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.

Staves has little use for Whiggish explanations of the changing rules governing married women’s property in the period – whether these come from legal historians, who celebrate such change as the inevitable progress of the law’s internal logic, or from historians of the family like Lawrence Stone, who identify it with the triumph of the Affective Individual. Married Women’s Separate Property begins with the Restoration and concludes with the passage of the Dower Act of 1833: a minor piece of legislation, as Staves acknowledges, that nonetheless registered a significant shift in attitudes and expectations. According to common law, a widow was customarily entitled to inherit a life-interest in a third of her late husband’s real estate. Though this dower right was not officially abolished until 1925, the Act of 1833 made it essentially defeasible at the will of the husband. In practice, as Staves shows, dower had largely disappeared well before that date: the ‘reformers’ of 1833 viewed the custom as already archaic. What had gradually taken its place was equitable jointure, the system by which a husband promised to settle a specific amount upon his wife – usually, though not always, by a premarital agreement. While dower represented a fixed share of the husband’s real estate, a wife’s jointure was often measured in cash rather than in landed property, and how much she got depended on contractual bargaining.

A variety of theorists have acclaimed the transition from dower to jointure as the ‘natural’ adaptation of law to modern society, as status gave way to contract, and landed wealth was freed up for a commercial economy. But Staves contends that women lost at least as much as they gained in the process: ‘the conclusion that jointure replaced dower in part because contemporaries resisted forced thirds as too much for women is irresistible.’ In theory, a woman exchanged dower for jointure and thus should have continued to inherit something close to a third of her husband’s property; in theory, the bargaining power of fathers and trustees should have ensured that women who brought good portions to marriage received ample jointures in return. But this neat model fails to account for the degree to which dower rights had already been increasingly whittled away (in part by those complex conveyancing techniques alluded to earlier), or for the fact that a father’s financial interests could easily differ from that of his daughter – as when his own indebtedness meant that he agreed to smaller jointure in exchange for a promise to delay the payment of her portion. As a certain Lady Modish laments in Ann Murry’s ‘The Tête à Tête’ of 1779, another poem reprinted by Lonsdale: ‘How cruel is my fate! how great the fall! / So large my fortune, yet my jointure small.’

From 1675 until around 1778, Staves contends, the equity courts became increasingly hospitable to thinking of agreements for separate maintenance in contractual terms, only to retreat in the last quarter of the 18th century, as they struggled to reconcile the implications of a purely contractual model with an essentially patriarchal conception of marriage. After 1800, and especially during the long tenure of Lord Chancellor Eldon (1801-27), an increasingly conservative reaction set in: even as the courts continued to enforce such contracts, they so hedged them with restrictions that the effect, in Staves’s reading, was the ‘reimposition of deep patriarchal structures’.

Staves is happiest when she can unmask the law’s claims to abstract logic or neutrality. In some cases the asymmetrical treatment of the sexes was so obvious that even those who perpetuated the practice found it embarrassing: despite the superficial parallel between widows’ dower and the so-called curtesy rights of widowers, the courts struggled uncomfortably for a hundred years with their own habit of permitting a husband to evade dower by placing his land in trust, though no such evasion of her husband’s curtesy was available to the woman. Other differences were more oblique: modern commentators often explain the shift from dower to jointure in terms of the economic demand for alienable property, for example, but Staves reminds us that at the same time as courts were whittling away at dower, they were busy preventing the alienability of landed estates by working out elaborate rules for strictly settling those estates on male heirs. Indeed, when the danger arose that a young male heir might gamble away his estate, or even convert it to cash in order to pay his commercial creditors, the courts displayed little eagerness to encourage the alienability of land. In 1815 the House of Lords rejected a Commons Bill that would have made freehold estates liable for contract debts when their owners died, with Lord Eldon arguing that ‘all men who gave credit to a landowner well knew they had no remedy against his land after his death. The law had always held real property more sacred than personal, and had provided that no transfer of it should be made without certain solemnities.’ Such devotion to the sacredness of real estate was not inevitable. Here as elsewhere, Staves offers a counter-example from the American colonies – in this case a Pennsylvania statute of 1700 making land liable for the payment of debts. Even within a common-law tradition, she argues, alternatives were theoretically possible.

Staves twice adduces the marital history of the celebrated traveller and writer, Lady Mary Wortley Montagu, to suggest that a woman’s felt choices might be still narrower than her legal options theoretically allowed. Despite the partial independence afforded by the granting of pin money, even the relatively aggressive Lady Mary proved reluctant to ask for it. ‘I say nothing of pin money etc,’ she wrote to her future husband. ‘I don’t understand the meaning of any divided interest from a Man I willingly give my selfe to.’ Though Lady Mary did ask for a jointure, she apparently never received one: this left her theoretically free after her husband’s death either to claim her dower rights or to accept the provisions of Montagu’s will. But in practice, Staves suggests, a husband’s will ‘often was read not merely as a legal document but as a solemn expression of the man’s desire and command’, and even the high-spirited Lady Mary – a widow who had long felt little love for her late husband – feared to violate it. ‘I dare be poor,’ she announced, as she repudiated the rumour that she might choose dower instead. ‘I dare not be dishonest.’ Then as now, not all the laws that constrained the women of England were enacted by Parliament.

