Charleston - Family Law,

legal stages Infancy, Spinsterhood, Marriage, and Widowhood.

What about Motherhood? That’s a great question, and here’s my historically accurate, but emotionally unsatisfactory answer: In early South Carolina, being a mother did not offer any special rights or protections in the eyes of the law. Children were a form of property, and husbands controlled the property of their wives. Women who bore children out of wedlock were guilty of the crime of bastardy (yes, South Carolina passed a law against bastardy in 1703), and guilty women were subject to fines, public humiliation, and corporal punishment. In short, our culture and laws regarded childbearing as a normal duty, not as a miracle of life worthy of celebration and protection. With that distressing fact behind us, let’s move on to the earliest phase of a woman’s life: infancy.

According to the law of early South Carolina, which was based on centuries of English legal traditions, infancy was a long phase of dependency, from a child’s birth to his or her twenty-first birthday. At age twenty-one, the law recognized that a person had reached their “majority,” and could make decisions for his or her self. The period of infancy was, therefore, a period of “non age,” or “minority,” during which time they lacked the legal ability to do anything. This is still pretty much the reality for children today—they’re totally dependent on adults for all the necessities of life. Just like today, infants could acquire property through gifts and legacies, but they could not manage such property until they reached their majority. Control of an infant’s person and property was legally vested in the child’s father or legally-appointed guardian. Notice that I didn’t say “mother.” Women had so few rights in the eyes of our early laws that a mother had no legal standing over her own children. Today we take it for granted that a mother is a child’s natural, primary guardian, but such was not the case in colonial times.

For example, let’s consider the case of Mary Haly. Mary was the young widow of Lieutenant Lachlan Shaw, who died in 1761 while fighting the Cherokee in western South Carolina. Lieutenant Shaw had neglected to make his will before going off to fight the Indians, and so the management of his modest estate was unclear. Mary had an infant son named Lachlan Shaw junior, but the boy had no legally-appointed guardian. Today we might think “what’s the big deal? Surely Mary is the guardian of her own child.” But that wasn’t the way it worked in earlier times. The law considered the infant boy the natural heir to his late father’s property, and it would be held in trust by a guardian until his twenty-first birthday. Women simply did not control property, so young Lachlan needed a proper guardian. In 1763, Mary wed Dr. John Haly, but even this step did not automatically empower Dr. Haly to act as the legal guardian of his stepson. To achieve something that seems natural to us today, an extraordinary step was required. Shortly after her re-marriage in 1763, Mary Haly petitioned Governor Thomas Boone, asking to be appointed legal guardian of her own son and his property. The governor granted her request, and created a document that reads like an apprenticeship contract. Mary was required to provide her son with meat, drink, washing, clothing, lodging, and education, and to guard his property until Lachlan reached his majority.

Speaking of apprenticeships, let’s make a brief diversion into education. Most young women in early South Carolina spent their childhood within a family household where they performed chores and learned skills like sewing and cooking that would be essential in adulthood. Girls generally received a very sparse education. Our social traditions dictated that women were destined to become wives and mothers, so book learning was generally considered a waste of expensive resources. Some young women did perform apprenticeships, however, living their teenage years in the household of another family where they worked in return for a modicum of an education. I know of no data about the frequency of this practice in South Carolina, but there are some records available in scattered sources.

For example, I’ll mention the indenture of Charlotte Philips in the year 1708. As a young teenager, Charlotte was sent by her parents to live with another family, René and Charlotte Ravenel, as a servant, until her twenty-first birthday. The document recording this arrangement survives among the Records of the Secretary of the Province, at our state archive in Columbia, is really an apprenticeship indenture, which is just a fancy name for a contract. In the document, the Ravenel family agrees to feed and protect Charlotte as long as she behaves herself. In return, they will teach Charlotte to sew, to pray, and to read (but not to write–which was a separate skill in early America). That was the extent of young Charlotte’s education, and that was not uncommon.

Consider also the following apprenticeship notice printed in the South Carolina Gazette, Charleston’s first newspaper, in late April 1746. An anonymous writer was looking for a girl between the ages of ten and fourteen years of age to be taken in as an apprentice. In return for her work, the girl would be “kept in a House & taught needle work.” I guess that’s better than living in a barn, or in the kitchen house, right? Some girls did learn trade skills, however.

