American women and the lingering implications of coverture

Abstract

Because coverture restrictions prevented most married American women from the colonial period through a good part of the 19th century from acting as their own agents at law or to have independent property rights, attempts were made to modify this legal disability. Married Women Property Acts partially remedied some of these legal disabilities, but others lingered well into the 20th century because, unlike most contracts, the marriage contract in the United States still remains unwritten and so, its terms are not defined. Even with the advent of contractual marriages in the 1970s and 1980s, coverture overtones continue to exist. While some state courts have accepted these contractual arrangements, others have not and their enforcement remains problematic “because the law still prescribes sex-differentiated marital roles and male domination.”

Notes

1 For examples of the expansion of female services and functions in colonial towns, ranging from paid domestic servants, wet nurses, and prostitutes to that of a small group of wealthy women consumers, see: Gary B. Nash, The Urban Crucible: Social Change, Political Consciousness and the Origins of the American Revolution (Cambridge, MA: Howard University Press, 1979), passim; Ryan, Womanhood in America, 34, 73, 86–87, 91–99; Elaine Forman Crane, A Dependent People: New Port, Rhode Island in the Revolutionary Era (New York: Fordham University Press, 1985), 71–75; idem, “When More Means Less: Women and Work in Colonial American Seaports,” paper delivered at 1984 Berkshire Conference on the History of Women; and Virginia Bever Platt, “The Working Women of Newport Rhode Island,” paper delivered at 1975 Conference on Women in the Era of the American Revolution. According to Platt's figures, female laborers in Newport (whether free, indentured, or hired-out as slaves, and regardless of race) were paid approximately 30% less than the lowest paid unskilled, free, White male workers and 20% less than hired-out male slaves. These figures have since been confirmed upward by Billy G. Smith, “The Material Lives of Laboring Philadelphians, 1750–1800,” William and Mary Quarterly, 3rd Series, 38 (1981): 163–202; and Carole Shammas, “The Female Social Structure of Philadelphia in 1775,” Pennsylvania Magazine of History and Biography 107 (1983): 69–84. For general gender economic functions in the colonial period see Abbott, Women in Industry, pp. 13–20, 149–56; Manges, “Women Shopkeepers, Tavernkeepers and Artisans,” xxxi–xxxii, 40–41, 44 (no. 101), 69–117 (no. 290); Carl Bridenbaugh, The Colonial Craftsman (Chicago: University of Chicago Press, Phoenix Books, 1961; reprint of original 1950 New York University Press edition), 105–108; Earle, Colonial Dames and Good Wives, 45–87; Carl Holliday, Women's Life in Colonial Days (New York: Frederick Ungar Publishing Co., 1922), 291–312; and Elisabeth Anthony Dexter, Colonial Women of Affairs: Women in Business and the Professions in America before 1776, 2d ed., rev. (Boston: Houghton Mifflin Co., 1931), passim.

2 Ostensibly women renounced their dower rights, according to official testimony, without “compulsion, dread, or fear from their husbands.” Yet the procedure had become so informal on the eve of the Revolution that few of the new states required more than pro forma compliance, often not even the requirement that the examination take place on neutral ground—that is, other than in the home and on the property of the husband. While it is unclear how many women underwent these examinations and agreed to these transactions completely voluntarily, there is no doubt that they represented a dramatic decline in the property controlled by wealthier women in most colonies) by the end of the Revolutionary period. Yet the legal and cultural fiction that the interests of husband and wife were one masked this enormous loss of property and potential economic influence of early Republican wives and mothers. As state statutes modified dower rights, the courts in decision after decision tried in various ways to rationalize the situation, by stating in essence that “statutes which have made substitutions for dower show, it is not dower and its purpose which have fallen into disrepute; it is the administration of dower which has come into conflict with modern conditions.” It was this kind of legal double talk that state legislatures and the judicial system used to pretend to protect widows with increasingly meaningless circumscribed dower rights. Combined with figures showing diminished inheritance patterns for widows throughout the 18th and early 19th centuries, these ostensibly innocuous renunciations convey the distinct impression that the economic condition of wealthy women had declined by the time the Civil War broke out. For more detail, see Joan Hoff, Law, Gender, and Injustice: A Legal History of U.S. Women (New York University Press, 2nd ed., 1994,), 106–116; and idem, Too Little, Too Late: Changes in the Legal Status of U.S. Women (NY: Rowman and Littlefield, 2007), Sections Two and Three.

3 Carole Shammas, Mary Lynn Salmon, and Michel Dahlin, Inheritance in America From Colonial Times to the Present (New Brunswick, N.J.: Rutgers University Press, 1987), 63, 87, 94–97; Marlene Stein Wortman, ed., Women In American Law, 1: From Colonial Times to the New Deal (New York: Holmes & Meier Publishers Inc., 1985), 8 (quotation), 59–196; Linda E. Speth, “The Married Women's Property Acts, 1839–1865: Reform, Reaction, or Revolution?” in Kelly Weisberg, ed., Women and the Law: A Social Historical Perspective (Cambridge: Schenkman Publishing Company Inc., 1982), 2: 69–91; and John D’Emilio and Estelle Freedman, Intimate Matters: A History of Sexuality in America (New York: Harper Row Publishers, 1988), 59, 63–66, 137, 145–147.

4 Carole Pateman offers an answer to Thompson's query based on the historical and philosophical relationship between the “social” contract and the marriage contract. For the caste-like characteristics of women and Blacks, see Catharine MacKinnon.

5 Pateman, Sexual Contract, 158, 159 (third quotation), 161, 163 (first quotation); Thompson, Appeal of One Half of the Human Race, 79, 84, 89; Robin L. West, “The Difference in Women's Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory,” Wisconsin Women's Law Journal 3 (1987): 101, 105; and Christine Delphy, Close to Home: A Materialist Analysis of Women's Oppression (Amherst, MA: University of Massachusetts Press, 1984). Delphy has cogently underscored that male power within marriage remains even if it is renounced because “the particular individual man [may] not play a personal role in this general oppression, which occurs before his appearance on the scene: but, reciprocally, no personal initiative on his part can undo or mitigate what exists before and outside his entrance.” (p. 116).