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Under the common law that prevailed in all American jurisdictions except Louisiana, once a woman married, all her property passed to her husband. During the nineteenth century, some of the American states began to chip away at what Judge Jno. R. Eakin styled “the old and barbarous common law doctrine.” Arkansas played a leading role in this development; in 1835, Arkansas Territory passed the first law in the nation bestowing on married women the right to keep property in their own names.
Two factors influenced the law’s adoption. First, in western areas, men outnumbered women, thus giving the women who were there more power. Second, planters were interested in protecting the bequests made to their daughters from being squandered by their husbands. This law did not pass over into statehood, however, and in 1839, Mississippi became the first state to extend protection to married women. The Arkansas legislature in 1840 passed a bill modeled on Mississippi’s, only to have Governor Archibald Yell veto it, thus preventing Arkansas from becoming the second American state to grant legal protections for married women. Yell’s veto asserted that granting legal rights to women would destroy the family.
The legislature tried again in 1846, and Governor Thomas S. Drew signed into law the Arkansas Married Woman’s Property Law. In order to invoke its protective provisions, a woman had to record her property at the local courthouse. Drew’s successor, John Selden Roane, called on the state to “rejoice” over the passage of the law, observing, “Our wives and mothers are more elevated in the scale of being, and stand now in the eye of the law, upon a higher platform than our slaves and our horses.”
The law was first tested in the Arkansas Supreme Court in 1854. Judge David Walker, who had opposed the 1835 act as a legislator and has been called a legal “woman’s nemesis” for his constant opposition to women’s rights, effectively gutted the law’s provisions. Women plaintiffs faired better in two subsequent cases but not under Republican judges during Reconstruction. The Constitution of 1868 promised married women their property rights, and in 1873, the legislature finally enacted a statute.
The Constitution of 1874, which ended Reconstruction, probably would not have had a married woman’s rights clause if David Walker had won a seat at the convention. He was defeated, however, and, with difficulty, a clause made its way into the final document, where it was listed under “Exemptions” rather than in the “Declaration of Rights.” The legislature passed a liberalized act implementing the clause in 1875. Again, however, the statute and clause were rendered useless by a Supreme Court that included David Walker.
Following Walker’s retirement in 1878, his seat passed to Jno. R. Eakin, a noted champion of women’s rights, who began to file dissents. Although the state Supreme Court was unwilling to recognize the changes that had taken place both in law and in the nation, federal district judge Isaac Parker from Fort Smith (Sebastian County) in 1892 held that Arkansas married women were, through statute, “sui juris” (fully qualified to enjoy civil rights). Thereafter, the issue faded away.
The prominence this issue played for half a century reflects the role of women generally in Arkansas life, where Arkansas was far in advance of other Southern states. In 1916, women got the right to vote in party primaries, which, with Arkansas being effectively a one-party state, amounted to nearly full enfranchisement. Forthwith, Arkansas’s congressmen and senators took up the cause of national women’s suffrage. Arkansas’s legislature ratified the Nineteenth Amendment; in the 1920s, Winslow (Washington County) and Washington (Hempstead County) sported all-women city councils, and Hattie Caraway became the first woman elected to a full U.S. Senate term.
Finally, one modest study of county records to determine if women actually used the law revealed that an overwhelming number of women filers were literate, but the amounts of property were not large. In Mississippi, the purpose of the law had been to protect from feckless husbands the slave property planters bestowed on their daughters. In Arkansas, while seventy-seven percent of the women listed slaves, only one had, at twenty-five slaves, what might be called an estate. It appears that many women were interested in using the law because they planned to remarry and wished to save their own estates for themselves and their children from the first marriage. Although, in 1845, the Arkansas Gazette reprinted approvingly an article from a St. Louis newspaper asserting that “woman is as much entitled to the benefits of government as man,” for most Arkansas women, the real issue was securing title to what was theirs.
For additional information:Basch, Norma. In the Eyes of the Law: Women, Marriage, and Property in Nineteenth Century New York. Ithaca, NY: Cornell University Press, 1982.
Dougan, Michael B. “The Arkansas Married Woman’s Property Law.” Arkansas Historical Quarterly 46 (Spring 1987): 3–26.
Evins, Janie S. “Arkansas Women: Their Contributions to Society, Politics, and Business.” Arkansas Historical Quarterly 44 (Summer 1985): 118–133.
Matsuda, Mari J. “The West and the Legal Status of Women: Expectations of Frontier Feminism.” Journal of the West 24 (January 1985): 47–52.
Salmon, Marylynn. Women and the Law of Property in Early America. Chapel Hill: University of North Carolina Press, 1986.
Michael B. DouganJonesboro, Arkansas
Last Updated 11/18/2011
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