts the creditors were shopkeepers and other traders, and the sums at stake were substantial. In an article on bankruptcy reform published in The Times in 1842, Bankruptcy Commissioner R.G.C. Fane estimated that in 1836 the loss from bankruptcy alone was almost £4.5 million.43 The figure is just over 1 per cent of the country’s national income.44 The number is a lower bound; many more losses outside of bankruptcy, such as those involving insolvent debtors, trust deeds, and compositions are not included in this number.45 On the number of cases involving insolvent debtors, Johnson estimates that “up to 1860 there were between 1,100 and 2,000 cases annually, with unpaid debt averaging £4 million to £5 million a year.”46 Including the estimate provided by Johnson for insolvent debtors brings the total annual losses from unpaid debt up to an amount between £8 million and £10 million. The number also is a lower bound;

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historians of debt suspect that many more credit collection arrangements were made outside county and bankruptcy courts.47 Given these numbers, the economic importance of the losses becomes clearer: economists today would argue, as tradespeople of the period did argue, that £8 million to £10 million in unpaid debt, or 2 per cent of national income, was woefully inefficient for a credit system. An article in The Grocer supports the idea that the perceived and real losses from the unpaid debt were large and that tradespeople were not happy with the state of the courts and debt collection procedures. On 25 January 1868, The Grocer reported that “the expense of the county courts amount to 5s. 2d. in the pound on the debts; that is, the suitors or the State have to pay, for every £1 sought to be recovered in those courts, no less a sum than 5s. 2d., or equal to upwards of 25 per cent on the amount … Tradesmen have long complained of the evils of the county courts – it is probable that they were unaware how dearly they cost the country.”48 Many of the creditors were tradesmen, tradeswomen, and shopkeepers, and the bulk of the financial losses fell on this group. Armstrong calculates that the census showed 12 per cent of all occupied adult males in these upper- and middle-class occupations in 1841 and just under 20 per cent in 1891.49 An average of these two estimates gives a rough estimate of 16 per cent for 1870. Of this 16 per cent, tradesmen, tradeswomen, and shopkeepers represented approximately 40 per cent, or about 6.4 per cent of the total population. The bulk of the £8 million to £10 million in losses, therefore, accrued to 6.4 per cent of the population, a group earning approximately 20 per cent of national income. Now consider that the bulk of the losses fell on a group that earned one-fifth of national income. The impact of the losses would feel five times greater to tradesmen and tradeswomen than to the nation as a whole. After considering the size of the impact from the perspective of the tradesman, it is not surprising that members of the group lobbied for strict credit collection laws, adding emphasis to the assertion that Great Britain was, indeed, “a nation whose government is influenced by shopkeepers.”50 In response to the political pressure, parliament introduced a number of legislative changes to the bankruptcy law between 1831 and 1882. In 1831 parliament introduced the first in a series of reforms that

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expanded the control of government over bankruptcy procedures. The creation of county courts in 1847 expanded the role of government further and provided a “simple, cheap, and uniform procedure for the recovery of small debts in England and Wales.”51 But by the late 1850s government involvement in bankrupt estates “had fallen out of favor with a large segment of the business community … [and] during the 1860s, the thrust of bankruptcy law reform shifted significantly from expanding judicial involvement in the administration of bankrupt estates to increasing creditor control.”52 Despite the insistence of middle-class tradesmen and tradeswomen that turning credit collection procedures over to the creditors themselves was the most efficient option, the legislation proved to be a failure. In the decade following the 1861 Bankruptcy Act, which gave creditors control over the collection and distribution of the assets of bankrupts, the number of bankruptcies and insolvencies doubled. Even more startling, the amounts of assets collected drastically declined to barely one-half of what they had been in the decades preceding the 1861 act.53 Creditors were losing more under an act that they had insisted would solve the problem. In 1865 one member of parliament reported that although the national income was £400 million, the losses from insolvency and bankruptcy amounted to £50 million.54 Although the number was almost certainly exaggerated, it shows that legislators were concerned about debt default. And as the parliamentary debates reveal, they were aware that the losses occurred in part because couples were concealing money in trusts and taking advantage of coverture. These manoeuvres collectively brought the commercial lobby down on these legal arrangements. Tradesmen, tradeswomen, and shopkeepers lobbied politicians to impose strict standards and enforce the responsibilities of property owners regarding debt. Mid-Victorian legal reformers argued that equity created unbearable problems in a commercial economy where credit markets and debt collection procedures required reliability and simplicity. With greater problems with debt collection, more bankruptcy and insolvency cases were heard in the courts and reported in the papers. The reports increased the visibility of the problem relating to debt and the property of married women. By the late 1860s the legal and ideological system that protected the property of married

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women would place legislators in a difficult dilemma. Most legislators supported the “legal covering” or “protection” of wives by husbands and they supported the enforcement of credit collection procedures at a time when the two mechanisms were at odds in equity. It was not until the era of bankruptcy reform that the pressure to institute legal change with regard to debt and the property of married women became great enough to persuade legislators to act, and this is reflected in the commentary of newspapers covering the debates about the Married Women’s Property Act and in the tone and content of the parliamentary debates themselves. For example, on Friday, 12 June 1868, the Manchester Guardian argued that, “though Mr Shaw Lefevre and his friends are courageous to this extent, they do not go far enough. They clearly ought to propose that the man should be relieved from his legal obligation to maintain his wife, unless indeed, the wife is to be placed under a corresponding obligation to support her husband … It is quite true that we have not hitherto held women reciprocally liable with men for the support of their partners in the household. That, however, is only because they have been recognised as having a natural claim on protection and tenderness, which must, of course be resigned when they are put on a footing of perfect civic equality.”55 Within parliament, various members supported this sentiment. On Thursday, 15 April 1869, the Morning Post reported that MP Gurney had argued that “various remedies had been tried for the protection of married women’s property, but they had failed, and he ventured to think that the only thing which should be done was to allow the wife to retain her own property, but leaving it subject to the same rights and liabilities as that which the husband’s was liable to.”56 Arguments against the Married Women’s Property Bill questioned whether giving married women property rights without the equal share of financial liability for household debts would lead to fraud. The Morning Post reported that MP Lopes said that he would readily advocate any protection to the earnings of the wife, but it was proposed to enable her to alienate her property as she pleased, and to sue and be sued as if she were a feme sole. But that was not all. The bill proposed to take away from the husband all the privileges and

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advantages given him by the marriage, but it left with him the liability to maintain his children. In common justice, if the privileges and advantages were taken away, the husband should also be released from the liabilities. Further, he was afraid that if this bill became law it would open the door to many cases of fraud … The bill would diminish the proper responsibilities of the wife.57

The Morning Post also reported MP Hope’s argument “that the passage of the measure now before the house would completely revolutionise the whole system of credit in the retail trade of the country.”58 Further supporting the idea that debt collection and bankruptcy issues were at stake, MP Henley complained that the current bill (which did not make a wife liable for familial debt) “was deficient in the principle of mutuality, and he wished it to be remembered with reference to the question of liability.”59 In addition, MP Hope “said that the question divided itself into two grievances. The one was the grievance of the needy class, and the other the grievance of the easy class … This Bill would establish in every household a limited liability company of two, and if it passed the bankruptcy law must be altered, or the new state of the marriage law would make total shipwreck of the credit in the country.”60 As noted earlier there were other important components to the debates in 1857 and in 1868 which have been discussed elsewhere.61 In both instances liberal members of parliament argued for a provision to protect the working-class wife from a profligate husband who “stays away for a sufficient time to enable [his wife] to accumulate a small sum, and then lives with her just long enough to squander it.”62 Liability for debt had been a minor part of the discussion during the 1857 debates but it played a much more important role in the 1868 and 1869 debates. Of the members of parliament in 1857, Lord Brougham was one of the few supporters of the bill who also argued for a degree of shared financial responsibility between husband and wife, but only insofar as the bill would “secure the husband against his wife’s debts” and include a provision that made the husband and wife equally liable to maintain the children.63 The issue apparently was not pressing enough to legislators in 1857 to warrant adding a clause regarding shared financial responsibility for debts.

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The discussion in the 1868 and 1869 debates pushed the issue of responsibility for debt much further. An article published in the Spectator in June 1869 criticized the earlier bill of 1857 presented by Shaw-Lefevre and Russell Gurney. The author of the article argued that the presenters of the 1857 bill had “shrunk from imposing on women the liabilities which their new privileges must necessarily involve.” The author further argued that “there is no reason whatever, either in morals or social expenditures, why if a woman retains her own property as fully as if she were single, she should not also retain her own liabilities as fully as if she were single.”64 In the debates of the 1868 Married Women’s Property Bill, concern about cases involving fraud committed by married couples in debt, such as Carew v. Lonergan, Spirett v. Willows, and Fraser v. Thompson, is evident in parliamentary discussions about bankruptcy and married women’s property reform. Members Westlake and Hastings, in a presentation to the Select Committee on the Married Women’s Property Bill, argued that “the existing law created grave uncertainties in trade and finance and presented opportunities to husband and wife for actions which came very near to fraud.”65 Additional evidence that members of parliament were well aware of fraud committed by married trader couples under the current state of the law is present in the records of the March 1870 reading of the bill, where member Raikes suggested a provision enacting that “all postnuptial settlements made by the husband, being a trader, upon his wife or children … be registered in the Court of Chancery as a protection to creditors.” He explained that a similar provision had been suggested for insertion in the 1869 Bankruptcy Bill, “but in that measure it was felt to be out of place.”66 The Attorney General argued that if a wife “is to be entitled to her separate earnings she ought, at least, to be equally liable to maintain his and her family.”67 Most agreed. Referring to the reading of the original bill one member acceded that the weakest part of the bill was that it failed to mandate that a husband and wife with equal rights to property ought also to share equally in the obligations of property ownership, adding that it would “be necessary to alter some of the clauses so as to establish an obligation equally on both parties.”68

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That the rhetorical climate had changed considerably is suggested by a comparison of the text of the two bills. As Shanley, Morris, and others already have noted, one does not have to read far into the 1870 bill to note the difference in tone and intention between the bill that failed and the bill that passed. The bill of 1857 began with a confrontational opening that emphasized the rights of women, particularly poorer women: “Whereas the law of property with respect to married women is unjust in principle, and presses with peculiar severity upon the poorer classes of the community.” 69 The bill of 1870 had a more cautious opening that instead emphasized responsibilities of property owners: “Whereas it is desirable to amend the law of property and contract with respect to married women.” 70 The difference in the discussion of the two bills was summarized nicely by the Solicitor General himself, who in April 1869 stated that “this was not a poor woman’s question alone … It was a woman’s question.” 71 Indeed, one major difference between the 1857 married women’s property bill and the bill passed in 1870 is that the 1870 bill included clauses that made wives, under certain circumstances, liable for familial debt. The legal, economic, and political climate outlined here provides evidence that this provision proved to be crucial in persuading moderates to support the 1870 bill, because in doing so, they took a step toward making married women and, more importantly, couples within loving and caring marriages comply with the law of debt. Perhaps this is the greatest irony of British married women’s property legislation: the patriarchal model of male protection has long been viewed as one of the main obstructions to women’s rights. Yet patriarchal motivations created many of the legal loopholes and difficulties in the debt collection system that helped contribute to the passage of the 1870 act. NOTES This research was supported by the Earhart Foundation, the University of Iowa scholarship in memory of Jane Weiss, and a Fordham Faculty Research Grant. I have benefited from comments from Rick Geddes, Beth Ingram, Linda Kerber, Deirdre N. McCloskey, George Neumann, Gene Savin, Troy Tassier, and Chuck Whiteman. I also thank participants at the Franklin Seminar, Chicago, and participants at the Workshop on Married Women and the Law in Halifax, Nova Scotia, 2011, for helpful comments.

