The Rights of Married Women in the Late 19th Century U.S. — Part 1
In my historical western romance series The Brides of Buckhorn Gap, I knew I would be facing writing some material that felt jarring to our 21st-century perspectives. In my Author’s Note for The Widowmaker’s Bride, one point I made was this: “Paternalistic attitudes toward women and marriage prevailed throughout the United States, and married women had few legal rights in the era. I’ve aimed to portray that world honestly, even when its customs differ from our own, allowing my heroines to shine within the limits they faced.”
I have remained committed to that perspective. For those of us who enjoy historical fiction, historical romance, and period dramas, we want to see the reality of the era, even when that reality is uncomfortable. What I find interesting is how both my female and male characters deal with the gender norms of the era. In this blog post, my purpose is to shed more light on the limitations that I mentioned in my author’s note. I plan both a second part to this post and an exploration of how this history affects my story heroines.
The World of the Brides of Buckhorn Gap
In Chapter 13 of Doc O’Brien Meets His Match, (Book 2) Maggie Sinclair says something to Patrick O’Brien that stops him cold:
“It just feels like so much of who a woman is ends when she marries. At least, who she is as an individual. She legally exists as just her husband’s wife. She may not be his property, but she might as well be for all practical purposes.”
Patrick’s response does not dismiss Maggie’s fears. He knows that based on law of the period and the way society functioned, she’s not wrong. Women’s rights advocates in the United States had long been drawing attention to the injustices found in law regarding marriage and the treatment of women. In 1848, during the famous Seneca Falls Convention, Elizabeth Cady Stanton and others wrote a Declaration of Sentiments framed in similar language to the Declaration of Independence. The outrages of husbands that they listed, in a similar fashion to the way Thomas Jefferson listed the usurpations of King George III, included the following, among others:
He has made her, if married, in the eye of the law, civilly dead. He has taken from her all right in property, even to the wages she earns…In the covenant of marriage, she is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master, the law giving him power to deprive her of her liberty. and to administer chastisement….He has so framed the laws of divorce, as to what shall be the proper causes, and in case of separation, to whom the guardianship of the children shall be given, as to be wholly regardless of the happiness of women, the law, in all cases, going upon a false supposition of the supremacy of man, and giving all power into his hands.
One Person in Law: The Husband
You may be thinking…wait, what? Civilly dead? Stanton is referring to the doctrine of coverture, which came to British North America as part of the common law. The great legal commentator William Blackstone famously summarized its central principle:
“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage…incorporated and consolidated into that of the husband.”
Suspended. Not merely diminished. Suspended as a legal individual person. An unmarried woman, known in law as feme sole, could own property, sign contracts, keep her wages, sue and be sued, and run a business in her own name. A married woman became a feme covert: a “covered woman,” whose legal identity was incorporated into her husband’s. She could not perform these same actions as her unmarried sisters, as she only existed as her husband’s wife.
Even the convention of calling a wife “Mrs. Daniel Crawford” rather than by her own given name reflected the same cultural idea: marriage placed a woman beneath her husband’s name as well as under his authority. While this works to Lily’s advantage in The Widowmaker’s Bride when she needs a good man to protect her from a bad one (which we will explore in Part 2), the reality was exactly as Maggie Sinclair described it.
What About Reform?
By the time Maggie steps off the stagecoach in Buckhorn Gap, some legal change to women’s property rights had begun, but it was a patchwork at best throughout the United States, moving state by state and territory by territory at wildly different speeds. But coverture remained the foundation from which those reforms had to carve exceptions, and its assumptions survived long after legislatures began changing the some of the rules in some parts of the country.
Mississippi had passed an important early Married Women’s Property Act in 1839. But before we decide that this was enlightened thinking, it’s important to remember the context. The Panic of 1837 created a financial crisis, and husbands in financial turmoil could expose an entire family’s property to debt. Fathers wanted a way to leave property to their married daughters without effectively handing it to the creditors of their sons-in-law. By allowing certain property to remain in a wife’s name, the law could preserve family wealth.
Having property in her own name did not necessarily mean the wife had control over it. A married woman could own protected property while still lacking the independent authority to manage, sell, or mortgage it. She was, in the words of one historical study, sometimes an owner “in name only”: the property remained within the family, beyond the husband’s creditors, while its practical control could remain largely male. (While beyond the scope of this article, it is also important to note that this “property” that women could own but not control included enslaved persons.)
