Published online by Cambridge University Press: 24 October 2019
Early modern women are often categorized by historians in relation to their marital status—whether they appeared as single, married, or widowed women. These identifications reflected the effects of marriage on women's legal and social status. Focusing on the records of the burgh and commissary courts of seventeenth-century Glasgow, this article shows how Scottish women's legal status existed instead on a “marital spectrum,” including liminal phases prior to the formation of marriage as well as overlapping phases following remarriage after the death of a spouse. This spectrum situates women's legal claims in relation to their marital career, allowing for a closer reading of women's legal activities. Court clerks working in Glasgow documented women's varied marital, familial, and legal identities within the court records, a Scottish practice that can shed new light on how women negotiated the boundaries of justice in early modern courts of law.
1 Glasgow Commissary Court, Register of Decreets and Decrees Dative, CC9/3/4/ fols. 190, 194–95, 203, 225, National Records of Scotland (hereafter NRS).
2 By 1600, £12 Scots was worth £1 sterling, £1 Scots was worth 1s. 6d. sterling, and 1 Scottish merk was worth 1s. 1d. sterling. English monetary values are included in parenthesis throughout for ease of reference.
3 Glasgow Commissary Court, Register of Decreets and Decrees Dative, CC9/3/4/fol. 225, NRS.
4 See, for example, Stone, Lawrence, The Family, Sex and Marriage in England, 1500–1800 (London, 1977), 195–202Google Scholar; Houston, R. A., “Women in the Economy and Society of Scotland, 1500–1800,” in Scottish Society, 1500–1800, ed. Houston, R. A. and Whyte, I. D. (Cambridge, 1989), 118–147CrossRefGoogle Scholar, at 129; Mendelson, Sara and Crawford, Patricia, Women in Early Modern England, 1550–1720 (Oxford, 1998), 37CrossRefGoogle Scholar.
7 McNeill, Peter G. B., ed., The Practicks of Sir James Balfour of Pittendreich, 2 vols. (Edinburgh, 1962–63)Google Scholar, 1:93, 216 (hereafter Balfour's Practicks); Clyde, James Avon, ed., Hope's Major Practicks, 1608–1633, 2 vols. (Edinburgh, 1937–38)Google Scholar, 2:17, 1 (hereafter Hope's Major Practicks); Dalrymple, James, The Institutions of the Law of Scotland: Deduced from Its Originals, and Collated with the Civil, Canon, and Feudal Laws, and with the Customs of Neighboring Nations: In IV Books (Edinburgh, 1693)Google Scholar, 1:iv, ix, 27–28 (hereafter Institutions).
8 McNeill, Balfour's Practicks, 1:163.
9 McNeill, Balfour's Practicks, 1:216.
10 Clyde, Hope's Major Practicks, 2:17, 1.
11 Dalrymple, Institutions, 1:iv, ix, 27–28.
12 For an overview, see Warner, Lyndan, “Before the Law,” in Poska, Allyson M., Couchman, Jane, and McIver, Katherine A., eds., The Ashgate Research Companion to Women and Gender in Early Modern Europe (Farnham, 2013), 234–54Google Scholar, at 237–38.
13 Erickson, Amy Louise, Women and Property in Early Modern England (London, 1993), 47–48Google Scholar; 99–101; 153–55; Stretton, Tim, Women Waging Law in Elizabethan England (Cambridge, 1998), 101–28CrossRefGoogle Scholar, 129–54; Capern, Amanda, The Historical Study of Women: England, 1500–1700 (Basingstoke, 2008), 88–148Google Scholar; Spence, Cathryn, Women, Credit and Debt in Early Modern Scotland (Manchester, 2016), 12–15Google Scholar. For a discussion on coverture, see Stretton, Tim and Kesselring, Krista J., eds., Married Women and the Law: Coverture in England and the Common Law World (Montreal, 2013)Google Scholar; Kane, Bronach and Williamson, Fiona, eds., Women, Agency and the Law, 1300–1700 (London, 2013)Google Scholar; Beattie, Cordelia and Stevens, Matthew Frank, eds., Married Women and the Law in Premodern Northwest Europe (Woodbridge, 2013)Google Scholar; Stretton, Tim, “The Legal Identity of Married Women in England and Europe,” in Europa und seine Regionen: 2000 Jahre europäische Rechtsgeschichte, ed. Bauer, Andreas and Welker, Karl H. L. (Cologne, 2006), 309–22Google Scholar, at 309–14.
14 Barclay, Katie, Love, Intimacy and Power: Marriage and Patriarchy in Scotland, 1650–1850 (Manchester, 2011), 51–52CrossRefGoogle Scholar; Simonton, Deborah, “Community of Goods, Coverture and Capability in Britain: Scotland versus England,” in Gender, Law and Economic Well-Being in Europe from the Fifteenth to the Nineteenth Century: North versus South?, ed. Bellavitis, Anna and Micheletto, Beatrice Zucca (Abington, 2018), 34–46Google Scholar, at 31–32.
