women, married or not, could always testify in court. They could not testify against a husband (and he could not testify against her) but otherwise they could.
----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
518-445-3386 (p)
518-445-3363 (f)
[log in to unmask]
www.paulfinkelman.com
________________________________
From: "Barbara Vines Little, CG, FNGS, FVGS" <[log in to unmask]>
To: [log in to unmask]
Sent: Friday, May 18, 2012 12:33 PM
Subject: Re: [VA-HIST] The Status of Women in Early Virginia
Perhaps /status/ is the wrong word and perhaps my status as a female
colors my view. A married woman did not legally exist as a separate
entity apart from her husband. True, she, like a child (minor), had
legal rights, but during the colonial period she, unlike a feme sole,
could not control property, sue in court or function legally as a
separate individual.
At fourteen males could testify in court; however, like you, I have yet
to see an example of a male under 21 serving on a jury. I would be very
interested in your source for this information.
Barbara Vines Little, CG, FNGS, FVGS
PO Box 1273
Orange, VA 22960
[log in to unmask]
540-832-3473
CG, Certified Genealogist, is a service mark of the Board for
Certification of Genealogists, used under license by board certified
genealogists after periodic evaluation, and the board name is registered
in the US Patent & Trademark Office.
On 5/18/2012 10:33 AM, Hay, Thomas wrote:
> It is incorrect to say that married women had "no legal status" as that is exactly what Feme Covert is, a legal status. The same is true for minors, in that minors, above the age of fourteen, could serve on juries, (can't prove that they did, since age of jurors,) is rarely if ever listed. Holly Brewer's work, By Birth or Consent: Children, Law, and the Anglo-American Revolution in Authority, covers the rights of "Infants at law" very well. And Married Women's Legal Status in Eighteenth-Century New York and Virginia by Joan R. Gundersen and Gwen Victor Gampel is an excellent comparative description on the subject. It is true that married women did not have their own independent legal status, but that is a far cry from "no legal status". The legal status feme coverts had, was clearly understood at the time, as was the far more independent status of feme sole.
>
> Thomas T. Hay
> Site Supervisor,
> Capitol, Courthouse, Gaol,
> The Colonial Williamsburg Foundation
> [log in to unmask]
>
>
> -----Original Message-----
>
> From: Discussion of research and writing about Virginia history [mailto:[log in to unmask]] On Behalf Of Barbara Vines Little, CG, FNGS, FVGS
> Sent: Thursday, May 17, 2012 9:02 PM
> To: [log in to unmask]
> Subject: Re: [VA-HIST] The Status of Women in Early Virginia
>
> Not quite; married women, like minors and idiots, had no legal
> status--could not contract, sue in court, etc. While, a wife retained
> ownership ofher property (slave or land), it was under the total control.
> of her husband who managed it and received all benefit from the
> property--rents, wages, etc. Only after her husband died did she regain
> control of her property. True, he could not sell it without her consent,
> but if he survived her, he retained a life interest in it after her
> death if a child was born alive of their union.
>
> Barbara Vines Little, CG, FNGS, FVGS
>
> PO Box 1273
> Orange, VA 22960
> [log in to unmask]
> 540-832-3473
>
> CG, Certified Genealogist, is a service mark of the Board for
> Certification of Genealogists, used under license by board certified
> genealogists after periodic evaluation, and the board name is registered
> in the US Patent& Trademark Office.
>
>
> On 5/17/2012 5:19 PM, Richard Dixon wrote:
>> When discussing the property and legal rights of women in "early
>> Virginia," it is important to make the distinction between
>> single/widowed women and married women. Influenced by the Commentaries
>> of Blackstone, married women in the 18th and 19th centurywere
>> considered one with the husband; there were not two separate legal
>> persons. Even when she owned property within the marriage, few would
>> deal directly with her without the consent of her husband. However, a
>> single/widowed woman could inherit property, could purchase property,
>> and could will her property. So, the slaves inherited from her husband
>> by Martha Custis remained her property, and did not become the
>> property of George Washington upon her marriage to him. Simlarly,
>> Arlington House was deeded to Mary Custis Lee as a life estate,
>> passing in fee on her death to her son Custis Lee (not to be, of
>> course, with the advent of war). A single/widowed woman was f/emme
>> sole, /and except for the right to vote, her legal status was not much
>> different from that of a man.
