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The Daughters of Job: Property Rights and Women's Lives in Mid-Nineteenth-Century Massachusetts

Published online by Cambridge University Press:  28 October 2011

Dianne Avery  and
Alfred S. Konefsky
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Extract

Sometime in the winter of 1839, Keziah Kendall, a thirty-two-year-old woman living with her two sisters on a dairy farm “not many miles from Cambridge,” heard from her “milkman” that a public lecture would be delivered on the legal rights of women. Kendall “thought [she] would go and learn,” but when she attended she found that she “did not like that lecture much.” The speaker was Simon Greenleaf, Royall Professor of Law at Harvard University, who at the time was delivering lyceum lectures in eastern Massachusetts on the subject of women's rights. Not the least bit intimidated by Greenleaf's stature, Kendall wrote him a candid letter, expressing her disapproval of his talk: “[T]here was nothing in it but what every body knows. … What I wanted to know, was good reasons” for the rules governing the legal rights of women “that I cant account for. I do hope if you are ever to lecture at the Lyceum again, that you will give us some.” Kendall then proceeded to tell Professor Greenleaf the remarkable and poignant story of how her personal experiences had shaped her interest in her own legal rights.

Type
Notes and Documents
Information
Law and History Review , Volume 10 , Issue 2 , Fall 1992 , pp. 323 - 356
Copyright
Copyright © the American Society for Legal History, Inc. 1992

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References

1. “Injunction,” in Untermeyer, J., Job's Daughter 13 (1967)Google Scholar. Excerpted from Job's Daughter by Jean Untermeyer. Copyright © 1967 by W. W. Norton & Company, Inc. Reprinted with permission of the publisher, W. W. Norton & Company.

2. Letter from Keziah Kendall to Simon Greenleaf (undated) (Box 3, Folder 10, Simon Greenleaf Papers, Harvard Law School Library) [hereinafter Kendall Letter]. The letter was probably written in the late winter or early spring of 1839. This dating follows from internal evidence in the letter itself, as well as evidence described infra note 5. The letter is reprinted in its entirety as a separate document immediately following this essay. Keziah Kendall spelled her name in two ways in the text of the letter. We have chosen to use the spelling that appears in her signature.

3. Id.

4. Greenleaf (1783-1853) was appointed Royall Professor in 1833, after nearly thirty years of law practice in Maine. After Joseph Story's death in 1845, Greenleaf became Dane Professor of Law at Harvard, serving until his retirement in 1848.

5. Greenleaf lectured on “The Legal Rights of Women” at the Salem Lyceum during the 1838-39 season. Oliver, H., Historical Sketch of the Salem Lyceum 43 (1879)Google Scholar. It is not likely that Keziah Kendall, living “not many miles from Cambridge,” would have traveled to Salem to hear this lecture. In her letter to Greenleaf, she mentions another lyceum lecture she “heard in C.” There were many local lyceums in eastern Massachusetts, and Greenleaf could have appeared at any of them in addition to Salem. The “C.” might refer to Cambridge, Charlestown, or Concord. The records of the Concord Lyceum for this period do not mention any lecture by Greenleaf. See Cameron, K., The Massachusetts Lyceum during the American Renaissance 147–55 (1969)Google Scholar. Greenleaf did receive an invitation to speak at the Charlestown Lyceum in 1839. Letter from Charlestown Lyceum to Simon Greenleaf (Aug. 31, 1839) (Simon Greenleaf Papers, Harvard Law School Library, Box 3, Folder 3). No Cambridge Lyceum records have apparently survived.

6. Kendall Letter, supra note 2.

7. Sarah Grimké (1792-1873) and Angelina Grimké (1805-79), born into a wealthy slaveholding family in South Carolina, became noted abolitionists and feminists. See generally Lerner, G., The Grimké Sisters from South Carolina (1967)Google Scholar. For a brief description of their Massachusetts tour, see The Public Years of Sarah And Angelina Grimké: Selected Writings, 1835-1839, at 135-41 (Ceplair, L. ed. 1989)Google Scholar [hereinafter The Public Years]; for a more comprehensive account, see Melder, , Forerunners of Freedom: The Grimké Sisters in Massachusetts, 1837-38, 103 Essex Inst. Hist. Collections 223 (1967)Google Scholar.

8. Gerda Lerner estimates that, after having “been in New England twenty-three weeks, [the Grimkés] had spoken before at least eighty-eight meetings in sixty-seven towns. They had reached, face to face, a minimum of 40,500 people in meetings.” G. Lerner, supra note 7, at 227.

9. Id. at 168-69; see also Melder, supra note 7, at 232.

10. See, e.g., infra text accompanying note 33. For discussion of the relationship between abolitionism and feminism, see Hersh, B., The Slavery of Sex: Feminist-Abolitionists in America (1978)Google Scholar; DuBois, , Women's Rights and Abolition: The Nature of the Connection, in Antislavery Reconsidered: New Perspectives on the Abolitionists 238 (Perry, L. & Fellman, M. eds. 1979)Google Scholar.