15 McNeill, Balfour's Practicks, 1:93, 216; Clyde, Hope's Major Practicks, 2:17, 10; Dalrymple, Institutions, 1:iv, ix, 27–28.
16 Finlay, John, “Women and Legal Representation in Early Sixteenth-Century Scotland,” in Women in Scotland: 1100–1750, ed. Ewan, Elizabeth and Meikle, Maureen M. (East Linton, 1999), 165–75Google Scholar, at 172.
17 Coutts, Winifred, “Women and the Law,” in Coutts, The Business of the College of Justice in 1600: How It Reflects the Economic and Social Life of Scots Men and Women (Edinburgh, 2003), 135–205Google Scholar, at 144.
19 Spence, Women, Credit and Debt, 34–56.
23 For discussion of the term “spinster,” see Spicksley, Judith, “A Dynamic Model of Social Relations: Celibacy, Credit and the Identity of the ‘Spinster’ in Seventeenth-Century England,” in Identity and Agency in England, 1500–1800, ed. French, Henry and Barry, Jonathan (Basingstoke, 2004)Google Scholar; Amy Froide, Never Married: Singlewomen in Early Modern England, 154–82; Erickson, Amy Louise, “Mistresses and Marriage: Or, a Short History of the Mrs,” History Workshop Journal, no. 78 (Autumn, 2014): 39–57CrossRefGoogle Scholar, at 41–44.
24 McNeill, Balfour's Practicks, 1:221–34; Craig, Thomas, The Jus Feudale; with an Appendix Containing the Books of the Feus; a Translation by Right Honourable James Avon Clyde, 2 vols. (Edinburgh, 1934), 2:667–80Google Scholar. Scots law also distinguished between inherited land, which was bound by inheritance, and acquired land, which was freely alienable. See also Ilya Kotlyar, “The Evolution of the Scots Law and Practice of Succession: 1300–2000,” in Succession Law, Practice and Society in Europe across the Centuries, ed. Maria Gigliola di Renzo Villata (Milan, 2018), 167–206, at 181–83.
25 McNeill, Balfour's Practicks, 1:217; Craig, Jus Feudale 2:715–17; Dalrymple, Institutions 3:iv, xxiv, 438–40.
26 McNabb, “‘She Is But a Girl,’” 79.
28 Pryde, George Smith, “The City and Burgh of Glasgow: 1100–1750,” in The Glasgow Region: A General Survey, ed. Miller, Robert and Tivy, Joy (Glasgow, 1958), 134–149Google Scholar, at 144; Dennison, E. P., “Glasgow: To 1700,” in The Oxford Companion to Scottish History, ed. Lynch, Michael (Oxford, 2001), 266–272Google Scholar, at 266–67.
29 For an overview of Scots law, see Davies, Stephen J., “The Courts and the Scottish Legal System, 1600–1747: The Case of Stirlingshire,” in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. Gatrell, V. A. C., Lenman, Bruce, and Parker, Geoffrey (London, 1980), 120–54Google Scholar.
30 Hector L. MacQueen, “Law and Lawyers: 1. to Stair,” in Lynch, Oxford Companion to Scottish History, 382–386, at 382–84.
33 Margo Todd, The Culture of Protestantism in Early Modern Scotland (Yale, 2002), 265–314; Nugent, Janay, “‘None Must Meddle Betueene Man and Wife’: Assessing Family and the Fluidity of Public and Private in Early Modern Scotland,” Journal of Family History 35, no. 3 (July 2010): 219–31CrossRefGoogle Scholar; Glaze, Alice, “Women and Kirk Discipline: Prosecution, Negotiation, and the Limits of Control,” Journal of Scottish Historical Studies 36, no. 2 (2016): 125–42CrossRefGoogle Scholar; Todd, Margo, “Consistories,” in Judging Faith, Punishing Sin: Inquisitions and Consistories in the Early Modern World, ed. Starr-LeBeau, Gretchen and Parker, Charles H. (Cambridge, 2017), 40–51CrossRefGoogle Scholar.
34 Glasgow Commissary Court, Register of Deeds, CC9/14/vols. 4, 11, 12, 19, 20, 27, NRS.
35 Glasgow Commissary Court, Register of Decreets and Decrees Dative, CC9/3/vols. 1, 4, 5, 7, 8, 13, 14, 17, 21, 23, 24, 33, NRS.
36 Glasgow Burgh Court, court book, B1/1/5; book of bonds, B10/10/1; Warrants of Deeds, B10/15/226-706; 1942–1989, Glasgow City Archives (hereafter GCA).
