RLP 385: Review of Women and the Law of Property in Early America

Nicole (1s):
This is Research Like a Pro episode : Women and the Law of Property in Early America by Marilyn Salmon. Welcome to Research Like a Pro a Genealogy Podcast about taking your research to the next level, hosted by Nicole Dyer and Diana Elder accredited genealogy professional. Diana and Nicole are the mother-daughter team at FamilyLocket.com and the authors of Research Like a Pro A Genealogist Guide. With Robin Wirthlin they also co-authored the companion volume, Research Like a Pro with DNA. Join Diana and Nicole as they discuss how to stay organized, make progress in their research and solve difficult cases.

Nicole (43s):
Let’s go. Today’s episode is sponsored by newspapers.com. Hi everyone. Welcome to Research Like a Pro.

Diana (51s):
Hi Nicole. How are you doing today?

Nicole (54s):
I’m doing well. I’ve been making some interesting discoveries. You should have seen my face when I found a tax record for someone who I thought had been dead for 20 years.

Diana (1m 6s):
I love it.

Nicole (1m 7s):
And then he showed up in tax records in the 1880s and I realized I had made an assumption that he died when he had gone on living. And I had tracked him from the 1850 census to the 1860 census. And then there was a cemetery there in Izard County, Arkansas, where he lived in 1860 with his headstone. But the headstone had no dates on it. It just said his name, Bat Balance, which was short for Bartholomew Balance and it had his wife’s headstone nearby and same style, Caroline Balance, no dates. And the other headstones of that style were probably placed in the 1910s, but I just assumed they were kind of added later.

Nicole (1m 49s):
I didn’t know. And so since I couldn’t find the couple in the 1870 census there in that county, I figured they must have died. Well, the next phase of my research that I was just doing, I had it on my plan to look at state level Arkansas tax records for Izard County since they had a courthouse fire in the 1880s. And the Reeves family didn’t have very many men survive the Civil War, but Letha Caroline Reeves, her husband Bartholomew Balance, apparently did survive and even though they weren’t located in the 1870 census as far as I could find, they were on tax records in the early 1860s, like from 1859 to 1861 and then a gap in the records.

Nicole (2m 38s):
And then he’s there in 1866 and then fast forward to 1886, he’s there again, 1887, 1889, 1891. And then I found a deed for him in 1899. So the gap in the records was challenging, not finding him in the census, but I was so surprised when I saw that tax record with his name on it because there’s nobody else in the county with the name Balance as a surname and they had no children either. So it was just very surprising to me. I thought for sure they died in the 1860s.

Diana (3m 15s):
That is such a good example of questioning our assumptions. We just sometimes get these things in our head and that is an awesome example. I also really love the name Bat Balance, which is short for Bartholomew , right? Is that right?

Nicole (3m 31s):
Yep. Short for Bartholomew.

Diana (3m 32s):
That’s such a fun name. It’s so interesting. That’s one of my favorite parts of research is coming across these unusual names back in the day. It’s so funny.

Nicole (3m 41s):
Yeah. And many of the Reeves family descendants named their children after their Uncle Bat Balance. And so I’ve seen the name Bartholomew Balance Martin and Bartholomew Balance Reeves and just, you know, at least three of Sally Keaton Reeve’s grandchildren are named after Bartholomew Balance.

Diana (4m 3s):
Which is so awesome. So easy to put that family together because that is an unusual name. And they’re all connected right when you run across them.

Nicole (4m 10s):
Yeah, with the help of DNA that really brought everyone together as far as connecting these branches of the family that just kind of got lost because of moving to Arkansas where the County courthouses burned.

Diana (4m 28s):
Yeah, Arkansas our Bane.

Nicole (4m 31s):
Favorite place.

Diana (4m 32s):
Burned County of northern Arkansas. Oh goodness. But you know what, it’s giving us so much experience in researching in burned counties, so

Nicole (4m 42s):
True that.

Diana (4m 43s):
it’s okay.

Nicole (4m 43s):
Alright, well for announcements today, the Research Like a Pro Webinar Series, we have Diana’s webinar coming up December 16th, that’s a Tuesday, at 11:00 AM Mountain Time. And she’s going to be talking about Challenging Accepted Ancestry, a New Look at Henderson Weatherford’s Family Origins. So that’ll be fun, mom, I’m excited to hear you talk about that. And it’s been great to see your progress on the Weatherford family after, you know, our original research had kind of connected him to the big Weatherford family in Dallas, and then now discovering that’s not the right family for him. So this presentation examines how careful analysis of historical records can overturn commonly accepted family connections based on surname and geographic proximity.

Nicole (5m 29s):
Henderson Weatherford’s case demonstrates an effective methodology for questioning family relationships found in online trees through systematic evaluation of tax records, census documents, land records and probate files. Learn how indirect and negative evidence can build a compelling case for new family connections. We’ll examine the role of DNA and confirming hypotheses derived from documentary research. So the topics that will be included in this webinar include Arkansas, Texas Tax Roles, negative Evidence, indirect Evidence, land Probate Census, DNA, and burned counties. So we hope you’ll join us for that on December 16th in the Research Like a Pro Webinar Series. Our next study group will be Research Like a Pro with DNA.

Nicole (6m 11s):
That begins February of 2026, so that’s next year. Registration begins December 5th. And let us know if you’d like to be a peer group leader and receive complimentary registration. We’re looking forward to that. It’s always good to try out the new tools that have come out and changed and, and things that are changing in the DNA world, especially the new custom clusters at Ancestry. We were playing with that yesterday in Office Hours, and it’s just always fun to see what new things we can discover with the tools that are coming out. RootsTech is also coming up March 5th through 7th, 2026, and we will be there in person as usual, having our booth. And also hopefully we will see you in many classes as well.

Nicole (6m 53s):
And we also have recently launched our Research Like a Pro Institute, and we are so excited to be offering our first course in that by course coordinator Jan Joyce. She’ll be teaching her popular course that she did once before at GRIP called Merging and Separating Identities: Advanced Techniques to Organize, Analyze, and Solve. And this course is so instrumental for anyone who’s struggling with challenging identities of people who maybe have changed their name over time and so you have to merge their identities, or those with multiple people of the same name, living in the same area, confusing things up and having to separate out these identities where they have the same name.

Nicole (7m 33s):
So if this has been something you’ve struggled with, then this course will be very helpful for you. It’s going to be taught from April 30th to June 11th on Thursdays. And so every Thursday from 9:00 AM to 2:30 PM Mountain Time. And you can see the full schedule on FamilyLocket. And this will be taught just like an institute course like you would see at SLIG or GRIP. But instead of being all in one week, it will be spread out over several Thursdays. So seven Thursdays. And there’s many wonderful instructors in the course, I’ll be helping with in instructing in the course, I’m teaching about using spreadsheets to help Merging and Separating Identities. And it will be a wonderful experience and it will be a little bit different.

Nicole (8m 16s):
It has a non-traditional kind of syllabus instead of a a big paper syllabus or like a digital one. There will be lots of materials and tools and handouts provided to actually help you work with a common case or your own case. So it’ll be really great, really hands-on. We’ll have several hands-on workshops. So we hope that if you’re interested in that, you’ll you’ll think about joining us in our first RLP Institute.

Diana (8m 41s):
Well, I am so excited to learn from Jan. I think it’s amazing to learn for different people because everyone has a different approach to research problems and this is such a common research problem. And I know Jan is just brilliant. So this will be really fun and exciting to have a new offering. Well, today we have a listener spotlight. This is by Kathy C6725, over on our YouTube channel. And this is all about AI and divorce case. And it was a comment on the episode we did where we talked all about the divorce case I discovered for Clemsy Cline’s daughter Isabella Weatherford in Texas, in Dallas County, Texas.

Diana (9m 26s):
So the review says, “I found a divorce case for my second great-grandmother in Noble County, Ohio. A letter gave me a hint that I should go search for something in the court records. (It’s a shame the old folks no longer can live together.) No case number. This was 1867, but what a story, all kinds of details about domestic violence and depositions of people who could not appear in person to testify. No divorce, separation with alimony. I sure could have used Claude to transcribe all the documents two years ago. The case basically boiled down to an attempt by the husband’s son to prevent my ancestor from asserting her dower right to his valuable real property.

