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The Legal Status of Women in Early America: A Reappraisal

Published online by Cambridge University Press:  28 October 2011

Marylynn Salmon
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Extract

In 1930 Richard B. Morris published Studies in the History of American Law: With Special Reference to the Seventeenth and Eighteenth Centuries. The monograph included a chapter on the legal status of colonial women that became extremely influential within a short time of its appearance. Morris's influence continues half a century later. Several books published in 1980 cite him as one of their primary authorities on women's rights: Linda K. Kerber, Women of the Republic: Intellect & Ideology in Revolutionary America; Lyle Koehler, A Search for Power: The ‘Weaker Sex’ in Seventeenth-Century New England; and Mary Beth Norton, Liberty's Daughters: The Revolutionary Experience of American Women, 1750–1800. Other influential books and articles also rely heavily on Morris, including A Little Commonwealth: Family Life in Plymouth Colony by John Demos, ‘The Illusion of Change: Women and the American Revolution,’ by Joan Hoff Wilson, and ‘The Lady and the Mill Girl: Changes in the Status of Women in the Age of Jackson, 1800–1840,’ by Gerda Lerner. In fact, almost every published sentence on women's rights in early American law is followed by a footnote citing chapter three of Studies in the History of American Law. In The Bonds of Womanhood (1977), Nancy F. Cott declared that Morris's chapter ‘has become the standard essay on colonial women under the common law.’

Type
Review Essay
Information
Law and History Review , Volume 1 , Issue 1 , Spring 1983 , pp. 129 - 151
Copyright
Copyright © the American Society for Legal History, Inc. 1983

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References

1. Kerber, Linda K., Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill, N.C., 1980) 139Google Scholar; Koehler, Lyle, A Search For Power: The ‘Weaker Sex’ in Seventeenth-Century New England (Urbana, Ill., 1980) 41–52Google Scholar; Norton, Mary Beth, Liberty's Daughters: The Revolutionary Experience of American Women, 1750–1800 (Boston, 1980) 45–47Google Scholar; Demos, John, A Little Commonwealth: Family Life in Plymouth Colony (New York, 1970) 84–88Google Scholar; Wilson, Joan Hoff, ‘The Illusion of Change: Women and the American Revolution,’ in Young, Alfred H., ed., Explorations in the History of American Radicalism (DeKalb, Ill., 1976) 338–445Google Scholar; Lerner, Gerda, ‘The Lady and the Mill Girl: Changes in the Status of Women in the Age of Jackson, 1800–1840,’ Midcontinent American Studies Journal 10 (Spring, 1969) 5–14Google Scholar. Lerner recently republished her article in a revised form in Cott, Nancy F. and Pleck, Elizabeth H., eds., A Heritage of Her Own: Toward a New Social History of American Women (New York, 1979) 182–96Google Scholar. Her reference to Morris's work may be found on 183–84 of the revised article.

2. Cott, Nancy F., The Bonds of Womenhood (New Haven, 1977) 21Google Scholar. Roger Thompson used almost the same words in Women in Stuart England and America: A Comparative Study (Boston, 1974Google Scholar). He based his section on women's property rights almost entirely on Morris's ideas, arguing that Studies in the History of American Law was ‘the authority on this subject.’ (p. 165).

3. See, for example, Beale, J. H., American Historical Review 35 (1929-1930) 922Google Scholar; Crane, V. W., 44 Harvard Law Review 1157 (1930)Google Scholar; Llewellyn, Karl N., 31 Columbia Law Review 729–30 (1931CrossRefGoogle Scholar).

4. Wigmore, John H., 16 Iowa Law Review 452 (1930Google Scholar). While Wigmore gave several examples of faulty logic in Morris's book, he failed to conclude that the inconsistencies weakened the entire work. In fact, he decided just the opposite—that the book was reliable—and therefore negated his own critical judgment. Vacillating commentaries such as this may have misled historians who actually did their homework and read the early reviews before citing Morris.