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1 See Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca, NY: Cornell University Press, 1982); Lee Holcombe, Wives and Property: Reform of the Married Women’s Property Law in Nineteenth Century England (Toronto: University of Toronto Press, 1983), 25; Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England (Princeton, NJ: Princeton University Press, 1989); Erika Rappaport, Shopping for Pleasure: Women in the Making of London’s West End (Princeton, NJ: Princeton University Press, 2000). 2 Shanley, Feminism, Marriage, and the Law; Ben Griffin, “Class, Gender, and Liberalism in Parliament, 1868–1882: The Case of the Married Women’s Property Acts,” Historical Journal 46, no. 1 (2003): 59–87. 3 R.J. Morris, “Men, Women, and Property: The Reform of the Married Women’s Property Act 1870,” in Landowners, Capitalists, and Entrepreneurs: Essays for Sir John Habakkuk, ed. F.M.L. Thompson (Oxford: Clarendon Press, 1994), 176. See also Holcombe, Wives and Property; Basch, In the Eyes of the Law; Shanley, Feminism, Marriage, and the Law; Carole Shammas, “ReAssessing the Married Women’s Property Act,” Journal of Women’s History 6, no. 1 (Spring 1994): 9–30; Richard Geddes and Dean Lueck, “The Gains from Self-Ownership and the Expansion of Women’s Rights,” American Economic Review 92, no. 4 (2002): 1079–92; and Rappaport, Shopping for Pleasure. 4 Additional Married Women’s Property Acts were passed, the second of which went into effect in 1882 and made refinements to the first act, extending property rights for married women. Here, however, I focus only on the motivations behind the first Married Women’s Property Act, 1870. 5 Carole Shammas, Marylyn Salmon, and Michel Dahlin, Inheritance in America from Colonial Times to the Present (New Brunswick, NJ: Rutgers University Press, 1987), 3. Susan Staves defines real and personal property in Married Women’s Separate Property in England, 1660–1833 (Cambridge, MA: Harvard University Press, 1990), 239. 6 Holcombe, Wives and Property, 25. 7 F.W. Maitland and Frederick Pollock, History of English Law before the Time of Edward I, 2nd ed., 2 vols (Cambridge: Cambridge University Press, 1968), 1: 485, as quoted in Linda K. Kerber, Women of the Republic: Intellect and Ideology in Revolutionary America (New York: W.W. Norton, 1986), 120. 8 Holcombe, Wives and Property, 70. 9 A distinct set of common law rules applied to widows. If widowed a woman regained control over her real property as well as over a specific kind of

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personal property, legally designated “paraphernalia,” which included the clothing and jewellery that she possessed at the time of her marriage or that her husband gave her during marriage. Her legal identity reverted to that which a single woman enjoyed: the legal identity of feme sole. After the passage of the 1833 Dower Act a widow no longer was entitled to a dower right of one-third of all freehold land in her husband’s possession any time during the marriage; however, she was entitled to a free bench right to a life interest in one-third of the copyhold lands which were in her husband’s possession at the time of his death. There is, of course, a distinction between the common law theory and the reality of married women’s economic lives. The wills and inheritance tax records I have examined for the 1850s through to the turn of the century indicate that husbands generally bequeathed to their wives more than the customary one-third share. Most, in fact, left the majority of the property to their wives “for life or until marriage” and then directed it to be divided “equally among all children” after the wife’s death. 10 Shanley, Feminism, Marriage, and the Law, 46. 11 33 & 34 Vict., c. 93. 12 Second Reading of the Married Women’s Property Bill, House of Commons, 10 June 1868, Hansard, Parliamentary Debates, 3rd ser., cxcii (1868), col. 1355. 13 See Mary Ritter Beard, Woman as Force in History (New York: Macmillan, 1946); Amy Erickson, Women and Property in Early Modern England (London: Routledge, 1993); Margaret Hunt, The Middling Sort: Commerce, Gender, and the Family in England, 1680–1780 (Los Angeles: University of California Press, 1996); Margaret Hunt, “Wife-Beating, Domesticity and Women’s Independence in Early Eighteenth-Century London,” Gender and History 4, no. 1 (1992): 10–33; Craig Muldrew, “‘A Mutual Asset of Her Mind’? Women, Debt Litigation and Contract in Early Modern England,” History Workshop Journal 55 (2003); Staves, Married Women’s Separate Property, 18. 14 Special Report from the Select Committee on Married Women’s Property Bill (House of Commons, 1868), iii. 15 Holcombe, Wives and Property, 39. 16 Second Reading of the Married Women’s Property Bill, Hansard, 10 June 1868, vol. 192, 1375. 17 Duncombe v. Greenacre, 26 November and 13 December 1860, English Reports [hereafter ER], 45, 718, Lord Chancellor Campbell and Court of Appeal in Chancery. 18 Gleaves v. Paine, 15 January 1863, 46 English Reports 34, Lord Chancellor

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Westbury and Court of Appeal in Chancery. Note: The first name of Mrs Gleaves is unknown, since court documents refer to her only as “Mrs.” 19 Ibid., 37. 20 Ashton v. Blackshaw, 22 December 1869, National Archives, Public Record Office, Kew, Surrey (hereafter TNA: PRO) Court of Chancery: Clerks of Records and Writs Office: Pleadings C16/545/120. 21 TNA: PRO Death Duty, Succession Duty, and Estate Duty Registers, Class IR26, Volumes for last names beginning with C or D: 1850–89. 22 James Traill Christie, Concise Precedents of Wills: With an Introduction and Practical Notes (London: W. Maxwell, 1857), as quoted in Morris, “Men, Women, and Property,” 178. 23 TNA: PRO IR26/3241 fo. 81. 24 TNA: PRO Residuary Account 343, fo. 83d. 25 Leonore Davidoff and Catherine Hall, Family Fortunes: Men and Women of the English Middle Class, 1780–1850, rev. ed. (London: Routledge, 2002), 209. 26 Wilkie Collins, Jezebel’s Daughter (London: Chatto and Windus, 1880), 5. 27 Holcombe, Wives and Property, 37. 28 Ibid., 40. 29 Morris, “Men, Women, and Property,” 184. 30 Margot Finn, “Women, Consumption, and Coverture in England, c. 1760–1860,” Historical Journal 39, no. 3 (1996): 703–22; Rappaport, Shopping for Pleasure, chap. 2. 31 The Grocer, 14 November 1868, 14, no. 359, 420, Thomas Jones, Grocer and Draper, Porth, Near Pontypridd. 32 Carew v. Lonergan, 8 April 1861, TNA: PRO C16/10 Part 2/24. 33 Everett v. Littlewood, 1 October 1861, TNA: PRO C16/17 Part 2/66. 34 Spirett v. Willows, 13 December 1864 and 18 January 1865, 46 ER 649, Lord Chancellor Westbury and Court of Appeal in Chancery. 35 Fraser v. Thompson, 23 and 30 July and 4 August 1859, 45 ER 256, Lord Chancellor Campbell and Court of Appeal in Chancery (italics added). 36 Spirett v. Willows, 13 December 1864 and 18 January 1865, 46 ER 653, Lord Chancellor Westbury and Court of Appeal in Chancery. 37 The Grocer, 14, no. 363, 505. 38 Finn, “Women, Consumption and Coverture,” 716. 39 Paul Johnson, Creditors, Debtors and the Law in Victorian and Edwardian England, London School of Economics and Political Science Working Papers in Economic History, series no. 13/96, May 1996.

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40 V. Markham Lester, Victorian Insolvency: Bankruptcy, Imprisonment for Debt, and Company Winding-Up in Nineteenth-Century England (Oxford: Clarendon Press, 1995), 314–15. 41 As quoted in ibid., 88n. Lester covers the nineteenth-century reforms of bankruptcy law in detail. 42 Ibid., 88. 43 “Bankruptcy Reform,” The Times, 8 April 1842, 2. 44 Lester, Victorian Insolvency, 77. 45 Paul Johnson, “Small Debts and Economic Distress in England and Wales, 1857–1913,” Economic History Review 46 (1993): 65–87 at 66. 46 Paul Johnson, Making the Market: Victorian Origins of Corporate Capitalism (Cambridge: Cambridge University Press, 2010), 50. 47 Lester, Victorian Insolvency. 48 The Grocer, 25 January 1868, vol. 13, no. 317, 64. The statistics on which this claim is based were reported in The Grocer and taken from a publication titled “Observations on County Courts and Local Municipal Courts, as Courts for the Recovery of Small Debts,” issued by Woodthorpe Brandon, Registrar of the Lord Mayor’s Court. Also reported in the same publication, on the same page, were the details behind this estimation: “The cost of the administration of the law in the county courts in the year 1866–67 was £519,606, and the fees received amounted only to £250,365, so that the county was taxed to the extent of £269,000 in order to meet the deficiency. In the year 1867–68 the deficiency was £249,000, which was met by a call upon the consolidated fund and a vote of Parliament.” 49 See E.A.Wrigley, ed., Nineteenth Century Society: Essays in the Use of Quantitative Methods for the Study of Social Data (Cambridge: Cambridge University Press, 1972). 50 Adam Smith, The Wealth of Nations (Indianapolis: Liberty Fund, 1981), vol. 2, book 4, chap. 7, 613. 51 Johnson, “Small Debts,” 66. 52 Lester, Victorian Insolvency, 124. 53 Ibid., 147. 54 Ibid., 147. 55 Manchester Guardian, Friday, 12 June 1868, 2, cols 6 and 7. 56 The Morning Post, Thursday, 15 April 1869, col. 1. 57 Ibid., col. 2. 58 Ibid., col. 3.

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5 9 Ibid., col. 3. 60 Daily News, Thursday, 15 April 1869, 2, col. 3. 61 See Griffin, “Class, Gender, and Liberalism”; Holcombe, Wives and Property; Rappaport, Shopping for Pleasure; Shammas, “Re-Assessing the Married Women’s Property Act”; Shanley, Feminism, Marriage, and the Law. 62 Second Reading of the Married Women’s Property Bill, House of Commons, 10 June 1868, Hansard, 3rd ser., cxcii (1868), col. 1371. 63 First Reading of the Married Women’s Property Bill, House of Lords, 13 February 1857, Hansard, 3rd ser., cxliv (1857), col. 611. 64 “The House of Commons on Wives’ Property,” The Spectator, 11 June 1868. Reprinted in Tracts on Married Women’s Property: 1869–1873, Manchester Society for Women’s Suffrage Collection, Millicent Garrett Fawcett Collection, Manchester Central Library, Manchester, United Kingdom. Manuscript reference number: M50/396/2/M1. 65 “Select Committee on Married Women’s Property Bill,” C 1867–8, Q. 1570. 66 First Reading of the Married Women’s Property (No. 2) Bill, House of Commons, 15 March 1870, Hansard, Parliamentary Debates, 3rd ser., cxcix (1870), col. 285. 67 Second Reading of the Married Women’s Property Bill, House of Commons, 10 June 1868, Hansard, Parliamentary Debates, 3rd ser., cxcii (1868), col. 1369. 68 Ibid., col. 1372. 69 “Bill to Amend the Law with Respect to the Property of Married Women,” Great Britain. Parliament. House of Commons, 13 February 1857, 1. 70 The point has been made by Shanley, Feminism, Marriage, and the Law, and Morris, “Men, Women, and Property,” 190. 7 1 Daily News, Thursday, 15 April 1869, 2, col. 4.

11

Coverture and Women’s Agency: Informal Modes of Resistance to Legal Patriarchy danaya c. wright

Mr Bumble, in Charles Dickens’s iconic novel Oliver Twist, disputed the idea that the husband has complete control over his wife. When told that he was more culpable in the destruction of the trinkets that would identify Oliver’s mother than his wife, the finder of the trinkets, Bumble snorted at the idea that a wife ever acts under her husband’s command: “If the law supposes that,” said Mr Bumble, “the law is a ass – a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience – by experience.” 1 Mrs Bumble was no shy, Victorian naïf; she was outspoken, assertive, and perfectly capable of setting her own price for information concerning the death of Oliver’s mother in the poorhouse. Dickens was assuredly invoking the popular image of the henpecked husband and the termagant wife, a trope perfected two centuries earlier by Shakespeare in The Taming of the Shrew, and one certainly well known to Victorian audiences. What made the trope so humorous, of course, was the contrast to the legal fiction of coverture by which the husband and wife become one, and that one is the husband. Earlier in the novel Mr Bumble ruminated on the decline brought about by his wedded state: “I sold myself … for six teaspoons, a pair of sugar-tongs, and a milk-pot, with a small quantity of second-hand furniture and twenty pound in money. I went very reasonable. Cheap, dirt cheap!”2 In Mr Bumble’s regrets, Dickens was evoking the sorrows of countless young women who awoke to the fact that their husbands

