Saturday, February 10, 2018

18C Women in Business - The Feme Sole Trader

A Woman Shopkeeper of the 1790s, by an Unknown Artist.

Feme sole traders were married women who avoided coverture, a series of legal restrictions that usually accompanied marriage. According to historian Linda Kerber, "Feme sole status was ... a legal gray area" that originated in London merchant custom and was occasionally codified by American colonies or states. In other areas, especially commercial centers like New York, Philadelphia, and Charleston, feme sole status could be secured without statutory sanction, although husbands still had to recognize their wives' independent trading.

The English common law concerning coverture and feme sole status was best described in 1700 in a legal treatise titled Baron and Feme: A Treatise of the Common Law Concerning Husbands and Wives. A feme covert was a woman whom "the Law of Nature hath put her under the Obedience of her Husband, and hath submitted her Will to his." Though "she wants Free Will as Minors want Judgment" the authors pointed out that the feme covert, strictly speaking, was not considered an infant under law. This was because "if a Feme Covert enter into Bond, Non est factum may be pleaded to it; but if an Infant enter into Bond he must plead the special matter that he was under Age." Also, feme coverts could not enter into contracts "without the consent actual or implied of the Husband." The Baron and Feme were often said to be one person in law but they could enter into certain contracts with each other. One of these concerned contracts entered into as a feme sole. Feme soles could "sue without her husband ... but the Action must be laid down within the City." "But every Feme which trades in London," the jurists pointed out, "is not a Feme Sole Merchant." "If the husband meddle with the Trade of the wife," for example, "then she is not a Feme Sole Merchant." However, "if the husband be beyond Sea, or becomes Bankrupt, or leaves his Trade, and the wife exercise the same Trade, or they both exercise the same Trade distinctly by themselves, and not meddle the one with the other, the wife is Sole Merchant."

A pamphlet published in Philadelphia on the eve of the Civil War shows how little feme sole rules changed in the century and half since the publication of Baron and Feme. The compiler of the piece, Thomas Baylis, wrote the pamphlet to help "merchants dealing with married women, and selling them goods, ... [a] quite a common practice." Baylis began by arguing that "the disability of a married woman to contract, so as to bind herself, arises not from the want of discretion, but because her legal identity is merged in the person of her husband." "The husband," Baylis continued, "is not liable for money lent to his wife." Likewise, "a suit cannot be maintained against a married woman for goods sold and delivered, unless she is lawfully trading as a feme sole trader, under the Act of 1718." Feme sole traders, on the other hand, may "sue and be sued, plead and be impleaded at law during their husband's natural lives, without naming their husbands." Just as in England in 1700, in Baylis' Philadelphia, "the main question in ... cases where the husband lives with the wife, and is in and about the business, seems to be: In what capacity is the husband in and about the business?" In other words, is he his wife's agent, employee, or merely trading in her name? The difference between coverture and feme sole status was especially important in contracts for the repayment of money, such as promissory notes. Though of proper form, sometimes promissory notes were declared void because the husband did not sign the note and the contracted debt was not for "necessaries."

Pennsylvania passed an act relative to feme sole traders in 1718. The act was designed for mariner's wives, to protect them, after established in business, from having to pay the debts of profligate sailor husbands. The act also protected "creditors [so that they] may, with certainty and safety, transact business with a married woman under the circumstances aforesaid." A feme sole trader, then, was a married women conducting business on her own, with her husband's permission, but without his aid.

See Temple University.