Diana (10m 6s):
The son caused a lot of discord between my ancestor and her husband.” Well, Thank you so much for that scenario in your family. That was so fun to learn about another divorce case. And this actually is perfect for today because we are going to be talking all about women and the law. So this is a great example of when we find women in deeds, probate court records like this divorce case, we really need to find and understand the law behind the action to help us in our research. And we find those laws by looking for federal or state statutes on which the action was based.

Diana (10m 48s):
But even when we find the law, sometimes it’s difficult to interpret that and understand how it really worked in real time and if people really obeyed the law. And so Marilyn Salmon’s book Women and the Law of Property in Early America helps to fill that void. It helps us to understand more about the laws and situations we encounter. So this is a little bit of a dense book, so much good information, it’s readable, but it’s just a lot to take in. So what I recommend doing is choosing a chapter that appeals to you and then learning about the geographical location where you conduct your research.

Diana (11m 33s):
And chances are you’ll have some family, history, women, that you have researched. And as you’re reading you’ll think, oh, that is just like great-great-grandma. And you can apply what you learned to or situation, whether it’s marriage, widowhood, or divorce. Each one of these marital states had different laws and statutes that really impacted our female ancestors lives.

Nicole (11m 60s):
This book was published in 1989 by the University of North Carolina, and a description on their website summarizes the book. So I’m gonna read this description because it, it’s really helpful. “In this first comprehensive study of women’s property rights in early America, Marilyn Salmon discusses the effect of formal rules of law on women’s lives by focusing on each areas such as conveying contracts, divorce, separate estates and widows provisions. Salmon presents a full picture of women’s legal rights from 1750 to 1830. Salmon shows that the law assumes women would remain dependent and subservient after marriage. She documents the legal rights of women prior to the revolution and traces a gradual but steady extension of the ability of wives to own and control property.

Nicole (12m 48s):
During the decades following the revolution. The forces of change in colonial and early national laws were various, but Salmon believes ideological considerations were just as important as economic ones. Women did not all fare equally under the law. In this illuminating survey of the jurisdictions of Connecticut, Massachusetts, New York, Pennsylvania, Maryland, Virginia, and South Carolina, Salmon shows regional variations in the law that affected women’s autonomous control over property. She demonstrates the importance of understanding the effects of formal law on women’s lives in order to analyze the wider social context of women’s experience for an idea of the breadth of material Salmon studied for her book the Bibliography has numerous titles under each heading.”

Nicole (13m 35s):
So this is such a great description of the book and it’s really helpful to kind of get this overview of the ideas that are going to be presented in the book. So now that I’m done reading that description, let’s go over the heading titles: manuscript sources, case reports, legal treatises, abridgement and digests, statutes, and books and articles. So the bibliography is really extensive and it’s great that they’re broken out into different types of sources. The book is fascinating, but it does require full attention.

Nicole (14m 15s):
So like you said, you read just a few pages at a time so you could really absorb all of the dense information. And I love that you also used your highlighter to annotate and pull things out, the key points and things as you were reading. It reminds me of getting through all the dense textbooks in college in my history degree, and it’s just hard to get through everything unless you have something to do while you’re reading, like highlighting, annotating, making notes, doing something. But it does help you to digest it.

Diana (14m 45s):
Oh, absolutely. Because as you’re reading a paragraph, you know, I was thinking, okay, what is the key point here? What’s the topic sentence? You know, what, what are things I don’t wanna forget? And I would highlight those and I’ve learned that that is just so important for these kinds of books. And to have it on your shelf, I think once you’ve read it, then you know that it’s there when you need to pull it out again. Of course, you’re not going to remember everything that you read, but it’s there in your brain somewhere and you can pull the book out and just know that you have a source. Well, let’s learn a little bit about the author Marilyn Salmon. In the Acknowledgement section at the beginning she thanks the many people who read sections of the book and provided feedback.

Diana (15m 30s):
And I love that. In work like this with so many regions, so much information, it would be so amazing to have feedback. She states that much of the book is taken from her PhD dissertation, and she also presented a portion to fellow historians at various seminars and published excerpts in journals such as the William and Mary Quarterly. So if you want to just read a little bit of her work, there are some articles online. And the blog post that goes with this podcast has links to those. There’s one titled, “The Legal Status of Women 1776 to 1830”, and another one titled, “The Legal Status of Women in Early America, A Reappraisal”.