11. S. Grimké, Letters on the Equality of the Sexes and the Condition of Woman. Addressed to Mary S. Parker, President of the Boston Female Anti-Slavery Society (1838). The Letters are reprinted in Grimké, S., Letters on the Equality of the Sexes and Other Essays 31–103 (Bartlett, E. ed. 1988)Google Scholar [hereinafter S. Grimké]. See also The Public Years, supra note 7, at 204-72. Larry Ceplair notes that the Letters were first published in the New England Spectator in a series beginning July 19, 1837, were subsequently reprinted in The Liberator in January and February of 1838, and finally published as a single tract in 1838 by the Boston publisher, Isaac Knapp. Id. at 204 n.

12. See, e.g., The Public Years, supra note 7, at xvii, 301-2.

13. Greenleaf, 5 Christian Rev. 269 (1840). The manuscript of the article, in Greenleafs handwriting, can be found in Box 24, Folder 5, Simon Greenleaf Papers, Harvard Law School Library.

14. Id. at 269.

15. Id.

16. Id. at 279.

17. Id. at 282.

18. The two most significant Massachusetts statutes reforming married women's property rights were passed in 1845 and 1855. The 1845 statute gave women the right to enter into written premarital agreements regarding their separate property, and to hold and manage that property after marriage without a trustee. 1845 Mass. Acts, ch. 208. Among other important provisions, the 1855 statute characterized as “sole and separate property” all property—real and personal—that a woman brought to the marriage or acquired after marriage by gift, inheritance, bequest, or devise. Thus, such property could not be reached by creditors to discharge any debts of the husband, whether arising before or after the marriage. 1855 Mass. Acts, ch. 304.

19. In recent years, there has been a dramatic increase in the study of the Married Women's Property Acts. For example, see Basch, N., In The Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (1982)Google Scholar; Rabkin, P., Fathers to Daughters: The Legal Foundations of Female Emancipation (1980)Google Scholar; Salmon, M., Women and the Law of Property in Early America (1986)Google Scholar; Warbasse, E., The Changing Legal Rights of Married Women, 1800-1861 (1987)Google Scholar; Chused, , Married Women's Property Law: 1800-1850, 71 Geo. L.J. 1359 (1983)Google Scholar. Historians have suggested various theories to explain the motivation for the passage of the Married Women's Property Acts. For a useful summary of these theories as well as fresh insights more generally about the Acts, see Hoff, J., Law, Gender, and Injustice: A Legal History of U.S. Women 11935 (1991).Google Scholar

The language and images in the debate over married women's property not surprisingly may be found in other areas of law reform relating to issues of gender and the family. For example, see Clark, , Matrimonial Bonds: Slavery and Divorce in Nineteenth-Century America, 8 Law & Hist. Rev. 25 (1990)CrossRefGoogle Scholar. See generally Grossberg, M., Governing The Hearth: Law and the Family in Nineteenth-Century America (1985).Google Scholar

20. See, e.g., M. Salmon, supra note 19, at 81-140.

21. For New York, see N. Basch, supra note 19, at 72-88; for the South, see Lebsock, S., The Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860, at 54-86 (1984)Google Scholar; Salmon, , Women and Property in South Carolina: The Evidence from Marriage Settlements, 1730-1830, 39 Wm. & Mary Q. 655 (1982).CrossRefGoogle Scholar

22. Marylynn Salmon summarized the legal situation as follows:

In Massachusetts, as in Connecticut, cases concerning trusts and marriage settlements were rare in the early reports.… Judges in Massachusetts felt unsure of their right to guarantee wives separate estates because… the state had no inde pendent equity court. They believed that they could not, therefore, simply adopt the precedents of the English Chancery.…

Partly as a result of this truncated equity jurisdiction, no legal tradition on trusts for married women developed in the colony and state.…

…

Even after 1818, when common law courts gained jurisdiction over trust estates in Massachusetts, justices continued to interpret the related body of law conservatively.

M. Salmon, supra note 19, at 132-33, 137.

23. S. Grimké, supra note 11, at 75.

24. Id. at 102. The golden rule is found in Matthew 7:12.

25. The Public Years, supra note 7, at 13.

26. S. Grimké, supra note 11, at 31. Sarah Grimké translated the Bible from original Greek and Hebrew sources, rejecting the King James translation, and provided her own original interpretations. Id. at 31-32, 38.

27. See Elizabeth Bartlett's discussion in S. Grimké, supra note 11, at 20-21. See also G. Lerner, supra note 7, at 192.

28. S. Grimké, supra note 11, at 32.

29. Id.

30. Id. at 49.

31. Child's Brief History was published in New York in 1835. For Grimkés reliance on Child see id. at 51; The Public Years, supra note 7, at 204 n.

