Women

Women’s Civil Actions in the North Carolina Higher Courts, 1670-1730

Donna J. Spindel

[Vol. 71 (1994), 151-173]

A number of recent studies confirm the value of knowing more about the law as it related to early American women and how that law was applied in practice.¹ Those studies show that women were far from passive or even invisible objects that the law acted upon. Rather, intentionally or not, the early legal system made a place for white women to assert themselves as individuals with a certain degree of power that they could not exercise in their world in other ways.² Current research emphasizes the importance of English statutes as a context for early American law and also attempts to consider the impact of local and regional differences in the colonies. One investigative approach that recent scholarship has not generally followed is to examine changes over time. By generalizing the whole span of the colonial period, it is easy to lose sight of the crucial and often negative impact of demographic, political, and economic developments on women’s legal status. One of the purposes of this article is to address that omission by looking at the experience of a single colony over six decades. Instead of investigating how the law treated women during that period, this study looks at how women used the civil law. Was their involvement with the legal system active or passive? Did women act within a rigid interpretation of statute law? To what extent did their activity within the legal system reflect a degree of independent action not apparent in other spheres of life? These questions are answered here on the basis of a quantitative analysis of how and how often hundreds of women intersected with the legal system over time.³

While a good deal of research on the legal status of early American women is now in print, very little is available for North Carolina, particularly on the subject of women’s interaction with the civil law.⁴ Alan D. Watson’s 1981 study of North Carolina women is the best overall single source on the subject, but it does not attempt to look at women and the legal system.⁵ Moreover, a recent issue of the North Carolina Historical Review devoted entirely to the history of women in the colony and state contains no scholarship focused on women and the law.⁶

This study focuses on North Carolina while the colony was under proprietary control.⁷ From its beginnings in the 1660s to the end of the proprietary era in 1729, the Carolina province grew slowly. In the earliest years, settlers from Virginia populated the Carolina frontier. They were joined at the turn of the century by French Huguenots who settled in the Pamlico River area and German and Swiss religious dissenters who established a community at New Bern. When North Carolina became a royal colony, its white population of some thirty thousand consisted largely of English men and women, emigrants from Virginia and South Carolina, a few French, Germans, and Swiss, and even fewer Scotch-Irish. Those men and women had carved two substantial settlements from the wilderness—Edenton and New Bern. Beyond that, most settlers occupied the northeastern corner of the province and, much more sparsely, a handful of counties to the south. The colony remained small, undeveloped, and largely agricultural. Although slavery existed, it was not yet an important institution.

Historians used to describe early North Carolina as a uniquely backward place in which political turmoil was the order of the day.⁸ One problem with that negative view is that it draws largely on the same repeatedly quoted contemporary accounts.⁹ In fact, recent scholarship points to similar “political turbulence” in many other English colonies during their early years of settlement.¹⁰ A more balanced perspective suggests that proprietary North Carolina was much like other fledgling colonies, still lacking stable political and legal institutions and a more precisely defined social structure. One of the goals of this study is to determine the practices of law and how women used it in that kind of rural, roughhewn environment. In this respect, the North Carolina experience can suggest generalizations about early southern colonial development as a whole.

Not a great deal is known about the white women who helped colonize proprietary North Carolina. Given the setting in which they lived, it can be assumed that women involved themselves with the agricultural and domestic demands of a frontier world. Sparse demographic data gathered from original source material, which does not specify gender, show a total population of four thousand in 1694, which increased to thirty thousand whites by 1732.¹¹ James Gallman’s study of early Perquimans County revealed “a balanced sex ratio,” while John Lawson, an early North Carolina observer, provided a rare clue to the female population when he noted in 1709 that women married young and “She that stays single till Twenty, is reckon’d a stale Maid; which is a very indifferent Character in that warm Country.”¹² If, as has been suggested, early marriages for women reflect a high sex ratio, then it is possible that men outnumbered women in the colony’s early years.¹³

The legal system that governed the lives of those North Carolina women originated in English statute and common law, in equity law, and to some extent in the legal practices of neighboring colonies, particularly Virginia. As was true for every English colony, the unique needs of North Carolina, tied to its founding, its settlers, and its environment, went a long way toward determining the framework of its legal structure.¹⁴ Despite their isolation, the early Carolina settlers, to a remarkable extent, attempted to follow the basic principles of English law and procedure. Long before courthouses were erected, for example, civil courts convened at private homes to consider petitions, suits, and matters of probate.¹⁵ Lacking a collection of laws for the province as a whole before 1715, the Carolina assembly acknowledged that “the Laws of England are the Laws of this Government, so far as they are compatible with our way of living...”¹⁶

