'A mutual assent of her mind'? Women, debt, litigation and contract in early modern England

History Workshop Journal

Volumn 55, Issue 1, 2003, Pages 47-71

  Muldrew, Craig ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 3442891146     PISSN: 13633554     EISSN: 14774569     Source Type: Journal    
DOI: 10.1093/hwj/55.1.47     Document Type: Article

References (179)

1. TheTradesman's Lawyer and Country Man's Friend, London, 1703, pp. 1, 12.
2. TheTradesman's Lawyer, pp. 15-17.
3. English Reports: Manby versus Scott (1663), 1 Mod., p. 126.
4. Tradesman's Lawyer, p. 15.
5. Tradesman's Lawyer, pp. 16, 66, 72.
6. M. Bateson, Borough Customs vol. 1, Publications of the Selden Society 18, 1904, pp. 227-8;
7. Margaret R. Hunt, The Middling Sort: Commerce, Gender, and the Family in England 1680-1780, Berkeley, 1996, pp. 138-40.
8. Craig Muldrew, The Economy of Obligation: the Culture of Credit and Social Relations in Early Modern England, London, 1998, chap. 10.
9. Thomas Hobbes, Leviathan, 1651, pp. 217-8.
10. For women selling goods in the market place see, W. Thwaites, 'Women in the Market place: Oxfordshire c.1690-1800', Midland History 9, 1984, pp. 23-42;
11. Sara Mendelson and Patricia Crawford, Women in Early Modern England, Oxford, 1998, chap. 6.
12. Jeremy Lake, The Great Fire of Nantwich, Nantwich, 1983, p. 34;
13. Hugh Alley's Caveat: the Markets of London in 1588, ed. Ian Archer, Caroline M. Barron, Vanessa Harding, London Topographical Society, 1988, pp. 31-4, 55ff.
14. This is also the case in paintings of Covent Garden market in the early eighteenth century printed in Manners and Morals, Hogarth and British Painting 1700-1760, Tate Gallery, London, 1987, pp. 67, 117, 229.
15. Examples of female street sellers can be found in The Criers and Hawkers of London: Engravings and Drawings by Marcellus Laroon, ed. Sean Shesgreen, Aldershot, 1990.
16. Peter Earle, 'The Female Labour Market in London in the late Seventeenth and Early Eighteenth Centuries', Economic History Review 2nd series, 42, 1989, pp. 330, 336-7.
17. Hunt, Middling Sort. Margot Finn has also demonstrated the extent of women's participation in Courts of Requests for small debts in the late eighteenth and early nineteenth centuries where the records are very full.
18. Margot Finn, 'Women, Consumption and Coverture in England c.1760-1860', Historical Journal 39, 1996, pp. 703-22.
19. John Fitzherbert, Booke of Husbandrie, London, 1598, pp. 177-9;
20. The Diary of Samuel Pepys, ed. Robert Latham and William Mathews, vols 1-10, London, 1970-1983, vol. 5, p. 283;
21. vol. 6, p. 46;
22. Diary of Lady Margaret Hoby, ed. Dorothy M. Meads, London, 1930, pp. 94, 100;
23. The Great Diurnal of Nicholas Blundell, ed. Frank Tyrer and J. J. Bagley, Publications of the Record Society of Lancashire and Cheshire nos 110, 112, 114 (1968-72), vol. 1, pp. 26, 28, 89, 120, 129, 130, 146, 190, 196, 204.
24. Sarah Fell kept both the household and farming accounts of Swarthmoor Hall in Furness, where she lived with her mother and sisters: The Household Account Book of Sarah Fell of Swarthmoor Hall, ed. Norman Penny, Cambridge, 1920. Accounting by both men and women became more common in the eighteenth century. See Hunt, Middling Sort, pp. 58-62.