32. Grimké, S.;, supra note 11, at 47.Google Scholar

33. Id. at 77.

34. Id. at 71-72.

35. Id. at 73.

36. Id, quoting Blackstone.

37. Grimké, S.;, supra note 11, at 73.Google Scholar

38. Id., quoting Blackstone.

39. S. Grimké, supra note 11, at 73.

40. Id at 75.

41. Id.

42. Id. at 76.

43. Greenleaf, supra note 13, at 273.

44. See Greenleaf, supra note 13.

45. Mott, F., A History of American Magazines, 1741–1850, at 666 (1957).Google Scholar

46. Id.

47. On authorship of the article, see supra note 13. See also Letter from Richard Fletcher to Simon Greenleaf (July 27, 1840) (commenting on GreenleaPs authorship of The Christian Review article) (Box 3, Folder 6, Simon Greenleaf Papers, Harvard Law School Library).

In all the modern treatments of the history of married women's property law, we have discovered only one mention of Greenleafs article—Elizabeth Warbasse briefly discussed his anonymous essay in her exhaustive and exceptional 1960 doctoral dissertation. See E. Warbasse, supra note 19, at 132-33. Since Greenleafs papers had not yei been acquired by the Harvard Law Library, it would have been difficult for her at the time to ascertain that the author was Greenleaf.

48. See generally Foster, C., An Errand of Mercy: The Evangelical United Front, 1790–1837 (1960)Google Scholar; Griffin, C., Their Brothers’ Keepers: Moral Steward-Ship in the United States, 1800–1865 (1960).Google Scholar

49. For example, this pattern of participation ranged from his early membership in the Maine Peace Society (as a trustee in 1818) to his vice presidency of the American Bible Society at the time of his death in 1853. See Freeman, Samuel Freeman—His Life and Services, 5 [2d sen] Collections & Proc. Me. Hist. Soc'y 2, 28 (1894); H. Dwight, The Centennial History of the American Bible Society 543 (1916).

50. See supra note 5.

51. The Public Years, supra note 7, at 211.

52. id.

53. Id.

54. S. Grimké, supra note 11, at 37. See also G. Lerner, supra note 7, at 192.

55. S. Grimké, supra note 11, at 39.

56. Greenleaf, supra note 13, at 277.

57. Id. at 270.

58. Id. at 270, 270-71.

59. Id. at 270. Nancy Cott has observed,

Contrasts between the condition of women in New England and in the countries to which missionaries traveled made it plausible that the Christian gospel had “civilized” men's attitude to women. To appeal to a female charitable society for funds in 1829, the male trustees of the New Hampshire mission society asserted that “heathen” women were “ignorant—degraded—oppressed—enslaved. They are never treated by the other sex as companions and equals.…” New Hampshire women by contrast were respected and free, and had access to knowledge.

Cott, N., The Bonds of Womanhood: “Woman's Sphere” in New England, 1780-1835, at 131 (1977)Google Scholar. Greenleaf alluded to the experience of missionaries in Asia. Greenleaf, supra note 13, at 272.

60. Greenleaf wrote: “It is therefore not to mere civilization,—not to advancement in the arts of life, or to intellectual culture alone, that we are to look, for the elevation of woman to her proper rank in social existence. Another element must be sought, in the composition of society, to effect this result;—and that element has been found in the Christian religion.” Greenleaf, supra note 13, at 272.

61. Greenleaf relied primarily on Massachusetts law to support his arguments, though he observed that the laws on these subjects were generally the same throughout the United States. Id. at 277, n.

62. Id. at 272. “The ‘feminization’ of Protestantism in the early nineteenth century was conspicuous.” N. Cott, supra note 59, at 132. For discussion of the “feminization” of religion, see generally id. at 126-48; Douglas, A., The Feminization of American Culture (1977)Google Scholar; Welter, , The Feminization of American Religion, 1800-1860, in Clio's Consciousness Raised: New Perspectives on the History of Women 137 (Hartman, M. & Banner, L. eds. 1974).Google Scholar

63. Greenleaf, supra note 13, at 272.

64. Id. at 274.

65. Id.

66. Id.

67. Id. at 274-75.

68. Id. at 275.

69. Id.

70. Id. at 276.

71. Id.

72. Id. at 277.

73. Id. at 276.

74. Id. at 277. See also id. at 272 (rejecting the chivalric tradition); id. at 273 (admitting the intellectual equality of men and women). Though Greenleaf generally emphasized the paternalistic qualities of the common law, others found paternalism more often demonstrated by courts of equity. “[W]e cannot fail to observe the parental solicitude [on the subject of married women], with which Courts of Equity administer to the wants, and guard the interests, and succor the weakness of those, who are left without any other protectors, in a manner, which the Common Law was too rigid to consider, or too indifferent to provide for.” 2 Story, J., Commentaries on Equity Jurisprudence 655 (1836)Google Scholar.

75. Greenleaf, supra note 13, at 277.

76. For instance, Greenlears discussion, at some point, touched on the subjects of criminal law, family law, torts, contracts, evidence, decedent's estates, as well as property. See id. at 278-89.

