Interjurisdictional competition and the Married Women’s Property Acts

Abstract

Married women in the early nineteenth century United States were not permitted to own property, enter into contracts without their husband’s permission, or stand in court as independent persons. This severely limited married women’s ability to engage in formal business ventures, collect rents, administer estates, and manage bequests through wills. By the dawn of the twentieth century, legal reform in nearly every state had removed these restrictions by extending formal legal and economic rights to married women. Legal reform being by nature a public good with dispersed benefits, what forces impelled legislators to undertake the costs of action? In this paper, I argue that interjurisdictional competition between states and territories in the nineteenth century was instrumental in motivating these reforms. Two conditions are necessary for interjurisdictional competition to function: (1) law-makers must hold a vested interest in attracting population to their jurisdictions, and (2) residents must be able to actively choose between the products of different jurisdictions. Using evidence from the passage of the Married Women’s Property Acts, I find that legal reforms were adopted first and in the greatest strength in those regions in which there was active interjurisdictional competition.

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Fig. 1
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Notes

  1. 1.

    Unmarried women, including widows, were not subject to the same limitations on property ownership. They could own property, enter into contracts, and sue or be sued. The extent of the disadvantage of coverture is such that businesswomen or women who had been abandoned by their husbands were sometimes granted the right to be treated as if they were single by chancery courts or private legislative acts (Hoff 2007, pp. 41–42; Chused 1982, pp. 1369–1371).

  2. 2.

    In additional to this type of geographic competition, shifting attitudes towards women’s economic rights are likely to have altered the types of legislation that an all-male electorate would have favored, thereby shifting the ideal rights regime from the perspective of a vote-seeking politician. For purposes of analytic tractability with respect to the question of nineteenth century interjurisdictional competition, the preferences of the electorate and other forms of ideological influence on political behavior are presumed to be roughly constant across jurisdictions. However, there were many and varied causes that influenced legislative treatment of married women’s property rights over the course of the nineteenth century, and these other factors are worthy of further research.

  3. 3.

    O’Hara and Ribstein (2009) explore this analogy and potential twenty-first century applications in detail.

  4. 4.

    Conditions of jurisdictional competition in the nineteenth century United States led to expansions in other rights as well. Braun and Kvasnicka (2013) and Horpedahl (2011) discuss the role of interjurisdictional competition with respect to suffrage.

  5. 5.

    The legal relationship was not completely one-sided. A husband owed duties to his wife, such as providing her with “necessaries” (Blackstone 1765, p. 430) and protecting the value of the one-third of his real property that was designated as her dower in the event she should survive him (Hartog 2002, pp. 145–147).

  6. 6.

    These actions were intended to protect a wife’s interest in the one-third share of the family property she could expect to receive upon her husband’s death. In the event that real estate was sold without consent, widows could sue the purchaser in order to recover their dower right (see Salmon 1986 and Warbasse 1987).

  7. 7.

    The separate estate and property acts were often individual legislative acts, but some states and territories included them directly in their constitutions.

  8. 8.

    The New York Married Women’s Property Statute of 1848 served as the template for many other states. From 1848 New York Laws 307, Chap. 200: “The real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents issues and profits thereof shall not be subject to the disposal of her husband, nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.”.

  9. 9.

    The Maryland earnings act is representative: “And be it enacted, That any married woman who by her skill, industry or personal labour, shall hereafter earn any money or other property, real personal or mixed to the value of one thousand dollars or less, shall and may hold the same and the fruits, increase and profits thereof, to her sole and separate use with power as feme sole to invest and re-invest, and sell and dispose of the same…” (1842 Laws of Maryland, Chap. 293, S8).

  10. 10.

    Besley and Case’s (1995) model of yardstick competition is an example of the exercise of voice. In yardstick competition, individual voters look at the behavior of legislators in neighboring districts and then compare their own representatives against those of their neighbors. If the neighboring jurisdiction performs better, voters learn that their elected officials are not doing as well as they could and choose not to re-elect.

  11. 11.

    Although most legal jurisdictions are defined geographically and exit is therefore a physical activity, some areas of law allow individuals to choose between legal venues without moving, such as in choice-of-law clauses in contractual arrangements. This insight has inspired a robust literature on jurisdictional competition in incorporation law, one of the few areas of law that explicitly allows individuals to contractually determine which state’s laws will apply in the event of a dispute (see for example Butler 1985; Easterbrook and Fischel 1991; Bebchuk 1992; Kahan and Kamar 2002; O’Hara and Ribstein 2009).