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were fortune hunters or marital adventurers who brought nothing but empty promises and concealed debts to their eager wives. Despite the humour, however, the feeling of entrapment and despair was very real, and it fell on men as well as women in an age of no divorce.3 Legal rights and obligations do not always map neatly onto the lived experiences of people’s lives. Despite Blackstone’s rhetoric of marital unity and absolute legal incapacities of coverture, like Mrs Bumble many married women engaged in a variety of economic or domestic activities that did not conform to the legal image of the feme covert. Historians have done path-breaking work on the multitude of ways married women held property, ran businesses, executed contracts, made wills, made custodial decisions about their children, and sued or were sued as femes sole, in spirit if not in legal right.4 Almost since Blackstone spelled out the legal status of married women as covered by the rights and obligations of their husbands, treatise writers, historians, and scholars have uncovered the numerous ways married women, or their families, could negotiate around the legal rules and barriers that defined the ideal of marital unity. Much of the historical work done on women who challenged coverture in the seventeenth, eighteenth, and nineteenth centuries, however, has been in the area of formal legal rights – that is, lawsuits, trusts, and probated wills, usually by women of the elite or middle classes, who left a paper trail of the explicit ways they defied coverture’s straitjacket. Yet, married women defied coverture in numerous less formal ways, ways that illustrated both a frustration with the cultural and legal constraints under which they formed families and made their way through the world, and also a strength of character that gave a decidedly legalistic edge to the manner in which they resisted the male domination in their own private lives. 5 Some understood that their actions were in direct conflict with the legal rights that lay in their husbands’ hands. Others acted out of instinct, a response to circumstances in their lives that required they exercise legal and practical control over marital property or custody of their children. In many ways, this evidence is not surprising. Legal rights rarely map perfectly onto human behaviour and desires, and the slippages provide illuminating evidence of how law operates in people’s lives. Outside of fiction, very few women would completely subsume their

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own interests and expectations into that of their husbands. But very few had the resources to challenge their husbands at law or act in legal contexts against their husbands’ wishes. Informal disagreements over property and children reveal both a strength of character and important coping mechanisms for women whose husbands did not live up to the Blackstonian ideal of the benevolent patriarch. Countless women rebelled in various ways against coverture, but in honing in on the lives of eight women, spanning nearly 200 years from the 1680s to the 1860s in England and America, this chapter focuses on the striking similarities of their expectations and responses, even at a time when the laws of coverture were changing to protect if not favour women. In locating informal modes of resistance, I continue to rely on the lives and stories of exceptional women, women who left traces of their frustration with the law, some through formal mechanisms of lawsuits, wills, or affidavits, but others through letters, journals, or comments to friends. But what leaps out of these cases is that most of the informal actions of resistance revolved around issues of property control and access to and custody of children. These are to be expected since property and child custody are two of the cornerstones of coverture. But the stories also show unusual ways in which wives asserted their independence, including through choice of domicile, through naming, and through public reputation. Elizabeth Freke was a Norfolk gentry woman who kept two commonplace books that spanned the years from 1671 to 1714, one containing hundreds of medicinal preventatives and cures, and the other containing detailed information on her rents, deeds, and financial transactions. Both books also contained hundreds of biographical entries about her marriage, her travels, her family, her religious faith, and her personal struggles, now published together as her Remembrances.6 The hundreds of snippets spanning over forty years provide a rich account of the life of one woman whose domestic life did not conform to the ideals of legal coverture. At the age of thirty-one, Elizabeth secretly married her second cousin, Percy Freke, the eldest son of a Royalist branch of the Freke family that settled in Ireland. Her father, Ralph Freke, was a well-to-do widower who raised four daughters in an indulgent and loving home.

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Elizabeth was the oldest daughter but the last to marry, the other three having married well thanks to generous settlements from their father. Percy was dedicated to his Irish properties and, after being admitted to the Middle Temple but not called to the bar, was able to give up his legal career and maintain possession of Rathberry Castle because of his marriage to his wealthy heiress cousin. There is no question that Percy needed Elizabeth’s money to maintain the estates and status his father had achieved which had been jeopardized through the turbulent Irish War years. Almost immediately after their marriage, Elizabeth began expressing discontent at Percy’s management of the property, a subject that defined much of their married life. In February 1673, Elizabeth wrote of a mortgage worth £500 per year that her father settled on her as a marriage portion, but which “Mr Frek suddenly, unknown to me, contracted for to sell … which neither my deer father, my selfe, or my 5 trustees did know any thing of. Soe off itt was sould.”7 It is evident that Elizabeth had a marriage settlement that should have required her consent to the sale or encumbrance of that property,8 and she had trustees who should have been able to protect the property settled by her father from Percy’s speculating. Both the settlement and the trustees were typical of the property arrangements of the seventeenth- and eighteenth-century gentry. Early indications of Elizabeth’s proprietary feelings about property that came from her father emerged when she wrote of the marriage portion as having been “bestow[ed] on me,” not on us, or on Percy. Two months later, Elizabeth wrote that “Mr Freke endeavouring to place my fortune on an estate in Hampshire … wee weer cheated by them on a composition for about fifteen hundred pounds as the least loss … Thus was three of my unhappy years spent in London in a marryed life, and I never had, as I remember, the command of five pounds of my fortune.”9 Throughout the early years of marriage, Elizabeth noted time and again how Percy had taken her money, or had sold her lands, which had all been gifts from her father. And although much of Percy’s real estate speculation was done with his father-inlaw’s approval, as when Percy purchased a mortgage on Leeds Castle from Elizabeth’s father, Elizabeth herself expressed frustration at being unable to influence the transactions.

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Relations between Elizabeth and her husband were strained throughout their married lives. About five years into their marriage, Percy bought the manor of West Bilney from his brother-in-law, with the consent of Elizabeth’s father. But when Percy could not pay the full amount, her father loaned Elizabeth the money to complete the purchase and then settled the property on her for life, with a remainder on their son. Within a few short years, Elizabeth’s father and sisters had recognized her need to have property safeguarded from Percy’s reach. Years hence, when Elizabeth returned to England to live with her father shortly before his death, he gave her £200 which he instructed her to keep secret from Percy. But not wanting to have secrets from her husband, she wrote and told him of the money. He immediately “found a use for itt. Butt I, that had nott had two and twenty shillings from my husband in the last two and twenty months I were in Ireland with my son, kept itt for my own use. Which with more my father had given me and the intrest, [Percy] took from me the year after my son maryed and soe left me att Billny a beger againe.”10 Curiously, she formally did her duty of informing her husband of the gift but, in refusing to relinquish it to Percy, tried to save it for her son. Her divided loyalties, between an indulgent father, a spendthrift and uninspiring husband, and an only son placed Elizabeth in an emotionally contradictory position. While she clearly understood the legal claims of her husband over the marital property, she tried to preserve some of it for her son and asserted moral if not legal claims over the property given by her father. The law of coverture required husbands to support their wives in exchange for full control over their wives’ property. Percy, however, rarely provided for Elizabeth whenever they were separated, which occurred frequently. After setting herself up at West Bilney, she recalled a visit from Percy: Mr. Frek came over by Dublin from Ireland, I having hardly heard of him or from him in three quarters of a yeare. As he came unlook’d for by me, soe he was very angry with me for being on this sid of the country, tho in all his tims of his being from me he never took care for a peny for my subsistence or his sons. For which God forgive him. My husbands erantt for England was to joyne with him in the sale of West Billney to Sir Standish Harts Tongue for the like in Ireland. Butt

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I being left the only trusty for my self and my son, God gave me the courage to keep what I had rather then part with itt and be kept by the charity of my friends or trust to his or any ones kindness. Soe in a great anger Mr. Frek left me alone againe and went for Ireland, wher he staid from me almost two years.11

After her husband left, Elizabeth settled into her house in West Bilney, where she “lived by my selfe eight years in my thacht house, eight years with ease and comfort.”12 Later, however, Percy convinced her to return to Ireland, and he sent for all of her furniture from West Bilney to furnish Rathberry Castle. When she once again left Percy and returned to West Bilney, it was to an empty house and mismanaged lands. Throughout this second phase of her marriage, she not only refused to comply with Percy’s demands that she live with him, but she relied on her legal right to West Bilney, and a moral right to live separate from him because of his neglect, even while she acceded to his legal rights to take possession of her furnishings. Shortly before his death, in June 1706, Percy returned to England, where Elizabeth nursed him through his final illness. Surprisingly generous at death, Percy left Elizabeth all of his estates for life, remainder to their son, and all of his personal estate for her disposal, with £1,200 in the bank. And thus began the next phase of her life, a widowhood spent trying to enforce her claims against tenants and her husband’s executor, as well as against her own son, who refused to pay her rents on the Irish estates left her by her husband. Elizabeth’s relationship to her husband and to property was far more complex than that of her sisters, who appeared to be on good relations with their husbands and whose homes always provided Elizabeth a safe refuge when Percy had abandoned her. Her responses to the legal incapacities of coverture were mixed. At times, she chafed under her husband’s legal right to remove her personal belongings from West Bilney and ship them to Ireland to furnish their Irish estates, and she spared no critiques at Percy’s ill-usage and penurious desertion of her. But at other times, she willingly disclosed to Percy sums of money her father had given her, even sums he had instructed that she keep secret from him. While her father realized that Percy neglected her, he also generously aided Percy’s land speculations in the

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early years, even cancelling a loan on the Rathberry estate in Ireland that he held. Percy was probably not Ralph’s favourite son-in-law, but he certainly recognized Percy’s claim to a portion of Elizabeth’s inheritance. It was only through Elizabeth’s stubbornness and her father’s insight that she was able to keep West Bilney protected for her individual use. Throughout her Remembrances, Elizabeth insisted that the money that came from her father was her money and not their money or his money, a feeling that pervaded the diaries and journals of many eighteenth- and nineteenth-century wives. She also willingly stepped up and supported herself in whatever way possible for an eighteenth-century gentry woman whose husband did not live up to his support obligation under the law of coverture. Her ambivalence about the rights and duties of coverture was certainly not unique. This same proprietary feeling over property that was not legally hers characterized much of Abigail Adams’s life a century later and across the Atlantic. Although happily married, Abigail Adams treated not only the inheritance of land from her father as hers, but she routinely invested the income she collected off rental farms in lands, securities, and personal property that she then devised to the women in her life, even though she existed in a state of coverture until her death. While most people think of Abigail only for her “Remember the Ladies” letter to John Adams, she was very much an independentminded wife. Women of the revolutionary generation were often involved in public and political matters because they served as “deputies” while their husbands were at war or, in the case of Abigail, for the many years when John was on diplomatic missions in France, the Netherlands, and Great Britain. Historian Woody Holton has reconceptualized Abigail’s attitude toward her subordinate domestic role, in which he focuses on her will and her extensive investing and management of joint and independent property.13 Like many revolutionary wives, Abigail managed the family farm, leased property, collected rents, invested the rents, and conducted her own business while John was away. Much of this was done through the use of her uncle, Cotton Tufts, as informal trustee, at a time when Massachusetts did not have chancery courts and did not recognize a wife’s separate estate. Massachusetts courts did not have trust jurisdiction until 1818, the year Abigail Adams died, and

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that law was interpreted not to apply to married women’s separate estates until decades later.14 Traditional equity jurisdiction over trusts for married women was not established in Massachusetts until 1857, fifteen years after Massachusetts adopted a separate women’s property act.15 Without a modern system of equity, which was resisted by the colonists because of its ties to the corrupt English Chancery, the absence of modern property and trusts laws placed a wife’s separate estate at risk from predation by her husband. But despite the ambiguous nature of trust law in Massachusetts, Abigail and her uncle Tufts frequently used the terms “trustee” and “separate estate” in referring to management of some of the Adams’s property. Abigail’s use of her uncle as a trustee, even if not legally enforceable, reveals a woman sophisticated enough about separate women’s property to at least follow the English fictions even if they were not a binding part of Massachusetts law. More important than her merely acting as a deputy to promote the family’s economic interests while John was away, however, was Abigail’s belief that a significant portion of the family property was hers, what she called “money which I call mine.” 16 This money came from rents on land that she and her sister inherited from her father. Abigail routinely used her uncle to purchase bonds and make investments with “her” money as trustee, even against John’s wishes. Abigail went so far as to offer to “loan” John money to buy a nearby farm if he would return from Europe and stop leaving her to “mourn in widowhood.” 17 She invested in stocks and war bonds against John’s wishes and purchased land in Vermont that he believed was unnecessarily risky.18 When Abigail made a will, also unenforceable at law, she gave away over $4,000 that she had amassed, including stock in the Weymouth Bridge, all her dresses and much of her jewellery, and, by prior conveyance, land to her two sons. None of these bequests or conveyances was legally binding, yet they were honoured by her husband and sons, fashionable men whose reputations would suffer if they had failed to heed her wishes. Not surprisingly, the same concerns of honour and reputation are at the heart of the trust law supporting married women’s separate estates. In part because Abigail acted as her husband’s agent during his lengthy sojourns in Europe, and in part because her own investments