New York’s 1848 statute went further in protecting married women’s separate property and became an influential model for other states. Its 1860 expansion addressed earnings from a woman’s own labor and business. Even there, however, reform arrived category by category rather than as a single declaration of legal equality.
Colorado Territory was notably early. Its first territorial legislature passed a broad law protecting married women’s separate property in 1861, followed by additional legislation expanding their contractual capacity. By the time the Brides of Buckhorn Gap were marrying, Colorado law offered married women significantly greater economic protection than traditional coverture had allowed.
But there was no single national Married Women’s Property Act. A wife’s rights depended upon the particular laws of the state or territory governing her marriage and whether the question involved inherited property, wages, contracts, debts, litigation, or custody. Prevailing social beliefs about marriage and women at the time complicated this significantly. And the courts made the prevailing national attitude explicit. In the next section, we will explore widely held beliefs about women’s roles and status as seen in a U.S. Supreme Court ruling.
What Women Were Up Against
The prevailing mindset of the era of my novels, the 1870s, can be seen in an 1873 Supreme Court ruling regarding Myra Bradwell, who in 1869 met the qualifications to be admitted to the Illinois bar association and practice as a lawyer. She was denied on the basis of her gender and status as a married woman.
Bradwell argued that the Fourteenth Amendment allowed her, as United States citizen, to be able to to “engage in any and every profession, occupation, or employment in civil life,” as Justice Bradley noted in writing an opinion for the Court (which upheld the Illinois decision 8 - 1.) It is noteworthy that Bradley’s opinion was not the majority opinion, which upheld the Illinois ruling on constitutional grounds. But he was joined in this opinion by two other justices, and its language is very revealing of not only his personal beliefs but also widely accepted social norms.
On the constitutional issue, Justice Bradley said, “It certainly cannot be affirmed, as an historical fact, that [the right to enter a profession] has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman's protector and defender.”
It seems that for Justice Bradley, more was at stake than whether the Constitution offered women the protection of the right to practice any profession for which she was qualified. He went on to state, “The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.”
Not only were women too timid and delicate to do things like practice law: the family, as founded by “divine ordinance,” per Bradley, was put at risk by a woman “adopting a distinct and independent career from that of her husband.”
He continued, “So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States.” [Bradley was referring to the legal doctrine of coverture.]
Bradley’s opinion pointed out the incompatibility of coverture with the ability to practice law. He said that “a married woman is incapable, without her husband's consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counsellor.” In effect, the State of Illinois found that a the inability of a woman to enter into contracts without her husband’s consent meant that she couldn’t perform the duties of a lawyer.
But wait — not all women are married, right? The feme sole could enter contracts and perform other legal actions on her own. Not so fast, ladies. Bradley notes that this is the exception, not the rule, and that “the paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.”
What Coverture Meant on an Ordinary Day
This context, from the highest court in the United States, helps us understand the views prevalent at the time and the very real limits women faced. It is one thing to hear the doctrine. It is another to see what it could mean in daily life.
As we have seen, under traditional coverture, much of a woman’s personal property passed to her husband or came under his control when she married. He acquired extensive rights over her real estate and its income, and her wages generally belonged to him. She usually could not enter a binding contract, make a will independently, or bring a lawsuit in her own name. Her legal residence followed his.
A father also traditionally possessed the superior legal claim to the couple’s children. Custody law began changing during the nineteenth century, particularly where very young children were concerned, but a mother could not safely assume that leaving her husband meant taking her children with her.
By 1875, reform statutes had altered some of these rules in many jurisdictions. But they had not done so uniformly, and they had not swept away the larger structure of marital authority all at once.
Paternalistic and patriarchal beliefs and social norms of the era could affect a woman’s ability to exercise any legal rights that she had. Even when the wife was legally correct, insisting upon that right could require her to challenge men who controlled access to the institutions she needed. Taking the matter to court was possible in some circumstances. There are surviving cases that prove that women did so. But, then as now, litigation required money, knowledge, time, and a willingness to expose a private marital conflict to public scrutiny. Many women possessed none of those advantages.
This is what Maggie means when she says a wife “might as well be” property for all practical purposes. A good husband could make the system’s remaining inequalities less visible. A bad one could exploit every legal and social advantage it gave him.
