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Women and the Law in Colonial Maryland, 1648-1715 Monica C

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Women and the Law in Colonial Maryland, 1648-1715 Monica C Marquette University e-Publications@Marquette Dissertations (2009 -) Dissertations, Theses, and Professional Projects "Justice Without Partiality": Women and the Law in Colonial Maryland, 1648-1715 Monica C. Witkowski Marquette University Recommended Citation Witkowski, Monica C., ""Justice Without Partiality": Women and the Law in Colonial Maryland, 1648-1715" (2010). Dissertations (2009 -). Paper 27. http://epublications.marquette.edu/dissertations_mu/27 “JUSTICE WITHOUT PARTIALITY”: WOMEN AND THE LAW IN COLONIAL MARYLAND, 1648-1715 by Monica C. Witkowski A Dissertation submitted to the Faculty of the Graduate School, Marquette University in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy Milwaukee, Wisconsin May 2010 ABSTRACT “JUSTICE WITHOUT PARTIALITY”: WOMEN AND THE LAW IN COLONIAL MARYLAND, 1648-1715 Monica C. Witkowski Marquette University, 2010 What was the legal status of women in early colonial Maryland? This is the central question answered by this dissertation. Women, as exemplified through a series of case studies, understood the law and interacted with the nascent Maryland legal system. Each of the cases in the following chapters is slightly different. Each case examined in this dissertation illustrates how much independent legal agency women in the colony demonstrated. Throughout the seventeenth century, Maryland women appeared before the colony’s Provincial and county courts as witnesses, plaintiffs, defendants, and attorneys in criminal and civil trials. Women further entered their personal cattle marks, claimed land, and sued other colonists. This study asserts that they improved their social standing through these interactions with the courts. By exerting this much legal knowledge, they created an important place for themselves in Maryland society. Historians have begun to question the interpretation that Southern women were restricted to the home as housewives and mothers. The research in this dissertation illustrates that the female role in Maryland’s legal system refutes this assumption specifically about Maryland women. Studies of Maryland, whether of society, women, or the law, are numerically fewer than studies of other colonies. This includes the other southern colonies. Nevertheless, in the past twenty years, there has been a historiographical shift toward rehabilitating the role women had in society. This dissertation contributes to that trend by illustrating women’s agency outside of the household. Maryland was unique. As the first British colony to allow all Christians freedom of conscience, Maryland had a society that allowed rights for a variety of people. Extending from this point, the Maryland legal structure in the early colonial period allowed women many rights. As the system developed, women learned to understand how to use and abuse the legal system. This is evident in the four categories of crimes in this dissertation. Witchcraft, violent crimes, sexual offenses, and property offenses all involved females in different capacities. It was this experience with these varied cases that helped women from 1648 through 1715 carve out a place for themselves in society. i ACKNOWLEDGMENTS Monica C. Witkowski Over the course of my studies and as I prepared this dissertation, I have accumulated many debts. I would first like to thank my director, Dr. John Krugler. Not only has he given me outstanding advice and guidance throughout my academic career and as I prepared this dissertation, he has patiently answered all my questions and pushed me to be better. I would also like to thank the rest of my committee, Dr. Julius Ruff and Dr. Kristen Foster, who both showed faith in this project and my ability. I have worked with many great people throughout this project. The staff at the Maryland State Archives deserves special note. I particularly wish to acknowledge my debt to Dr. Edward C. Papenfuse, Director of the Maryland State Archives. Dr. Papenfuse was kind enough to personally meet with me to discuss this project and the holdings of the Archives. His dedication to moving towards digitization of the Archival holdings was impressive and helped inspire my research. I am deeply indebted to Marquette University. Not only has the University, Graduate School, and History Department supported me financially and academically, they have supported this project and my various other ventures throughout my time here. There is no adequate way to thank the Department. I hope this work can someday fulfill all of the positive expectations members of this Department have shown me. Finally, I offer many thanks to my mother who, for many years, has listened patiently as I talked at length about things such as pillories and ducking stools. Without her support, this project would never have been completed. The project also would never have been completed without the support of my family and friends. Each of you has influenced me in a different way. Whether I needed someone to discuss ideas with or to find an obscure book at the library, you were always there. To thank each of you individually would be a gargantuan task indeed. Please accept this small token of my appreciation. ii Only think on’t! A province, an entire people – all unsung! What deeds forgot, what gallant men and women lost to time! — John Barth, The Sot-Weed Factor iii TABLE OF CONTENTS ACKNOWLEDGEMENTS. i LIST OF TABLES . .v NOTES. vi CHAPTER INTRODUCTION . 