Chapter 3.0. Women’s Rights from the Founding to ca. 1860, Introduction

The Revolutionary period and the early 1800s saw a number of changes in the traditional system of coverture, all of which tended to give women more rights. Nonetheless, many elements of the traditional system remained in place at the dawn of the 20th century. This introductory section notes three types of these legal changes, and the next section examines a fourth.

Equal Inheritance: First, the new emphasis on equality from the revolutionary era onwards led state lawmakers to abolish primogeniture and the tradition of a double share of a parent’s estate, inheritance customs that favored the eldest son. Instead, equal inheritance for all children became the rule—a big gain for daughters.

Easier Divorce: Second, American independence brought women greater freedom from husbands who were abusive, neglectful, or adulterous. In colonial society, divorce was virtually impossible under English precedent, but all of the new states recognized the need to end unhappy marriages.

The choice of appropriate remedies varied considerably, however. Some states, particularly in the South, only allowed separate residence with alimony (called divorce from bed and board). Other states granted absolute divorce with the right of the innocent party to remarry. In matters of divorce, social and religious values affected the laws in different parts of the country. The conservatism of divorce laws in the southern states, for example, was probably related to slavery: it was difficult for lawmakers to grant women absolute divorces because of their husbands’ adulterous relationships with slaves. Liberal New England laws, in contrast, stemmed from a longstanding Puritan belief that it was better for unhappy couples to separate and remarry than to be joined forever in a state of discord and temptation to sin.

Child Custody: Third, child-custody rights also changed after the Revolution. The courts were increasingly willing to bypass colonial precedents that favored men in custody disputes. Instead, they began to place young children below the age of seven under the care of mothers, based on the idea that mothers could best provide for small children in their ‘tender years’ (after age seven, mothers were more likely to be awarded custody of girls, and fathers of boys).

The reforms of child custody law reflect the rising importance of the gender-based ideology of separate spheres, which gave women moral preeminence in the private sphere of the home and men supremacy in the marketplace and politics. Women would use the concept of moral motherhood to great advantage in their struggle for social justice over the next century.