State law rather than federal law governed women’s
rights in the early Republic. The authority of state
law meant that much depended upon where a woman lived
and the particular social circumstances in her region
of the country. The disparity in standards can perhaps
be seen most dramatically in the experiences of African
American women. In the North, where states abolished
slavery after the Revolution, black women gained rights
to marry, to have custody of their children, and to
own property. On paper at least, their rights were identical
to those of white women. In the slaveholding South,
lawmakers continued to deny enslaved workers these basic
human rights. But even in the South, a rising number
of freed black women theoretically enjoyed the same
privileges under the law as white women. However, racial
prejudice against both black and Native American women
made it difficult to insure these rights in practice.
In every state, the legal status of free women depended
upon marital status. Unmarried women, including widows,
were called “femes soles”, or “women
alone.” They had the legal right to live where
they pleased and to support themselves in any occupation
that did not require a license or a college degree restricted
to males. Single women could enter into contracts, buy
and sell real estate, or accumulate personal property,
which was called personalty. It consisted of
everything that could be moved -- cash, stocks and bonds,
livestock, and, in the South, slaves. So long as they
remained unmarried, women could sue and be sued, write
wills, serve as guardians, and act as executors of estates.
These rights were a continuation of the colonial legal
tradition. But the revolutionary emphasis on equality
brought some important changes in women’s inheritance
rights. State lawmakers everywhere abolished primogeniture
and the tradition of double shares of a parent’s
estate, inheritance customs that favored the eldest
son. Instead, equal inheritance for all children became
the rule -- a big gain for daughters.
Marriage changed women’s legal status dramatically.
When women married, as the vast majority did, they still
had legal rights but no longer had autonomy. Instead,
they found themselves in positions of almost total dependency
on their husbands which the law called coverture. As
the English jurist William Blackstone famously put it
in his Commentaries on English Law (1765-69):
By marriage, the husband and wife are one person
in the law: that is, the very being or legal existence
of the woman is suspended during the marriage, or
at least is incorporated and consolidated into that
of the husband: under whose wing, protection, and
cover, she performs every thing.
Coverture was based on the assumption that
a family functioned best if the male head of a household
controlled all of its assets. As a result, a married
woman could not own property independently of her husband
unless they had signed a special contract called a marriage
settlement. Such contracts were rare and even illegal
in some parts of the country. In the absence of a separate
estate, all personalty a woman brought to her marriage
or earned during marriage, including wages, became her
husband's. He could manage it or give it away, as he
chose, without consulting her.
This sounds bad and it was. But one rule worked to mitigate
some of the worst effects of coverture. A married woman
had the right to be maintained in a manner commensurate
with her husband's social status. If he refused to provide
for her appropriately, she could sue and win support
from the courts. While waiting for the court’s
judgment, she was permitted to run up charges at local
stores and taverns-- and her husband had to pay for
them. Judges consistently applied this rule, called
the doctrine of necessities, in order to prevent
men from neglecting their wives. But the courts could
not stop husbands from gambling or making bad investments.
Women had no protection when their husbands proved irresponsible.
If creditors pursued a husband for debts, his wife was
entitled to keep only the bare necessities of life.
This was usually defined as two dresses (so she would
have one to wear while the other was being washed),
cooking utensils, and a bed.
Women's rights to real property -- the lands
and buildings that constituted most wealth in the early
national period -- were more extensive than their rights
to personalty. A husband could not sell or mortgage
the realty his wife brought to their marriage without
her consent. He could use it, but he could not convey
it because a woman's real estate, generally inherited
from her father, was meant to stay in the family and
descend through her to her children. A wife also had
important rights to the real property that her husband
brought to the marriage or purchased afterwards. He
could not sell or mortgage it unless she signed a statement
signifying her free consent, which was recorded with
the deed. Few mortgagors or buyers would enter into
an agreement without the wife's consent. They knew that
she retained her right to be maintained by the property
in the event of her husband's death, even if he died
insolvent. Courts were careful to insure that a wife
signed a conveyance of her own free will and not because
of pressure from her husband. A court officer questioned
her apart from him to confirm that she actually agreed
to the sale or mortgage.
