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Researcher says 17th-century women
had a stronger legal voice
(March 22, 1999)
efore the 1700s, women in Connecticut had a strong legal voice - stronger than they would have for many years thereafter.
Although the Puritans' attempts to repress and persecute outspoken women cannot be denied, argues Cornelia Dayton, a simplified legal system integrated women into the civic space and, as it were, gave them their day in court. Her research has been published in a book, Women Before The Bar: Gender, Law, and Society in Connecticut, 1639-1789 (University of North Carolina Press, 1995).
Based on an examination of original court records and manuscripts from that 150-year period - particularly those from the New Haven Colony - Dayton, an associate professor of history, demonstrates the Puritans' part in a long-term American tradition to try to reform the law.
"They thought the English legal system was much too complicated, and that people shouldn't have to pay lawyers, whom they considered parasites," she says. "They actually created simple procedures so that an ordinary person could bring a dispute to the court without having to hire a lawyer."
Women were among the primary beneficiaries, encouraged to litigate civil matters, such as disputes or debts. For those who physically could not get to court, a local justice of the peace would be sent to write down the testimony.
"Court records are one of the few places where the voices of ordinary folk - people who weren't learned and didn't write diaries - can be heard to some extent," Dayton says. It was a time when wives could also testify on behalf of their husbands she adds, noting records of several cases in which they were asked about a husband's financial matters. "The courts encouraged women to speak up."
In criminal proceedings, women who broke the laws were whipped and otherwise punished, to be sure. But, Dayton points out, "these New Haven Puritans actually came fairly close to what we would call a single, rather than a double standard" - the best examples being sexual crimes, which they were diligent about punishing. Sex, they felt, should only take place within marriage, and conception before marriage or by unmarried women was frowned upon. "What's striking about the 17th century is that men are called into court for these sexual crimes, and not just women. There's a real stress on the fact that a man needs to own up, as well," she says.
By the end of the century, however, the double standard reemerges "and men start to get excused for a variety of reasons," she says. The shift from the Puritan legal regime to the more adversarial English legal regime brings with it the rise of lawyers and a plethora of technical approaches and maneuverings. "For this reason and because of the commercializing economy, from then on, there are fewer and fewer women in court," Dayton says, noting that in the 17th century probably 20 percent of all cases involved a woman as party or plaintiff, whereas by the time of the Revolution, in 1770, that number had dropped to a mere four percent.
Interestingly, many of the moral and legal issues that entangle us today were already present in colonial courts, according to surviving records. Cases involving rape, divorce, spousal abuse, adultery, abortion, and even sexual harassment also frequently reflect a change in attitudes from the 17th to the 18th centuries.
Although Dayton found only a very few early cases of rape, she notes a near 100 percent rate of conviction.
The Puritan magistrates took a woman's word in sexual assault cases very seriously, she points out. "They did not look for excuses to discount a woman's charge, as would be the case a hundred years later."
Although a tiny number compared to today's, Connecticut did issue 1,000 divorces during the colonial period. Women, in the records Dayton examined, were the petitioners in more than half the cases.
Spousal abuse, while also in the records, was significantly underreported she believes, because of the husband's governance of his wife.
In cases of adultery, the Puritans actually legalized a double standard that made it a far more serious crime for the woman to commit. Somewhat altered from today's definition, a married man's affair with a single woman or widow was perceived as a sin but prosecuted in law as fornication. When a man had an affair with a married woman, both were adulterers in the eyes of the law but, as Dayton suggests, according to the cultural code, the woman's act was a double disobedience against both her marriage vows and her husband-governor.
Throughout the colonial period, New Englanders, although adamantly against sex outside marriage and critical of any pregnancies that resulted, nevertheless did not consider abortions illegal until after quickening, a term for when a woman first feels the unborn baby move.
It was not until much later, in 1745, that the first known prosecution for an abortion operation in North America was pursued over a Pomfret, Conn., case. The young girl died but with no statute on the books in Connecticut, the physician who performed the operation was charged - following English common law - only with "the high-handed crime and misdemeanor of destroying the fruit of her womb." After the jury verdict, he escaped jail, fled to Rhode Island and was not further punished.
Even today's sexual harassment seems to have made it onto the colonial court docket, under the rubric of "lascivious and lewd" behavior. Dayton points out that in this category, testimony was almost always against the man, who might be punished with a whipping or a fine and a severe reprimand.
Dayton, who joined the University in 1997, is not one to rest on the laurels of her book. She is already immersed in her next project, Negotiating Boundaries of Self: Mental Disorders and Incapacity in New England, 1620-1820, under a grant from the National Endowment for the Humanities.
Although gender is not part of her title, she hopes that this work will continue a focus on women's history: "I certainly hope to be able to talk about how men and women were treated differently in terms of mental illness."
This is one in a series of articles celebrating March as Women's History Month.