2.3.5. The Mid-Atlantic States (1825-1865): Antebellum Social Reforms

Homestead laws and debtors’ prison:

  • The common law allowed all of a person’s assets to be seized in order to pay debts, even basic items which the debtor needed to survive.  Debtors who did not pay could be imprisoned until they paid their debts.
  • In the early 1800s, reformers began to realize that debtors could not pay their debts if they were imprisoned and were denied items essential to survival.  Imprisonment for debt gradually died out, and the mid-Atlantic states gradually abolished it in the 1830s and 1840s.
  • Beginning in the 1840s, many states , including the mid-Atlantic states, began enacting homestead laws exempting debtors’ work tools, furniture and homesteads (or a sum of money needed for shelter) from the reach of creditors. 

The early women’s rights revolution:

  • Prior to the 1830s, the law treated married women as mere appendages of their husbands.  Husbands legally controlled all of their wives’ property, including wages and business assets.  Women were not allowed to vote, serve on juries, or even to make wills.
  • Starting in the 1830s, reformers argued that married women should have the right to control property they brought to the marriage.  Most reformers cared little about empowering women; rather, they wanted to give families a crude safety net by sheltering wives’ assets from the creditors of husbands who had bankrupted themselves through alcohol or bad luck.  The married women’s property movement gained traction when New York incorporated a women’s property rights provision into its 1846 constitution.
  • In 1848, Lucretia Mott of Philadelphia and Elizabeth Cady Stanton of Seneca Falls, New York organized a women's rights convention which issued a widely-publicized Declaration of Sentiments favoring equality of political and economic power for men and women.  The Seneca Falls Convention is widely regarded as the beginning of the national women's rights movement in America.


Married women’s property law enacted

Homestead law enacted

Imprisonment for debt abolished

New York




New Jersey








“[T]he principle of the common law [is that] the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended during the continuance of the matrimonial union. … [D]uring the more polished ages of Roman jurisprudence, … the wife was admitted to the benefit of a liberal ante-nuptial contract, by which her private property was secured to her, and a more reasonable equality of condition between the husband and wife introduced. … , Whatever doubts may arise in the mind of a person educated in the school of the common law as to the wisdom … [of] the civil law; yet, it cannot be denied, that the pre-eminence of [nations that have adopted the civil law]  … is most strikingly displayed in the equality and dignity which their institutions confer upon the female character.”
– James Kent, Commentaries on American Law 

Marital trusts, an early instrument of women’s rights:

White v. Hart – Pennsylvania, 1793 (1 Yeates 221); Trustees of Methodist Episcopal Church v. Jaques – New York, 1817-20 (3 Johns. Ch. 77, 17 Johns. 548); Lancaster v. Dolan – Pennsylvania, 1829 (1 Rawle 231)

  • American colonies and states followed the common-law rule that husbands owned the property their wives brought to the marriage – but Americans made extensive use of trusts before marriage, which placed a wife’s property in the hands of a trustee in order to keep it out of the husband’s hands.  State courts reacted such trusts in different ways.
  • In White, Pennsylvania became one of the first states to hold that wives could make premarital agreements directly with their husbands in order to keep their property, and that they need not act through trustees. 
  • In Jaques, a widow with extensive New York City property holdings wished to give her new husband complete control against her trustee’s advice, Chancellor Kent held that she could not do so because the trust placed control in the hands of the trustee, not her husband.  Several years later, New York’s Court of Errors overruled Kent:  It held (with some reluctance) that English law, which allowed wives to dispose of their separate property freely, should be followed. 
  • In Lancaster, Pennsylvania’s highest court sided with Kent.  Chief Justice John Gibson pointed out that as a practical matter, allowing a wife to override the trustee’s wishes would make her vulnerable to pressure from her husband and thus give her less ability to preserve her property, not more.  

New York City debtor's prison (built 1758) - courtesy New York Public Library

Elizabeth Cady Stanton (1848) - courtesy Wikipedia

Cartoon satirizing modern marriage (New York, 1852) - courtesy New York Public LIbrary

“Here was a fair and lawful agreement between them [husband and wife] … Why should she not have a right in equity, of disposing of her lands, as incident to her ownership?” – Chief Justice Thomas McKean, in White

“These very settlements are intended to protect her weakness against her husband’s power, and her maintenance against his dissipation.  It is a protection which this Court allows her to assume … and it ought not to be rendered illusory.” – Chancellor James Kent, in Jaques

“There is an unbroken current of decisions, that a feme covert, with respect to her separate estate, is to be regarded in a court of equity as a feme sole, and may dispose of her property without the consent or concurrence of her trustee … [But] the rules of the common law, which give to the husband all the wife’s personal property … are better calculated, in my judgment, to secure domestic tranquility and happiness, … [T]he possession by the wife of property, independent of and beyond the control of the husband, would be likely to produce perpetual feuds and contention.” – Chief Justice Ambrose Spencer, in Jaques