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resulted in stunning success, she came to view not only the money she inherited from her family as her own, but also the money she earned off family investments. The numerous references in her letters to the money as “mine, oops – ours” are telling indicators of her refusal to accept the property disabilities of coverture. What she should have said was “mine, oops – yours,” and this she most certainly never did. Around the same time Abigail Adams was investing her money against John’s wishes, a Lancashire governess named Nelly Weeton ran a small school and saved enough money to buy some small rental properties.19 Weeton came from a far different class than Elizabeth Freke and Abigail Adams, but she was well educated and aspired to middle-class gentility. Devoutly pious and frugal, she invested well and managed to save about £100, which together with her rents brought her about £75 per annum. By assiduously copying every letter she wrote to friends and family into letterbooks, she left a bleak picture of how poverty, patriarchy, and marriage could define a gentlewoman’s life.20 Nelly married Aaron Stock, a cotton manufacturer she met in the Lancashire coach, because she wanted a home and family of her own,21 but like Mr Bumble she found she had sold herself cheap. Her new husband’s sole motive had been to acquire her small savings in order to save his failing business. Stock was a bad-tempered businessman who ruthlessly exploited his labourers and his wife’s tenants. He was also a widower with two nearly-grown daughters, all of whom treated Nelly with unrelenting cruelty. Shortly after the birth of their only child, a daughter named Mary, Nelly wrote to a friend that “I am indeed much happier of late than I was, entirely owing to being determined not to submit to a continuation of ill-treatment. Had I not acted with greater spirit, had I continued to take every means to please (which was taken for a principle of fear), I must have lost my senses or my life.”22 Despite her optimistic strength, his physical brutality eventually wore her down. After being beaten nearly to death, locked out of the house in the cold of winter, having her bed set aflame, and being imprisoned in solitary confinement in the first four years of marriage, Nelly separated from Aaron and refused to resume cohabitation. Because a parliamentary divorce was out of the question, and even a divorce a mensa et thoro from the ecclesiastical courts was too costly for a woman who survived on less than £75 per year, a private

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separation agreement was her only option. But even though Aaron Stock was eager to escape his wife’s sharp tongue, he refused to offer a separation deed that gave her an adequate maintenance or access to Mary, both of which were sticking points for Nelly. During four years of negotiations over the separation terms, Nelly lived in extreme poverty because her husband would not support her unless she returned to live with him or signed the separation deed. And she would not sign the deed unless Aaron agreed to provide her £70 maintenance per year. Without the deed being signed, however, Nelly had no legal right of access to Mary. In numerous letters written during this time, Nelly complained that Aaron refused to pay debts she incurred in his name, refused to allow her access to Mary, and spread rumours that she had deserted him for no reason. Nelly’s insistence that she receive £70 maintenance, roughly equal to the value of the properties she brought to the marriage, reveals an awareness of her financial contributions to the partnership. Despite Aaron’s subsequent prosperity and acquisition of significant wealth, Nelly never asked for more than the property she had brought to her marriage. In a reflective interlude between the letters, Nelly explained: “Mr. Stock wants me either to remain at home pennyless, as an underling to his own daughter, or to be kept by anyone that will take me. I cannot agree to such a reconciliation, or such a separation, whilst he has plenty of money.” 23 Her awareness of his financial status and the morality of her claim on his estate prompted her to refuse all separation agreements that did not return to her the property she felt was hers. Like Elizabeth Freke, Nelly also had a few household goods that were fine enough for Aaron to keep when he cast her out, which she had to relinquish under coverture’s stricture that the husband acquired outright all of his wife’s movable property.24 Under pressure from her husband and her brother, she finally signed a separation deed that relinquished custody of her daughter;25 she agreed not to reside within a two-and-a-half-mile radius of the town in which her husband resided, nor to enter the town upon any pretext; she also agreed to see her daughter Mary only three times per year under the supervision of her schoolmasters. In letters to her brother, her husband, her daughter, and to friends, Nelly fulminated on the unfairness of her lot, especially the inappropriateness of a father

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being able to exclude a mother entirely from custody or visitation with her own child. And she rarely let an opportunity pass to remind Aaron that his prosperity came as a result of the property she brought to the marriage.26 She challenged the terms of the deed through a number of informal avenues, by notifying her cottage tenants not to pay their rents to Aaron but rather to her 27 and by sneaking visits with her daughter on the way to church. But her principal mode of resistance was through her pen, writing constant complaining letters to anyone who would listen. Eventually she wore people down, including Mary’s schoolmaster, who finally gave in and allowed her to walk with Mary each Sunday on the way to church. Nelly and Aaron had what we today call a high-conflict marriage. But throughout her relatively short co-habitation, she never took her eyes off the real prize, the ability to care for and educate her daughter. Husbands had all legal rights to the care and control of their legitimate children, and they could be flagrant adulterers and wife beaters without losing custody. But Nelly persistently barraged Aaron with letters about the unfairness and unnaturalness of her lot – his denying her the opportunity to perform her maternal duties. By resolutely defying the terms of the separation deed, Nelly pushed back against her husband’s legal rights, eventually winning the real prize she sought, custody of her daughter Mary, who moved in with her mother when she left school. Fighting for access to or custody of children was common among separated couples. Back across the Atlantic, Abigail Bailey, the victim of her husband’s violence and a witness to his incest, eventually resolved to separate legally from her husband, Asa Bailey, but only after having been dragged across Vermont and upstate New York in the depths of winter and only after private negotiations failed to convince Asa to allow Abigail custody of their children and to give her adequate property.28 Hendrik Hartog’s analysis of Abigail Bailey’s gradual decision to seek formal resolution of her marital problems in 1792 depicts a woman who eventually realized that legal resolution was the only way to cement her rights to her children. But Abigail learned to take the situation into her own hands. As disagreements escalated between them, Asa asked a friend to put all of their younger children

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(Abigail had borne fifteen, though not all survived) into a cart and remove them from Abigail’s custody. When she asked a lawyer if he could do that, she was told that “the law had given a man a right to move his children where he should think best, and the wife had no right by law to take them from him.” 29 But she was told that no law prevented her from reasoning with the man. After she sent a letter to the driver, threatening him with “serious trouble,” he returned the children to her. Asa then was pressured by Abigail’s brothers to sign a formal separation agreement granting her custody of all the minor children and half the property. Where husbands used their legal rights over the custody of children to deny access to mothers, many women, like Abigail Bailey and Nelly Weeton, fought back, using their pens to influence public opinion. Two early Victorian wives whose husbands denied them access to their children wrote lengthy narratives about their troubles: Emily Westmeath and Caroline Norton. In their narratives, they composed their accounts as public defences of themselves and attacks on the reputation of their troublesome husbands. Their stories are both more well known than those of Elizabeth Freke and Nelly Weeton, so I won’t elaborate on them here. But a few aspects of their struggles reveal interesting insights into how they too viewed property as necessary to their ability to protect their children. Emily Cecil, the daughter of the 1st Marquess of Salisbury, married George Nugent, the 1st Marquess of Westmeath, in 1812. The marriage was a step up for George, whose Irish properties were struggling, and Emily’s father demanded a hefty settlement from George’s family to balance the extensive Cecil properties bestowed on the couple. By 1818, however, the parties had separated at least twice, because of George’s adultery and occasional violence. Under threat of a suit for an ecclesiastical separation, George signed a separation agreement that allowed Emily her pin money, £1,300 maintenance, and custody of their three-yearold daughter and the child that she was carrying. But Emily drove such a hard bargain in the negotiations that she succeeded in getting George to settle the reversion of all of the Cecil property and most of the Nugent property on their daughter, a move that would separate the estates from the titles if their second child was not a son. Frustrated with Emily’s intractability about the succession of the property and

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her own maintenance, George detained both children, the daughter Rosa and their infant son, sending them to Ireland, where the boy soon died. Contrite, George allowed Emily to take Rosa back to London, but within a year he refused to return her to Emily after a visit, sending her to the Duke of Buckingham’s estate, where she lived until her own marriage, seeing her mother only twice thereafter.30 Emily’s lengthy legal battles with George were compounded by her refusal to surrender the deed in which George had settled the reversion of all the marital properties on Rosa. Although Emily understood the implications of coverture and realized that she could not control property herself, she did everything within her power to ensure that George did not endanger the properties that she brought to the marriage. Like Elizabeth Freke, Emily Westmeath was critically aware that George’s wealth came from her side of the family and that she had the moral, if not legal, right to direct its disposition. Men who married heiresses for their money often found the money came with fairly tight strings. And Emily, in time, published a narrative that defended her efforts to deny her husband those rights bestowed upon him by law. Emily was inspired to write by Caroline Norton, whose marital troubles with her husband George Norton were perhaps even more well known to early-Victorian audiences. Caroline came from a wellknown Whig family, was the granddaughter of Richard Brinsley Sheridan, and brought no property at all to her marriage. What she did bring was the political connections of her family and a wit and talent unrivalled by her peers. George, however, chafed under his wife’s sparkling personality and, as their money troubles escalated, became violent. Caroline escaped to the homes of her sisters many times before she resolved to separate permanently from George. But as Lord Westmeath before him, George sought to punish Caroline by asserting his legal rights to custody of their three sons. George sent them to Scotland, where the youngest died after a fall from a horse. His regret caused him to give Caroline freer visitation with the surviving two sons, but after another spat he again refused her access to them. In response, Caroline began writing pamphlets seeking to reform the laws of child custody and marital property. 31 Although Caroline brought no property to her marriage, she supported the family through her prose, poetry, and journal writings. But after their

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separation, George took control of her bank accounts and confiscated her royalties pursuant to his legal rights. To this new assertion of his rights, Caroline wrote even more. Thanks to Caroline’s efforts, the 1839 Custody of Infants Law was passed, and she influenced the passage in 1857 of divorce reform legislation. Caroline’s fast and furious pen inspired Emily Westmeath, and both wrote popular and influential critiques of married women’s legal incapacities under coverture. Their stubborn insistence on their moral rights as mothers and the fact that they were the source of the family income led them to use their wits and their pens to fight back against the domestic tyranny in their lives. Like Emily Westmeath and Caroline Norton in the beginning of the century, wives in the second half also resisted coverture. But after 1858, these wives had the option of civil divorce. With the creation of the Divorce and Matrimonial Causes Court, wives could obtain a full divorce with the right to remarry if their husbands committed adultery aggravated by cruelty, desertion, bigamy, or incest. The early pleadings of the divorce court provide a wealth of detail about the domestic lives of hundreds of mid-Victorian couples whose marital disagreements led them to the drastic step of formal resolution. One such wife proved particularly resistant to her husband’s rights under coverture. That wife was Marian Cockayne, who had married the Honourable Frederick Dudley Ryder of Staffordshire, a younger brother of the 2nd Earl of Harrowby, in 1830. They lived with Marian’s father in the manor house in Ickleford until his death in 1852. In the fall of 1853, while Marian was pregnant with their eighth child, Frederick sexually assaulted their fourteen-year-old daughter Minnie. When Marian learned of the incest she refused to have further sexual relations with Frederick, but he routinely forced himself on her over the next four years. As a result, she became pregnant with their ninth child.32 Throughout their marriage, Frederick had been guilty of physical violence, enough to leave her scarred and stooped. Although Marian left no memoirs of her own, only a few letters to her children and the lengthy court petitions and affidavits, other records in the Harrowby Family archives confirm the basic allegations and points of contention between them. In the summer of 1857, a private separation agreement was worked out, giving Marian control over all the property and the children, and giving Frederick an allowance of £500, but Frederick refused to sign it in

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part because he would lose control over much of the couple’s property.33 Under pressure from his family, he agreed to leave the country in the fall of 1857, leaving Marian in temporary control of all the property and the children as his agent. A year later, however, Frederick returned and revoked the power of attorney over the family property, and he even stopped Marian from drawing out cash in her credit with his bankers, including money which she held in trust for the Parish Clothing Club. She ultimately had to sell some of her clothing to replace the club’s money.34 In the late spring of 1859, Frederick proposed that they renew cohabitation, threatening to remove the children from her if she did not agree. She refused. In June of that year he forcibly removed the children, alleging that Marian’s pregnancy with her tenth child was the result of adultery with the Reverend William Watson, the local rector. Once again, control over property before and after their separation became a principal source of argument. Although Marian was the only child of a wealthy landowner in Hertfordshire, her father had not made any provisions for settling any of the property separately on her. There was a marriage settlement which gave Frederick control of the lands Marian brought to the marriage, but the remainder would pass to their children. She was not entitled to the profits from the land in the absence of a settlement so long as Frederick lived. And at Thomas Cockayne’s death in 1852, Frederick treated all of the land as his own by legal right. However, sometime between the incest in 1853 and Frederick’s leaving the country in 1857, Marian began to assert her right to manage and control the disposition of this property. The private separation deed that was finally signed in 1864 shows that the majority of the property came from Marian’s father.35 Thus, Marian could perhaps reasonably expect to have some control over the income from those lands, income that easily amounted to over £3,000 per year.36 In her answer to Frederick’s divorce petition, Marian noted her legal incapacities, stating: “Ever since the removal of her children, Respondent has been made to feel the rigour of that Law which enables a husband to appropriate to his own exclusive use the income of his wifes Estate.”37 Like Elizabeth Freke and Abigail Adams, Marian Ryder treated the money she brought to the marriage as more hers than theirs when she felt her husband had abused his marital rights.

