To Have, to Hold, and to Vanquish: Property and Inheritance in the History of Marriage and Surnames

Surnames have existed in English culture for over a thousand years. But until about 1600 A.D., surname adoption was a highly variable and fluid cultural practice rather than a rigid, legally dictated one, and hereditary assumption of names was the exception rather than the rule during the early centuries. Women often held individualized surnames reflecting specific traits, occupations, status, or parentage (e.g., Cecilia Fairwife, Alice Silkwoman, Agnes Widow, Mary Robertdaughter, respectively). Matronymics—the hereditary passing of a female’s name to her descendants— was common. Surnames such as Margretson (son of Margret) and Madison (son of Maddy, nickname for Maud) are just a few of a great many examples of this type of naming. Women’s given names also frequently became surnames, without the “son” or “daughter” appellation. Marriott is a Middle English nickname for Mary; Agnes, Elizabeth, Margaret, and Helen are just a few additional examples of female given names that were converted to surnames of various forms. The strongly gendered status quo of contemporary times collectively believed to be “traditional,” whereby wives assume the names of their husbands and children the names of their fathers, is a relatively recent phenomenon rather than an ancient English tradition.

Hereditary acquisition of surnames had become the norm around the fourteenth to the fifteenth centuries, though the practice was inconsistently applied from one region to the next.

P.H. Reaney & R.M. Wilson, A DICTIONARY oF ENGLISH SURNAMES Xlv-Xlvi, Xlix, Li (3d Ed. 1997).

When it comes to women, the modern state is not the result of a steady linear progression of ever-increasing rights. Rather, evidence demonstrates some significant shifts backwards. Principles of coverture and female legal impotence appear to have become more unyielding and restrictive, rather than less, through many periods in English history, thus reflecting and reinforcing a gender hierarchy that was beginning to take on a more rigidly limiting form.

The legal recognition of personhood implicit in the concept of property ownership becomes critical to the analysis when women are considered specifically. Legal personhood for women was virtually nonexistent during the period in which surnames became most restrictive for them. Yet prior to that, both their property rights and their surname options were more expansive, supporting the view that their legal identities were at one time more developed. The significant simultaneous retrenchment in both areas was not a coincidence. Although it is difficult to determine causality in these events—indeed, other forces were also operating at the time that probably also had simultaneous effects on both women’s surnames and their property rights—what is apparent is that women’s rights and status were being increasingly restricted in both areas. However, once the new limitations on the inheritance and property rights of women were in place, they conclusively and definitively ended the enduring variation in surname convention and usage under which they had been operating. Thus, surname retrenchment was likely exacerbated by property restrictions. Surnames and property eventually became linked socially and legally, and the implications of this for women are numerous and complex. The modern uses of both conventions have supported the large-scale erasure of women from history: with both their names and their property gone, so went their historical existence.

Despite the concomitant emergence of English surnames with feudalism and the common law after the Conquest in 1066, women’s surname usage continued to demonstrate their remarkable visibility and respect for a significant period. Their surnames often reflected individual characteristics rather than the names of their fathers or husbands. When surnames did begin to become more consistently hereditary nearing the end of the thirteenth century,

Reaney & Wilson, supra note 1, at xlviii.

The fact that medieval women were so commonly represented and acknowledged in the surnames of not only themselves, but also their descendants, means that their status was probably much more complex than is often presumed. They were not systematically and thoroughly denied any legacy or condemned to the total eradication of their identities, as would become the case later; they had names specific to them as women; they were able to retain those names after marriage; they independently inherited and owned property; and they passed both their property and their names down to their daughters, sons, and other descendants. The frequency at which these practices occurred varied depending on the period, the location, the social class, and other circumstances of the individuals involved. But it was the subsequent strict reining in of those rights and that status, and the eventual elimination of any matronymic naming and female property ownership, which created the “traditions” under which modern culture currently operates and makes the earlier system so hard to imagine. Surnames work in tandem with property rights to provide a vantage point from which to evaluate the status of women, and that status saw a very long period of decline beginning around the eleventh century and not reversing again until the women’s property acts of the 19^th century in both the United States and the United Kingdom.

The Married Women’s Property Act of 1870 was the first to allow married women in the United Kingdom to inherit and retain property and money (at a capped amount), as well as to retain her own wage earnings. In the United States, similar laws were passed by individual states, the first being Mississippi in 1839.

