Women’s Legal Rights in Wythe’s Time

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Illustration, volume 5, The Works of Laurence Sterne.

Going through George Wythe's Chancery Court's decisions, a reader might notice that whenever a woman is a party in a case, she is almost always represented by a man, often the woman's husband. This comes from women's unfortunate legal position in Wythe's day.

Virginia law in the early 18th century

Virginian law in the early 18th century was a mixed bag for women. The English common law rule of coverture meant that married women could only sue in court through their husband's name, and that contracts wives agreed to before and during the marriage were void.[1] Virginia, however, would often use courts of equity to help married women and widows keep control of what they owned.[2] Virginia women could also take advantage of the common-law rule of dower, which gave a widow the right to one-third of her late husband's estate and some of his belongings for the rest of the widow's life. The rule of dower also said that husbands could not sell any real estate the couple owned while they were married unless the wife approved. A magistrate was required to speak privately with the wife to make sure that the husband wasn't forcing the wife to agree. Married women in Virginia during this time could also take advantage of the English law of separate estates. Under this rule, the wife's land and belongings were held in trust for her and reserved for her use.[3]

Wythe's era and Blackstone's rule of marital unity

By the late 18th century, though, women lost many of the protections under the common law they had before. Virginia followed the rule Blackstone wrote in his Commentaries— an even stricter implementation of the idea of "unity of person between the husband and wife; it being held that they are one person in law, so that the very being and existence of the woman is suspended during the coverture, or entirely merged or incorporated in that of the husband."[4] The wife still had the right of dower in real estate she brought into the marriage, so her husband was only entitled to the profits made off of that land. Any personal property the wife brought to the marriage, however, was free to be disposed of as the husband desired.[5] The option for a separate estate for the wife's belongings and land was no more.[6]

If a wife wished to file suit in court, or it someone wanted to sue her, it would still have to be done through her husband's name.[7] Blackstone's rule of a "union of person in husband and wife" likely led to some cases filed in the name of the wife that ran against the wife's true interest - say, by a husband trying to add to the "marital" (read his) property by suing to get rid of an inconvenient restriction.[8]

Blackstone thought that his strict rule of marital unity was for the benefit of women, saying that "(s)o great a favourite is the female sex of the laws of England."[9]. St. George Tucker, William & Mary's second Professor of Law and Police, was not convinced. In his commentaries on Blackstone, Tucker wrote that "(n)othing, I apprehend, would more conciliate the good will of the student in favour of the laws of England, than a persuasion that they had shewn a partiality to the female sex. But I am not so much in love with my subject as to be inclined to leave it in possession of a glory which it may not justly deserve."[10]

Equity courts, however, made efforts to give women separate property rights they had under the common law before Blackstone's doctrine took hold.[11] As the chancellor for Virginia's High Court of Chancery, Wythe followed in this tradition, doing what he could to protect women's property rights against ill-intentioned guardians and husbands.[12] Wythe's high opinion of civil law traditions may have also played a part. As Blackstone noted, under the civil law followed by many European nations, "the husband and the wife are considered as two distinct persons ; and may have separate estates, contracts, debts, and injuries".[13]

See also


  1. "coverture", Black's Law Dictionary, Bryan A. Garner, ed. (St. Paul, MN: Thomson Reuters, 10th ed., 2014): 446; Davis Thomas Konig, "Regionalism in Early American Law," in The Cambridge History of Law in America: Volume I: Early America (1580-1815), edited by Michael Grossberg and Christopher Tomlins (New York: Cambridge Univ. Press, 2008), 172.
  2. Konig, "Regionalism in Early American Law," 172.
  3. Ibid., 173.
  4. William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1766), 2:433.
  5. Ibid.
  6. Holly Brewer, "The Transformation of Domestic Law," in The Cambridge History of Law in America: Volume I: Early America (1580-1815), edited by Michael Grossberg and Christopher Tomlins (New York: Cambridge Univ. Press, 2008), 317-318.
  7. Blackstone, Commentaries on the Laws of England, 1:430-431.
  8. Edmund Pendleton thought that such trickery was afoot in the case of Fowler v. Saunders.
  9. Blackstone, Commentaries on the Laws of England, 1:433.
  10. William Blackstone and St. George Tucker, Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia (Philadelphia: William Young Birch and Abraham Small, 1803): 2:445, fn. *.
  11. Brewer, "The Transformation of Domestic Law," 317-18.
  12. See Shermer v. Richardson for an example.
  13. Blackstone and Tucker, Blackstone's Commentaries, 2:444.