>>
>> Richard Dixon
>> Editor Jefferson Notes
>> 571-748-7660
>>
>>
>> On 5/16/2012 3:55 PM, Eric Richardson wrote:
>>> Kevin,
>>> The source is from 16th& 17th Century English Literature, not
>>> Ecclesiastical debates. This is most readily seen in the homosocial love
>>> poetry of Shakespeare, *The Sonnets, *specifically* *to the Young man
>>> and
>>> the reasons for marriage. Shakespeare provides the gentry's view on the
>>> institution of marriage, not the Church of England's nor that of the
>>> Roman
>>> Catholic Church. I will check my source when I next speak to him but
>>> this
>>> is the convergence of History, Literary Criticism, and Theology. If
>>> there
>>> is a European (Settler-Colonial) rank before your name, you are not
>>> of the
>>> socioeconomic class that I examine; President Jefferson is all well and
>>> good, but what about the Hemmings and their relationship to the
>>> Wayles (nee
>>> Skelton), since both women shared a common father and children by
>>> Thomas?
>>> If slavery ended in 1820 (prior to Jefferson's death), how would his
>>> in-laws have received his children by an enslaved mother? How would the
>>> local community have reacted? Would their reaction not have more
>>> bearing
>>> on the end of slavery than pronouncements from the pulpit, podium, or
>>> political grandstand? If Melvin Patrick Eli is correct in *Israel on
>>> the
>>> Appomattox,* should not the experience of the "otherwise free" serve
>>> as a
>>> guiding experience and not just the enslaved people, for the end of
>>> slavery
>>> without the Civil War?
>>>
>>> The equivalency I was attempting was that human beings, that had less
>>> than
>>> perfect possession of themselves (enslavement or coverture, as examples)
>>> did have acknowledged souls after the Second Great Awakening.
>>> Whether we
>>> call it Social or Cultural History, women were treated as property by
>>> custom by the lower socioeconomic classes and non-hegemonic groups in
>>> the
>>> South. Even among the elite, Martha Custis Lee (Washington's
>>> granddaughter) did not posses Arlington House under her father's
>>> will; her
>>> husband, Robert E. Lee, did. She did not enjoy complete possession of
>>> herself because of the customs, and the law, at that time. Even your
>>> qualifications as to potential male punishment for assault or murder are
>>> couched in a "could." I agree. Blanket statements have little
>>> place here
>>> but I never said it was law. It was custom. When a woman signs her own
>>> Marriage Bond during the same time period, it is usually commented
>>> upon by
>>> Historians because it is unusual for a woman to assert that form of
>>> self-possession. Frederick Douglass assaulted the white slave
>>> breaker and
>>> received no punishment in MD where the law was quite clear about such an
>>> attack: death for the assailant. Yet, the law was ignored for local
>>> reasons. Elizabeth Keckley was unjustly whipped by the headmaster of
>>> the
>>> Bingham School in Mebane, NC and while he was not guilty under the
>>> law, she
>>> claims that she held him up to public scorn so that he never did it
>>> again.
>>> She employed a sophisticated understanding of balance between societally
>>> acceptable behavior and as you correctly indicate, the full power
>>> available
>>> under the law. However, if we are not to protect sacred cows, even the
>>> argument (as to stratum of human society) that the enslaved could not
>>> testify in court does not survive the tale of Hillery G. Richardson's
>>> enslaved man, William. Facts are clear; William brutally attacked and
>>> "virtually obliterated" Richardson's knee with a wheat cradle& scythe
>>> after running away and being subsequently whipped. The jury
>>> investigated,
>>> took testimony from enslaved witnesses and returned a conviction on a
>>> lesser charge, based in some degree, on those people's testimony. (Eli,
>>> 407-11) This was in subsequent "Massive Resistance" (rolled into
>>> *Brown v
>>> Board*) Prince Edward County. If the attack would have occurred a
>>> decade
>>> or more later, William would probably have been lynched.