As can best be determined, North Carolina law relevant to the needs and status of women focused on property and family law. In practical terms, enforcement of the early civil law in the Carolina colony depended to a large extent on the work and knowledge of amateurs. Consequently, the workings of the courts and application of the law tended to be forthright and direct, revealing none of the subtleties and nuances of a more fully developed legal system. North Carolina’s first legal manual, published in 1774, provided some guidance in noting that “The Common Law is the Law of the Land simply....”¹⁷ Within the framework of English common law lay a crucial principle for women—coverture. According to that doctrine of marital unity, once married a woman came “under her Husband’s Power.”¹⁸ Husband and wife became one person—“the very being and existence of the woman is suspended during the coverture, or entirely merged and incorporated in that of the husband.”¹⁹ So long as a woman was married, the law, at least in theory, virtually ignored her existence. According to a seventeenth-century English treatise, “To a married woman, her new self is superior, her companion, her master.”²⁰

A single woman (feme sole) exercised nearly all the rights of a man. A feme covert (married woman) faced almost complete deprivation of those rights unless she acted together with her husband or with his approval. She could, for example, serve as her husband’s agent or attorney, but only with his permission. At common law a feme covert could not independently sue or be sued, make a contract, convey land, or make a will. Her husband retained any real property she held before marriage, gaining “title to the rents and profits.”²¹ If a wife brought personal property to the marriage, it “absolutely rested in the husband.”²² He also had complete authority within the family and over her children. In short, a wife was “disabled to make any Bargain or Contract without [the husband’s] Consent, Privity, Allowance, or Confirmation; she can neither sue, nor be sued, without her Husband.”²³ Here the common law combined marital assets and placed them under the husband’s control, a practice that stemmed from the assumed obligation of husbands to support their wives.

Ironic as it may seem, the same law that disabled married women was designed to protect them during widowhood. That protection came in the form of dower, a share of her husband’s real property that a woman was entitled to as a widow. At her husband’s death, a widow could claim “one third part of the real estate of inheritance of which the husband was seised during the coverture.”²⁴ Her claim to dower land took precedence over that of any creditors.²⁵ At least in theory, there is no mistaking the importance of dower in the English legal system. That right was, according to William Blackstone, “for the sustenance of the wife, and the nurture and education of the younger children.”²⁶ Husbands could not independently sell real property, for that might deprive their wives of support in widowhood. At common law, “a wife cannot be barred of her dower by the conveyance of the estate by the husband, unless she consents to it.”²⁷ If a husband sold real property without his wife’s consent or without her renunciation of dower rights, she could later claim her widow’s one-third as if the sale had never occurred.

As was true everywhere in British America, North Carolina transplanted the English law of coverture and subjected it to a degree of practical interpretation.²⁸ In 1715 the North Carolina assembly stated that English statute laws “confirming Inheritences and Titles of Land, are and shall be in Force here...”²⁹ No mention of any specific English statutes appears in the record until legislation of 1749. In that year the assembly noted that while some English statutes were “altogether Useless,” others were to be enforced in the colony.³⁰ Three of the more than one hundred statutes listed touched on the legal rights of women. One of those laws permitted women to recover damages in a suit of dower (thereby recognizing the common law dower right in North Carolina).³¹ A court record of 1703, in which widow Dorothy Simpson successfully petitioned for “the one third [of her husband’s lands] to be to her as her Dower,” suggests that the colony followed the common law practice of assigning a widow’s third.³²

A very few early Carolina laws provide the barest outline of other legal practices regarding women. According to a law of 1715, which followed the common law practice in the case of intestate estates, a widow had claim to one-third of her husband’s personal estate after payment of debts, or one-half in the absence of children.³³ The same legislation strengthened a widow’s dower right by guaranteeing her claim to her husband’s mortgaged property if she had not agreed to the mortgage.³⁴ In 1715 the assembly also specified a vital principle for women concerning the transfer of land. In England, land conveyances by husband and wife followed a cumbersome legal action called “fine and recovery.”³⁵ In the colonies, less rigid ways of conveying marital property were used. The North Carolina assembly enacted a joint-deed statute, noting that “Fines & Recovery [are] not...in use here.”³⁶ After 1715, land transfers “made by the Husband & Wife & Acknowledged before the Chief Justice or in the Court of the Precinct where the land lyeth the Wife being privately examined whether she acknowledgeth the same freely shall be good and effectual....”³⁷ That procedure made it much easier to convey land in a developing community and also, by requiring a private examination of the wife, helped to ensure that she would not unwillingly lose her future right of dower. From the perspective of married women it was, indeed, a crucial right. But it was important to legislators as well. Dower would provide support in widowhood that otherwise might have to come from public accounts.