1 I. “TO PRESERVE HARMONY AMONG MEN” – AND WOMEN?: COLONIAL MARYLAND SOCIETY, WOMEN, AND THE LAW . .21 Women and the Law . .34 Conclusion . 48 II. “THEY SAY I AM A WITCH”: EARLY MARYLAND AND WITCHCRAFT . .53 Criminal Witchcraft . 58 Civil Cases Stemming from Witchcraft Accusations. 70 Conclusion . 87 III. “WOULD YOU HAVE ME CONFESS THAT I KILLED A MAN?”: INFANTICIDE, MURDER, AND ASSAULT . 94 Infanticide . .96 Abortion . 113 Murders Committed by Women . .120 Assault . 133 Conclusion . 136 IV. “NOR A WOMAN CHASTE”: SEXUAL OFFENSES AND THE COURTS . 140 Adultery . .142 iv Fornication and Bastardy . 168 Conclusion . 180 V. “HE CAN AND WILL PROVE HER A THIEF”: MARYLAND WOMEN AND PROPERTY OFFENSES . .185 Theft . 188 Other Property Offenses . .207 Defamation and Theft . .216 Conclusion . 224 VI. CONCLUSION: A“RACE OF CONVICTS”? . 227 VII. BIBLIOGRAPHY . 239 v LIST OF TABLES Illustration 1.1 Accused Witches in Early Maryland . 89 Illustration 1.2 Marital Status of Alleged Witches . .91 vi NOTES All quotations from primary printed and manuscript sources adhere to the original spelling. Where necessary, punctuation and spelling have been modernized to assist meaning. All dates in the text are rendered according to the New Style calendar, with the year taken to start on January 1. Archives of Maryland Online hereinafter cited as AOMOL. This series is ongoing and available on line at http://archivesofmaryland.net where volumes, collectively or individually, can be searched electronically. 1 Introduction On January 21, 1648, a propertied colonist went before Maryland's General Assembly and "requested to have vote in the howse . and voice also." Governor Thomas Greene denied the request and the colonist went away protesting the proceedings of the Assembly.1 The petitioner was a unique individual who not only served as the Lord Proprietor's attorney, but also as executor for late Governor Leonard Calvert's estate. Since arriving in Maryland ten years previous, this petitioner had appeared before the Provincial Court no less than two dozen times, as plaintiff, defendant, and attorney. There was one other noteworthy fact about this individual. This petitioner with the exceptional legal and political background was also a female. The woman in question, forty-seven-year-old spinster Mistress Margaret Brent, is perhaps best known for her request to the General Assembly, but she was also accustomed to dealing with Maryland's legal system. Brent held property in St. Mary's County and Kent County; she served as attorney or executrix for at least a dozen men and women during her time in Maryland; she managed her own affairs, entering her own cattle mark and taking property claims to court as her own attorney.2 Although her individual situation was unique, Brent represented the potential women had for advancement in colonial Maryland. But, was Margaret Brent, her experience with the courts, and her legal acumen typical of Maryland women at the time? This study investigates the place of women before the bar in Maryland. The main 1 AOMOL 1:215. 2 Lois Green Carr, Women’s Career Files, MSA SC 4040, 164-001, http://www.msa.md.gov/megafile/msa/speccol/sc4000/sc4040/000001/000164/html/sc4040-0164-001.html, (Accessed January 25, 2010). This included both her brothers Giles and Fulke, Governor Leonard Calvert, his brother Lord Proprietor Cecil Calvert, and men such as Cuthbert Fenwick. See: Land Office (Patent Record), 1637-1651, 2, 530, MSA SM2-3, SR 7342. 2 question this dissertation aims to answer is: what was the legal status of women in early colonial Maryland? This question seems simple. However, inherent in this straightforward question are a host of additional questions. Did women understand the new legal system imposed on Maryland by colonial leaders? How did women view their role and abilities under this legal system? And finally how did justices, jurymen, and other authorities treat women who exercised their legal rights? This study demonstrates a number of things about women and the law in colonial Maryland. First, colonial women exhibited an understanding of the legal system which was more than superficial. Indeed, the women explored in this dissertation exhibited a sophisticated understanding of the legal workings of the colony. Many colonial women also understood how to manipulate the legal system to procure a more favorable outcome. Secondly, authorities did not disadvantage women because of their sex. In general, these authorities appear to have upheld the law which gave women the ability to establish themselves as knowledgeable legal individuals. The way women exerted their legal and social agency in Maryland throughout the early colonial period is at the heart of this dissertation.
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