Women and the Law in Early 19th Century

From “Women and the Law in Early 19th-Century” byTimothy Crumrin
A woman's gender and marital status were the primary determinants of her legal standing from 1800 to 1850. By custom and law she did not enjoy all of the rights of citizenship. In the legal realm women were decidedly dependent, subservient, and unequal. National and state constitutions included little mention of women. Rights for which a revolution was fomented were denied women-- as they were to slaves, "lunatics," and "idiots."
Further exacerbating the situation, rights normally enjoyed by women were often withdrawn when she married. Indeed, a woman gave up so many civil and property rights upon crossing the threshold that she was said to be entering a state of "civil death." …Married women generally were not allowed to make contracts, devise wills, take part in other legal transactions, or control any wages they might earn. One of the few legal advantages of marriage for a woman was that her husband was obligated to support her and be responsible for her debts. It is highly doubtful that these latter provisions outweighed the lack of other rights, particularly in the area women faced the most severe restriction, property rights. The common law tradition "considered women almost as perpetual juveniles" in designing its statutes. Under them, a single woman had few special strictures placed upon her property rights. Her married sisters, however, found themselves subordinate to and bound by the decisions of their husbands. Under the common law doctrine of coverture, a woman's property usually went to her husband with the whispering of the "I do." The man "assumed absolute ownership of his wife's personal property," and for all practical purposes, her real estate as well. He also gained control of any wages or other income accrued by his spouse. Technically, this meant that a man could do anything he wished with his wife's material possessions. He could sell them, give them away, or simply destroy them as was his wont. Married women were also forbidden to convey (sell, give, or will) any property.
There was some solace for married women under common law besides charging the husband to support his wife. The law of dower (not to be confused with dowry) was also a part of its tenets. Dower stipulated that one-third of the husband's estate (one-half if the couple was childless) was reserved for the wife. Although this might seem a small share for a lifetime's efforts, considering the small concern shown for women in other areas of common law, it seems almost enlightened by the day's standards. Dower also furnished the wife a weapon to protect herself while her husband was alive. As she was entitled to her share of the estate, no real estate transaction could take place without her approval. This offered a means of asserting some control over her husband’s actions.
Married women had another legal ally, equity law. Equity law, as usually practiced in chancery courts, was adjudicated on the "inherent justice" of each case and acted as a counterbalance on the scales of justice to the more restrictive common law doctrines. When adopted, the tenets of equity law could help loosen some of the strictures placed on married women-- if the state and courts allowed their use. One such feature was the separate estate, in which property could be set aside under the wife's control. Such property could have been willed to the wife, brought into the marriage, or been given to her by her husband. This afforded the wife some freedom of action and protection.
Divorce
Divorce was neither prevalent nor particularly acceptable during the first half of the nineteenth century. There were strong social and religious objections to the sundering of what many viewed as a sacred commitment. The whole "concept of divorce" was anathema to many and was usually applied only as a least resort….