Vol. 8 No. 1 (January 1998) pp. 41-43.

Courts and Commerce: Gender, Law, and the Market Economy in Colonial New York
by Deborah A. Rosen.  Columbus: Ohio State University Press, 1997. 232 pp.
ISBN 0-8142-0737-5.

Reviewed by Keith E. Whittington, Department of Politics, Princeton University.
 

This slender book (141 pages of text) tries to cover a lot of ground. Rosen seeks to make contributions to three broad literatures: the economic history of the early republic, the history of American law and the judiciary, and the history of gender. She exploits a fascinating set of legal documents from colonial New York to provide new evidence regarding the early development of the market economy in America, the relationship between law and economic development, and the condition of women in early America. In each instance, her evidence is interesting and compelling in its own terms. Unfortunately, the material is too thin to readily support a book-length study, and political scientists are likely to be disappointed by the author’s limited approach to these important topics.

The book is divided into three sections reflecting these three literatures. The first section examines the rise of the market economy in colonial New York. Specifically, Rosen is concerned here with demonstrating that "the date for the rise of capitalism, a consumer mentality, a market economy, and an entrepreneurial spirit should be pushed back into the eighteenth century and even into the seventeenth century," rather than set in the nineteenth century as some recent scholars have done (p. 19). As this list indicates, the origins of the "commercial republic" tell us more than simply how the economy was structured. The debate over the rise of capitalism in America involves not only relatively technical issues of economic history, but also raises complex and important questions about the available ideological traditions in American political thought and the cultural and legal context and implications of economic modernization. For several years, a debate has raged among historians over the nature of the early American economy. Was there a pre-capitalist America? What would it look like? What implications would it hold for later political and intellectual development? Many scholars influenced by the "republican revival" have sought evidence of pre-commercial relations and values in the American colonies, a "golden age" uncorrupted by the later liberal glorification of the cash nexus. Rosen is here concerned with pushing back the date of any such putative pre-commercial era, if not with pushing it out of American history altogether. The evidence she provides may well suggest an earlier date for the development of certain market relations than some have suggested, but Rosen provides little interpretation or analysis of such complex socioeconomic entities as "capitalism," the "consumer mentality," the "market economy," or the "entrepreneurial spirit."

In this first section, Rosen provides evidence from a variety of legal records that colonial New Yorkers entered the marketplace early and often. Rosen tracks probate inventories in both urban and rural New York across the eighteenth century, for example, to demonstrate the spreading ownership of both consumer and capital goods. Within a generation, the consumption of such imported "luxury" goods as tea was transformed from being the rare privilege of the richest New Yorkers to being the morning routine of the poorest frontiersman. At the same time, however, tax records indicate that the distribution of wealth was polarized relatively early and even in rural counties. Similarly, merchant ledger books and probate inventories demonstrate an increasing reliance on both "cash" and debt by colonial New Yorkers. The use of such financial instruments provides evidence of the early development of an economy based on impersonal market exchanges rather than communal self-reliance and bartering.

The second section examines the growth of "exchange relations among men," though the gendered character and significance of these exchange relations is largely implicit in these chapters. This is the section that is most likely to be of interest to political scientists interested in law and history. Unlike the previous section, which simply employed evidence gathered from legal records to make a point about economic history, this section actually examines the relationship between the law and economic change. Specifically, this section "describes the increased contractualization of economic relationships, increased legal support for competition, and increased formalization of the legal system in colonial New York" (60). Rosen mounts an explicit challenge to the work of such scholars as Morton Horwitz and William Nelson, who emphasize the instrumental reasoning of nineteenth century judges in elevating contracts and economic competition. Civil litigation in New York suggests the formalization of economic relations well before the American Revolution. As the eighteenth century progressed, jury trials became increasingly rare, especially for commercial disputes. Debt collection became routinized as contracts were formalized with clear terms regarding payment and default. Moreover, jury trials were expensive and uncertain, so a complex and growing economy required more efficient enforcement mechanisms to secure the extension of credit. Debt litigation rose, even as jury trials fell. Moreover, New York’s court records indicate a substantial increase in purely commercial debt agreements. The terms of borrowing, the profile of litigants, and the extent of the debt collection efforts of the period suggest that business was being conducted and not simply village mutual aid. Cash was becoming the primary bond between an increasing number of individuals. Efficient judicial enforcement of contracts allowed the expansion of economic relations beyond a close circle of friends and neighbors, where repeated interactions and personal trust encouraged trade. To put Rosen’s point in different terms, judges substituted for social capital in an expanding economy.

The third section is the most disappointing. It focuses on the "economic marginalization of women," and is the payoff of a great deal of foreshadowing in the earlier chapters. The central point of these later chapters is an important one, but also fairly obvious, and Rosen’s analysis quickly exhausts the possibilities of her contribution. Rosen’s major insight is that the increasing contractualization and formalization of the economy had significant negative implications for women, who were provided with few legal rights over property. An interesting implication of this point is that the economic marginalization of women did not depend on industrialization. Women were already excluded from a commercial economy embedded in legalities before industrialization moved most paid labor outside the home. Women had little capacity to participate in a market economy that depended on the ability to enter into legally binding contracts, and urban women were particularly disadvantaged by their inability to produce the new market goods. Rural women were more likely to own the spinning wheels or participate in the farming that were recognized as legitimate "women’s work," than were urban women who became more economically dependent on the men on whom they were already legally dependent. Rosen’s evidence adds a few details to this picture, but this section quickly becomes a review essay of the existing literature on coverture in America.

This book provides interesting evidence on the development of the economy in colonial America, but it is perhaps better suited to presentation as a couple of articles than as a complete book. The argument is repetitive, and much of the book is occupied with summarizing existing secondary sources on these various subjects. Rosen’s data provides intriguing insights into colonial economic life, but it is inherently limited. Rosen hopes to draw substantial implications from these court records about the development of capitalism in America, but the evidence is not available to support them. The evidence she employs is fragmentary and sheds light on just a portion of the vast subjects that she hopes to illuminate. Her evidence of the decline of jury trials and the spreading possession of consumer goods in New York, for example, suggest that we should be cautious in drawing conclusions about colonial life from newspaper editorials celebrating juries as central to liberty or luxuries as a blight on the republic. Nonetheless, it is hard to credit Rosen’s expansive aim of refuting "republican" interpretations of American cultural, economic or intellectual development. When not summarizing the conclusions of others, Rosen sticks fairly closely to the presentation of the records that she has examined. As a consequence, she provides a fairly clear picture of her data, but a somewhat more limited perspective on New York society than she implies.

Overall, this is an interesting contribution to our understanding of the economic development of colonial New York, employing legal records to indicate the growth of a formalized, market economy. It provides a useful addition to the growing literature on the rise of capitalism in America and how the legal system contributed to that process, but it is essentially a monograph of primary interest to economic historians of colonial America.