“Women’s Rights in Colonial America!”

WOMEN’S RIGHTS IN COLONIAL AMERICA

I refer here to “Coverture,” and I don’t think that is a flattering term, in that it refers to covering women.

But before we get to Sir William Blackstone, who described the legal doctrine of Coverture in his 1767 “Commentaries on the Laws of England,” let’s talk about how we got to this strange, and yet still familiar, condition from a lifestyle that long ago was much different. What changed from way back before, when we lived in small family groups, traveling and hunting and gathering together?

A woman then, as a mother, carried and fed her child while moving. She shared in obtaining her own food and that for her group. Was this an Egalitarian Society? Or is it just wishful thinking, reconstructing history in this modern “Me Too” generation? Were women more important back then?

It seems reasonably obvious that a traveling mother is not going to carry more than two children. And she had many additional duties, just like the male members. Yet, even back then, a woman’s place seemed to be elevated. Or maybe that, again, is just wandering speculation. But many of the superior deities handed down to us from those now-forgotten times were women, “Mother Goddesses” often in consort with other, less powerful male godheads.

And what of all those small clay sculptures discovered in so many ancient places? Women with exaggerated characteristics of fertility? “Venus Figurines” of the Upper Paleolithic Period that spread throughout Europe and Asia 25,000 years ago.

Even six thousand years ago, in ancient Sumer in Mesopotamia, the Goddess Inanna [Ishtar] was a dominant deity. The Goddess of Love, Fertility, Courage, and War. Daughter of the Moon and Sister of the Sun. The Morning and Evening Star, Venus.

And there were other goddesses, too. Nanshe, Goddess of Prophecy and Social Justice; Tiamat, Goddess of Chaos, Creation and Salt; Ninkasi, Goddess of Beer and Brewing; and Nisaba, Goddess of Writing and Grain.

3,800 years ago, by the time of Hammurabi [the “eye for an eye” guy], the vengeful male Warrior God, Marduk, had become the Chief Deity of Babylon. Inanna hung around, but the lessor Goddesses were being replaced by their male counterparts. Accordingly, by 3,000 years ago, Nabu, son of Marduk, had replaced Nisaba as the God of Writing.

What happened? What became of Asherah, the Goddess biblically referred to and called the Queen of Heaven? [Jeremiah 44:19]

Two things come to mind. The first was agriculture and the concurrent settling down of communities in a fixed location. A housebound woman could birth and raise more children, more workers, and more warriors. And, if constantly pregnant and caring for young children, she would be less able to protect herself as, perhaps, she once did in earlier periods.

Secondly, writing had evolved, and in the western world, alphabets. Writing had become the first opportunity to permanently fix and record a set of rules [Hammurabi again]. Social control. There was a reason that the God of Writing was now male. For he who controlled the system, wrote the rules! And then the Great Books were written, recording what had been passed down by generations of oral tradition.

Let us consider, for the limited purpose of this essay, the great religious writing which is most relevant to western civilization. There are other significant writings that are different and arose in different places, but they still seem to be similar in application.

Here in the west, the Judeo-Christian tradition described the family structure when the Bible was written. Much of that structure found itself codified in the laws of succeeding generations of government.

I provide below some biblical examples that describe the position of women and which might support the development of the legal principles embedded in the doctrine of “Coverture” [but remember, there is much more that may be of relevance in the Bible than that reported here]. The citations below are from the 1969 Revised Standard Version [RSV] of the Bible.

There are two creation stories in the Bible. One says, “So God created man in His own image, in the image of God He created him; male and female He created them.” [Genesis 1:27-28] In the second creation story, the Bible states, “And the rib which the Lord God had taken from the man He made into a woman and brought her to the man.” [Genesis 2:22]

Well, apparently things didn’t go well after that, with the woman presumably speaking with a snake and convincing Adam to eat of the forbidden fruit [Genesis 3:23]. For that, Man [a term here that includes women] was driven out of the Garden of Eden. Man’s “Original Sin.” God exacted a heavy penance, stating:

“I will greatly multiply your pain in childbearing … yet your desire shall be for your husband, and he shall rule over you.” [Genesis 3:16, emphasis added]

Paul’s letter to the Ephesians further explains the consequences:

“Wives, be subject to your husbands, as to the Lord … As the church is subject to Christ, so let wives also be subject in everything to their husbands.” [Ephesians 5:22-31, emphasis added]

From centuries of experience, social and religious tradition, developed the “Common Law” of England. It is a brilliant basis for evolving law within a culture. Although not specifically adopted by the United States Constitution, most individual states, through “Reception Statutes,” incorporated English Common Law as their starting point in judicial proceedings. Here is a Kentucky statute on point.

“(2) In the absence of a Constitutional section or a statute on a given matter, Kentucky shall be deemed to have adopted the Common Law.” [KRS 446.082, emphasis added]

In 1765, English Jurist William Blackstone wrote his influential “Commentaries on the Laws of England.” In that work, he described the rights of a married woman under the Common Law thusly:

“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 … and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; … a feme – covert … her condition during their marriage is called her coverture … These are the chief legal effects of marriage during the coverture; upon which we may observe, that even the disabilities which the wife lies under are for the most part intended for her protection and benefit; so great a favourite is the female sex of the laws of England.“ [Vol. 1: 442-445, emphasis added]

What effect, then, did the doctrine of Coverture have on the lives of colonial women? [And to women in the new states of our nation unless changed by statute.] Discipline is an obvious starting point, for it was both stark and archaic. Here is what Blackstone said about that:

So, it has been said that, “a husband could not beat his wife to death, but he could beat her.” It is unlikely, however, that the concept of man’s right to discipline his wife with a stick no bigger than his thumb [“Rule of Thumb”] originated in Common Law. Folklore or urban legend, I think.

