I’d looked at this a few times before but yesterday I was prepping to teach and I looked at the 1860 New York married women’s property act (actual title = “An Act Concerning the Rights and Liabilities of Husband and Wife”) and something jumped out at me that I hadn’t seen before. It’s in these three sections.

SEC. 3. Any married woman possessed of real estate as her separate property, may bargain, sell and convey such property, and enter into any contract in reference to the same, but no such conveyance or contract shall be valid without the assent, in writing, of her husband, except as hereinafter provided.

SEC. 4. In case any married woman possessed of separate real property, as aforesaid, may desire to sell or convey the same, or to make any contract in relation thereto, and shall be unable to procure the assent of her husband, as in the preceding section provided, in consequence of his refusal, absence, insanity, or other disability, such married woman may apply to the county court in the county where she shall at the time reside, for leave to make such sale, conveyance or contract, without the assent of her husband.

SEC. 5. Such application may be made by petition, verified by her, and setting forth the grounds of such application. If the husband be a resident of the county, and not under disability, from insanity or other cause, a copy of said petition shall be served upon him, with a notice of the time when the same will be presented to the said court, at least ten days before such application. In all other cases, the county court to which such application shall be made, shall, in its discretion, determine whether any notice shall be given, and if any, the mode and manner of giving it.

SEC. 6. If it shall satisfactorily appear to such court, upon such application, that the husband of such applicant has wilfully abandoned his said wife, and lives separate and apart from her, or that he is insane, or imprisoned as a convict in any state prison, or that he is an habitual drunkard, or that he is in any way disabled from making a contract, or that he refuses to give his consent, without good cause therefor, then such court shall cause an order to be entered upon its records, authorizing such married woman to sell and convey her real estate, or contract in regard thereto without the assent of her husband, with the same effect as though such conveyance or contract had been made with his assent.

“Any married woman possessed of real estate as her separate property, may bargain, sell and convey such property, and enter into any contract in reference to the same” provided that she gets “the assent, in writing, of her husband, except as hereinafter provided.” The exceptions are for “refusal, absence, insanity, or other disability,” “If the husband be (…) not under disability, from insanity or other cause,” “If it shall satisfactorily appear to such court (…) that the husband of (…) has wilfully abandoned his said wife, and lives separate and apart from her, or that he is insane, or imprisoned as a convict in any state prison, or that he is an habitual drunkard, or that he is in any way disabled from making a contract.”

This is about conditions which exempted propertied wives from the requirement to get their husbands’ permission prior to entering into contracts. First off, if the husband can’t refuse, then why is permission needed? Maybe this is about husband’s being informed, a right to notification, so to speak: a married man ought to know what his wife gets up to? Setting aside refusal, I wonder if the other exemptions can be read as standards for proper masculinity. (Actually refusal might be as well – perhaps refusal to sign is an excess of or an improperly negotiable masculinity? I wonder if drunkenness might also be read that way.) If so, then the courts were set up as adjudicators of masculine behavior, and women’s legal access to transactions over property could involve claims about masculine propriety/impropriety (to the degree that the requirement in section 3 included an element of husbandly proprietorship, sections 4-6 could be read as standards of propriety and impropriety qualifying and disqualifying husbands from this proprietorship). The bit that most struck me, though, was the reference to disability. Sections 4 and 5 refer only to husbands’ disability, while section 6 refers to being “disabled from making a contract.” I’m curious to know what all could be included here, and if there were forms of disability which were not contract-exempting (disabilities which were not disabilities for the purposes of contract).

There are no such provisions in the much simpler 1848 New York Married Women’s Property Act.

(Notes to self: I got the text from the database Women and Social Movements in the United States, 1600-2000. See this bibliography – http://www.h-net.org/~women/bibs/bibl-property.html. )

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