When researching early American people, I ran into information that showed that widows’ rights of inheritance were significantly limited by law. Because this subject kept popping up, I decided to research it. I read an awful lot of on the subject and quickly became very confused.
Colonial America followed English law, but individual colonies often modified this law. The main thing I learned was that women, and particularly married women, had few rights. A woman’s rights were dependent on social circumstances and where she lived. The surprising thing is that it was into the mid-twentieth century before women achieved full property rights by law. Much of what I read was in legalize and nearly impossible to understand. This research confirmed in my mind what I have always believed and that is that laws are written by lawyers in such a way that only lawyers can understand them. This is job security for them. What I did understand during my research follows.
In early America, most wealth was concentrated in land and other real property. There was little cash in circulation and most of what was in circulation was silver and gold coins. Starting with the first permanent settlers, people in North America were on the move pursuing their dreams. Many people lived on the frontier where cash was almost non-existent, and these people were pushing farther into the wilderness with little concern about boundaries. In the established East, most financial dealings involved property and credit.
During this time laws involving real property and control of that property were driven by a desire to keep property in the hands of male family lines and limited a widow’s claims to property. Women’s property rights were based on marital status, and unmarried women had a distinct advantage.
Unmarried women, including widows could live where they pleased and support themselves in any occupation that did not require a license or college education. The latter occupations were reserved for men. Single women could enter into contracts, buy and sell real estate, and accumulate personal property. So long as they remained unmarried, they could sue and be sued, write wills, serve as guardians, and act as executors of estates.
Everything was different once women married, which most did. They still had some legal rights, but not autonomy. They became totally dependent on their husbands. The English jurist Sir William Blackstone explained this in his “Commentaries on English Law” (1765-1769):
“By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing.”
This was all based on the assumption that a family, and society, functioned best if the male head of a household controlled all assets. Married women could not own property independent of their husband unless they had a signed contract legalizing the exception, and this was rare and, in some states, illegal. Basically, nearly everything a woman possessed before marriage or earned during marriage, including any wages, became the property of her husband, and he could do anything he wished with these assets without consulting his spouse.
The exception to the above was that real property that a woman inherited prior to marriage remained under her control. The husband could not sell or give away this property without the written permission of the wife, and the courts always made sure consent was freely given. This right assumed that a woman received the property from her father’s estate and the intention was to keep it in the family. After her death, this property would then convey to her children, hopefully to a male heir. If the husband died insolvent, the widow retained possession of her property for her own support.
This all sounds pretty grim for married women and it was. There were, however, laws to protect a wife from physical abuse, and to guarantee she lived at the level of her husband’s status. He could not financially or socially deprive her. This was the law, but enforcement was spotty and subject to varying interpretations. A wife had no protection from an irresponsible spouse and if creditors came after her husband, she was entitled to keep only the bare necessities which was defined as “cooking utensils, a bed, and two dresses.”
The most important right for married women was “dower,” a legal tradition that was carried over from colonial days. Dower was designed to provide the wife support if she became a widow. It consisted of a “life estate” of one-third the husband’s real property if they had children and one-half if they had no children. However, a “life estate” did not mean actual ownership. It was meant to provide for the widow as her husband would have done if he had lived and recognized her position of dependency within the family. Under dower, a husband could leave his widow more, but not less. Most families made dower their standard. When a widow died, her dower lands descended automatically to her husband’s heirs or to his creditors.
One problem with this system was that it allowed considerable control over estates to a male relative of the husband who could, and often did, financially squeeze the widow. I alluded to this in my essay on Dolly Madison. She was nearly destitute after her first husband’s death because her husband’s brother had direct control of two-thirds of the estate. He also would not allow her to realize the full benefits of her one-third since she did not actually control the property. Men controlled virtually all aspects of property and estates and did not want to give up the power nor the money.
After our revolution there was a recognition that laws concerning women, especially married women and widows, were not just. This caused a few changes in some states, but the wheels of government moved very slowly and the wheels “creaked” because men did not want to lose any of their power. Women’s financial rights were controlled by the states and some made moves towards giving married women the same rights as single women. However, most states did not move on these issues very fast, if at all.
The states did pass laws to protect women from abusive, neglectful, and adulterous husbands, and there was a recognition that divorce should be allowed to end unhappy marriages. Again, divorce laws depended on where you lived because some areas were much more reluctant to allow divorce than others. In some states divorce was only a legal separation with no rights of remarriage. In others divorce was absolute and the “innocent party” could remarry. Many states also gave a woman the right to obtain custody of her young children. Fathers got custody of boys once they reached an age requiring less care. I could not determine the legal age for this but in most societies the age is about 12 years old. Women could retain custody of daughters. In the past, courts normally awarded custody of all children to fathers.
I would like to believe that the moves to give women more rights were because men were becoming fairer minded, but that was rarely the reason. Our country was changing and expanding at an increasingly rapid pace and was starting to industrialize, particularly in the nineteenth century. Dower and other colonial laws worked when families rarely moved and rarely obtained mortgages on property. These laws, however, were becoming burdensome when the population became more mobile and there was more need for funds to finance expansion. The country could not afford to have static wealth in a dynamic economy, and women were becoming a factor in economic development.
National development skyrocketed after the American Civil War as an army of dispossessed and impoverished southerners, unemployed and poor northerners, and adventurers moved west for more opportunity. This massive move west and a concurrent massive influx of immigrants was causing and feeding the economic development of our nation. Often not mentioned was the fact that many families that moved west were headed by women who had lost their husbands. These were strong and determined women, who despite the physical and institutional barriers, became leaders that contributed much to the development of the west.
Throughout the nineteenth century and into the twentieth century women were slowly being granted equal property rights, but men gave in reluctantly. Changes came piecemeal, and I could not determine when all states had granted full equality but I know it was well after 1900. In many cases law was simply catching up with what was reality, but it was a long hard fight for women.
You have probably noticed that I have not mentioned political rights, such as voting, and holding elected office. Political rights are a completely different and controversial subject that is beyond the scope of this short essay. Also, I believe women had to achieve property and financial rights in order to establish an economic base before they could effectively fight for political rights.
Women, and particularly married women, started with most of society determined to keep them subservient, but they persevered. Today women control much of the wealth of our country and are partners in nearly every aspect of our economy