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Married Women's Economic Rights Reform in State Legislatures and Courts, 1839–1920

Published online by Cambridge University Press:  09 October 2018

Sara Chatfield
Sara Chatfield*
Affiliation:
Department of Political Science, University of Denver
*
Email: Sara.Chatfield@DU.edu
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Abstract

Beginning in 1839 and continuing through the early twentieth century, the American states passed laws expanding married women's economic rights, including the right to own property and sign contracts. In almost every state, these significant legal changes took place before women had the right to vote. I argue that married women's economic rights reform is best understood as a piecemeal, iterative process in which multiple state-level institutions interacted over time. This rights expansion often occurred as a by-product of male political actors pursuing issues largely unrelated to gender—such as debt relief and commercial development—combined with paternalistic views of women as needing protection from the state. State courts played a crucial role by making evident the contradictions inherent in vague and inconsistent legal reforms. Ultimately, male political actors liberalized married women's economic rights to the extent that they thought it was necessary to allow for the development of efficient and workable property rights in a commercial economy, leaving women's place in the economy partially but not fully liberalized.

Type
Research Article
Information
Studies in American Political Development , Volume 32 , Issue 2 , October 2018 , pp. 236 - 256
Copyright
Copyright © Cambridge University Press 2018 

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Footnotes

Acknowledgments: I am very grateful to Phil Rocco, Shamira Gelbman, Michael Pisapia, Eric Schickler, the members of my faculty writing group at the University of Denver, the editors, and the anonymous reviewers for their helpful feedback and comments. I also wish to thank Holly McCammon for sharing her data on the formation of state-level suffrage organizations.

References

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3. See Wortman, Marlene Stein, Women in American Law: From Colonial Times to the New Deal (New York: Holmes & Meier, 1985), 14Google Scholar. A few states adopted civil law approaches to marriage from Spanish or French traditions. Scholars have differed on whether the community property laws adopted by these states had a meaningful impact on either the experiences of women under this system or the pace of reforms. In this piece, I focus my analysis on common law states, although I do include dates for MWPAs in civil law states since these jurisdictions still passed laws clarifying and expanding married women's economic rights during the same period as common law states.

4. Salmon, Marylynn, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986)Google Scholar. In most states, a parallel system of equity or chancery courts allowed individual women the ability to petition for special exemptions. These courts, modeled on the British system, allowed for special petitions to be brought before judges when the common law was considered to be too strict or harsh. Access was largely limited to wealthier women, and because this property “ownership” was granted by special petition, each situation was treated in an ad hoc manner and was not linked to broader economic rights such as the right to contract. See Basch, Norma, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca, NY: Cornell University Press, 1982)Google Scholar. See also Kerber, Linda, Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill: University of North Carolina Press, 1980)Google Scholar.

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7. Dates for debt-free acts are taken from Hoff, Law, Gender, and Injustice. Dates for effective acts are taken from Geddes and Tennyson, “Passage of the Married Women's Property Acts.”

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11. Ibid., 10.

12. For example, a delegate at the California Constitutional Convention that adopted an MWPA argued: “I am not wedded either to the common law or the civil law, nor as yet, to a woman; but having some hopes that some time or other I may be wedded, and wishing to avoid the fate of my friend from San Francisco, (Mr. Lippitt [a delegate who opposed the MWPA],) I shall advocate this section in the Constitution, and I would call upon all the bachelors in this Convention to vote for it. I do not think we can offer a greater inducement for women of fortune to come to California. It is the very best provision to get us wives that we can introduce into the Constitution.” Browne, J. Ross, ed., Report of the Debates in the Convention of California on the Formation of the State Constitution (Washington, DC: J.T. Towers, 1850), 259Google Scholar.

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17. On early laws, see, for example, Chused, Richard H., “Married Women's Property Law: 1800–1850,” Georgetown Law Journal 71 (1983): 1359–425Google Scholar.

18. Data on the formation of state-level suffrage organizations was generously shared by Holly McCammon. The years indicated in Figure 2 as “Suffrage Organization” indicate the first year in which a state-level woman's suffrage organization was formed that lasted for at least 5 years.

19. Although I use the term “states” here, some territories did pass some version of an MWPA prior to statehood, which is reflected in these data.

20. Melder, Beginnings of Sisterhood, 144.

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26. Roberts, “Women's Rights and Women's Labor,” 108.

27. Ibid., 112–13.

28. Basch, In the Eyes of the Law, 37–38. For more detail on equity, see footnote 4.

29. Smith, Civic Ideals, 3. Smith also addresses civic republicanism as an additional alternative tradition to liberalism.