77. Id. at 278.

78. Id. at 279.

79. Id.

80. Id. at 281.

81. Id.

82. Id.

83. Id. at 282.

84. Id. at 279.

85. See supra note 39 and accompanying text.

86. Greenleaf, supra note 13, at 285, 284.

87. Id. at 286.

88. Id. at 289.

89. Kendall Letter, supra note 2.

90. No letter or draft of a letter from Greenleaf to Kendall has been found in the Greenleaf papers at the Harvard Law School Library, if indeed he responded to her. Because her letter to Greenleaf contained no identifying address or location (or date for that matter), it would have been difficult, if not impossible, for him to answer her letter. She may also have been using a pseudonym. It could be that the absence of a return address indicated Kendall's belief that no response was necessary or desired. Several of our colleagues have also suggested that the letter may have been a fictional account written by a contemporary feminist.

Jerome E. Anderson, reference librarian at the New England Historic Genealogical Society, “found no trace” of Keziah Kendall or her sisters “in the records of Massachusetts.” Anderson reported that

[t]he Kendalls are a numerous family in Massachusetts, but one not well treated in printed genealogies. Since the sisters did not appear in such printed form I then checked the vital records of Massachusetts.… None of the three women appeared in records of birth, baptism or marriage.…

State-wide registration of vital records began in Massachusetts in 1841. Examination of the marriage and death records indexes for the period 1841-1895 showed no record for any of the women. Only very long celibate lives could explain their absence from the record.

A check of the indexes to probate records for a number of counties in eastern Massachusetts showed no entries for the women under Guardianship, administration, probate, etc.: Essex (—1840), Middlesex (—1909), Norfolk (—1900), Suffolk (—1910), and Worcester (—1897).

Finally, the indexes to the Federal Censuses of Massachusetts revealed no house-hold headed by any of the three sisters.

Letter from Jerome E. Anderson to Alfred S. Konefsky (August 26, 1991). It is also possible that the Kendall sisters moved out of the state, which might explain the difficulty in locating them in certain types of Massachusetts records.

In addition, we examined all the standard bibliographical sources on women's history, searching for Keziah Kendall in letters, diaries, journals, manuscript collections, etc. The collections at Smith College, the Schlesinger Library at Radcliffe College, Harvard University, the Massachusetts Historical Society, and Old Sturbridge Village were also consulted. Keziah Kendall seems to have been one of those women who quietly led her life, leaving no traces behind, other than her letter to Greenleaf. The letter provides us with another example of an obscure, though articulate and intelligent, woman hidden from view, and therefore not “notable.”

91. Job 42:14. These names “were not favored by earlier generations of Kendalls.… [T]he names of Job's daughters, never frequently given, are found most often in the eighteenth century.” Letter from Jerome Anderson, supra note 90.

During the eighteenth and nineteenth centuries a number of Kendall families settled in a southwest to northeast arc in Middlesex and Worcester counties. In particular, many Kendalls clustered in the town of Woburn and tended to branch outward from there. See generally Kendall, O., Memorial of Josiah Kendall, One of the First Settlers of Sterling, Mass., and of Some of His Ancestors, and of His Descendants (1884)Google Scholar. Laura Pangallozzi uncovered for us records of several Keziah Kendalls in eighteenth-century Middlesex towns. See, for example, Vital Records of Sherborn, Massachusetts, to the Year 1850, at 52 (Baldwin, T. comp. 1911)Google Scholar; Woburn Records of Births, Deaths, and Marriages from 1640 to 1873: Part I, Births 139 (Johnson, E. comp. 1890)Google Scholar: id., Part III, Marriages, at 153 (E. Johnson comp. 1891).

92. Though we do not know how the Kendall sisters acquired their property, it is most likely that they inherited their interests through either their father's or mother's estate. If the surviving parent died intestate, the three daughters and son would have inherited the farm equally. “By 1800 in most states, sons and daughters received equal shares in real and personal property; there was no longer any meaningful distinction for purposes of children's inheritances.” Shammas, C., Salmon, M. & Dahlin, M., Inheritance in America from Colonial Times to the Present 67 (1987)Google Scholar.

93. Kendall Letter, supra note 2.

94. Jensen, J., With These Hands: Women Working on the Land 33 (1981)Google Scholar; see also Sachs, C., The Invisible Farmers: Women in Agricultural Production 12 (1983)Google Scholar. Although sons and daughters inherited property in equal shares, fathers nearly always willed farm lands to their sons, not their daughters. Sachs notes that “women had relatively minimal access to land.… Fathers controlled the land, determining its use and how it was to be distributed to their sons Daughters could not expect to inherit land except in the absence of sons.” Id. Nancy Grey Osterud has described similar patterns of inheritance and transmission of land in the Nanticoke Valley in New York during the late nineteenth century. Osterud, N., Bonds of Community: The Lives of Farm Women in Nineteenth-Century New York 62–67 (1991)Google Scholar. See also Jensen, J., Loosening the Bonds: Mid-Atlantic Farm Women, 1750-1850, at 21–22 (1986)Google Scholar, for a discussion of women's roles in this pattern of wealth transmission and conservation in mid-eighteenth-century Pennsylvania farm country.

95. Atack, J. & Bateman, F., To Their Own Soil: Agriculture in the Antebelum North 26–27 (1987)Google Scholar. In the Northeast sample of counties surveyed, the New England states of Maine, Massachusetts, and Rhode Island were excluded. Id. at 22.

