I’d looked at this a few times before but yesterday I was prepping to teach and I looked at the 1860 New York married women’s property act (actual title = “An Act Concerning the Rights and Liabilities of Husband and Wife”) and something jumped out at me that I hadn’t seen before. It’s in these three sections.
SEC. 3. Any married woman possessed of real estate as her separate property, may bargain, sell and convey such property, and enter into any contract in reference to the same, but no such conveyance or contract shall be valid without the assent, in writing, of her husband, except as hereinafter provided.
SEC. 4. In case any married woman possessed of separate real property, as aforesaid, may desire to sell or convey the same, or to make any contract in relation thereto, and shall be unable to procure the assent of her husband, as in the preceding section provided, in consequence of his refusal, absence, insanity, or other disability, such married woman may apply to the county court in the county where she shall at the time reside, for leave to make such sale, conveyance or contract, without the assent of her husband.
SEC. 5. Such application may be made by petition, verified by her, and setting forth the grounds of such application. If the husband be a resident of the county, and not under disability, from insanity or other cause, a copy of said petition shall be served upon him, with a notice of the time when the same will be presented to the said court, at least ten days before such application. In all other cases, the county court to which such application shall be made, shall, in its discretion, determine whether any notice shall be given, and if any, the mode and manner of giving it.
SEC. 6. If it shall satisfactorily appear to such court, upon such application, that the husband of such applicant has wilfully abandoned his said wife, and lives separate and apart from her, or that he is insane, or imprisoned as a convict in any state prison, or that he is an habitual drunkard, or that he is in any way disabled from making a contract, or that he refuses to give his consent, without good cause therefor, then such court shall cause an order to be entered upon its records, authorizing such married woman to sell and convey her real estate, or contract in regard thereto without the assent of her husband, with the same effect as though such conveyance or contract had been made with his assent.
“Any married woman possessed of real estate as her separate property, may bargain, sell and convey such property, and enter into any contract in reference to the same” provided that she gets “the assent, in writing, of her husband, except as hereinafter provided.” The exceptions are for “refusal, absence, insanity, or other disability,” “If the husband be (…) not under disability, from insanity or other cause,” “If it shall satisfactorily appear to such court (…) that the husband of (…) has wilfully abandoned his said wife, and lives separate and apart from her, or that he is insane, or imprisoned as a convict in any state prison, or that he is an habitual drunkard, or that he is in any way disabled from making a contract.”
This is about conditions which exempted propertied wives from the requirement to get their husbands’ permission prior to entering into contracts. First off, if the husband can’t refuse, then why is permission needed? Maybe this is about husband’s being informed, a right to notification, so to speak: a married man ought to know what his wife gets up to? Setting aside refusal, I wonder if the other exemptions can be read as standards for proper masculinity. (Actually refusal might be as well - perhaps refusal to sign is an excess of or an improperly negotiable masculinity? I wonder if drunkenness might also be read that way.) If so, then the courts were set up as adjudicators of masculine behavior, and women’s legal access to transactions over property could involve claims about masculine propriety/impropriety (to the degree that the requirement in section 3 included an element of husbandly proprietorship, sections 4-6 could be read as standards of propriety and impropriety qualifying and disqualifying husbands from this proprietorship). The bit that most struck me, though, was the reference to disability. Sections 4 and 5 refer only to husbands’ disability, while section 6 refers to being “disabled from making a contract.” I’m curious to know what all could be included here, and if there were forms of disability which were not contract-exempting (disabilities which were not disabilities for the purposes of contract).
There are no such provisions in the much simpler 1848 New York Married Women’s Property Act.
(Notes to self: I got the text from the database Women and Social Movements in the United States, 1600-2000. See this bibliography - http://www.h-net.org/~women/bibs/bibl-property.html. )
Hey Nate,
I don’t know a ton about this stuff, but my mother-in-law is a historian and has done a ton of research on the ante- and post-bellum struggle for women’s rights, so I’ve talked with her about some of these questions.
Two things occur to me here: First, I think you’re projecting backwards in an illegitimate way our contemporary meaning of the word “disability.” I don’t think they meant the range of physical and mental conditions that now get grouped under that term; rather, I imagine, the meaning was straight-forward in an etymological way — “a condition that removed ability,” in this case the ability to execute a contract. This would presumably include some of the other conditions listed in the act, such as habitual drunkenness (note that occasional drunkenness wasn’t a problem), and thus the phrase “in any way disabled” was probably just a legalistic catch-all.
Second, you seem to work from the assumption that this law was entirely externally imposed, and that the patriarchal state used it unilateraly to impose order on the definition of masculinity. I think this is shortsighted to the extent that it ignores the very sophisticated struggles waged by propertied women in the middle 19th century. These struggles, I would say, ensure that no piece of legislation was a one-way street, regardless of the fact that women had neither voting rights nor representation. I don’t know enough about the specifics here, but New York was (along with Kansas, which is my mother-in-law’s specialty) a hotbed of bourgeois feminism in those decades. So, just a caution that we not view this sort of legislation as simply the act of hegemonic patriarchal state (though it was that, too).
