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Much of the novel’s action focuses on the legal process surrounding Rebecca Forster’s assault and Martha’s testimony. Were you surprised at the way the 18th century judicial process unfolded? Do you think Rebecca’s story would have been received differently in a contemporary courtroom?
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What surprised me most about the legal system is the number of judges who are untrained and not lawyers. “Most of these judges rule by common sense, but some by partiality.” Also, how “the court meets simply to ascertain the validity of the accusation and to set formal charges for a future trial, should one be required.” But, then the case is passed on to a higher court, again to determine if charges will be filed for a future trial in another higher court. It is no wonder than Rebecca doesn’t show up for the trial. The brevity of the jury’s (all men) deliberation is also surprising and the case going “to the jury without a preponderance of evidence.” Every man tried for rape was acquitted and a woman was fined into poverty for spreading lies about a judge’s daughter. In today’s world, there would have definitely been more investigation. The jury would not be all male and the case would not be passed from court to higher court to determine if there would be a trial. Lawyers or a grand jury would determine if the case should go to trial. So, I do think that Rebecca’s story would have been received differently today’s courtroom.
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I had no prior knowledge of the 18th-century judicial process, so everything in the novel was entirely new to me. I was particularly surprised to learn that the Court of Common Pleas and the Supreme Judicial Court convened only twice a year. This seemed to suggest that either there weren’t many severe crimes requiring court attention or that such crimes were simply underreported. Martha’s observation, “It was a haphazard and somewhat lax judicial system, but our need is slight, and we are grateful to have whatever justice we can get,” made a lot of sense to me.
I also found some of the judicial processes outside of Rebecca’s case interesting. The law concerning fornication and the maintenance of bastard children initially seemed well-intentioned but ultimately favoured men. As Martha pointed out, it became a tool for shaming women. It made me wonder whether the men at the time were truly held accountable for child support and if they faced any penalties for failing to pay. Unfortunately, this echoes issues we still see today, where some men manipulate the legal system to avoid child support, leaving women to bear the financial and emotional burden. At least, I have several acquaintances who experienced this. Women are often forced to hire costly legal representation to fight for the support they’re owed, continuing the pattern of imbalance and shaming.
I’m uncertain the outcome of Rebecca’s trial would be different, but I think it would have been received differently as there are more laws and procedures in cases of assault. I’d like to think Rebecca would get justice against North if her case was heard today.
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I agree with Tara and Nancy about the judicial process in the 18th century. What sticks in my throat is the Law of Coverture. The law that states that women have no legal identity. The law that states a woman’s husband or father must give permission, in the court, for her to speak. This really sets the stage for misogyny and manipulation to take place. Case in point when Colonel North sent Ephriam on a mission that would be hard to complete in time for the next court case. Yet Martha was a mandated court reporter concerning the birth of children out of wedlock. Another inconsistency was the fact that Martha’s journal was often used in court to prove a point yet she technically was not supposed to be able to read or write.
In today’s court system Rebecca would most likely have had a better chance of making her case but it still would have been demeaning for her to bare her soul in public about the brutal attack she endured. The ‘Me Too’ movement has made great strides in helping women seek justice but we still have an uphill climb in fighting misogyny even today.
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I am less optimistic that Rebecca’s story would be received differently in a contemporary courtroom. Women today have more tools to support their claims of rape, a rape kit, if it is tested and reported, DNA evidence and juries and judges trained in the law. Joseph North would not escape the justice of the judicial system IF Rebecca persevered against the efforts of the defense to claim she was lying, asked for what she got or deserved to be violated. It is certainly true that fewer men would so explicitly state that but they still exist. Consider the recent social media posts, at least in the U.S., “#Your body, my choice.” There remain powerful biases about the subordinate position of women to men, regarded as a part of the correct and natural order of relationships.
Like Tara, I knew nothing about the justice system itself in 18th century America. It seemed much less objective and balanced than I expect our contemporary justice system to be. Still, there were layers of the system that could be brought to bear.
In “The Midwife’s Tale,” Ulrich writes about the laws and their administration related to fornication and pregnancy outside of marriage as Tara describes. They were wrapped up in a woman’s efforts to establish paternity of her child and, therefore, financial support. Without admitting to fornication and naming the father, she had no recourse to support for her child. The expected outcome was for the couple to marry and apparently most did as we saw with Jonathan and Sally Pierce (although Martha’s diary, as cited in Ulrich’s work, makes clear it was not a marriage he desired). If the man did settle with the mother of his child, his case was dropped from the public record while hers remained. While the process surely stigmatized the woman, fornication and childbirth out of wedlock were actually relatively common. Three of Martha and Ephraim’s children conceived a child before they married. Martha delivered the children and grandchildren of town elders and prominent citizens whose child was conceived and often born before marriage. I found this sort of tolerant and ambivalent view surprising for that time, an interesting perspective on relationships and sexuality that I never considered.
