Elizabeth Cady Stanton and the Feminist Foundations of Family Law

Tracy A. Thomas

• Publisher: NYU Press
• Year: 2016
• ISBN:
  9781479876815
• Topic: Law
• Subtopic: Legal History
• Index: Law

Thomas Byers Memorial Outstanding Publication Award from the University of Akron Law Alumni Association Much has been written about women’s rights pioneer Elizabeth Cady Stanton. Historians have written her biography, detailed her campaign for woman’s suffrage, documented her partnership with Susan B. Anthony, and compiled all of her extensive writings and papers. Stanton herself was a prolific author; her autobiography, History of Woman Suffrage, and Woman’s Bible are classics. Despite this body of work, scholars and feminists continue to find new and insightful ways to re-examine Stanton and her impact on women’s rights and history. Law scholar Tracy A. Thomas extends this discussion of Stanton’s impact on modern-day feminism by analyzing her intellectual contributions to—and personal experiences with—family law. Stanton’s work on family issues has been overshadowed by her work (especially with Susan B. Anthony) on woman’s suffrage. But throughout her fifty-year career, Stanton emphasized reform of the private sphere of the family as central to achieving women’s equality. By weaving together law, feminist theory, and history, Thomas explores Stanton’s little-examined philosophies on and proposals for women’s equality in marriage, divorce, and family, and reveals that the campaigns for equal gender roles in the family that came to the fore in the 1960s and ’70s had nineteenth-century roots. Using feminist legal theory as a lens to interpret Stanton’s political, legal, and personal work on the family, Thomas argues that Stanton’s positions on divorce, working mothers, domestic violence, childcare, and many other topics were strikingly progressive for her time, providing significant parallels from which to gauge the social and legal policy issues confronting women in marriage and the family today.

1

“What Do You Women Want?”

Many times and oft it has been asked us, with unaffected seriousness, “what do you women want? What are you aiming at?” Many have manifested a laudable curiosity to know what the wives and daughters could complain of. . . . We ask no better laws than those you have made for yourselves. . . . [W]e ask for all that you have asked for yourselves in the progress of your development . . . ; and simply on the ground that the rights of every human being are the same and identical.

—Elizabeth Cady Stanton, Address to the Legislature of New-York, Feb. 14, 1854

The starting point for Stanton’s women’s rights advocacy was married women’s property rights. A few months before the Seneca Falls convention, New York passed its first marital property statute, though it had debated the issue for almost a decade.1 New York, like other states, was interested in marital property reform for reasons related to economic recession, debt protection, commercialization, and codification, resulting in the first generation of statutory change to coverture, beginning in the late 1830s. Stanton was familiar with this property debate, both the legal arguments and the key players, through her father’s connections. Feminists found a relatively receptive audience for their property demands, in contrast to their more controversial requests for suffrage and divorce. Marital property thus emerged as one of the first opportunities for legislators as well as the public to confront the inequalities of sex.

Married women’s property rights became the proxy for a broader societal discussion over gender. As Stanton explained, “[T]he property rights of married women . . . became the topic of general interest around many fashionable dinner-tables, and at many humble firesides. In this way all phases of the question were touched upon, involving the relations of the sexes, and gradually widening to all human interests—political, religious, civil, and social.”2 Capitalizing on the debate over marital property, Stanton and other feminists used this opportunity to bring their full range of women’s rights issues to the lawmakers. “The drive for married women’s property rights provided them with a perfect bridge, permitting the cautious to remain on the domestic side, the intrepid to invade the political side, and some to move gradually from one to the other.”3

“What did women want?” Stanton was asked. Everything, she responded; all of the same rights as men. This formal simplicity, however, masked her more radical demands for systemic change to the law. What Stanton really wanted was a complete elimination of the legal and social system of coverture. This common law theory of marital rights inherited from England stripped married women of any legal autonomy and rights. The theory of coverture was that the legal identity of a married woman was “covered” by that of her husband upon marriage as the two became one under the law. Thus, married women’s rights were subsumed into those of their husbands, and they lost all right to own, acquire, and control property during the marriage. As Stanton explained it, a husband “not only owns her, but her clothes, her wig, her false teeth, her cork leg if she has one, and if she met with an accident on the cars he recovers the price of her injuries!”4 While the harsh effect of coverture could be technically mitigated by the equitable practice of creating premarital estates through equity, these trusts were available in few states, still vested control in male relatives, and were available only to those wealthy enough to petition the court and administer the estate.5

Stanton appreciated that coverture was a “legal institution whose scope was more expansive than the imposition of certain legal disabilities.” Coverture not only denied married women specific legal rights, but it controlled women’s larger societal position.