That is the world Maggie’s father and Charles Adams inhabit without ever questioning it. When Charles describes Maggie’s journalism as “her charming articles,” classifying them as a hobby to be indulged between “her other duties as a wife,” he is not being unusually cruel. He is being perfectly conventional.
Reform vs. Lived Reality
Laws do very little good to those who they are meant to protect if they are not consistently and fairly enforced. Here is the part of the story that often gets missed: passing a law and making the right usable were not the same thing. Even in jurisdictions that had enacted married women’s property laws, the gap between the statute book and a woman’s kitchen table could be very wide.
Judges trained in common-law assumptions sometimes read reform statutes narrowly, especially when legislators had protected one category of property without clearly addressing another. A woman might own property but still face restrictions on selling it, mortgaging it, entering contracts concerning it, or controlling its proceeds. Legislatures repeatedly had to return and make their language more explicit.
Earnings were among the slowest battlegrounds. As late as 1887, a full third of American states still had no statute protecting a married woman’s right to control her own wages. A woman writer’s control over what her own pen earned, a detail Maggie Sinclair would have followed closely, depended upon where she lived and how the local law treated her labor and contracts.
Then there was ordinary custom. A statute could say that a married woman possessed separate property or earnings. It could not instantly erase the assumption that her husband was the household’s financial authority. A banker might defer to him when interpreting an account. A merchant might hesitate to extend credit to her without his approval. An employer or publisher might prefer to negotiate through him, even giving her earnings to him.
In my upcoming novel The Once-Forbidden Bride, there is a very short scene, almost in passing, when readers see a version of this problem. Maggie reminds the town banker, Mr. Simms, that she also has authority over the O’Briens’ bank account. The law may recognize her authority, but she still has to make the banker recognize it. She does so by invoking the one authority she knows he will respect: her husband’s. Simms backs off, not wanting a visit from an irate Dr. O’Brien.
It is a satisfying little victory, but it also reveals the problem. Maggie can act because Patrick has made his position unmistakable. Another woman with the same nominal right and a different husband might find the bank’s door much harder to open.
A married woman’s access to her own money depended partly on the law, but law alone was rarely enough. It also depended upon the courts and institutions enforcing it, the resources available to her, and, still far too often, her husband’s character.
Why the West Could Be Different in Some Ways
Western territories and states often became the frontier for women’s rights. Wyoming Territory granted women full suffrage in 1869, the first American territory to do so. Colorado Territory protected married women’s separate property early, as we have seen, and its 1876 state constitution allowed women to vote in school elections and protected their eligibility for school-district offices.
A referendum on full women’s suffrage followed in 1877. It failed, but Colorado women continued organizing. In 1893, Colorado became the first state to enfranchise women through a popular vote.
Historians have offered several explanations for the West’s relative openness: organized suffrage campaigns, local party politics, the desire to attract settlers and favorable national attention, and significantly, the visible economic importance of women in developing communities. The reality is that without women, the West would have never been settled and developed in the way that it was.
Women brought socially stabilizing influences to the west such as churches and schools. Their labor, due to sheer necessity, extended to running farms, shops, ranches, newspapers, and boardinghouses. In smaller western communities, their contributions could be especially difficult to ignore. Readers of the series will recognize the type: Mrs. Ferguson did not build her boardinghouse by staying in anyone’s parlor. She owned the business, ran it as she saw fit, and took orders from no man.
None of this made the West a paradise of equality. Legal reform coexisted quite comfortably with conventional expectations about marriage and womanhood. A woman might run a successful business and still be denied the vote. She might own separate property and still have a banker look past her for her husband’s approval. The West could offer women opportunities unavailable elsewhere without treating them as fully equal citizens.
What Maggie Feared—and What Patrick Offered
Understanding coverture transforms how we read Maggie’s story. Her resistance to marrying Charles Adams, the suitor her father originally wanted for her, is not just stubbornness or romantic pickiness. She knows that marriage will give a husband tremendous influence over the shape of her daily life, whether every element of that authority comes from a statute or from the nearly united force of custom.
A law protecting her earnings cannot make Charles take her journalism seriously. A property act cannot prevent him from treating her ambitions as a charming diversion to be abandoned for her “duties as a wife.” Legal ownership of her work would mean little if her husband expected her to stop producing it. With the Supreme Court of the United States making clear what a woman’s proper sphere was, a husband like Charles would have undoubtedly had community support had he insisted she put her “charming hobby” aside.
