In our last episode, we began to survey the rights and “disabilities” (to use an old legal term) that framed the lives of women in the first century of South Carolina. In this episode we consider the antiquated options for marriage dissolution and explore the precarious legal existence of widows, with examples from the lives of real women to illustrate our points.
In the early days of South Carolina, the laws of this province recognized four stages in a woman’s progress through life: Infancy, Spinsterhood, Marriage, and Widowhood. Last week I left you with a description of the career of Mary Stevens, the wife of a musician in Charleston who enjoyed a brief career as a “feme sole” or “sole trader” before the American Revolution. Mary was the proprietor of a boarding house and coffee house on East Bay Street, a business she ran independently from her husband. She was able to enjoy this unusual degree of freedom because her husband had signed a legal document pledging to stay out of Mary’s business affairs. In the eyes of the law, John Stevens was giving up some of his traditional rights over his wife’s money and property in order to empower Mary to earn her own money. As I mentioned last time, there were hundreds of femes sole or women traders throughout the colonies of early America, and they were usually found among the working class of folk—people who might gladly forfeit some traditional paternalistic rights in exchange for a larger household income. We might imagine that some husbands allowed their wives to act as sole traders because their families were in need of the extra income. Allowing these colonial women to work outside the home, after all, meant that traditional duties such as childcare and domestic chores had to suffer a bit. On the other hand, we can also imagine that some husbands might have been happy to give their wives a bit of non-traditional freedom to work and earn independently. We’ll never know the details of the relationship between John and Mary Stevens, for example, but it’s certainly possible that they had a good marriage, and that John was happy to take advantage of this legal loophole that allowed Mary to act with more independence than most married women.
But, of course, not all marriages in early South Carolina were as successful as that of John and Mary Stevens might have been. In an age when marriage was more about necessity and convenience than romantic love, unhappy, even bitter marriages were a fact of life for many people. Unlike today, however, our early laws were of little help to anyone who sought to escape an unhappy union. Divorce was first made legal in this state in our new constitution of 1868, an amazing civil rights document that got flushed down the drain during South Carolina’s government overhaul that took place during the Jim Crow era of the 1890s. The revised state constitution of 1895 outlawed divorce once again, and it took a constitutional amendment in 1949 to bring about the modern era of marriage dissolution. So, in the early generations of South Carolina, how did women (and men) escape a bad marriage?
The first option was simply to leave, or to use the language of the eighteenth century, a person could “abscond” from or “elope” from one’s spouse. And here again, the law treated women differently from men. If a man abandoned his marriage, the law obliged him to support his children, but not necessarily his wife. If a woman fled her marriage, the law required nothing of her, but neither did it require anyone to support or protect her. She had simply “gone rogue,” if you will, and she became a social anomaly. As a feme covert who barely existed in the eyes of the law, how could she support herself? No doubt she faced a mountain of hardships, but nevertheless a number women in early South Carolina simply walked or ran away from their marriages.
There are no records that might help us form an estimate of how many women made this drastic decision, so we have to turn back to the early newspapers of Charleston. We know some women eloped from their marital home because their husbands published newspaper notices warning businessmen not to trade with their rogue wives. Specie, or hard money, was scarce in early South Carolina, so almost everyone lived on credit and paid their account whenever they had cash in hand. Back in that era, it would have been normal for a woman to purchase goods at a store and tell the shop owner to charge the bill to her husband’s tab. In dozens of newspaper adverts scattered throughout the colonial era, however, angry jilted husbands gave public notice that they would not honor any debts made by their wives after they had eloped.
I’ll give you just one example of this phenomenon, and it’s probably the best example you’ll find. On August 31st, 1768, a man named Charles Myers published a notice in the South Carolina Gazette that his wife, Mary Myers, had recently eloped from him, “without any just cause or reason.” This notice, Charles said, was to forewarn anyone from harboring, entertaining, or crediting Mary, “as I am determined not to pay any debts of her contracting, after this date.” This sad advertisement isn’t unusual in any respect, but what makes this story remarkable is the fact that Mary Myers had the last word in this domestic dispute.
Two months later, in early November 1768, Mary published her own extraordinary notice in the South Carolina Gazette, which I’ll read in its entirety: “A Man who forces his Wife from him, by inhumanity, and preferring an old NEGRO WENCH for a Bedfellow, certainly cannot deserve credit. Charles Myers, who advertises against crediting or entertaining his Wife, might therefore have saved himself that trouble and expence.”
Kudos to Mary Myers for keeping it real, to use the modern vernacular, and for providing an excellent illustration of marital separation in early South Carolina.