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By 1864, Frederick and his family had accepted the heretofore unthinkable provision that Marian would remain in the manor house at Ickleford and retain one-third of the total income of all the lands.38 Moreover, Frederick was allowed to raise £20,000 upon the properties at the time of the separation, and an additional £50,000 would be raised at Marian’s death to be payable to the children, plus Frederick received one-third of the income. But Frederick’s family did not accept that property disposition easily. Frederick’s brother, Granville Ryder, often mentioned in letters to family members the need to get Marian out of the manor house at Ickleford before the baby was born, because the longer they waited the harder it would be to dislodge her. Granville noted that “a Divorce would settle the question of getting rid of M from Ickleford and would prevent her extravagances touching Frederick.” 39 Frederick’s sisters and brothers also wrote about the outrage of Marian spending all of Frederick’s money on the Ickleford house and the church, and that Marian would surely bankrupt him if she were allowed to continue to control the accounts.40 Frederick even cancelled Marian’s order for a new organ for the Ickleford church, claiming such extravagances would bankrupt him. Shortly before her death, Marian was visited by John Cussans, whose History of Hertfordshire is the classic county history for this period. In a letter from Marian to Cussans,41 she recommended changing the language in his book to read “Marian Charlotte Emily Cockayne, to whom the manor descended, and in whom it is still vested, and who resides at Ickleford House.” She then went on to explain her suggested changes by writing: “I think you will excuse my suggesting this. It would appear that someone ought to be residing here, and that I am that someone. This is important because for many years Mr. Ryder has resided elsewhere and is by law altogether absent. Of course, I only mention this to explain to you why I have worded the proposed addition in the way I have … P.S. may I call your attention to one little point. I think you had it that the Church was restored in memory of my husband: it should be my father who died May 26, 1852. My husband is still I believe living but for many years has lived away in retirement.”42 Her insistence that the manor was vested in her, that she was living there legally, that her husband was absent by law, and that she restored

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the church in her father’s not her husband’s name, all suggest that at some point during the marital breakdown Marian became convinced that she was entitled to control her father’s property despite the continuation of the marriage. Although she received one-third of the income from the properties settled on the couple at their separation, she felt entitled to speak of the property, particularly the manor house at Ickleford, as having descended to her and as being vested in her, concepts that were contrary to Blackstone’s version of coverture. Marian had learned the harsh lessons of coverture after her father’s death when Frederick insisted on controlling the property she brought to the marriage, but she would not let the lessons she learned be lost. In 1873, Marian wrote to her son Algernon about a settlement for one of her youngest daughters, Beatrice. The letter read: Dearest Algy, “As far as you’ve got” you make no mention of provision for B’s children, if any: a most important point. I mean that the money she receives from my side, to wit, £5,000 ought to be settled on her children: otherwise, supposing she had 2 or 3 children and then died, and Arthur married again, and had 6 more, the latter would all come in for a share equally with the children of the wife through whom the money came. Do you see? Of course, they would both think just how that such thing never could happen, but things of such sort, and very often (as it would seem to me), of a wrong sort, do happen everyday.43

At this late date it is hard to tell if Marian and Frederick began fighting over property as soon as her father died or if their biggest marital tensions arose when she discovered the incest in 1853. Either way, she quickly learned that a woman with no power over property could suffer at the hands of a violent or abusive husband. As she asserted her rights to control the property she brought to the marriage, her husband’s brothers and sisters resisted her claims, even encouraging Frederick to go to law and seek a divorce to rein in her apparent claims to the property. By refusing to move out of the manor house, and stubbornly insisting on her rights to spend the money as she chose, she was able to negotiate a fairly favourable settlement, much better than Nelly Weeton did forty years earlier.

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Numerous women learned the lesson that without control over property they had little say in the domestic tyranny that their husbands exercised. Some women used private separation agreements to give them financial independence, but they ran the risk of being left destitute if they did not fight for an adequate maintenance and they risked being divorced if they strayed with another man.44 Even if there was no formal separation, wives like Elizabeth Freke, Caroline Norton, and Emily Westmeath understood the importance of keeping some property safe from their husbands’ control, often to safeguard an inheritance for their children. Emily Westmeath’s obsession with making sure the property was settled according to her dictates was a forceful reminder to her husband that coverture did not mean wives would stand by silently as their interests were jeopardized. While control over property was one of the most apparent ways married women challenged coverture, they also chafed at other aspects of their legal death. One way was the family name. Although women usually took the name of their husbands, it was not unusual for husbands to take the names of their wife’s family if the latter brought titles, estates, or significant wealth to their marriages. Marian Cokayne had once wanted her prospective husband to take her family name but later rested content with rejecting his. In a note John Cussans transcribed a comment Marian had made to him: “at one time I wished my husband to assume the name of Cockayne, but I am delighted now that he never did. Since the events which lead to our separation, I would not, for worlds, that he should bear the honored name. I hope that when it may please providence to remove him, my children will take the name.” 45 Marian readily admitted to Cussans that she and Frederick lived apart under a legal separation. But what she could not stand was the idea that her father’s name, which could be traced back to Charlemagne, would cease to exist on her death. She retook her name, which is evident in her letters to Cussans and others. None of her children took her name, however, and it would surely sadden her to know that local Hertfordshire and Cambridgeshire histories refer to her as Mrs Ryder and not as Mrs Cockayne. Another wronged wife, angry at her husband’s infidelities, turned to the court of public opinion to counter the strength of his

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legal claims against her. Sarah Suggate learned that her husband Alfred, a music teacher, was carrying on an affair with a pupil of his, involving the writing of lurid love letters that Sarah found in her husband’s closet. When she confronted him with the letters in 1858, his violence forced her to flee their home with their four children. Sarah, residing at her mother’s house with the children, consulted a solicitor, who wrote Alfred offering to give up the letters in exchange for custody of the children, the right to receive the rents off a house that she brought to the marriage, and the children’s clothes, forgoing all other maintenance. Alfred refused, standing on his rights under coverture. In retaliation, Sarah had the letters copied and forwarded to every parent of her husband’s pupils, all the members of his own family, all respectable persons in the vicinity, and their local rector. Sarah apparently learned her tactics from her mother, who paid to have a letter privately published when the local paper, the Beccles and Bungay Weekly News, refused to print the scandalous behaviour of her son-in-law. After recounting her daughter’s plight, her letter ended in an appeal that would resonate with all of the wives whose lives and misfortunes I have touched upon. She wrote: “Alfred Suggate boasts that my daughter has no legal redress – perhaps so, for I am happily ignorant of the law; but in thus appealing to the public, I feel that I shall at least have the sympathy of every woman, wife, and mother in the neighborhood of my birth.” The women whose lives I have recounted here are just a few of the innumerable Anglo-American wives who chafed at the legal straitjacket produced by the law of coverture.46 While some sought to influence the way their husbands used marital property, others challenged their husbands on different grounds. A number left their husbands and took their children with them, or defied their husbands’ orders and contrived ways to visit with their children. Others publicized their unhappiness in pamphlets or took their husbands to court. Without their challenges, both formal and informal, coverture would not have changed. In their private diaries, letters, and memoirs, they understood their limited legal options and sought ways to challenge their situation. Some used their journals and letters to vent their frustration and anger. The narratives and pamphlets of Caroline Norton

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and Emily Westmeath, the memoirs of Elizabeth Freke, Nelly Weeton, and Abigail Bailey, and the histories, affidavits, and legal stories of Abigail Adams, Sarah Suggate, and Marian Ryder show that many wives resisted their husbands’ claims to legal rights through a variety of both private and public acts, revealing a contested underside to Blackstone’s claim of marital unity. Like Mr and Mrs Bumble, most couples settled into a comfortable coexistence, balancing their own wishes and talents with those of their partners. As they came to their own balance, many wives made business decisions, invested money, and supervised the care and education of children. Where a balance could not be reached, informal separations, separation agreements, and even divorce suits negotiated the uneven rights and obligations created by the laws of coverture. Ultimately, most wives like those discussed above left their marriages worse off than when they entered them because their power to negotiate the terms of marital exit were ultimately determined by their lack of power within the marriage. NOTES 1 Charles Dickens, Oliver Twist (New York: Signet Classics, 1961), 463, first published serially 1837–39. 2 Ibid., at 321. 3 Until 1858, the only possibility of divorce with the right to remarry was through a private Act of Parliament, a process necessarily limited to the very wealthy. Judicial separations could be obtained in the ecclesiastical courts for adultery, desertion, or cruelty, but these too were out of reach of the majority of the population. A private separation agreement could be negotiated to limit a husband’s duty of support but required the use of trustees on behalf of the wife because the doctrine of marital unity prevented married couples from entering into binding contracts. See Danaya Wright, “Well-Behaved Women Don’t Make History: Rethinking Family, Law, and History through an Analysis of the First Nine Years of the English Divorce and Matrimonial Causes Court, 1858–1866,” 19 Wisconsin Women’s Law Journal (2004): 211–318. 4 See, e.g., Richard Chused, “Married Women’s Property and Inheritance by Widows in Massachusetts: A Study of Wills Probated between 1800 and 1850,” 2 Berkeley Women’s Law Journal (1996): 42; Marylynn Salmon,

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Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986); Amy Louise Erickson, Women and Property in Early Modern England (New York: Routledge, 1993); Erickson, “Coverture and Capitalism,” History Workshop Journal 59 (2005): 1–16; Cathryn Spence, “Women and Business in Sixteenth-Century Edinburgh: Evidence from Their Testaments,” Journal of Scottish Historical Studies 28 (2008): 1–19; Karen Pearlston, “What a Feme Sole Trader Could Not Do: Lord Mansfield on the Limits of a Married Woman’s Commercial Freedom,” in Worth and Repute: Valuing Gender in Late Medieval and Early Modern Europe, ed. Kim Kippen and Lori Woods (Toronto: Centre for Reformation and Renaissance Studies, 2010); Tim Stretton, Women Waging Law in Elizabethan England (Cambridge: Cambridge University Press, 1998). 5 Certainly other scholars have looked at informal modes of resistance and noted how married women reacted differently to coverture. For instance, Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (Cambridge: Cambridge University Press, 2003); Joanne Bailey, “Favoured or Oppressed? Married Women, Property and ‘Coverture’ in England, 1660–1800,” Continuity and Change 17, no. 3 (2002): 351–72; Garthine Walker, “Women, Theft, and the World of Goods,” in Women, Crime and the Courts, ed. Jenny Kermode and Garthine Walker (Chapel Hill: University of North Carolina Press, 1994), 81–112; Margaret Hunt, The Middling Sort: Commerce, Gender, and the Family in England, 1680–1780 (Berkeley: University of California Press, 1996); Sara Butler, “Runaway Wives: Husband Desertion in Medieval England,” Journal of Social History 40 (2006): 337–59; Rosemary O’Day, Women’s Agency in Early Modern Britain and the American Colonies (New York: Pearson Longman, 2007); and Amanda Vickery, Behind Closed Doors: At Home in Georgian England (New Haven, CT: Yale University Press, 2009) are just a few of the important works that not only focus on informal/non-legal modes of resistance, but illustrate many of the innumerable ways in which husbands and wives disagreed about issues that the law of coverture had purportedly settled. Also illustrating the same resisting spirit of American women are: Laurel Thatcher Ulrich, A Midwife’s Tale (New York: Vintage Books, 1990); Hendrik Hartog, “Abigail Bailey’s Coverture: Law in a Married Woman’s Consciousness,” in Law in Everyday Life, ed. Austin Sarat and Thomas Kearns (Ann Arbor: University of Michigan Press, 1995), 63–108; and Woody Holton, Abigail Adams (New York: Free Press, 2009).