Diana (16m 11s):
And if you wanna see a complete list of all of her work, which is just extensive, there is a link there to her profile on Google Scholar. Well, let’s just get into the book and talk a little bit about the different chapters and what what we can learn in the preface. In chapter one, the author lays out her concerns about women’s legal history. She elaborates on each and explains that to understand women in the law, we need to understand the law and then see how it was applied through actual cases. So first, we want to know and understand how the law functioned in practice as well as in theory, because we want to know how the legal roles affected women’s day-to-day lives.

Diana (16m 58s):
And then second, historians of women’s legal status are centrally concerned with understanding the meaning of change over time. And the third concern is probably the most important of all to the field, and that is how the working of the law in practice is, as well as in the meaning of change over time, affects how we are looking at records. I was really fascinated with this whole idea of how maybe there was the law, but they didn’t really practice it in, in theory, this was the way it was supposed to work. But because of regional differences or the culture, they would kind of interpret the law as they wanted to, which I had never considered that before.

Diana (17m 45s):
I thought that was fascinating. The other thing that was so interesting was how it was different in different locations. So she focuses on the years 1750 to 1830 and gives us examples of how the law affected women before and after the American Revolution. And she also studied a sampling of regions. So she has examples from New England, New York, Pennsylvania, Virginia, and South Carolina throughout the book. So for each topic she will discuss in terms of those regions. And I thought it was fascinating how different things were. I think too often in the past, I have really generalized, you know, like the law of dower, this is how it always worked.

Diana (18m 33s):
But when we read the chapter on dower, I realized, oh, some places it was a little different, it had some different nuances. So that is why I would really recommend focusing in on the location that’s most like the one you’re researching. So I was really interested, for example, in Virginia and South Carolina because a lot of my research is in the south, and those seem to be more applicable to me than say cases out of New England. But you know, we all have, we have colonial ancestry, they’re gonna go back to any of those main regions. So chapter one is called “Diversity in American Law”. And this is just a good example of assumptions.

Diana (19m 15s):
Before reading the book, I thought that this English common law that the British colonists brought with them was standard. You know, I’d always talk about English common law, but there was also diversity in how England used the law and how it changed when they came to the colonies. Because in the colonies, you know, people maybe had some different ideas and they would use the English common law as their basis, but would tweak things as they decided they needed to.

Nicole (19m 45s):
Yeah, it is interesting how the different parts of the colonies developed differently, and a lot of it had to do with their geography and also the types of people that went to each colony. And ultimately the differences led to the Civil War. But it is interesting to see how it affected women in the law as well. All right, let’s have a word from our Sponsor. The air is getting crisp, and for many of us that means a little extra time to dive into our family history. As Genealogists, we spend years building our family trees. But what if you could do more than just connect the dots? What if you could bring in those names on your tree to life? This is where Newspapers.com comes in. Imagine reading your great-grandparents’ wedding announcement, finding an article about your ancestors’ business, or even seeing a photo of the house where your grandma grew up.

Nicole (20m 32s):
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Nicole (21m 13s):
Well, because the colonists also had their own ideas about how women and property should be handled, each unique area developed different statutes and precedents. For example, New England jurists operated on the ideal that a couple should be unified and therefore a woman should never need any special rights regarding land. Her husband, as an upstanding citizen and spouse, would handle all their affairs properly. Of course, this approach didn’t work out well when the man of the house was dishonest, deeply in debt, or deserted his wife among other issues. On the other hand, in South Carolina, mortality rates for men were high and women needed more rights regarding the land to keep the plantation running.

Nicole (21m 55s):
The unique southern economy based on slavery dictated the interpretation of the common law handling of land and women. And the book covers several different aspects of the law of property and women. So each chapter discusses how each topic was handled in the different jurisdictions using specific case studies. So chapter two is Conveyances, three is Contracts, four is Divorce and Separation, five is Separate Estates, six is Separate Estates in New England, seven is Provision for Widows. So organizing The book by subject and then discussing each jurisdiction in turn allows the reader to become immersed in the subject.

Nicole (22m 35s):
So we’re going to now look briefly at each chapter and an example of how some of the jurisdictions handled each situation.

