No Constitutional Right to Be Ladies

1
"NO POLITICAL RELATION TO THE STATE" CONFLICTING OBLIGATIONS IN THE REVOLUTIONARY ERA




"She must take her fate with him for better for worse"
In February 1801, James Martin submitted a complaint to the Supreme Judicial Court of Massachusetts, the state's highest court of appeals. He demanded that the state return land and houses confiscated from his mother twenty years before, toward the close of the American Revolution. The case forced leading lawyers and judges to put into words their understanding--normally implicit--of the obligations that married women citizens owe to the state.1
James Martin won his case. The outcome was doubly ironic. One irony was that the decision forced the state to reclaim property it had already sold to loyal citizens and restore it to heirs of Tory supporters of the Revolution's enemies. The other irony is that through the recognition of the claim of Anna Gordon Martin's son, her family saved her property at the price of simultaneously denying that she was an autonomous citizen with her own civic responsibilities. Deep into the twentieth century, long after new legislation had confirmed married women's power to manage real estate and personal property,the citizenship of an American woman who, like Anna Martin, had married a foreign man continued to be problematic. Aspects of married women's citizenship continued to be filtered through their husbands' civic identity.
James Martin's family had rejected the American Revolution. From the depositions filed with the Loyalist Claims Commission after the Revolution, from a handful of letters gathered by an antiquarian at the beginning of the twentieth century, and from scattered court papers in scattered archives, it is possible to piece together some of the family's history. James's father, William Martin, was born in England. In 1742, as a young man, William joined the Royal Regiment of Artillery, the one regiment in which careers were open to talented men without wealth. Artillery officers tended to have a high sense of themselves because of their technical expertise, but their often humble origins gave the regiment low social status. Sometime during the French and Indian War, William Martin was sent to the American colonies, where he made an upwardly mobile marriage to Anna Gordon, the daughter of James Gordon, a wealthy Boston merchant and landholder who was an active member of the Anglican Church. But the demands of the service pulled Martin away, and in 1752 we find him in Halifax, Nova Scotia, having left his wife and at least one child with her parents in Boston.2
William Martin was torn between the Gordons' desire to keep their family close and his own ambitions for rank and economic success. His correspondence with James Gordon suggests the real difficulties of the ambitious young man in need of patronage in the eighteenth-century British Empire. The only way to maintain his army career was to serve where he was sent. Anna Gordon Martin was evidently of another opinion, and William tried to persuade her through a message to her father: "[Were I to quit the service,] I must thro' away a growing certainty and loose a good prospect, with the advantages I may in time derive from a few chosen friends; so that I would recommend it to Mrs. Martin to think of those things and consider she is married to a man whose bread and interest may very soon lead him out of America (and in case she should have occasion) win herselfe from these childish attachments which ought to be laid asside after marriage."3
A year later there was a new baby, Jamie (who would ultimatelybring suit against the state of Massachusetts). Anna apparently left the children with her parents and joined William in Halifax. Her father tried to make the best of it: "As to advising Anne about staying or returning, tho thers none of my children nearer or dearer to me, I darst not determine as she was of age before she married & knows her engagment. As she has now a husband, she must take her fate with him for better for worse, & must be determind by him where his business leads. You must share each others fate. Its Gods holy ordinance."4 James Gordon and his wife continued to raise Jamie and his sister Betty, sweating through the smallpox epidemic and their inoculation in 1763, worrying about the impossibility of keeping children focused on their studies during the Stamp Act riots, when they kept wanting to join the excitement in the streets--"As for James, wee cannot keep him from amongst the hurly burrly without I would chain him"--conscious always of the expense and work, especially by their grandmother, who was "allwaise minding [sic] & and repairing & making their cloaths, linnens, hose, &c to make them last."5
By 1765, William Martin was the captain of his battalion. Sometime between then and the outbreak of the Revolution, perhaps when James Gordon died in 1770, William and Anna Martin returned to Boston. When the British evacuated the city in 1776, the Martins fled. "William Martin, Esq." was significant enough to be mentioned by name when the Massachusetts legislature passed a statute permanently banishing "persons ... [who] have left this State ... and joined the Enemies thereof ... thereby ... depriving the States of their personal services, at a time when they ought to have afforded their utmost aid in defending the said States, against the invasions of a cruel enemy."6 They went first to Halifax and then to New York City, where William Martin remained throughout the war on the staff of Brigadier General James Pattison. When Pattison went home on sick leave in 1780, Martin took his place as commander of artillery. In that role, William Martin conducted the formal inquiry into the causes of the great fire that destroyed much of New York City in 1776. By the time the war was over, having benefited from a flurry of wartime promotions, Martin had achieved the rank of brigadier general. When the British evacuated New York in 1783, the Martin family left for England.7
What wealth William Martin had seems to have come largely fromhis marriage, and his relationship to that wealth was precarious. The letters from James Gordon in the 1750s and 1760s are sprinkled with reminders of the extent to which he was supporting the Martin family. Indeed, when Gordon died in 1770, his son William Gordon, who was also the administrator of James Gordon's estate, actually brought suit against William Martin, claiming that he owed Gordon all the money that had been laid out for the family's support over eighteen years since 1752. The expenses were itemized in excruciating detail, beginning with the costs of a nurse and midwife in March, 1752, £1.18.8, and ranging from substantial sums of cash advanced for William Martin over the years to "Pair of shoes for his son, £0.1.6, Oct. 1754";"Galoshes, Hatts, Gloves, Ribbens &c for his Daughter, £0.14.11, 1763"; and the funeral of his child Christiana, Sept. 1769, £1.14.5. There were schoolbooks for young James: Ovid, Caesar, Virgil, Terence, Greek grammar, Greek lexicon; expenses for smallpox inoculation; "a parrot Cage and Tub of Butter sent to Halifax"; and monthly provisions for the children, usually amounting to £4 or so.8
After James Gordon's death in 1770, Anna Gordon Martin inherited one-third of his estate, which amounted to at least 844 acres of land, improved and unimproved, in New Hampshire and central Massachusetts, at least one farm in Braintree on the outskirts of Boston, and a house on Boston Harbor, with a wharf and stables for ten or twelve horses. The house was a spacious one, and the Martins were able to rent it to a British general during the war for £30 a year, a substantial sum.9
When William and Anna Martin had fled with the British, all this property was left behind. In 1778 the Boston house was destroyed by the British in order to build a fort on the site. When the patriots were again in control of Boston, the Massachusetts property was seized according to the Massachusetts Confiscation Act of April 30, 1779. It was sold at auction in 1781 to five different purchasers. It was this property for which their son James sued in 1801.10
James seems to have accompanied his parents briefly to New York City.11 By that time, however, Jamie was no longer a child. He appears to have studied law in England, and returned to Boston in 1773, where he was admitted to practice in the Court of Common Pleas of Suffolk County. By the beginning of 1774 he was practicing law in the British West Indies, and he remained there in safety for the restof the war. By 1791 he was back in Boston, assuming he could resume his legal practice there.
James Martin's position was ambiguous. On the one hand, he had not taken an aggressive, public position against the Revolution. The Boston bar supported Martin's wish to rejoin the community; indeed, said the bar, "he has uniformly been from conviction of the justice of his country's cause attach'd to its interests."12 But Martin's situation was different from that of other colleagues whose practices had been interrupted by the war, for his relationships to émigrés and his own emigration placed him under suspicion. When the Supreme Judicial Court of Massachusetts insisted that he "become naturalized agreeably to law," including taking an oath to support the Constitution of the United States, Martin refused. The court defined James Martin as a person born under the British flag, an alien in the new nation. He understood himself to be a person born on the soil of Massachusetts who had never explicitly been disloyal. The difference was important. If he submitted to the naturalization process, he could easily take up the practice of law. But if he already had in mind the reclaiming of the property that had been confiscated from his mother, then his claim to be a citizen by birthright weighed heavily. Under the common law, only citizens could own or inherit land. Even if Martin had been naturalized, it remained an open question whether the courts would treat his citizenship retroactively, especially taking into account his long absence from the republic and the sale of the confiscated property to other citizens. 13 Judge Francis Dana, who had been a member of the Sons of Liberty and a delegate to the Continental Congress in 1776 and was now a member of the Supreme Judicial Court, refused to let Martin have it both ways. James Martin lost his temper and came close to threatening a duel; Dana refused to answer Martin's angry note.14
Twenty years later, when James Martin's suit appeared before the court, Dana still sat on it. This time Dana would be more sympathetic to Martin's position.