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6 The Remembrances of Elizabeth Freke, 1671–1714, ed. Raymond Anselment (Cambridge: Cambridge University Press, 2001). 7 Ibid., 38 (14 February 1673). 8 Certainly marriage settlements gave husbands a source of property to support their families, but even at this time a marriage settlement within this elite class would have included provisions and restraints to protect the property from being squandered. See Eileen Spring, Law, Land, and Family: Aristocratic Inheritance in England, 1300–1800 (Chapel Hill: University of North Carolina Press, 1993). 9 Elizabeth Freke, 39 (15 September 1673). 10 Ibid., 49 (15 August 1682). 11 Ibid., 55 (24 December 1685). 12 Ibid., 55 (8 February 1685). 13 Holton, Abigail Adams. 14 Act of Feb. 10, 1818, Ch. LXXXVII, 1818 Mass Acts 486 and judicial decisions limiting the effect of the act. Dwight v. Pomeroy, 17 Mass. 303 (1821); Est Sudbury v. Belknap, 18 Mass. (1 Pick.) 512 (1823): Jones v. Boston Mill Corp., 21 Mass. (4 Pick.) 507 (1827); Manning v. Fifth Parish in Gloucester, 23 Mass. (6 Pick.) 6 (1827). Chused, at 44–6. 15 William J. Curran, “The Struggle for Equity in Massachusetts,” Boston University Law Review 31 (1951): 269. 16 Letter from Abigail Adams to Cotton Tufts (26 April–10 May 1785) in Woody Holton, “Abigail Adams’ Last Act of Defiance,” American History 45 (2010): 59. 17 Ibid., 60. 18 Ibid. 19 Miss Weeton’s Journal of a Governess, vol. 1: 1807–1811, first published in 1936, and vol. 2: 1811–1825, first published in 1939 (London: Oxford University Press). 20 Amanda Vickery has explored Miss Weeton’s complex relationship to the men in her life in The Gentleman’s Daughter, Women’s Lives in Georgian England (New Haven, CT: Yale University Press, 1998). 21 Weeton, 1: 76, 78 and 142, and 2: 106, 169. 22 Ibid., 2: 146. 23 Ibid., 2: 159. 24 Ibid., 2: 135. 25 It is unlikely that in 1819 the deed would have been enforceable if it had

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given Nelly custody of Mary, for just the year before Lord Eldon had struck down custody provisions in private separation agreements in the notorious case involving the Lord and Lady Westmeath. See Westmeath v. Westmeath, Jac. 126 (1818). 26 See letters to Aaron Stock in Weeton, 2: 228 (1 July 1823); at 245–8 (9 December 1823); at 338–341 (25 March 1825). 27 Ibid., 2: 215. 28 Hartog, “Abigail Bailey’s Coverture.” 29 Hendrik Hartog, Man and Wife in America: A History (Cambridge: Harvard University Press, 2000), 51–2. 30 Emily Westmeath, A Narrative of the Case of the Marchioness of Westmeath (London, 1857) ; Lawrence Stone, Broken Lives: Separation and Divorce in England, 1660–1857 (Oxford: Oxford University Press, 1993), 284–346. 31 Caroline Norton, A Letter to the Queen on Lord Chancellor Cranworth’s Marriage and Divorce Bill (London, 1855); A Plain Letter to the Lord Chancellor on the Infant Custody Bill (London, 1839). 32 Affidavit of Marian Ryder, Respondent, The National Archives, Public Record Office, Kew, Surrey (hereafter TNA: PRO) J77/44/35, 16. 33 TNA: PRO J77/44/35, 14. 34 TNA: PRO J77/44/35, 16. 35 Ryder Separation Deed, Hertfordshire County Archives, D/EX486/F1. 36 Affidavit of Marian Ryder, TNA: PRO J77/44/35, 15. 37 TNA: PRO J77/44/35, 21. 38 Ryder Separation Deed. 39 Sandon Hall Archives, Staffordshire, letter 309. 40 Sandon Hall Archives, Staffordshire, letters 275 and 282. 41 John Edwin Cussans, Hertfordshire County Archives, D/ECu/12, dated 16 August 1873, 40. 42 Ibid. (italics added; underlining in original text). 43 Ibid. 44 Danaya Wright, “Well-Behaved Women,” 273–4. 45 Cussans, Hertfordshire County Archives, D/ECu/12, dated 16 August 1873, 40. 46 Outstanding work has been done on bargaining power between husbands and wives, both before and after the 1870 Married Women’s Property Act. See Mary Beth Combs, “Cui Bono? The 1870 British Married Women’s

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Property Act, Bargaining Power, and the Distribution of Resources within Marriage,” Feminist Economics 12 (2006): 51–83; Mary Beth Combs, “‘A Measure of Legal Independence’: The 1870 Married Women’s Property Act and the Wealth-Holding Patterns of British Wives,” Journal of Economic History 65 (2005): 1028–57; Amy Louise Erickson and Maria Ågren, eds, The Marital Economy in Scandinavia and Britain 1400–1900 (Burlington: Ashgate, 2005).

Conclusion tim stretton and krista j. kesselring

The essays in this volume have traced some of the many exceptions to coverture, the ways individuals worked around or ignored its strictures, and its variability across time and place. In so doing, they have also indicated both the persistence and power of coverture, and some of the reasons for that persistence and power. That coverture proved flexible in practice and its rationales adaptable to different contexts contributed to its longevity, we argue. Here, we offer a few final thoughts and suggestions for future work. Taking an unusually long chronology, from medieval to modern, and considering an array of regions drawn from the common law world, the essays in this collection highlight time and again the changes, contradictions, adaptations, and competing ideologies that lay behind the apparent continuities of married women’s legal status and experiences of law. They also confirm that “the law,” where married women were concerned, encompassed a variety of customs, jurisdictions, inheritance rules, and legal instruments. Yet despite all these changes and this diversity of overlapping and sometimes competing rules, systems, and practices, virtually every component of law consistently disadvantaged wives compared with husbands. As indicated in the introduction, the subject of married women and the law therefore provides a sobering example of “patriarchal equilibrium,” of change without transformation, as well as an opportunity to explore the utility and test the limits of this idea. Equilibrium describes a self-centring or balancing system, and to some it brings to mind a

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rather inflexible continuity, like a taut rope or builder’s cord that, once tugged or disturbed, immediately snaps back to its original position. As Judith Bennett has clarified in the years since she developed the idea in History Matters, the nature and extent of change do not have to be considered in this restrictive way.1 The sense of equilibrium stems not from the limited extent of particular changes, but from the repeated failure of women’s resources or opportunities to match those of men of the same status. As Bennett argues, engaging with such continuities and evidence of “equilibrium” is essential for those who want to understand why the oppression of women has endured for so long and in different historical settings. Also necessary is a more careful calibration of “change” and its mechanisms. Significantly, a number of the essays in this volume demonstrate that the catalyst for adjustments in legal practice often resulted less from concerns about women’s rights than from anxieties about men’s rights and obligations. As Mary Beth Combs demonstrates in her essay, in England the extension of property rights to wives and the accompanying erosion of husbands’ traditional rights and privileges cannot be explained by simple assumptions about a steadily advancing liberalism.2 Advocates of reform played a crucial role in the fight to recognize married women’s rights to hold and control separate property, but success depended on the co-operation or influence of rival interest groups. As in almost all of the states, territories, and dominions of Australia, the US, and Canada that passed similar legislation, parliamentary debates addressed the thorny question of the rights of creditors versus the rights of wives. In other words, men’s rights and the needs of the market played a prominent role, especially in light of married women’s ability to shield their husbands’ assets in instances of debt, insolvency, and bankruptcy.3 In Kim Kippen’s essay, too, what drove the judges to limit the extent of maternal contributions in poor law cases was not so much a desire to recalibrate women’s obligations as mothers as it was a concern to limit men’s obligations as stepfathers. Changes to married women’s rights could result directly from the concerns of creditors, fathers, husbands, male heirs, or merchants. As Barbara Todd’s analysis of citizenship reveals, they could also result indirectly from those concerns, in unplanned or unexpected ways.

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In providing such insights into continuities and changes, the essays also remind us that coverture, like “patriarchal equilibrium” more broadly, relied upon social interactions and individuals’ decisions. As Oliver Wendell Holmes wrote of common law, coverture was “not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified.” 4 That the choices of interested parties allowed it to adapt and inequalities to persist emerges not least from the comparative approach adopted in this volume. One of the best means of achieving a deeper comprehension of the effects of law on married women’s lives is through comparative studies of different legal regimes, both within and between cities, territories, nations, or empires. Much has been achieved in the English context by contrasting statute and common law with equity and ecclesiastical law and by examining litigation within the many jurisdictions that operated in the medieval and early modern periods. Women found judges who treated the effects of marriage in very different ways by walking from one side of Westminster Hall to the other. 5 Surely this did something to challenge common law’s claims to be “nothing else but reason.”6 Lindsay Moore’s essay, in particular, suggests that comparing regions with the same or similar systems can be especially fruitful. As Angela Fernandez’s essay also suggests, in addition to analyzing how and why change occurred at different rates and for different reasons in separate locations, it is possible to observe how individuals who lived at the time made (or failed to make) the same comparisons. British legislators contemplating reform of married women’s property law interviewed counterparts in the US who had already embraced change, for example, consciously picking and choosing from options tested in another common law jurisdiction. So, too, did legislators in Australia, Nigeria, and elsewhere draw selectively upon British models. Studying such moments of selection will take us further in understanding the nature of married women’s legal disabilities, whether expressed through coverture or other mechanisms. Here, we might step back from the common law for a reminder that it coexisted within Europe with civil law traditions and for a call to examine how these two broad systems interacted among colonists abroad. Many legal regimes in continental Europe divided property in the marital

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estate into three parts: the husband’s inherited property (owned by him alone), the wife’s inherited property (owned by her alone), and common property the couple acquired during marriage.7 The spouses’ respective rights to the common property varied by nation or territory – in urban areas of Sweden, for example, husband and wife had equal shares while in rural areas a wife’s share was usually restricted to one-third. Measuring the effect of distinctive laws and customs in individual nations and territories on the legal autonomy and access to property of particular married women can reveal unexpected similarities.8 Yet undeniable differences remain, reflected quite neatly in naming practices: Only in England and the areas that came under its influence did a woman take a husband’s name in marriage.9 More work might yet be done on how the legal regimes of colonial settings mixed and moulted. In the US and in English and French Canada such legal collisions provided their own pressures on the influence of coverture. Some of the clearest examples delineated to date came in the wake of New Amsterdam becoming New York, with Dutch inheritance and property traditions giving way to common law rules. New Netherland recognized two kinds of marriage: manus, under which a wife’s identity merged with her husband’s in a manner similar to coverture, and usus, which enabled her to maintain her property rights and legal personality in a manner that became impossible under the logic of coverture.10 The resulting transformation of law and practice did not happen overnight and certain residents contested the loss of community property and a wife’s autonomy in marriage, helping to shape a hybrid regime that in practice deviated from the English model.11 In a later period, ten American states – primarily in the west – adopted community property rules drawn from civil law traditions that mixed separate property – usually that acquired through gifts or inheritance – with general community property, to be divided equally in the event of death or divorce. This resulted in the Spanish system of community property becoming the dominant form in the US. Under this system property acquired during marriage was presumed to be community property until proved otherwise, based on notions of partnership rather than marital unity. In California, legislative and judicial officials decided to follow the common law in all areas other than marital property. The state’s first constitutional

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convention of 1849, drawing on the example of Texas, retained civil law for marital property at a time when the frenzy caused by the rush to the gold fields prompted concern for wives’ well-being and a desire to attract women to the frontier.12 Similar complexities characterized the evolution of law in such former French territories as Louisiana, Quebec, and Grenada, and await further study. And beyond the European heritage, in India, officials attached to the East India Company initially showed a willingness to recognize Hindu and Muslim marriage law.13 How did wives and husbands, legislators, judges, and other observers view the contrasts provided by alternative models of law? How did the British women who moved to Grenada after 1763 regard the property settlements of their French neighbours and vice versa? How did Scots in the colonies view English law? What did residents in regions where full divorce was impossible make of the rules permitting divorce in Connecticut and other parts of New England or of the penalty of death for adultery in Massachusetts? How did English men and women respond to news of the legislated recognition of married women’s separate property in former colonial territories between the 1850s and 1860s? That such questions can even be asked suggests again that coverture was not just “a brooding omnipresence” but a concept that was actively sustained, and makes its longevity all the more remarkable. Finding answers to such questions, we suggest, will provide much-needed context for the eventual reforms that modified and diluted the effects of coverture. Another comparative context that helps to put coverture in its place: single women and the laws that pertained to them. As Amy Froide tells us in her study of never-married women in early modern England, women who lived from 1600 to 1750 tended to marry only in their mid- to late twenties, and then very often spent their later years as widows. Moreover, at least one-fifth of women never married at all. Women in each of these categories – and they did, by dint of law and culture, become categories – had different legal rights and limits depending on whether they were maids, wives, or widows. Froide argues that marital status must be seen as a category of difference on a par with the more usually invoked trinity of class, race, and sexuality.14 The essays presented here surely support her argument.