Diana (22m 45s):
Okay, so let’s start with conveyances. And under the common law, once a woman married, she and her husband were one, and she became a feme covert. So she could no longer sell property in her own right, even if she brought the property into the marriage and said her husband took care of all such matters. So in an ideal world, this would be just fine. But the colonists recognized that in many instances a woman needed some say in selling property that supposedly they jointly owned. Thus, we see in many deeds a wife giving her consent to the sale of the land. Women were to be privately examined to ensure no coercion by the husband in giving her consent.

Diana (23m 29s):
And each jurisdiction handled this differently. But in the south, Salmon asserts that the three southern colonies studied of Maryland, Virginia, and South Carolina, they enforced it strictly. So I thought that was really interesting because that is something we do see a lot in our land records, the wife having to give consent. So another example is in contracts, and as a feme covert, a wife couldn’t enter into a business contract or own or operate businesses in their own name. This became a problem if the husband was away for extended periods of time or if he was not capable of providing for the family.

Diana (24m 14s):
Recognizing the issue, some jurisdictions enacted statutes that allowed a married woman to become a feme sole trader. And in the book, Salmon states that, “an act concerning feme sole traders enacted by the general assembly of Pennsylvania in 1718 provided that the wives of Mariners and others whose circumstances as well as vocations obliged them to go to sea, could act as feme sole traders during their husband’s natural lives”. So even if a woman had a great little business going, she got married in some locations, she could not operate it in her own name. It’s just so hard for us to even imagine a world where you were just under so much restriction but I thought it was super fascinating that they recognized that women had to keep the economy going if those men were gone.

Diana (25m 4s):
So they made made provision for that.

Nicole (25m 7s):
Right. Yeah, and another area the book covers is divorce and separation. And so during the colonial era, opinions on laws on divorce and separation varied widely among the different jurisdictions that were studied. But after the Revolution, many states quickly enacted laws and statutes that allowed for divorce. Because a man married, because a married woman was unable to act on her own behalf regarding property, if a husband deserted her, she faced many challenges. If she wanted to sell their land and moved on, she was hampered. Also, in cases of abuse, adultery, or other situations, women needed a legal way to separate from their husbands.

Nicole (25m 51s):
Salmon states, “In 1786, Massachusetts lawmakers formalized grounds for the first time. Absolute divorces were obtainable for adultery, impotence, and criminal conviction carrying a prison sentence of seven years. Husbands and wives could obtain separations for desertion and wives could obtain them for non-support.” Now, another area discussed in the book is separate estates in England. Separate estates were used to legally allow women to own and control property separate from their husbands. This was an exception to the rule and was generally used for the landed class. Marriage settlements were important when a wife brought property into a marriage from an inheritance or previous marriage.

Nicole (26m 34s):
That property needed protection in the case of creditors seeking to settle debts with the insolvent husband. Salmon states, “the usual goals in settling property on a woman were to prevent it from being taken to pay the debts of of her husband, and to provide her with support for understandable reasons. Creditors disliked trust estates, particularly those made after marriage. So Chancery Courts handled these kinds of issues.” And in the Colonies that Salmon studied, only New York, Maryland, Virginia, and South Carolina created these Courts of Chancery. And as a side note, Virginia’s Chancery Court records are really interesting, and I’ve looked up a few different names that I’ve researched before in those chancery records that have been digitized at the Library of Virginia and it’s so fascinating to see the types of disputes that people were having.

Diana (27m 25s):
Absolutely. And this problem of debt comes up over and over throughout the book because the economy was really based on debt. There was not a lot of, you know, cash flowing, and it was more just the idea of giving promissory notes and you know, those would add up. And people of course wanted to collect on those. And so debt was a huge issue. And these creditors, you know, wanted to make sure they could get their money and they didn’t wanna have a woman’s rights influencing there, which is just kind of interesting. Now, there’s a whole separate chapter on separate estates in New England because it was a little bit different.

