|Earliest recorded deed for land in what is now North Carolina. Pasquotank County, North Carolina Register of Deeds, Deed Book 286:240 and Norfolk County (now City of Chesapeake), Virginia Register of Deeds, Deed Book D:293|
This early deed from North Carolina documents a transfer from a “Mr. Mason and Mrs. Willoughby” to “Kiscutanewh Kinge of Yausapin” and the further transfer of that same property to “Nath. Batts.” This note is interesting because back in the 1700s American property law was, of course, governed by English law and the legal doctrine of “coverture” (sometimes couverture) was in effect.
Quoting from the Wikipedia article “Coverture:”
Coverture (sometimes spelled couverture) was a legal doctrine whereby, upon marriage, a woman’s legal rights and obligations were subsumed by those of her husband, in accordance with the wife’s legal status of feme covert. An unmarried woman, a feme sole, had the right to own property and make contracts in her own name. Coverture arises from the legal fiction that a husband and wife are one person.
Coverture was enshrined in the common law of England for several centuries and throughout most of the 19th century, influencing some other common-law jurisdictions. According to Arianne Chernock, coverture did not apply in Scotland, but whether it applied in Wales is unclear. Further quoting from Chernock, Arianne (2010). Men and the Making of Modern British Feminism. Stanford, CA: Stanford University Press. ISBN 978-0-8047-6311-0.
In this context, the word “subsumed” means that all the rights a woman had passed to her husband at the time of the marriage.
AN ACT for the effectual protection of the property of married women.
Passed April 7, 1848.
The People of the State of New York, represented in Senate and Assembly do enact as follows:
Sec. 1. The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.
Sec. 2 The real and personal property, and the rents issues and profits thereof of any female now married shall not be subject to the disposal of her husband; but shall be her sole and separate property as if she were a single female except so far as the same may be liable for the debts of her husband heretofore contracted.
Sec. 3. It shall be lawful for any married female to receive, by gift, grant devise or bequest, from any person other than her husband and hold to her sole and separate use, as if she were a single female, real and personal property, and the rents, issues and profits thereof, and the same shall not be subject to the disposal of her husband, nor be liable for his debts.
Sec. 4. All contracts made between persons in contemplation of marriage shall remain in full force after such marriage takes place.
Genealogists who are faced with researching their families back into this early time period in English law countries often experience difficulty in determining a women’s maiden name due to this concept of coverture. Other countries, even in Europe, do not present the same problems. For example, in countries derived from the Spanish Empire, where Spanish is spoken, women retained their maiden names even after marriage.
Understanding land and property conveyances, probate records and many other legal documents drafted before the mid-1800s requires the researcher to understand the importance of coverture in all these historic legal transactions. By the way, knowing this will also explain many obscure passages and references in English literature. Coverture also partially explains why women were not allowed to vote for so much of English and American history. The issue eventually became highly politicized and laws derived from coverture are still the subject of major political movements in the United States and elsewhere.
England was not the only country with laws that relegated women to a subordinate role in a marriage. For example, it was only in 1965 when married women in France were given the right to work without their husband’s consent. See Carolyn Hazel, French Reforms in Domestic Law, 35 La. L. Rev. (1974) Available at: http://digitalcommons.law.lsu.edu/lalrev/vol35/iss1/10
It is literally impossible to do adequate genealogical research without understanding a great deal of history and a large measure of the law in the countries and times where the research is taking place. Ignorance of law, history, and geography is the most common cause of ridiculous entries in online family trees.
One exception to the law of coverture was the woman’s dower interest. But that is another post for another time. Stay tuned.