25. J. T. Fowler, 'The Account Book of William Wray', The Antiquary 2, 1896, throughout.
26. The Journal of Giles Moore, ed. Ruth Bird, Publications of the Sussex Record Society 68, 1971;
27. T. N. Brushfield, 'The Financial Diary of a Citizen of Exeter 1631-43', Transactions of the Devonshire Association for the Advancement of Science, Literature, and Art 33, 1901;
28. Accounts of the Reverend John Crakanthorp of Fowlmere 1682-1710, ed. Paul Brassley, Anthony Lambert, Philip Saunders, Publications of the Cambridgeshire Records Society 8, 1988.
29. In the mid seventeenth-century household accounts of the Blowfield family of Suffolk, money for groceries was also listed as being given to the wife on various occasions and, together with meat, accounted for about twenty per cent of expenditure. East Suffolk Record Office, HA30:369/249. The question of female accounting is discussed in an unpublished paper by Amy Louise Erickson, 'Maternal management and the cost of raising children in early modern England', pp. 9-12.
30. Brushfield, 'Financial Diary of a Citizen of Exeter', pp. 22-3.
31. Crakanthorp Accounts, ed. Brassley, Lambert and Saunders, pp. 6-8, 121, throughout.
32. Figures are given in Muldrew, Economy of Obligation, pp. 65-9.
33. Muldrew, Economy of Obligation, p. 130.
34. Daniel Defoe, The Complete English Tradesman (1725), London, 1987, pp. 204-5
35. The Diary of Thomas Turner, ed. David Vaisey, Oxford, 1985, pp. 22, 41, 47, 128, 131, 16, 164-5.
36. Nehemiah Wallington's wife Grace also commonly sold things in his shop. Paul Seaver, Wallington's World; a Puritan Artisan in Seventeenth-Century London, Stanford, 1985, p. 123.
37. William Stout's sister helped him in his shop, and overlooked his apprentice when he was away. The Autobiography of William Stout, ed. J. D. Marshall, Publications of the Chetham Society third series, 14, 1967, pp. 105, 132-133.
38. For further examples of women involved in business in London, see, Peter Earle, The Making of the English Middle Class, London, 1989, pp. 158-174.
39. Alexandra Shepard, 'Manhood, Credit, and Patriarchy in early modern England c. 1580-1640', Past and Present, 167 (2000), pp. 90-5.
40. Books of Examinations and Depositions, 1627-1634, ed. R. C. Andrews, Publications of the Southampton Record Society 31, 1931, pp. 8-10.
41. For other examples of wives' sales, see Books of Examinations and Depositions, 1622-1627, ed. G. H. Hamilton, Publications of the Southampton Record Society 29, 1929, pp. 5, 17, 29;
42. The Deposition Books of Bristol, 1643-1647, ed. H. E. Nott, 1, Publications of the Bristol Record Society 6, 1935, p. 169.
43. Staffordshire Quarter Sessions Rolls 1598-1602, ed. S. A. H. Burn, Historical Collections for Staffordshire 58, 1935, 4, p. 283-4.
44. Buckinghamshire Probate Inventories 1661-1714, ed. Michael Reed, Publications of the Buckinghamshire Record Society 24, 1987, pp. 21-8, 289-300.
45. 'The Diurnall of Adam Eyre', ed. H. J. Morehouse, in Yorkshire Diaries, Publications of the Surtees Society 65, 1875, pp. 42-3.
46. The Papers of Sir William Chaytor of Croft 1639-1721, ed. M. Y. Ashcraft, North Yorkshire County Record Office Publications 33, 1984, p. 65.
47. Cholmeley continued to borrow small sums from Crawthorne, and transacted much other business with her as well, selling her slates, pasturing her cow and foal, and 'two kine' for 'a sennett price not sett downe, but what I will.' The MemorandumBook of Richard Cholmeley of Brandsby, 1602-1623, North Yorkshire County Record Office Publications 44, 1988, pp. 21, 53, 55, 57-8, 61, 65-6, 69, 72, 77, 85, 98, 103, 107.
48. Memorandum Book of Richard Cholmeley, pp. 117, 130, 138, 160, 174, 175.
49. Amy Louise Erickson, Women and Property in Early Modern England, London, 1993, pp. 136-7.
50. Amy Louise Erickson, An Introduction to Probate Accounts', in The Records of the Nation, ed. Geoffrey Martin and Peter Spufford, Suffolk, 1990, pp. 273-86.
