16 March 2010

Women Under English Common Law in America

This is not a COG submission, but rather a history lesson. The poster for this month's COG is what prompted me to post this.
This past Saturday was Lunch & Learn at SCGS. The first lecture was on Catholic Records. Afterward several of us were talking about what records would historically be available to trace women. And from there it morphed into what records were available outside of the Catholic church and in the civil sphere. From there it went to English Common Law and coverture. Coverture? Ah, now the history lesson (this applies to coverture laws in America):

Under English Common Law a women does not have her own legal standing. Rather, she draws it from from her father and then from her husband. Think of it as the husband "covering" his wife with his legal status.
She has the legal standing of feme covert. Since a woman has no "body" of her own, she cannot do things like own land, bring a suit in court, earn her own salary, etc. Upon her marriage, everything she owned is now her husband's. However, if her husband wanted to sell land that she brought to the marriage, the wife had to sign off on it, some times being questioned outside of her husband's presence to make sure that she was not coerced into the sale. Prenuptial agreements did exist, however the property was generally set aside in a trust for the children (once again, a married woman cannot own land). The law where a woman cannot testify against her husband stems from coveture (after all, you can't testify against yourself).

A spinster, or woman who never marries has the legal status of feme sole. She is her own legal body. This status also applies to widows of wealth who chose to never remarry. A feme sole is allowed to own property, enter into contracts, run a business and keep the profits, etc. She is still a woman and subject to all the laws that apply to or exclude her as well as social and cultural conventions.

Divorce. It was possible for a woman to sue for divorce on (a) abandonment, (b) adultery, or (c) extreme cruelty (it was legal to beat your wife, however, it was not legal to repeatedly beat her to within an inch of her life). Divorces were not often granted. Legal separations were recognized, where the woman, although still married, took on a feme sole like status. Children remained under the guardianship of their father.

Guardianship. If the husband died, leaving minor children, a male guardian had to be appointed. Children 14 years of age or older generally chose a guardian. If you have any ancestors were this was the case, then check for guardianship papers. They may or may not be with the probate or estate papers. Guardianship papers will list the children by name and usually their age(s) and who their guardian(s) are.

Dower Rights. A wife had a legal right to one-third (1/3) of her husband's estate upon his death. You will see in a will: "I leave my wife, [name], her dower..." It could be in the form of property (which she could not sell without permission from the eldest son or will administrator) or most commonly the income generated from a property during her lifetime. A husband might even dictate where the dower will be transferred to upon his wife's death. He might also "give" her the house to live in during the remainder of her life. I had one ancestor leave his wife the cow, with the express permission that she could sell the milk. The animal was to go to a daughter upon the wife's death. A famous example is George Washington - in his will he freed his slaves, an action to take place upon the future death of his wife. A wife could contest a will if she was left out or received left less than her right.

Some interesting tidbits:

The state of New Jersey's original constitution allowed anyone who met the requirement of wealth, in pounds or property, to vote. The constitution was amended in 1844, limiting voting rights to white males.

Abigail Adam's famous Remember the Ladies letter is not about equal rights for women, but rather unequal rights in marriage: "Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power onto the hands of the Husbands."

Keep all of this in mind when you are researching your ancestors in the colonial and early Republic eras.

Sources
   Abigail Adams to John Adams, 31 March 1776, in The Book of Abigail and John: Selected Letters of the Adams Family, 1762-1784, ed. L.H. Butterfield, Marc Friedlaender and Mary-Jo Kline (Cambridge: Harvard University Press, 1975), 121.
   Wikipedia has a good article on coverture.
   About.com has a good article on dower rights in America.
For more detailed information look in legal books, journals, and articles.

2 comments:

Marian Burk Wood said...

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As a recipient of the Ancestor Approved Award, please list ten things you have learned about any of your ancestors that has surprised, humbled, or enlightened you and then pass the award along to ten other bloggers who you feel are doing their ancestors proud.

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Professional Legal Network said...

Nice to see this post. This article full tell us about women position in American common law. Every necessary information for women in this article and tell about there rights. Nice post. Thanks for sharing.
Professional Legal Network

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