By and large, the Carolina law, even in its barest outline, and certainly from a modern perspective, appears extremely restrictive for women. As written, it clearly made married women economically dependent on men. Yet at the same time, common law fortified their weakened position through dower, private examinations, and equity. Moreover, unmarried women were burdened by none of the legal handicaps of wives. Such contradictions in the legal system make it difficult to assess precisely where women fitted in the colonial legal world. For that reason the actual experience of North Carolina women in that world may help provide a clearer image of the impact of the law on their lives.

This study looks at the records of the colony’s highest courts through 1730 as a means of determining the practical application of the law and how women used it (see table 1). The higher courts included at various times the General Court, the County Court of Albemarle, and the court of equity, or Chancery Court. While the proprietary era was very much a period of transition for the Carolina legal structure as a whole, the advantage of using the higher-court records lies in the fact that they represent “a practically unbroken series from 1694” to 1730.³⁸ Records of the lower civil courts (called precinct courts before 1739) are comparatively sparse.³⁹ Furthermore, the early General Court “had concurrent jurisdiction over most matters assigned the precinct courts as well as jurisdiction over more important matters.”⁴⁰

Table 1

Court Number Percentage

General Court 637 84.9
County Court 61 8.2
Chancery Court 52 6.9
Total 750 100.0
Note: Does not include sixteen actions for which the courts are unknown.

The County Court was in existence between 1683 and 1694. Although its membership varied, the judges usually included justices of the peace and, at times, the governor. The composition of the General Court, which replaced the County Court in the 1690s, changed over the years; it began as the governor and council and in 1698 consisted of six or seven justices commissioned by the governor and council, two of whom were justices of the quorum.⁴¹ Usually meeting three times a year, the General Court operated with grand and petit juries, attorneys, and witnesses. It was both an appellate court and a court of original jurisdiction. The authority of the General Court apparently extended to civil actions of no less than twenty shillings, but at the same time the court could “hold Pleas hear and determine all actions Sutes and Causes whatsoever within the jurisdiction of this Government....”⁴² While the General Court was a court of law, the Chancery Court handled matters of equity. Litigation in that court occurred when there was no remedy at common law. The court “proceeds by the Rules of Equity and Conscience, and moderates the Rigour of the Common Law, considering the Intention rather than the Words of the Law.”⁴³ The Chancery Court also had specific responsibilities such as confirming titles to land and ordering the execution of wills. Justices included the governor and council. Usually meeting several times a year, the Court of Chancery typically acted as a summary court.⁴⁴ While the court heard some cases on appeal, most were tried in original jurisdiction. In matters concerning wills, land conveyances, wives seeking support, and the like, equity could be especially important to women, offering them privileges that were simply unavailable in jurisdictions lacking equity courts.⁴⁵

Between 1670 and 1730, 440 individual women were involved in 766 civil actions in North Carolina’s higher courts.⁴⁶ Those entries in the court records reflect more than fifty different types of activities (see table 2). The range of causes in which women were involved suggests that in a variety of ways, married or not, alone or together with men, women participated in the legal system. If they were not directly involved in civil actions, they appeared in court as guardians, attesters, witnesses, and deponents. If they were directly involved, women appeared as debtors and creditors, bought and sold property, appointed attorneys, secured power of attorney from husbands, handled husbands’ or relatives’ estates, and, in one unusual case, even sought an annulment.⁴⁷ In the 360 civil actions for which women were identified as either plaintiff or defendant, women were plaintiffs 62 percent of the time (table 3), a fact that clearly indicates that more women were involved in initiating action in court than in responding to it. Moreover, women did not always appear in court with men. Nearly 33 percent of those whose marital status was noted were widows. In 498 recorded civil actions, women did join in suits with their husbands or other males 227 times, but they also acted alone 187 times. Of those who acted alone, 112 had the resources or knowledge either to be represented in court by an attorney or to come to court themselves with legal counsel.