Blackstone and English Common Law recognized the legal difference between a married woman, a Femme Covert [“woman covered”] from a single woman, a Femme Sole [“woman alone”]. As Blackstone described, married women lost more than their legal identity. They lost their property. Although the specifics varied with the local application of Common Law, here are some potential examples of its impact:

A married woman could not make contracts.

A married woman could not be sued.

A married woman could not work [deprives husband of her presence]. If she did, her husband got her wages.

A married woman could not make a will.

A married woman lost control of what she owned before marriage.

A married woman’s personality [moveable property] became husband’s, upon marriage.

A married woman’s sexual consent was implied by marriage [hence, the need for modern state marital rape statues].

A married woman had no legal right to her children.

A married woman could not vote, the fiction being that the husband would coerce the wife and end up with two votes.

A married woman generally took her husband’s last name [did your mother sign as “Mrs.,” followed by your father’s first and last name?].

Martha Dandridge Custis, the wealthy widow who married George Washington, is a good example of how Coverture worked. And it worked to the advantage of George Washington.

A woman who never married [“a spinster”] maintained many of the rights of men [but still not able to vote]. And the Femme Sole doctrine applied both to single women and widows. I often wonder why George Washington’s mother never remarried after her husband died. Maybe she wanted to control the life estate in her deceased husband’s property [Dower], in order to support her 11-year-old son, George, and her other children.

I also note that Abraham Lincoln’s grandmother on his father’s side, Bathsheba Lincoln, did not remarry after her husband was killed by Native Americans in Kentucky. I think that, for both of these women, legal and economic advantages weighed in their thinking.

A married woman could also act as a Femme Sole if her husband was banished or out of jurisdiction. That is how Benjamin Franklin’s wife was able to run his business when he was overseas representing the soon-to-be new nation.

The Common Law [and now generally by state statute] provides that, upon death, a man could not completely disenfranchise his wife by disposing of his property to others. Commonly, the widow was entitled to a life estate in 1/3 of the husband’s property, 1/2 if there were no children. Upon the widow’s death, this “Dower” property would be distributed to her husband’s heirs or creditors.

That is why on his death, George Washington only provided for the freedom of his own slaves. When Martha Washington later died, her slaves were distributed to the heirs in her husband’s will.

During a married woman’s life, if her husband abandoned, or otherwise failed to support her, he was liable, under the “Doctrine of Necessities,” to a court action requiring him to maintain her according to the level of his social status and income.

The Common Law also generally provided that, upon marriage, a husband became responsible for his wife’s previous debts. I wonder if that was in play after Abraham Lincoln’s mother [Nancy Hanks] died in Indiana in 1818. His father then left his children in Indiana and traveled back to Elizabethtown, Kentucky. There, in December of 1819, he married Sarah Bush Johnston. Loading up her possessions in a wagon, he set back off for Indiana. But only after he paid off her debts.

Another interesting aspect of “Coverture” was the lack of attention that it received in the Constitutional Convention. The Founding Fathers [no women were invited] addressed the status of indentured servants and Indians, and struggled with the issue of slavery.

About all that was considered in regard to women is reflected in a letter of Connecticut Delegate Oliver Ellsworth. Except for their inclusion as citizens in the new American community of “We the People,” about all the attention women got is described in Ellsworth’s letter to his wife during the constitutional debates. “I believe the older men grow more uneasy [the longer] they are [away] from their wives” [July 21, 1785, in a letter addressed to “Mrs. Ellsworth”].

Abigail Adams, wife of future President John Adams, wrote to her husband in 1776 about the opportunities to address the Common Law dominance of men over women. She stated:

“... I desire you would Remember the Ladies, and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands. Remember all Men would be tyrants if they could. If perticuliar [sic] care and attention is not paid … to foment a Rebelion [sic],  and will not hold ourselves bound by any Laws in which we have no voice, or Representation.“ [Abigail Adams, March 31, 1776, to John Adams]

John Adams’ response included the following statement:

“As to your extraordinary Code of Laws, I cannot but laugh … But your Letter was the first Intimation that another Tribe more numerous and powerful than all the rest were grown discontented. — This is rather too coarse a Compliment but you are so saucy …“ [John Adams, April 14, 1776, to Abigail Adams]

Modern demographic data is of interest here. In 1760, the world population was about 770 million. In 1950, the year of my birth, it was 2.5 billion. In 1987, it was 5 billion. By 2022, it was 8 billion. The world population is estimated to reach 10 billion in 2058. But by 2080, it is thought that the world population will begin to decline.

Why?

The replacement rate of a population is about 2.1 live births per woman [fertility rate]. But history shows us that, as incomes go up, fertility rates go down. In 2021, the fertility rate in the United States was 1.6, China 1.2, and Hong Kong 0.8.

Consider also this fact. About fifty-two percent of women in America are now unmarried. In 1900, it was 7%. Is the Femme Sole becoming the dominant status in society’s relations with women?

I wonder what would have happened if the founders of our Constitution had included women? I don’t think it would have resulted in more difficult constitutional questions today.

In fact, I suspect there would be quite a bit fewer.