Rights and Obligations
American constitutional theory, like liberal political theory in general, has usually emphasized rights rather than obligations. It has rested on the confidence that individuals can be authentically bound only by rules that they themselves have chosen and that authentic government is shaped by freely chosen agreements among the ruled. Obligation in some way should be an obligation to oneself, "there being," Thomas Hobbes wrote in the seventeenth century, "no obligation on any man, which ariseth not from some act of his own."15 Much American constitutional talk proceeds as though the Revolution had created a state of nature and as though the Constitution were a social contract; the governed having consented to the political order, all obligations are ones that have been chosen.
But as historian Edmund S. Morgan has poignantly argued, "government requires make-believe." It requires that an imagined community be called into being, personified "as though it were a single body ... superior to government, and able to alter or remove a government at will."16 When the Continental Congress of 1776 issued a decree "on the authority of the people," and--especially--when the Federal Convention of 1787, exceeding its mandate to revise the Articles of Confederation, issued its Constitution in the name of "We the People," they were calling an imagined community into being.
"We the People" achieves much of its power by its egalitarian spirit. It makes no traditional hierarchical and patriarchal claims. It does not say, "We the Founding Fathers." It does not say, "We the politically active men who have been sent to Philadelphia by our colleagues in the states but who do not represent a majority of the adult male population." It is rather a wonderfully dynamic fiction. Except for naturalized citizens, there is no particular moment when most individuals can be said to assume obligations to the state. Instead we take consent as implied by our failure to refuse (to pay taxes, for example, or to pledge the flag) and by continued acceptance of services the state provides.
"We the People" provided the mythic space for later entry into the active citizenry of those whose membership had been ignored orexplicitly denied by legislators of the founding generation. The classic statement of entry into the civic order and consequent obligation was that of John Winthrop, governor of the Massachusetts Bay Colony in the 1630s: "The woman's own choice makes such a man her husband; yet being so chosen, he is her lord, and she is to be subject to him, yet in a way of liberty, not of bondage; and a true wife accounts her subjection her honor and freedom ... . so brethren it shall be between yourselves and your magistrates."17 In the revolutionary era, American men rejected this formulation for themselves. They entered the liberal republic as individuals. They insisted on periodically choosing and rechoosing obligation; as they voted they would sign the social contract afresh. In our own time we have witnessed fresh installations of the social contract: in the reconstruction of the Soviet Union into fifteen republics, in the reconfiguration of a unified Germany, and, notably, in the first free elections in South Africa.
But male members of the American founding generation generally refused to address freshly the question of the extent to which women were members of the social compact, bound by their own free choice. Historian Gerda Lerner has recently reminded us that compact or covenant is one of the oldest ideas in the Judeo-Christian tradition --and that the sign of the covenant God made with Abraham (circumcision) is impossible for women.18 But one need not go so far back. The revolutionary generation of men who so radically transgressed inherited understandings of the relationship between kings and men, fathers and sons, nevertheless refused to revise inherited understandings of the relationship between men and women, husbands and wives, mothers and children. They continued to assert patriarchal privilege as heads of households and as civic actors. They explicitly denied married women entry into the new political regime.
It is not anachronistic to raise this point. It was possible in the mid-eighteenth century to conceive of alternatives. "If ... all were reduced to a state of nature," asked James Otis, one of the most important lawyers in colonial Massachusetts, in 1764, "had not apple women and orange girls as good a right to give their respectable suffrages for a new King as the philosopher, courtier ... and politician? Were these and ten millions of others such ... consulted?"19 Women merchants had long established themselves in town commercial life. They owned stores and traded goods; a few ran newspapers.Writing as "Sally Tickle" in 1773, a pseudonymous columnist for the New York Journal and General Advertiser urged women to value and to exert themselves: "Consider yourselves as intitled to a Suffrage, and possessed of Influence, in the Administration of the great Family of the Publick--Take a Part in the momentous Affairs of the Community, which Providence by the liberal Endowments he has granted you in Mind and Person, manifestly intended for you."20 Were women--even Otis' apple women and orange girls--part of the new social compact? Or did they remain in a patriarchal social order in which their only freely chosen obligation was to their husbands?
Toward the end of the American Revolution, Abigail Adams tactfully observed that Otis' question remained unanswered. "Even in the freest countrys our property is subject to the controul and disposal of our partners, to whom the Laws have given a sovereign Authority. Deprived of a voice in Legislation, obliged to submit to those Laws which are imposed upon us, is it not sufficient to make us indifferent to the publick Welfare?" Women were "excluded from honours and from offices"; their patriotism must then be "the most disinterested of all virtues." One of the few issues on which patriot and loyalist men agreed was their belief that the only service to the state of which women were capable was a financial one, and therefore women owed few obligations--notably the obligation of single women to pay taxes.21
Men took pride in qualities that distinguished them from women. "Luxury, effeminacy and corruption" was as much a revolutionary-era refrain as "life, liberty and the pursuit of happiness."22 Republican ideology was antipatriarchal in the sense that it voiced, as Tom Paine had accurately sensed, the claim of adult men to be freed from the control of male governors who had defined themselves as rulers and political "fathers" in an antique monarchical system. "Is it in the interest of a man to be a boy all his life?" Paine asked in Common Sense.23
But republican ideology did not eliminate the political father immediately and completely. It was simultaneously patriarchal and antipatriarchal, holding a liberal ideology of individualism in ambivalent tension with the old ideology of patriarchy. Thus George Washington quickly became the "father of his country"; at the Governor'sPalace in Williamsburg, Virginia, the life-size portrait of George III was quickly replaced by a life-size portrait of Washington in the same pose.24 The men who remodeled the American polity after the war remodeled it in their own image. Their anxieties for the stability of their construction led them, in emphasizing its reasonableness, its solidity, its link to classical models, also to emphasize its manliness and to equate unreliability, unpredictability, and lust with effeminacy. Women's weakness became a rhetorical foil for republican manliness. 25
When the Eagle Forum's Kathleen Teague claimed that American women have "the right to be ... ladies" she was--more precisely than she was perhaps aware--squarely in the middle of an antique legal tradition that substituted married women's obligations to their husbands for obligations to the state. This tradition had largely eroded when she spoke, but her ability to articulate it meant it was not yet dead. From the era of the American Revolution until deep into the present, the substitution of married women's obligations to their husbands and families for their obligations to the state has been a central element in the way Americans have thought about the relation of all women, including unmarried women, to state power. One by one, most of these substitutions have come to seem inappropriate and have been abandoned, but in each case only after a long and complicated struggle.


When American revolutionaries challenged laws governing the relations between male subjects and the king, reconstituting men as individuals free of patriarchal constraint, they left intact the system of the old English law of domestic relations. This system of law was among the many elements of English common law that were quietly absorbed into American legal practice in order to save the trouble of restating what seemed obvious. Some of this system was written into statutes, some kept alive as unwritten precedent that courts respected and could be counted upon to sustain.
Long before constitutions were constructed as new social contracts, there were marriage contracts and the complex system of subordination and authority which they were understood to embody.26 The practice of coverture, which transferred a woman's civic identity toher husband at marriage, giving him use and direction of her property throughout the marriage, was central to the old law of domestic relations. The republic promised to protect "life, liberty and property" but under the old law a married woman was deprived of her property and had none to protect. Coverture was theoretically incompatible with revolutionary ideology and with the newly developing liberal commercial society. But patriot men carefully sustained it. They even continued to refer to the body of law of domestic relations by its traditional name, "the law of baron et feme"--not "husband and wife" or "man and woman," but "lord and woman." The same treatises that described the law of baron and feme invariably went on to laws of parent and child, master and servant.
If ever there was a site to examine the personal as the political, it is here. The American Revolution was preeminently a crisis of authority; a democratizing society was rebelling against the authority claimed by Parliament and king. The challenge that the Revolution posed to patriarchal relationships was dramatically expressed in attacks on the father figure of King George III, especially in the violent pulling down and melting of his statues in the streets. But anxiety combined with self-interest to restrain male legislators from changing the inherited system of coverture. In stabilizing the Revolution, founding-era legislators minimized differences between white men in comparison to what they had been before the war--all were theoretically equal, a shoemaker was as good a man as John Hancock.27 But at the same time the founders maintained in place a legal system which heightened differences between free women and men, especially between married women and men. As the suffrage was expanded to embrace more and more white men, the difference between them and their wives, who could neither vote, nor hold office, nor serve on juries, expanded. As white men increasingly freed themselves from the constraints of public patriarchy, they sustained a fully developed, complex system of law that maintained the private privileges of patriarchy. 28 "Do not put such unlimited power into the hands of the Husbands," Abigail Adams urged in 1776. "Remember all Men would be tyrants if they could."29 But her own husband laughed at this remark, and male rebels against royal tyranny resisted acknowledging their own all too human capacity for it. The legal treatises of the early republic describe American households as hierarchical as ifLocke had never written, as if the Revolution, and all the radical political change associated with it, had never taken place.