Consider the case of Anne Anderson, a short, thick, red-faced apprentice girl of sixteen years who ran away from her master, a stay-maker named Elizabeth Harvey in the spring of 1767. According to a runaway notice printed in the local newspaper, young Anne was learning a money-making skill from a local business woman, sewing stays (what we would call boned corsets), but some disagreement or dissatisfaction had caused Anne to flee, and now there was a reward of £5 for her return. Today this would be a matter of great concern for the child’s welfare, but in 1767 there was a bounty on the head of an ungrateful servant. Perhaps Anne was frustrated by her lack of options and chose to rebel against the narrow lines that constrained a young girl’s life in that era.

Sadly, things changed little for young women with an appetite for education until the early twentieth century. South Carolina didn’t enforce compulsory education for girls until 1919. That isn’t to say that girls didn’t have opportunities for some education before 1919. Rather, the educational playing field wasn’t leveled for the sexes until the early twentieth century. In 1868 we created our State Board of Education, but shortly afterward the progress of public education in South Carolina was derailed by the Jim Crow segregation laws of the late nineteenth-century, and didn’t really get back on track until after World War I. Poor Anne Anderson wasn’t the only young apprentice girl to run away in search of better opportunities, but I’ll let the writers of historical fiction track down their stories.

Let’s move on to the next legally-recognized phase of a young woman’s life: Spinsterhood. Many cultures around the world celebrate or mark a girls passage into womanhood with ceremonies and some change of status. In the laws of early South Carolina, this change is recognized as the passage from infancy to a new state known as spinsterhood. A spinster, according to our old laws, was simply a young woman who was legally eligible to be married. Most folks who hear the word “spinster” immediately conjure up images of an older, unmarried woman, an “old maid,” if you will, but that isn’t a historically accurate image. In its most common usage, the term spinster usually referred to a teenage girl who had attained the socially-recognized minimum age for marriage. Less frequently, the term was used to denote a woman in her twenties who was still unmarried, but such a woman was a rarity in early South Carolina. Even less frequently, the term spinster was applied to women who made it to an advanced age without having ever married. In an era when marriage and child rearing were a woman’s primary social duties, elderly spinsters were quite a rare phenomenon.

So in the eyes of the law, at what age does an infant girl become a spinster? You won’t find the answer to this question in the statute law of early South Carolina, but rather in the ancient traditions that came to us through the Common Law of England. As a short cut, let’s turn to a legal resource that was published in Charleston by a man named William Simpson in 1761. In that year Simpson, a minor government official, published a book titled The Practical Justice of the Peace and Parish Officer, of His Majesty’s Province of South Carolina. This is a fascinating reference book containing an alphabetical list of crimes with definitions and instructions on how each should be prosecuted. You can find the book in libraries around the state, and the full text is now online as well. According to Simpson’s book, the legal age at which a young woman can consent to sex is TEN. At twelve, she can be married, but only if she has the consent of her father or her guardian. Without such parental consent, no woman under the age of twenty-one can legally contract marriage. But of course exceptions were made in rural communities without much legal presence, where pre-marital children and “common law” unions were not uncommon.

All of this might sound horrible and irresponsible to us in the twenty-first century, but it’s important to remember that many young women in the early generations of South Carolina were first married at the age of fourteen or fifteen. In affluent circles, especially in urban centers like Charleston, the parents of newly-minted spinsters paraded their teenage daughters before friends and neighbors in a spectacle that we call a debut. Some people still relish this antiquated practice, but in its original form the debut was a sort of glorified cattle show, the purpose of which was the initiate the process of bidding for the opportunity to marry into a prosperous family. Of course this ritual wasn’t kind to the young women, but life expectancy was shorter then. In fact, it was not uncommon to find widowed mothers under the age of twenty. The point of all this history is not to arouse contempt for the past, but rather to underscore the fact that in earlier times a woman’s life often turned very rapidly from the innocence of childhood to the duties of marriage and the hardships of motherhood.

Moving right along with our tour through the legal phases of a women’s life in early South Carolina, let’s talk about marriage. It’s one of the greatest disappearing tricks in our history. Before you call me crazy, consider this fact. In the eyes of our early laws, which of course were based on ancient English laws, a woman, upon her marriage, disappeared. That is to say, her rights and her property disappeared by melding into that of her husband. In the words of the great English legal scholar, William Blackstone, “the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.” This legal phenomenon is known as the “doctrine of coverture.” A married woman is, in the legal Latin of old English, a “feme covert.” The husband speaks for the wife and takes control of any property she might have brought to the marriage, but he is also obliged to care for and protect her and the offspring they produce. Whatever property or wealth she brought to the marriage is her dowry, and it immediately becomes his property.