  12. 12.

    On whether or not local governments compete with each other, see, for example, Brennan and Buchanan (1980), Crowley and Sobel (2011), Stansel (2006), Oates (1985), and Wagner and Weber (1975). On the subject of competition between governments being potentially undesirable, see Baysinger and Butler (1985); Boettke et al. (2011); and Oates and Schwab (1988).

  13. 13.

    From U.S Census data and Weiss (2006). The sole exception is the high rate of women in wage employment in the South during the 10 years following emancipation.

  14. 14.

    These figures are underestimates of actual female labor force participation and are presented for regional comparison only. First, and most significantly, all nineteenth century measures of women’s work are considered underestimates due to the inaccuracy of nineteenth century census practices and the fact that data explicitly omit much of women’s actual work (Goldin 1990, pp. 43–46). Second, the available population data used here counts women age 15 and older, while available employment data only includes gainfully employed women age 16 and older. Third, the labor force base is overstated by including all women, not just those capable of and seeking work.

  15. 15.

    Textile manufacturers in Lawrence, MA; Manchester, NH; and Saco, ME capitalized on Lowell’s innovations by following in the path of building manufacturing equipment in-house (Hekman 1980). Mills in Nashua, NH; Chicopee, MA; Holyoke, MA; Whitestown, NY; and Pittsburgh, PA, followed the Lowell model of vertically integrating textile production from cotton to cloth and housing female laborers from across the country (Foner 1977, p. xviii). Many factories even bought equipment directly from Lowell, including the Poignand & Plant Cotton Company of Lancaster, MA; Crocker & Richmond of Taunton, MA; the Dover Cotton Company of Dover, NH; and Joshua and Thomas Gilpin of Pennsylvania (Rosenberg 2011).

  16. 16.

    “Gov. Haight’s Biennial Message,” San Francisco Bulletin, December 9, 1869.

  17. 17.

    George Suckley, the chief naturalist of the exploratory party, put it this way: “…the Governor is a very ambitious man and knows very well that his political fortunes are wrapped up in the success of the railroad making its Pacific terminus in his own territory” (quoted in Goetzmann [1959] 1979, p. 283).

  18. 18.

    See, for example, the case of Asa Shinn Mercer, whose recruitment of women from the Eastern seaboard to Washington Territory may have played a role in his election to the Senate of the Washington Territory (Brown 1958).

  19. 19.

    The Northwest Territory (now IN, OH, MI, IL and WI) and Southwest Territory (now TN and KY) were created from the lands immediately west of the original colonies. That land originally had been under colonial control, but was ceded to the federal government upon admission to the Union.

  20. 20.

    See Moussalli (2008, 2012) for additional detail on the change in political incentives that takes place when a territory becomes a state, particularly with regard to the state’s authority to levy additional taxes.

  21. 21.

    “Oration Delivered by Governor T.W. Bennett, at Boise City, Idaho Territory, July 4th, 1873,” Idaho Tri-Weekly Statesman, July 5, 1873, p. 3.

  22. 22.

    Ibid.

  23. 23.

    The Barre (MA) Gazette, December 13, 861; Volume 28; Issue 21, p. 1.

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Acknowledgments

Thank you to Chris Coyne, Pete Boettke, Pete Leeson, Tyler Cowen, Adam Martin, Michael Thomas, Katherine Fidler, Rachel Coyne, Bill Shughart, Virgil Storr, and the participants in the Mercatus Center’s Graduate Student Paper Workshop for many valuable comments and conversations. I am also grateful for the thoughtful and useful feedback of three anonymous reviewers. Any remaining errors are my own. I also wish to thank the Mercatus Center and the Institute for Humane Studies for their support at various stages in the development of this research.

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Lemke, J.S. Interjurisdictional competition and the Married Women’s Property Acts. Public Choice 166, 291–313 (2016). https://doi.org/10.1007/s11127-016-0323-x

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Keywords

  • Interjurisdictional competition
  • Decentralization
  • Competitive governance
  • Married Women’s Property Acts
  • Property rights
  • Women’s rights

JEL Classification

  • H77
  • K11
  • N4