Worldly Men and Pious Women: The Rise of a Double Standard in Colonial Connecticut

In 1763, twenty-four-year-old Ephraim Keith, Jr. sought the counsel of lawyer Robert Treat Paine about a paternity suit being brought against him. Keith, a Harvard graduate and student of the law, was the son of a justice of the peace and a member of a prominent family. By eighteenth-century standards, he was a young man with bright prospects. Finding himself charged with paternity, however, Keith appears to have seriously considered jettisoning both his studies and his ties with family and friends to escape legal trouble until persuaded by Paine to settle the suit out of court. In addition to offering sage advice and legal counsel, Paine agreed to smooth the way with Ephraim’s father, urging the son to make apology and a pledge of “repentance and future good Behavior” to the elder Keith (p. 227). Describing Ephraim’s tragic flaw as that of being “too handsome,” Paine explained the son’s moral lapse to the father as the victimization of “a poor inoffensive inexperienced Youth,” who, like Joseph of Old Testament fame, risked being ruined at the hands of a cunning seductress. Thanking Paine, Ephraim sounded less like a chastened prodigal than a worldly wise rake amused by the parochialism of his lover and her community. “It is needless for me to Describe the Perplexities and Embarrassments I laboured under with a Brace of Bailiffs at my Heels and all merely for the Peccadillo of begetting my own Likeness” (p. 228).

At first glance, Keith’s “Embarrassments” appear tangential to Cornelia Hughes Dayton’s Women Before the Bar: Gender, Law, and Society in Connecticut, 1639–1789. Keith was living in Massachusetts when he became the target of a paternity suit, whereas Dayton concerns herself mainly with the jurisdiction of New Haven Colony (later New Haven County) and the colony of Connecticut. The documents generated about Keith’s legal trouble, moreover, contain very little information about the young woman pregnant with his child whereas Dayton’s focus is upon “the many women who entered early Connecticut courtrooms: women suing and being sued over debt and slander, women petitioning for divorce, women prosecuted for sexual transgressions, women advancing rape charges” (p. 2).

Yet the contending interests represented by Keith, his lover, and his lawyer, if not the precise details of the incident, create the dynamic tension that pervades Dayton’s history of law and society in colonial Connecticut. Arguing that an expanding commercial economy, a growing conformity with English common law, and the bourgeois sensibilities of the colony’s rising merchant and professional classes contributed to erode the Puritan legal ethos of the seventeenth century, Dayton traces the emergence of the legal culture that replaced it. She identifies several trends that framed the choices open to Keith, his lawyer, and his anonymous lover: the increasing ability of young men to avoid public trials and punishments for sexual misconduct that would have been de rigeur during the seventeenth century; the growing likelihood that mothers of illegitimate children, particularly if they were Indian, African, or of the lower classes, would come to shoulder the entire burden of public punishment; and the rise of a predominantly male legal culture, based on knowledge of technical legal maneuvers and with strong ties to English common law traditions, which supplanted the Puritan courtroom’s emphasis on confession and morality. Dayton contends that the calculated choices made by individual women and men were not simply acted out against a distant backdrop of legal constraint, however, but rather were integral to the process through which eighteenth-century legal culture was created. Her insistence that women as well as men engaged in dynamic interactions with the law (and with each other through the law) to produce this legal culture enlivens her account of changing litigation patterns and standards of evidence.

Eschewing the sampling techniques that provide only truncated glimpses of...