I am currently writing a book that explores the rights of debtors in the United States in the late nineteenth century. A few questions sit at the center of the study. How responsible were borrowers supposed to be when fortune turned and they were unable to pay their bills? What could be taken from them to make their creditors whole? How much financial suffering would a modern and moral society permit? And, in what ways might the answers to these questions hinge on the identity of the particular borrower? Did it matter if the beleaguered debtor was Black or white, rich or poor, man or woman?
In the chapter I’m currently revising, I focus on these themes as they related to married women. Under the common law of marriage, married women had no independent legal personality. They could not sue or be sued or enter into contracts, and what property they had became effectively the property of their husband once they were wed. All of this meant that wives were largely dependent on their husbands’ financial fortunes. If the husband was prosperous, the wife was prosperous. If the husband failed in the market, the wife failed in the market. If any creditors came looking for property to seize in order to settle a debt, they could take items belonging to the wife as easily as they could take items belonging to the husband.
Many women’s rights advocates of the nineteenth century considered this system to be unjust. They believed that it belonged to the feudal past rather than the liberal present and that it reduced the wife to the status of a child, servant, or slave. They insisted that it be reformed and that the wife be emancipated “from liability of any debts, except those contracted by herself or for which she has voluntarily made herself responsible.” A number of laws passed by state governments in the middle and later part of the century proposed to do just that. Married women’s property laws gradually gave married women the right to possess their own separate estate, insulated from the husband and his creditors. Earnings laws similarly gave married women the right to contract for wages, allowing working-class women to protect their income as well.
Yet lawmakers and judges were reluctant to treat married women as fully autonomous beings, as free to control their financial destiny as unmarried women and men. In the chapter, I look at two ways in which the reach of these reforms were limited:
- First, by court rulings that held that women could not contract for their own debts—tethering them, as they had been under the common law, to the fortunes of their husbands—and,
- Second, by a new category of legislation known as family expense laws, which declared that women’s property could be made liable for debts contracted by the husband if those debts were for family expenses.
In both instances, the argument made was that married women deserved to be financially free up to the point at which that freedom might threaten the wellbeing family. Beyond that point, they would be treated as they had always been—as the covered dependents of their husbands.
This research contributes to a number of conversations about gender, debt, and the meaning of freedom in modern America. It also informs my teaching at UIS. I draw on the example of marital property reform in my “American Law in Comparative Perspective” course, for example, to illustrate how legal change does and does not take place within the common law family. I also invoke the history of debtors’ rights in “Theories of Justice,” as the class considers how the law has dealt with calamity and misfortune. In both the book and my courses, I hope to shed light on the difficulty of realizing modern and moral ideals in the American legal system.
Daniel Platt, Ph.D., is an Assistant Professor of Legal Studies at UIS and scholar specializing in law, cultural history, and the history of capitalism. He earned his PhD in American Studies at Brown University in 2018 and was a postdoctoral fellow in interdisciplinary legal studies at the University at Buffalo School of Law.