96. On economic independence for single women, see Chambers-Schiller, L., Liberty, A Better Husband—Single Women in America: The Generations of 1780-1840, at 67–82 (1984)Google Scholar. For a discussion of the relationship of single rural women to family and community in late nineteenth-century New York, see N. Osterud, supra note 94, at 123-30.

97. Nancy Cott has observed that “more than 90 percent of American women married” and, according to her best estimate, “New England women married at an average age of 22 or 23 during this [1780-1835] period.” N. Cott, supra note 59, at 14, 13.

98. Id. at 55-56. Thomas Dublin disputes Cott's assumption about the frequency with which female mill operatives in Lowell sent money home. See Dublin, T., Women at Work: The Transformation of Work and Community in Lowell, Massachusetts, 1826-1860, at 38–40, 261 n.33 (1979)Google Scholar.

99. Jack Larkin has written that “[m]en's and women's tasks on American farms were intertwined and almost totally interdependent. But in space, time, tools and authority they were distinct.… American families worked as patriarchal units, governed by their male heads. Men's work, and men's decisions about work, were primary.” Larkin, J., The Reshaping of Everyday Life, 1790-1840, at 17 (1988)Google Scholar. This point is amplified by Elizabeth Fox-Genovese:

As a rule,… with the notable exception of black slave women, women's participation in agriculture followed a combination of time-honored European and American attitudes towards gender roles… The traditional cleavage between men's and women's customary roles followed the distinction between the house and the fields, with some blurring in the case of dairies, gardens, and orchards… Originally, many such distinctions derived from the assumption that men dealt with the outside world, notably with markets, while women dealt with basic needs of the household.

Fox-Genovese, , Women in Agriculture during the Nineteenth Century, in Agriculture and National Development: Views on the Nineteenth Century 267, 270 (Ferleger, L. ed. 1990Google Scholar).

100. Twenty-five thousand dollars seems like a great deal of money for a farmer at this time. Statistics about wealth in this period are very difficult to find and analyze. Various types of data, like probate records, tax lists, and census figures, yield results that are difficult to compare. Using tax-assessment lists, Edward Pessen has estimated that fourteen percent of the population of Boston in 1833 possessed wealth in excess of five thousand dollars (with only four percent owning wealth above thirty thousand dollars) and that nineteen percent of the population of Boston in 1848 possessed wealth in excess of four thousand dollars (with only four percent owning wealth above thirty-five thousand dollars). Pessen, E., Riches, Class, and Power Before the Civil War 39 (1973Google Scholar). The Kendall sisters’ wealth also seems substantial in comparison to rural wealth in western Massachusetts. See Clark, C., The Roots of Rural Capitalism: Western Massachusetts, 1780-1860, at 263-67, 293, 303 (1990)Google Scholar. In Shrewsbury, Worcester County, “an 1830 valuation of $14,825,” probably from tax records, placed Thomas Ward, Sr., as the second wealthiest man in town, with “more than double the person who ranked third.” Baker, & Paterson, , Farmers’ Adaptations to Markets in Early-Nineteenth-Century Massachusetts, in The Farm: the Dublin Seminar for New England Folklife, Annual Proceedings, June 14 and 15, 1986, at 105 (Benes, P. & Benes, J. eds. 1988)Google Scholar.

Clarence Danhof reports “an account of a [Massachusetts] farm comprising eighty-five run-down acres, purchased in 1843 for $4,337.” The farm's location in Massachusetts is not revealed. Danhof, C., Change in Agriculture: The Northern United States, 1820-1870, at 112 (1969)Google Scholar. “The arithmetic mean of real estate holdings was $1,001 for the 5.0 million free men in 1850.” Soltow, L., Men and Wealth in the United States, 1850-1870, at 63 (1975)Google Scholar. For information derived from the 1850 census for Massachusetts on the “[a]verage value of farmland and buildings per acre,” see Farm Real Estate Values in the United States by Counties, 1850-1959, at 23 (Pressly, T. & Scofield, W. eds. 1965)Google Scholar. In 1850, the average value of a farm (including land and buildings) in the United States was estimated at $2,258. Id. at 6. Of course, without knowing the location and size of the Kendall farm, it is impossible to make any certain claims about its comparative value. Keziah Kendall's own estimate of her family's wealth no doubt included more than the value of their real property.

By contrast, Simon Greenleaf's estate at his death consisted of personal property valued at approximately thirty-one thousand dollars, real property valued at approximately ten thousand dollars, as well as copyrights valued in excess of fifteen thousand dollars. Schedule of the Estate of Simon Greenleaf, Middlesex County Probate Court, Cambridge, Massachusetts (1853).