But what if a married couple mutually and amicably decided to separate, before divorce was legal in this state? That situation also occurred with some frequency in early South Carolina, but the practice was not noticed by the law, and so there are few records that speak openly about it. Nevertheless, through inference and innuendo in surviving records we see that some married couples decided to live separately and with a modicum of independence. This scenario depended almost entirely on the husband’s willingness to provide for the maintenance of his estranged wife, however, because, as we have already seen, the law restrained the average married woman from enjoying much independence at all. Records might not provide us with details of such cases, but we can deduce that these rare couples managed to reach some amicable agreement, or perhaps a bitter truce based on a mutual loathing.
For married couples who had been separated for at least seven years, either on purpose or through accident, the laws of England and colonial South Carolina provided a practical solution to their matrimonial conundrum. According to a law passed in 1603, titled “An Act to restrain all persons from marriage until their former wives and former husbands be dead,” a man or woman could legally remarry if their partner “shall be continually remaining beyond the seas by the space of seven years together.” That is, if your spouse has disappeared, then after seven years he or she is presumed dead and it’s legal to remarry. Furthermore, a man or woman could remarry if their partner “shall absent him or herself the one from the other by the space of seven years together.” So if you and your spouse decide to part ways, after seven years of separate living you’re free to remarry. Did folks in early South Carolina take advantage of this law, which was part of the legal framework of our early days? Absolutely. I’ll give you one example.
In 1724, Mary Harris married Edward Marriner at St. Philip’s Church in Charleston. In 1727, Edward Marriner went to sea (he was a mariner, after all) but he did not come back. Mary waited seven years, but it seemed that her husband had “gone beyond the seas” for good. In 1735 Mary married Moses Mitchell, a shoemaker. As with any marriage of that time, Moses took possession of all of Mary’s property, including the property of the late Edward Marriner. All was well, and the Mitchells prospered in Union Street (now State Street). But then, in late 1747, Edward Marriner suddenly reappeared in Charleston, twenty years after he had last been seen here. A storm at sea had wrecked his plans, Edward said, and he had started a new life on a distant shore. Back in Charleston after twenty years absence, Edward sought out his wife Mary, of course, and tried to reclaim his property, which was now held by Moses Mitchell. I haven’t found any record of how Mary felt about this situation, but we can imagine her distress. What does survive, however, is a legal settlement between the men, Edward and Moses, in which the long-lost Marriner is given a portion of his former property, in return for allowing Mary and Moses Mitchell to live in peace as husband and wife. In modern South Carolina, this would be a matter for family court, but in colonial Charleston, this was simply a matter of property, and their agreement is recorded among the buying and selling of land and slaves, and the document is as devoid of sentiment and humanity as those other records.
Let’s turn now to the final stage in a woman’s legal existence in early South Carolina, the state of widowhood. As we’ve already seen, in the eyes of the English laws that formed the basis of our early legal system, married women lived in the legal shadow of their husband’s rights and abilities. In all matters, civil and criminal, they were represented by their husbands, and legally existed only as a dependant part of their husband’s estate. How did this situation change, then, when the husband died? In the eyes of the law, the widow was a “relict” of her husband’s estate. If a husband named his wife as executrix of his last will and testament, she was then liable to sue and to be sued in the name of his estate. Beyond that fact, the state of widowhood did not afford a woman with any new legal rights or powers. The law constrained a widow to the same degree of dependence and disability, to use that ancient legal term again, as a spinster or a feme covert. Without a husband to generate income and to provide for her, how did a widow survive in early South Carolina? Let’s consider some of her options, in no particular order.
First, a widow might be sustained by the kindness of her adult children, but they were under no legal obligation to look out for her.
Second, if a husband and wife had signed a marriage settlement at the beginning of their marriage, the terms of that legal agreement would not only endow her with property in her own right, but also the power to control that property to her own advantage.
Third, if a widow also happened to be a feme sole, or sole trader, then her own business income and industry could, in theory, sustain her for the rest of her natural life.
Fourth, a widow might benefit from specific instructions in her husband’s last will and testament. For example, in his will, a husband might direct that a portion of his fortune be set aside as an annual income or “annuity” for his widow, or that the rents or profits arising from some of his real estate or other investments be set for her maintenance.
Fifth, widows both young and old frequently remarried and started new families. Whether or not children were involved, however, the institution of marriage in early South Carolina provided a legal shield designed to protect women, albeit in a very patronizing, paternalistic fashion. In an era before the modern concept of romantic love, and when the average life span was much shorter than ours, remarriage after a brief widowhood afforded a woman with stability, a modicum of legal protection, and a bit of companionship as well.