5. Somewhat awkward for colonial historians may be the fact that an historian of the nineteenth century, Norma Basch, has written perhaps the best short summary of the legal status of women in early America. In particular, Basch describes in a clear, concise fashion the relationship between equity law and the common law. Her discussion, athough based on secondary sources for the most part, will serve us well. See In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca, N.Y., 1982Google Scholar) chaps. 1 and 2. Two young historians who did conduct new research are Gundersen, Joan R. and Gampel, Gwen Victor. Their article is ‘Married Women's Legal Status in Eighteenth-Century New York and Virginia,’ William and Mary Quarterly, 3d ser., 39 (1982) 114–34CrossRefGoogle Scholar. The contribution of this piece is hampered, however, by the author's reliance on Morris's 1930 interpretive framework. They have asked the same questions Morris asked: Were colonial women better off than Englishwomen? what changes in colonial law benefitted women? Also like Morris, they did not undertake research on the English side.

Given our continued dearth of knowledge about the rights of Englishwomen, it is difficult to accept the conclusion of Gundersen and Gampel that colonial women fared significantly better. They may be seeing improvement where in fact colonials were simply continuing the policies of the mother country. (See note 46 below.) The author also has difficulty with their contention that New York is usable as a representative colony. Its legal heritage, as even they admit, was shaped by Dutch law, which included provisions for married women markedly different from those of English law. David Narrett, however, has provided historians with an excellent discussion of the relationship between Dutch and English law in colonial New York. He also has some important comments on the effect of the two systems on women's inheritance rights. See ‘Patterns of Inheritance in Colonial New York City, 1664–1775: A Study in the History of the Family,’ (unpublished Ph.D. thesis, Cornell, 1981Google Scholar).

6. Degler, Carl, At Odds: Women and the Family in America from the Revolution to the Present (New York, 1980) 333Google Scholar.

7. Morris, Richard B., Studies in the History of American Law: With Special Reference in the Seventeenth and Eighteenth Centuries (New York, 1930; reprinted ed., New York, 1959) 126Google Scholar.

8. Ibid. 128–29.

9. Beard, Mary R., Woman As Force in History: A Study in Traditions and Realities (New York, 1946Google Scholar).

10. Dexter, Elisabeth Anthony, Colonial Women of Affairs (Boston, 1924Google Scholar; rev. ed., 1931) and Career Women of America 1776–1840 (Francestown, N.H., 1954Google Scholar); Benson, Mary Sumner, Women in Eighteenth-Century America: A Study in Opinion and Social Usage (New York, 1935Google Scholar; reprinted ed., Port Washington, N.Y., 1966).

11. For a thorough discussion of the golden age thesis, see Norton, Mary Beth, ‘The Myth of the Golden Age,’ in Berkin, Carol R. and Norton, Mary Beth, eds., Women of America: A History (Boston, 1979) 37–47Google Scholar.

12. For another presentation of this argument, see Gordon, Ann D. and Buhle, Mari Jo, ‘Sex and Class in Colonial and Nineteenth-Century America’ in Carroll, Berenice, ed., Liberating Women's History (Urbana, Ill., 1976) 278–300Google Scholar.

13. Gerda Lerner, ‘What the Revolution Meant for Women,’ Washington Post Book World, Jan. 4, 1981. More recently, the framework has been applied by Hemphill, C. Dallett in ‘Women in Court: Sex-Role Differentiation in Salem, Massachusetts, 1630–1683,’ William and Mary Quarterly, 3d ser., 39 (1982) 164–75CrossRefGoogle Scholar. She believes that for approximately the first forty years of settlement, the sex roles of men and women were relatively undifferentiated. As a result the status of women improved. In the 1670s and 1680s, however, ‘The woman's role as economic producer declined, as did her knowledge of and control over property. Her stature within the marriage relationship seemingly declined as well.’ (p. 175.) Hemphill thus accepts the thesis of improvement during the early years of colonization, but restricts it to less than half a century. Lois Green Carr and Lorena Walsh, in their sophisticated analysis of white women in seventeenth-century Maryland, also discovered that in the earliest years of settlement the status of women improved. They attributed the rise in power of women to demographic disruption, claiming that the relative scarcity of women in the population gave them bargaining power over men, and that men relied on women to act as guardians of their children and executors of their estates primarily because they had no nearby male relatives. Carr and Walsh did not believe in the power of women's work to increase their status. See ‘The Planter's Wife: The Experience of White Women in Seventeenth-Century Maryland,’ William and Mary Quarterly, 3d ser., 34 (1977) 542–71CrossRefGoogle Scholar.

