Women and the Law of Property in Early America

Women and the Law of Property in Early America

Women and the Law of Property in Early America

Women and the Law of Property in Early America

Synopsis

In this first comprehensive study of women's property rights in early America, Marylynn Salmon discusses the effect of formal rules of law on women's lives. By focusing on such areas such as conveyancing, contracts, divorce, separate estates, and widows' provisions, Salmon presents a full picture of women's legal rights from 1750 to 1830.

Salmon shows that the law assumes women would remain dependent and subservient after marriage. She documents the legal rights of women prior to the Revolution and traces a gradual but steady extension of the ability of wives to own and control property during the decades following the Revolution. The forces of change in colonial and early national law were various, but Salmon believes ideological considerations were just as important as economic ones.

Women did not all fare equally under the law. In this illuminating survey of the jurisdictions of Connecticut, Massachusetts, New York, Pennsylvania, Maryland, Virginia, and South Carolina, Salmon shows regional variations in the law that affected women's autonomous control over property. She demonstrates the importance of understanding the effects of formal law on women''s lives in order to analyze the wider social context of women's experience.

Excerpt

English precedents on separate property for married women did not find support everywhere in America. Until well into the nineteenth century, the legislative assemblies of Connecticut and Massachusetts refused to give any court the power to enforce trust estates. Thus, although separate estates technically were legal, the failure of courts to enforce them amounted to a policy of opposition. As case reports demonstrate, some couples still separated their property by mutual consent; some even employed trustees as intermediaries. But if for any reason they needed the intercession of the courts to protect their property arrangements, they found themselves involved in an uncooperative legal system. As was true for women's property rights in general, informal customs—here the use of separate estates—could not provide adequate security without formal law to back them up.

Opposition to chancery courts
and separate estates

The single most important reason for the initial failure of Connecticut and Massachusetts to enforce trust estates lies in the absence in these jurisdictions of independent courts of chancery on the English model. Without a court to administer the complicated body of equity precedents on women's property rights, New England fell behind in this area of the law. the situation in Pennsylvania, a colony that also failed to create an independent chancery, strengthens this conclusion. There, courts of common law had the power to enforce trusts, but they did not do so according to the standards followed in . . .

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