51. Ninety per cent of all accounts were filed for married men. Erickson, 'Probate Accounts', p. 276.
52. Jacqueline Bower, 'Introduction to Probate Accounts', in Guide to the Probate Accounts of England and Wales, ed. Peter Spufford, British Record Society, London, 1999, pp. xxix-xxx;
53. Erickson, 'Probate accounts', p. 282;
54. Erickson, Women and Property, pp. 34-9;
55. Muldrew, Economy of Obligation, pp. 175-9.
56. Turner, Diary, pp. xxiii, 16-17, 28-9, 34.
57. Patrick Collinson, The Birthpangs of Protestant England, Religious and Cultural Change in the Sixteenth and Seventeenth Centuries, London, 1988, pp. 60-93;
58. Margo Todd, Christian Humanism and the Puritan Social Order, Cambridge, 1987, pp. 96-117;
59. Naomi Tadmor, 'The Concept of the Household-family in Eighteenth-Century England', Past and Present 151, 1996, pp. 111-40.
60. The good behaviour and trustworthiness of servants was also stressed, because servants were often given the responsibility of looking after a shop and making bargains if the master was away on business, Defoe, Tradesman, pp. 106-16.
61. For examples of servants being trusted, see Memorandum Book of Richard Cholmeley, p. 194;
62. Pepys, Diary 1, p. 68, 5, p. 229;
63. Diurnal of Nicholas Blundell 1, p. 211;
64. The Diurnall of Thomas Rugge, 1659-1661, ed. W. L. Sachse, Publications of the Camden Society 3rd series, 91, 1961, p. 316.
65. Shepard, 'Manhood, Credit, and Patriarchy', pp. 75-9.
66. William Gouge, Of Domestical Duties, London, 1622, p. 247;
67. John Dod and Robert Cleaver, A Godlie Forme of Householde Government, London, 1612, p. 166. I would like to thank Alex Shepard for help with these references.
68. Thomas Powell, The Art of Thriving, or the Plaine Path-way to Preferment. Together with the Mystery and Misery of Lending and Borrowing. Consider it Seriously, Examine it Judiciously, Remember it Punctually; and Thrive Accordingly, London, 1635
69. reprinted in A Collection of Scarce and Valuable Tracts, ed. Sir Walter Scott, vol. 8, London, 1812, pp. 191, 208.
70. Laura Gowing, Domestic Dangers: Women, Words, and Sex in Early Modern London, Oxford, 1996, pp. 139-79.
71. New forms of financial credit in the eighteenth century were often described metaphorically in terms of female sexual reputation in order to emphasize their potential instability. See Paula R. Backscheider, 'Defoe's Lady Credit', Huntington Library Quarterly 44, 1981, pp. 89-100.
72. Adam Fox, 'Ballads, Libels and Popular Ridicule in Jacobean England', Past and Present 145, 1995, pp. 47-83;
73. J. A. Sharpe, 'Defamation and Sexual Slander in early modern England: the Church Courts at York', Borthwick Papers 58, 1980;
74. Gowing, Domestic Dangers, pp. 111-38.
75. Norfolk Record Office, KL/C25/18, 07/22/54, 07/26/54. There were also a number of other similar civil defamation suits from King's Lynn in which masculine credit was claimed to have been damaged by accusations of dishonesty or theft: KL/C25/17, 09/04/52, 09/22/52;
76. KL/C25/18, 07/01/54, 08/09/54. J. H. Baker, An Introduction to English Legal History, third edn, London, 1990, pp. 497-506.
77. See also Fox, 'Popular Ridicule', pp. 74-5.
78. Muldrew, Economy of Obligation, p. 236.
79. Erickson, Women and Property, chap. 7;
80. Tim Stretton, Women Waging Law in Elizabethan England, Cambridge, 1998.
81. William Wycherly, The Plain Dealer, London, 1677, in Five Restoration Comedies, ed. J. L. Smith, London, 1984, pp. 166, 184.