Female appearances in the court records in a variety of capacities, both in joint suits and alone, clearly establish women’s visibility in the legal system. That fact is most obvious for unmarried women, who could operate within the system in much the same way as men. The role of wives in the civil courts is not as clear. Yet the large number of joint suits, even if the woman’s name appeared symbolically in the records, and even though joint suits were required in many cases, defies the traditional view that women scarcely existed in the eyes of the law.⁴⁸ A married woman’s appearance in the records, if not at the court itself, hints at a role larger than that of William Blackstone’s invisible wife. Exactly what that role entailed is difficult to assess other than on an individual basis. But it may well have been that for some wives, despite restrictive legal parameters, marriage was not a wholly dependent relationship.⁴⁹

Over the years, in the 215 debt actions for which the information is known, 46 percent of the women appeared in joint suits with husbands.⁵⁰ In North Carolina, the plaintiff typically asked for a specific value to be paid in currency or goods. The debt had to be proved in writing with witnesses present to identify signatures.⁵¹ Women were plaintiffs in the majority of the cases for which litigants can be identified (60 percent). The nature of the debt actions varied, but in nearly every case it is possible to say that, if women spoke through the court records as men did, wives had more than a slight acquaintance with family finances.⁵² For example, Sarah Tetterton, coheir of the estate of John Lilly, sued the estate together with her husband on the ground that a proper inventory had not been done, making it impossible to determine “that what may appeare to be Due them” was paid. In 1722 Katherine Porter and her husband, Joshua, sued James Williamson for money they said her former husband, Tobias Knight (who was acting chief justice before he died), had loaned Williamson “in his life time.”⁵³ That kind of suit in particular, linked to the economic activity of a deceased spouse, indicates that Porter had in some way acquired knowledge of her former husband’s financial dealings. A number of joint suits are also on record in which there is no apparent reason why wives should have been party to the actions, yet their names appear in the court record. The fact that they did participate hints at a role for those women outside the traditional domestic sphere.⁵⁴

The law allowed unmarried women to act alone in civil suits, and nearly 48 percent of all women involved in debt actions did so. Margaret Branch, for example, a frequent plaintiff in debt actions, sued Thomas Lillie for “the Sum of thirteen pounds Fiffteen Shillings of Boston money,” based on a written obligation she was required to show in court. Hannah Wood brought suit against Thomas White, claiming that “upon pretence of a debt due to him from” Wood’s husband, he had taken her “wearing clothes” and those of her children, an action that would endanger her own “and her Childrens health Now winter is Comming....” In 1718, widow Winifred Boyd showed that she may have had a good deal of prior knowledge of her husband’s business transactions when she complained that John Whedbee owed her husband’s estate “Twelve Pounds and Fifteen shillings in good Merchantable Pitch,” based on a written obligation from 1713 that she produced in court. Thomas Boyd, she said, had “often” in his lifetime “Demanded” payment from Whedbee, and now she was doing so. After Mary Lawson, also a “widdow,” won her debt action in court, she “prayed by reason of hir Insolvencey” that the plaintiff be held in custody until he paid the debt. And finally, a former servant named Ann Thomas successfully petitioned the General Court for “three barrells of Corne and four pounds in Bills” owed to her by her “last Master.”⁵⁵

Nearly 40 percent of women in debt actions were defendants. Some, such as Sarah Henley, were sued jointly with their new husbands, as the law required, for debts owed by their previous husbands’ estates. But other women, while single, apparently incurred debts on their own. In 1722, for example, Andrew Lathinghouse claimed that when Joanna Palmer “was sole,” she indebted herself to him “for building one brick Chimney and doing and performing divers others workes and labours....” Mary Halsey, a widow, allegedly refused to pay a debt of “eighteen barrells of good pitch,” which the plaintiff argued she had incurred a year earlier. Ann Batchelor, a feme sole, had to pay a debt of “eight pounds Sterling” to which she “confess’t.” In 1725, the estate of Sarah Hawkins, widow, was sued for the “Sum of One hundred pounds Sterling” that she allegedly “did bind and oblige herself to pay” six years earlier.⁵⁶ In most cases the court records simply do not reveal precisely why single women became indebted, but their debtor status certainly points to economic activity outside the household.

Women were also partners, as required by law, in joint suits for defamation or slander. Those were civil suits in which the plaintiff tried to recover damages for injuries caused by words.⁵⁷ Over the years, wives appeared in defamation suits fifteen times and single women only six times. Katherine Carleton and her husband, Arthure, were defendants in a “plea of Slander” in 1699. According to the record, Katherine allegedly said that the plaintiff “was an old thieving Rogue and she would prove him a theefe by Evidence for he had stole her tobaccoe....” John Dunning and his wife, Rebecca, complained in 1728 that Paul Palmer “did Seduce ... Rebecca to committ adultery” and to “dishonour” her marital relationship. Palmer allegedly called Rebecca “a notorious Lyar,” for which the plaintiffs asked five hundred pounds in damages. Elizabeth Marston, a widow and tavern keeper, sued William and Mary Havett because Mary allegedly declared that Marston was “a common Bawd and keeps a Common Bawdy house....”⁵⁸ While the sample is small, the pattern of those civil actions duplicates that of other colonies, such as Maryland, where women were typically defamed for immorality and men for property crimes.⁵⁹ Coverture notwithstanding, such actions also suggest that women could assert themselves with words and would use the civil courts to defend their reputations.