A married woman had a one-third interest in all of her husband’s property, and this interest was called her dower. If a husband wanted to sell a piece of real estate, therefore, his wife had to sign a separate document called a “renunciation of dower,” in which she acknowledged that she consented to the sale without coercion. Even if the husband did coerce his wife into signing the renunciation, a woman in the early days of South Carolina had little option but to bend to the will of her husband. You might think this sounds like a quaint, ancient practice, but the state of South Carolina required married women to sign “renunciations of dower” until the year 1984. Sounds incredible, right? But this fact underscores the deep roots of our state’s legal framework.

In all matters, civil and criminal, a husband spoke for and represented his wife. Married women could not enter into contracts, sue or be sued, or even complain, in their own person. Furthermore, since a husband was answerable for a wife’s misbehavior, the law empowered him to correct, restrain, and chastise his wife, “within reasonable bounds,” as William Blackstone observed. In the conclusion to Chapter 15 of Blackstone’s famous Commentaries on the Laws of England, the author even added the following patronizing comment on women’s rights: “Even the disabilities which the wife lies under, are for the most part intended for her protection and benefit. So great a favorite is the female sex of the laws of England.”

If the Common Law of old England acknowledged the disappearance of woman’s legal existence in marriage, the Equity Law of England and early South Carolina recognized a sort of loophole. A woman’s property could be protected from her husband’s potential ill management through a legal instrument called a “marriage settlement,” which was usually, but not always created just prior to a marriage. This settlement is a tripartite agreement between a woman, her husband-to-be, and a neutral trustee who was usually a member of the woman’s extended family. By placing a woman’s property in the hands of a third party, her fortune or dower rights would be legally off-limits from her husband’s potential meddling or debts. Besides protecting a wife from her husband’s potential for bad investments or bad behavior, the marriage settlement also allowed family property to pass legally from one generation to another through a matrilineal line. Furthermore, in case of her husband’s death, the woman with a marriage settlement enjoyed legal powers over his estate that ordinary women could only dream of. In early South Carolina, just like today, these sorts of pre-nuptial marriage settlements were almost always created by and for rich folk. Nevertheless, you’ll find hundreds of early marriage settlements among the records of the Secretary of State at our state archive in Columbia. They offer an interesting view into premarital negotiations of a segment of the population of early South Carolina, and could be very useful material for creating a historical soap opera.

I’ll give you one quick example. In October 1793, twenty-three-year-old Harriet Neyle of Charleston had agreed to marry a recently-arrived French refugee named John Sollée. Harriet’s family had arrived in Charleston two generations earlier and acquired a respectable amount of property and prestige. From her late father, Harriet had inherited a handsome amount of property. John Sollée was an unknown quantity, a native of Saint-Domingue (now Haiti), who in late 1793 was about to begin construction a French theater on the west side of Church Street downtown. Wary of the risks involved, Harriet’s family drafted a marriage settlement that John Sollée grudgingly signed. In the document, which you’ll find at the state archive, Harriet’s family offered Sollée a small cash settlement—a dowry—in exchange for his promise to give up any claims to ownership of any of Harriet’s property. In this case, Harriet’s family was right to exercise caution. John Sollée’s French Theatre was quite popular after it opened in 1794, but Sollée himself proved to be a poor businessman, and money flowed through his fingers like running water. Suing John Sollée for debts was a popular activity in the late 1790s. The couple had children, of course, and thanks to the marriage settlement, Harriet’s property bypassed her husband and passed safely, and intact, to her children.

The marriage settlement offered rich women a modicum of independence from their husbands, but women of more modest means had a legal avenue to greater mobility as well. A married woman, legally a feme covert, could become a feme sole, that is, a business woman independent of her husband’s finances. Like the rest of our legal framework, this practice came to us from England, and was fairly common in the urban society of colonial Charleston. To become a feme sole, a woman’s husband first had to execute a contract, like a performance bond, with another man, pledging not to meddle in his wife’s business affairs. Of course a woman had to convince her husband to allow her to engage in business, and, as you can imagine, conversations about this topic took place almost exclusively in working-class households, where the wife’s extra income might be greatly appreciated.

For example, in the summer of 1768 Mrs. Mary Stevens convinced her husband to allow her to become a feme sole. The Stevens family had recently moved from England to Savannah to Charleston, and Mr. John Stevens was employed as a music teacher and organist at St. Michael’s Church. John drafted a contract with his neighbor, a baker named James Wright, pledging to forfeit a sum of money if he interfered in his wife’s business. John also acknowledged that Mary “may have and exercise any business or trade as a Sole and Separate dealer in buying selling bartering exchanging and retailing all kind of goods . . . whatsoever in Charles Town or else where and in such other way or manner she may think fit.”