Solidarity,
Mike
Comment by MIke — November 21, 2008 @ 10:46 am
hi Mike,
Thanks for your comments. Respectfully, I don’t think I’m really doing what you say I’m doing, even if the post sounds like it (I haven’t re-read it). I don’t have well-developed ideas about any of this stuff, so I don’t think much of anything about them. You have clearer views on this stuff than I do!
As such, your points are really, really important in that I should make sure not to fall into those interpretation as a potential pitfalls, and I should be clearer about what I do and don’t mean when I write.
re: disability, I’m sure the term didn’t mean then what it means now. It didn’t mean in the 1910s what it means now. There’s two reasons the use of the term struck me. One is that I’m interested in changing notions of disability or ‘crippled’-ness over time, what drops out but also what stays in. I’m particularly interested in those notions as expressed/embodied/created in law, because legal concepts can have force for a long ways after their initial formulation and that gets at some of the institutional frameworks that define disability/crippledness in the period I’m more interested in (1880/90s to 1920/30s). Insanity is close to a contemporary notion of disability. Drunkenness isn’t. At certain points in time there’s a presumption at law that being female is a disability, certainly in terms of legal stuff and often in the world as well. Sometimes the presumption’s explicit and sometimes it isn’t, sometimes it includes the word ‘disability’ or a cognate and sometimes it doesn’t. One example (kind of), there’s a discussion in Reconstruction of laws empowering former slaves where politicians start saying things like “but this level of empowerment implies the same for married women! if we extend these rights to women, whose next? children? the insane? the mentally retarded?”
Clearly some of that’s not in our contemporary ideas of disability or the early 1900 ideas. But some of it is - disability as legally disqualifying. I’m particularly keen on the link between disability and inability to make contracts. There’s a great book on gender, race, labor and contract in the aftermath of slavery - From Bondage to Contract by Amy Dru Stanley - that shapes a lot of how I think of this stuff. Really schematically, part of the argument goes something like this: there’s an equation in the late 1800s between masculinity, citizenship, freedom/independence, and power to make contracts. And to some extent whiteness. Take away one, the others become threatened. The extension of some of those qualities to women and freed blacks looks very threatening to some people.
I mention this because the link between disability and lack of contractual power is very striking. Much later disability comes to be defined by inability to work - I’d rephrase it as inability to find someone willing to enter into a contract to purchase one’s labor power. By this standard, loads of ‘crippled’ people weren’t disabled for a very long time. In the injury cases I’ve been looking at a bit there are all kinds of argument made that loss of a hand means inability to work. But some of the women do get jobs again, sometimes the same sorts of jobs. Certainly other women who suffered the same sorts of injuries did so. So, they were crippled but not disabled. Once workmen’s compensation comes in, though (at least in Wisconsin and Oklahoma, if this happens elsewhere and when and how is something I need to figure out), there’s a new perception that ‘crippled’ people are an extra risk to hire. Their ability to exercise their legal right to contract is narrowed in actual social practice. Eventually (fuzzy on the dates, sorry, this disability stuff is pretty new to me), that condition of very narrow prospects for finding work becomes a major definition of disability under social security. A certain degree of ‘crippled’ness then becomes disability. (From there I’m not sure what happens and it’s beyond the scope of what I’m looking at, but I’d be interested eventually to look more into seeing if this is tied up with the making of popular notions of disability in something like a contemporary as well as the institutional arrangements that make bodily difference into social hardship.)
Bound up with all of this is trying to sort out when “crippled” equaled disabled and when it didn’t, and when those terms (as a pair or individually) did and didn’t equate at law to dependency.
Probly more than you wanted to know.
On the property acts, I know nothing about the creation of them. I’ve read the letter of the acts but nothing about the context or how they got made. I’d eventually like to read more about that and if your mother-in-law has advice on best books I’d love to hear it. All I’ve got are assumptions. In those assumptions I don’t think they were a patriarchal or top down plot. I think they were a bottom up affair. If anything, I would guess that male lawmakers would have wanted no change at all. That said, and this is part of what I like to use the acts for in teaching - this last time, which prompted this post, they were paired with the Seneca Falls Declaration of Sentiments - I think the acts, like the Seneca Falls Declaration - don’t represent or help all women or at the least they don’t help them all equally. The stuff on property and class is pretty clear I think. On what I see as the negative gendered components, protection of masculinity or presumptions about masculinity and disability and legal personhood, I’d be very interested to know where those provisions came from and to what extent they were/weren’t reflective of ideas held by other folk at the time. Could be from male legislators, could be from assumptions by the women who formulated demands, or could be calculations by the women in order to get some version of their demands in place. I’m inclined to think it’s the middle of the three, assumptions about proper masculinity - either sincerely believed ones or appealing to men’s assumptions about proper masculinity as a way to hold men accountable - but again I don’t really know. I’d like to.
Thanks again for the thought-provoking comments!
take care,
Nate
Comment by Nate — November 21, 2008 @ 1:24 pm