101. J. Atack. & F. Bateman, supra note 95, at 152-53. Atack and Bateman have concluded that “few truly commercial specialized dairy farms existed before the Civil War. Dairying was a secondary economic activity for most farmers, but a primary one for only a few.” Id. at 161. Joan Jensen, however, has stressed that “[r]egardless of the ongoing debate over how much power women had, their contribution to economic development was clear.… Contemporary historians’ designation of dairying as a secondary contributor to the farm economy because it was ‘women's work’ perpetuates nineteenth-century men's own devaluation of women's contribution to the development of butter making.” Jensen, J., Promise to the Land: Essays on Rural Women 183, 185 (1991)Google Scholar. The author of an econometric analysis of work on antebellum farms has concluded that “adult females were quite important in northeastern diary farming.” Craig, , The Value of Household Labor in Antebellum Northern Agriculture, 51 J. Econ. Hist. 67, 80 (1991)Google Scholar. For an interesting analysis of the roles of women and men in English dairying, see Valenze, , The Art of Women and the Business of Men: Women's Work and the Dairy Industry c. 1740-1840, 130 Past & Present 142 (1991)Google Scholar.

102. See J. Jensen, supra note 94, at 108-12, for a discussion of the methods used in the early nineteenth century to preserve butter and prepare it for markets in Pennsylvania.

103. See generally id. at 113. For a discussion of “The Economics of the Butter Trade,” see id. at 79-91. The commercial importance of milk and butter production also affected the ways in which farm households divided labor along gender lines. In her study of late nineteenth-century farms in south central New York, historian Nancy Osterud found that “[t]he allocation of tasks between women and men was most flexible in the dairy process, perhaps because dairying was conducted in a domain between the fields and the house and involved a myriad of time constraints.” N. Osterud, supra note 94, at 150.

104. See, e.g., Baker & Paterson, supra note 100, at 106. Atack and Bateman note that “[d]airies from 10 to 30 miles distant from Boston were shipping some fluid milk to that city by rail in the early 1840s. Yet, the Boston milkshed never extended beyond 65 miles before 1870.…” J. Atack & F. Bateman, supra note 95, at 149.

105. Schlebecker, J., Whereby We Thrive: A History of American Farming, 1607-1972, at 94–95 (1975)Google Scholar.

106. Russell, H., A Long Deep Furrow: Three Centuries of Farming in New England 355–56 (1976)Google Scholar.

107. Id. at 356.

108. Kendall Letter, supra note 2.

109. Bode, C., The American Lyceum: Town Meeting of the Mind 30 (1956)Google Scholar.

110. Id. at 250.

111. While it is possible that Greenleaf had Kendall's letter in mind as he prepared his article on women's rights for publication, there is no concrete evidence that he was responding directly to any of her views.

112. Kendall is referring here to Greenleafs discussion of dower rights. See Greenleaf, supra note 13, at 285-86.

113. Kendall Letter, supra note 2. Suzanne Lebsock noticed, “[t]he most striking feature of the real estate bargains struck by Petersburg's women was the near absence of speculation.… With credit, too, the women's approach tended to be conservative. The debts recorded in the deed books were secured debts.… From all appearances, the women of Petersburg did their best to avoid indebtedness altogether.” S. Lebsock, supra note 21, at 126, 127. This confirmation of Kendall's insight by evidence from Virginia might lead one to conclude that the critical difference was not geographic region, but gender. Lebsock offers some evidence that women and men thought differently about property. Id. at 112-45.

114. Kendall Letter, supra note 2.

115. See supra note 60 and accompanying text.

116. Kendall Letter, supra note 2.

117. Id. For an historical and wonderfully polemical overview of the problem in Massachusetts, see Bowditch, W., Taxation of Women in Massachusetts (1875)Google Scholar. And, for a post-Civil War account of a dispute over taxation without representation involving women farm owners in Connecticut, see Smith, J., Abby Smith and Her Cows (1877).Google Scholar

118. S. Grimké, supra note 11, at 76.

119. Id. See Elizabeth Bartlett's discussion of Sarah Grimké's acceptance of women's fundamental right to vote after the Civil War, id. at 126-27, as demonstrated by Grimké's unpublished manuscript, “Condition of Women,” id. at 127-33. Bartlett noted, “[T]he main point of this essay ["Condition of Women”], that women be granted full political rights and opportunities, contradicts Grimké's earlier sentiments, expressed in the Letters, that women should avoid the political arena altogether. This is a significant change in her thought.” Id. at 127. See also G. Lerner, supra note 7, at 334.

120. Kendall Letter, supra note 2.

121. Id. 122. Greenleaf, supra note 13, at 284, 285.

123. Kendall Letter, supra note 2.

124. S. Grimké, supra note 11, at 73, 75.

125. Kendall Letter, supra note 2.

126. Id.

127. Id. 128. Job 42:10.

129. Job 42:12.

130. Job 42:13.

131. Job 42:14-15. One biblical commentator noted that “the beauty of his daughters is mentioned as a public indication of special blessing The names of Job's three daughters probably represent beauty and beautiflcation. Jemimah means ‘turtle dove.’ The dove was a symbol of beauty and love.… Keziah means ‘cassia,’ an aromatic plant used in perfumes Keren-happuch seems to mean ‘horn of antimony,’ a black powder used for beautifying the eyes.…” Habel, N., The Book of Job: A Commentary 585 (1985)Google Scholar.