Two weeks later, in early July 1768, Mary Stevens announced her new venture in the South Carolina Gazette. She identified herself as a “sole trader” who had opened a boarding house at the corner of East Bay Street and Longitude Lane. A short while later, the boarding house expanded and became a fashionable coffee house. When John Stevens became Deputy Postmaster for the province of South Carolina, Mary’s boarding house also became the town’s post office. Following John’s death in 1772, Mary was not a wealthy widow, but her valuable experience as a businesswoman endowed her with more stability and more independence than most married women in this country.

Tune in next week for more about the status of women in early South Carolina, including details relating to enslaved women, free women of color, and Native American women.

 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.

In the past two episodes we’ve focused on the “normal” legal parameters that shaped the lives of women in early South Carolina, but the legal rights and “disabilities” of  enslaved women, free women of color, and Native American women in early South Carolina were not quite the same as those of their free white counterparts.  The legal framework of slavery created an “abnormal” legal existence of these non-white women, so today we’ll examine their difficult predicament and hear some interesting stories of those “other” women.

Let’s start by looking at the legal status of enslaved women of African descent. Did the laws of early South Carolina recognize their progress through infancy, marriage, and spinsterhood? Unfortunately, the answer is no. In the eyes of our early laws, enslaved women had no rights. They were not citizens, and they were barely considered to be human beings. From a legal perspective, they were merely property. Some enslaved girls were taught skills such as cooking and sewing in order to prepare them for a life of working in the house of a white family, but the majority of enslaved people lived on rural plantations, where they faced a life of hard labor. In other words, childhood education for enslaved girls was practically non-existent. Teaching slaves to read and write was not illegal for most of our early history, but it was a luxury available only to a small minority.

By the way, the South Carolina legislature passed a law in 1834 making it a crime to teach slaves to read and/or write, but according to an 1848 legal review by Judge John Belton O’Neall, that 1834 law was pushed through the legislature at a moment of anti-abolitionist fervor, and it was never enforced (see O’Neall, Negro Law of South Carolina, page 23).

As Judge O’Neall said in 1848, the “best slaves” were those who could read the Bible. From the earliest days of the colonial era, most white slave owners in South Carolina encouraged their slaves to abandon their traditional African cultures and to adopt the tenants of Christianity. The reasons for this effort were manifold, but for our present purposes let’s focus on one specific reason: the institution of marriage. White owners encouraged their enslaved people to adopt the Judeo-Christian traditions of marriage, or at least the eighteenth-century Western European version thereof, as a means of fostering a degree of stability and domestic order within the enslaved population. For such reasons, the white minority of our state commonly recognized and acknowledged the marriages of enslaved couples.

In the eyes of the law, however, marriages between enslaved people were merely a social convenience, but not legal and thus void of any protection. Many slave owners separated husbands and wives and children, without remorse, whenever it was convenient for their financial gain. Similarly, the law did not recognize a marriage between a free person and a slave, and thus the child born of any union involving an enslaved person was deemed to be illegitimate. Not illegitimate in a moral sense, but illegitimate in the legal sense that the child was barred from claiming any inheritance from the father. Since enslaved men were barred from owning any property, however, there was nothing to inherit but the pain and suffering of a life in bondage.

In the 1690s, the legislature of South Carolina created our earliest laws concerning the control of the enslaved population. Most of the text of those laws was actually borrowed from the islands of Barbados and Jamaica, places that had a few more years of experience with the subject that Carolina. In the wake of the bloody Stono Uprising in 1739, however, our provincial government created a new slave law that continued in force, with revisions and amendments, until 1865. The “Negro Act” of 1740, as it was commonly called, was a lengthy, comprehensive law that addressed nearly every aspect of an enslaved person’s life. In regard to enslaved women, there was one, very important clause that enshrined what was already a pre-existing practice into law. The first paragraph of this 1740 law specified that the when determining the caste of non-white children, the legal condition of the child followed the condition of the mother. So when an enslaved woman bore a child, the child was automatically born into slavery, and legally belonged to the white man who owned the mother. In short, enslaved mothers and fathers had no legal power over their own children, from whom they might be separated at any time. This legal condition destroyed the traditional family dynamic, and you can be sure that it broke the hearts of generations of mothers.

