Women and the Law

views updated

Women and the Law

In the Revolutionary era, Americans prided themselves on their superiority to "barbaric" nations in which women were little better than slaves. "Matrimony, among savages," Americans told themselves, had "no object but propagation and slavery" and hence "is a very humbling state for the female sex" ("The Influence of the Female," pp. 153–154). Indeed, the enviable position of women in the new nation was one of the markers of the Revolution's triumphs, they believed, an indication of American moral and political superiority.

This admiration for women brought into question women's historic legal disabilities. Under English common law, when a man and woman married they became legally one person—the husband. Americans learned this formulation from the Commentaries of English jurist William Blackstone (1723–1780), the first American edition of which in 1771 sold out quickly and remained influential well into the nineteenth century. As Blackstone put it, "The very being of legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called … a feme covert." The principle of coverture, as it was called, shaped not only the law of marriage and domestic relations, but also that of property, business, and even criminal law. With few exceptions, a married woman had no legal existence apart from her husband's.

Such restrictions on female agency fit badly with Revolutionary notions of equality, not to mention sentimental ones of women's moral worth. Yet changes in the law came slowly, and the federal nature of the new government, which left all domestic law, as well as most property and criminal law, to the states, meant that change was piecemeal as well. Changes in one state were not binding on other states, nor did state laws fall into conformity. With a few exceptions, dramatic changes in women's legal status did not come until the middle of the nineteenth century, although their way was paved by more modest achievements—and retarded by other contradictions in both precept and practice—earlier in the century.

women and the constitution

Although the Constitution nowhere mentions women explicitly, records of the debates in the Constitutional Convention make it clear that women were to be included when congressional representatives were apportioned and hence that women, even though they could not vote or hold office, were to be represented by the new government. Likewise, the First Amendment rights, such as freedom of religion, assembly, speech, and trial by jury, all applied to (free) women. At the same time, as the scholar Linda K. Kerber has shown, women were not allowed to perform the duties of citizenship, not only (with the exception of New Jersey) voting and holding office, but also serving in the militia or on juries. Moreover, judicial pronouncements on female citizenship in this period, particularly for married women, were anything but consistent.

coverture and citizenship

The principle of coverture, which subsumed a married woman's legal identity in that of her husband, came into direct conflict with Revolutionary ideals of individual accountability in several cases in which questions of property were caught up in discussions about women's competing obligations to their husbands and the state. In the 1805 case of Martin v. Massachusetts, James Martin, the son of Loyalist parents who had fled the country after the Revolution, sued to recover the confiscated property of his deceased mother. The case turned on whether Anna Martin had had any choice but to follow her Loyalist husband. The states generally recognized that both women and men could commit both treason and misprision of treason (concealing an enemy plot), and Massachusetts law expressly mentioned males and females both. Applying the contract theory of government, the state argued that its confiscation statute implicitly included women, for "surely a feme-covert can be an inhabitant in every sense of the word. Who are the members of the body-politic? Are not all the citizens, members; infants, idiots, insane, or whatever may be their relative situations in society?" James Martin's lawyer countered that "a feme covert is not a member; has no political relation to the state any more than an alien." The court agreed, refusing to penalize Anna Martin (or her son) "because she did not, in violation of her marriage vows, rebel against the will of her husband." The principle of coverture remained intact, although it is perhaps as important that it faced a serious, if unsuccessful, challenge from a more liberal vision of women's relationship to the state.

Twenty-five years later, in Shanks v. Dupont, the Supreme Court backed off so confining a notion of coverture. Once again the issue was one of property, in this case, who was to inherit the property of Ann Scott Shanks, an American woman who had married a British officer during the Revolution and returned with him to England at the war's end. The logic of Martin would have suggested that as a married woman she could not choose her own national allegiance, but here the Supreme Court, on relatively narrow grounds, disagreed. It distinguished between the "incapacities" of married women that "apply to their civil rights, and are for their protection and interest" and married "political rights, [which] … stand upon the general principles of the laws of nations." This was a limited concession to women's citizenship, and one with little practical implication, but it was a concession nonetheless.

marriage

It was in the area of marriage and divorce that liberal ideas about contract and sentimental ones about the family had the greatest impact on the law. Marriage became much easier to enter and somewhat easier to exit. Early modern law had placed a number of hurdles in front of couples who wanted to marry in order to prevent fraudulent marriages, for fraudulent marriages interfered with the orderly transmission of property within families—at the time, one of the chief purposes of marriage. The law increasingly defined marriage as a private contract between two consenting individuals and diminished the state's role in regulating who could marry and how. In order to make a marriage valid, "the consent of the parties is all that is required," wrote the influential legal commentator James Kent in 1826. States even recognized common law marriage; the key case was Fenton v. Reed in New York (1809). The sentiment was in favor of marriages, even those entered into irregularly or informally. As the historian Michael Grossberg has noted, the law increasingly set aside the family as a separate legal sphere, one outside the state and, ideally, free from the state's intervention. As a consequence, the law was reluctant to intrude into families.