>>>
>>> For example, Baptist membership rolls from Sandy Creek Baptist
>>> Association
>>> and Kentuck Baptist (the mother church in Pittsylvania county) indicate
>>> membership was not extended to the enslaved people until the 1820s, the
>>> earliest I recall was 1824. Prior to that, enslaved and free people,
>>> who
>>> were not white, do not appear in the membership lists. Mount Olive, the
>>> mother of Baptist churches in Alamance County, NC had 37 founding
>>> members
>>> on 2 August 1834, 26 whites and 11 non-whites. Kentuck, the Mother in
>>> Pittsylvania, was in existence for three decades without non-white
>>> membership while Mt. Olive has founding membership that is non-white.
>>> Something has changed over that time period in the Baptist church, which
>>> appears to represent cultural or social change. First African
>>> Baptist in
>>> Richmond appears to follow a similar pattern when it was turned over,
>>> albeit under white supervision, to non-white Trustees. The point I was
>>> responding to was that in 1860, religious groups appear to
>>> acknowledge that
>>> the bondspeople have souls because they are baptised and brought under
>>> doctrinal punishment regiments. The Society of Friends had done a
>>> similar
>>> inclusionary membership among their future dispossessed enslaved
>>> people in
>>> the early 19th Century. I have always been led to believe, this
>>> doctrinal
>>> issue of punishment had prevented earlier memberships because of
>>> oxymoronic
>>> nature of Christian master/Christian slave. I would welcome any
>>> additional
>>> information on this change. I have skimmed Charles' book but have not
>>> returned to it yet. (It is on my summer reading list.) So by the
>>> 1840s,
>>> the Baptist, Friends, Dunkards (who ordained their first African
>>> American
>>> minister during the decade), Presbyterians, Wesleyans, and the United
>>> Brethren (all with significant memberships in VA and the northern border
>>> counties in NC) hold that chattel have souls and can be of the
>>> Elect/Select, even if they can be alienated. That is somewhat
>>> dramatically
>>> different than "they were not in the stratum of human society." If one
>>> assumes that literature represents a certain segment of society, then
>>> the
>>> status of white women, however that is defined, who had an earlier,
>>> similar
>>> position, experienced an evolution of thought on their possession of
>>> souls. If I overstepped propriety, it was not my intent but to compare
>>> analogous situations. But does not the enslavement of indentured white
>>> women, who had children by enslaved men, allow for more latitude in
>>> comparison? Reproductive control reduced women to slaves for life and
>>> their offspring followed *Partus Sequitor Ventrem.* If one cannot find
>>> analogies between antebellum women and chattel, than a considerable
>>> amount
>>> of African American Literature that argues for a common enemy for
>>> women and
>>> African Americans in the late 19th and early 20th Centuries is based
>>> upon
>>> false assumptions. It is a logical incongruity in sister disciplines
>>> and
>>> the fictive realm may tell us more about broader social currents, if one
>>> believes Cultural History methodology.
>>>
>>> I look at ethnicities across the South. If we look at pre-contact VA,
>>> Mourning War would have functioned as a societal safety valve, keeping
>>> communities in balance by replacing members from outside the group,
>>> including women. Julianna Barr's* Peace Came in the Form of a Woman:
>>> Indians and Spaniards in the Texas Borderlands* looks at this female
>>> commodification in Texas, which may be similiar to what was seen between
>>> John Smith& Pocahontas in VA. If it is chattel bondage, the woman
>>> appears to be alienable, following the Federal Indian Civilization
>>> program
>>> under Jefferson, even in historically matrilineal groups. If it is
>>> Mourning War, it is not so clear. Some Native American females were
>>> alienable (those captured in war in VA during the late 17th Century)
>>> while
>>> others were not alienable but were still a form of property under a
>>> Native
>>> American form of slavery. This system is what the English colony was
>>> founded alongside. When did it disappear? The Dawes Freedmen rolls
>>> have
>>> Catawba women listed as former bondspeople in the 1890s, who went on the
>>> Trail of Tears. Since Removal was imperfect and the initial
>>> discussion was
>>> on the end of slavery without the Civil War, these types of slavery (and
>>> with Mourning War, a different route to manumission) exist concurrently
>>> with gang, task, maritime, and rice& indigo slavery. If we are to
>>> argue a
>>> counter-factual, should not divergent sources be included?