Diana (28m 7s):
Connecticut and Massachusetts did not create those separate courts of chancery to deal with trust estates. This was really because they had those Puritan ideals that governed much of the colonial attitudes, and it was an ideal that was opposed to women having control over property. Both of the colonies and then later states approached the issue differently and the book devotes some space to the discussion. The very idea of separate properties spoke to a corruption of family life that Puritan leaders feared and sought to suppress. Although individuals still occasionally relied on marriage settlements to define the respective rights of wives and husbands, lawmakers never acknowledged the practice by assigning jurisdiction to the courts.

Diana (28m 56s):
While I was fascinated with this idea of the Puritan ideal and how everything was supposed to be perfect, so women needed no rights. But as we know, people are not perfect, so we are learning. Well, there’s also a chapter on Provision for Widows, and this is something that we run into a lot in our research. We frequently encounter a woman releasing her dower rights in deeds under the English common law, a widow had the right to one third of the real property owned by her husband during their marriage. So this was real estate, land. If there were no children to inherit, the widow could claim up to one half of the property.

Diana (29m 38s):
A man could write a will giving his wife more than what the law required, but he could not give her less. And the widow was to have a life interest in the land, but she could not sell or devise it. She was to benefit from the rents and profits of the land. Well, the colonies adopted this common law of dower that came from England, but of course, differences arose in how it was actually enforced in the colonies and states where the land was valuable to the economy, dower was seen by some juris as detrimental. Laws evolved differently in the various jurisdiction and Salmon discusses each of those studied in turn.

Diana (30m 20s):
For example, in Virginia, enslaved people as property had to be defined. So again, we would want to study chapters that apply to our research and in the location most like our research.

Nicole (30m 34s):
So how can we, as family historians, use all of this excellent information in Marilyn Salmon’s book? Well, we’d recommend purchasing a copy and then referring to it whenever you come across a record involving your female ancestor and property or court records, whether it’s real or personal property. If Salmon discusses your Colony or state, then you’ll gain a lot of new insights into the record. But what if your jurisdiction isn’t mentioned? We recommend reviewing the sections on a neighboring jurisdiction and then go look for the laws governing your ancestors’ actions in their state. Finding and understanding the law that affected them can be difficult. But women and the law by Marilyn Salmon provides a good guide to enhance our understanding.

Nicole (31m 17s):
So it’s a good place to get started and can really help you make progress toward the answers that you need.

Diana (31m 26s):
Right, I think it opened my eyes to this idea that everything was not the same across the colonies. For some reason, I thought that they all followed the English common law perfectly, And it was all administered the same, but it really opened my eyes and she uses all sorts of interesting cases. There’s examples in each chapter, and they are so fascinating. Another thing that I would recommend is if you have a location, so let’s say I have Georgia and I have some interesting females there with divorce and property, different things I would like to know. You know, is this close enough to South Carolina that this would be interpreted the same?

Diana (32m 8s):
I think it would be very close, but also what you can do is go study more of the cases within that jurisdiction. So within Georgia, I could go look at more divorce records, I could look at more women in land and see if this is, you know, if they’re kind of developing their own way of interpreting the law in this specific location. So we have access to all sorts of records. We can certainly read other records. They’re not our ancestors to see if our ancestors is unique or if that’s just the way it was being handled in that location. It makes us do a little bit more work, but it’s going to really give us a better understanding of what was going on in our ancestors’ life.

Nicole (32m 53s):
So true.

Diana (32m 54s):
So well, we are wrapping up this episode and we hope we’ve given you a little bit of taste of this excellent book and if nothing else you can go read a couple of the articles that are just available online, but hopefully you’ll understand a little bit more now about how the law affected the women and how it was different in the different areas in the US. So thanks everybody for listening, and we’ll talk to you next time.

Nicole (33m 19s):
Bye-bye.

Diana (33m 20s):
Bye-bye.

Nicole (33m 20s):
Thank you for listening. We hope that something you heard today will help you make progress in your research. If you want to learn more, purchase our books, Research Like a Pro and Research Like a Pro with DNA on Amazon.com and other booksellers. You can also register for our online courses or study groups of the same names. Learn more at FamilyLocket.com/services. To share your progress and ask questions, join our private Facebook group by sending us your book receipt or joining our courses to get updates in your email inbox each Monday, subscribe to our newsletter at FamilyLocket.com/newsletter. Please subscribe, rate and review our podcast. We read each review and are so thankful for them. We hope you’ll start now to Research Like a Pro.