History 120 Fall 2013 Supplemental Reading

History 120 Fall 2013 Supplemental Reading

Western Christianity and English Law. Information is taken from A History of Women in America.Coryell, Janet; Faires, Nora

*Students are responsible for the information contained in the supplemental handouts and brief notes that are posted on Black Board. Students are expected to utilize information within course assignments and exam answers.

Western Christianity.Religious understandings about the proper role of women greatly affected the laws that were transported to the colonies, and the degree to which those laws were modified by the circumstances in which colonists found themselves.

Many writers and preachers who explained Catholic and Protestant theology, including Anglicanism (the official church of England and its colonies) and Puritanism (the church of New England), emphasized that the original sin of Eve made all women untrustworthy. Eve’s sin was to disobey God by enticing Adam to eat from the Tree of Knowledge. God banished the couple from the Garden of Eden as punishment. As a result of Eve’s disobedience, most Christians believed that woman’s proper place was within the household, under the authority of the husband.

Theologians also cited the teachings of the early Christian writer Paul, who wrote in the New Testamentthat, “women should keep silence in the churches.” “Keeping silence” meant that women should neither teach, nor hold any authority over men. In 1645, Governor John Winthrop of Massachusetts Bay Colony made note approvingly of this patriarchal model writing that, “A true wife accounts her subjection [as] her honor and freedom, and would not think her condition safe and free, but in subjection to her husband’s authority.” Linking the governing of one’s family with religious beliefs as well as with the civil government—the state—defined the early English settlements, as it did life in England. Throughout the colonies, the notion that civil government should be separate from the church was foreign to most colonists. Many colonists thought God had led them to the New World, and that the way to maintain His blessings on the venture was to be sure they did not turn their backs on His rulings once they had arrived. Those rulings, defined by Western Christianity, held that the patriarchy was the God-given plan for ruling both family and state.

Religion and politics, a source of unrest in the Old World, mixed more easily in the colonies. Virginia required heads of households in the colony to pay taxes to support the state church, the Church of England, but allowed dissenters to reside in the colony. Maryland, founded in 1632, allowed colonists to practice Catholicism. After that colony passed the Toleration Act of 1649, followers of other Christian sects could practice their faith there, as long as the practitioners agreed on the validity of the Trinity(the Father, Son, and Holy Spirit of Christianity). Pennsylvania, founded in 1681 by William Penn, served as a safe haven that permitted members of all faiths to practice their religion without fear of religious or political persecution. Even Quakers, a dissenting Protestant group often persecuted in other colonies as well as in England, were safe in Pennsylvania, as were Quaker women who could even be religious leaders.

Religiously minded colonial political leaders drew from church ideals to craft laws and define acceptable behavior for the governed. The belief that women should be subject to their husbands combined the ideas found in the Bible’s book of Ephesians, that women are to be subject to their husbands as their husbands are subject to the church, with the more secular notion that the family was a “little commonwealth,” where the leader ruled to beneficial to all those who were dependent upon him. The “familie is a little Church, and a little commonwealth . . . a schoole wherein the first principles and grounds of government and subjection are learned,” wrote English clergyman William Gouge in 1622 in his work “Of Domesticall Duties”

The patriarchal, hierarchical family to which Gouge referred was the household, the basicunit of English society. It included wives, children, servants, apprentices, and other dependents, all of whom relied on the head of their household for both guidance and sustenance. An Englishman had authority over, as well as responsibility for, all within that household. Women within the household, he wrote, must be subordinate to their husbands. “She may do nothing against God’s will, but many things she must do against her own will if her husband require her.”

English Law

English civil law also defined acceptable behavior in the colonies, as well as defining political power in government. In England, men of property controlled government. Property ownership was the key to achieving political power, since people who owned property were believed to have a vested interest in ruling a society properly; that is, they would rule for the benefit of those with and without property. In addition, voting rights were limited by one’s religion (voters were Protestant and members of the state church) and one’s legal status (freemen could vote; servants and slaves could not). Only a very few men in England could vote or hold office.

In the new colonies, these restrictions continued to define the franchise. One of the earliest acts toward governing the colonists took place even before the Pilgrims, some of the earliest English colonists, disembarked in 1620. Onboard their ship, the Mayflower , the men of the colony signed Mayflower Compact, agreeing to obey the laws that the civil body of the Plymouth Colony, their New England settlement, would devise. No women No women signed the compact. Indeed, no women were allowed to vote or participate in politics in either seventeenth-century England or in its colonies, since women were not thought intelligent enough or moral enough to do so, even if they were property owners, Protestant, and free. Self-government was limited to men, who then governed the women in their lives for their own good. Any voting that men did supposedly benefited women, as men both represented and protected the interests of their dependents in their society.

In Plymouth Colony, government was at first limited to church members, so-called saints, as opposed to “strangers,” meaning members of the colony who did not belong to the church. In Massachusetts Bay Colony, founded ten years later, only men who were shareholders in the company (who also had to be church members) could vote at first. Eventually, the franchise was extended to all men who were neither slaves nor indentured servants. These so-called freemen could vote for the governor and the ruling council. In Virginia Colony, voting was also restricted. There, beginning in 1619, only elite men who were both free and property owners could vote for their “burgesses,” as the representatives to the colonial government were called.