When the wife as a legal individual no longer exists independently from the husband, it might seem natural, even necessary, for her to adopt the husband’s surname, and for children of the marriage to take his name. Yet that development happened some time after the institution of coverture entered into English law; there exist numerous examples of women retaining their birth names at marriage, passing their names to their children, and even to their husbands, as late as the eighteenth century. Although not the case early on, surnames in particular, and gender more broadly, became closely tied to the concepts of property and inheritance. The surname was both a symbol of and a necessity for the full and proper operation of ownership, but that operation did not always exclude women.

Matronymic naming was common through the Middle Ages, and it took several forms. The mother’s birth surname could be passed to her descendants as their surname, or the mother’s given name could be incorporated into a surname for her children, either with or without a “son” or “daughter” attached (e.g. Ibbotdaughter or Isabel). Many other surnames existed which were either specific to or related to women but were not necessarily matronymic, such as Rogerdaughter, Fairewif (fair wife), Silk-woman (female silk dealer), Prestsyster (priest’s sister), or Mariman (male servant of Mary), but these are beyond the scope of this article.

A few specific examples from the records provide a sense of the larger picture. William Maryson (1298),

Id.

Furthermore, it was not uncommon for a couple to give their son a first name after the mother’s birth surname. For example, in the early seventeenth century Sir Richard Sondes married Susan Montague, and they named their son Mantague Cholmeley.

Isaac Newton, Pedigree of Cholmeley of Easton, descended from the Cholmeleys of Cheshire, and bearing the same arms, in nEWTON, supra note 135.

Children would sometimes be given the surnames of their grandmother, rather than either their mother or father, usually to associate themselves with an estate and eventually inherit it themselves, either voluntarily or as a condition of inheritance as indicated in the will,

W. P. W. PHILLIMORE & EDWARD ALEXANDER FRY, INDEX TO CHANGESOF NAME; UNDER AUTHORITY OF ACT OF PARLIAMENT OR ROYAL LICENCE, AND INCLUDING IRREGULAR CHANGES FROM I GEORGE III TO 64 VICTORIA, 1760 TO 1901 P. IX (1969).

Similarly, there are examples of women who did not assume their husband’s name after marriage, even in the late Middle Ages and into the Early Modern period. A widow named Cecilia de Sanford was the daughter of Henry de Sandford, indicating that she went by her father’s name rather than her late husband’s. Emma Godzer (1290) was the daughter of Walter Godzer and the wife of Robert Pacy. one woman had a seal that read S. Emme. de Litlecote, but her husband was Reginald de Lavynton.

P.h. rEANEY, tHE oRIGIN OF ENGLISH sURNAMES 84 (1967).

Janet Ogilvie as the wife of John Gordon of Pitlurg.

Table of Pedigree of the Family of Gordon of Pitlurg, supra note 136, at 6-7.

At times men who married heiresses even assumed the surnames of their wives at marriage—even well into the modern period—in order to attach themselves to the estate and keep the family name connected to the land.

Id. at 149.

Thus, even after women’s property ownership had become quite restricted, their surnames had not yet been entirely eliminated. Such flexibility left women with some independent identity, until those options were eventually foreclosed to them as well via imposed legal impotence. This suggests that coverture did not take the full measure of its chokehold as early as we think. It is also likely that the common law and the theory supporting it were inconsistent with actual practice, and that the realities of medieval life were resistant to change. The evidence derived from women’s property ownership supports the conclusion that a more gradual implementation and development of coverture and its attendant principles, including a more prolonged reining in of women’s rights, took place. Change in general during the period was protracted, and older traditions died hard; in medieval life, “…ideas and information spread only slowly, and against great resistance, from one district to another; custom determined everything, and the type altered little from age to age.”

Charles Homer Haskins, The Spread of Ideas in the Middle Ages, 1 sPECULUM 19, 20 (1926).

Where formal law created new restrictions and disabilities for women in medieval England, those restrictions influenced the ways in which surnames were culturally adopted and used, even though no law directly addressed surname use. The common law had nothing directly to say about women’s names, as those had always been a cultural rather than a legal practice. But surnames as a social and legal convention became closely connected to property, and the increasingly restrictive rules of coverture which limited property ownership eventually ensured the elimination of any independent women’s names. As women’s property rights went, so went their names.

