Operating the Family: Married Women's Property, Birth Control, and Children

The law of domestic relations involved the distribution of rights and resources between parents and among parents and children. Nineteenth-century lawmakers intervened in the republican family to redirect the property rights of married women, to set standards for birth control and abortion, and to regulate the adoption of children.

Married Women's Property Acts

Market capitalism, not republican ideology or feminist protest, produced the first major reforms in the legal rights of married women to control their property. The speculative economy of the early nineteenth century offered risks and rewards, and by the 1830s state legislators sought to protect the viability of the family and the advancement of the economy through "married women's property acts." These laws were designed to protect wives from the pecuniary embarrassments of their husbands. Various legal practices existed at the end of the eighteenth century that anticipated these laws and attenuated the full harshness of coverture, especially for upper-class women with property. For example, dower, the practice of guaranteeing to wives one-third of the property of their husbands upon their deaths, secured a measure of protection. Where dower rights were involved, husbands had to obtain the agreement of wives for conveyance of property.

Married women also received protection through a separate equitable estate. Establishing such an estate was a fairly easy procedure; it required no attorney. The amount of property in question was of little importance, although where large amounts were involved this trust agreement made sound financial sense. The estate could be created before the wedding by marriage contract (called a prenuptial agreement) or later. It could also be established by will, deed of gift, or deed of sale. Whatever the arrangement, the document designated a trustee who was charged with holding the property for the separate use of a particular married woman. Some documents gave

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wives blanket control over the property held in trust for them; more typically, the agreements provided them only limited control. In any case, the sole purpose of the trust was to exempt the woman's property from liability for the husband's debts.

Most married women did not have a prenuptial agreement. Instead, wives received separate estates only when it became apparent that the property they brought into the marriage was threatened by creditors. The growth of separate estates "constituted a major advance for women of the middle and upper classes, but it began in expediency, a response to the failures of scores of individual men." ²² The purpose of the separate estates was not to place women in an equal position with men, but to provide security against financial ruin.

In states with a strong civil law tradition (e.g., California, Texas, and Louisiana), the community property system prevailed. It provided that husband and wife each owned one-half of the property, although just as in common law jurisdictions the husband had an exclusive right to manage the property. A wife's property, moreover, could be seized by creditors for the debts created by her husband. The system nonetheless gave security to a wife's property inheritance, because she automatically came into possession of her half upon her husband's death.

Legislators in states with either a common or a civil law tradition decided to enact married women's property laws in response to the periodic upheavals in the economy. These measures provided equity rather than equality to women by breaking the doctrine of coverture. ²³

Legal protection for the property rights of married women came in three waves. The first began in the late 1830s and lasted until the mid-1840s. The legislatures of Arkansas and the territory of Florida in 1835 first passed married women's property legislation, although they did so to protect women's rights that existed under former civil law regimes as these jurisdictions adopted the common law. The 1839 Mississippi law, which is usually touted as the first in the nation, was more significant because it was the product of the economic collapse produced by the Panic of 1837, and, as such, it became the model for other states anxious to keep wives' property free from the clutches of their husbands' creditors. This first wave of married women's property acts therefore freed wives' estates from the debts of their husbands, leaving the traditional marital estate and coverture rules intact.

The uncoordinated lobbying of feminists, such as Elizabeth Cady Stanton in New York, contributed to the passage of the second wave of acts. This generation of legislation was concentrated in the North and it created separate estates for wives. The acts were modest incursions on patriarchy and the free market through their interference with traditional coverture and dower rights.

The New York law of 1848, which replaced that of Mississippi as the national model, typified the narrow scope of this second generation of legislation. It insulated a married woman's property from her husband's debts and dictated that it "shall continue her sole and separate property, as if she were a single female." ²⁴ Property that came in the future to a woman covered by the law was also to be held in her sole possession and control, just as would be the case for a single woman. The statute, however, provided that property received directly from her husband would not be free from his debts. Thus, a husband could not protect his property from creditors by giving it to his wife. The New York law disrupted neither the credit markets nor companionate relationships in households.

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The third wave of legislation after the Civil War took account of the changing work place that women were entering in small but growing numbers. These laws protected women's earnings from the institution of coverture. Massachusetts passed the first statute in 1855, followed by several other states in the 1860s and 1870s.

The married women's property acts fitted the domestic role assigned to women in the republican family. They granted women special treatment under the law; they provided equity not equality. Domesticity supplied an ideological base for these laws, but nineteenth-century market capitalism was the driving force behind them.

Date: 2015-01-29; view: 812