82. These are counted in legal years from Michaelmas. Norfolk Record Office, Y/C4/252, 327, Y/C5/20, 39, 45, 51, 69, 91.
83. In a few cases every year some women sued each other, but this was never more than three to ten suits.
84. In each year most litigants were widows and single women, although it is impossible to know the exact breakdown between the two because it is clear that in some cases the court clerks neglected to write in that some women were widows when they had already been referred to as such in preceding instances. In a number of cases a female litigant was also executrix or administratrix, and a further number of recently-married women sued or were sued for debts they had contracted before marriage. In 1634-5, for instance, fifteen suits involved an executrix or administratrix and seven wives sued with their new husbands, while in 1699-1700 the numbers were twenty-three and nineteen respectively.
85. All female litigants were listed as being spinsters or widows, except for two per cent who were wives suing together with their husbands for debts contracted while they had still been single. Bristol Record Office, 04775 (3).
86. In the Court of Conscience for the year 1739-40, twelve per cent of plaintiffs were women and eleven per cent of defendants. Bristol Record Office, Z33 04413, 04754.
87. By comparison, in an index of suits listed by defendant for the years from 1621/22 to 1626/27, of the 2873 suits listed, eight per cent involved women defendants. Devon Record Office, a3/296, C4/93.
88. For a discussion of this litigation see, Craig Muldrew, 'Credit and the Courts: Debt Litigation in a seventeenth-century Urban Community', Economic History Review 46, 1993, pp. 23-38.
89. Hampshire Record Office, 37M85/2/HC/33;
90. North Yorkshire Record Office, ZDU 154, ZCF 162-3: Pro, E 179 215/451. For other references to the activities of hundred courts, see C. W. Brooks, Pettyfoggers and Vipers of the Commonwealth: the 'Lower Branch' of the Legal Profession in Early Modern England, Cambridge, 1986, p. 34, n. 24.
91. City Law, Or, the Course and Practice in all Manner of Juridicall Proceedings in the Hustings in Guild-hall, London Englished out of an Ancient French Manuscript, London, 1647, p. 40.
92. Muldrew, Economy of Obligation, pp. 233-4.
93. Earle, 'Female Labour Market in London', pp. 328-53.
94. London Corporation Record Office, 228A, Box 3.
95. Roger Finlay, Population and Metropolis: the Demography of London 1580-1650, Cambridge, 1981, pp. 141-2.
96. The available data is admirably summed up by Pamela Sharpe, Population and Society in an East Devon Parish: Reproducing Colyton, 1540-1840, Exeter, 2002, pp. 161-72, 346, notes 4, 7.
97. This imbalance is generally ascribed to emigration. Over 70, 000 people emigrated each decade between 1630-1660, and about 44, 000 per decade after 1660, almost all of whom were men: E. A. Wrigley and R. S. Schofield, The Population History of England, 1541-1871, Cambridge MA, 1981, pp. 260-3.
98. There were roughly 1, 243 men to 1, 286 women: Norfolk Record Office KL/C47/10. Sex ratios were also more equal in Abingdon, Oxfordshire: Barbara J. Todd, 'Demographic Determinism and Female Agency: the Remarrying Widow Reconsidered... Again', Continuity and Change 9, 1994, pp. 431-6.
99. Wrigley and Schofield, Population History, pp. 260-3. This might however be exaggerated by a higher incidence of clandestine marriage in this period.
100. Muldrew, 'Credit and the Courts', pp. 23-38;
101. Muldrew, Economy of Obligation, pp. 269-70.
102. B. A. Holderness, 'Widows in Pre-industrial Society: an Essay upon their Economic Functions', in Land, Kinship and Life Cycle, ed. Richard M. Smith, Cambridge, 1984, pp. 435-42;
103. Robert Tittler, 'Money-lending in the West Midlands: the Activities of Joyce Jeffries, 1638-49', Historical Research 67, 1994, pp. 249-63;
104. Barbara Todd, 'Freebench and Free Enterprise: Widows and their Property in two Berkshire villages', in English Rural Society, 1500-1800: Essays in Honour of Joan Thirsk, ed. John Chartres and David Hey, Cambridge, 1990 pp. 195-6.