It was a tool of ideology at least as much as law. The vocabulary of coverture was intended to express and enforce a total and complete subordination of married women to men at common law. It was a teaching device and its lessons were profound and unambiguous. It told women that they were inferior, it sanctified their inferiority through religious faith, and then made their subordination complete through legal disability.6

Stanton’s goal was to go beyond the technicalities of obtaining women’s ownership of assets and property and break down this system of social and legal norms altogether.

Stanton was uniquely positioned to advocate for property reform given her own experience as a married woman with property and as an apprentice in her father’s law office. She recounted how she heard other women’s stories of injustice from their loss of farms, homes, and income due to widowhood, creditors, and children, and how this shaped her sense of women’s rights early on. Her home state of New York grappled with these issues, leading the national reform with its laws of 1848 and 1860.7 The property issue thus spurred Stanton to political action, and she circulated petitions and lobbied legislators to gain their support for pending state legislation on married women’s property acts. At the same time, Stanton critiqued the emerging legislation, recognizing its class limitations, its omission of earnings protections, and its failure to conceptualize marital property as jointly owned. She also appreciated the importance of the emerging property rights for women’s citizenship status, arguing that the new rights supported their political enfranchisement. Marital property for Stanton was thus an avenue for achieving both egalitarian private rights of the family and systemic rights of public, democratic participation. Property thus became the entry point through which the rest of women’s rights would follow.

Declaring Feminist Sentiments

Stanton attributed her feminist awakening to her personal experiences of the inequities of the property law for married women. These experiences included her observation of clients in her father’s law office as well as her own property issues as the daughter of a wealthy father, but the wife of a poor husband. While these autobiographical accounts may have been exaggerated for political effect, Stanton cited these experiences with property law as instrumental to her own feminist development.8

Stanton’s father, Daniel Cady, specialized in property law, handling both litigation and transactional matters of trusts, deeds, and dower.9 Elizabeth spent many years observing her father at work, engaged in debate with her father’s apprentices nightly at dinner, and later served as clerk for him, transcribing letters.10 This de facto legal training exposed her to a wide variety of women’s experiences under the property laws and raised her consciousness as to gender inequality. Stanton recalled how “the tears and complaints of the women who came to my father for legal advice touched my heart and early drew my attention to the injustice and cruelty of the laws.” She identified this experience as “the primary school where I learned the a, b, c, of human rights and wrongs” and obtained the “first glimpse of an inferior and superior sex,” which laid the foundation for her life’s work.11

Stanton recounted several stories of inequities under the property law that fueled her advocacy of reform efforts. Looking back later in life, she recalled, “I see myself sitting in my father’s office surrounded with students and law books, listening with indignation to the complaints of women robbed under the Common Law on which our statute laws were based.” She told the story of one client, Flora Campbell, a widow, who sought legal help in retaining possession of her family farm, purchased with her money, that her husband had willed to her son. Daniel Cady counseled Flora that there was nothing the law could do, and Elizabeth was dismayed. Later, she threatened to cut every one of the “abominable laws” out of her father’s law books, until he explained that it would make no difference, as the laws existed elsewhere. Stanton claims her father told her that when she grew up, she should go to Albany and talk to the legislators to tell them of the sufferings of women and widows and persuade them to pass new laws, though he was later opposed to her public career when she began to speak out for women’s rights.12