30. Rabkin, Peggy A., Fathers to Daughters: The Legal Foundations of Female Emancipation (Westport, CT: Greenwood Press, 1980)Google Scholar. See also Raquel Fernandez, “Women's Rights and Development,” NBER Working Paper (2009), http://www.nber.org/papers/w15355. Incidentally, fathers of daughters taking a particular interest in women's issues is one that continues today; for example, Glynn, Adam N. and Sen, Maya, “Identifying Judicial Empathy: Does Having Daughters Cause Judges to Rule for Women's Issues?” American Journal of Political Science 59, no. 1 (2015): 37–54CrossRefGoogle Scholar. See also Washington, Ebonya L., “Female Socialization: How Daughters Affect Their Legislator Fathers’ Voting on Women's Issues,” American Economic Review 98, no. 1 (2008): 311–32CrossRefGoogle Scholar.

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37. Siegel, “Home as Work.”

38. Siegel, Reva B., “The Modernization of Marital Status Law: Adjudicating Wives’ Rights to Earning, 1860-1930,” Georgetown Law Journal 82 (1994): 2127–211Google Scholar.

39. Ibid.

40. Geddes and Tennyson, “Passage of the Married Women's Property Acts.”

41. McCammon et al., “Radical Demand Effect,” 226.

42. Lebsock, “Radical Reconstruction.”

43. Ibid., 207–08.

44. This quotation comes from a South Carolina newspaper reporting on the state of married women's property rights: “The Wrongs of Women: A Topic Fully Discussed by the Convention in Columbia,” Charleston News and Courier, October 1, 1895.

45. Given the involvement of multiple courts in many states, this statement is not absolute. Courts occasionally interpreted MWPAs very broadly, or even struck down the laws as unconstitutional. However, these exceptions were far from the norm in state courts. See for example: Holmes v. Holmes, 4 Barbour 295 (1848); White v. White, 5 Barbour 474 (1849), both in New York, and Pelzer v. Campbell, 15 S.C. 581 (1881) in South Carolina.

46. 10 HOW 109 (N.Y.) (1854).

47. Charleston News and Courier, October 1, 1895.

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51. Balogh, Government Out of Sight, 318–19.

52. Pelzer v. Campbell, 15 S.C. 581 (1881).

53. Code of Civil Procedure of the State of South Carolina (1882): 93.

54. Holmes v. Holmes, 4 Barbour 295 (1848); White v. White, 5 Barbour 474 (1849).

55. Federal courts were not involved in these cases because family law was viewed as a state issue during this time period. Congress passed a law dealing with married women's property rights only to deal with women living in Washington, DC.

56. Dating of suffrage organization formation is based on data from McCammon et al., “How Movements Win.” Though Arkansas Territory did pass an earlier reform, it did not survive the transition to statehood. See Dougan, Michael B., “The Arkansas Married Woman's Property Law,” The Arkansas Historical Quarterly 46, no. 1 (1987): 3–26CrossRefGoogle Scholar.

57. “Radical Legal Changes—Married Woman's Rights in Mississippi,” Chicago Daily Tribune, September 13, 1880.

58. Fisher v. Allen, 3 Miss. 611 (1837).

59. Ibid., 614.

60. Benson, Megan, “Fisher v. Allen: The Southern Origins of Married Women's Property Acts,” Journal of Southern Legal History 6 (1998): 106Google Scholar. Benson also argues that the ruling left Chickasaw women less protected from exploitation by white land speculators than they might have been under the regime of coverture.

61. Ibid., 112.

62. Ibid., 113.

63. Brown, Elizabeth Gaspar, “Husband and Wife: Memorandum on the Mississippi Woman's Law of 1839,” Michigan Law Review 42, no. 6 (1944): 1113–14CrossRefGoogle Scholar.

64. Ibid., 1114.

65. Moncrief, Sandra, “The Mississippi Married Women's Property Act of 1839,” The Journal of Mississippi History 47, no. 2 (1985): 115Google Scholar. See also Ranney, In the Wake, 116.

66. “Removal of the Disabilities of Married Women in Mississippi,” American Law Review 26 (1892): 116Google Scholar.

67. Gaspar Brown, “Husband and Wife,” 1114.

68. Ibid., 1116.

69. Ibid., 1118.

70. Ranney, In the Wake, 116. For example, one proponent of the bill made the argument that women had a “just claim” to property they obtained either by gift, inheritance, or as “the product of their own labor.” But, paternalistic and economic motivations seem to have been much more prevalent. See Gaspar Brown, “Husband and Wife.”

71. Lebsock, “Radical Reconstruction,” 202.

72. Moncrief, “Mississippi Married Women's Property Act,” 111–12.

73. McGrane, Reginald Charles, The Panic of 1837: Some Financial Problems of the Jacksonian Era (New York: Russel & Russel, 1965), 117Google Scholar.

74. Mississippi Laws (1841), chap. 15, p. 113. See also “State Homestead Exemption Laws,” note in Yale Law Journal 46, no. 6 (1937): 1026Google Scholar.

75. Southern Sun (Jackson, MS), February 5, 1839, quoted in Moncrief, “Mississippi Married Women's Property Act,” 122.

76. Ranney, In the Wake, 114–15.

77. Revised Code of the Statute Laws of the State of Mississippi (1857), sec. V, art. 23–24. The full text of these laws is available in the Online Appendix.