Furthermore, enslaved women in early South Carolina enjoyed no legal protection against violence. Everything we’ve discussed up to this point has related to some aspect of civil law; that is, business law, family law, probate law, and the like. Criminal violence against enslaved women was, in the eyes of the law, a crime against property. The act of injuring, maiming, raping, or killing an enslaved woman amounted to malicious property damage. Neither enslaved women nor enslaved men had access to our criminal justice system, so the law was deaf to their complaints. If anyone were to initiate prosecution for such a crime, it would have been the owner of the enslaved victim, who might seek compensation for damages, and he may or may not be sympathetic to the victim’s pain and suffering.

If the marriages between enslaved men and women were a social fiction, in the eyes of our early laws, then so too was the legal state of enslaved widowhood. If you remember back to our previous discussion of widowhood, the crux of the matter was the widow’s ability to control or at least to survive on the residue of her late husband’s estate. But enslaved men and women were legally barred from owning or controlling property. In the eyes of the law, therefore, the life of an enslaved woman changed not at all when her husband died or was taken away. She might be in a state of mourning that individuals might recognize and acknowledge for a period, but otherwise her life continued without change.

Even in the abstract, talking about these general legal issues, the life of an enslaved woman in early South Carolina sounds pretty miserable. Documents from this era that record the words of enslaved women are exceedingly rare, so it’s very difficult to hear the stories of individuals. There is, however, a huge treasure trove of documents that provide a bit of insight into some of their lives. I’m talking about runaway slave advertisements. From the earliest newspaper printed in Charleston in 1732 all the way up to the end of slavery in early 1865, there are thousands and thousands of printed notices offering rewards for enslaved people who ran away, or absconded, or eloped from their owners. These ads usually provide a name and a brief description of the runaway, and sometimes they include some really interesting personal details. If you’re looking for some inspiration for a historical novel based in Charleston or the surrounding Lowcountry, these advertisements might be a great resource. For our present purposes, I’ll mention just two enslaved women who ran away from their unhappy lives.

The first is Charlotte, who actually ran away multiple times in 1807 and 1808 from her owner, Abigail Huff, who lived in King Street. When Charlotte first disappeared, Mrs. Huff described her as being about eighteen years old, about five feet tall, “slender made,” and of a yellowish complexion. She was “well known in the city as a day worker,” said Mrs. Huff, “particularly in Beresford’s alley” (that’s now Chalmers Street). But Charlotte was an unhappy teenage girl who apparently did not see a bright future for herself. The legal cage of slavery beat down her spirit and led her toward a path of self-destruction. In late June of 1807 Mrs. Huff stated that Charlotte had “lately addicted herself to drinking spirituous liquors” and had become “a great street-walker, and can be met with, no doubt, on the wharf, or in Queen-street, being a haunt of hers every evening.” Evidently Charlotte returned to her home in King Street voluntarily later in 1807, but in early March 1808 she ran away again. Mrs. Huff published another description of the girl and offered a few new clues to Charlotte’s frame of mind. She described the girl as being “addicted to liquor, very noisy and talkative; her dress is sometimes very tidy at others very slovenly, her cloathing [sic] not particularly known; is a day worker and a great street walker till a late hour at night—has been seen about the back-streets and play-house.” After a few weeks of living on the streets, Charlotte returned home, only to run away again in May of 1808. Abigail Huff continued to advertise for Charlotte’s return through the summer of 1808, but we can only guess what her fate might have been. Clearly, Charlotte was unhappy, depressed, distraught, frustrated, and angry. On occasion she took pride in her appearance, but then she resorted to the bottle and tried to drown her sorrows in promiscuous, self-destructive behavior. Like hundreds of thousands of other enslaved women, Charlotte was a victim of the evils of slavery, from which there was little hope of escape.

For the sake of balance, I’ll give you another, less depressing example of an enslaved woman who ran away in search of a better life. In early October 1833, Mordecai Cohen of Charleston advertised for the return of three enslaved people who “absconded” from his household on September 29th. The persons in question were “a brown woman named Eliza with her two sons, Robert and Alfred, aged 11 and 9 years.” Mr. Cohen described Eliza as being of “ordinary” height, having “bushy hair” and “a slender figure.” She was about thirty years of age and, like many mothers with two young boys, Eliza had a “hectic appearance.” Her sons were both described as having light skin and straight hair—clues that their father was likely a white man. As an enslaved woman, however, Eliza’s children were legally born into slavery, regardless of their father’s identity. By fleeing with her children, she was clearly seeking a better life for herself and her family. But where would she go?

