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A place to start

It is a statute almost unimaginable in its time and place.

Passed by a territorial legislature far from the urban centers of the nation where it might have been expected.

And it is noteworthy in so many ways.

The statute? One The Legal Genealogist finally located last night, poking around in early laws while preparing for this weekend’s 2017 Genealogy for You Seminar at the Saline County Library in Benton, Arkansas.

I’ve been looking for it, on and off, for a while, after reading about it some time ago in a law review article.

And last night I found it.

It was adopted by the Ninth Session of the General Assembly of the Territory of Arkansas, approved on the 2nd day of November 1835, and it read, in its entirety:

Sec. 1. Be it enacted by the General Assembly of the Territory of Arkansas, That from and after Property of the passage of this act, the property, both real and personal, possessed by any woman, or to which she may in any manner be entitled at the time of her marriage, or which may be decreed to, willed to, or be given to her, before or after her marriage, shall not be subject to the payment of the debts or damages, contracted or incurred by the husband at any time before marriage.1

That is, by most accounts, the very first statute enacted anywhere in the United States that directly protected the property rights of married women.2

According to the Encyclopedia of Arkansas History & Culture, “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.”3

Now… don’t get too excited.

Despite its groundbreaking nature, this Arkansas statute had pretty limited impact overall.

First off, it didn’t didn’t survive the transition into statehood, and when the State Legislature did pass a bill to provide for property rights for married women in 1840, it was promptly vetoed by Arkansas Governor Archibald Yell on the grounds that it would destroy the family.4

Another bill passed in 1846 and was signed into law, but then thoroughly undermined by decades of judicial opposition led by David Walker, an opponent of the law in the 1835 legislature and later Associate Justice of the Arkansas Supreme Court. It wasn’t until 1892 when the federal courts declared that women were “sui juris” (fully qualified to enjoy civil rights) that the issue began to recede in Arkansas.5

Still, it’s an amazing piece of legislation — coming years before the more celebrated acts of Mississippi in 18396 and New York in 1848.7

For women’s rights, here in the United States, it was a place to start.


SOURCES

  1. “An Act to secure the property of Females,” 2 November 1835, in Acts … of the Ninth Session of the General Assembly of the Territory of Arkansas … 1835 (Little Rock : Smith & Reed, Territorial Printers, 1835), 34-35; digital images, Google Books (http://books.google.com : accessed 15 March 2017).
  2. See, e.g., Richard Chused, “Married Women’s Property Law, 1800-1850,” Georgetown Law Journal 71 (1983): 1359.
  3. Michael B. Dougan, “Arkansas Married Woman’s Property Law,” Encyclopedia of Arkansas History & Culture (http://www.encyclopediaofarkansas.net/encyclopedia/ : accessed 25 Mar 2017).
  4. Ibid.
  5. Ibid.
  6. Act of Feb. 15, 1839, ch. 46, 1839 Miss. Laws 72.
  7. Act of Apr. 7, 1848, ch. 200, 1848 N.Y. Laws 307.
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