14. Mary Beth Norton has recently published a major study that will do a great deal to modify previous optimistic views of colonial women's lives. See Liberty's Daughters: The Revolutionary Experience of American Women, 1750–1800 (Boston, 1980Google Scholar). In 1976 Norton also published an important article on the self-perceptions of colonial women. See ‘Eighteenth-Century American Women in Peace and War: The Case of the Loyalists,’ William and Mary Quarterly, 3d ser., 33 (1976) 386–409CrossRefGoogle Scholar. In addition to Norton's work, other historians of colonial women are beginning to question the standard interpretations. In A Search For Power, supra note 1, Lyle Koehler argues that colonial New England women enjoyed none of the liberating tendencies posited by Morris and his followers. See also the revisionist work of Ulrich, Laurel Thatcher, Good Wives: Image and Reality in the Lives of Women in Northern New England, 1650–1750 (New York, 1982Google Scholar) and Salmon, Marylynn, ‘The Property Rights of Women in Early America: A Comparative Study,’(unpublished Ph.D. thesis, Bryn Mawr, 1980Google Scholar).

15. Demos, A Little Commonweath, supra note 1, 84.

16. Wilson, ‘Illusion,’ supra note 1, 416.

17. Holdsworth, William Searle, A History of English Law 16 vols. (1903-1966Google Scholar); Pollock, Frederick and Maitland, Frederick, The History of English Law (Cambridge, England, 1923Google Scholar); Blackstone, William, Commentaries on English Law 4 vols. (London, 1765–1769Google Scholar); The Lawes Resolutions of Women's Rights: or, the Lawes Provision for Women (London, 1632).

18. Haskins, George Lee, Law and Authority in Early Massachusetts: A Study in Tradition and Design (New York, 1960) 180–82Google Scholar; Spufford, Margaret, Contrasting Communities: English Villagers in the Sixteenth and Seventeenth Centuries (London, 1974) 85–90, 104–18, 159–64CrossRefGoogle Scholar.

19. Morris, Studies, supra note 7, 155.

20. Ibid. 156–57.

21. Blackstone, Commentaries, supra note 17, ii, 129-39; The Laws Respecting Women, reprinted, with a Foreword by Shirley Raissi Bysiewicz (London, 1777; reprinted. Dobbs Ferry. N.Y., 1974) 197–99, 204–05.

22. Haskins, Iaw and Authority, supra note 18, 182.

23. Ibid. 182.

24. Morris. Studies, supra note 7, 160.

25. Pennsylvania law on this point is discussed in Marylynn Salmon, ‘Equality or Submersion? Feme Covert Status in Early Pennsylvania,’in Berkin and Norton, eds., Women of America, supra note 11, 101–06.

26. The Connecticut law of dower is discussed in Salmon, ‘Property Rights,’ supra note 14. 274–79.

27. Cushing, John D., ed., The Earliest Laws of the New Haven and Connecticut Colonies, 1639–1673 (Wilmington, Dela., 1977) 29Google Scholar.

28. Ibid. 95.

29. Swift, Zephaniah, A System of the Laws of the State of Connecticut: In Six Books 2 vols. (New Haven, 1795–1796) 1,255Google Scholar. Reeve, Tapping discussed the Connecticut law on dower in The Law of Baron and Feme, of Parent and Child, of Guardian and Ward, of Master and Servant, and of the Powers of Courts of Chancery (New Haven, 1816) 40Google Scholar.

30. Holdsworth, History, supra note 17, iii, 197.

31. Blackstone, Commentaries, supra note 17, ii, 133, 492–94. See also Holdsworth, History, supra note 17, iii, 195; The Laws Respecting Women, supra note 21, 195.

32. Griffith v. Griffith's Executors, 4 H. & McH. 101 (Md., 1798).

33. Ibid. 119–20. See also the supporting decision of Coornes v. Clements, 4 H. & J., 480 (Md., 1819).

34. Cushing, ed., Connecticut Laws, supra note 27, 29, 95; Cooper, Thomas, ed., The Statutes at Large of South Carolina 5 vols. (Columbia, S.C., 1836-1839) 2, 468–69Google Scholar; Beckman, Gail McKnight, ed., The Statutes at Large of Pennsylvania in the Time of William Penn (New York, 1976) 151Google Scholar. For a complete discussion, see Salmon, ‘Property Rights,’ supra note 14, 264–73. According to Gundersen and Garnpel, Virginia also changed its law to suit the new English standard, but during the same period redefined slaves as real property rather than personal property. This gave widows a life interest in one third of the family slaves, just as they had a life interest in one third of the family lands (or one half if there were no children). ‘Married Women's Legal Status,’ supra note 5, 121.

