Women's Property Rights in the late 18th Century
Going through the Chancery Court's decisions, a reader might notice that whenever a woman is a party in its cases, she is almost always represented in her capacity as a party by a man, often the woman's husband. This comes from women's unfortunate legal position in Wythe's day. At that time, Virginia followed the rules Blackstone set down. Children did not have the power to manage their own estates, and their father had the power to appoint a guardian to manage the children's property.[1]
Once a woman married, though, their property rights under the common law shrank even further; at least a guardian had to account for what they did with their ward's property. A husband, on the other hand, gained the right to all the wife's property, including any property the wife had before the wedding. The only property that the wife could keep in her own right was property the wife inherited in fee tail.[2] As far as the law was concerned, husband and wife were one legal entity; practically speaking, the wife surrendered her legal identity to her husband for the marriage's duration.[3] If a wife wished to sue in court to enforce her property rights, she would almost always have to do it through her husband. Adding to the fundamental wrongness of the situation, 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.[4]
Equity courts, however, made efforts to give women separate property rights which they had under the common law before Blackstone's doctrine took hold.[5] As the chancellor for Virginia's High Court of Chancery, Wythe followed in this tradition, doing what he could when issuing decisions to protect women's property rights against chicanery by ill-intentioned guardians and husbands.[6]
References
- ↑ Michael Grossberg and Christopher Tomlins, eds., The Cambridge History of Law in America: Volume I: Early America (1580-1815) (New York: Cambridge Univ. Press, 2008): 317; 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 2 (Philadelphia: William Young Birch and Abraham Small, 1803): 453.
- ↑ Grossberg and Tomlins, 317.
- ↑ Blackstone and Tucker, 2:441.
- ↑ Edmund Pendleton thought that such trickery was afoot in the case of Fowler v. Saunders.
- ↑ Grossberg and Tomlins, 317-18.
- ↑ See Shermer v. Richardson for an example.