105. By comparison, in a sample of 195 probate accounts from Hampshire dating between 1623-1715, twenty-four debts were owed by the deceased to women in the form of bonds and money while forty-six debts were owed for sales credit. Hampshire Record Office, 21/M65/D8/1-371.
106. Norfolk Record Office, KL/C47/10; Muldrew, 'Credit and the Courts', pp. 27-30;
107. Sheila Cooper, 'Family, Household, and Occupation in Pre-Industrial England: Social Structure in King's Lynn, 1689-1702', Indiana University PhD, 1985, pp. 24-6.
108. Of the total numbers of litigants involved in the court from 1683-1686, 154 (nine per cent) of plaintiffs and 123 (six per cent) of defendants were female. But, in the poll tax from 1689, 115 women were listed as being widows or spinsters, and another 130 were listed singly and were not said to be wives or servants. Thus there were 245 single women out of an estimated 1, 251 households listed in the 1689 poll tax, or nineteen per cent of the total of possible household heads (some might have been living in other households). Many of these single women listed in the 1689 poll tax cannot be found in court records, whereas eighty-one per cent of the adult men can be matched.
109. Muldrew, Economy of Obligation, pp. 246-7.
110. London Corporation Record Office, Mayor's Court, Original Bills of Complaint and Answer, 1668-69, 1684-85, 1689-91, 1699-1700; boxes 38, 69, 86, 75;
111. Interrogatories, 1641-1710, MC6/1-554, 113, 145;
112. Depositions, 1655, box 6. For some other examples from equity jurisdictions see Hunt, Middling Sort, pp. 125-7, 138-42;
113. Stretton, Women Waging Law, pp. 14-15, 28, 98-100, 114-15.
114. William Hutton, The Court of Requests, London, 1840, pp. 19-20, 37, 42, 44, 46, 47.
115. Hutton, Court of Requests, pp. 20, 42, 46-7.
116. Hutton failed to realize that persuasion was the only power they had in the institution, but later evidence shows this could be very effective. Finn, 'Consumption and Coverture', pp. 714-19.
117. The Autobiography of Mrs. Alice Thornton, ed. C. Jackson, Publications of the Surtees Society 62, 1875, pp. 135-8.
118. There are also examples from court books where large numbers of attached goods were listed: Bristol Archives Office, Z40, 04774 (2), ff.118-19;
119. (3), ff.105, 114;
120. Z41, 04782 (1), ff.120-21;
121. Hampshire Record Office, W/D1/288-294, including the household goods of two gentlemen.
122. Papers of Sir William Chaytor, ed. Ashcraft, throughout.
123. Papers of Sir William Chaytor p. 131.
124. Papers of Sir William Chaytor p. 119.
125. Hunt, Middling Sort, pp. 132-4.
126. See the argument of C. J. Hyde, in English Reports: Manby versus Scott (1663), 1 Mod., pp. 126-9.
127. Hyde in Manby versus Scott, p. 138.
128. Hunt, Middling Sort, pp. 138-42.
129. About a dozen cases did come before the Masters of the Elizabethan Court of Requests concerning marital disagreements, and the provision of maintenance to estranged wives under the doctrine of equity in order to preserve the common-law authority of coverture: Stretton, Women Waging Law, pp. 143-52.
130. See also Mary Lyndon Shanley, 'Marriage Contract and Political Contract in seventeenth century Political Thought', Western Political Quarterly 32, 1979, pp. 79-85.
131. Lawrence Stone, The Road to Divorce: England 1530-1987, Oxford, 1992, pp. 149-53.
132. Stone, Road to Divorce, pp. 160-9.
133. Richard Tuck, Natural Rights Theories: their Origin and Development, Cambridge, 1979, p. 21, 121-3.
134. English Reports: 1 Keeble. p. 69.
135. Rachel Weil, Political Passions: Gender, the Family and Political Argument in England, 1680-1714, Manchester, 1999.
136. W. J. Jones, Politics and the Bench: the Judges and the Origins of the English Civil War, London, 1971, pp. 49-50.
137. English Reports: 1 Mod, p. 125.
138. English Reports: 1 Keeble, pp. 70-1.
139. Finn, 'Consumption and Coverture', pp. 709-10.
140. He was the brother-in-law of Mathew Tomlinson, an officer in the new model army and important figure in the Protectorate, as well as the brother of the antiquarian Sir Roger Twysden who had initially opposed the payment of ship money but who was later imprisoned by parliament during the first civil war for his role in advancing the Kentish petition.