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Thank you for sharing what Ulrich wrote, Jane. That expands on what Lawhon wrote. I too thought the blend of tolerance in regard to children conceived before wedlock unusual but not unbelievable. I had preconceived notions of puritans and religion in early US history and brought them to the book, so I thought it was educational to get a different perspective. I wonder if their pragmatic view at the time could be tied in part to the fact that settlers wanted to increase their town’s population. They needed children to grow prosperous and to do the work and carry on the settlements so maybe were more permissive towards unmarried couples up to a point.
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Absolutely what I understood from “The Midwife’s Tale” along with a sort of collective sense of the community responsibility for one another.
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I learned much more than I was expecting about the 18th century judicial process. That Eprhaim has to be present with his wife in court when she testifies because of the “law of coverture” turned out to be a great plot point. While this was excellent with respect to adding drama and suspense to the plot, I agree with Libby completely regarding the misogyny, and manipulation.
As for how Rebecca’s case would be heard in the present day, I must agree with Jane. I am not sure if Rebecca’s story would be received differently based on the merits of simply “he said / she said.” The case would still rely heavily on testimony. However, there are so many people in events like Rebecca’s who will lie or distort the truth because they simply don’t believe the perpetrator to be capable of the violence because they are a friend or family member. I’m thinking of North’s wife telling Martha, “He cannot have done the thing he is accused of,” so it doesn’t really occur to her that she is “lying” about her husband. Or if she is aware, it’s against her own self-interest to tell the truth. Yes, scientific advances and photographic evidence can sometimes be indisputable, but if this proof isn’t available or can be disputed, then it seems difficult for women to win or find justice in the male-dominated system.
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I was genuinely surprised by how established the judicial system was for its time. The fact that they managed court proceedings and even had higher courts of appeal was unexpected to me. However, the system was far from perfect. For example, a judge presiding over a case in which he himself was involved, as North initially does, would be unthinkable today. Unfortunately, when it comes to cases of rape, it seems not much has changed. The burden of proof still disproportionately falls on women, requiring them to prove their victimhood not only in the courtroom but also in the court of public opinion. I am thinking of all the recent cases in the news. The terrible Dominique Pelicot case comes to mind. If her husband hadn’t filmed and posted all that online would anyone have ever known or suspected? Would people have been so firmly on her side believing her? And the judicial system (at least in the US) still seems to continue to favor men’s rights over women’s, especially white men who are in power and privilege. However, if Rebecca’s case was tried today, I agree with Jane and Katherine and think that advances in science would benefit her. A DNA test could be done on her baby so that would at least prove one of the men assaulted her. Also Martha would have been able to take photos of Rebecca’s bruises and even perhaps been able to take a rape kit. So there would be more evidence and proof to present in court. As for Rebecca’s reputation outside the courtroom, I think she would still face groups of people who wouldn’t believe her. Intimidation and gossip cloud the truth and are even more weaponized these days to discredit a woman’s story, especially if powerful men or celebrities are involved.
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You have all put forth such thoughtful, cogent answers! I don’t have much else to add to the conversation, other than that my feelings as I read the story unfolding were that I was mindful of how new the nation was, and that I was somewhat surprised that there was so much of a formal legal system already in place, while in the meantime, it was still a pretty wild environment, where people often took justice into their own hands without penalty. And there were so many flaws in the legal system that have over the years been addressed and modified (like the concept of conflict of interest; the ability to now produce scientific evidence like paternity testing, DNA, photographic documentation, etc. to support a case; a less homogenous jury selection process, etc.), yet still, so often, justice still isn’t served. I do feel that Rebecca would have had a better chance of gaining justice in this day and age, but I also agree that, as Susan said, she would be tried not only through the legal system, but also through the court of public opinion, and would still suffer an unfair burden of proof, and pain and suffering throughout the process. And I think that if North had been powerful enough, he might still have gotten off without penalty, sadly.
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I was somewhat surprised by the acceptance of extrajudicial killing. Maybe given the time and the accepted punishment for rape even within the judicial system, that was not so surprising. Still, it was clearly seen as an acceptable form of justice, a step taken by Ephraim toward Martha’s rapist and by Jonathan and Sam, accepted by Martha who figures out the murder of Joseph Burgess.
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Yes! It reminded me of “the Wild West,” where justice was often self-administered in lieu of other options; and it occurred to me that as far as the New Englanders of Martha’s era were concerned, they were still settlers who were setting up their communities and forming their societies, too. It takes time to build a formal legal system, but humanity has always had a need for justice, so I suppose I shouldn’t have been surprised that those incidences were condoned. Still, it startled me!
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