Yet the new nation made women citizens. The fact of women's citizenship contained deep within it an implicit challenge to coverture. Patriot men rarely spoke about this issue, but their actions speak for them. In England, the killing of a husband by a wife was petit treason, analogous to regicide, although the killing of a wife by a husband was murder. The penalties for petit treason were worse than those for murder. The concept was not much enforced in colonial America, but it remained in the statutes. It was the only element of the old law of domestic relations which legislators of the early republic eliminated. Legislators were conscious of what they intended; they carefully retained the concept of petit treason for the killing of the master by a slave. With that single exception, neither the revolutionary government under the Articles of Confederation nor the federal government of the Constitution directly challenged the legal system of coverture.30 Every free man, rich or poor, white or black, gained something from the system of domestic relations already in place; they had no need to renegotiate it.
The best introduction to the old system of thinking about relations between women and men is to read the treatises on which judges and lawyers relied. In an era before law schools were attached to universities, and when prospective lawyers "read law" as apprentices in the offices of practitioners, Tapping Reeve conducted perhaps the most respected legal training in the nation. Students came from all over the country to study in his Litchfield, Connecticut, home; among them were Reeve's own brother-in-law Aaron Burr and, years later, John C. Calhoun from South Carolina. There were also future U.S. congressmen and senators, judges and Supreme Court justices. Reeve's treatise on the law of baron and feme, first published in 1816, was reprinted with up-to-date annotations in 1846, a testament to its continued vitality. Reeve offers us pithy accounts of what the early generations of American jurists took to be the common understanding of the matter of relations between men and women. Nothing that he wrote would have surprised his contemporaries.
To follow the law of domestic relations, as Reeve delicately spun out its implications, is to watch the playing out of a stacked deck. Reeve began his book with the forthright statement that "the husband,by marriage, acquires an absolute title to all the personal property of the wife." Husbands also gained extensive power over her real estate; wives gained no advantages "in point of property" from marriage.
Once these asymmetrical property relations were established, personal implications wound their way throughout the law. The husband's control of all property gave him such coercive power over the wife that she could not defy him. Instead of revising the law to remove its coercive elements, jurists simply ensured that the coerced voices would not speak. Husbands were responsible for crimes committed by their wives in their presence or with their approval--except in the case of treason, a crime so severe that responsibility for it overrode obligation to the husband, or in the event that a wife kept a brothel with the husband's knowledge, since keeping a brothel "is an offense of which the wife is supposed to have the principal management." 31 Before married women signed away their right to dower property, judges were supposed to question them privately about whether their husbands had coerced them, although the law offered no protection against continued coercion. A wife could not normally make contracts in her own name; if she did, her husband was bound "to fulfil the contract of his wife, when it is such an one as wives in her rank of life usually purchase ... . If, however, she were to purchase a ship or yoke of oxen, no such presumption would arise, for wives do not usually purchase ships or oxen."32
This system of domestic relations presupposed the husband's right to sexual access to the wife's body. When Reeve explained why it was logical that wives could not enter into contracts, his reason was not only that wives did not control property that could serve as a guarantee; it was also that wives could not enter into contracts involving their own labor. "The right of the husband to the person of his wife," Reeve observed, " ... is a right guarded by the law with the utmost solicitude; if she could bind herself by her contracts, she would be liable to be arrested, taken in execution, and confined in a prison; and then the husband would be deprived of the company of his wife, which the law will not suffer." If a husband were banished from the realm, however, then his wife "could contract, could sue and be sued in her own name; for, in this case, ... he was already deprived of the company of his wife, and her confinement in prison would not deprivehim of his wife to any greater extent than was already the case"33
Under the old law of domestic relations, a woman's only freely chosen obligation was to her husband. Once she made that choice, he controlled her body and her property; there were relatively few constraints on what he could do with either, though she was nearly always guaranteed the use of one-third their combined property during her widowhood. Recognizing that husbands could easily pressure the electoral choices of married women, legislators concluded not that husbands should be controlled, but that women--unmarried as well as married--should not vote.
For families with a substantial amount of property to protect against dissolute sons-in-law, real estate law offered some devices which ensured that land and buildings could be passed down through the generations despite coverture. The real estate that came to Anna Martin by bequest was marked off to her directly, thus keeping it in the Gordon line. William Martin had control of it only once they had children, and only during his lifetime. Technically Anna Martin had a "right of remainder" in it; when William Martin died the property would pass not directly to his heirs, but to hers. Normally these heirs would have also been his. But since he had been targeted as a loyalist and his property confiscated, her ultimate claim on the property, and the claim of her heirs, was crucial to the outcome of James Martin's lawsuit.34
In effect the law of domestic relations came down to the husband's property rights in his wife's body and his position as barrier between her and public obligation.35 If she could not make a private contract, how could she enter the social contract? Rhetorically, however, the system was generally described as privileging women rather than oppressing them. Married women were understood to be shielded from the stresses of public life, from the need to risk property and reputation in political encounter. In his classic treatise on the common law of England, which American jurists revered, William Blackstone concluded that woman was a great "favorite of the law of England." Against that system of law there would be hurled, throughout the nineteenth and twentieth centuries, the complex ideologies of individual rights, fueling a political women's rights movement from the founding generation of the republic to the present.
"Her dower shall be set off to her"
Confiscation of loyalists' property was one among many ways in which patriots defined theirs as an authentically new social order. Virtually every state gave force to this demand for loyalty by means of a trio of statutes, solidly in place by 1778, that linked treason, oaths of allegiance, and the establishment of a system of confiscation. Together, the three were demands for commitment to the Revolution; the penalties could not be easily undone or forgiven. Treason--the act of aiding the enemy--and misprision of treason--the knowledge of and concealment of an enemy plot--could be punished with death, banishment, or enforced service on a naval vessel (from which escape was virtually impossible). Oaths were a commitment to be loyal to the new political order. In the eighteenth-century religious system, oaths were understood to be existentially binding, the punishment for violations to be experienced in the next world. And the confiscation of property was the punishment for disloyalty. The state of Massachusetts was unusual in the care it took to include women in each aspect of the triad.
