Strangers to the Law

Sources

Second-Class Citizens. Women in early America did not share in the political reform that followed the Revolution. In many ways they were strangers to the law and to justice. Married women were not treated as full citizens but as extensions of their husbands. Their rights were severely limited by old common law notions that viewed the legal existence of a married woman as, in Sir William Blackstone’s words, “suspended during the marriage, or at least … consolidated into that of her husband.” This idea of consolidation was known as “coverture.” Single or widowed women could sue or be sued, convey property and write wills, but a married woman generally had no such rights. Marriage meant that the husband owned his wife’s labor, controlled her property and could—as if she were property—collect damages against anyone who caused her injury. Because most women in the late eighteenth and early nineteenth centuries did marry, most suffered from a lack of independent legal identity. If her husband deserted her, she could in some states petition the legislature to grant her status as a femme sole, enabling her to engage in basic commercial transactions as if she were unmarried. A married woman could conduct business affairs as a “sole dealer” only with the consent of her husband, or if she petitioned the legislature for femme sole status. Legal scholar St. George Tucker declared in his 1803 “Americanized” edition of Blackstone’s Commentaries on the Laws of England (1803): “I fear there is little reason for a compliment to our laws for their respect and favor to the female sex.”

The Dower. Women had enjoyed one significant right prior to the Revolution—the dower, or the right to one-third of her husband’s real estate. Ironically, the move to free land and property from restrictions, and open up commerce in land, diminished this right. In 1795 a North Carolina court, acting on a 1784 law which sought to “promote that equality of property which is the spirit and principle of a genuine republic,” ruled that “the dower of the common law is abolished.” In Massachusetts the courts declared the dower invalid as a “clog upon estates,” and there, as in other states, this common law right of women was abolished.

Failed Marriages. The law provided little recourse for women from unfaithful or abusive husbands. Divorce in the early national period was rare; indeed more so than in colonial times. Some jurisdictions were more inclined to grant divorces than others. Connecticut had perhaps the most liberal attitude toward divorce, while in South Carolina divorce was never an option to resolve a failed marriage. Georgia’s 1798 Constitution established legislative divorce. After a divorce trial a two-thirds vote of each branch of the legislature was required to obtain a divorce. This practice had roots in the English system, where divorce was only granted in rare circumstances by petition to Parliament. Many states turned away from this vestige of English custom. By 1800 Tennessee and every state from Pennsylvania northward had enacted alternatives to legislative divorce.

Grounds for Divorce. A divorce was granted only in narrow circumstances such as a proven claim of adultery or desertion. Men almost always had the upper hand. If a man was held to be the offending party, his wife would receive the equivalent of a woman’s dower, or one-third of her former husband’s estate. However, if a woman was found to be the offending party, her husband kept all her property. This was no small matter: a woman who left an abusive husband was often accused of desertion. She could very well be declared the offending party and left without property or means. It took much courage, fortitude, and resources for a

woman to prevail under such circumstances, and psychological or physical abuse were not generally accepted grounds for divorce. Men were given a great deal of leeway in the conduct of their household affairs, and that included a large measure of dominance over their wives. Physical abuse was often accepted as an appropriate response of a husband to a rebellious, independent wife. Only as the nineteenth century began and notions of reform influenced the legal world did courts begin to accept divorce petitions based on cruelty. This reform was led by Connecticut teacher and jurist Tapping Reeve, who wrote a definitive text on family law, The Law of Baron and Femme (1816). Reeve favored divorce in cases of cruelty, writing that “if a husband turns his wife out of doors, and so abuses her, that she cannot live with him safely, and she departs from him, this is not a willful absence on her part.”

Legal Training. Preparation for a career in the law came only to men because a woman’s role was seen as one properly focused on service to their families. Abigail Adams wrote to her husband John in 1798 that “you need not be told how much female education is neglected, nor how fashionable it has been to ridicule female learning. I regret the trifling, narrow contracted education of the females of my own country.” In the years following the Revolution schools for girls emerged as a new way of thinking about the role of citizens in the Republic led to a growing belief that women should receive sufficient education to be self-reliant. Benjamin Rush offered a model curriculum for such schools, which would include bookkeeping, geography, English grammar, composition, rhetoric, and arithmetic. In Philadelphia the Young Ladies Academy gave women the opportunity to study in a structured environment. In 1793 the school’s valedictorian, Priscilla Mason, complained that men “have denied us the means of knowledge, and then reproached us for want of it.” She understood how difficult the road ahead would be when she reminded her fellow graduates that “the church, the Bar and the Senate are shut against us.”

Massachusetts. The lowly status of women was highlighted by the Massachusetts case Martin v. Commonwealth (1805). William Martin Jr.’s deceased parents had been Loyalists, which caused the state to confiscate their property in 1781. Martin argued that the state could not have confiscated his mother’s property because as a married woman she had no free will to challenge her husband’s decision to abandon the colonies during the Revolution. Martin sued to recover his inheritance of her share of the estate. The court said that the “real question” was whether the law allowing confiscation applied to women, “persons who have, by law, no wills of their own.” Martin’s lawyer went so far as to argue that a married woman “has no political relation to the state any more than an alien.” The state’s highest court granted the son relief. None of the judges accepted the idea that his mother could have resisted her husband’s political ideas. Judge Theodore Sedgwick asked: “Can we believe that a wife, for so respecting the understanding of her husband as to submit her own opinions to his, should lose her own property, and forfeit the inheritance of her children? Was she to be considered a criminal because she permitted her husband to elect his own and her place of residence? Because she did not, in violation of her marriage vows, rebel against the will of her husband?” Chief Justice Dana concluded that the statute could not apply to married women because it was unthinkable that they had freedom to “breach the duty which, by the laws of their country, and the law of God, they owed to their husbands.” Ironically, the unchallenged subservience of women to their husbands led to the court’s conclusion that their property rights be protected.