Still, changing attitudes ran ahead of legal practices, and both the prescriptive literature and legal treatises began to criticize domestic violence. Blackstone had said that a man could legally chastise his wife (as well as other members of his household), although he criticized domestic violence as a practice only of "the lower rank of people." By the early nineteenth century, legal commentator Tapping Reeve had doubts about the applicability of this doctrine in the United States; he thought that "the right of chastising a wife is not claimed by any man; neither is any such right recognized by law." Nonetheless, courts routinely ruled in favor of wife-beaters, and it was not until at least the middle of the century that the practice met with significant opposition.

One arguable exception to the law's laissez-faire approach to marriage concerns breach of promise, although, to be sure, it regulated only the entrance into the institution. In line with the contractual view of marriage, courts proved increasingly willing in the post-Revolutionary era to let jilted lovers sue for breach of promise. Almost without exception, however, this was a woman's action, for "a deserted female" would find "her prospects in life … materially altered by the treachery of the man to whom she had plighted her vows" (Grossberg, p. 36). Not until mid-century, however, were courts generally willing to award additional damages for seduction. Until then the law tended to treat men and women as relative equals when contracting to marry, the era's pervasive gender inequality notwithstanding.

divorce

Before the Revolution only the New England colonies granted divorce, with Connecticut granting one thousand divorce petitions before 1789, primarily for desertion or adultery. In the other colonies separations could be obtained through colonial courts but divorce only by petitioning Parliament. However, in 1773 the Privy Council determined that subsequently "Acts of Divorce in the Plantations" would be "either Improper or Unconstitutional." In the face of so restrictive a legal regime, countless men and women engaged in self-divorce and pseudo-remarriage, and when no property was at stake, the law looked the other way.

After the Revolution most states hurried to bring order to this messy situation. By 1800 divorce was legal in twelve states and the Northwest Territory. This rapid transformation in the law is all the more remarkable when compared to the slow pace of change in Britain, where between 1670 and 1857 only 325 divorces were granted, just four of which went to women. In the United States, federalism meant that each state established its own grounds, ranging from New York, which permitted it only for adultery, to Indiana, whose grounds were so expansive that it became the divorce mill of the day. Only South Carolina denied divorce altogether. With so much variety, there was a certain amount of migratory divorce—moving to another state temporarily for more lenient grounds—and tailoring the "facts" to meet the grounds. Scholars debate the extent to which post-Revolutionary divorce was a woman's remedy. In the most common scenario, a woman went to court to bring closure to a marriage already effectively terminated by her husband's decampment. Rarely did she receive alimony. Yet divorce proceedings allowed women to enter court to assert their identity and to bring order to their lives.

property and estates

In the realm of property and estates, significant change would not occur until the middle decades of the nineteenth century. Following the principle of coverture and common-law practices adopted in the colonies, when a woman married she lost all control of her property. The principle of coverture dictated as well that a married woman could not enter into contracts or conduct any business except as her husband's agent. She could not sue or be sued, nor could she dispose of her realty without her husband's consent. Although there were some variations from colony to colony, in general there were only two major limitations on the husband's right to control his wife's property. The first, a reciprocal obligation on the husband insured that if he died first, his widow would inherit a life-interest in, typically, one-third of his estate (which, after her death, would pass to his heirs). This was the widow's "dower" right, and even during the marriage, her husband could not dispose of this property without her consent.

The other big exception was the wife's "separate estate." From the late sixteenth century on, English law had provisions for setting up a trust for a woman before, or even during, her marriage, which preserved the property for the woman and kept it out of the hands of her husband or his creditors. Such separate estates were typically created for wealthy women by their fathers, and they preserved a woman's connection to her family of origin. Perhaps only 1 or 2 percent of married couples made use of them, although there was some increase during the first half of the nineteenth century.

Legal change after the Revolution brought some limited gains for women. The abolition of primogeniture and the double-share of the inheritance for the eldest son worked to women's advantage. In some states married women gained expanded rights to enter into business, and in 1808 married women in Connecticut secured the right to bequeath real estate. But there were setbacks as well, making for a complex and contradictory picture. In 1804, in Dibble v. Hutton, a Connecticut court refused to recognize a contract between a man and his wife. If husband and wife were "considered as one person in law … the … husband and wife cannot contract with each other." Although some scholars see an erosion of women's dower rights and hence their economic power in post-Revolutionary decades, others note that women's share of the national wealth remained essentially unchanged. In this period social and legal opinions about women's property rights were unsettled. Equity could seem either an aristocratic relic or a means to protect women and hence the family from dissolute husbands. Women's property rights might appear to set wife and husband against each other, by giving them separate interests, or they might seem a way to preserve part of the family's wealth in a tumultuous economy. Not until the middle of the century would law and society begin to sort these contradictory views out and craft out of them married women's property acts that were consistent with emerging patterns in the economy and family.