Each colony modified traditional English laws to fit their circumstances, imposing standards of acceptable behavior and greatly affecting women’s lives in the new colonies. Substantive law found in the MayflowerCompact and in colonial charters, organized and governed the various colonies, defining colonist’rights and duties. Statute law spelled out legislation and regulations in legislative acts and, eventually, law books.

Unwritten, common law, based on custom, tradition, and legal precedent, was accepted by the courts because its evidence was deemed apparent to all. A common-law marriage, for instance, was one where all in the community acknowledged a couple as married because all in the community could see a couple acting as if they were married. Another kind of law, and the one most useful to colonial women, was equity law. Equity law, practiced in chancery courts, supplemented or overrode other laws to protect constitutional rights and enforce duties. Used primarily by elite women who had the most access to any courts, equity laws could make the interpretation of statute law or common law more fair. For example, ordinarily under English law a woman’s property became her husband’s at marriage. A married woman could use equity law to protect her property and let her keep control of it after the marriage took place.

English laws were gendered, which meant that laws differed in the way they treated men and women. They also differed in the way they treated single women and married women. These differences meant that women were defined legally in different ways. Single adult women were defined as feme sole, a term meaning “woman alone” or “single woman.” Single women had many of the same legal rights as men.

They could participate in the economy, for example, by entering contracts, suing in court, owning property, and running businesses. They had no political rights to speak of, but neither did most men in the seventeenth century.

The majority of women colonists married, and once married, their legal status became feme covert . This meant that a wife was under her husband’s protection and authority. Her legal identity was “covered” by her husband’s. Under this English law referred to as coverture, wives ceased to exist as separate legal individuals. They underwent what was termed a civil death at marriage. Coverture was based on Christian interpretations of marriage. Under coverture, the “two become one,” a reference to the book of Genesis and its description of marriage. The “one” that the two became was the husband, and the wife’s civil rights—particularly her property rights—were defined by her husband’s status, severely limiting her former freedom to act as a legal individual.

In practical terms, coverture meant that women had little or no control over “real” property, which was real estate, both land and buildings, and, in some colonies, slaves. If a woman did own real property, her husband could control it, administer it, improve it by building upon it—or not—and do to it pretty much as he wished.

Women who were married also enjoyed some legal protections designed in part to provide for them after the death of their mates. A married woman had dower rights —specific rights to some of her husband’s property simply because she was married to him. Even if she had not contributed financially at the beginning of the marriage, dower rights acknowledged awoman’s economic contributions to the household over the course of a marriage.

Beyond the institution of a widow’s thirds, inheritance laws were gendered in other ways. In some colonies, under the practice of primogeniture, the firstborn son inherited everything unless the father made a will declaring otherwise. In other colonies, sons automatically inherited twice as much as daughters did if the property owner died without a will. Property ownership was so fraught with peril for women at marriage that some elite women used premarital contracts to avoid the limits on property ownership that they faced when they married. These contracts were for the well-to-do, however, not for the common folks. Wealthy elite fathers would use them to try to preserve their daughters’ property for grandchildren. By giving a daughter control of her own property, family holdings might be protected from wastrel husbands.

The English did not transfer laws dealing with government and property rights wholesale to America, but modified some and wrote others to meet the circumstances in particular colonies. What students of history must keep in mind, however, is that the laws of the land were not always enforced. A frontier community more than 3,000 miles away from England, beset by conflict with Native people and possessed of a tiny population struggling to survive, could not hope to put every law into practice. Nevertheless, the ideas expressed in those laws had lasting power in the American colonies, establishing an underlying framework that undergirded women’s legal status in all the colonies.

Patriarchy in British North America

"Puritans organized their family around the unquestioned principle of patriarchy" (Steven Mintz & Susan Kellogg, Domestic Revolutions: A Social History of American Family Life [1988], 9). "Their religion taught that family roles were part of a continuous chain of hierarchical and delegated authority descending from God" (ibid 8).

"Colonial America was very much a patriarchal society, and marriage was a contract between un-equals. The husband’s obligation was the provision of support; the wife’s, obedient service" (Queen et al 197). There was a norm of "subordination and equivalence"--subordination of the wife in the social hierarchy, but both sexes were believed to have equal standing before God (Browning 75). Browning adds that the Puritans took Eph 5:21-23 "at face value."

A journal entry of John Winthrop in 1645 gives evidence of the prevailing attitude: writing about the wife of the governor of Connecticut, a woman who had suffered some mental infirmity after spending much time reading and writing books, Winthrop wrote, "For if she had attended her household affairs, and such things as belong to women, and not gone out of her way and calling to meddle in such things as are proper for men, whose minds are stronger, etc., she had kept her wits, and might have improved them usefully and honorably in the place God had set her. . . ." (Queen et al 197).

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