In the United States property ownership
and the control of that property represented a power not achieved by the
vast majority of persons who remained in the Old World. Yet for one half
of the white population during most of American history, this chance to
control one's own economic future was not only difficult but legally restricted.
To understand the history of women in the nineteenth-century United States,
the modern student must be aware of the legal limitations that severely
circumscribed many activities women might have desired to pursue. Conversely,
knowledge of these very restrictions allows the student to explore how
legal change transformed not only the actions but sometimes the very lives
of the women involved. Mississippi's 1839 Act for the Protection and the
Preservation of the Rights of Married Women was an unprecedented liberation
of property-holding married women from the restrictions of coverture under
the ancient precepts of Anglo-American common law.
Mississippi women of the mid-nineteenth
century were the first to take advantage of the new laws. Within a few
months of the legislative changes, wives in Amite and other Mississippi
counties commenced writing wills. By focusing on the testaments of these
married women, the reader learns exactly what they owned, valued, and desired
to pass on to the next generation. While their property may have been inherited
from a father or previous husband, both these women and their current spouses
agreed and recognized that the items belonged to the wife alone. These
women realized the pride and understood the responsibilities of ownership,
a cherished part of the American dream. They were also wives, daughters,
sisters, and neighbors; these roles are evident in the text of the testaments
and the patterns of bequeathment. Not only did they designate their legacy
to assist family and friends, they may have influenced each other and encouraged
other wives to make a final statement in the form of a will.
Although none of these individuals
is a typical example of southern womanhood--indeed the very fact they owned
property separate from their husband places them in a relatively elite
circle--they are representative of the first women to take advantage of
this property law reform. The study of their wills should help the historian
to understand the importance of property to women and to recognize the
desire of women, like men, to protect family holdings and be remembered
after death.
Common law, the basis of both English
and American law, (1)
was the result of centuries of amalgamation and precedent. Most of the
laws relating to property were made by men who, having achieved their wealth,
were interested in maintaining their investments. They relied on the ancient
precepts of coverture to preserve family fortunes from untutored wives
and depended on equity settlement to protect them from profligate sons-in-law.
Under the rules of coverture, a single,
adult woman had the same ability as her brother to buy and sell property,
make contracts, and write a will. When she married, however, she changed
from this autonomous legal status of feme sole to a special status, subordinate
and dependent to the husband, known as feme covert. He now had control
over her real property, which included her dowry, freehold land, and personal
property which included slaves. Although as an unmarried woman she could
have written a testament, a wife could make a will only with her husband's
consent. Rarely given, this consent could be withdrawn at any time before
probate. In her testament, she could bequeath only personal property, not
land. If she died intestate, all her property became, or remained, her
husband's absolutely. (2)
When he eventually died, any children, including those from previous marriages,
could inherit from him only if he desired to include them in his will despite
the fact that the majority of his property might have originated with her.
If the husband predeceased the wife,
anything she might later bequeath came only from that portion that her
husband had willed her. While property laws dating to the middle ages stipulated
that a widow and her children had rights to their share of the husband's
personal property, by the mid-fourteenth century it became possible for
a man to leave nothing at all to his children or widow--even property which
she had brought into the marriage. The old rule of "reasonable parts" that
automatically gave the widow one-third and the children two-thirds of an
estate applied only when the husband died intestate. (3)
In eighteenth-century America, women
whose husbands died intestate were often better off than those whose husbands
left wills. An increasing number of men both limited the amount of property
left to their widows and restricted their use of inherited estates. Often
widows had remarriage penalties or "life use only" restrictions placed
on their inherited estate. (4)
In contrast, married men whose wives predeceased them received a lifetime
"courtesy" use of the landed property if a child had been born of the marriage.
At the father's death, the child inherited or if none survived, the estate
went to the woman's next of kin. Because the husband was entitled to tenancy,
the holding of his wife's land, only if children were born, the husband's
interest in the wife's estate ended with her death if no children survived.