Carolina women played a conspicuous role in the higher courts, both alone and together with men, as estate executors or administrators.⁶⁰ Those tasks required them to become involved in the legal process and to have some knowledge of probate law. Over the years, women appeared in court as administratrix (85) or executrix (96) 181 times. A North Carolina law of 1723 required each executrix or administratrix to put together within a specified time “a just, true and perfect, Inventory of all the Goods and Chattels of the Deceased,” to present the inventory at court under oath, and, if debts must be paid, to hold a public sale, of which they must “render a true Account.”⁶¹ In fact, their responsibilities extended well beyond what was specified in the law. During the time before the will was probated, women had to keep an account of any perishable goods that the family used as well as any expenses they incurred in the care of children or keeping a home. They also served as a buffer between heirs of the estate and creditors and tried to collect debts owed to the estate.⁶² If a man died intestate, his “next of kin” had to request appointment as administrator within a specified time.⁶³ All of those tasks put women, particularly those who acted alone, in a position where they might wield some power and have some influence on their own futures and those of their families.

The handling of an estate could be a demanding job, particularly when debts had to be collected. If a widow remarried, she could sue or be sued in her capacity as executrix or administratrix of her deceased husband’s estate only in the form of a joint suit with her new spouse. Although she acted together with her husband, she could still continue in name as administratrix or executrix.⁶⁴ If she recovered real property from family, friends, or a deceased spouse, her new husband would manage it but could not sell it without her consent. The property, in fact, was hers, to be inherited by her own family, not her husband, if she died first. If she and her new husband had children, the property ultimately would be inherited by them. Obviously, if a widow did not remarry, handling her husband’s estate was one legal activity in which she might act without the explicit help or supervision of men. In fact, among the 132 cases for which the data were recorded, 44 percent of the women who executed estates did so alone. Among those who administered husbands’ wills, 55 percent acted alone (see table 4). A widow’s first contact with the courts might have occurred if her husband died intestate. Jane Deanes, for example, petitioned for “Letters of Administration on her husband William Deanes estate” in October 1685. Sarah Ming was named to administer her husband’s estate in 1707, after “giveing Security for the Same.”⁶⁵

Women named executrix in their husbands’ wills came to court for a variety of reasons, which seemed to reflect a real interest in pursuing what they believed was rightfully theirs. That interest must have stemmed from an appreciation for what the law allowed as well as a knowledge of who was indebted to their husbands and for what amount. In 1703, for example, widow Sarah Gillam petitioned the Chancery Court to require William Duckenfield to pay her “thirty pounds” owed to her husband by the estate of William Riggs, which Duckenfield was administering. According to Gillam, the defendant had argued “that he hath not Assetts in his hands So that Your petitioner is wholy Kept out of her Right....” Gillam wanted to see an account of Riggs’s estate, “By which means your Petitioner shall Know whither there be any of Riggs Estate...to make good the Said Bill.”⁶⁶ During the 1720s, Mary Chapman, given the task of settling an estate of considerable size, brought suit against four different individuals for varying quantities of tobacco, pork, and money. Margaret Branch, executrix of the estate of William Branch, sued John Molton through her attorney for “fourty five pounds Sterling.” The case began in the General Court in March 1724. Molton appeared at the July session of the court with an attorney and managed to delay the “tryall till the next Court....” When Molton failed to show up in October, Branch “proceeded to prove her debt according” to statute law, and Molton, in absentia, was ordered to pay.⁶⁷

Widows or women who remarried were not the only females who handled estates. In 1711, Darcass Neale successfully petitioned the General Court through her attorney “on behalfe of her Selfe and Sisters Mary and Dinah [for] Letters of Administration on the Estate of their Deceased brother Charles Neale....”⁶⁸ Mary Hobbs appeared at a General Court in 1712, “praying administration as Gratest Creditor on the Goods and Chattles of David Wharton of Bath County Deceased.” After she proved in court that the estate owed her more than twelve pounds, the justices “Ordered that She have administration as prayd...”⁶⁹