Yet for all the power of Staves’s argument, its very relentlessness prompts a certain scepticism. So intent is she on catching the law out in its inconsistencies that she never stops to ask whether a more consistent understanding of marriage as a contract between two free individuals would always have benefited women. Certainly there have been feminists, both in this century and the last, who would have shared the courts’ reluctance to understand marriage in these terms. In his recent history of divorce, Lawrence Stone suggests that private separation agreements often granted far more liberal concessions to wives than the law would have enforced, but although Staves introduces the facts of daily life when they appear to be still more oppressive than legal history, she has no use for evidence that cuts the other way. Her concluding chapter glides with notable haste over the claims of some historians that women’s economic opportunities actually increased at the beginning of the 19th century. Though her comparisons with American law make short work of claims about the naturalness or the inevitability of English developments, it is harder to know what they do to the ‘deep structures’ of patriarchy. She could, of course, mean to suggest that patriarchy was less entrenched in the New World than the Old, but how would such a claim accord with the universalist and ahistorical implications of her structuralist idiom? Indeed, it is not quite clear what would count for change in her opinion. While Staves’s introductory remarks suggest that contemporary marriage has become a radically different institution from its 18th-century predecessor – so much so that the account to follow may be ‘elegiac’ her final paragraph alludes darkly to the patriarchal history from which Blackstone’s sisters have yet to awake.

‘Is it not a Sad thing to be brought up in the Patriot din of Liberty and property and to be allow’d neither?’ Elizabeth Robinson inquired as a young woman. As Mrs Montagu, she would eventually acquire a considerable measure of both – but only after the death of the man by whose name she has since been known to posterity. None of the women Syliva Myers includes in the first generation of bluestockings seems to have found marriage a satisfactory solution to the problem of life. The Bluestocking Circle emphasises instead its subjects’ mutually supportive relations with one another, their intellectual aspirations and their partial achievement. Except for Catherine Talbot, almost all of whose poems and essays were still in her ‘considering drawer’ when she died, each of the women attained some measure of recognition in her lifetime: Montagu garnered both fame and criticism for her Essay on Shakespear (1769). Elizabeth Carter produced a notably successful translation of Epictetus (1758) as well as several editions of her poems, and Hester Mulso Chapone pulled off something of a bestseller with her Letters on the Improvement of the Mind (1773).

Yet for all their mental energy and ambition, the first generation of bluestockings remained conventionally ambivalent about publication, and anxious to distance themselves from any hint of moral or social licence. While Staves makes brief mention of Lady Mary Wortley Montagu to show how thoroughgoing was the force of female propriety. Myers introduces her as something of an ‘anti-model’: the type of the learned woman that the bluestockings resisted. ‘One use the world may make of her life,’ Elizabeth Montagu wrote of her distant relative, is that ‘it fully exhibits that parts, riches, birth, and beauty, all combined, cannot rescue a character from contempt unless virtue and reason direct the use of them.’ So intent does Myers appear on preserving her subject’ reputation for virtue and reason, however, that her book threatens to reinforce the opposite stereotype – that of the learned woman as prudish and dull. Any hint of erotic scandal, even of erotic feeling, is banished from her pages: just as she soberly refutes the occasional 18th-century rumour about her subjects’ romantic relations with men, so she also dismisses theorising about these women’s homoerotic attachments.

More to the point, the life of the mind appears no more passionate here than that of the body. Though Myers provides much useful information about her subjects, her text is so cluttered with dates, fragmentary quotations and confusing pronoun referents that the interested reader is likely to obtain a clearer impression of these women’s contributions by consulting the relevant brief entries in the recent Feminist Companion to Literature, edited by Virginia Blain, Patricia Clements and Isobel Grundy.[*] As a critic, Myers confines herself largely to paraphrase; her occasional glosses are flat and pedestrian. The strongest part of the book is the concluding section, which traces the subsequent history of ‘bluestocking fame’ from late 18th-century commentary and portraiture to James Watson’s disparaging remarks on his collaborator, ‘Rosy’ Franklin, in The Double Helix (1968): ‘at the age of 31 her dresses showed all the imagination of English bluestocking adolescents’