In the South, slaves were often bequeathed to children instead of the widow
in an effort to protect chattels from an avaricious second husband.
For all these legal privileges, a
husband had no legal responsibility to maintain his wife or children. Since
the husband, through jure uxoris , (5)
owned absolutely the wife's property, her property could also be held liable
for debts. After her husband's death, a widow's personal belongings, jewelry,
even her clothes, could be claimed by her husband's creditors. (6)
Because the common law placed so much financial power into the hands of
a husband, the wealthy had found ways, via equity law, (7)
to protect their daughters' dowries from being squandered by dissolute
husbands. They created separate settlements for their daughters, thereby
granting them almost the same rights as a feme sole. These settlements
gave a married woman a measure of protection unknown to those wives who
could not afford to tie up property in equity. Unless a woman with an equity
settlement voluntarily offered her estate as collateral, it could not be
taken to pay for her husband's debts. Some settlements included testamentary
clauses which gave married women the privilege of bestowing or withholding
their separate estate in the same manner as men. Lest this relative autonomy
go to a woman's head, her settlement was managed by a male trustee.
A major problem with settlements was
that they were not designed to give women any present benefit. Because
the husband had use of any profits or interest during his lifetime, only
after his death could his widow gain access to her property. Even then,
though she was a feme sole, she could not control the principal, for it
remained in trust for her children or heirs. Thus settlements were utilized
as a form of insurance against the financial uncertainties of widowhood
and not as a separate source of income beyond that allotted to her by her
husband to be enjoyed during her marriage. (8)
Another drawback was that settlements did not always provide financial
protection for wives. Common law gave men the "expectation" that they would
have control over their wife's money, because for a settlement to be valid,
the husband had to agree to it. If a man did not want to be generous to
his wife, there was no way his wife could safeguard her property via an
equity settlement. By the end of the eighteenth century many settlements
named the husband as manager, thereby ending an outlet of financial independence
for some women. While equity recognized the ability of some married women
to hold property even after marriage, it did not alter that status of married
women as a group under the law.
Because most equity privileges were
beyond the resources of the majority of American women, equity law concerned
only a very small number of people. The proceedings in the courts of equity
were very expensive, and families had to go to court each time a daughter
married. Even those with moderate fortunes found that these expenses were
more than they could meet. Only the extremely wealthy could entangle property
in these marriage settlements. Approximately one married woman in ten had
property in equity, therefore 90 percent of the married female population
labored under the disabilities of coverture.
As America moved into the nineteenth
century, the common law legacy inherited from England could not keep up
with the rapid economic and social changes taking place in society. With
increased business expansion in the East and the growing migration to the
West, many precepts of common law, especially those concerning married
women, hindered progress. By the 1830s and 1840s, economic and social pressures
spurred American legalists to reconsider the legal status of married women.(9)
The boom-and-bust economy of the
1830s that culminated in the Panic of 1837 may have been the spur needed
to enact property reform legislation. Because a married woman's property
was subject to seizure for a husband's outstanding debts, many women and
their families risked losing their inheritance and future maintenance.
Separate estates would at least insure that a family would continue to
have an income through the wife's money. This unstable economy was shadowed
by the nascent women's movement. By the 1840s, many female abolitionists
began to extend their energies toward the cause of women's rights. As early
as 1837, Sarah Grimk? published a harsh indictment of women's status under
the law in her Letters on the Equality of the Sexes. Ernestine Rose and
Elizabeth Cady Stanton petitioned in favor of statutory change. The efforts
of these women and others brought about change in the established Northeast.
In 1848, New York and Pennsylvania enacted a married women's property law
that granted hitherto femmes covert the right to own separate property
and to exercise full powers of control over it. Studies have indicated
that the reforms resulted from both legal reconsiderations by lawmakers
and the efforts of the early feminists.
