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Women, Marital Status, and Law: The Marital Spectrum in Seventeenth-Century Glasgow

  • Rebecca Mason

Abstract

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.

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References

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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), 195202; 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), 118147, at 129; Mendelson, Sara and Crawford, Patricia, Women in Early Modern England, 1550–1720 (Oxford, 1998), 37.

5 Fairchilds, Cissie, Women in Early Modern Europe, 1500–1700 (Harlow, 2007), 35122; Wiesner-Hanks, Merry E., Women and Gender in Early Modern Europe, 3rd ed. (Cambridge, 2008), 55110.

6 [Thomas Edgar?], T. E., The Lawes Resolutions of Women's Rights (London, 1632), 68, 116–20, 125–26, 136–44, 204–6, 209–18.

7 McNeill, Peter G. B., ed., The Practicks of Sir James Balfour of Pittendreich, 2 vols. (Edinburgh, 1962–63), 1:93, 216 (hereafter Balfour's Practicks); Clyde, James Avon, ed., Hope's Major Practicks, 1608–1633, 2 vols. (Edinburgh, 1937–38), 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), 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), 234–54, at 237–38.

13 Erickson, Amy Louise, Women and Property in Early Modern England (London, 1993), 4748; 99–101; 153–55; Stretton, Tim, Women Waging Law in Elizabethan England (Cambridge, 1998), 101–28, 129–54; Capern, Amanda, The Historical Study of Women: England, 1500–1700 (Basingstoke, 2008), 88148; Spence, Cathryn, Women, Credit and Debt in Early Modern Scotland (Manchester, 2016), 1215. 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); Kane, Bronach and Williamson, Fiona, eds., Women, Agency and the Law, 1300–1700 (London, 2013); Beattie, Cordelia and Stevens, Matthew Frank, eds., Married Women and the Law in Premodern Northwest Europe (Woodbridge, 2013); 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), 309–22, at 309–14.

14 Barclay, Katie, Love, Intimacy and Power: Marriage and Patriarchy in Scotland, 1650–1850 (Manchester, 2011), 5152; 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), 3446, 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), 165–75, 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), 135205, at 144.

18 Sanderson, Margaret H. B., A Kindly Place? Living in Sixteenth-Century Scotland (East Linton, 2002), 104.

19 Spence, Women, Credit and Debt, 34–56.

20 Froide, Amy M., Never Married: Singlewomen in Early Modern England (Oxford, 2005), 1724.

21 McNabb, Jennifer, “‘She Is But a Girl’: Talk of Young Women as Daughters, Wives, and Mothers in the Records of the English Consistory Courts, 1550–1650,” in The Youth of Early Modern Women, ed. Cohen, Elizabeth S. and Reeves, Margaret (Amsterdam, 2018), 7795, at 80–81.

22 Reinke-Williams, Tim, “Women's Clothes and Female Honour in Early Modern London,” Continuity and Change 26, no. 1 (2011): 6988, at 79.

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); 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): 3957, 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), 2:667–80. 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.

27 Ewan, Elizabeth, “Scottish Portias: Women in the Courts in Mediaeval Scottish Towns,” Journal of the Canadian Historical Association 3, no. 1 (1992): 2743, at 42.

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), 134149, at 144; Dennison, E. P., “Glasgow: To 1700,” in The Oxford Companion to Scottish History, ed. Lynch, Michael (Oxford, 2001), 266272, 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), 120–54.

30 Hector L. MacQueen, “Law and Lawyers: 1. to Stair,” in Lynch, Oxford Companion to Scottish History, 382–386, at 382–84.

31 Green, Thomas, “Romano-Canonical Procedure in Reformation Scotland: The Example of the Court of the Commissaries of Edinburgh,” Journal of Legal History 36, no. 3 (2015): 217–35.

32 Muirhead, J. S., The Old Minute Book of the Faculty of Procurators of Glasgow (Glasgow, 1948), 11.

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): 219–31; Glaze, Alice, “Women and Kirk Discipline: Prosecution, Negotiation, and the Limits of Control,” Journal of Scottish Historical Studies 36, no. 2 (2016): 125–42; 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), 4051.

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): 5497, 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), 8598, 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); 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.

45 Montgomery, George A., “Guardian and Ward,” in Introduction to Scottish Legal History, (Edinburgh, 1958), 127, at 125–29.

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.

54 Gowing, Laura, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford, 1996), 34; Tim Stretton, Women Waging Law, 99.

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): 223–32; 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.

Women, Marital Status, and Law: The Marital Spectrum in Seventeenth-Century Glasgow

  • Rebecca Mason

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