Treason and misprision of treason were understood throughout the nation to be crimes that either sex might commit. Generally the statutes were written in terms of "persons," or substituted the explicit "he or she" for a generic male pronoun. The New Jersey statute provided that the person condemned for treason might receive a pardon if he enlisted in the Continental Navy. Since women were not welcome in the navy, an alternative punishment was provided for them: a fine up to three hundred pounds and imprisonment for up to one year.36
Massachusetts' 1777 treason statute made an even more explicit claim to women's allegiance. The statute applied to all "Members" of the state, who were defined as "all persons abiding within ... and deriving protection from the laws." When the General Court defined the punishments for treason, it made sure that the implication of "all persons" was clear: "every person who shall be attainted of treason within this State, whether male or female, shall be punished by being hanged by the neck until they are dead."37 Although the statutes explicitly applied to women, and women were accused of misprision oftreason, it was exceedingly rare for a woman to be accused of treason. No person was executed for treason in Massachusetts in the course of the Revolution.38
Although occasionally framed in terms of all residents, oaths of allegiance seem almost always to have been selectively imposed on men. The strategy of requiring oaths assumed a community of Christians who truly believed their immortal souls to be at risk should they break their oaths. When tension built between the colonies and the empire in the 1770s, tests of loyalty were instituted, among them the boycott of British imports. Throughout the colonies, women were encouraged to support boycotts by changed patterns of consumption. Only in Massachusetts, where the Assembly drew up a Solemn League and Covenant as evidence of commitment, were women explicitly included. Contemporaries report "every adult of both sexes putting their names to it, saving a very few."39
Those who refused to swear loyalty when it was demanded of them faced physical and financial punishment, primarily in the form of confiscation. Even the most primitive government oversees the orderly transmission of property--by exchange, sale, or inheritance--and the patriots were no exception, for their understanding of a new political order rested solidly on the guarantee of the security of property. Indeed, the patriots required that the active citizen have sufficient property to assure that he acknowledged no one as master. But patriots felt no obligation to oversee the inheritance of loyalist property. The explicit refusal to do so was one of the ways in which patriots defined their Rubicon as one which could not be recrossed.40
To confiscate a loyalist's property required that the property could be identified with precision. As we have seen, in English law coverture ensured that the property which a married man held was almost never fully his, free and clear; one-third of his real estate was always reserved to his wife for her use during her widowhood--that is, until she remarried or died. This dower property--the "widow's thirds" --was understood to be an equitable recompense for the woman who had given up control of her property at marriage, and British law treated her rights to it with great care. The dower property even of widows whose husbands had been hanged, drawn, and quartered for treason was carefully preserved. In confiscating loyalist property, most patriot legislatures left dower as a recognized claim on the estate.They did so partly because of long-established tradition, partly on the practical grounds that to assign dower would prevent the wives and children of absentees from becoming a burden on public charity (although their standard of living would obviously drop precipitously). 41
Confiscation statutes varied widely in their treatment of dower right. Most simply assumed that there would be no change in the practice of treating dower as among the "just debts" that were to be satisfied before confiscated property was transferred or sold.42 A few states--Pennsylvania, New Hampshire--explicitly provided for the support of absentees' families out of confiscated estates.43 In Georgia, a Board of Commissioners in each county might, if the estate was very small, allocate it entirely to the support of wives and children left behind.44 Only a few states--Virginia, North Carolina, and Massachusetts--specined that dower would be recognized if the woman claimant had stayed in America.45
The Massachusetts legislation was "ardent," writes one of its historians, and did not leave dower claims to implication.46 The statute passed in 1779, after several drafts, provided
That where the wife, or widow, of any of the [loyalists] afore-named and described, shall have remained within the jurisdiction of any of the said United States, and in parts under the actual authority thereof, she shall be [e]ntitled to the improvement and income of one third part of her husband's real and personal estate (after payment of debts) during her life, and continuance within the said United States; and her dower therein shall be set off to her by the judges of probate of wills, in like manner as it might have been if her husband had died intestate and a liege subject of this state.47
The explicit requirement that she remain in the state implied that wives of absentees who fled with their husbands could not claim dower in confiscated property. An early draft was even stronger; it had a revolutionary preface explicitly attacking the king, it provided that debts owed to Americans were the first lien on the estates, and also required that proceeds from the sale of loyalist estates be used to relieve inhabitants who had suffered in the war and the wives andchildren of dead American soldiers.48 There is no parallel to this last clause in the confiscation legislation of any other state.
By spelling out what was probably the usual expectation throughout the United States, Massachusetts made the expectation of the usual into a self-limiting proposition: not that most cases would relate to wives who stayed on, but that all cases should. By doing so, Massachusetts enacted a statute that bore within it a deeply radical and broader set of claims for a revolutionary relationship between the married woman and the state. Anna Martin's heir did not claim her dower property; he claimed property that she had held in her own right. Yet because she had fled the Revolution, the state of Massachusetts did not think the property should be returned to her.
"Cannot a feme-covert levy war?"
James Martin was forty-eight years old, and the twenty-year statute of limitations was about to run out when the Supreme Judicial Court of Massachusetts heard his case. He had been angry since 1792, when he had discovered, through Francis Dana's denial of his petition to practice law in Boston, that he was being treated as an alien. Martin believed he had been "very materially injured in being obliged to give up engagements he had entered into for the purchase of lands ... and prevented from taking and keeping possession of lands belonging to [him] in right of his mother Mrs. Ann Martin."49 On February 4, 1793, Martin turned to the United States Supreme Court, then sitting in Philadelphia, asking for a writ of error which would direct the Supreme Judicial Court of Massachusetts to reconsider his case; the justices had no trouble reading between the lines of Martin's appeal, and refused to consider it "until certain expressions ... imputing corrupt motives to the Judges of the said Supreme Court of Massachusetts be expunged." Although he swore that he had been admitted to practice in New York, the Supreme Court turned down Martin's demand. But James Martin somehow managed to establish his credentials in New York; he was admitted to the bar of the New York Supreme Court on August 4, 1792.50 His citizenship thus established, Martin could appear before the Supreme Judicial Court of Massachusetts to demand the return of his mother's property--the sameMassachusetts court that had once denied him the right to practice before it.
Francis Dana had risen to Chief Justice of the Supreme Judicial Court by the time it heard James Martin's case in 1805. Dana had served in the Governor's Council when the confiscation legislation had been passed in 1779. He had already denied James Martin's plea for special treatment; it may be that Dana's refusal engendered Martin's lawsuit. Dana and the other members of the four-judge panel were Federalist by political conviction and deeply conservative by temperament.51 In the party politics of Thomas Jefferson's presidential years, during which time Martin fought his lawsuit, Federalists attracted merchants, creditors, and some exporters. Jefferson's Democratic-Republican Party was a complex coalition of southern tobacco planters, subsistence farmers, mechanics and artisans in seaport towns. Federalists included some who distrusted Jefferson and his allies for their hypocrisy: slave owners who claimed to be democrats. Party affiliations were not always good indicators of political positions--the opposing pairs of lawyers had a Democratic-Republican and a Federalist on each team. The often overlapping political positions in the early republic meant that the judges and both sets of lawyers in the Martin case had decades of extensive and sometimes tense rivalry with one another.52
Martin's case was presented by George Blake, a well-established Boston lawyer who had been appointed to the lucrative office of Federal District Attorney by the Jeffersonians in 1801.53 Blake situated himself on the conservative edge of the Democratic-Republican Party; it was often difficult to tell him apart from a Federalist.54 Blake's colleague in Martin's defense was Theophilus Parsons, a prominent Federalist with whom the future President John Quincy Adams had studied law, and who would, the following year, be elevated to the post of Chief Justice in the court in which he now appeared as attorney. Parsons had close Tory connections, and was a leader of the most conservative wing of the Massachusetts Federalists, among whom Tory sympathies were common.55
The state's lawyers also came from both parties. Daniel Davis, the Solicitor General for the Commonwealth of Massachusetts, was a moderate Federalist who had built his career on the Maine frontier; he was a solid, if uninspired, trial lawyer.56 Davis' colleague was the state's Attorney General, James Sullivan, who at the time of the trial was the Republican candidate for governor. Sullivan was a man of the center, but he consistently took some positions that were more progressive than any articulated by John Adams, Thomas Jefferson, and many other contemporaries more famous than he. Sullivan's role in the Martin case was congruent with the unusually consistent liberalism which he displayed throughout his career. Believing that society was composed of equal individuals, he spun out the implications of that belief in a wide range of issues as they presented themselves--banking and the economy, religious freedom, an end to slavery, and, most unusually, gender relations.57
Born the son of an Irish immigrant in Berwick, Maine, in 1744, Sullivan was sixty-one at the time of the Martin trial. He lacked, in John Adams' words, an "Accademical Education," and had begun "with neither Learning, Books, Estate or any Thing, but his Head and Hands." He also suffered from epilepsy and was badly lame as a result of a boyhood accident. But in spite of these handicaps Sullivan moved quickly to claim a legal education, make an upwardly mobile marriage, and enter public service.58 From the mid-1770s on he could be found on one revolutionary committee or another, in the General Court, in the Provincial Congress, or as Attorney General; he was a member of the legislature when it passed the confiscation laws of 1779.59 During the revolutionary era he endorsed strong, even punitive confiscation law, and after the war he was often found on the side of those who were making it difficult for Tories to return, but he also assisted some returning Tories whom he knew personally.60 Although as Attorney General Sullivan aggressively prosecuted the state's interest against the proprietors of large speculative endeavors, he had also been a lawyer for the largest of Maine's land speculators.61
Sullivan was committed to the democratic promises that the Revolution had made. He worried about the future of civil liberties under the new Federal Constitution until the Bill of Rights was added.62 When the French Revolution broke out, Sullivan wrote at least one pamphlet supporting it and emphasizing its parallels with the American experience.63 He was serving as a judge when the first in theseries of Quock Walker cases made slavery illegal in Massachusetts in 1781; he believed that the nation as a whole should adopt a long-range program of gradual emancipation coupled with equal education for black and white children.64 Sullivan was skeptical of capital punishment. 65 An ardent advocate of religious liberty, Sullivan defended the Universalists--a high proportion of whom were women--both in court and in print at a time when they were very unpopular.66 He was, in short, a moderate Jeffersonian and a classical liberal, and, most importantly for our purposes, Sullivan was willing to follow the principle of government by the consent of the governed where it led; certainly as far as the elimination of property requirements for voting, and, long before the Martin case, up to the boundaries of gender.