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Their delineations of the peculiarity that was coverture might become even more meaningful when we heed Amy Erickson’s provocative reminder that the gendered aspects of English property law had not one but two peculiarities when compared with civil law systems. On coverture’s lesser-known “flip side,” common law treated unmarried women, whether never married or widowed, as legal individuals in their own right. Unlike their continental counterparts, they needed no guardians.15 As Erickson suggests, studying these two peculiarities in tandem might well provide useful insights into their workings, as well as the workings of social and economic change more generally. ghg While tracing continuity and change in comparative context and offering insight into factors that allowed the persistence of coverture, contributions to this volume and to the workshop from which it emerged also raise other questions and highlight other themes worth pursuing in the future. The question “Why England?” remains unanswered, for example; closer attention to coverture’s medieval roots and to differing notions of lordship in civil and common law may help. In a different vein, one might ask what role sex and sexuality played in coverture, especially once “unity of persons” moved from metaphor to defining doctrine. More study of adultery’s legal context might pay dividends here. What of coverture’s heteronormative qualities? And does a focus on coverture serve to avoid implicating marriage itself in the history of oppression? Does it obscure the variable and changeable nature of wedlock? The essay that opens the volume is full of ambiguous medieval unions that tested coverture’s applications, and the final essay examines the messiness that accompanied the dissolution of failed unions in an age when full legal divorce first became possible in English courts. One participant spoke of pair-bonds as existing on a spectrum; one was not, it seems, either married or unmarried, an ambiguity that warrants further study given the profound consequences that came with the marital status designation.16 Some of the essays suggest the wealth of riches to be found if turning to new sources, or to old sources in new ways. Natasha Korda’s

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reading of wills alongside dramatic texts and the familial histories of those who wrote or patronized them to uncover the anxieties produced by coverture’s contradictions; Marisha Caswell’s use of pretrial depositions to get a sense of how “popular” attitudes compared to those enshrined in legal texts; Margaret Hunt’s mining of the voluminous trove of formulaic powers of attorney in preprinted wills for the texture of married women’s lives in maritime communities; or the uses to which others in the volume put Year Books and law reports, not as prescriptive texts to be dismissed as failing to describe reality, but as records of the conflicts and conundrums through which change was filtered: all suggest valuable approaches for further work. In examining the ties between coverture and matters of the broadest political or national significance, a number of these essays also demonstrate, once more, that women’s history is not just a matter for historians of women. The ways in which the law treated married women impinged upon naval staffing and the attendant military revolution, the rise of commercial capitalism and global trade, and the formulation of laws relating to slavery. They figured into debates between orientalists and their opponents on how best to govern empire and, as Susan Staves noted at the workshop, came to serve as an index of “civilization.” Eighteenth-century imperialists saw marriage practices as a key to understanding a society’s functioning and power relationships more generally. In some sense, they were not wrong. NOTES 1 Judith Bennett, History Matters: Patriarchy and the Challenge of Feminism (Philadelphia: University of Pennsylvania Press, 2006). 2 For the difficulties in attributing such changes to liberalism alone, see also Chris Clarkson, Domestic Reforms: Political Visions and Family Regulation in British Columbia, 1862–1940 (Vancouver and Toronto: University of British Columbia Press, 2007). 3 See, too, Karen Pearlston, “Married Women Bankrupts in the Age of Coverture,” Law and Social Inquiry 34 (2009): 265–99. 4 Quoted in Catherine L. Fisk and Robert W. Gordon, “‘Law As …’: Theory and Method in Legal History,” 1 UC Irvine Law Review, no. 3 (2011): 519 at 520, citing S. Pac. Co. v. Jensen, 244 US 205, 222 (1917) (Holmes, J., dissenting).

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5 Within Westminster Hall the court of King’s Bench was located in the south-east corner, the equity court of Chancery in the south-west corner, and Common Pleas against the west wall. The Courts of Exchequer, Star Chamber, Requests, and Wards and Liveries met in adjacent buildings. 6 Edward Coke, First Part of the Institutes of the Laws of England (London, 1628), f. 97b. 7 Amy Louise Erickson and Maria Ågren, eds, The Marital Economy in Scandinavia and Britain 1400–1900 (Aldershot: Ashgate, 2005), 10. 8 Ibid. And see Cordelia Beattie and Matthew Frank Stevens, eds, Married Women and the Law in Premodern Northwest Europe (Woodbridge: Boydell Press, forthcoming). 9 Erickson and Ågren, eds, Marital Economy, 11. 10 Linda Briggs Biemer, Women and Property in Colonial New York: The Transition from Dutch to English Law, 1643–1727 (Ann Arbor, MI: UMI Research Press, 1983). 11 David Narrett, Inheritance and Family Life in Colonial New York City (Ithaca, NY, and London: Cornell University Press, 1992). 12 Caroline Bermeo Newcombe, “The Origin and Civil Law Foundation of the Community Property System: Why California Adopted it, and Why Community Property Principles Benefit Women,” 11 University of Maryland Law Journal of Race, Religion, Gender and Class, no. 239 (June 2011), 22; Carol Berkin, First Generations: Women in Colonial America (New York: Hill and Wang, 1996). 13 Susan Staves, who presented a paper at the Workshop on “Competing Constructions of Justice and Rights in the British Jurisprudence of Hindu and Muslim Marriage in India, 1772–1813,” is completing a book-length study on the intersections and interactions between English, Hindu, and Muslim law in India. See also Margaret Hunt, “Were Western European Women Really the Luckiest Women in the World? Christian, Jewish and Muslim Women in the Law Courts of Early Modern Europe and the Middle East,” in Structures and Subjectivities: Attending to Early Modern Women, ed. Joan E. Hartman and Adele Seeff (Newark: Delaware University Press, 2007), 176–99. 14 Amy Froide, Never Married: Singlewomen in Early Modern England (Oxford: Oxford University Press, 2005), esp. chap. 1. 15 Amy Louise Erickson, “Coverture and Capitalism,” History Workshop Journal 59 (2005): 1–16.

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16 For the early history of such ambiguous unions, see Ruth Mazo Karras, Unmarriages: Women, Men and Sexual Union in the Middle Ages (Philadelphia: University of Pennsylvania Press, 2012).

Contributors

Sara M. Butler is associate professor of medieval history at Loyola University, New Orleans. She is the author of two books: The Language of Abuse: Marital Violence in Later Medieval England (2007) and Divorce in Medieval England: From One to Two Persons in Law (2013). She has also written on topics such as infanticide, abortion, suicide, and homicidal insanity. She was awarded the Sutherland Prize by the American Society for Legal History for the best article in English legal history in 2007. Marisha Caswell is a teaching fellow at Queen’s University, where she recently completed a PhD on the criminal experiences of married women from 1640 to 1760. Her work focused on determining how people assigned criminal responsibility to these women in the context of changing ideas about citizenship and politics. Her current work examines the effects of crime and criminal procedure on the families of felons. Mary Beth Combs is associate professor of economics at Fordham University. Her research has focused on the balances of power that can be examined through the wealth holding of nineteenth-century shopkeepers and the distribution of resources within the household. In addition to her research in economic history, she also is co-editing a book on social justice issues in higher education.

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Angela Fernandez is an associate professor at the Faculty of Law, University of Toronto. She does her research in the area of legal history, primarily but not exclusively, of early to mid-nineteenth-century America. Projects have focused on the history of legal education, casein-context studies, important “first” lawyers, law libraries, law firm history, and the history of the legal treatise. Much of her work deals with biography, record keeping, the legal profession, and women in the law, as both lawmakers and objects of regulation. Margaret R. Hunt is professor of history and women’s and gender studies at Amherst College. She is the author of The Middling Sort: Commerce, Gender and the Family in England 1680–1780 (1996) and Women in Eighteenth-Century Europe (2010), in addition to articles and book chapters on the Royal Navy, women and the law, and the history of sexuality. She is currently working on a book on the seventeenth-century English East India Company. Krista J. Kesselring is professor of history and gender and women’s studies at Dalhousie University in Halifax, Nova Scotia. Her previous publications include Mercy and Authority in the Tudor State (2003), The Northern Rebellion of 1569: Faith, Politics and Protest in Elizabethan England (2007), and most recently a set of articles studying criminal forfeiture. Her current project examines early modern English homicide. Kim Kippen is a doctoral student in history at the University of Toronto. Under the supervision of Professor Barbara Todd, her research explores English poor law cases in the court of King’s Bench and the consequential effects of those decisions on the legal position of poor families. She is co-editor of Worth and Repute: Valuing Gender in Late Medieval and Early Modern Europe (2011). She holds an MA in history from the University of Toronto and a BA from the University of Waterloo. Natasha Korda is professor of English and of feminist, gender, and sexuality studies at Wesleyan University. Her publications include Labors Lost: Women’s Work and the Early Modern English Stage (2011) and Shakespeare’s Domestic Economies: Gender and Property in Early Modern England (2002).

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Lindsay Moore is a lecturer in the Boston University College of General Studies. Having recently completed a PhD at the George Washington University on women’s legal capabilities and the circulation of legal knowledge in England, Massachusetts, and Maryland in the seventeenth century, she is now completing a book manuscript entitled Women, Power and Litigation in the English Atlantic World, 1630–1700. Tim Stretton is professor of history at Saint Mary’s University in Halifax, Nova Scotia. He is the author of Women Waging Law in Elizabethan England (Cambridge, 1998) and the editor of a Camden Series volume, Marital Litigation in the Court of Requests, 1542–1642 (Cambridge, 2008). Other publications include essays on women’s rights, masculinity, debt litigation, and Shakespeare’s The Merchant of Venice. He is currently working on a history of coverture in England over many centuries. Barbara J. Todd is associate professor emerita in the history department at the University of Toronto. Her publications have focused mainly on widowhood in early modern England, especially on remarriage and widows’ control of real property. She has also written on married women and the poor law. Her current projects include a social history of the leading cases in the law of adulterine bastardy and a study of female investors and their participation in English public finance during the late seventeenth century. Danaya C. Wright is the Clarence J. TeSelle Professor of Law at the University of Flordia’s Levin College of Law. She has a JD from Cornell University and a PhD from Johns Hopkins University. She has written numerous articles on the history of family law in England, including studies of the records of the first decade of the 1858 Court for Divorce and Matrimonial Causes. Her current work in legal history focuses on eighteenth-century changes in trust law doctrines on which the developing child welfare standard was based. She is at work on a book on the history of English child custody law and the development of the parens patriae jurisdiction. She also has written extensively on nineteenth-century American property law, particularly the law of railroads and common carriers and has written a casebook on the law of wills, trusts, and estates.

