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Published online by Cambridge University Press: 09 October 2018
Beginning in 1839 and continuing through the early twentieth century, the American states passed laws expanding married women's economic rights, including the right to own property and sign contracts. In almost every state, these significant legal changes took place before women had the right to vote. I argue that married women's economic rights reform is best understood as a piecemeal, iterative process in which multiple state-level institutions interacted over time. This rights expansion often occurred as a by-product of male political actors pursuing issues largely unrelated to gender—such as debt relief and commercial development—combined with paternalistic views of women as needing protection from the state. State courts played a crucial role by making evident the contradictions inherent in vague and inconsistent legal reforms. Ultimately, male political actors liberalized married women's economic rights to the extent that they thought it was necessary to allow for the development of efficient and workable property rights in a commercial economy, leaving women's place in the economy partially but not fully liberalized.
Acknowledgments: I am very grateful to Phil Rocco, Shamira Gelbman, Michael Pisapia, Eric Schickler, the members of my faculty writing group at the University of Denver, the editors, and the anonymous reviewers for their helpful feedback and comments. I also wish to thank Holly McCammon for sharing her data on the formation of state-level suffrage organizations.
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19. Although I use the term “states” here, some territories did pass some version of an MWPA prior to statehood, which is reflected in these data.
20. Melder, Beginnings of Sisterhood, 144.
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44. This quotation comes from a South Carolina newspaper reporting on the state of married women's property rights: “The Wrongs of Women: A Topic Fully Discussed by the Convention in Columbia,” Charleston News and Courier, October 1, 1895.
45. Given the involvement of multiple courts in many states, this statement is not absolute. Courts occasionally interpreted MWPAs very broadly, or even struck down the laws as unconstitutional. However, these exceptions were far from the norm in state courts. See for example: Holmes v. Holmes, 4 Barbour 295 (1848); White v. White, 5 Barbour 474 (1849), both in New York, and Pelzer v. Campbell, 15 S.C. 581 (1881) in South Carolina.
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55. Federal courts were not involved in these cases because family law was viewed as a state issue during this time period. Congress passed a law dealing with married women's property rights only to deal with women living in Washington, DC.
56. Dating of suffrage organization formation is based on data from McCammon et al., “How Movements Win.” Though Arkansas Territory did pass an earlier reform, it did not survive the transition to statehood. See Dougan, Michael B., “The Arkansas Married Woman's Property Law,” The Arkansas Historical Quarterly 46, no. 1 (1987): 3–26CrossRefGoogle Scholar.
57. “Radical Legal Changes—Married Woman's Rights in Mississippi,” Chicago Daily Tribune, September 13, 1880.
58. Fisher v. Allen, 3 Miss. 611 (1837).
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61. Ibid., 112.
62. Ibid., 113.
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69. Ibid., 1118.
70. Ranney, In the Wake, 116. For example, one proponent of the bill made the argument that women had a “just claim” to property they obtained either by gift, inheritance, or as “the product of their own labor.” But, paternalistic and economic motivations seem to have been much more prevalent. See Gaspar Brown, “Husband and Wife.”
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75. Southern Sun (Jackson, MS), February 5, 1839, quoted in Moncrief, “Mississippi Married Women's Property Act,” 122.
76. Ranney, In the Wake, 114–15.
77. Revised Code of the Statute Laws of the State of Mississippi (1857), sec. V, art. 23–24. The full text of these laws is available in the Online Appendix.
78. Revised Code of the Statute Laws of the State of Mississippi (1857), sec. V, art. 24.
79. Revised Code of the Statute Laws of the State of Mississippi (1857), sec. V, art. 25.
80. Constitution of Mississippi (1869), art. I, sec. 16. Full text is available in the Online Appendix.
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82. Ibid., 80–81. At another point, a different delegate proposed a similar provision that would have allowed exemptions only for clothing and property owned by a married woman before marriage; this proposal also failed. See Ibid., 584.
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85. Journal of the Proceedings of the Constitutional Convention of the State of Mississippi, 1868, 43–44.
86. Constitution of the State of Mississippi (1868).
87. Davis v. Foy, 15 Miss. 64 (1846), 67.
88. Hardin v. Pelan, 41 Miss. 112 (1866), 114.
89. Whitworth v. Carter, 43 Miss. 61 (1870), 72–73.
90. Viser v. Scruggs, 49 Miss. 705 (1874), 711.
91. Viser did have some recourse in this particular case; because Mrs. Scruggs had given the money in question to her husband, the court ruled that debt legally became his, and thus the income from her separate estate could be taken to repay the debt. Still, Viser was unable to seize the property itself, as he would have been if Mrs. Scruggs were a man or a single woman.
92. Dibrell v. Carlisle, 48 Miss. 691, (1873), 706. See also Foxworth v. Magee, 44 Miss. 430 (1870).
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96. Apple v. Ganong, 47 Miss. 189 (1872), 199.
97. Revised Code of the Statute Laws of the State of Mississippi (1871), chap. 23, art. V, Property of the Wife, sec. 1778.
98. Revised Code of the Statute Laws of the State of Mississippi (1871), chap. 23, art. V, Property of the Wife, sec. 1780.
99. Mayes, Edward, “The Legal and Judicial History,” in Biographical and Historical Memoirs of Mississippi: Embracing an Authentic and Comprehensive Account of the Chief Events of the History of the State and a Record of the Lives of Many of the Most Worthy and Illustrious Families and Individuals, ed. Brothers, Goodspeed (Chicago: Goodspeed, 1891), 124Google Scholar.
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101. Netterville v. Barber, 52 Miss. 168 (1876), 170.
102. “Radical Legal Changes.”
103. Revised Code of the Statute Laws of the State of Mississippi (1880), chap. 42, sec. 1167.
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109. Constitution of Mississippi (1890); ibid.
110. Toof v. Brewer, 96 Miss. 19 (1888).
111. Southworth v. Brownlow, 84 Miss. 405 (1904).
112. Austin v. Austin, 136 Miss. 61 (1924), 71.
113. Revised Code of the Statute Laws of the State of Mississippi (1880), chap. 42, sec. 1177.
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Online Appendix