In the spring of 1776 Sullivan wrote to Elbridge Gerry:
Every member of Society has a Right to give his Consent to the Laws of the Community or he owes no Obedience to them. This proposition will never be denied by him who has the least acquaintance with true republican principles. And yet a very great number of the people of this Colony have at all times been bound by Laws to which they never were in a Capacity to Consent not having estate worth 40/ per annum &c ... . Why a man is supposed to consent to the acts of a Society of which in this respect he is absolutely an Excommunicate, none but a Lawyer well dabled in the feudal Sistem can tell.
Sullivan distrusted the rich as well as the poor--"Stupid Souls ... are as often found on the throne as on the Dunghill"--and urged that voting for legislation that did not involve new taxes should involve "every person out of wardship that is bound thereby."67
Gerry sent Sullivan's long letter on to John Adams, who was representing Massachusetts at the Continental Congress in Philadelphia and dealing daily with the problem of how to turn the principle of the consent of the governed into practical devices for a new political order. Sullivan's letter came hard on the heels of Adams' own correspondence with his wife on this point. "In your new code of laws," Abigail Adams had written, "I pray you remember the Ladies." Together Abigail Adams and James Sullivan forced him to a consideration of the composition of "the public." In response to Sullivan, JohnAdams wrote the powerful and now well-known letter of May 26, 1776, in which he contemplated the question "Whence arises the Right of the Men to govern Women, without their Consent?" Sullivan had said that "every person out of wardship" should participate in legislation in some way, and Adams might well have responded that coverture placed married women in "wardship" to their husbands. But Adams construed Sullivan's letter to imply that women and children were governed without their consent, and he could see that the logic of liberalism, pressed as extensively as Sullivan was willing to press it, led inexorably to a challenge to coverture. "Depend upon it, sir," Adams warned, "it is dangerous to open So fruitfull a Source of Controversy and Altercation, as would be opened by attempting to alter the Qualifications of Voters. There will be no End of it. New Claims will arise. Women will demand a Vote."68
Sullivan continued to align himself with those who supported various challenges to women's subordination; in 1792 he could be found working as state Attorney General, persuading a jury "that girls had equal rights under the constitution and could not be expelled from school" when the selectmen of the town of Northampton refused to allocate funds for the schooling of girls.69
In short, though Sullivan was a clever lawyer, and quite capable of constructing arguments to fit the case at hand, on this occasion the arguments he offered were rooted deeply in his understanding of the meaning of the Revolution and his own belief in what the outcome of the Revolution should be. His commitment to principle may well have been heightened by his political experience; a year after the trial, Sullivan would describe the Supreme Judicial Court as "artful, malignant and cruel."70


The attorneys who spoke for Martin strove to confine the case to narrow grounds. Had the Court of Common Pleas had appropriate jurisdiction? Had there been procedural due process? Was William Martin's title clear? The two opposing lawyers, by contrast, explicitly located the case in its revolutionary context. They focused on the question of married women's obligations to the state, and urged the court to sustain the radical implications of the choices made by the revolutionary era legislature.
As the case developed in court, the arguments were aligned along two strands. One line of argument stressed due process: Martin claimed that his property had been seized without proper legal procedure. James Sullivan introduced a political dimension. Arguing for the state of Massachusetts, he claimed that in time of war a loose interpretation of statutes was permissible, indeed inevitable.
The other line of reasoning challenged the relationship of married women to the state. No one denied that the state had a right to seize any property belonging to William Martin. Martin had met virtually all the requirements of the confiscation statute. As an officer in the Royal Regiment of Artillery, he had levied war against the government and people of the United States; he had withdrawn from Massachusetts to a place "under the power of the fleets or armies of the ... king," and he had not taken "an oath of allegiance to [the United] ... states." But what about Anna Martin? No one denied that she had property, and she, too, met some of the explicit conditions of the statute: she had absented herself from Massachusetts after April 19, 1775. Did she have an obligation to make clear her own loyalty to the revolutionary state?
The answer would be found, George Blake argued in his opening statements, in a close reading of the statute. The Confiscation Act addressed itself to "every inhabitant and member of the state." Women were inhabitants of the state; were they also members? Blake thought not. His assertion is worth reading at length:
Upon the strict principles of law, a feme covert is not a member; has no political relation to the state any more than an alien ... . The legislature intended to exclude femes-covert and infants from the operation of the act; otherwise the word inhabitant would have been used alone, and not coupled with the word member.71
As we have seen, confiscation had been linked legislatively with oaths of allegiance and with definitions of treason. Now Blake drew on those links to maintain his point: "A feme-covert was never holden to take an oath of allegiance." Like treason statutes, he went on, the confiscation "statute is highly penal" and therefore demanded very narrow interpretation. Blake construed the preamble in gender-specific terms:
The object [of the statute] was not to punish, but to retain the physical force of the state ... . How much physical force is retained by retaining married women? What are the personal services they are to render in opposing by force an actual invasion? What aid can they give to an enemy? So far are women from being of service in the defence of a country against the attacks of an enemy, that it is frequently thought expedient to send them out of the way, lest they impede the operations of their own party.72
Blake proceeded to run through a long list of British precedents, easily found, for the common-law rule "as a woman is supposed to have acted under the coercion of the husband," she is regularly excused for acts, otherwise illegal, done with him. "And can it be supposed"--one imagines him thundering--"in the case before the Court, that the legislature contemplated the case of a wife withdrawing with her husband? It ought not to be, and surely was not intended that she should be exposed to the loss of all her property for withdrawing from the government with her husband. If he commanded it, she was bound to obey him, by a law paramount to all other laws--the law of God."73
Blake's voice reaches across the centuries to spell out, in politically intense and loaded language, what his contemporaries took to be the political implications of the concept of the feme covert. Women were merely residents. Only men were active members of the commonwealth; indeed, the eighteenth-century slang for penis underscored the extent to which the concept of the citizen was not truly universal; at some level, to be a member was necessarily masculine and generative. Implicit in this understanding was the antique definition of citizen, a definition as old as the Roman republic: the citizen was the man who is prepared to take up arms to defend the republic, and so, in reciprocal relationship, had a right to claim a voice in the decision to resort to arms.74 Thus Blake could speak in terms of "personal services" and the right of the state "to retain the physical force of the state." Once this was established, then much else followed; at its extreme, the feme covert "has no political relation to the state any more than an alien." It would be hard to be more unambivalent than this. Many years later, claiming a political voice for women, the abolitionistSarah Grimké would ask plaintively, "Are we aliens because we are women?" Blake's answer, obviously, was an unequivocal yes.
In a striking example of how contemporary usage shapes the thoughts that it is possible to think, no one in the courtroom was able to separate women from infants. Blake could not imagine that by "inhabitant and member" a state might have wished to identify adults who were competent to make judgments of their own; that infants might be inhabitants but not members; that married women might be both. Blake elided the issue by simple assertion: "The legislature intended to exclude feme covert and infants ... otherwise the word inhabitant would have been used alone."75 Even in his own terms, this was not an accurate assertion, for earlier in his argument Blake had given the treason statute of 1777 a close reading for other purposes, and surely had cast his eyes on the opening words of that document, which began by saying that every person was an "inhabitant and member" of the commonwealth. If women could not be separated from infants, neither could women and infants be separated from men in the revolutionary definition of "inhabitant and member." But Blake was speaking a quarter century after the revolutionary statute, and it was becoming possible to construe it in ways that elided the initial understanding.
In an argument that, as far as I can tell, was unprecedented, the Attorney General and the Solicitor General undertook to challenge what Blake had offered as the common sense of the matter. They insisted that Anna Martin met the clear terms of the law; she had withdrawn from the state. Was she excused because she was feme covert? The statute said "any person." The provisions that confiscated dower had provided that dower would not be confiscated for women who stayed; this suggested that married women had the "power of remaining or withdrawing, as they pleased." This element of choice, of course, had traditionally been absent from the repertory of the married woman; to introduce it was a challenge to traditional practice.