The pressure to remarry was especially strong among poor widows. Consider, for example, the case of Elizabeth Jasper, widow of the famous Sergeant William Jasper, who rose to fame after his reckless display of bravery at the Battle of Sullivan’s Island in June of 1776. Sgt. Jasper was a poor man with no property, and, like many men of his class, he did not have a last will and testament. Three years later, in October 1779, William fell at the disastrous American Siege of Savannah, and Elizabeth Jasper was left with three small children, no property, and no income. How would they survive? Who would help them? Nearly one hundred and fifty years before the invention of Social Security and other government relief measures, the nascent State of South Carolina stepped in and began issuing financial aid to the Jasper family, as a token of respect for the late Sgt. William. When Elizabeth remarried in the summer of 1784, the state payments abruptly stopped. Responsibility for the welfare of the relicts of Sgt. Jasper was now legally vested in the new husband, Christopher Wagner.
The sixth survival option for a widow in early South Carolina is perhaps what we might call a last resort. A widow could be sustained by her dower, even if her late husband left no will or specific instructions for her maintenance. In theory, our early laws followed the English custom of reserving a one-third share of a deceased man’s estate for his widow’s use. Regardless of whether his estate was massive or miniscule, the widow was legally entitled to this dower, or “widow’s third,” as it was often called. But there was one, potentially devastating catch to this entitlement. The widow would receive her one-third share of her husband’s estate only after his legally-contracted debts had been satisfied, even if the repayment of such debts consumed the man’s entire worldly estate. This contingency might seem like a small threat, but in the world of colonial America it was really was a cause for concern. As I mentioned earlier, the scarcity of hard money, or specie, in the colonies meant that most people lived on credit. You might purchase all your food and clothing on credit, and pay the tailor and grocer once or twice a year, whenever hard money trickled into your hands. So people were accustomed to living with debt—and it really did become an American way of life. Furthermore, in the colonial era, the easy availability of cheap real estate enticed lots of men to take monetary risks. Speculating on land bargains was actually pretty common in those early days. If death came knocking at a man’s door before his bills were paid, however, his remaining debts could spell disaster for his widow and family.
I’ll mention one such case as an example. Captain Thomas Crosthwaite was a rising star in South Carolina in the 1750s. As a ship captain, he had twenty years experience at sea, transporting cargo between Carolina, the West Indies, New England, and London. With a wife, Mary, and a growing family at home in Charleston, in the early 1750s he retired from the sea and got into the mercantile business himself, buying and selling the cargo that other ships brought to his hands. He started investing in real estate in urban Charleston, purchased fancy furniture, and began accumulating all the trappings of a respectable middling-class lifestyle. He then mortgaged much of his holdings to expand his business into the burgeoning market in Georgetown, South Carolina. In the summer of 1756, he died suddenly, aged 47. He left no will to sort out the repayment of his debts, so his many creditors swooped in and slowly picked apart his estate. There are no surviving records that tell us about Mary Crosthwaite’s emotions during this trying time, but we can easily imagine her distress. After burying several infant children and a husband at St. Philip’s Church, she was left with one teenage son and a dwindling estate. Creditors sued her to recover Thomas’s outstanding debts, and Mary was forced to sell her furniture and luxuries. Without prospects in Charleston, her young son, William, left town to join the army as a paid soldier. Eventually she even had to sell the roof over her head. Sometime in the winter of 1761–62, Mary Crosthwaite died, aged about 50 years, but it’s unclear where she was living at the time, or who was looking after her in her final days. The inventory of her estate shows that she still had a few possessions and a bit of money, but during the last four years of her life she had witnessed a devastating reversal of fortune caused entirely by her late husband’s lingering debts.
When I started down the path of describing the legal framework of a woman’s progress in early South Carolina, I outlined my concept of the four stages of life that more or less defined every woman’s journey from the cradle to the grave. Over the past two episodes of this podcast, I’ve walked you through each of these stages, and offered examples of real women whose stories provide interesting illustrations of infancy, spinsterhood, marriage, and widowhood. But in all of my examples, I’ve mentioned free white women. Some were rich and some were poor, but they were all born into a caste that recognized their rights, however limited, as free human beings. At the beginning of this journey, however, I said that we were going to consider some examples of non-white and non-free woman, to compare and contrast their rights and disabilities under the laws of early South Carolina. The legal constraints for enslaved women, free women of color, and Native American women in early Carolina were not quite the same as those of their free white counterparts, so I’ve purposefully left them out of the conversation up to this point. I hope you understand the logic behind this. I wanted to make sure that everyone has a grasp of what was once “normal” for women in early South Carolina, so we can better appreciate the “abnormal” legal status of our state’s non-white majority during those early generations. So, now that you understand the legal parameters that bounded the lives of women in general, it’s time to move on to the interesting stories of those “other” women.
But, alas, I’m out of time for this week! Never fear, the stories will continue next week. Tune in next time, when we supplement our knowledge of women’s rights in early South Carolina by looking at the legal status of enslaved women, free women of color, and Native American women. Was life in early Carolina simply miserable for them, or was their any legal protection to shield them from the abomination of slavery? Join me next week, when we’ll reach back into the past and let a few of these women to speak for themselves.