When James Russell Lowell read the recently published letters of Jane Welsh Carlyle in 1883, the American ambassador and poet likened the experience to listening to the gossip of female servants: ‘There are disclosures there that should never have been made, as if they had been caught up from the babblings of discharged housemaids. One blushes in reading, and feels like a person caught listening at the keyhole.’ Alethea Hayter’s new book reproduces hitherto unpublished letters from Lowell to his friend and confidante, Sybella Lady Lyttleton, but Portrait of a Friendship contains little to embarrass – or to satisfy – the would-be voyeur. As a correspondent, Lowell appears to have pretty much succeeded in his effort to be ‘so scrupulous during my whole stay in England, as not to write a word that all the world might not see even when writing to intimate friends’. Hayter’s biographical narrative includes some painful accounts of Lowell’s second wife, Fanny, whose long-running illness was eventually diagnosed as a brain tumour, and who at one point found herself reduced to entering appointments with herself in her husband’s engagement book. But for the most part, Lowell’s ‘poor long-suffering wife’, as Henry James called her, necessarily remains a shadowy figure in this book. Of Lowell himself, James once observed that he was ‘such an extraordinarily simple individual that there is nothing to be said!’ These letters may confirm Lowell’s ambassadorial tact, but it is doubtful they will do much to revive his reputation as a writer.

There is no dearth of gossip and scandal in Fierce Communion, Helena Wall’s study of the relations between family and community in early America. Like Staves, Wall writes at the intersection of legal and social history, but her book does not so much attempt to criticise the ideology of the law as to use court records to document the daily life of otherwise anonymous people. Precisely because the colonial courts served the community as an ‘open forum’, intervening heavily in matters we would now regard as private, the testimony of the litigants provides rich evidence of how ordinary people thought, felt and, above all, quarrelled with one another. Anyone who thinks late 20th-century Americans especially prone to litigation would do well to read Wall’s account of colonial suits for slander and defamation. Men accused of cowardice or lying sued, and so did a mother-in-law when she was called ‘an old hog and a beast’. In 1637 a Virginia man went to court to defend his virility, two neighbouring women having gibed that he ‘hade his Mounthly Courses as Women have, and ... that [he] was not able to gett a child.’ A Connecticut woman narrowly won her suit for slander in 1645, when the slanderer could not prove that she exactly fit the prevailing definition of a ‘Billingsgate slut’. And just as words of shaming furnished sufficient cause to go to law, so, Wall suggests, did the courts often resort to shaming as a means of punishment: legally mandated scenes of public confession and retraction were common. Whether requiring a defendant publicly to repeat some slander verbatim in the course of taking it back would have provided unambiguous satisfaction to the aggrieved party, she does not speculate.

In their management of marital relations and of child-rearing, as in their treatment of slander, the colonial courts sought primarily to maintain public order. More concerned with preserving the stability of the family than with worrying about the autonomy or happiness of the individuals who comprised it, they were willing to enforce the marriage of fornicators, for example, or to require that separated partners return home and live peaceably together. Like Staves in her account of English law, Wall suggests that colonial officials sought to enforce husbands’ obligation to support their wives lest the abandoned women and children become a charge upon the public. Having been severely whipped for his advances to another woman, one straying New England husband was ordered ‘to allow his wife 2s. per week toward her maintenance, to carry it himself to her, to live with her, as duty binds him, and at least to lodge with her one night a week’. The courts were not so enamoured of the marital unit, however, that they were not ready to sacrifice it to the peace of the community. In 1659 a New Amsterdam couple was charged with fighting, and the wife sentenced to imprisonment for ‘having, in the presence of a respectable company, who were with then wives, hoisted her petticoats up to her back, and shewed them her arse; being an offence not to be tolerated in a well ordered province.’ When a Maryland man wished to woo a young woman over the objections of her parents, the court intervened on behalf of the lovers, presumably because the neighbours supported them. For ‘the Space of Six weekes’, Robert Harwood was to have ‘full free and perfect Liberty (bringing one or more of the Neighbours with him) to have all freedom of discourse with said Elizabeth Gary and to use all faire and Lawfull Endeavours with her to Marry or Contract Marriage ... one or more of the Neighbours being always present ... when they are in Company together.’

By the end of the 18th century, Wall argues, the line between public and private life was growing sharper, and something like Stone’s affective individualism increasingly influenced Americans’ attitudes toward family life. Where colonists once lived with the tension between their feelings as parents and the custom of ‘putting out’ children for care and training in exchange for their labour, by the end of the century, she suggests, that tension was increasingly felt as a contradiction. The general direction of this thesis is hardly startling, though in her very willingness to generalise over all of British North America, Wall deliberately goes against the grain of much recent scholarship, with its emphasis on the colonies’ regional and religious diversity. But Fierce Communion is most valuable for the liveliness and density of its particulars, and for the clarity and wit with which Wall conducts her accounts. She has rounded up a cast of thousands, and they put on an absorbing performance.

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