A Favourite of the Laws

Ruth Bernard Yeazell

  • Married Women’s Separate Property in England, 1660-1833 by Susan Staves
    Harvard, 290 pp, £27.95, April 1990, ISBN 0 674 55088 9
  • The Bluestocking Circle: Women, Friendship and the Life of the Mind in 18th-century England by Sylvia Harcstark Myers
    Oxford, 342 pp, £35.00, August 1990, ISBN 0 19 811767 1
  • Portrait of a Friendship: Drawn from New Letters of James Russell Lowell to Sybella Lady Lyttleton 1881-1891 by Alethea Hayter
    Michael Russell, 267 pp, £16.95, September 1990, ISBN 0 85955 167 9
  • Fierce Communion: Family and Community in Early America by Helena Wall
    Harvard, 243 pp, £23.95, August 1990, ISBN 0 674 29958 2

In Of the Rights of Persons, the first volume of his celebrated Commentaries on the Laws of England (1765-69), William Black stone concluded his account of how the law makes a husband and wife one person by suggesting that the legal disappearance of the married Englishwoman was effectively a tribute to her sex. ‘These are the chief legal effects of marriage during the coverture’, Blackstone wrote, ‘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.’ Perhaps not surprisingly, Blackstone’s sisters now tell a different story. For Susan Staves, whose book takes its impetus both from feminism and from critical legal studies, to analyse the history of married women’s property in England is to uncover the ‘deeper’ structures of patriarchy – the system by which men manage to perpetuate their power by transmitting wealth from one generation to the next. The aim of the law, as Staves interprets it, is to ensure that women have as little independent control as possible of the wealth that passes through them.

As the doctrine of coverture might suggest, ‘married women’s separate property’ was something of a contradiction in terms. Not until the legislative debates over reform in the late 19th century did the idea of such property really emerge as a distinct category. When Mary Alcock satirised mercenary marriage in ‘Modern Manners’, a poem first published in 1799 and reprinted recently by Roger Lonsdale in his Oxford anthology of Eighteenth Century Women Poets, she took for granted that the most direct route to separate property was to marry for money and chuck the husband. In ‘former times’, according to a speaker named Flirtilla, ‘hearts were joined above’ and ‘women to their husbands paid / Obedience, truth and love.’

But title, pin-money and dower
  Now join our hands for life;
No other ties than these have power
  To couple man and wife.
To these alone my thoughts aspire,
  On these I fix my heart;
A wealthy husband I require –
  I care not when we part

Married Women’s Separate property in England confirms that such property really meant marital separation of one sort or another. Despite Staves’s title, most of her book concerns property that women acquired only when their marriages had come to an end.

Of the four kinds of wealth that Staves studies – dower, jointure, pin money and separate maintenance contracts – only pin money resembles what late 20th-century readers would think of as a married woman’s separate property. Death would have to intervene before a widow came into her dower rights or took possession of her jointure, while a separate maintenance contract, of course, went into effect only when the partners to a marriage had legally separated. As for so-called pin money, the problem of distinguishing it from sums that common law required a husband to provide for his wife’s maintenance made it an especially elusive category, perpetually subject to conflict and dispute. One person’s luxury is another’s maintenance, and many of the purchases a woman might have made with her money would in any case have automatically become her husband’s property: even her clothes and jewels might not be hers to will away as she pleased, or might go to satisfy her husband’s creditors. Though marriage contracts typically specified that the wife was to receive her pin money annually, the only way she could extract her allowance from a stingy husband was to sue – and the doctrine of coverture made the very idea of interspousal suits problematic. Besides, some judges reasoned, a woman who had not received her annual allowance had little cause to complain, since her husband was thereby possessed of that much more wealth with which to maintain her!

Among all the mysteries on which the English law prides itself, the laws of property may well be the most mystifying. ‘Law professors quote with delight,’ Staves observes, ‘the estimate one King’s Counsel gave to the Real Property Commissioners “ that there were not above six persons who understood the laws of real property” and only one “barrister of eminence practising in any of the courts who has a perfect knowledge of their practical effects”.’ Staves herself cites to devastating effect the boasts of a recent English textbook about the difficulty of its subject; the book also advises prospective property lawyers that the most ‘intellectually rewarding’ aspect of their practice ‘consists of creating complicated arrangements known as settlements’ for wealthy clients. Originally trained as a literary critic and still a practising professor of English at Brandeis University, Staves accepts Christopher Hill’s challenge to take legal history away from the lawyers; and her determination to make her argument accessible to those without any legal training is a self-consciously political act. Her introduction promises that legal terms will be explained as needed and directs the reader in addition to a useful glossary of such terms at the back; only on a very few occasions did I stumble across a word that eluded either form of explanation.

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[*] Batsford, 1231 pp., £35, 13 September 1990, 0 7134 5848 8.