>>>
>>> Thank you for the criticism. I should have been even more specific.
>>> Best,
>>> Eric
>>>
>>> On Sat, May 12, 2012 at 3:45 PM, Hardwick, Kevin - hardwikr<
>>> [log in to unmask]> wrote:
>>>
>>>> Eric Richardson writes: "As to inclusion in the stratum of human
>>>> society,
>>>> women were property regardless of ethnicity during the same period and
>>>> coming from English tradition, there were questions as to whether
>>>> they had
>>>> souls. John Donne, Shakespeare, And Milton all hold a similar
>>>> viewpoint
>>>> about women."
>>>>
>>>> I'd like to see these claims warranted somehow in sources. I can
>>>> say with
>>>> complete confidence, based on study of Church of England theology,
>>>> that no
>>>> Anglican, in Virginia or in Great Britain, at any time tried to
>>>> defend the
>>>> claim that only men had souls. The broader notion that Christian faith
>>>> more broadly denied the existence of souls in women is something of a
>>>> canard, and derives from various relatively obscure debates during the
>>>> reformation (over the proper translation of the latin "homo" for
>>>> example).
>>>> I don't know the theology of protestant dissent anywhere near so
>>>> well as I
>>>> do that of the Church of England, but I'd be very surprised indeed if
>>>> Baptist or Presbyterian ministers at any point attempted to argue that
>>>> women did not have souls. Perhaps Charles Irons or John Ragosta, or
>>>> someone similarly knowledgeable in these sources can comment?
>>>>
>>>> I am also uncomfortable with the blanket assertion that "women were
>>>> property" under 17th or 18th century Virginia law. It certainly is the
>>>> case that the legal doctrine of coverture operated in British Colonial
>>>> Virginia, and that this doctrine was debilitating to the status of
>>>> women.
>>>> But there were important distinctions between the dependent status of
>>>> women and that of enslaved persons. For one thing, enslaved
>>>> persons, as
>>>> property, could be alienated--they could be bought and sold. For
>>>> another,
>>>> Virginia law released masters of slaves from the sanctions applied
>>>> against
>>>> men or women who perpetuated the various legal categories of violence
>>>> against other persons. In other words, a master who killed his
>>>> slave was
>>>> not guilty of murder; and a master who physically attacked his slave
>>>> was
>>>> not guilty of assault or battery. But in Virginia law, a husband who
>>>> killed his wife, or a father who killed his daughter, or a son who
>>>> killed
>>>> his mother, *could* be found guilty of murder. Similarly, a husband
>>>> who
>>>> beat his wife, mother, or daughter could, under certain conditions, be
>>>> found guilty of assault or battery. These strike me as important
>>>> distinctions.
>>>>
>>>> Generally speaking, scholars who try to document evolving status of
>>>> dependency and supremacy, of hierarchy, or of oppression and
>>>> exploitation,
>>>> draw a distinction in their work between the operation of slavery,
>>>> and the
>>>> various institutional dependencies to which women were subject.
>>>> Thus, for
>>>> example Chris Tomlins, in his brilliant (if unnecessarily difficult and
>>>> over-written) study FREEDOM BOUND, treats slavery in one chapter, and
>>>> dependencies of gender in another. He does this because they are
>>>> not the
>>>> same thing--they had different logics to them, both legal and
>>>> social, and
>>>> hence should be treated as analytically distinct categories.
>>>>
>>>> All best,
>>>> Kevin
>>>> ___________________________
>>>> Kevin R. Hardwick
>>>> Associate Professor
>>>> Department of History, MSC 8001
>>>> James Madison University
>>>> Harrisonburg, Virginia 22807
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