35. Fenwick and Wife v. Hebb (1780–1791), Chancery Records, xxii, 167–205, and Chancery Papers No. 1815, in the Maryland Hall of Records, Annapolis (hereafter, MHR). The author wishes to thank Lois Green Carr for alerting her to this reference.

36. Blackstone, Commentaries, supra note 17, ii, 122; The Laws Respecting Women, supra note 21, 203.

37. Mitchell, James T. and Flanders, Henry, comps., The Statutes at Large of Pennsylvania from 1682 to 1801 16 vols. (Philadelphia, 1896-1911) ii (1896) 327Google Scholar.

38. Ibid. ii, 237.

39. Cases concerning disputes over waste include Rose v. Hays, I Root 244 (Ct., 1791); Hastings v. Crunckleton, 3 Yeates 262 (Pa., 1801); Lattimer v. Elgin, 4 Desaussure 26 (S.C., 1809).

40. Denwood v. Winder, (1770), Chancery Records, xiii, 343, MHR; Paslay v. Bryd (1822), Laurens District Equity Decrees, 1821–1823, 125–34, South Carolina Department of History and Archives, Columbia, S.C. (hereafter, SCA); Mackie v. Alston, 2 Desaussure 362 (S.C., 1806).

41. Denwood v. Winder (1770), Chancery Records, xiii, 343, MHR.

42. See cases cited at notes 39, 40, 43.

43. Crocker v. Fox and Wife, 1 Root 323 (Ct., 1791); Nash v. Boltwood, Strong's Pleadings, 366 (Ma., 1783). Horwitz, Morton J. discussed the Nash case in The Transformation of American Law, 1780–1860 (Cambridge, Ma., 1977) 56Google Scholar.

44. Ibid. 54–8.

45. Morris, Studies, supra note 7, 144.

46. Ibid. 144. Present day historians have followed Morris into error on this point. In ‘Married Women's Legal Status,’ Gundersen and Gampel cite Morris and Benson to support their contention that colonial courts improved on English law in this area. They write, ‘Fortunately for married women, English law concerning land transfers proved cumbersome. About 1700 the colonies began to simplify the form of deeds, proceeding in a manner suggesting a conception of equality or partnership in marriage. The new form was the joint deed, an important modification of English law.’ ‘Married Women's Legal Status,'supra note 5, 124–25.

47. Holdsworth, History, supra note 17, vii, 361.

48. The Laws Respecting Women, supra note 21, 133.

49. Blackstone, Commentaries, supra note 17, ii, 360–61. The author would like to thank Clive Holmes for pointing out this reference.

50. Salmon, ‘Property Rights,’ supra note 14, 27–83.

51. Morris, Studies, supra note 7, 149.

52. ‘An Act for Quieting Possessions,’(1671), in Bacon, Thomas, ed., The Laws of Maryland at Large (Annapolis, Md., 1765Google Scholar) Chap. 6; ‘An Act for the enrolling of Conveyances, and securing the Estates of Purchasers,’ Bacon, Laws of Maryland Chap. 2 (1674).

53. Ibid.

54. ‘An Act for preventing the Sales of the Real Estates of Heiresses, without their Consent,’ (1723), in Acts and Laws of His Majesty's English Colony of Connecticut in New England in America (New London, Ct., 1750) 119. ‘An Act for Remission of Arrears of Quit-Rents,’(1731), in Cooper, ed., Statutes of South Carolina, supra note 34, III, 289. ‘An Act for the better confirmation of the estates of persons holding or claiming under femes-coverts, and for establishing a mode by which husband and wife may hereafter convey their estates,’ (1770), in Laws of the Commonwealth of Pennsylvania 10 vols. (Philadelphia, 1810-1844) i, 307–09Google Scholar.

55. Cooper, ed., Statutes of South Carolina, supra note 34, iii, 302–03.

56. Acts and Laws of Connecticut, supra note 54, 199; Swift, System, supra note 29, i. 194-95; Butler v. Buckingham. 5 Day 496 (Ct., 1813).

57. Acts and Laws of Connecticut, supra note 54, 199. The statute read: ‘For the future, any real Estate, whereof any Woman at the Time of her Marriage is seised as her Estate of Inheritance, or does during such Coverture, become so, either by Descent or otherwise, shall not be Alienable by her Husband's Deed, without her Consent, testified by her Hand and Seal to such Deed and Acknowledgment of the same before an Assistant or Justice of the Peace.’