The well-documented and researched
publications on the process of married women's property law reform in New
York and Pennsylvania focus on three influences in the passage of laws.
These studies indicate that economic problems heightened by the Panic of
1837, a growing realization on the part of legalists and legislators that
the feme covert status of married women in regards to their property was
inherently unjust, and the heightened visibility of the infant women's
rights movement were all prime factors in the 1848 passage of the married
women's property law reforms in these two states. Paradoxically, while
New York and Pennsylvania have been the focus of several studies in the
last fifteen years, neither was the first to legislate this reform; in
1839 Mississippi enacted a series of statutes that radically altered married
women's status under the common law.
By 1839 Mississippi had enjoyed twenty-two
years of prosperous statehood. With millions of fertile farm and timber
acres available, it proved to be an attractive destination for thousands
of pioneering Americans. Though Mississippi had begun its existence as
a patchwork quilt of Spanish provinces of Florida and several Indian Secessions,
Mississippi lawmakers chose to conform to the Anglo-American legal base
of common law instead of the nearby civil law as practiced by Mississippi's
Spanish and French neighbors in Louisiana and in early Florida. Mississippi's
proximity to the precepts of the Code Napoleon and its tenets of married
women's separate property rights may have influenced Mississippi's ground
breaking adoption of the 1839 Act for the Protection and Preservation of
the Rights of Married Women as detailed by legal student Elizabeth Gaspar
Brown in a 1944 Michigan Law Review article.
While Brown admits that the facts
of the story are sketchy, she recounts the tale of Mrs. T. Hadley, an operator
of a popular boardinghouse in Jackson, Mississippi, and onetime resident
of Louisiana. During her sojourn in the Pelican State, the future Mrs.
Hadley observed with envy the relative freedom with which married Louisiana
women could manage their own property. After her return, she married and
became a feme covert under Mississippi law. It so happened that her husband,
who was continually hounded by creditors and hence, endangering her own
earnings, was a member of the Mississippi State Senate. Either Mrs Hadley's
persuasion or his accruing debts took their toll, for on January 21, 1839,
Mr. Hadley introduced a bill "for the protection of and preservation of
the rights of property of married women." (10)
After three stymied attempts, the bill finally passed and was ratified
into law on February 15, 1839, thus making Mississippi the first state
in the nation to give a married woman legal control of her own property. (11)
Given the fact that a significant proportion of wealth in Mississippi was
tied to both land and slaves, married women now had legal access to the
basic component of the southern economy--agriculture.
The 1839 Act for the Protection and
Preservation of the Rights of Married Women granted a woman the ability
to possess property separate from her husband. She remained a feme covert
but she could manage her property, make contracts, and bequeath as a feme
sole. Although the state broke ground in this relatively important area
of property law reform, Mississippi garners only small footnotes in the
histories of the mid-nineteenth century America women's property law reform. (12)
Few historians sufficiently credit the effect that the Mississippi statutes
of the 1830s had on the later reforms of other states.
This "Woman's Law of Mississippi,"
was the first in a series of landmark reforms that permanently altered
the access of married women to their property. While no changes were made
to the law until after the Civil War, a series of reforms enacted during
radical Reconstruction and the decade beyond redefined property and ultimately
dissolved all limitations. (13)
The married woman was granted an unprecedented amount of freedom of property
disposal at the time of her death. (14)
Wills and inventories written by nineteenth- and early twentieth-century
women give a unique insight into the legal, economic, and social aspects
of women's lives. In an age when women could not vote, hold public office,
sit on a jury, pursue a professional career, or even appear in the newspaper
without hinting scandal, wills were an opportunity to leave a permanent
mark on public memory. In them, their last wishes were duly recorded and,
after death, granted. Accounts of their personal possessions were catalogued
and appraised. In an increasingly materialistic age when wealth and the
successful acquisition of property were equated with success, in death
a woman who wrote a will was evaluated on equal terms with men.
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