The law imbued the husband with a superior legal status as head of household and gave him legal dominion over his wife and children and all marital labor and property. That eventually included the convention of the wife and children adopting the surname of the husband, and it carried with it the right of control and ownership. The functions of property and surnames thus simultaneously operated upon one another in a symbiotic dance of reduced status and increased subordination of women. To be sure, the flexibility of women’s surname use and the independence they once enjoyed in their surnames was already diminishing concomitantly with the restriction of other rights they once held. But the eventual connection between naming and ownership changed the relationship of women to their names. Men were given the right to name women, and women’s names changed as they moved from the legal ownership of their father to that of their husband.

This concept is reinforced by considering the fact that slaves in America were often given no last names at all because, as property themselves, they could not have an independent surname. When they did have last names, they were given the master’s surname, and renamed each time they exchanged owners. Lisa Kelly, Divining the Deep and Inscrutable: Toward a Gender-Neutral, Child-Centered Approach to Child Name Change Proceedings, 99 W. vA. l. rEV. 1, 12-14 (1996).

Surnames and property are not intrinsic to human nature; both are social and legal constructs. As such, both have been appropriated and manipulated in ways that support patriarchy and confine women. This fact is not surprising; what is more interesting is that it was not always the case. The law’s systematic and complete antagonism to women is a relatively recent development. The common law inscribed a new ideology on the collective social consciousness, thereby altering the relationship of the culture with its women. Once complete, the status quo was then viewed as natural, traditional, common sense, and divinely ordained, with preconceived historical fact warped and altered, and then presented as truth. It is not difficult for a culture to look around at the system in which it finds itself and then conclude by its existence that it is the only reasonable course.

Although the concept of a surname as signifying ownership (of wife, children, and property) is no longer overt in English and American culture, it is still undoubtedly present in more subtle ways within our social schema and naming framework. The common conception is that only men have “real” names, and their permanency is one of the rights of being male; women’s names are more fleeting and relationship-dependent and they must therefore be less connected to them. That notion managed to insert itself into the American legal system, where the courts have upheld men’s naming “rights” with respect to their wives and children; one court held that “a natural father has a protectable right to have his child bear his name,”

Burke v. Hammonds, 586 S.W.2d 307, 309 (Ky. Ct. App. 1979).

The rigidity in naming we know today is one of the last vestiges of the old system of coverture, yet the issue still receives very little collective analysis or criticism. It is a product not of abiding and ancient tradition, but rather of new strictures instituted most firmly during the modern period, ironically during the “Age of Enlightenment” of the seventeenth and eighteenth centuries. When names stopped signifying individual attributes, they came to signify ownership instead, and women were the ones falling under its regime.

Future research on this topic would expand upon the history in several ways. First, an in-depth analysis of the relationship between culture, tradition, and law, as seen through the lens of surname usage, will shed light on the underlying ways in which patriarchy became more firmly enshrined into cultural and legal systems. Surname usage and adoption was strictly a traditional practice, yet it became so entrenched that it eventually garnered legal backing when it encountered resistance. This was accomplished by virtue of a deceptively appropriated “tradition” that was not, in fact, traditional at all. The mechanisms by which this took place warrant further analysis. Second, a theoretical investigation into the reasons for the constriction discussed herein will be important; if coverture in fact became more restrictive over time, what reasons underlie such a shift? In addition to the emergence (and disappearance) of feudalism and the gradual implementation of common law, these manifestations may be tied to economic and political developments in the early Modern period. Such factors include capitalism; the development of theoretical concepts of citizenship, rights, and exclusivity; the rise of imperialism and conquest; and the building of the modern nation-state. There is much to be developed on that front.

The status of women in England was at one time strikingly expansive given the era and the natural assumption of society’s perpetual forward progress with the passage of time. That assumption, as it turns out, is patently false. Women’s legal identities were never static in their limitations, but experienced significant transformation in the form of lengthy retrenchment and then, eventually, expansion. Anglo-Saxon women enjoyed a remarkable status and legal rights that placed them on par with their male counterparts in many ways that would not be seen again for nearly a millennium. Yet the early Middle Ages too exhibited much flexibility for women, as evidenced by their surname autonomy and property ownership and inheritance. Later restrictions in these areas had profoundly negative effects on women, and once in place were then circularly referenced to justify the essentialism of women’s gross inferiority. Although today’s women for the most part enjoy formal legal equality with men, contemporary surname practices have not only failed to shed the vestiges of the systems under which they were most oppressed, they have failed to even recognize those systems as such. These practices are a product of recent developments in a system of growing patriarchy, ownership, and power. Yet the status quo is justified—to the extent that it is even considered—simply by reference to a “tradition” that is not in fact traditional at all.