James Sullivan attacked Blake's assertion that women were not included in clauses that were phrased with masculine pronouns; that is, Blake's denial of the generic he. On this point, Sullivan was outraged:
The same reasoning would go to prove that the constitutions of the commonwealth does not extend to women--secures themno rights, no privileges; for it has no words in the feminine gender; it would prove that a great variety of crimes ... could not be committed by women, because the statutes had used only the words him and his ... . Who are members of the body politic? are not all the citizens, members: infants, idiots, insane, or whatever may be their relative situations in society? Cannot a feme-covert levy war and conspire to levy war? She certainly can commit treason; and if so, there is no one act mentioned in the statute which she is not capable of performing.76
Together, Davis and Sullivan articulated a case for the politicized married woman. Shaking loose from traditional assumptions about women's vulnerability, their incompetence, their distance from issues of concern to the commonwealth, Davis and Sullivan offered the court a woman who had been redefined as competent citizen by revolutionary legislation and who had been challenged to make her own political choices in the crucible of revolution.77
Throughout the trial Sullivan raised the level of intensity, using politicized words that others carefully avoided: enemy, war, sovereignty. "Both ... the absentee and the conspirator act ... were made for getting hold of the property of an enemy ... . The statutes were a sort of declaration of war, and the measures then adopted ... were grounded on a state of war."78 He accused the other side of being unfaithful to the intent of revolutionary legislation: "If all the decisions which were had during war ... are, in time of peace, liable to be reversed, there would be instant cause of war, and there would be no end of war."79 For Sullivan and Davis the Revolution had claimed the loyalty of all persons--not only physical service but emotional and mental allegiance as well.80 Women could share this sort of citizenship, and, they concluded, women could also share in its obligations. As the Declaration of Independence had done, their understanding leaned on general principles of natural law more than the English tradition of common law; indeed, they abandoned the common-law principle of "unity of person" accomplished by marriage and substituted natural-law understanding of the possibilities of reason to shape political behavior. 81 It may be that the woman they envisaged bore some debt to the radical British author Mary Wollstonecraft, who had offered competence and capability as preconditions of citizenship. "How can abeing be generous who has nothing of its own? or virtuous who is not free?" Wollstonecraft had asked. If Anna Martin were to be a member of the commonwealth, she would have to be defined as a being who had something of her own.
"Was she ... criminal because ... she did not ... rebel against the will of her husband?"
The end of the story is quickly told. The politics of the courtroom pitted the republican candidate for governor against a panel of judges who were committed to his political defeat. The two days of argument took place before a bench composed of men in late middle age--George Thatcher, the youngest, was fifty-one; Francis Dana the eldest, sixty-two--who had moved in and out of elective politics throughout their careers. All four judges voted to support James Martin's claim to his mother's property, thus reversing the lower court's decision. Three of the judges addressed in their opinion the issue of the nature of female citizenship in a republic; the most extensive of these opinions was offered by Theodore Sedgwick.
Sedgwick had been a cautious supporter of the Revolution and now was a conservative Federalist.82 As a member of the state legislature, the Continental Congress, and then the Federal Congress, Sedgwick had voted against harsh treatment for returning Tories. He had been energetic in helping friends he considered conscientious and honest loyalists to recover their confiscated property after the war. In writing his opinion, Sedgwick began with the Revolution, offering a curiously apolitical interpretation of what it had been, stressing its elite origins, and respecting those who from "principles of duty and conscience" could not support it. Rereading the charges, Sedgwick emphasized that William and Anna Martin had been jointly charged with levying war, adhering to the king of Britain, and withdrawing themselves. "[W]e are called upon ... to say whether a feme-covert, for any of these acts, performed with her husband, is within the intention of the statute; and I think that she is not." The common law, Sedgwick emphasized, exempts a married woman from punishment for most crime when performed with her husband because of the strength of his "authority" and "her duty of obedience." How can we have asituation, Sedgwick asked, in which women are not held responsible for independent judgment on straightforward ethical matters like theft, and yet held to independent judgment on political matters in which even "men of great powers and equal integrity, as is said by the Attorney-General, divided [?]"
Can we believe that a wife ... should lose her own property, and forfeit the inheritance of her children ... [and] be considered as 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?83
In this way, Sedgwick came to articulate the issue of the relationship of women to rebellion and disorder. Was it possible to imagine that the revolutionary coalition in Massachusetts had intended to call upon married women to rebel against husbands? It had certainly called upon sons to rebel against fathers. But, Sedgwick thought, the state could not possibly have tried to recruit women; there was nothing they could contribute to the rebellion.
A wife who left the country in the company of her husband did not withdraw herself; but was, if I may so express it, withdrawn by him. She did not deprive the government of the benefit of her personal services; she had none to render; none were exacted of her ... . Can it be believed that a humane and just legislature ever intended that wives should be subjected to the horrid alternative of, either, on the one hand, separating from their husbands and disobeying them, or, on the other, of sacrificing their property?
In the end all the judges chose common law over natural law, English precedent over republican potential, narrow interpretation over loose construction. They chose James Martin's private claim over the Commonwealth of Massachusetts' public claim. The judges spoke in terms of deference, of obligation, of what women owed to their husbands, what men had a right to demand of their wives. Dana spoke of the "duty, which, by the laws of their country and the law of God,[women] ... owed to their husbands"; Sedgwick spoke of the propriety of a woman's submission to her husband's opinions and judgments, even when they were evil; Simeon Strong observed that the married woman "is bound to obey his commands ... except perhaps in treason and murder ..." (emphasis mine).
The marriages these men describe are not companionate marriages. 84 Blackstone had defended coverture as protective; the woman, he had said, was a "favourite" of the laws of England. But there is little in the language of the judges or of the plaintiff's attorneys that suggests favoritism and protection: all is force, violence, constraint. In odd juxtaposition, the Federalists spoke of the Revolution itself in mild terms. They referred to the Revolution primarily in connection with giving extended time for loyalists to make up their minds about allegiance, in referring to the persistence of English common law despite the revolutionary fault line. To define the married woman this way in the context of the Martin case was to deny the claims of the American citizens--the purchasers of the confiscated property, as well as the state of Massachusetts--and to privilege the claims of the alien and Tory; yet all the judges reached this conclusion. The paradox was that in order to sustain the state's claim that Anna Martin had been a "member" of the Commonwealth, she and her heirs would have had to forfeit their property.85
Federalist judges ruled on behalf of the Tory claimant as they had often done in the past.86 The significance of the Martin case lies not so much with the substance of the decision, which was congruent with long-term trends in Massachusetts and elsewhere, but in the texture of the argument. The Federalist jurists rallied around a traditional, corporate vision of society in which the family was still, as it had been for the Puritans, a "little commonwealth" headed by a benevolent patriarch. Ironically they may well have been blinded from understanding how retrograde their decision was precisely because they understood themselves to be personally generous, even indulgent, toward the women of their own families. Sedgwick himself took enormous pride in having freed the family's slave, "Mumbet," who took the name Elizabeth Freeman, and in nurturing his own daughter's love of reading--Catharine Maria Sedgwick, who was fifteen years old in 1805, would grow up to be a leading novelist of hergeneration. Yet personal generosity left patriarchal relations intact; the father who chose to be indulgent toward his dependents had the option of choosing otherwise.87
That conservative public politics should be thus linked with patriarchal private politics comes as no surprise, except insofar as these Federalist judges and lawyers are unusually explicit in their denial of the civic capacity of women. They were voicing an interpretation of marital relations that we now understand to be anachronistic in light of what would follow. What is more intriguing is that the state should have taken on the defense in the case, and that James Sullivan and Daniel Davis should have offered the arguments they did in favor of the civic capacity of women. For Sullivan and Davis moved far past the claim of mutuality in marriage to a vision of marriage in which the partners were independent moral actors. Theirs was a vision of family life in which wives as well as husbands were challenged to evaluate the Revolution, take a position, and risk their property and prosperity on the choice they made. Sullivan and Davis were arguing that if patriarchy in politics is rejected, so too must be patriarchy in marriage. The Federalist judges wanted it both ways: to abandon patriarchy in politics but maintain it, albeit in sentimental form, in their private lives. "Judicial patriarchy" would persist for the rest of the nineteenth century.88
Sullivan's comments in the Martin case suggest the outer limits of how far it was possible to go on the woman question, and seizing a married woman's property because she had not made her own political commitment was going very far. In Sullivan's language, the insistence that married women had the power to make choices was associated with a vision of the Revolution as violent. It was congruent with other positions which Sullivan took throughout his career, and with positions that others articulated--briefly--in the radical spaces of the Revolution. Sullivan was consistent in his liberalism, supporting a free market not only in the economy but in ideas, and not flinching when that position suggested that women were necessarily part of the polity. No one joined Sullivan and Davis out on their limb, and they would not venture out there again.89
In 1809, the Supreme Judicial Court of Massachusetts, now with Theophilus Parsons as Chief Justice, sustained the dower right of loyalist wives who had fled with their husbands by upholding theclaims of the widow of the colonial Solicitor General to dower in a confiscated estate.90 In the same year another legally astute woman, Grace Tabor Kempe, the widow of the king's Attorney General for New York City, challenged the wartime confiscation laws that had taken New Jersey property that she, like Anna Martin, had brought into her marriage. Her attorney, Richard Stockton, a conservative supporter of the Revolution, echoed Blake and Parsons in his arguments before the U.S. Supreme Court. "Here then is a feme covert charged ... for accompanying her baron," observed Stockton. "A woman cannot commit ... this species of treason, by obeying her husband ... . Receiving her husband, knowing him to be a traitor, is not treason." Stockton could not have said it more strongly; until the traitor was convicted, his wife could not even deny him access to her bed and her body. It did not matter to the married woman that the state was disrupted; she remained under the power of her husband. In New Jersey single women voted in 1809, "because the law supposes them to have wills of their own." But in a married couple, only the husband was the inhabitant; "the wife cannot properly be called an inhabitant." For technical reasons, Justice John Marshall upheld the claims of those to whom the New Jersey lands had been transferred, but he made it clear that his sympathies were with Stockton and Kempe.91
"Marriage ... with a foreigner is as voluntary ... as expatriation"
At the height of the French Revolution, an anonymous contributor to a conservative Boston newspaper expressed confusion about women's claim to citizenship. "'No cit[izen]ess to my name, I'll have,' says Katey, '[it] means, A woman of the town.'" "Katey" dismisses the potential of female citizenship, literally linking--as the ancient Greeks had done--the woman of the polis to woman of the streets. To make no distinction between the woman who participates in public life and the woman who makes herself sexually available in public has for millennia been a conservative political device. The story of Martian v. Commonwealth of Massachusetts emphasizes the conservative outcome of the American Revolution, as men who had supportedindependence nevertheless undertook in its aftermath to defuse the memories of revolutionary violence and upheaval, to constrain the renegotiation of gender roles, and to limit the political responsibilities of married--by which they actually meant adult--women. They found it impossible to imagine respectable adult women as anything other than wives. They could not separate the sexual monopoly which a man exercised over his wife in marriage from the political monopoly which he exercised over her property. They could not imagine the adult woman with her own obligation to the state.