58. Morris, Studies, supra note 7, 144–45.

59. Cooper, ed., Statutes of South Carolina, supra note 34, iii, 302.

60. Laws of the Commonwealth of Pennsylvania, supra note 54, i, 307.

61. Important cases on conveyancing law in Pennsylvania include Davey v. Turner, 1 Dallas 11 (1764); Lloyd v. Taylor, 1 Dallas 17 (1768); Kirk v. Dean, 2 Binney 341 (1810); Shaller v. Brand, 6 Binney 435 (1814); Watson v. Bailey, 1 Binney 470 (1808); McIntire's Lessee v. Ward, 5 Binney 296 (1812); Evans v. The Commonwealth, 4 Sergeant and Rawle 272 (1818); Tate and Wife v. Stooltzfoos, 16 Sergeant and Rawle 35 (1827).

62. Kirk v. Dean, 2 Binney 245 (Pa., 1810).

63. Morris, Studies, supra note 7, 136.

64. Ibid. 138.

65. Ibid.

66. Demos, A Little Commonwealth, supra note 1, 85–86.

67. Barnes v. Hart, 1 Yeates 221 (Pa., 1793). The case is discussed in Salmon, ‘Equality or Submersion?’ in Berkin and Norton, eds., Women of America, supra note 11, 98–100.

68. Beall and King v. Woolford (1792), Chancery Records, xxxix, 30–69, MHR.

69. Ibid. 68.

70. Barret v. Barret, 4 Desaussure 447 (S.C., 1818); Dupree v. McDonald, 4 Desaussure 209 (S.C.. 1812); Smelie v. Smelie, 2 Desaussure 72 (S.C., 1802).

71. In Barret v. Barret, the court's opinion stated that the function of a trustee was ‘to protect the rights of the wife.’ 4 Desaussure 454 (S.C., 1818). In Price v. Michel, the opinion noted, ‘In general a Trustee is interposed not only to hold the legal estate for the Married Woman but to protect her from the undue influence of her husband.’ Charleston District Equity Decrees, iii, 380 (1821), SCA. See also Postell and Smith v. Skirving and Others, 1 Desaussure 158 (S.C., 1789).

72. Salmon, Marylynn, ‘Women and Property in South Carolina, 1730–1830: The Evidence from Marriage Settlements,’ forthcoming in William and Mary Quarterly, 3d ser., 39 (1982) 655–85CrossRefGoogle Scholar.

73. For the colonial and early national periods, roughly 2,000 marriage settlements have survived. The sample studied included all deeds from the colonial and Revolutionary periods. After the recording of settlements became a legal requirement in 1785 and the number increased accordingly, a sample consisting of all deeds registered in Charleston in every fifth year was analyzed, for a total of 638. Marriage Settlements, Vols. 1–10 (1785–1830); Records of the Register of the Secretary of the Province, Vols. A-I (1721–1733); Miscellaneous Records of the Secretary of State, Charleston Series, Vols., AB, BB-XX (1735–1789), SCA.

74. There are no accurate marriage rates for South Carolina in the period under study. Population figures are available, however, and by applying the earliest available marriage rate, that for 1860, (1/115), we can arrive at a rough percentage of marrying couples with settlements. Watternburg, Ben J., The Statistical History of the United States: From Colonial Times to the Present, with an Introduction and Notes (New York, 1976) 1168Google Scholar; Population of the United States in 1860 (Washington, D.C., 1869) xxxviGoogle Scholar.

75. Walsh, Lorena S., ‘Till Death Us Do Part: Marriage and Family in Seventeenth-Century Maryland,’ in Tate, Thad W. and Ammerman, David L., eds., The Chesapeake in the Seventeenth Century (New York, 1979) 137Google Scholar. Maryland required the registration of all trust estates beginning in 1674, with the colony's first recording statute, ‘An Act for the enrolling of Conveyances, and securing the Estates of Purchasers.’ Bacon, Laws of Maryland, supra note 52, Chap. 2 (1674). Maryland courts enforced the law strictly. See Ponsonby v. Briscoe (1780), Chancery Records xvi, 96, MHR.

76. Salmon, ‘Property Rights,’ supra note 14, 221–29. The quotation is from Dibble v. Hutton, 1 Day 224 (Ct., 1804).