AMERICA’s FIRST LAW DEGREE

In 1793 William Cabell of Cumberland County, Virginia, received a Bachelor of Law degree from the College of William and Mary—the first ever awarded by the college and the first in America. Cabell had been trained by legal scholar George Wythe, who was the first professor of law in the United States.

Cabell’s degree was a milestone in the developing study of law in America. Young men had previously been trained for a career in the law through the apprenticeship program, where they would serve as clerks to established lawyers. Some men of financial means traveled to London to study at the Inns of Court. In the generation prior to 1783, some 115 Americans had done so. The development of a course of instruction at the College of William and Mary by Wythe and his successor, St. George Tucker, marked the beginning of the Americanization of the study of the law. Wythe’s scholarly approach to the law was supplemented by his use of moot courts and mock legislatures, which he designed to prepare students for future public service. Tucker, who replaced Wythe in 1800, developed a pragmatic, less-scholarly approach to the law and relied heavily on his own edited version of Sir William Blackstone’s Commentaries on the Laws of England (1803) as the basis for his lectures.

Cabell made immediate use of his law degree. He began practicing law in 1794 and was elected to the Virginia General Assembly in 1796. He served in the assembly until 1805, when the legislature elected him governor of Virginia. In 1808 Cabell was elected to be a judge of the General Court and in 1811 was appointed to Virginia’s Supreme Court of Appeals, where he would serve until his retirement at the age of seventy-nine in 1851. Cabell died in Richmond two years later. His career demonstrates the close relationship that existed in early America between law and public service—an essential relationship if the law was to be a flexible tool for the advancement of liberty.

Source: Susan L. Trask, “In Celebration of the Bicentennial of America’s First Bachelor of Law Degree Recipient,” William & Mary Law Review, 34 (1993): 573.

African Americans. The promise of liberty did not have much meaning for African Americans. The racial divide that would break the nation apart in the middle of the nineteenth century grew wide and deep in the years following the Revolution. The Constitution recognized slavery and sought to limit it, but there was no national consensus on the subject. Many leaders of the southern bar—notably the Virginians George Wythe and St. George Tucker—opposed slavery. Tucker’s 1796 pamphlet Dissertation on Slavery with a Proposal for its Gradual Abolition in Virginia called for a gradual emancipation of slaves. This concept was followed by many northern states, which had sought to balance the individual’s right to freedom with the slaveowners’ right to property. As early as 1780 Pennsylvania adopted a gradual emancipation statute. Connecticut and Rhode Island created similar laws in 1784; New York in 1799; and New Jersey in 1804. Gradual emancipation was directed at the children of slaves: no slaves would be free, but after a transitional period, their children would gain freedom. Vermont did not enact such a statute because its constitution forbade slavery. In neighboring Massachusetts the constitution of 1780, written by John Adams, was interpreted as forbidding slavery.

Quock Walker. The Massachusetts Constitution provided that all “men are free and equal.” When slave owner Nathaniel Jennison beat his slave Quock Walker, he was prosecuted by local authorities for assault. Jennison’s defense was that Walker was his property and could be treated as he saw fit. The local authorities contended that the Constitution had freed Walker and all slaves in Massachusetts upon its adoption. In Commonwealth v. Jennison (1783) the state’s highest court ruled that the Constitution had indeed abolished slavery in Massachusetts. In his charge to the jury reviewing Jennison’s assault of Walker, Chief Justice William Cushing declared in judging Jennison the jurors must recognize that the Constitution had abolished slavery.

Slave Codes. Liberty for blacks in the South was another matter. Fear of slave uprisings and the enormous importance of slavery to the southern economy made its continued existence a stubborn fact of life. Most southern states presumed all blacks to be slaves and legal non-persons, without the right to marry, enter into contracts, or testify in court. Some states, notably Virginia and North Carolina, experimented with emancipation after the Revolution, but their efforts quickly ended. In 1806 the Virginia legislature adopted the Removal Act which required that all freed slaves had to leave the state within one year or be returned to slavery. African Americans had little recourse in the federal court system. In Scott v. Negro London (1806) Chief Justice John Marshall rejected the claim of a black man that he had won his freedom as a consequence of a Virginia law which freed a slave brought into that state without his master. In Spires v. Willson (1808), Wood v. Davis (1812), and Mimi Queen v. Hepburn (1813), Marshall again upheld the laws of property even though he stated his aversion to slavery in his commentaries.

Sources

Cornelia Hughes Dayton, Women Before the Bar (Chapel Hill: University of North Carolina Press, 1995);

Linda K. Kerber, Women of the Republic (Chapel Hill: University of North Carolina Press, 1980);

Jean Edward Smith, John Marshall: Definer of a Nation (New York: Holt, 1996).