78. Revised Code of the Statute Laws of the State of Mississippi (1857), sec. V, art. 24.

79. Revised Code of the Statute Laws of the State of Mississippi (1857), sec. V, art. 25.

80. Constitution of Mississippi (1869), art. I, sec. 16. Full text is available in the Online Appendix.

81. Journal of the Proceedings of the Constitutional Convention of the State of Mississippi, 1868 (Jackson, MS: E. Stafford, 1871), 345Google Scholar.

82. Ibid., 80–81. At another point, a different delegate proposed a similar provision that would have allowed exemptions only for clothing and property owned by a married woman before marriage; this proposal also failed. See Ibid., 584.

83. Ibid., 80.

84. Alexander F. Roehrkasse, “Failure, Fraud, and Force: The Rise and Fall of the Debtor's Prison in New York, 1760-1840” (Unpublished master's thesis, University of California, Berkeley, 2014), 49.

85. Journal of the Proceedings of the Constitutional Convention of the State of Mississippi, 1868, 43–44.

86. Constitution of the State of Mississippi (1868).

87. Davis v. Foy, 15 Miss. 64 (1846), 67.

88. Hardin v. Pelan, 41 Miss. 112 (1866), 114.

89. Whitworth v. Carter, 43 Miss. 61 (1870), 72–73.

90. Viser v. Scruggs, 49 Miss. 705 (1874), 711.

91. Viser did have some recourse in this particular case; because Mrs. Scruggs had given the money in question to her husband, the court ruled that debt legally became his, and thus the income from her separate estate could be taken to repay the debt. Still, Viser was unable to seize the property itself, as he would have been if Mrs. Scruggs were a man or a single woman.

92. Dibrell v. Carlisle, 48 Miss. 691, (1873), 706. See also Foxworth v. Magee, 44 Miss. 430 (1870).

93. Kessler-Harris, Alice, Out to Work: A History of Wage-Earning Women in the United States (New York: Oxford University Press, 1982), 75–77Google Scholar.

94. For a discussion of popular conceptions of wages versus other types of property, relevant to both genders, see Scott, William B., In Pursuit of Happiness: American Conceptions of Property from the Seventeenth to the Twentieth Century (Bloomington: Indiana University Press, 1977)Google Scholar.

95. Apple v. Ganong, 47 Miss. 189 (1872). Note that although this case reached the Supreme Court after the Mississippi legislature had passed an earnings act (in 1871), the purchases and debts in question occurred prior to the passage of the act, so the earnings act was not controlling.

96. Apple v. Ganong, 47 Miss. 189 (1872), 199.

97. Revised Code of the Statute Laws of the State of Mississippi (1871), chap. 23, art. V, Property of the Wife, sec. 1778.

98. Revised Code of the Statute Laws of the State of Mississippi (1871), chap. 23, art. V, Property of the Wife, sec. 1780.

99. Mayes, Edward, “The Legal and Judicial History,” in Biographical and Historical Memoirs of Mississippi: Embracing an Authentic and Comprehensive Account of the Chief Events of the History of the State and a Record of the Lives of Many of the Most Worthy and Illustrious Families and Individuals, ed. Brothers, Goodspeed (Chicago: Goodspeed, 1891), 124Google Scholar.

100. Netterville v. Barber, 52 Miss. 168 (1876), 173–174.

101. Netterville v. Barber, 52 Miss. 168 (1876), 170.

102. “Radical Legal Changes.”

103. Revised Code of the Statute Laws of the State of Mississippi (1880), chap. 42, sec. 1167.

104. Rabkin, Peggy A., “The Origins of Law Reform: The Social Significance of the Nineteenth-Century Codification Movement and Its Contribution to the Passage of the Early Married Women's Property Acts,” Buffalo Law Review 24 (1975): 683–760Google Scholar.

105. “Removal of Disabilities,” 115.

106. Rowland, Dunbar, Courts, Judges, and Lawyers of Mississippi, 1798-1935 (Jackson, MS: Press of Hederman Bros., 1935), 107Google Scholar.

107. Journal of the Senate of the State of Mississippi (Jackson, MS: J.L. Power, 1880), 40–42Google Scholar.

108. Journal of the Proceedings of the Constitutional Convention of the State of Mississippi, 1890 (Jackson: E. L. Martin, 1890), 220Google Scholar.

109. Constitution of Mississippi (1890); ibid.

110. Toof v. Brewer, 96 Miss. 19 (1888).

111. Southworth v. Brownlow, 84 Miss. 405 (1904).

112. Austin v. Austin, 136 Miss. 61 (1924), 71.

113. Revised Code of the Statute Laws of the State of Mississippi (1880), chap. 42, sec. 1177.

114. Gash, Alison L., Below the Radar: How Silence Can Save Civil Rights (Oxford, UK: Oxford University Press, 2015)CrossRefGoogle Scholar.

115. See, for example: Geddes and Tennyson, “Passage of the Married Women's Property Acts”; Geddes, “Human Capital Accumulation”; Khan, “Married Women's Property Laws”; Hoff, Law, Gender, and Injustice.

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