Betty Allen and the Gift of Toney: Their Role in the Modern Rights of Married Women

March 9, 2017 § 4 Comments

In 1830 the Mississippi Legislature abolished the tribal character of the Choctaws and Chickasaws and conferred upon them the rights of citizenship, subjecting them and their property to the operation of Mississippi law. One section of the law provided:

“That all marriages and matrimonial connections entered into by virtue of any custom or usage of the said Indians, and by them deemed valid, should be held as valid and obligatory as if the same had been solemnised [sic] according to the laws of the state.”

In 1830, Mississippi followed the common law principle of coverture, which provided that married women and their property were under the absolute control of their husbands.

Some time in the 1780’s, Elizabeth Love, also called Betty or Betsy, was born in the territory of the Chickasaw Nation in what was to become the State of Mississippi. Her parents, Thomas Love and Sally Colbert, were Chickasaws who owned slaves, and Betty came to own many slaves herself. Around 1797, Betty married James Allen, also known as John, in a Chickasaw ceremony. Allen was a North Carolina widower who had moved to Mississippi. Together they had eleven children, and they resided on Love property in Chickasaw territory.

In November, 1829, Betty Allen made a gift to her daughter Susan, a minor, of Toney, who was one of her slaves. The transaction was part of gifts she made to her children, and title was properly recorded according to the law at the time. Betty, I am sure, gave the transaction little thought, since Chickasaw custom and usage was that married women retained separate ownership of property in their own name.

John Allen became involved in a lawsuit and retained the services of a lawyer, John Fisher. When Allen failed to pay his fee, Fisher sued and obtained a default judgment against Allen for $200 in March, 1831, in the Circuit Court of Monroe County. Fisher executed on the judgment by having a writ issued for seizure of any property belonging to John Allen to sell at auction in satisfaction of the judgment. In response, the sheriff seized the slave Toney on the basis that Toney was John Allen’s property under coverture, and the conveyance by Betty to her daughter was ineffective.

George Allen, Susan’s brother, sued on her behalf for trial of right of property, and the case was decided in Susan’s favor by jury verdict. Fisher appealed to the High Court of Errors and Appeals of Mississippi.

In Fisher v. Allen, 2 Howard 611, 3 Miss. 611 (1837), the court held that, under the customs of the Chickasaws, a husband acquired no right to the property belonging to a woman at the time of the marriage. Under the acts of 1830 mentioned above, the state could not alter the conditions of persons whose marriages were validated by the acts, nor could it extend the rights of husbands. Property belonging to the wife under Chickasaw customs is not liable for the debts of the husband. The effect of the appeal was to affirm the trial court’s ruling.

The case had an impact on Mississippi law, and, indeed, on American law.

In 1839, Mississippi Senator T.B.J. Hadley was involved in a dispute with his creditors, and he introduced two bills in the legislature: one provided for married women’s rights with respect to their property; the other asked protection from his creditors. The two are apparently related. His wife, who moved to Mississippi from Louisiana, where the civil law did not recognize coverture, was not happy that a boarding house she owned could be jeopardized by Hadley’s debt problems. The bill relieving him of his debts passed easily, no doubt due to cronyism, but the property bill was voted down twice before it finally passed. Hadley argued persuasively that, if the Chickasaws and Choctaws were exempt, all Mississippi citizens should be also. He used the Fisher v. Allen case as his template. The legislature adopted his law, and upon its passage Mississippi became the first common law state to depart from the rule of coverture. The statute provided:

“[t]hat any married woman may become seized or possessed of any property, real or personal, by direct bequest, demise, gift, purchase, or distribution, in her own name, and as of her own property, provided the same does not come from her husband after coverture.”

Other states soon followed suit. England itself abrogated the common law rule with its own statute some years later.

In 1880, the Mississippi Legislature adopted a statute completely abolishing the disability of coverture (MCA 93-3-1).

When the 1890 Mississippi Constitution was adopted, its Article 4, Section 94 included a permanent prohibition against re-enactment of any coverture concepts. It provides:

The Legislature shall never create  by law any distinction between the rights of men and women to acquire, own, enjoy, and dispose of property of all kinds, or their power to contract in reference thereto. Married women are hereby fully emancipated from all disability on account of coverture …

It was Betty Allen’s gift to Susan back in 1829, and Susan’s fight for her rights, that started the impetus to change.

There is an Historical Marker on Highway 278/6 in western Pontotoc County that is pictured below. Betty Allen’s grave had been adjacent to Highway 6, with a bronze marker, but had to be moved when the highway was widened.

file-feb-21-10-05-20-am

Although the Fisher v. Allen case does involve property rights in a slave, an issue considered repugnant by today’s standards, the legal conflict reflects the prevailing law and culture of that time, and must be seen in that context. Regardless of how we view it today, Betty Allen’s legacy has benefitted generations of Mississippi women.

MPB has a series of historical sketches in honor of Mississippi’s bicentennial this year. One such piece, presented by Marshall Ramsey, tells Betty Allen’s story. It’s a story that touches on many themes of early Mississippi: the derecognition of the indigenous tribes; slavery and the incidents of slave ownership; legal disabilities of women; and — yes — Mississippi’s relative progressivism in the formative years of its law and jurisprudence.

§ 4 Responses to Betty Allen and the Gift of Toney: Their Role in the Modern Rights of Married Women

  • Pieter T says:

    Slave title cases generally leave me uncomfortable, but this one is beautiful in the changes it wrought. Not quite the anti-Dredd Scott decision, but certainly a great story of needed change. As I’ve often told clients, the law is here to take a bad situation and make it a little better. Thanks for posting!

  • kurt brace says:

    I like the billie jean king story better. Or how bout that song by helen ready?

  • Richard Young says:

    Seemingly small events can so impact our law. Great story.

  • Kirk Tharp says:

    Enjoyed this post greatly

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

What’s this?

You are currently reading Betty Allen and the Gift of Toney: Their Role in the Modern Rights of Married Women at The Better Chancery Practice Blog.

meta

%d bloggers like this: