Women and the Law
Marriage and Coverture | Trusts and Guardianship
Living in Poverty | Slavery
During most of American history, women’s lives in most states were circumscribed by common law brought to North America by English colonists. These marriage and property laws, or "coverture," stipulated that a married woman did not have a separate legal existence from her husband. A married woman or feme covert was a dependent, like an underage child or a slave, and could not own property in her own name or control her own earnings, except under very specific circumstances. When a husband died, his wife could not be the guardian to their under-age children. Widows did have the right of "dower," a right to property they brought into the marriage as well as to life usage of one-third of their husbands’ estate. Though a married woman was not able to sue or sign contracts on her own, her husband often did have to obtain her consent before he sold any property his wife had inherited.
Apart from such generally applicable laws, many women were in a position of legal dependence as a result of their particular situation, be it youth, poverty, or enslavement. Since coverture, and with it the right to dower, started to erode in the first half of the nineteenth century, wealthy fathers and husbands often left their daughters’ estates in a trust. The assumption was that women would be better off with the fruits of the estate than with power over money or property that could be taken from them through marriage before their sons were old enough to take charge of the estate.
Outside of the legitimizing context of property ownership or family identity, women might effectively be rendered non-persons. Since they had limited means of economic survival outside marriage, some indigent women ended up real or virtual wards of the state or town in which they lived. In British-Colonial America, where institutionalization of the poor was not the norm, a woman’s appearance on town poverty roles probably meant not much more than that the town took financial responsibility, however minimal, for one who could not do so herself. By the nineteenth century, however, poverty came to be seen as a personal flaw, though poor women were less stigmatized than poor men until the late nineteenth century. Nonetheless, women were subject to labor impressment and loss of independence of decision once they crossed the threshold of the poorhouse.
Like marriage, slavery denied women a separate legal existence. Female slaves became part of the legal identity of the men who were in theory responsible for their maintenance and answered for their behavior. This is why eighteenth-century newspapers carried advertisements where a man publicly renounced his responsibility for his estranged wife’s debts and renounced debts for runaway slaves. But whereas married women might have recourse to certain rights and traditions, slave women had none whatsoever. They were owned, traded, and sometimes forced to have children, entirely dependent on the good or bad intentions of their owners.
Implementation of and conflict about these various legal, and perhaps extra-legal but customary, strictures produced a rich source of records for women’s history and for the history of women’s role in economic practice.
Marriage and Coverture
Legal papers, estate records, lawyers’ notes, and correspondence document the sometimes contested practices surrounding married women’s legal existence in the eighteenth and nineteenth centuries.
Trusts and Guardianship
A number of nineteenth- and twentieth-century collections contain guardian accounts, trust accounts, and other documentation relating to trusts that benefit women, as well as information regarding the guardianship of minors.
Living in Poverty
Collections that contain records related to town poor relief in Massachusetts and Vermont, spanning the eighteenth and half of the nineteenth century, and document the interrelations between the lives of ill or impoverished women and the women and men of their communities.
Records documenting the personal existence of those who existed only as chattels under the law, in bills of sale, advertisements, and ownership records from the late eighteenth century until the middle of the nineteenth.
Documenting Women's History
Letter from Rebecca Usher to Nathan Webb, July 26, 1893.
Nathan Webb was a lawyer in Portland, Maine in the second half of the nineteenth century. In 1882 he became judge of the United States District Court for Maine. His papers illuminate a variety of the ways in which American women’s lives intersected with civil law in the second half of the nineteenth century, including the laws of coverture, inheritance settlements, and litigation over various matters.
"I enclose the mem- of the valuation of our estate on the town books," wrote Rebecca Usher to Nathan Webb on July 26, 1893. "Our estate" was the inheritance of her sister Martha Usher Osgood, in which Rebecca had a life interest. After her death, the estate would fall to one of her other sisters, Jane. Nathan Webb, who was married to Jane Usher, was the executor of the estate. Fourteen lively letters, written by Rebecca Usher to Webb in 1893 and 1894, show a woman in firm control of her financial affairs who gained complete control of the estate from Webb in 1898.
Webb’s records contain thirty years of accounts and correspondence about the finances and legal affairs of the Usher sisters and other women, as well as wills, probate records and records of Webb’s guardianship of minor children. Webb also kept accounts of investments and claims against estates he administrated, including childcare and nursing care payments.
Letter from Fannie Haskell to Nathan Webb, August 27, 1887.
The Webb collection also includes records of legal cases involving women as plaintiffs. The accounts of Nathaniel Osgood's estate include the records of a disputed claim by Mary O. Cushman, who worked in Osgood's store for 45 years. Of particular note are two 1877 letters from schoolteacher Fannie A. Haskell concerning taking legal action against the town of New Gloucester, Maine. Haskell alleged that the town's poor maintenance of the roads caused an accident which kept her from working during the winter. This letter recounts the outrage of the townspeople at the suggestion of a lawsuit: "one prominent citizen in a public meeting inquired, 'what can you do with an obstinate, wilful girl?'"