One of the most significant aspects of property law in colonial British America, which was a direct import from Britain and was largely retained in the United States, was coverture. This principle held that married women could not own property in their own name, except in specific circumstances and only then it was managed by their husbands. The idea of “marital unity,” that married men and women shared interests so completely, and that those were articulated and represented by the husband, ignored plenty of evidence to the contrary. Married women could not even testify in court. But it also guaranteed that a widow would inherit a “dower portion,” one third of her husband’s real estate but only for use during her life until remarried. So she couldn’t sell it, for example, or will it to anyone after she died.
Like many aspects of family law premised on patriarchal principles, coverture was often bent to circumstance. One was that families could need to–or perhaps simply husbands wanted to–use the property that had been guaranteed as a dower right. So women went to court to agree that yes, they wanted to relinquish this right to some certainty. I recently saw several suggestive examples at the Rhode Island Historical Society, like the one in the image above of Elizabeth and Miriam Potter from 1761. They and their husbands testified on the same day, August 24. The deed selling that property was recorded by Providence’s Town Clerk in early November.
Lots of great scholarship on coverture, including work suggesting that it was a legal principle in formation in the 17th and 18th centuries and not one that had been fixed and certain when it was applied to the colonial context. Historians and others have often read William Blackstone’s Commentaries as suggesting that fixity and certainty, but Blackstone was an aggregator and a teacher– he was describing something often challenged and in development.