One of the most important rights of a married woman
was dower, which was designed to provide her
with support during widowhood. It consisted of a life
estate in one-third of the husband's real property if
there were children and one half if there were not.
A "life estate" did not mean actual ownership
of the property. It was meant only to provide for the
wife as her husband would have done had he lived, under
a legal system that recognized her position of dependency
within the family. When a widow died, her dower lands
descended automatically to her husband's heirs or to
his creditors. A solvent husband could leave his widow
more than dower if he chose to. He could even leave
her his entire estate in fee simple (absolute ownership).
But he could not leave her less. Most couples relied
on dower as their standard for how much to leave.
Dower was a legal tradition carried over from colonial
days. This and other rules about married women's property
rights were meant to support the family as a unit. They
worked reasonably well in an economic system based on
landed wealth, under which families typically stayed
in one place and rarely sold or mortgaged their farms.
They did not work as well, however, in a society like
the rapidly expanding and industrializing nineteenth-century
United States, where lands changed hands frequently
and where there was growth in personal property as well
as land.
Under these new circumstances, the old system of property
law faltered. It failed to give adequate protection
to women and, at the same time, denied them the ability
to safeguard their own interests. In recognition of
this dilemma, states began to pass married women's property
acts in the antebellum decades. These acts gave wives
the same legal rights as single women with regard to
their estates and wages. It was piecemeal legislation,
enacted reluctantly by male lawmakers who would have
preferred to keep women dependent within the family.
Yet the lawmakers recognized that these reforms were
essential in a capitalist economy based on movable wealth.
Political rights were a function of control over property
for men in the republic, but gender alone was the basis
for women’s exclusion from voting or holding office.
Simply put, men with property had the right to vote
in the early national period but women, no matter how
wealthy, did not, even though women paid the same taxes
as men. The reasoning behind this discrimination rested
on the assumption that married women were liable to
coercion by their husbands; if a wife voted, legislators
argued, it meant that a man cast two ballots. As one
man put it, "How can a fair one refuse her lover?"
Yet single women were also denied suffrage, a clear
sign that more was at stake than the power of a husband
to influence his wife's choices at the polls.
Blatantly discriminatory attitudes kept lawmakers from
giving women the vote. They did not want to share their
political power with daughters, mothers, and wives,
just as they did not want to share it with freed black
men or immigrants. This pattern can be seen clearly
in New Jersey, the one state where women with property
were allowed to vote after the Revolution. In 1807 legislators
took this right away -- not only from women but from
black men and aliens as well. As it turned out, discrimination
against women in the area of the franchise lasted the
longest of any disadvantaged group, at least on paper.
American independence brought women greater freedom
from husbands who were abusive, neglectful, or adulterous.
In colonial society, divorce was virtually impossible
under English precedent, but all of the new states recognized
the need to end unhappy marriages. The choice of appropriate
remedies varied considerably, however. Some states,
particularly in the South, only allowed separate residence
with alimony (called divorce from bed and board). Other
states granted absolute divorce with the right of the
innocent party to remarry. In matters of divorce, social
and religious values affected the laws in different
parts of the country. The conservatism of divorce laws
in the Southern states, for example, was probably related
to slavery: it was difficult for lawmakers to grant
women absolute divorces because of their husbands' adulterous
relationships with slaves. Liberal New England laws,
in contrast, stemmed from a longstanding Puritan belief
that it was better for unhappy couples to separate and
remarry than to be joined forever in a state of discord
and temptation to sin.
Child-custody rights also changed after the Revolution.
The courts were increasingly willing to bypass colonial
precedents that favored men in custody disputes. Instead,
they placed young children and daughters (although not
sons) under the care of mothers. These reforms reflect
the rising importance of the gender-based ideology of
separate spheres, which gave women moral preeminence
in the private sphere of the home and men supremacy
in the marketplace and politics. Women would use the
concept of moral motherhood to great advantage in their
struggle for social justice over the next century.
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