132. Job 42:15.

133. Milgrom, J., Numbers: The Traditional Hebrew Text with the New JPS Translation Commentary 482 (1990)Google Scholar.

134. Numbers 27:1-4.

135. Numbers 27:6-7.

136. Numbers 27:8. “The right of daughters to inherit falls outside the general scheme; it needed a special divine judgment to validate it.…” Noth, M., Numbers: A Commentary 212 (1968)Google Scholar. The rules were ultimately derived from the requirements of primogeniture established in Deuteronomy 21:15-17. According to a biblical commentator, “The Bible, in its earliest stages, presumes a tightly knit clan structure; the foremost goal of its legal system was the preservation of the clan. Biblical law thus rests upon a strict patrilineal-agnatic principle of inheritance that prevents transfer of land via the daughter to the clan of her husband.” J. Milgrom, supra note 133, at 482.

137. N. Habel, supra note 131, at 585. Biblical commentators have generally agreed that, according to ancient law, Job's act was unusual. See, e.g., Gordis, R., The Book of Job 498 (1978)Google Scholar; Heaton, E., The Hebrew Kingdoms 358 (1968)Google Scholar; Pope, M., The Anchor Bible: Job 292–93 (1965)Google Scholar; Reichert, V., Job 222 n. 15 (1946 & 7th impression 1970)Google Scholar; Rowley, H., Job 268 n.15 (2d ed. 1978)Google Scholar. The commentators also seem to assume that the daughters actually inherited from Job. For a different view, see J. Milgrom, supra note 133, at 483, arguing that “although Job's daughters inherit with his sons,… it should not go unnoticed that this is not really a case of inheritance: ‘Their father gave them estates together with their brothers’ in his lifetime.”

138. For discussion of the disappearance of primogeniture in the United States generally, see C. Shammas, M. Salmon & N. Dahlin, supra note 92, at 32-35, and M. Salmon, supra note 19, at 7, 142-43, 227 n.5.

139. Though the practice continued of passing land to sons, the family farm over time, for demographic reasons, tended to go to a younger son rather than the eldest son. See Barron, H., Those Who Stayed Behind: Rural Society in Nineteenth-Century New England 92–98 (1984)Google Scholar; Gross, R., The Minutemen and Their World 181, 234-35 n.21 (1976)Google Scholar.

140. Nancy Cott used the phrase, “equalitarian feminist view,” to describe the late eighteenth-century ideology found in “Mary Wollstonecraft's Vindication of the Rights of Women,… and probably best represented in New England by ‘Constantia’.… [which] stressed women's common humanity with men and their equal endowment with mental and moral powers;… [and] denied no venture to women categorically because of their sex.” N. Cott, supra note 59, at 202. See also Basch, , Equity vs. Equality: Emerging Concepts of Women's Political Status in the Age of Jackson, 3 J. Early Republic 297 (1983)Google Scholar.

141. N. Cott, supra note 59, at 204.

142. Id.

143. Id.

144. Id.

145. Elizabeth Clark has perceptively discussed “women's complex relationship to the American rights tradition.” She notes that

[e]arly documents addressed to legislators predictably plead in a secular language of rights based on equality and the revolutionary settlement, commonly citing principles like “no taxation without representation.” Female lobbyists occasionally invoked their duties as mothers in favor of their cause, but by and large their arguments were couched in the familiar phrases of the revolutionary settlement. Women's writing to women proved a far richer admixture, not limited to claims for political and legal rights, but seeking a range of economic, domestic and personal entitlements and opportunities. Religious language and imagery permeates their discourse, while arguments from liberal theology undergird their vision of total reform.

Clark, Religion, Rights, and Difference in the Early Woman's Rights Movement, 3 Wis. Women's L.J. 29, 44 (1987). Keziah Kendall seems not to fall exclusively within either of Clark's categories. Rather, in the process of rejecting Greenleaf's evangelical persuasion, Kendall seems to draw upon the two modes of discourse identified by Clark.

146. Jemima and Keziah seemed to have divided their household and market tasks according to their interests and abilities, and Keziah described her sister as “a very good manager in the house.” This was very different from a typical farm household where roles most often would have been assigned on the basis of sex and would have had hierarchical implications.

147. N. Cott, supra note 59, at 70. Cott uses the quoted phrases to describe men's sphere—the competitive market—in opposition to women's domestic “disinterested”

148. The tension between reason and faith, within the broader context of the relationship between law, science, and religion, was a theme of some significance in Greenleaf's life. For example, at the same time he was preparing in the 1840s his monumental three-volume treatise on the law of evidence, he was also working on An Examination of the Testimony of the Four Evangelists by the Rules of Evidence Administered in Courts of Justice, with an Account of the Trial of Jesus, finally published in 1846.

149. See N. Cott, supra note 59, at 80-83, for a discussion of the “marriage trauma,” which resulted from “[y]oung women's awareness of the conflict between romantic and economic elements in the marriage choice.”

150. J. Untermeyer, supra note 1, at 13.

151. The letter has been transcribed as written. All peculiarities of punctuation, spelling, capitalization, and grammar have been retained.

