A woman’s business. Part 2: To honour thy husband’s debts

'Something Wrong Somewhere, Grocer and Wife' (1868) by Charles Green

The majority of women who married in late eighteenth and nineteenth century Britain did not get to live out the idealized role of the Angel in the House from Coventry Patmore’s 1854 poem. Women of the working class were of course no strangers to labour but women of the middle class could also find themselves help-meets or engaged in business directly, in their own right. [I did intend this to be a shorter blog post but I find it just too interesting!]

Before, delving deeper into the story of these married women of enterprise, it is useful to reflect that the British middle class of the nineteenth century was a very broad social group in terms of incomes and occupations. Tradesmen and tradeswomen, the shopkeepers of the high street, were middle class and yet clearly had very economically active households. Trade was often held up as being a suitable territory for unsupported women, albeit some trades were seen as more respectable than others.

However, the position of wives under common law is often held up as evidence of the impracticality of married women engaging in trade. As a ‘femme covert’, a married woman’s property, alongside herself, came under the protection and influence of her husband. As Sir William Blackstone, author of Commentaries on the Laws of England wrote:

“By marriage the husband and wife are one person in the law: that is, 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.”

However, according to a treatise by Roper, there were four main ways that a married woman could trade and contract with others in her own right. Firstly, coverture could be suspended by a husband’s absence. If he had been exiled, transported or had left the country for life, his wife was free to act as a single woman. This could however be undone by his pardon or return. The suspension of coverture did not apply to foreign husbands residing abroad by choice unless they were regarded as an ‘alien enemy’. Secondly, the custom of London could treat a married woman as a feme sole for trading purposes. Thirdly, a woman could secure agreement with her husband before or during marriage. Finally, she could operate on the basis of possessing equitable separate property.

Lets pick up this latter point because it’s been the subject of some interesting research. Developed over the centuries to correct injustices and omissions of the common law, the equity courts had come to recognise a wife’s right to property separate from her husband. By prenuptial agreements, ‘marriage settlements’, a woman or her family and friends could designate certain property as being her ‘separate estate’, free from her husband’s common law rights of possession or control. The trustee was obliged to carry out the terms of the settlement or, in the absence of specific terms, to deal with the property according to the instructions of the married woman. Thus, a married woman with a separate estate in equity enjoyed virtually the same property rights as an unmarried woman! This isn’t the story commonly told, so I find this an interesting finding. Such a woman could receive the income from her settled property and spend it as she pleased.  She could make her separate property liable for debts that she incurred, and she could sue and be sued with respect to her separate property in the courts of equity.

Critics have been quick to point out that the prospect of a ‘separate estate’ in equity was open only to the wealthiest women. However, Amy Erickson has discovered that ordinary women also circumvented the more incapacitating aspects of coveture by means of marriage settlements of a simpler type. This had not previously been recognised by historians because the documents themselves – usually simple bonds – have not survived. However, the shadow of these settlements can be seen in probate accounts. These records offer a snapshot of an estate a year after all the debts of the deceased had been settled. The executor or administrator of a will was required by ecclesiastical law to file an account of their handling of the estate. It is possible to discern where a widow, filing her husband’s estate, has deducted the amount of money for which she (or technically her sureties) had contracted before marriage. Erickson’s examination of a sample of these probate accounts indicates that, at the very least, ten per cent of ordinary women employed pre-marital property settlements. that’s pretty significant.

While we’re on a roll, a further caveat to the common law can be found in ‘borough custom’. These local regulations often made provision for married women to own property for the purpose of trade if her husband agreed to it. If so, he forfeited his legal right to his wife’s business assets. This converted the wife of a freeman from the status of ‘feme covert’ into ‘feme sole merchant’ with the legal rights of an independent trader. However, such local customs could work in favour of businesswomen or against them. Their application was uneven.

Now it would be lovely to leave this bit of herstory on such a high but with such a complications of law and customs there could only be real life unfairness and injustice worthy of the finest novel. Such is the tale of Mary Holl who set up as a milliner with her friend Ann Turner in the late eighteenth century. Mary financed her entry into business with 250 guineas from her separate estate and £340 loaned to her by her husband, Joseph. She soon bought out her partner and was doing well enough by the end of the year to claim 60 guineas in net profit. She ran her business as a femme sole, separate and distinct from her husband. However, a couple of years later Mary’s business began to fall on hard times and her husband, also in business, went bankrupt. Mary tendered a bill of sale for her stock in trade and effects to her principal creditor, Mr Clement, assuming she would be able to continue running the business. However, Mr Clement reached a separate accommodation with the assignees on Joseph’s bankrupt commission and turned the bill of sale over to them. Mary’s other creditors, who had not been included in this deal, became very agitated. They pointed out that as Mary had financed the business out of her own separate estate that they should be paid in full before Joseph’s creditors. However the latter were not inclined to honour Mary’s claim that she was running a separate trade. The dispute degenerated into a free for all in which both sets of creditors tried to seize as much of Mary’s stock as possible. Mary pleaded:

“Alas, alas, why wou’d you not put some confidence in me, your not doing so has undone both you and my self, you I fear, in the loss of your debt, or a great part of it, and me in the everlasting anguish of mind, in not fulfilling my engagements, so very separate from Mr.Holl, that many of my Creditors did not even know I was a married woman, and it was upon my Industry and the punctuality of my payments, that my Credit was founded.”

Quoted in M.Hunt, The Middling Sort (1996)

Given that she was a femme sole, she should only have been liable for the £340 originally put into the business by her husband, Joseph. In this case however, the category of femme sole, proved too weak to protect her property. Hence, it is true that there was a way in which the whole conception of property was gendered. Husbands were barred under the femme sole rules from helping their wives with their trades on pain of becoming liable for the debts, yet they continued under common law to have the right of disposition of their wives’ profits. Femme sole rules ensured that husbands could receive gain from their wives’ trading activities without having to shoulder either the labour or the financial risk. But even when husbands refrained from taking their wives’ profits, the expectation was that a woman’s earnings would go to family expenses. A man, on the other hand, had considerably more latitude to plough his profits back into his own business.

Some further reading for anyone pursuing research on this theme:

A. Kay, The Foundations of Female Entrepreneurship: Enterprise, home and household in London c.1800-1870 (2009)

L. Holcombe, ‘Victorian wives and property. Reform of the married women’s property law, 1857-1882’, in M. Vicinus (ed.) A Widening Sphere. Changing Roles of Victorian Women, London, 1990, p.7.

A. Erickson, Women and Property in Early Modern England, London (1993)

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2 Responses to A woman’s business. Part 2: To honour thy husband’s debts

  1. This is such a fascinating pair of posts! Thank you so much for writing them – as someone who writes books set in the eighteenth century I always try to bear in mind the more prosaic legal background to the romances of my characters so I found this really interesting! :)

  2. Fascinating! I’m knee deep researching 2 of the women silversmiths of the late 1700s, (a rubbed makers mark is driving me mad). It’s wonderful how these enterprising women took on often failing business and made them thrive.

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