Perhaps the most significant, although limited, way in which the court records show female participation in the public affairs of colonial life is in women’s involvement in actions concerning real property (see table 5). Such court appearances represented less than 20 percent of all appearances that can be explained. Moreover, in the majority of such actions women joined with men, a fact that makes it difficult to assess the extent of their direct involvement. Yet their presence at all in the records says, at the very least, that the Carolina colony resolutely enforced legal protections for the landed property of married women. Over the years, single women, although less frequently than wives, also bought and sold land, disputed titles, and claimed headrights. The recorded instances of feme sole land transactions are very few.⁷⁰ Such transactions, however, which occurred at an early time in the colony’s past, signify the presence of at least a few women wealthy and independent in their own right. In 1683, for example, Ann Gunnell, widow, sold “Fifty Acres of Land” to David Morgan. Elizabeth Dear conveyed 151 acres in Chowan Precinct in 1704, “with all Houses Edifices buildings Orchards Gardens Woods” and so forth. Susan Costen, a resident of Virginia, through her attorney sold “a Tract of land” in Chowan Precinct in 1712.⁷¹

Not surprisingly, married women were more commonly involved in land transactions. Since their dower right was in real property, wives had to “acknowledge” privately and in court their agreement to land conveyances by husbands.⁷² The courts’ insistence on a private examination did not eliminate coercion but certainly revealed a strong interest in protecting a married woman’s property rights. One such examination took place when Joshua Callaway sold some land to John Mixon in 1711. “Eliza. his wife Came also into Court and being privately Examined by the Judge of the Court relinquisht all her right of dower to the Same.”⁷³ The records leave the impression that wives often appeared in court to approve their husbands’ sale of real property. William and Lydiah Bread, for example, acknowledged “a Sale of Land” in early 1684. Together with her husband, John, Sarah Wardner sold “a tract of Land at Croatan” in 1711, part of which had been bought by her former husband. At a General Court in 1712, “A Convayance of a Tract of land lyeing in the precinct of Chowan was accknowledged in open Court by Nath. Avery and mary his wife unto Win. Haughton.”⁷⁴ The records also indicate that when feme covert property law was restrictive in an obviously harmful way, it could be circumvented. Take the not-so-unusual case of Johanna Peterson, widow. Her dower right to one-third of her husband’s considerable estate allowed her to enjoy its rents and profits but not to sell it. In 1715 the North Carolina assembly enacted legislation that, in effect, enabled Johanna to sell her life interest so that her infant daughter, to whom the property descended, could benefit while the lands were still “valuable.”⁷⁵

Women also were litigants in cases involving land disputes, usually, but not always, in joint suits with husbands.⁷⁶ In 1698, for example, Caleb and Jane Bundy successfully argued that Jane had inherited property that the defendant claimed he had bought. In 1704, Deborah Macclendon, executrix of the estate of Nathaniel Sutton, won a case with her husband in which the defendant had occupied “A certaine plantation” in Perquimans Precinct that was part of their “Rightfull Inheritance.” Sisters Elizabeth, Anne, and Martha Wheatly complained in 1718 that John Slocumb refused to give them title to lands their deceased father had bought from Slocumb “15 yeare’s agoe.” Their complaint revealed that the sisters had considerable knowledge of at least that particular financial transaction. When the Wheatlys argued that Slocumb intended “to Deceive and defraud” them, the Chancery Court ordered him to pay them “thirty pounds Sterling” for the land in question while retaining ownership himself. Chancery Court likewise was the setting in August 1720 for a complaint brought by Christian Privet against “Thomas Stacy and others.” Through her attorney, Privet also demonstrated a sound acquaintance with her family’s landed property. She argued successfully that her grandfather “took up and Surveyd the said Lands” claimed by Stacy “and was possessed of the Same and dyeing So Seized left the Same” to Privet’s father.⁷⁷

In addition to being litigants in civil suits, women came into contact with the civil law in a variety of other ways, sometimes alone, sometimes together with men (see table 6). Taken individually those activities say little, but as a whole they describe a public role for women outside the traditional female sphere. Women were never judges, nor did they sit on the jurors’ bench. But over the years they filled lesser roles in legal actions, for example by serving as witnesses and giving depositions. As early as 1706, Elizabeth Bolt was called to appear at Chancery Court “to Give Evidence in two Cases” in which a “Dr. [of] Medicine” complained he had not been paid for “Medicines” and “Vissits.” Alice Billett, a widow, testified in a complicated land dispute in 1714. Her statement revealed that she knew a good deal about the intimate financial dealings of men in her community. Margery Mackintosh, “a Very aged Infirm Woman and unable to Travell,” was a key witness in an ejectment suit in 1725. The court empowered three justices of the peace to take her deposition as “a Materiall Evidence in the Cause....” In 1729, Ann Batchelor testified in a civil suit that kept her at the General Court for nearly a month and required “five times ferrying over the Sound and back again....”⁷⁸ Nine times women appear in the records as attesters, putting their marks or signatures to legal documents they had witnessed.⁷⁹ During the sixty-year period studied here, women petitioned the higher courts forty-one times for compensation for “Attendance” as witnesses.⁸⁰

