“Whatever ... His Misconduct in Conjugal Relations”: Upholding Abusive Husbands’ Property Claims in Antebellum South Carolina

The foundation of Anglo-American marriage law was coverture—the legal fiction that wives’ legal identities were “covered” by their husbands’, including ownership of any property women brought to marriage. Some states, including South Carolina, provided a limited loophole, based on the English precedent of equity jurisprudence. Women could create separate estates that allowed husbands the use and profits of property held in trust, without the ability to sell it. While intended to protect women’s property from reckless or unlucky husbands, I argue that judges upheld men’s patriarchal prerogative to gain access to property by marriage even when they failed as husbands.

Judges revealed these priorities in cases where women with marriage settlements sought separations from abusive husbands. In one case, when wealthy South Carolina widow Marion Singleton Deveaux Converse sought a legal separation and to regain her property, the judges upheld her husband’s claim to a quarter of the rents from one plantation, as outlined in her marriage settlement, and granted him half the income from another. Despite his “misconduct in conjugal relations,” the judges felt it proper to avoid “unnecessarily impoverishing him.” About a decade earlier, Henrietta Schmidt O’Bannon received a similar ruling when she sought to recover her property from a joint settlement with her adulterous, violent, and bankrupt husband. The justices decided that because the trust was for joint use, her husband was entitled to an equal share. Knowing that share would pass to his creditors, the justices essentially privileged the claims of creditors over those of wives. Judges ensured that the apparent protections of separate estates were curtailed to preserve the patriarchal privileges they seemed to undermine. Women’s claims to marital property were limited and rooted in dependence, while men’s access to their wives’ assets was “the consideration due to him as the head of the family.”