141. English Reports: 1 Keeble, pp. 81-2.
142. 1 Keeble, p. 69.
143. 1 Keeble, pp. 363-66.
144. John Locke: Political Writings, ed. David Wootton, Harmondsworth, 1993, pp. 78-82.
145. English Reports: 1 Keeble p. 446.
146. 1 Keeble, pp. 338-9.
147. 1 Keeble, pp. 362, 366;
148. Martin Ingram, Church Courts Sex and Marriage in England, 1570-1640, Cambridge, 1987, pp. 51-4.
149. On the ideal of reconciliation between husband and wife, see Keith Wrightson, English Society 1580-1680, London, 1982, pp. 94-8.
150. English Reports: 1 Keeble, p. 443.
151. On Hale's argument see, Alan Cromartie, Sir Mathew Hale 1609-1676: Law, Religion and Natural Philosophy, Cambridge, 1995, pp. 214-6.
152. English Reports: 1 Mod, p. 127.
153. 1 Mod, pp. 129, 132;
154. Keeble, p. 430.
155. I Mod, 128;
156. Keeble, p. 446.
157. The Tradesman's Lawyer and Country Man's Friend, pp. 15-18.
158. See also English Reports: 1 Mod, p. 9;
159. Ventris, p. 42;
160. Lev., p. 16.
161. See note 88.
162. Susan Staves, Married Women's Separate Property in England, 1660-1833, Cambridge, Mass., 1990, pp. 162-95.
163. Baker, Introduction to English Law, p. 551.
164. See Charles Dickens, Oliver Twist (1837-8), chap. 51.
165. Bumble is not allowed his excuse that 'It was all Mrs Bumble. She would do it': he had been present for her misdemeanour and 'the law supposes that your wife acts at your direction'.
166. Mary Astell, 'Reflections upon Marriage', in Mary Astell, Political Writings, ed. Patricia Springborg, Cambridge, 1996, p. 37.
167. Michael Mascuch, 'Social Mobility and Middling Self-identity: the Ethos of British Autobiographers, 1600-1750', Social History 20, 1995, pp. 45-61.
168. Thomas Hobbes, Leviathan (1551), ed. C. B. Macpherson, Harmondsworth, 1968, pp. 201-17, 253-6, in Part 2, chap. 20;
169. Carole Pateman, The Sexual Contract, Stanford, 1988, pp. 44-50.
170. Quentin Skinner, The Foundations of Modern Political Thought, Cambridge, 1978, vol. 2, pp. 137-8, 155-66, 176-8.
171. John Locke, Two Treatises on Government (1690), ed. Peter Laslett, New York, 1963, Second Treatise, paragraphs 65, 77-89, esp. 82-3.
172. Locke: Political Writings, ed. Wootton, pp. 64-8, 82-8, 125-6, 241-2. Both Susan Moller Okin and Carole Pateman argue that despite Locke's advocacy of contractual relations he still believed that men had an authority given to them by nature, and thus society was ultimately patriarchal.
173. But both David Wootton and Rachel Weil have disagreed with this contention.
174. See Susan Moller Okin, Women in Western Political Thought, Princeton, 1979, pp. 197-20
175. Pateman, Sexual Contract, pp. 52-3;
176. Wootton (ed.), Locke: Political Writings, pp. 82-3;
177. Weil, Political Passions, pp. 7-11, 67-79.
178. See also Shanley, 'Marriage contract', pp. 87-91.
179. On the relation between neighbourly reconciliation and the law, see Craig Muldrew, 'The Culture of Reconciliation: Community and the Settlement of Economic Disputes in Early Modern England', Historical Journal 39:4, 1996, pp. 915-42.