Over the years women also served as attorneys, although such appearances in the higher courts were relatively rare. Husbands sometimes granted power of attorney, giving wives the authority to act in their place and thereby to exercise a degree of independence in financial and legal affairs. Single women also served as attorneys in their own right.⁸¹ Ann Durant, a frequent actor in the early years of the higher courts, represented Andrew Ball in 1673, petitioning the council for wages owed to him. A few years later her husband, George, Speaker of the assembly in the 1670s, authorized “my loving [wife] Ann Durant to bee my true and lawfull Attornie....” In the 1690s, Frances Kitching proved a “Letter of Attorney” from her husband and then acted on his behalf in two debt cases. Ann Low did the same in 1705, defending her husband in two debt actions that involved a considerable amount of money.⁸² Such examples, though few in number, seem to confirm the role of “deputy husbands” for some North Carolina women.⁸³

The court records also show that women often took independent legal action in relation to personal or family matters, revealing at varying times degrees of distress as well as autonomy. Mary Branston successfully petitioned the General Court in 1711 to discharge her son from George Lumley on the ground “that her Son has Suffred great hardships for Want of Sufficient Sustenance throug the Negligence of George Lumly who left him lately forlorn and destitutes....” Mary Anne Doughton, a servant, argued that “she has served her Indented tyme” and should “be dismissed from her said servitude....” Her master contended “that Shee being in Prison in Virginia was sold to him...for her prison Fees but noe such sale appeareing” the court ordered Doughton to “be sett free.” Diana Foster, a frequent presence at court in the 1690s, apparently had the resources to present a gift of a “Cow and Calfe” to William Willoughby, “to him and his heres for ever.” In 1693 Susanna Hartley, widow, entered into a bond in the County Court to serve as guardian to Jabell Alford and “to learne him the Trade of a Carpenter or Joyner.” Elizabeth Bartley, also a widow, entered into a more demanding bond to care for an eleven-year-old orphan whom she was to teach “to read English and shall take care for his Christian Education and att the age of Sixteen yeares Shall allow [him] a young Cow....”⁸⁴

Marital problems could be the source of female court appearances, and although the number of such incidents is very small, they do reveal that some wives, in stressful situations, acted to protect themselves against the legal disabilities imposed by coverture.⁸⁵ Ann Stewart, who petitioned the County Court in 1692 for protection from the debts of her husband, explained that she was “possesed of A Considerable estate and [married] one John Stewart who hath Squandered and made Away all the Estat so that she is alltogathere with out A maintainains but what She is Asisted with by her Children:... She being like wise a Criple and with out on of her leges....”⁸⁶ Diana Foster had a similar experience, although the outcome, as in Stewart’s case, is unknown. Before her marriage to Thomas White she operated an ordinary with her son as “Copartner.”⁸⁷ After “investinge [White] with her whole Estate,” she claimed that he “doth slight neglect and disregard ... things necessary to her great grife troble and sorrow.” She recounted how he sold her belongings to satisfy debts, taking her “by the shoulder and shuffing me out of dores saying take your Cloaths and bed and be gone and I will allow you ten pounds a yeare to maintaine you.”⁸⁸ In 1704 Anne Trumball complained against her husband, Simon, “for making an assault upon her... and her sorely beating abusing and maiming which he confesseth and threatneth to repeat the like usage to her again....”⁸⁹ The records are silent as to why Hannah Castleton left her husband, but a court order of 1687 instructed that she “repaire home... and Live with him and that if she departs from him any more,” the magistrates were to “use such meanes as may cause her to Live with her husband.”⁹⁰ In 1699, Elizabeth Atkison sued her spouse in General Court, asserting that “haveng put away his wife from him,” he had given her “part of his Esteat for a meanteinence” but offered no security that the property would forever be hers. Mary Cockrill told a General Court in 1723 “that her husband had left her in very deplorable Circumstances with Severall Small Children.” In that case the council studied her petition and agreed to remit a fine her husband was obligated to pay so as not to deprive her completely of all support.⁹¹ Cases such as these provide a hint that when women in need came forward, the courts responded with help. Moreover, the records leave the impression that married women would seek a legal remedy to alleviate difficult circumstances that the law to some extent created. Marital misbehavior was clearly an appropriate concern for the courts and one that some women, at least, hoped would generate legal action on their behalf.