Mordecai Cohen’s 1833 advertisement gives us a great clue to Eliza’s frame of mind. After describing the woman and her boys, Mr. Cohen provided the following intriguing detail: “Eliza is very intelligent—she attempted two months ago to escape from her former owner by stage [that is, by taking a stagecoach], to Wilmington, N.C., but was stopped in Georgetown; this she may again attempt.”

Try to imagine her scenario for a moment. Eliza was frustrated by the limitations slavery placed on her life and on the future lives of her two sons. Rather than turning her frustration and anger inward like Charlotte, Eliza decided she had to escape, to head north where slavery would no longer define their lives. She devised a plan and set out alone in a man’s world, probably pretending to be free, and hid in plain sight on a commercial stagecoach with other white passengers, headed north. She was caught once before attempting this scheme, so was she following the same plan again? Was she successful? Well, that’s a topic for another show, or perhaps for your next historical novel or screenplay.

In this series on women’s history, we’ve talked about two classes of women: free white women and enslaved women. The legal world of early South Carolina recognized four classes of women, however, so next we’ll turn our attention to the remaining two groups: free women of color and free women of Native American descent. These are two distinct groups, of course, so we’ll consider them separately, but in the nineteenth century their stories became increasingly intertwined in our state’s social and legal spheres.

From the earliest days of legal records in colonial South Carolina, shortly after the introduction of slavery here in the early 1670s, the laws of this colony recognized the right of slave owners to manumit, or free, their slaves. Slaves were considered property, after all, and the law respected a free man’s right to dispose of his property as he saw fit. The mechanisms and reasons for manumitting slaves were as varied as the people themselves, and that topic is far too massive to explore right now. For the present conversation, let’s stick to the story of “free people of color,” or FPCs, as they were often called.

From the late 1600s to the end of slavery in 1865, the population of South Carolina experienced a steady increase in the number of free people of color. The vast majority of these FPCs lived in urban Charleston, so let’s focus our attention on the population of the city. According to Robert Wells’s Register and Almanack for the Year of our Lord 1774, published in Charleston, the population of Charleston included 5,030 white inhabitants, 6,276 slaves, and twenty-four “Free Negroes, Mulattoes, &c.” Of the 11,330 souls residing in town in 1774, free persons of color made up less than one-quarter of one percent of the total population.

Eight-seven years later, in city census of urban Charleston made the spring of 1861, the city hosted 26,969 white inhabitants, 17,655 slaves, and 3,785 free persons of color. Of the 48,409 souls residing in the city in 1861, free persons of color represented nearly eight percent of the total population. In short, between the era of the American Revolution and the beginning of the Civil War, Charleston witnessed an exponential increase in the number of people of African descent who managed to escape slavery and then produce children and grandchildren who existed in a strange, liminal world between freedom and slavery.

So, what were the rights and “disabilities” afforded to these free women of color under South Carolina law? The answer is quite clearly stated in Judge John Belton O’Neall’s 1848 digest of The Negro Law of South Carolina. In chapter 1, section 45, O’Neall states “Free negroes, mulattoes, and mestizoes [persons of mixed African and Native-American ancestry] are entitled to all the rights of property, and protection in their persons and property, by action or indictment, which the white inhabitants of this state are entitled to.” He continues in section 47: “They may contract, and be contracted with. Their marriages with one another, and even with white people, are legal. They may purchase, hold, and transmit, by descent, real estate. They can mortgage, aliene [sic], or devise the same. They may sue, and be sued, without noticing their respective guardians.” In short, the civil laws of early South Carolina applied equally to free white women and to free women of color, from infancy to widowhood.