Mrs. Ferguson’s counsel that Maggie must be prepared to stand entirely alone is not melodrama. It is a clear-eyed reading of the stakes. The question is not simply “Which suitor?” The question is: whose character are you willing to trust with all the influence a husband will have over your life? (This is why I write “green-flag heroes,” or good men, as we will discuss in another blog post.)
Colorado’s laws offered Maggie more protection than women had possessed under traditional coverture, and more than many women elsewhere could confidently claim. But they could not promise her an equal marriage. That depended upon something no legislature could supply: the character of the two people entering it.
That is why Patrick’s words “you are my equal” carry such weight. He is not bestowing personhood upon Maggie, and he is not her only possible defense against the law. He is promising that within their marriage, she will never have to fight him for the personhood that is already hers. He offers her a life “that has room in it for you, exactly as you are. One we shape together for both of us, rather than you being asked to accept what I have already formed for myself. Write whatever you wish, use your mind for what interests you. I would not stand in the way of your gift.”
Maggie cannot single-handedly dismantle the long legacy of coverture. What she can do is marry a man who does more than tolerate her interests and gifts. Patrick promises to honor them, but even more importantly, he loves her for them. He isn’t interested in having his opinions parroted back to him. Patrick wants the real Maggie, as he tells her: “brilliant, stubborn, impossible, and utterly yourself.”
In Part 2 of this blog post, we will consider other areas of law and custom that affected women in the era.
Sources and Reading
Sources:
Stanton, Elizabeth Cady. A Declaration of Sentiments. 1848. https://www.let.rug.nl/usa/documents/1826-1850/the-seneca-falls-declaration-1848.php
The full text of the Supreme Court’s decision in Bradwell v. Illinois, including Justice Bradley’s concurring opinion, is available through Cornell Law School’s Legal Information Institute.
The New-York Historical Society’s Women & the American Story offers an accessible introduction to coverture and married women’s legal status.
A history of the 1839 Mississippi Married Women’s Property Act https://www.hancockcountyhistoricalsociety.com/vignettes/the-mississippi-married-womens-property-act-of-1839/
For More Depth
If this history grabs you the way it grabbed me, here are some places to dig deeper.
William Blackstone’s original discussion appears in Commentaries on the Laws of England, Book I, Chapter 15, “Of Husband and Wife.” The University of Wisconsin’s open textbook, American Legal History to the 1860s, provides useful primary-source material on traditional coverture and New York’s 1848 Married Women’s Property Act.
The University of Colorado Law School preserves Colorado’s original territorial legislation, including the 1861 act protecting the rights of married women and its1872 legislation concerning married women’s contractual obligations.
History Colorado’s account of the road to women’s suffrage follows the state’s movement from the unsuccessful 1877 referendum to the victory of 1893.
For readers who want the full scholarly treatment
Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Cornell University Press, 1982). A classic study of how New York’s pioneering statutes played out in courtrooms and households, and how much of the old thinking survived the new laws.
Hendrik Hartog, Man and Wife in America: A History (Harvard University Press, 2000) A rich history of how marriage law worked in practice, full of cases in which the law on the books and the marriage in the house were two very different things.
Marylynn Salmon, Women and the Law of Property in Early America (University of North Carolina Press, 1986). An essential account of how English property law and coverture took root in early America.
Tim Stretton and Krista Kesselring, eds., Married Women and the Law: Coverture in England and the Common Law World (McGill-Queen’s University Press, 2013) A collection tracing coverture from England through the wider common-law world.
Richard H. Chused, “Late Nineteenth Century Married Women’s Property Law: Reception of the Early Married Women’s Property Acts by Courts and Legislatures,” American Journal of Legal History 29 (1985). A scholarly examination of what happened when reform statutes encountered judges and existing common-law assumptions.
R. Richard Geddes and Sharon Tennyson, “Passage of the Married Women’s Property Acts and Earnings Acts in the United States: 1850 to 1920,” Research in Economic History 29 (2013) A detailed state-by-state study of when married women obtained rights to control property and earnings.
As always, I’ll keep sharing what I find in future posts. The more I research the world of Buckhorn Gap, the more convinced I am that the real history is every bit as dramatic as the fiction.
Happy reading, fellow history buffs!
