Justice Without Partiality: Women and the Law in Colonial Maryland, 1648-1715
by Monica C. Witkowski Dissertation Marquette University, 2010
Maryland was unique. As the first British colony to allow all Christians freedom of conscience, Maryland had a society that allowed rights for a variety of people. Extending from this point, the Maryland legal structure in the early colonial period allowed women many rights. As the system developed, women learned to understand how to use and abuse the legal system.
Despite this supposed conformity with England, lawmakers in both Maryland and neighboring Virginia wrote colonial laws that varied from English laws to meet the specific needs of their colonies. The legal systems of the Chesapeake borrowed much from the mother country, but tended to simplify England’s legal system to fit the local conditions in the colonies. Authorities thus tempered some of the more intense punishments assessed in England. For example, the harsh punishments assessed in England for property offenses were lessened drastically in Maryland because the colony was “so meanly and thinly Inhabited.” However, colonists still relied heavily on reexisting law. In fact, English law was enforced fully where colonial laws were silent.
These circumstances allowed officials to implement a legal system that was a mixture of both English common and statute law, and new laws unique to the colony and custom as it developed.
Most laws used by the judicial bodies of Maryland were statute laws, passed by the General Assembly. In 1638 laws, Cecil Calvert granted the governor “full Power and Authority . . . to give assent unto such Laws as you shall think fit and necessary for the Good Government of the said Province of Maryland The Lord Proprietor retained the ability to disallow laws and suggest legislation to the Assembly, but the General Assembly, after this, had nearly complete control of Maryland’s law.
Women and the Law
Females were not allowed to sit on either the grand or petty juries. Both were composed solely of freemen. Women did, however, serve as witnesses in certain cases. Witnesses, like jurors, were paid thirty pounds of tobacco for answering a summons and appearing in court or fined for failing to appear. Women did sue male defendants when they were not paid for their time, although they generally co-sued with their husbands.
The only "juries" women served on were medical juries of women (also known as a matron’s jury) tasked with examining the body of an accused woman for signs of witchcraft or pregnancy. The matrons’ jury was not supposed to have any legal power, but frequently it offered their opinion to members of the petty jury who upheld the opinion of the women.
On June 9, 1647, Leonard Calvert died after a short illness. On his deathbed, Calvert appointed Catholic Thomas Greene to be the next Governor of Maryland. He also famously called Margaret Brent to his bedside, telling her “I make you my sole Exequtrix. Take all and pay all.” Calvert’s declaration was a critical event for the colony. Margaret Brent not only faced typical administrative duties, such as paying debts and distributing the decedent’s estate to kin, but also the demands of the Virginia militiamen Calvert had recruited to restore the colony to the Lord Proprietor’s control during Ingle’s Rebellion. Calvert had promised these men food and pay for their services. The governor had granted Brent the right to use his entire estate to pay these men, but proceeds from his estate were not enough to pay his other debts and compensate the soldiers. Leonard Calvert intended to use Lord Baltimore’s estate to pay the soldiers and oversaw the passage of an unpopular tax on tobacco to raise funds. His death preempted both plans, forcing Margaret Brent to deal with colonial unrest.
The question remains why Calvert appointed Brent, a woman, to administer his estate. There certainly were other qualified administrators in the colony. Calvert’sdismissal of all witnesses except Margaret Brent while on his deathbed has led some scholars to assume Calvert and Brent were involved in a romantic affair. However, late “requested to have vote in the howse for her selfe and voice also.” Brent requested not one, but two votes, one for herself and one for her role as attorney to the Lord Proprietor.
The governor denied her request, to which “Mrs Brent protested agst all proceedings in this present Assembly.” She never obtained voice or vote and some historians wonder if she even believed she would be granted such.
Despite her extraordinary actions, there is no evidence that women were inspired by Margaret Brent or were even aware of her actions. Members of the General Assembly, to whom Brent pled her case, did not grant women the right to sit on juries, in the Provincial Court, or in the General Assembly. She undertook actions not generally considered normal for her sex, going as far as seeking the vote for herself. Nevertheless, Mistress Margaret Brent did not seek the vote for all women, therefore she should not be considered America’s first feminist, just one stepping stone on the long path leading to women getting the vote.. However, Margaret Brent’s story was symbolic of the legal and political situation many women in the colony faced. Although Brent failed to gain the right to vote in the General Assembly, the same men who denied her this right praised her profusely to the Lord Proprietor. This was a risky move by the members of the Assembly as Calvert had expressed a decided distaste for Brent and her actions. In 1648, Cecil Calvert sent the General Assembly what must have been a decidedly scathing.
Some have wondered if Leonard Calvert would have appointed Giles Brent had he been available. Giles Brent was in the midst of returning to the colony of Maryland from captivity in England when Calvert died. Additionally, Giles had been a controversial figure in Maryland politics; thus, making his sister a more neutral choice. Her ability also proved the foresight of Calvert's decision.