To illustrate this point, let me introduce you to one family tree of free persons of color in old Charleston. Leander Fairchild was born into slavery sometime in the first half of the eighteenth century. Working hard as a butcher at the east end of Tradd Street, Leander made enough money to purchase his own freedom in 1770, and then to purchase the freedom of several of his children. In 1783 he purchased a piece of land in Price’s Alley and built a house. Sometime after his death in 1791, Leander’s daughter, Nancy Ann Fairchild, inherited the property on Price’s Alley. She shared the property with her husband, a free man of color named Moses Brown, and their five children. Moses passed away in 1819, and in 1826 Nancy Ann Fairchild Brown made her own last will and testament. In that document, which was drafted and recorded by a white lawyer, Mrs. Brown divided her house and furniture between several of her children. Some years the years after her death, Mrs. Brown’s adult children began to squabble over their inheritance. It was a common scenario, caused by a parent’s well-intentioned desire that adult children should “own” separate rooms under a common roof. One of the siblings, Ann Brown Harrison, was displeased with her brother, Peter Brown, who actually lived in the family’s house in Price’s Alley. The disagreement led to an 1853 lawsuit in the South Carolina Court of Equity, which specializes in such issues. Free people of color, as you remember, had the same access to civil courts as the free white population. As a free woman of color, however, Ann Brown Harrison faced the same “disabilities,” to use an old legal term, as a free white woman. In seeking justice in Equity Court in 1853, therefore, Ann did not file suit against her brother, Peter. Rather, Ann’s husband, a free man of color named James Harrison, filed suit against his brother-in-law, in order to obtain legal clarification about his wife’s inheritance. Like most equity cases at that time, the court ordered the family property to be sold at auction so that James Harrison could receive a fair share of his wife’s inheritance. Peter Brown was the highest bidder, of course, so he had to mortgage his own share in the property in order to pay off his sister and to keep the roof over his head. The take-away from this tale is simply this: in the prejudiced eyes of South Carolina’s early laws, free women of color really did enjoy the same limited access to and protection under the civil law as free white women.

Let’s turn now to the legal status of women of Native American descent in early South Carolina. From the perspective of our early laws, these women occupied a grey area between the status of free white women and free women of color. To understand their predicament, we have to reach back more than three hundred years, to the early days of this colony, for legal clues. When European settlers first began moving into coastal South Carolina in the late 1600s, they encountered many small bands of indigenous people who treated them well and a few tribes of “hostile” natives. In the 1680s, some white colonist began enslaving the hostile Indians, in direct contradiction to the instructions from the Lords Proprietors of Carolina back in England.

Tensions between the colonists and the native population increased as the years passed, and in 1707 our government ratified a law to regulate trade with the Indians and to make such trade safer for all concerned. For our present purposes, there was one very important clause in that law to regulate the Indian trade. In 1707 our legislature explicitly recognized the perpetual freedom of all people of Native American or “Indian” descent who were “in amity” with the government of South Carolina. That is to say, the members of tribes who were friendly with, or lived in harmony with the European settlers, were considered naturally free. They were not equal citizens to the white colonists, however, but they could enjoy the same rights and protection under the law as free persons of color. Thus women of Indian descent could own property and convey it to their heirs, and they could sue and be sued, in the names of their free husbands.

Throughout the remainder of the eighteenth century, there are very few surviving records documenting any legal issues related to women of Native American ancestry in South Carolina. But then, in the early nineteenth century, there was a veritable explosion of documentation of women seeking to clarify their Indian status. Most of the surviving paperwork is found in a large collection of materials called the “Miscellaneous Records of the Secretary of State,” housed at the South Carolina Department of Archives and History in Columbia. Here you can find scores, perhaps hundreds of documents such as affidavits, depositions, and testimonials related to free women of color. In each of these short, “miscellaneous” documents, the principal issue seems to be whether or not a certain woman is in fact descended from an Indian woman “in amity with the state.” In many cases, the documents even recite a few generations of family history to make their case.

When I first encountered such records some years back, I found them interesting, but I didn’t understand their purpose. I couldn’t see the forest for the trees. As I learned more about the history of our state during the first half of the nineteenth century, I gradually came to recognize the big picture. As the population of free persons of color here increased, so too did the anti-slavery sentiment in the northern United States. The white authorities of South Carolina became increasingly defensive about the institution of slavery, and also increasingly paranoid about the exponential growth of the free colored population. In order to assuage their fears, our legislators and the white slaveholding population began to place increasing limits on the liberty of free persons of color. Manumission in South Carolina was effectively abolished by an 1820 law. Free persons of color, who had lived in harmony alongside the white population for generations, were increasingly pressured to provide robust document of their right to be free. Free colored persons without adequate paperwork were at risk of being thrown into slavery, even if their families had been free for decades. In this oppressive atmosphere, free persons of color had a secret weapon that few people remembered then, and even fewer people remember today: the 1707 law to regulate the Indian trade.

In the half-century leading up to the Civil War, few free persons of color in South Carolina had in their hands legal documentation that proved their claim to freedom. For some, their families had been free for generations, and perhaps they weren’t even sure of the exact circumstances that led to an ancestor’s manumission. Under increasing legal pressure to provide documentation, however, some turned to genealogy for their defense. Knowledge of the 1707 Indian trade law apparently circulated through the free colored population, and scores—perhaps hundreds—of FPCs informed white authorities that they had a bona-fide claim to be free because they were descended from Indian women who once lived “in amity” with the state of South Carolina. Since our law dictated that the condition of the child followed the condition of the mother, the claim of having a female Indian ancestor—no matter how far back in the past—represented a valid claim to freedom. For hundreds, perhaps thousands of people living in nineteenth century South Carolina, having a woman of Native American ancestry in your family tree was never more important or desirable.

