This notion of law as a dynamic site of struggle has recently been taken up by feminist legal theorists and historians, who emphasize the heterogeneity of legal systems as including not only “the rules that constitute the formal body of law” but “the discourses in which those rules are situated, and through which they are articulated and elaborated; the institutions by means of which they are constantly subverted and modified in their implementation and administration … and the various actors whose participation … sustains the enterprise.”74 This new emphasis on the discourses, institutions, and actors who variously support or subvert the law’s application has led in turn to a far more nuanced account of the history of women’s property relations under capitalism.
Recent scholarship on women’s property rights in early modern England, for example, has demonstrated that there was far greater complexity and less rigidity in the legal systems governing marital property, and a wider discrepancy between legal theory and actual practice, than was previously imagined. Analyses of documents such as conveyancing manuals, probate accounts, and legal records of litigation over marriage settlements have begun to reveal faultlines in the purported hegemony of coverture.75 Such scholarship has been instrumental in documenting what property actually passed through the hands of both elite and ordinary women in the period. We now know, for example, that in spite of the legal fiction of coverture, many wives retained various forms of separate property, secured through marriage settlements that were defensible in equity courts.76 Though it is difficult to say how widespread the practice of “separate estate” was, Amy Erickson has found evidence of women at all social levels establishing various forms of separate property during coverture, whether through formal settlements, simple bonds, or more informal arrangements between spouses. While the origins of “separate estate” remain obscure, it is generally agreed that it was a well-established practice by the end of the sixteenth century, when the feudal doctrine of coverture began to conflict with the shifting exigencies of a rapidly expanding market economy.77 Legal historians have suggested that the increasing value and importance of personal property or “moveables”—the form of capital most often owned and inherited by women—relative to real property, may have contributed to the rise of separate estate.78
It would be a mistake, Erickson cautions, however, to read the emergence of married women’s separate property in the period as straightforward evidence of women’s increasing independence or economic emancipation, for the institution of separate estate did not “improve women’s economic position steadily or consistently.”79 Nonetheless, her study of long neglected aspects of women’s property rights highlights the disjuncture between legal theory and actual practice in ways that make visible “the ingenuity of many ordinary women in working within a massively restrictive system.”80 A variety of factors—none of them aimed at promoting women’s economic independence per se—probably contributed to the increasing popularity of marriage settlements, such as the desire of the bride’s natal family to secure property descent through her to her children, or to relieve themselves of financial responsibility for her in the event she should be widowed or separated, or her husband prove a spendthrift or gold-digger.81 Moreover, most settlements dealt only with women’s rights to certain property in their widowhood, and not during coverture.
Nevertheless, Erickson provides compelling evidence that women with such settlements generally took out of their marriages what they brought in and thus, she argues, were unlikely to have “stopped thinking of certain property as theirs simply for the duration of the marriage.”82 She provides poignant anecdotal evidence of this in the cases of certain women who actually inscribed their personal property, prior to marriage, with an identifying signature or mark. Such was the case with Janevive Deane, who, before her second marriage to one Charles Pressye of Wiltshire, esq. in 1600, demarcated her personalty “that soe shee might still keep hir owne stock and goods whole, in apparancie to the worlde.”83 Deane’s demarcation of her moveables, which insists upon maintaining the visibility or “apparancie” of her proprietary interest in them during marriage, may be read as a small act of resistance to the legal shroud of coverture. It suggests, moreover, as Garthine Walker has claimed, that “although in legal terms the ownership of property was weighted towards men, popular perceptions of ownership did not strictly adhere to legal definitions.”84
Citing evidence of disputes over inheritance in which women “physically fought bailiffs and constables who attempted to serve warrants on their goods and chattels,” Walker maintains that women “felt uninhibited in claiming the right to protect goods and chattels which they deemed to be theirs.”85 Walker recounts the case of Margaret Dod of Cheshire, who was indicted, together with her servant Mary Catharall, “for stealing an iron mortar and pestle, a kettle, and a pewter dish from the house of her deceased husband’s brother, William Brocke, in what appears to have been a dispute over inheritance…. Margaret ‘swore [the goods] were her and she would have them, and that she would go through the house and take what was her own.’” When Margaret and Mary came to retrieve the goods, they had to fight Brocke’s servant, Elizabeth Parsonage, for them: “Elizabeth deposed that Margaret returned after taking the kettle out of the house, and ‘tooke up a greate Iron Morter with a Pessell, [Elizabeth] taking hold of one eare of it, and she [with] the Black Bagge [Margaret] holding the other eare, [both] striving to get the morter.’” Such instances, Walker maintains, demonstrate that “neither the ideology of household ownership nor the legal framework of the common law precluded a popular understanding that some property belonged to women.”86
Such disputes over marital property, according to Laura Gowing, were a frequent occurrence between husbands and wives during marriage as well. “Violent disputes often centered on material goods,” she maintains, “and particularly the goods which women kept locked away, in their own chests.”87 Margaret and William Phillips fell into such a dispute, Gowing recounts, when Margaret refused to open her locked chest and William took an axe to it. According to William,
in the same chest [he] found bras[s] and pewter which she had stolen from him and previously sworne that she had … soulde and given … away … she with her accustomed terms rascall, roge etc rann to him and scratched the skin of his face … and struck his shinnes with her foote … [and] threatened to kill him with a knife.88
It is clear in this context how the housewife’s role as keeper could become threatening to patriarchal authority; for her exertion of “effort to retain” the object in her “possession or control”—if not to “withold” or “conceal” it—could easily be used to keep goods from rather than for her husband. The chest is used to secrete, rather than to safeguard, household stuff that she has evidently come to consider her “owne goodes,” in spite of the law of coverture.
The rift between legal theory and actual practice with respect to married women’s property rights did not go unnoticed in legal treatises of the period. The Lawes Resolutions of Women’s Rights thus noted that while it could offer “no remedy” to the law of coverture, nevertheless “some women can shift it well enough.”89 Contemporary domestic treatises likewise registered the disparity between legal theory and material practice. William Gouge’s Of Domesticall Duties (1622) first presents the doctrine of coverture as fairly cut and dried: “By the common law,” he says, “mariage is a gift of all the goods and chattels personall of the wife to her husband, so that no kinde of propertie in the same remaineth in her So that by our law she is so farre from gaining any property by her mariage in her husbands goods, as she loseth all the property she formerly had in her owne goods.”90 In the dedicatory epistle of Gouge’s treatise, however, we find that his attempt to restrain the housewife “from disposing the common goods of the family without, or against