But the story of Martin v. Commonwealth also contains within it evidence that there existed another scenario. This alternative acknowledged the authenticity of the revolutionary break with the past, pointed the way to a reconstruction of the relationship of women to real property, and explicitly claimed for women the responsibility of assuming the obligations of citizenship. The important point is not that this path proved too rocky for the revolutionary generation. The important point is that, for a brief moment, it was glimpsed. The issues raised in 1805 were not fully settled; indeed, they would linger on, in various forms, into our own time.
A quarter century after the decision in Martin, Joseph Story--the vivacious youngest justice ever appointed to the Supreme Court--brought them to one kind of closure, in his thoughtful opinion for the majority in Shanks v. Dupont, decided in 1830. Story had known many of the principals in the Martin case during his years practicing and teaching law in Massachusetts.92 The Martin case lurked behind Shanks. Although the issue was inheritance rather than confiscation, the case turned on the question of the allegiance of Ann Scott Shanks, who, like Anna Gordon Martin, had been born in the colonies, a subject of the king. Ann married a British officer in 1781 (that is, before the war's end, and while American claims to independence were still in some doubt), and like Anna Martin, had returned with him to England. Her sister Sarah married an American. Their father died just before the end of the Revolution, leaving his property to his two daughters; years later, when both Sarah and Ann were dead, Sarah's children sued to recover the lands that Ann's children claimed. Was Ann Scott Shanks a British subject? If she was, the United States was bound by the terms of the peace treaty that ended the Revolution to protect her claims to property lost in the war. Was she an Americancitizen who had renounced her allegiance? What choices did she, as a feme covert, have the capacity to make?
Coverture was still the rule in the United States, and Story did not try to undermine it explicitly. He acknowledged that the act of marriage was "the only free act of her life." But in keeping with his already well-established sensitivity to questions of women's social situation, Story did widen the range of choices available to the married woman. Story credited his experience in country schooling. Boys and girls "studied the same books," Story observed years later; "we recited our lessons in the presence of each other ... . I was early struck with the flexibility, activity, and power of the female mind. Girls of the same age were ... quite our equals in their studies and acquirements"93
In 1830, Story argued that "marriage with an alien, whether a friend or an enemy, produces no dissolution of the native allegiance of the wife. It may change her civil rights, but it does not affect her political rights or privileges." Ann Scott had not lost her American citizenship simply by marrying Joseph Shanks. But, Story argued, she did intentionally dissolve her allegiance by going "voluntarily under British protection, and adhering to the British side, by her removal with her husband." Two nations--Britain and America--claimed her allegiance, "but they virtually allowed her the benefit of her choice." Story explicitly denied that "her situation as a feme covert disabled her from a change of allegiance." He pointed out that the United States had treated as citizens "British femes covert, residing here with their husbands at the time of our independence, and adhering to our side until the close of the war." The Supreme Court concluded that Ann Shanks, whom the British government had never ceased to treat as a British subject, was a British subject, and that her heirs could claim her property under the terms of the Treaty of 1783.
Story made a distinction between the "incapacities ... provided by the common law, [that] apply to [married women's] ... civil rights, and are for their protection and interest" and married women's "political rights, [which] ... stand upon the general principles of the law of nations." These political rights, he argued, are not undermined by coverture, nor do they prevent married women from "acquiring or losing a national character." In this way Story's decision in Shanks v. Dupont opened the door toward a broader conceptualization of thepolitical capacity of married women. The woman with political capacity was a woman who could choose not only her husband but also her political allegiance.94
Citizenship is basic to all other claims which individuals make on the state, or the state makes upon them. At its founding, the American government assumed that any free person who had not fled with the British or explicitly denounced the patriots was a citizen. It established no formal categories of first- and second-class citizens or of active and passive. Most people who become citizens do so by being born on American soil; they claim jus soli, the common-law right of the land. Others, born to U.S. citizens in other parts of the globe, claim citizenship by descent, by jus sanguinis, the right of the blood. And U.S. citizenship can be acquired by naturalization. The citizenship acquired in each of these three ways is essentially the same.95
The Naturalization Act of 1790 was generous in the welcome it offered any "free white person." A new citizen needed only to reside for two years in the United States (and one year in any one state), to prove his or her "good character," and to take an oath to "support the constitution of the United States." But by racializing the qualifications for newcomers, this first naturalization statute used bloodlines for the transmission of citizenship, recalibrating the relationship to the political order of resident free blacks and free whites and setting strict limits for the future. (Only after 1870 could people of African birth or descent be naturalized.96) Naturalized parents automatically conveyed citizenship to their children under twenty-one. All children of citizens were citizens wherever they were born, but "the right of citizenship shall not descend to persons whose fathers have never been resident in the United States."97 Thus the first statute situated blacks differently than whites, and mothers differently than fathers. Subsequent variations on naturalization law strengthened the skewing toward fathers. Until 1934 a legitimate child born abroad was a birthright citizen only if its father was a citizen who had resided in the United States before the child's birth. (The residency requirement was intended to protect against the development of a category of legal citizens who had no experience of life in the United States generation after generation but who could still claim its protection.) Nothing was said about citizen mothers.
The first naturalization law was written in terms of "persons," butnaturalization records show that virtually all naturalizations were of adult men. It is generally thought that the desire of immigrants to purchase property in the United States, rather than the desire to vote, drove the decision to naturalize; it was the rare single woman with property to protect who was most likely to take her own oath of naturalization during the years of the early republic.
When Ann Shanks's niece and nephew sued for property that they thought she had lost title to by her marriage to an alien man, they may have had in mind the practice in France, where the Code Na-poléon of 1804 had made a Frenchwoman an alien upon her marriage to a foreigner. Americans were rarely consistent in what they meant when they said a woman was a citizen of the United States, and even less consistent when they said a married woman was a citizen. For example, in 1822 a Kentucky judge expressed a capacious definition of citizenship which included married women in its boundaries: "A citizen," Benjamin Mills wrote, " ... is one who owes to the government, allegiance, service, and money by way of taxation, and to whom the government in turn, grants and guarantees liberty of person and of conscience, the right of acquiring and possessing property, or marriage and the social relations, of suit and defence, and security in person, estate and reputation." But he was outvoted; the majority, in a judgment that echoed the decision in Martin, ruled that women and infants "are generally dependent upon adult males, through whom they enjoy the benefits of those rights and privileges."98 It was thus an easy step when in 1855 Congress extended the principle of marital unity to provide that "any woman who might lawfully be naturalized under the existing laws, married, or shall be married to a citizen of the United States shall be deemed and taken to be a citizen."99 That is, foreign women who married male citizens did not need to go through a naturalization process or even take an oath of allegiance, because they absorbed citizenship through their husbands' identities.
