In this concise and punchy consideration of the evolution of women's participation in legal processes in England and several of its American colonies, Lindsay Moore explores how the law played an increasingly sharp and visible role in female lives between 1600 and 1800. She argues that legal institutions penetrated into the traditional terrain of patriarchal ideals and reciprocal obligations, as older aspects of familial relationships declined and new imperatives linked to commercialisation brought forth a greater willingness for courts to entertain female litigation. The multi-jurisdictional undergrowth in England allowed women – especially elites – plenty of scope to defend their interests beyond the limitations of the common law (and the restrictions of coverture). This pattern was mirrored in some respects and in some parts of English America, albeit refracted by the different denominational and population dynamics in the colonies. Moore demonstrates a fine eye for detail and a shrewd appreciation of the interlocking variables that acted to enlarge or restrict female legal visibility and agency in particular locales. Challenges arise with how far her grander claims can stand generalisation. But her core arguments that anglicised legal procedures were adopted in the colonies with many positive consequences for [white] women, and that the adaptation and extension of equity law played a key part in shaking up the options available to married women, are instructive and well sustained.
The basis for originality and the major contribution of the work lies in Moore's careful and selective sampling of litigation across a set of courts in England, Massachusetts, Maryland and South Carolina. She has painstakingly quantified the proportion of cases which involved female plaintiffs or defendants, which allows her to locate and reflect on interesting patterns in the courts’ involvement in questions of gendered power and familial conveyance. These quantitative interventions are valuable, and supplemented by anecdotal and qualitative engagement with an impressive array of individual cases, especially in the second half of the volume, that serve to make the histories and structures more human, to showcase women's voices, and to help us understand how the abstract jurisdictional and jurisprudential battlegrounds intersected with communities, households and individual lives. They do not quite amount to a categorical appraisal of the ‘different strategies and methods that women used to engage with the law’ (p. 11), but they certainly offer worthwhile indicators and a sense of comparative prioritisation.
The volume is divided into six short chapters of around 20 pages apiece that are clustered into three parts, the first of which surveys the different courts and jurisdictions that typically attended to issues of women's rights and property. Clear and useful introductions are offered that explain the different functions and remits of the common law, equity and ecclesiastical courts, and how they differed from their Old World configuration from the transplanted legal matrix in different colonial regions in English America. The heart of the book is the second part, which attends to ‘Family and Society’ and contains chapters on servitude, marriage and motherhood, and inheritance. The final chapter, and the only one really to tackle developments in the eighteenth century, addresses the ways in which active female participation in the expanding Anglo-American economy translated to new forms of legal attention and protection that, Moore argues, reflected an erosion of patriarchy. Although this structure does make for some repetition, it allows the author to cluster cases and themes together effectively, and show some of the progression in the social and cultural consensus of jurors in different regions.
The capacious title, which seemed to herald a work that might update, inflect and revise the classic synthesis in Marylynn Salmon's Women and the Law of Property in Early America (1986), is somewhat misleading. Moore's emphasis is overwhelmingly on the seventeenth century, and the Anglo-America she describes is a rather narrow formulation, and perhaps a slightly dated one. Contrasts are stressed between the Puritan colonies (with their emphasis on patriarchy and the common law) and southerly colonies (that afforded more legal agency and independence to women), and indexed against the regional religious and demographic imperatives that other scholars have mapped out. Considering the recent scholarly emphasis on rendering early America more vast and placing Anglophone developments in their Atlantic settings, we might legitimately ask: what was peculiarly English about the changing relationship between women and the courts? It seems odd to have framed this exclusively within an English and colonial axis, without linking to other works that describe a transition from familial towards contractual sensibilities, such as Holly Brewer's By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority (2007), or without attending to the social and cultural influences carried by alternative populations and divergent traditions (Dutch, Scots, Germans and so forth). Moore's Anglo-America is not fully regionally or racially encompassing – its discussions of the legal status of non-whites is partial, as reflected in the strange omission of discussion of the work of Kathleen Chater on Britain or Kathleen Brown on the Chesapeake. There are some brief forays into Pennsylvania and New York, but original American coverage is largely limited to parts of New England, Maryland and South Carolina (with no mention of the Caribbean, let alone smaller colonies with quirky legal foundations such as Rhode Island, North Carolina and Georgia); the English archival base is reliant upon courts in London and Essex. On a minor note, the book's index is frustratingly patchy and minimalist, and only really searchable for legal terms. What we end up with, then, is an illuminating and useful set of reflections and claims that shore up – and in places extend – the fundamental contours described by Salmon, which Moore herself draws on in her characterisation of the growing legal latitude enjoyed by women (described in the final chapter) as equity courts and devices grew in prominence.
Notwithstanding these caveats, there are many valid and important ideas, clues and eddies in the themes that Moore addresses, and it will remain for others to further test and bring empirical firepower to some of Moore's more provocative assertions. How far women's exercise of legal energies were expressions of desperation, how far new extensions of legal rights were premised upon new exclusions and how far the growing volume of rulings in women's favour reflected not the death of patriarchy but its cultural redistribution remain open to debate. In the meantime, there is much of interest for scholars of legal and gender history to attend to in this work, with particularly fertile analyses in chapter 2 of the ways that early colonial authorities held overlapping roles (including through prerogative courts) and the changing nature of jointures, and in chapter 4 on the role of midwives in the substantiation of paternity and its attendant legal consequences. If ‘When Women Goe to Law, the Devill is Full of Businesse’ (as the title claims in a Jacobean tragicomedy that Moore uses in her opening), one might similarly state that this book does a good job of sketching out women's increasing facility for going to law in Anglo-America, even if there remain more devils in the details with which to wrestle.