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Index

abduction and imprisonment, 3, 24, 33, 36, 37, 248 administration of estates, 114–15, 120, 127, 131, 148; administrators/ administratrixes, 9, 114, 119, 120, 121, 123, 132, 134, 141, 159, 207; executors/executrixes, 9, 13, 37, 114, 118, 119, 120, 121, 125, 126, 127, 129, 131, 140, 148, 150, 159, 160, 163, 167, 170, 171, 207, 223, 245 Admiralty, High Court of, 141, 144, 157, 161n7, 162n17 adultery, 33, 196–7, 205–6, 210n30, 216n112, 251, 253, 254, 257, 259n3, 268, 269; Connecticut, 196; Massachusetts, 268 assault, 24, 29, 36. See also sex, sexual assault assizes, 67–8, 88–107 Bacon v. Bacon, 166, 169, 170, 175–8, 179, 180, 181 Bailey, Joanne, 61n29 bankruptcy, 218, 220–33, 255, 256

Bennett, Judith, 22n23, 265. See also “patriarchal equilibrium” Bentley, Thomas, 49, 60–1n24 Blackstone, William, 7, 14, 18–19, 22n28, 28, 46, 52–3, 89, 90, 107, 192, 193, 195, 202, 208, 241, 256, 259 bonds and obligations, 8, 10, 37, 38, 61–2n24, 63n50, 97, 120, 152, 159, 162n14, 247 Bracton, 16, 25, 26, 184n6, 188n5 Brewer, Holly, xii, 22n28 Calvin’s Case, 171–2, 173, 174, 188n47 Cavendish, Margaret, Duchess of Newcastle, 167, 168 Chancellors, 25, 29–30, 37, 119, 195, 197, 200, 222, 226 Chancery, Court of, 24, 29, 30, 38, 47, 119, 123, 129, 167, 176, 197, 218, 221, 222, 226, 233, 247; Maryland, 119–20, 126, 129, 130, 133; New York, 195 children, 64, 89, 116–8, 131, 165, 168–81, 185–6n24, 242; custody of, 8, 72, 74, 81n6, 119, 187n38, 241, 242, 249–53,

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258, 261–2n25; maintenance of, 54, 65–71, 74–9, 220–2, 232, 233; portions, 55, 119 civil law, 18, 20n3, 169, 172, 177, 266, 267, 268, 269. See also Europe; Roman law Cockayne, Marian, 253–6, 257 Coke, Edward, 164, 167, 171–2, 174, 184n6, 188n47, 192, 195 Common Pleas, court of, 28, 29, 30, 36, 37–8, 170, 175, 271n5 Connecticut, 114, 119, 120, 192, 193, 194, 195, 196, 198, 199, 201, 210n26, 215n91, 268 conspiracy, 28–9, 226 copyhold, 116, 170, 171, 220, 136n9 Court of Appeal, 3–7 coverture: “civil death,” 26, 30–2, 39, 257; defence of marital coercion, 50, 88–107; doctrine of necessities, 75, 161n10; exceptions to, 39, 118, 143–52, 156, 204–5, 164–83, 195, 203, 204, 255–6; historical references to, 3, 6, 7, 11, 15, 25, 29, 31, 32, 34, 37, 38, 45–6, 48–9, 50, 52, 75, 79, 84n30, 89–90, 93, 107, 173, 180–1, 186n26, 192, 193–4, 220, 231–2, 240; husband’s obligation to maintain his wife, 222–3, 231, 246, 249; rules of, 3, 7–10, 12, 28–35, 88, 89, 150, 165, 192, 193, 194, 218–19; unity of person, 4, 7, 13, 14, 25, 28–30, 38–9, 42n17, 81n8, 92, 192, 193–4, 198, 202, 206, 208, 214n90, 240, 241, 259, 267, 269 criminal law, 17, 50, 88–107, 162n17, 193, 194, 197, 204

Croke, George, 68–70, 170, 175–7, 179, 189n59 Dalton, Michael: The Countrey Justice (1618), 89, 90 Dayton, Cornelia Hughes, 114, 195, 208, 210n29 debt, 8, 9, 24, 30, 31, 37–8, 42n17, 44n42, 48, 50, 55, 57, 63n50, 69, 74, 75, 76, 86n67, 114–34, 137n31, 139, 143, 146, 150, 151, 152, 155, 157, 159, 204, 218, 220–34, 241, 249, 265; moneylending, 31, 57, 58, 131 Dekker, Thomas, 55–6 depositions, 88–112, 124–6 Dickens, Charles, 45–6, 50, 240–1, 248, 249 divorce, 34–5, 253, 255, 268, 269; Connecticut, 196; Divorce Acts, 4, 219; parliamentary, 248, 259n3. See also marriage, annulments; separation, marital Dolan, Frances, 20n4, 22n25 dower, 10, 11, 116–17, 119, 168, 174, 236n9; Dower Act (1833), 236n9 Duchy Chamber, 170, 177 East India Company, 141, 144, 146, 148, 156, 157, 268 Eaton, The King v. (1627), 169, 170–5, 177, 178, 180, 181, 187n36 ecclesiastical courts and justice, 24, 27, 113, 115, 117–20, 123; canon law, 31; Commissary Court, London, 123, 124, 125, 126, 140, 158 equity, 10, 12, 52, 58, 72, 77, 113, 115,

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117–20, 123, 193–5, 204, 205, 218, 220–2, 224, 230, 231, 247; Maryland, 115, 120, 129–34 Erickson, Amy, 47, 119, 269 Europe, 140, 141, 188–9n43, 206, 247, 266–7. See also France Exchequer Chamber, court of, 71, 162n14, 174

illegitimacy, 66, 173, 179, 188n45, 190n67, 197 incest, 206, 250, 253, 254, 256, 259 inheritance, 31, 54, 58, 116–20, 125–6, 128, 160, 163–81, 187n40, 191n76, 194, 223, 236n9, 246, 247, 257 in-law relatives, 66–79, 129, 244, 246, 258

feme sole status, 12, 13–14, 37–8, 39, 44n41, 57, 116, 121–3, 219, 231, 236n9 Finn, Margot, 161n10, 227 Fortescue, John, 172–3, 179 France, 170, 182, 246, 267, 268 Freke, Elizabeth, 242–4, 248 Frith, Moll or Mary, 55–7, 62n48 Froide, Amy, 268

jointures, 10, 39, 116, 118, 119, 129 Jonson, Ben, 53–4 judges, 27, 28, 30, 31, 32, 33, 34, 40 68, 70, 71, 72, 76, 77, 79, 84n30, 107, 120, 170–81, 199, 200, 203, 221, 227, 265, 266; chief justices, 69–70, 71–72, 73, 86n58, 79, 170, 175, 176, 199 justices of the peace: England, 34, 69–70, 71, 83n15, 88, 96, 97, 98, 105, 106; Connecticut, 210n26; Massachusetts, 117

Gowing, Laura, 48, 123 grandparents and grandchildren, 65, 66, 67–8, 69, 70, 71–2, 78, 79, 83n20, 176, 198, 220, 252 Hale, Matthew, 93, 180–1, 191n75 Hartog, Hendrik, 108, 164, 202, 214n90, 250–1 Hawkins, William, A Treatise of the Pleas of the Crown (1716–21), 89, 90 homilies, 14, 92 husbands’ authority and privileges under coverture, 3, 8, 10, 39, 231–2, 265; recovering wife by writ of habeas corpus, 10. See also abduction and imprisonment; coverture; marital violence; married women’s property and rights

Kerber, Linda, 164, 182 King’s Bench/Queen’s Bench, 3, 32, 33–4, 35, 36, 64–79, 83n15, 175, 176; location of, 271n5 law reports, 71, 170, 174, 175, 186n35, 191n75, 199; Croke’s Reports, 176, 177, 179 lawyers, 25, 26, 30, 39, 40, 144 163, 164, 169, 170, 172, 174, 179, 193, 199, 227, 251 linens, 9, 48, 50–7, 63n49, 102, 103, 104, 223 litigation, 26, 113–34, 137n31, 141, 142, 157, 222

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Locke, John, 6 London, 12, 37, 38, 53, 57, 106, 116, 121–6, 139–60, 163, 168, 176, 243, 252 Maitland, F.W., 15, 25 Manby v. Scott, 71, 180 marital violence, 3, 5, 15, 24, 48, 197, 248, 250, 251, 252, 253, 256, 258; husband’s power of correction, 10; protection against, 34 marriage, 3, 4, 6, 35–6, 40, 56, 92–8, 102, 107, 125–6, 164, 165, 172, 179, 182, 202, 207, 221, 242, 243, 251, 269; annulments, 24, 32–3, 34, 35, 37, 43n27; desertion, 37, 196, 245, 249, 253, 259n3; portions, 55, 65, 68, 73, 74, 75, 119, 243, 246, 250; remarriage, 24, 53, 66–79, 126, 128, 129, 176, 198; settlements, 118, 220, 221, 225–6, 233, 243, 251, 254, 256, 261n8 married women: citizenship and nationality, 107, 163–83; contracts, 8, 75, 114, 116, 121–3, 192, 194, 205, 234, 241, 259; criminal liability of, 13, 17, 88–107, 194, 197; as husbands’ agents, 9, 12, 143, 193, 247; legal redress against husbands, 34, 258; litigation, 117, 124–6, 129–34, 151, 152, 155, 157; power of attorney, 117, 143–52, 155–9, 194, 204, 254; surnames, 20n4, 32–3, 189n55, 257, 267. See also coverture Married Women’s Property Acts: England, 4, 11, 12, 19, 78–9, 217–34, 235n4, 262–3n46; Massachusetts, 247

married women’s property and rights, 8–9, 16–17, 24–5, 30–31, 46–8, 52–3, 64–79, 113–14, 139–52, 202, 207, 217–34, 242, 243, 247–8; separate estates, 47, 48, 50, 53, 54, 57, 58, 59n8, 118, 119, 120, 129, 194, 203, 204, 214n90, 218–33, 244, 246–7, 254, 258, 267, 268. See also jointures; marriage, portions; trusts and uses Maryland, 114, 115, 117, 119–20, 126–31, 133–4 Massachusetts, 114, 115, 117, 119, 131, 132, 171, 174, 182, 192, 194, 195, 198, 199–200, 201, 210n26, 246–7, 268 mayors’ courts, 24, 102–3, 104, 137n31; London 38, 54–5, 121, 122 McIntosh, Marjorie, 44n41 Middleton, Thomas, 54–5; Anne, 54–5, 56 murder, 28, 29, 89, 107 New York, 120, 192, 195–7, 200, 213n80, 250, 267 Norton, Caroline, 251, 252–3, 257, 258–9 paraphernalia. See widows parliament, 74, 75, 77, 78, 82n12, 155, 156–7, 165, 167, 168, 181, 185n23, 217–34, 265 “patriarchal equilibrium,” 12, 22n23, 264–5, 266 Pearlston, Karen, 22n20 petty treason, 13, 29 poor laws and relief, 64–79, 131, 265

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Quarterly Courts, Salem and Ipswich, 131–3 Quarter Sessions, courts of, 68, 73, 77, 168, 178 rape and ravishment, 10, 33–6 religion, 14, 25, 114, 120, 164, 171–2, 173, 174, 195, 196, 198, 199–204, 212n65, 242 Roman law, 26, 169, 172, 179, 197, 206 separation, marital, 33, 34, 43n27, 196, 197, 210n26, 225, 248–59, 261–2n25; Massachusetts, 210n26, 95–7; private, 248–56, 259 servants, 13, 14, 29, 30, 89, 96, 133, 193, 215n91 sex, 196, 20, 203–4, 206, 207; sexual assault, 253; sexual double standard, 114, 195, 196, 210n29. See also adultery; marital violence; rape and ravishment Shakespeare, William 50–2, 53, 55, 56, 57, 240 Sheriff’s Court of London 37 slavery, 3, 140, 166, 169, 172, 173, 178–80, 189n61, 190n65, 192, 198, 207, 270 statutes, 43n26, 167, 181, 193, 266; Act for the Relief of the Poor (1601), 64–79; Act of Settlement (1662), 72; Aliens Act (1844), 181, 183, 184; British Nationality Act (1730), 181; de Natis (1351), 163–80; Dower Act (1833), 236n9; Naturalization Act (1870), 11, 164, 165, 166, 178, 183; Poor

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Law Amendment Act (1834), 78; Statute of Malborough (1267), 167; Statute of Wills, 116, 194. See also Married Women’s Property Acts Staves, Susan, 22n23, 47, 82n9, 270, 271n13 step-relations, 66, 67, 68, 69, 70, 72, 73, 74, 75, 77, 78, 87n68, 265 Story, Joseph, 15, 182, 199 Suggate, Sarah, 257–8 T.E.: The Lawes Resolutions of Womens Rights (1632), xiiin5, 7, 49, 52, 60n24 theatre, 45–63 trusts and uses, 9, 10, 11, 12, 16, 19, 39, 47, 48, 53, 54, 55, 57, 58, 59n8, 63n55, 118, 130, 131, 163, 170, 171, 174, 194, 205, 214n90, 221–5, 228, 230, 241–7, 254, 259n3 unmarried women, 5–6, 91, 92, 101, 103–6, 111n52, 121, 173, 197, 268, 269 US Supreme Court, 15, 182, 199, 200 Virginia, 120, 178, 179–80 Walker, Garthine, 47, 95 Westmeath, Emily, 251–2, 253, 257, 258–9 Westminster, 33, 34, 68, 170, 266, 275n5 widowers, 206, 242 widows, 6–7, 8, 31, 47, 53, 54, 55, 57, 63n50, 69, 72, 91, 103, 104, 105, 115, 116, 117, 118, 119, 121, 122, 124, 245;

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right to paraphernalia, 8, 14, 25–6, 52–3, 54, 194, 235–6n9 wills, 8, 31, 39, 58, 63n50, 116, 118, 119, 120, 123, 124, 125, 130–1, 134, 140–2, 144, 147–60, 170–5, 178, 179, 219, 223, 224; married women’s, 8, 31, 42n20, 193, 202, 204, 219, 242, 247. See also administration of estates women’s work, 56, 69–70, 95, 252–3; wives’ economic contributions to marriage 69, 74, 75, 77

Year Books, 26–40 Yelverton, Henry, 170, 173–5, 177, 188n50