The sum total of women’s legal activities in the North Carolina higher courts confirms that, within a frontier context, Carolina legal practices mirrored English common law to a remarkable extent. That fact alone reflects the profound entrenchment of gender and place in English society and the colonial world. Yet as was true in other colonies that have been studied, women were distinctly not invisible in the Carolina legal landscape, nor were they meant to be. Coverture stripped wives of crucial property rights and of the ability to function on an equal basis with men in the economy, but they could still assert their presence in the legal world in a number of different ways. While the variety and number of women’s legal actions pale compared to those of men, such actions point to ways in which some women knew the law and used it to advance or protect themselves and their families. The proprietary years constituted no era of autonomy for married women, but neither was every woman buried by the constraints of coverture. Nor should the importance of the fact that unmarried or widowed women could act much the same as men be underestimated or ignored. Many femes sole were debtors and creditors. More than half who executed estates and nearly half who served as administratrices did so alone. Those activities in themselves reflect a significant legal presence for women.

The extent of women’s active involvement in the legal system, however, depended on the particular stage in the colony’s development in which they lived. Patterns of participation over time can provide some real insight into gender roles (see table 7). During every decade beginning with the 1690s, women were much more likely to be plaintiffs than defendants in civil actions.⁹² In those actions for which the information is known (198), 48 percent of the female plaintiffs acted alone. That fact hints that some women used the law to protect themselves or their families, and those women had at least a minimal knowledge of the law as well as a degree of confidence in their ability to use it. The number of women serving as executrix or administratrix also remained steady as the colony developed. But that kind of evidence, which suggests a positive, active role for women in the higher courts, breaks down when other categories of activity are examined.

The largest absolute number of civil actions in which women were involved occurred in the 1690s, a decade in which government benefited from reorganization and the colony enjoyed some stability and expansion. Prior to that period, the colony had been disrupted by Culpeper’s Rebellion and an uprising against Seth Sothel, an unpopular governor. Both those episodes reflected political turmoil brought about by ineffective proprietary government. When the proprietors imposed at least temporary order in the 1690s, and the County of Albemarle became North Carolina, the colony experienced some physical and demographic growth, which may explain the greater presence of women’s civil actions in the records. Details of the Carolina population at that early time are hard to come by.⁹³ Very sketchy data suggest perhaps four thousand inhabitants in the 1690s, which number had increased by a thousand at the turn of the century.⁹⁴ During the 1690s, stability allowed for the physical growth of the colony to include the new county of Bath and settlement in the Pamlico Sound area. The court records leave the impression that in a tiny but growing colony, at a stage relatively free of discord, women could assert themselves more often outside the customary sphere of female activity. As time passed, women engaged in civil actions in declining absolute numbers, a fact that takes on more significance in view of the sixfold increase in the white population over the next thirty years.⁹⁵ Part of the reason for the decline may have been the return of a good deal of turbulence. The Cary Rebellion, the Tuscarora War, and political conflicts of the 1720s not only disrupted legal processes but also slowed colonial growth.

The diminishing presence of women in the higher courts as time passed may be explained in other ways as well. Despite formidable obstacles to expansion, when North Carolina became a royal colony in 1729 it was by no means a primitive outpost in British America. Eleven counties clustered in the northeast and to the south along Pamlico Sound. Still mostly agricultural and far less productive than other provinces, North Carolina nevertheless had a handful of urban settlements. Clearly, the physical and economic growth of the colony had been neither rapid nor impressive, but some development had taken place. A look at specific actions in which women were involved over time may to some extent reflect that change (see table 8). For nearly all of the civil actions in which women most often appeared, a general decline over time is apparent. In two important categories, land disputes and land conveyances, only two actions occurred in the higher courts in the 1720s. Although the numbers overall are small, they hint that, as time passed and the colony outgrew its frontier beginnings, women’s participation in conventional male activities declined. Other data point to a similar conclusion. While women appointed attorneys over the years only twenty-four times, no such appointments occurred in the 1720s. While the total number of women who served as attorneys was only eight, none served at all in the higher courts between 1710 and 1730. Seven women claimed headrights in the higher courts in the 1690s, but none did so at any other time. In the 1690s wives joined in suits with their husbands ninety-six times, a number that declined to forty-four in the 1720s. And finally, women appeared as witnesses thirty-three times in the 1690s, more than twice the number that appeared in the 1720s.

Taken together, the data describe a diminished role for women in the legal system as time passed. In the colony’s early years, a fledgling, unstable court system directed by nonprofessionals, as well as a remarkable adherence to and flexible interpretation of common law, made a place for female activity. But even limited physical and economic growth in the colony, as well as demographic change, meant that narrow avenues of opportunity previously open to women, both within and outside marriage, began closing.⁹⁶ As North Carolina matured, as it evolved from outpost to colony, so the parameters of gender and place became more rigid.

Footnotes