Social necessity also gave shape to the legal position of colonial women. English society placed married women on a pedestal, but it imposed significant legal disabilities in return. The principal legal doctrine affecting women was coverture, the condition into which women passed when married. It merged two individuals into one, and the person who remained was always a man. The woman's legal existence essentially disappeared, with her property rights passing to her husband. She could not make contracts or sue in court. The social insistence on protecting women reached extraordinary conclusions. If a woman committed a crime, the law assumed that she had done so under her husband's coercion. As a result, husbands were tried for the crimes of their wives, even to the absurdity of whipping and fining husbands whose wives had committed adultery.
Single English women enjoyed fuller rights, but they were also vulnerable to the rigors of a male-dominated society. They could own property, engage in contracts, and conduct businesses, as well as sue and be sued. Even the position of single English women during the eighteenth century became increasingly tenuous, as the rise of capitalism brought with it legal disabilities that favored males over females in business and the professions.
Colonial Americans modified this carried legal tradition in ways that offered women somewhat greater freedom, although women clearly remained legally dependent. The simple agrarian conditions of the seventeenth century revived the function of
the family as the unit of production, placing greater economic responsibility on married women and enlarging their legal personality. Early America had no leisure class, and society could not afford to restrict the activities of willing and able workers. Both married and single women also engaged in every business open to men from apothecary to undertaker.
Colonial law offered incentives for such cooperation. The practice of dower in England, for example, provided that the wife was to receive one-third of her husband's real property upon his death. The English erected a host of legal barriers that often frustrated the purpose of dower. In New England, however, the magistrates recognized the plight of widows in the middle and upper classes, and courts took it upon themselves to increase the wife's share where they deemed it appropriate. Widows also benefited indirectly in the Chesapeake and southern colonies by the provision that slaves could be counted as part of a dower, thus giving women extra flexibility in adjusting resources to meet their changing economic needs.
The theory of coverture created the same legal disabilities in colonial America as in England, but colonial courts and legislators modified it in ways that produced a less authoritarian model. The simplification of justice in early New England made it easier in practice for married women to assert some limited legal personality. Women, for example, not just in New England but in the other colonies, often served as attorneys in the absence of their husbands. While this practice had precedent stretching back into feudal times, it was apparently practiced much more regularly in the colonies. Maryland was the only colony to prohibit it, and Governor Fendall did so because of what he perceived as the abuses of women coming to court claiming that "shee had a Letter of Attorney from her husband to doe any business whatsoever."15 The colonies also counted married women as separate individuals and gave them grants of land. Women sued in their own names and they acted on their own in contract and tort claims, both significant departures from the common law tradition.
Some American courts also embraced the practice of separate estates, through which married women owned and controlled property independently of their husbands. These separate estates were an attempt by women, despite coverture, to retain a legal claim to property that they either had before marriage or earned while married. The common law courts typically refused to uphold these agreements, because they were deemed to violate coverture; equity courts, however, did sustain them. Thus, in the colonies, "tremendous variation [was] evident in early American rules on married women's property rights. . . ." 16 In those colonies ( New York, Maryland, Virginia, and South Carolina) with equity courts, married women attained more independence than in those jurisdictions with only common law courts or with courts that blended both forms of jurisdiction.
Women's active economic roles enabled them to have a modicum of political power. On the eve of the Revolution, only Pennsylvania, Delaware, and South Carolina had laws disfranchising women who otherwise met the property and residency requirements. Custom and cultural assumptions, not law, were the most significant limitation on the participation of women in politics. The notion of deference pervaded colonial America, and men, not women, were viewed as society's natural leaders. Richard Henry Lee paternalistically admonished his complaining sister that women had "as legal a right to vote as any other person," but that they too often lacked the initiative to do so. 17
Although women did not hold office, they were involved extensively in extralegal political conduct. Women joined and led mobs, and their actions were often decisive-- even deadly. In Marblehead, Massachusetts in 1677 during King Philip's War, a mob of women attacked and murdered two Indian captives, stoning their white male protectors while "seizing [the Indians] by the hair. . . . Then with stones, billets of wood, and what else they might, they made an end of these Indians." 18
Colonial women appear to have benefited from a significant divergence from the application (if not the letter) of divorce law in England. English law treated marriage as a sacramental act, and this view was carried over into the southern colonies. In New England, however, marriage had a stronger secular contractual base, and it might be expected that acts of nonperformance such as desertion or cruelty would have been grounds to void it. Such was not the case, because colonial law made the sexual definition of marriage its essence and, in the absence of ecclesiastical courts, colonial civil courts considered sexual incapacity or illicit practices as the chief basis for its dissolution. But where divorce through parliamentary legislation had been available in England only to very rich men, in the colonies a few women from a wide social spectrum won divorce through court proceedings. A laborer, a poor woman, and a black servant, for example, all gained freedom from their husbands in Massachusetts during the eighteenth century.
Colonial women had "equality of function and dependency of status." 19 They typically suffered the brunt of punishment for fornication and adultery. Men were far more successful in obtaining divorces, and they enjoyed economic independence, political and religious leadership, greater literacy, and greater control over geographic moves. By the late eighteenth century, the forces of economic liberalism and a rising commercial economy diminished the functional equality of women and eroded their already problematic legal standing.