37 For discussion on married women's surnames in Scotland, see Wormald, Jenny, “Bloodfeud, Kindred and Government in Early Modern Scotland,” Past and Present, 87 (May 1980): 54–97CrossRefGoogle Scholar, at 67; DesBrisay, Gordon and Thomson, Karen Sander, “Crediting Wives: Married Women and Debt Litigation in the Seventeenth Century,” in Finding the Family in Medieval and Early Modern Scotland, ed. Ewan, Elizabeth and Nugent, Janay (Aldershot, 2008), 85–98Google Scholar, at 90; Barclay, Love, Intimacy and Power: Marriage and Patriarchy in Scotland, 1650–1850, 72; Spence, Women, Credit and Debt, 48.
38 By contrast, English women under coverture were bound to take their husband's surname upon marriage. See T. E., The Lawe's Resolutions of Women's Rights, 125–26.
39 DesBrisay and Sander Thomson, “Crediting Wives,” 90; Spence, Women, Credit and Debt, 48.
40 This phrase was commonplace in Scottish court records. See Cathryn Spence, “‘For His Interest?’ Women, Debt and Coverture in Early Modern Scotland,” in Beattie and Stevens, Married Women and the Law in Premodern Northwest Europe, 173–90.
41 For detailed discussions on agency, see O'Day, Rosemary, Women's Agency in Early Modern Britain and the American Colonies (London, 2008)Google Scholar; Danaya C. Wright, “Coverture and Women's Agency: Informal Modes of Resistance to Legal Patriarchy,” in Stretton and Kesselring, Married Women and the Law, 239–63; Kane and Williamson, Women, Agency and the Law, 1300–1700, 1–16.
42 Erickson, “Mistresses and Marriage.”
43 Spence, Women, Credit and Debt, 40.
44 McNeill, Balfour's Practicks, 1:121.
46 Glasgow Commissary Court, Register of Decreets and Decrees Dative, CC9/3/4/fol. 160, NRS.
47 Glasgow Burgh Court, book of bonds, B10/10/1/fol. 97, GCA.
48 Her mother had died in December 1615 and bequeathed 400 merks to Drew in her last will and testament. See Glasgow Commissary Court, Register of Testaments, CC9/7/12/fols. 118–21, NRS.
49 Glasgow Burgh Court, book of bonds, B10/10/1/fols. 57–58, GCA.
50 Glasgow Burgh Court, warrants of deeds, B10/15/468, GCA.
51 Glasgow Commissary Court, Register of Deeds, CC9/14/4/fol. 117, NRS.
52 Glasgow Burgh Court, court book, B10/10/1/fols. 64–65, GCA.
53 The calculations are based on primary litigants to a suit whose names appeared at the start of the record, not on the total number of interested parties.
55 For an overview of women's involvement in the kirk sessions, see Michael F. Graham, “Women and the Church Courts in Reformation-Era Scotland,” in Ewan and Meikle, Women in Scotland: 1100–1750, 187–98.
56 Glasgow Commissary Court, Register of Decreets and Decrees Dative, CC9/3/23/fol. 474, NRS.
57 DesBrisay and Sander Thomson, “Crediting Wives,” 89.
58 Glasgow Commissary Court, Register of Decreets and Decrees Dative, CC9/3/21/fol. 153, NRS.
59 McNeill, Balfour's Practicks, 1:116.
60 Glasgow Commissary Court, Register of Decreets and Decrees Dative, CC9/3/23/fols. 489–90, NRS.
61 Spence, Women, Credit and Debt, 48, 59.
62 For narratives on absent husbands in England and Europe, see van der Heijden, Manon, Schmidt, Ariadne, and Wall, Richard, “Broken Families: Economic Resources and Social Networks of Women Who Head Families,” History of the Family 12, no. 4 (2007): 223–32CrossRefGoogle Scholar; Margaret R. Hunt, “The Sailor's Wife, War Finance, and Coverture in Late Seventeenth-Century London,” in Stretton and Kesselring, Married Women and the Law, 139–62.
63 Glasgow Commissary Court, Register of Deeds, CC9/14/27/fols. 119–20, NRS.
64 Glasgow Burgh Court, court book, B1/1/5/fol. 136, GCA.
65 Spence, Women, Credit and Debt, 50.
66 Glasgow Burgh Court, court book, B1/1/5/ fol.166, GCA.
67 Glasgow Commissary Court, Register of Testaments, CC9/7/32/fols. 105–6, NRS.
68 Glasgow Burgh Court, warrants of deeds, B10/15/639, GCA.
69 Glasgow Burgh Court, warrants of deeds, B10/15/3329, GCA.
70 Glasgow Burgh Court, warrants of deeds, B10/15/562, GCA.
71 Glasgow Commissary Court, Register of Deeds, CC9/14/20/fols. 227–29, NRS.
72 Glasgow Commissary Court, Register of Deeds, CC9/14/20/fols. 140–41, NRS.
73 Glasgow Commissary Court, Register of Deeds, CC9/14/27/fols. 13–15, NRS.
74 Glasgow Commissary Court, Register of Deeds, CC9/14/27/fols. 15–16, NRS.