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E. D. E. N. Southworth’s Reimagining of the Married Women’s Property Reforms Elizabeth Stockton Throughout her storied and prolific fiction-writing career, E. D. E. N. Southworth expressed deep skepticism about the legal system’s ability to produce justice, particularly for women. Critics often point to her notoriously difficult marriage as a likely source of this skepticism.1 Her husband, Frederick, abandoned her and their two children in 1844 in order to chase fortune in the Brazilian gold rush—only to return later to seek copyright of his wife’s popular novels.2 Southworth’s experiences dealing with her prodigal husband, as well as her male editors, provided her with extensive knowledge of several important nineteenth-century legal issues, including married women’s property laws, copyright statutes, and the complicated labyrinth of divorce procedures. Her insights into and concerns about the legal system appear in plots and subplots in much of her fiction. Although I have found no evidence that she ever entered a courtroom, she was unquestionably familiar with America’s legal institutions and, given her particular marital situation, would have experienced a good deal of frustration over women’s subordinate legal position. Considering her marriage, it is perhaps unsurprising that Southworth’s novels present a seemingly endless series of troubled unions. However, it is somewhat puzzling that she routinely eschewed discussions of divorce in her fiction. Melissa Homestead has uncovered archival evidence that Southworth at one point did seek legal counsel about procuring a divorce from Frederick.3 She ultimately decided against it, and she remained “Mrs. Southworth” for the rest of her life. Although she might have decided to retain her title as a married woman in order to appear more conventional and acceptable to her readers, it is notable that her novels also reject divorce. Like the legal theorists of her time, Southworth seems to have consistently resisted viewing marriage as a contract, expressing anxiety about being able to sever the matrimonial bond too easily. As such, her novels support the prevailing belief that marriage was a unique arrangement—distinct from other contracts. 244 Elizabeth Stockton Critics who have examined Southworth’s views on marriage law focus on her complaint that wives were barred from owning separate property. For example, Joyce Warren emphasizes “the importance of [women’s] economic independence” as a central theme in Southworth’s work.4 Similarly, Barbara Bardes and Suzanne Gossett claim that “Southworth believes that protecting inheritance through the female will maintain family estates and social stability.”5 These views present Southworth as almost exclusively disapproving of or disappointed by masculine legal institutions. It may seem, then, that she did not present divorce as a solution for women because she did not have faith that the legal system would ever afford women their just desserts. Bardes and Gossett go on to argue that, regardless of married woman’s property reforms, Southworth “contends that no law can sufficiently protect women from threat or coercion by the men in their lives.”6 These analyses rightfully highlight Southworth’s disappointment with the rules of coverture inherited from Britain, which continued to influence marriage law in the United States during the early decades of the nineteenth century. Indeed, Southworth’s novels stage a critique of the dominant antebellum legal philosophy that claimed that a husband—as the stronger, wiser party—would provide all of the security that a wife could need. Many of Southworth’s novels, most notably The Discarded Daughter and The Deserted Wife, seem to draw their material directly from the prevailing debates over married woman’s property rights in the 1840s and 1850s. This criticism, however, has failed to fully explore the complicated evolution of nineteenth-century U.S. marriage law. It tends to depict married women’s legal transformation as following a linear progression in which women moved from being “covered” by their husbands, whose legal identity subsumed theirs, to full independence and legal equality. In other words, these critics subscribe to the view that marriage transitioned “from status to contract” over the course of the nineteenth century. This conception ignores the fact that even after the initial wave of married women’s property reform (from about 1820 to 1860), legal practitioners continued to view marriage as a status relationship; rather than change the legal construction of marriage entirely, they shifted the ways they presented wives’ legal inferiority. Southworth—at least in her fiction—followed suit. While recognizing the myriad ways that husbands can disappoint and even endanger women...


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