Women

Women

Sources

Law of Coverture. Colonial women who married ceased to exist, legally speaking, as separate persons. Single women maintained much greater control over their own property than did married women. Under the English common law doctrine of coverture, upon marriage the wife became covered by the husband; that is, she could not act in legal matters except in concert with her husband. While the law allowed them to act together, the husband controlled all legal affairs and was under no legal compulsion to consult his wife. A husband could even be found liable for the wrongdoing of his wife on the assumption that it occurred at his behest. In some instances husbands could be whipped for the wife’s crime, including adultery.

Colonial Departures. In the American colonies coverture was followed but with modifications, as in the case of dower rights. Under English law one-third of a deceased husband’s estate, called a dower, had to be preserved for the support of his surviving wife. In Britain this law frequently was circumvented, but in America it was protected and strengthened. Often, especially

in New England, the court would enlarge the dower to more than one-third of the estate, so great was the concern for the protection of widows. In some courts women were allowed to sue in their own names.

Dutch Influence. The jurisprudence of the Netherlands was heavily influenced by Roman law and afforded women more protection. For example, Dutch women could sign joint wills with their husbands, something not allowed under English law. The joint will option meant that, until 1695, Dutch women in New York often had greater say in matters of inheritance than did English women.

Anglicization. During the 1600s it was not uncommon for women to appear in English colonial courts in their husband’s stead, even as their attorneys. After 1700 the economic life of the colonies became more complex, and knowledge of English common law proved useful. With greater Anglicization came even greater sexism in the courts, and the acceptance of women in the courtroom lessened. On the other hand, divorce, though rare and difficult, was easier to obtain in America than it was in England.

Crime. It is possible that crimes committed by women were underreported, but from available data it appears that women were less likely to commit crimes of any category except witchcraft. In New England the only women accused of murder before 1660 had killed children. And women were particularly susceptible to be victims of crime. Female servants were susceptible to sexual harassment even though the law could and would strictly punish men who exploited such women.

Gender Differences. Women were commonly treated differently than men. Connecticut and Massachusetts laws against sodomy, perjury, and idolatry applied only to men on the theory that women could not commit them. Since fornication was most likely to be discovered by the pregnancy of the woman, women were at much greater risk of being charged with that crime. Unless she reported the name of the father, he would probably remain undetected and not receive punishment. It became common to question mothers during childbirth to ascertain the father’s name, both to ensure his punishment and to guarantee his support of the child.

Sources

Edgar J. McManus, Law and Liberty in Early New England (Amherst: University of Massachusetts Press, 1993);

David E. Narrett, Inheritance and Family Life in Colonial New York City (Ithaca, N.Y.: Cornell University Press, 1992);

Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill: University of North Carolina Press, 1986).