Women and the Law

feme covert

Legal doctrine grounded in British common law that held that a wife’s civic life was subsumed by her husband’s. Married women lacked independence to own property, make contracts, or keep wages earned. The doctrine shaped women’s status in the early Republic.

In English common law, wives had no independent legal or political personhood. The legal doctrine of feme covert (covered woman) held that a wife’s civic life was completely subsumed by her husband’s. A wife was obligated to obey her

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husband; her property was his, her domestic and sexual services were his, and even their children were legally his. Women had no right to keep their wages, to make contracts, or to sue or be sued. American state legislatures generally passed up the opportunity to rewrite the laws of domestic relations even though they redrafted other British laws in light of republican principles. Lawyers never paused to defend, much less to challenge, the assumption that unequal power relations lay at the heart of marriage.

The one aspect of family law that changed in the early Republic was divorce. Before the Revolution, only New England jurisdictions recognized a limited right to divorce; by 1820, every state except South Carolina did so. However, divorce was uncommon and in many states could be obtained only by petition to the state’s legislature, a daunting obstacle for many ordinary people. A mutual wish to terminate a marriage was never sufficient grounds for a legal divorce. A New York judge affirmed that “it would be aiming a deadly blow at public morals to decree a dissolution of the marriage contract merely because the parties requested it. Divorces should never be allowed, except for the protection of the innocent party, and for the punishment of the guilty.” States upheld the institution of marriage both to protect persons they thought of as naturally dependent (women and children) and to regulate the use and inheritance of property. (Unofficial self-divorce, desertion, and bigamy were remedies that ordinary people sometimes chose to get around the law, but all of these practices were socially unacceptable.) Legal enforcement of marriage as an unequal relationship played a major role in maintaining gender inequality in the nineteenth century.

CHRONOLOGY

1790–1820

  • – In an era of religious ferment, a small number of women openly engage in preaching.

1821

  • – Emma Willard founds Troy Female Seminary in New York.

1822

  • – Catharine Beecher founds Hartford Seminary in Connecticut.

Single adult women could own and convey property, make contracts, initiate lawsuits, and pay taxes. They could not vote (except in New Jersey before 1807), serve on juries, or practice law, so their civil status was limited. Single women’s economic status was often limited as well, as much by custom as by law. Job prospects were few and low-paying. Unless they had inherited adequate property or could live with married siblings, single adult women in the early Republic very often were poor.

None of the legal institutions that structured white gender relations applied to black slaves. As property themselves, under the jurisdiction of slave owners, they could not freely consent to any contractual obligations, including marriage. The protective features of state-sponsored unions were thus denied to black men and women in slavery. But this also meant that slave unions did not establish unequal power relations between partners backed by the force of law, as did marriages among the free.