Stanton also recalled tales of how her father’s apprentices mocked her, pointing out “every aggravating law” and adding “the most exasperating comments.” “The students, for their amusement, rehearsed to me each day, the laws they found in their reading that were unjust to women.” She told a story of how they teased her when as a child of about ten, she showed them her new Christmas presents of a coral necklace and bracelets. One taunted, “If you were my wife, these jewels would be mine, and you could never wear them but when I gave you permission. I could sell them or give them away. Everything you have would belong to me.” “These young fellows little dreamed that they were training me to overturn their pretentions to hold the reins of government.”13

Stanton herself experienced some of these limitations of the marital property laws. She struggled with financial insecurity all of her married life. Henry had little financial success in life, being interested more in uncompensated political activities. Her father helped by providing her with a place to live both in Boston and then in Seneca Falls. When she moved to Seneca Falls, Daniel Cady transferred to his daughter property he owned there, a dilapidated house worth about two thousand dollars (fifty-five thousand dollars today).14 When Stanton arrived in the village, “she saw only a neglected building surrounded by weeds,” as the house had been “empty for some time and was badly in need of repairs.” Elizabeth was left to fix up the house herself, as Henry, who had initiated the move, stayed behind in Boston to edit the antislavery newspaper, the Emancipator.15

Stanton house, Seneca Falls, New York, 2004. Courtesy of Tracy Thomas.

Daniel Cady attempted to convey the house separately to his daughter by expressly excluding Henry from any ownership in the property. Cady, a property lawyer, tried to draft around the law by executing a quit-claim deed granting legal ownership of the house to his daughter “Elizabeth and to her heirs” “in consideration of the love and affection” he held for her and explicitly titling the property in the name of “Elizabeth Cady Stanton” rather than the conventional “Mrs. Henry Stanton.” At his death in 1859, Daniel Cady bequeathed the sixty acres of farmland around the house to Elizabeth, dividing his remaining lands among his four daughters and providing for his wife fully in lieu of dower.16

Coverture continued to limit Stanton’s ability to act unilaterally, though she tried to contract around it. When she sold the Seneca Falls property to move to New York City in 1862, the deed conveying the house to John Edwards for $1,650 included the language that “Henry consents in writing to Elizabeth’s” sale of the property, despite Daniel Cady’s intent that Henry have no right in the property. In a second deed of 1866 conveying the remaining farmlands for ten thousand dollars to James Lay, the grantors included both Elizabeth and Henry Stanton but conditioned any legal ownership of “the said Henry, believing that he has no interest in the land but executing this deed to obviate all doubts about that subject.”17 When Elizabeth later tried to purchase a house outside New York City in Tenafly, New Jersey, she expressed her frustrating that coverture again prevented her from owning property separately. “And now, with our own inheritance, we buy a home in New Jersey, and lo! we find that in this benighted state, a married woman can neither own, sell, or will what would be hers absolutely in the state of New York. Legislators of New Jersey, this will not do!”18 These experiences taught her that marital property rights affected women in their daily lives, and, as a common reinforcement of married women’s lack of rights, required change.

Stanton directed her own self-awareness of the constraints of the property laws toward raising the consciousness of other women, and men, about this problem. The Declaration of Sentiments featured demands for women’s economic rights. Stanton’s manifesto included a broad theoretical attack on the structure of coverture. One of the wrongs of man was that “he has made her, if married, in the eye of the law, civilly dead.” The Declaration addressed the issue of marital property: “He has taken from her all right in property, even to the wages she earns.” And it made the explicit connection between property and citizenship. “After depriving her of all rights as a married woman, if single and the owner of property, he has taxed her to support a government which recognizes her only when her property can be made profitable to it.”19

Stanton house, Tenafly, New Jersey. Courtesy Borough of Tenafly, New Jersey.

This economic feminism and the demands for marital property rights were accepted by both conservative and ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Introduction: The “Radical Conscience” of Nineteenth-Century Feminism
• 1 “What Do You Women Want?”
• 2. “The Pivot of the Marriage Relation”
• 3. “Divorce Is Not the Foe of Marriage”
• 4. The “Incidental Relation” of Mother
• 5. Raising “Our Girls”
• Conclusion: “Still Many Obstacles”
• Acknowledgments
• Notes
• Selected Bibliography
• Index
• About the Author