But in the first half of the nineteenth century, our courts wouldn’t simply accept the word of free persons of color in such matters. To make their claims legally admissible, free persons of color had to get a white person to vouch for them, in the presence of a white authority like a judge or a justice of the peace. There is a treasure trove of such documents among the Miscellaneous Records of the Secretary of State in Columbia, but in the interest of time I’m going to mention just one, typical kind of example.

In March of 1806 Joseph Beiler and Frances Ramadge, two white “old inhabitants” of Charleston, swore a statement before a justice of the peace named John Hinckley Mitchell. Under oath, they swore that, to the best of their knowledge, a free woman of color named Diana Mitchell and her kin were descended from a free Indian woman named Diana Stewart. Beiler and Ramadge stated that they were “well acquainted with Diana Stewart who was to their certain knowledge a free Indian woman and lived many years in the family of Mr. John Stewart [sic, Stuart] Superintendent of Indian affairs in this City [before he left in 1775] and that the said Diana Stewart was the mother of Elizabeth Caywood who was the mother of Diana Mitchell the wife of James Mitchell [1758–1821, a founding member of the Brown Fellowship Society] of this city, carpenter, which Diana Mitchell was the mother of Elizabeth Holloway, Hagar Holman, John Mitchell, and James Howell Mitchell.” In one broad stroke of a statement, the freedom of three generations—and beyond—was assured. The legal status of native women may have been forgotten as that population gradually disappeared over the course of the eighteenth century, but the legal legacy of those women made a dramatic comeback in the early nineteenth century and for many South Carolinians proved to be a potent shield from the evils of slavery.

Over the past three episodes we’ve talked about the legal boundaries that shaped the lives of all women in early South Carolina. To illustrate my points, I’ve introduced a lot of examples of real women from our past, ranging from the early days of the colony to the middle of the nineteenth century. But I hope that you’ll agree with me that things are a lot different for women in twenty-first century South Carolina. So, in the past two centuries, how did women’s rights change so radically? The answer to this question is complicated, of course, and I’m certainly not an expert on the topic. As a means of summing up, however, I’ll give you a few of my thoughts on the matter.

Let’s begin with the Age of Enlightenment, the American Revolution, the French Revolution, and the revolutionary spirit in general in the second half of the eighteenth century. It was an age of questioning traditional assumptions, of experimentation, introspection, and the gradual decline of the ancient concept of paternalism. The Age of Enlightenment was followed by the growth of what we now call the Age of Romanticism, which gave emphasis to expressions of sentimentality and emotions, and idealized the romanticized version of family life and “female virtue.” These changes were taking place in an era when the traditional agricultural economy was slowly giving way to industrialization and urbanization. In increasingly crowded nineteenth-century cities like London, New York, and even Charleston, women became a potent force in the rise of the temperance movement that sought to stamp out the evils that usually accompanied the consumption of alcohol. In the aftermath of the American Civil War, our federal government enacted new laws and constitutional amendments that enshrined a new concept of universal “civil rights” that eventually included women. In short, over the past two hundred years South Carolina, like the rest of the United States, has witnessed a gradual recognition of the agency of women, and a gradual increase of the pro-active, legal protection of the rights of women.

Speaking of the protection of women and their rights, I want to leave you with a final, sobering thought. You may have heard that South Carolina has one of the highest, if not the highest incidence of domestic violence in the United States. We can probably ascribe a lot of that problem to our state’s record of poor education, but I believe there’s also a broader historical cause at work. Violence against women is a physical act rationalized by the cognitive objectification of women. What I mean to say is this: the men who strike out at women do so because in their own minds they are convinced that women are not their equals, that women are lesser beings over whom men have dominion. That’s an antiquated philosophy, of course, and the persistence of it here is linked to both our state’s history of poor access to education and our history of limited women’s rights. But I think there’s another component at work here as well. South Carolina’s obsession with the institution of slavery in the eighteenth and nineteenth centuries created an atmosphere of repression and paternalism, and also a widespread toleration of violence that did not exist in most other states. In light of these historical vestiges still lurking in our culture and in our laws, I believe that the citizens of twenty-first-century South Carolina must make an extra effort to ensure equal treatment for women, and in fact for all historically disenfranchised people.