152. The year was probably 1839. See supra note 5 and accompanying text.

153. She is, of course, referring to a widow's dower rights, which, according to Greenleaf, “entitled [her], by the common law, to the use, for her life, of one third part of all the improvable lands, houses, or other real property which [her husband] owned at any time during the marriage, whether sold by him or not.” Greenleaf, supra note 13, at 285.

154. Kendall may have been referring to a lecture by Jared Sparks, former owner and editor of the North American Review, who assumed a history professorship at Harvard in 1839. Sparks delivered a lecture at the Salem Lyceum in the 1838-39 season on one of his life's obsessions, the “Causes of the American Revolution.” H. Oliver, supra note 5, at 43. It is possible that Sparks, like Greenleaf, gave his talk at more than one lyceum.

155. Kendall was correct in her understanding of a husband's rights in his wife's personal property if she should die as early as “a week after she's married.” But she was only partially correct about the common law rule regarding a husband's interests, as a widower, in his wife's real property. Greenleaf described this rule as follows: “If he survives her, and she has borne him a living child, the estate continues in his hands during his life, because he is bound to maintain that child. If not, it goes to her heirs, as though she had remained single.” Greenleaf, supra note 13, at 282.

156. This is a reference to the equitable device of placing the woman's property in a trust before marriage for the purpose of avoiding the husband's common law rights in her property as well as protecting it from the husband's creditors. Under the trust agreement, the trustee would be obligated to manage the property for the benefit of the married woman.

The income of trusts generally could be alienated in anticipation of their receipt by the beneficiary (and thus could be reached by creditors). By the nineteenth century, though, some marriage settlements included “restraint on anticipation” clauses, which prevented the beneficiary—the wife—“from converting her equitable right to a future stream of income into a fixed capital sum.” Such a “restraint effectively made the trust for married women indestructible. Equity judges enforced the restraint clause soon after its appearance in the late eighteenth century.… [T]he purpose of the clause was to protect married women's economic interests from the predation of husbands.” Alexander, , The Transformation of Trusts as a Legal Category, 1800-1914, 5 Law & Hist. Rev. 303, 321-22 (1987)Google Scholar. We are grateful to Greg Alexander for bringing this point to our attention.

Of course, one of the historical issues at stake is the extent to which fathers used marriage settlements as a device to protect dynastic wealth from being squandered by improvident sons-in-law and their creditors. Keziah Kendall, too, seems to have shared some of the dynastic concerns that motivated paternalistic equitable controls over family property, but even more, she would have wanted Kerry, for reasons of economic independence, to own and manage her own property after marriage.

157. Keziah shared a widely held distrust of romantic novels. In her study of women in the early republic, Linda Kerber has noted “the impact of the enormous prescriptive literature that counseled everyone, but especially women, against reading novels. Young women were thought to be most vulnerable to the attractions of irresponsibility and passion as depicted in novels.—” Kerber, L., Women of the Republic: Intellect and Ideology in Revolutionary America 239 (1980)Google Scholar. See also Cogan, F., All-American Girl: The Ideal of Real Womanhood in Mid-Nineteenth-Century America 95–96 (1989)Google Scholar.

158. Having a five-dollar bill as spending money may have had special significance for married women. Nancy Cott quotes a Cambridge woman writing to her husband in 1836 as saying, “First when I received the $5. bill I kissed it, because it seemed to me a proof that my dear Husband did not lose me from his mind as soon as from his sight—” N. Cott, supra note 59, at 70 n.12.

159. In the early republic, mantua makers were often economically independent women who, after a “lengthy apprenticeship… in the art of fashionable dressmaking could hope for a more secure and affluent life.… Experienced dressmakers could both live well and acquire their own stock of dry goods.” Norton, M., Liberty's Daughters: The Revolutionary Experience of American Women, 1750-1800, at 141–42 (1980)Google Scholar (giving a description of mantua makers in the late eighteenth century).

160. Kendall may have underestimated the role of women in the antimasonic movement. See Goodman, P., Towards a Christian Republic: Antimasonry and the Great Transition in New England, 1826-1836, at 80-102, 173–74 (1988)Google Scholar. Before moving to Massachusetts in 1833, Greenleaf for many years had been a devoted Mason, rising to the position of Grand Master of the Grand Lodge of Maine in Portland. In 1820 he wrote A Brief Inquiry into the Origin and Principles of Free Masonry.

161. At this time, some women formed separate female antislavery societies. Female participation and membership was often opposed by men in general antislavery societies. See Larry Ceplair's discussion in The Public Years, supra note 7, at 351-52.

162. Kendall is probably referring here to the “Pastoral Letter” issued by the Congregationalist ministers in the summer of 1837 denouncing the public lecturing of the Grimké sisters. An excerpt from the letter appears in id. at 211-12.

163. Greenleaf had two daughters who survived infancy. The elder, Charlotte Kingman Greenleaf, was born in 1809 and married Samuel Fuller, an Episcopal minister, in 1830. Kendall was probably referring to Greenleaf's younger daughter, Caroline Augusta, born in 1826. In 1839 she was still living at home with her parents. In 1850 she too married an Episcopal clergyman, Andrew Croswell. See Greenleaf, J., Genealogy of the Greenleaf Family 417–18 (1896).Google Scholar