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Fisher v Allen

Fisher v Allen—MissErr & Appeal, 3 Miss 611, 2 HowMiss 611-Const.Law 93(1); Indians 3
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Ancient Chickasaw domain

Ancient Chickasaw domain. Map from Arrell M. Gibson’s The Chickasaw, 1971

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Mississippi Governor Alexander G. McNutt

Mississippi Governor Alexander G. McNutt signed the Married Women’s Property Act in February 1839. Photo courtesy Mississippi Department of Archives and History

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Feature Story

Betsy Love and the Mississippi Married Women's Property Act of 1839

While other American Indian women such as Pocahontas and Sacajawea have been afforded mythic stature in the annals of American history because they were seen as the benefactors of men, Chickasaw Indian Betsy Love remains largely unknown, even in the state of Mississippi.

Love played the formative role in establishing the principle that married women could own their own property and that it could not be seized by their husbands or their husbands' creditors. The landmark Married Women's Property Act of 1839 in Mississippi can, thus, be traced directly to her and the lawsuit, Fisher v. Allen , in which her rights to keep her property after marriage were defended. The "property" in question was an African-American slave named Toney who Betsy Love had given to her infant daughter as a gift.

A case for Love

Elizabeth "Betsy" Love was born sometime in the late 1780s in a section of the Chickasaw Nation in what is now the state of Mississippi. She was a daughter of Thomas Love and Sally Colbert. Both the Love and the Colbert families were bi-cultural Chickasaw families who owned slaves. Betsy Love married the white man James Allen (mistakenly referred to in some historical documents and histories as John Allen), a native of North Carolina in a Chickasaw ceremony in 1797 or 1798. She was his second wife, and the mother of eleven children. They all resided on the Love family's Chickasaw land.

Love's life took a significant turn when a lawyer named John Fisher sued her husband in March 1831 in Monroe County Circuit Court for two hundred dollars in a default judgment. Fisher had represented James Allen in an earlier lawsuit and Allen had failed to pay him for that work. To recover the debt, Fisher ordered the county sheriff to seize any James Allen property and to sell it at public auction to satisfy Allen's debt to Fisher. The sheriff seized the slave Toney. Fisher and the sheriff thought that Toney belonged to James Allen because at the time of his marriage to Love she owned many slaves. Under English law and later American and Mississippi law, any property belonging to a woman prior to her marriage became her husband's at the time of marriage, a concept called coverture.

The Fisher v. Allen lawsuit apparently changed all that. The attorney for the Allens argued in the appeal that, contrary to American and Mississippi law, usage and customs of the Chickasaw Indians were such that a husband and wife held property separate and that each contracted debts on their own. Among many American Indian tribes in the southeast, including the Chickasaws and Choctaws of Mississippi, a woman retained ownership of all property that she brought into a marriage, whether it was land, slaves, or personal items, and each spouse entered into business contracts and debts on their own.

Unfortunately, Love left no diaries (none have been discovered thus far) and the transcripts of the original trial before it was appealed are misplaced or lost. All the direct evidence that accounts for Betsy Love's life are the words of two white justices, William L. Sharkey and Cotesworth P. Smith, who ruled on Fisher v. Allen, the case of her husband being sued by John Fisher.

A case for revision

In 1944 one scholar, Elizabeth Gasper Brown, wrote about the Mississippi Women's Property Act of 1839, but managed to place the credit for championing women property rights squarely on the shoulders of a woman named Mrs. T.B.J. Hadley, who owned a boarding house in Jackson, Mississippi. Her article in the Michigan Law Review stated that Mrs. Hadley (formerly Piety Smith) must have envied Louisiana civil law and decided to move to Mississippi sometime before 1839, marry a state senator, and open a boarding house and begin serving coffee to pliable senators of the day in order to help change the laws in favor of women's rights. Brown wrote: "The full story of the passage of the Mississippi statute is unknown, but tradition says that sometime prior to 1839 a Mississippi woman, living in Louisiana and while there noted with considerable envy the position of married women under civil law. She was not only envious but impressed and made up her mind to see what she could do about remedying the situation under common law which deprived married women of any rights in their property. Subsequently returning to Mississippi, she opened a boarding house in Jackson, the state capital."

Brown did conclude her article with: "At the least, it is a hypothesis worthy of consideration that from Chickasaw custom was derived the first law giving a married woman in a common law state any rights in her own property, and in many ways this hypothesis has more foundation in fact than Mrs. Hadley's alleged Louisiana experience."

There is no evidence that Mrs. Hadley pushed for women's property rights in Mississippi in 1839, as Brown thought. Where are the petitions she could have had signed by her peers? Where are the advertisements Mrs. Hadley could have taken out in the newspaper calling for equality of married women's property rights? They do not exist. There is one cartoon in a newspaper about her serving short rations if legislators didn't vote as she wanted, but that proves nothing about this specific legislation.

What is factual is that her husband, Mississippi Senator T.B. J. Hadley, introduced two bills in 1839, one for the protection and preservation of the rights and property of married women, and the other for his own protection from his creditors. The latter was passed without a hitch, but the Married Women's Property Bill was voted down several times before it was finally passed on February 15, 1839, and signed by Governor Alexander G. McNutt the following day.

What is also true is that Senator Hadley, as well as the other state legislators, would have known about the 1837 Fisher v. Allen case and the precedent it established in the Mississippi High Court of Errors and Appeals. Any Mississippi lawmaker could have reasoned that if an Indian woman could circumvent her husband's creditors by claiming that property belonging to the wife under Indian customs is not liable to the debts of her husband, white women ought to be able to do the same. Moreover, according to some sources, Mrs. Hadley's brother was Benjamin Fort Smith, a U.S. agent to the Chickasaws from 1823 to 1829; so even if Senator Hadley's wife did push for the Married Women's Property Act, she may have done so based on what she had learned of Chickasaw customs about the rights of women.

Most states followed Mississippi's example of women's property rights. Michigan and Maine passed similar laws in 1844. Texas passed its law in 1846, New York in 1848. And England recognized women's property rights by an Act of Parliament in 1870. As Mississippi historian J.F.H. Claiborne observed:

"It is singular that an uncivilized tribe of Indians in the interior of Mississippi, in this respect, have anticipated the action of more enlightened communities in a reform of the common law, now acknowledged to be not only just and proper, but in strict conformity to the highest principles of equity."

Thus, Claiborne paid a left-handed compliment to Betsy Love and her tribe. Fisher v. Allen established that property belonging to a woman before marriage, or any subsequent acquests and gains, is not liable to the debts of her husband. There can be little if any doubt that the basis for the ruling was Chickasaw tribal customary law.

LeAnne Howe is an associate professor in American Indian Studies and English at the University of Illinois, Urbana-Champaign. She is the author of Shell Shaker and Evidence of Red.

Posted September 2005

Sources:

Brown, Elizabeth Gasper. "Husband and Wife: Memorandum on the Mississippi Women's Law of 1839, Michigan Law Review 42 , 1944, p. 1113.

Claiborne, J.F.H. Mississippi as a Province, Territory, and State, with Biographical Notices of Eminent Citizens, Vol. 1. Baton Rouge: Louisiana State University, 1964. p. 475

Fisher v. Allen - MissErr & Appeal, 3 Miss 611, 2 HowMiss 611-Const.Law 93(1); Indians 3. 1837

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