The 1855 law made U.S. practice congruent with that of major European powers. It also protected many women--whose native countries treated them as aliens when they married American men--from statelessness. It protected such women from legal challenges to their ability to inherit real property when widowed.100 The law, however, made no comment about American women who might marry alien men; Story's position that they retained their citizenship prevailed.By pulling the concept of political rights out from under coverture, Story's decision helped markedly in the redefinitions that would have to occur before Benjamin Mills's minority position prevailed, and it was possible to establish the full political identity of American women.
Story's decision in Shanks was one of many developments which transformed the inherited law of domestic relations during the first century of American national life. The appropriate marriage for a postrevolutionary republic was one that emphasized the contractual nature of marriage--a civil contract between equals who are bound by love--and that understood the household to be, as historian Michael Grossberg has phrased it, "a voluntary collection of separate individuals."101 But until the full emancipation of the Thirteenth Amendment in 1866, the law of domestic relations continued to treat the relations of husband and wife, parent and child, master and servant as part of a single continuum. The civil contract was not between individuals of equal civil capacities; the obligations of wife to husband continued to be considerably more severe than the obligations of husband to wife.
What had been virtually unquestioned at the beginning of the century was, over the course of it, subjected to heavy attack--the law of master and servant by people opposed to slavery and to indentured servitude; the law of husband and wife by women's rights advocates. Often these were the same people. The Declaration of Sentiments drafted by Elizabeth Cady Stanton for the Seneca Falls Convention of 1848 made legal demands for women's rights, attacking the rules and assumptions of coverture. These demands led to married women's property acts in many states; most were developed after the Civil War. The Thirteenth Amendment made slavery illegal and the Fourteenth Amendment's guarantee of citizenship to "all persons born or naturalized in the United States" made the word "white" in the naturalization legislation of 1790 and thereafter unconstitutional. (However, state and federal laws excluded Asians from citizenship. In 1870 California required "Mongolian, Chinese or Japanese females" to convince the Commissioner of Immigration that they came voluntarily and were not prostitutes; in 1875 federal law placed a similar burden on all women immigrants from Asia.102) Although no single statute ended coverture as a system, each rubbed away at one or anotherraw edge. By 1870 a new, magisterial treatise on the law of domestic relations by James Schouler spoke of "confusion and uncertainty." 103
Schouler is a good guide to locating the moderate position on these matters in the Gilded Age. Instead of defending coverture for making woman "a favourite of the law," as Blackstone had done a century before, Schouler was apologetic. Coverture, he said forthrightly, was no friend to the wife: "it sacrifices her property interests, and places her almost absolutely within her husband's keeping, so far as her civil rights are concerned ... The husband ... is permitted to lord it over the wife with a somewhat despotic sway." Schouler contrasted common-law practice with the civil-law tradition descended from Rome, where the property rights of husband and wife were independently protected. "The wife was comparatively free from all civil disabilities. She was alone responsible for her own debts; she was competent to sue." Schouler shrewdly interpreted the drift toward married women's property laws as a movement to make common law more like civil law.104
But Schouler quickly fled from the implications of his own insights. Despite the inequalities of the common-law tradition, the Anglo-Saxon "race" cherished "justice and independence." Identity of interests, Schouler thought, "is essential to domestic happiness." In the United States, the laws were contradictory. Some--like married women's property acts--encouraged women's independence; others, which preserved special protections like homestead exemptions for widows, rested on the assumption of the wife's subordination. Schouler knew where he stood; the example set by Rome, where the interests of husband and wife had diverged, was not a good model. "Wide-spread incestuous intercourse, licentiousness most loathsome and unnatural, followed in the wake of marital independence. When Rome sank into utter dissolution, woman possessed a large share of cultivation and personal freedom; yet she had touched the lowest depths of social degradation."105 The message was clear: American women scorned common-law traditions at their peril.
Meanwhile there was little consistency in how courts dealt with the cases that came before them. It frequently happened that foreign-born women married American men who worked abroad. These women gained derivative citizenship during their marriage, but they often found that if they were widowed, they could not count on being issued American passports.106 When women of American birth moved abroad with their foreign-born husbands, sometimes American courts followed Story's lead and sustained the women's claim to their birthright citizenship. Since the Shanks case was embedded in the turmoil of the revolutionary era, however, not all judges agreed that its precedents were permanent, and many were prepared to argue that a married woman's citizenship "naturally" followed that of her alien husband. They treated such women as having "suspended" their citizenship. What "suspended" citizenship meant was not always clear, but in accordance with the principle of "marital unity," it was common that citizen women who moved abroad actually lost their citizenship until they returned to the United States.
Expatriation--the loss of citizenship--traditionally has been a severe punishment, usually reserved for cases of treason. Indeed, sympathy for foreign women who faced it lay behind the derivative citizenship offered to women by the law of 1855. If an American-born woman had to assume the nationality of her husband when she married she might become the subject of a king or tsar in a political system that offered her even less protection than did the United States. She might even become stateless. In time of war, the American woman who married, say, a German man, could overnight change her status from a citizen to an alien enemy. If Americans claimed to base their political system on the "consent of the governed," could women's "consent" be arbitrarily denied? Joseph Story had thought not, but in the second half of the nineteenth century xenophobia strengthened, and what had seemed self-evident in 1830 was less so in 1900. When President Ulysses S. Grant's daughter married an Englishman in 1874 and went to live with him in England, she lost her citizenship, which had to be reinstated by a special act of Congress in 1898.107 In 1907, Congress passed a statute which explicitly provided that American women who married aliens actually lost their citizenship, even if they continued to reside in the United States.
Ethel Mackenzie, who had been born in California, married Gordon Mackenzie, a British subject, in 1909--two years after the passage of the Expatriation Act of 1907. Mackenzie was active in the woman suffrage movement in California, and when it was successful in 1911 she worked in the San Francisco voter registration drive. It is not surprising that she herself should try to register to vote. When the Board of Election Commissioners denied her application, holding that upon her marriage to a British subject she had "ceased to be a citizen of the United States," she refused to let her husband apply for citizenship and instead challenged the law, claiming that Congress had exceeded its authority. She could not believe that Congress hadactually intended to deprive her of the citizenship she understood to be her birthright. But the Supreme Court ruled that she had "ceased to be a citizen by her marriage," grounding its decision on what it called the "ancient principle of our jurisprudence": the "identity of husband and wife."
Ethel Mackenzie had claimed that citizenship was a right, a "privilege and immunity which could not be taken away from her except as a punishment for crime or by her voluntary expatriation." But Justice Joseph McKenna observed that the "marriage of an American woman with a foreigner ... is as voluntary and distinctive as expatriation and its consequence must be considered as elected."108 (emphasis mine)
The decision in Mackenzie angered and energized suffragists. American women needed suffrage to protect themselves against involuntary expatriation and statelessness. During World War I hundreds of native-born women were required to register as alien enemies because of the status of the men they had married. The Alien Property Custodian confiscated millions of dollars of property from native-born women married to alien enemy husbands.109 The repeal of the Expatriation Act of 1907 was high on the suffragists' agenda, and they turned to it as soon as suffrage was accomplished. The Cable Act of 1922 provided that "the right of a person to become a naturalized citizen shall not be denied to a person on account of sex or because she is a married woman." But the decision in Mackenzie has never been expressly overruled, and the Cable Act had severe limitations. It permitted American women who married foreigners to retain their citizenship only if they married men from countries whose subjects were eligible for U.S. citizenship--that is, not from China or Japan. American-born women who married Chinese or Japanese men still lost their citizenship; American women who married men who were eligible to apply for citizenship were themselves treated as naturalized citizens who lost their citizenship if they resided abroad for two years. The Cable Act was extended by amendments well into the 1930s, but loopholes remained, and not all of it was made retroactive. Japanese women were not eligible to marry American men until the cautiously worded Soldier Brides Act of 1947. As late as the 1950s, some American-born women were denied passports becausethey had married aliens before 1922. The heritage of coverture, though submerged, remained in place.110
At the turn of the twenty-first century, traditional marriage relations continue to play a significant role in the ability of citizens to transmit birthright citizenship to their children, the eligibility of foreign individuals for sanctuary from political persecution, and the ability of foreign nationals to take advantage of American laws encouraging family reconstitution. Although the word "coverture" is no longer used, immigration law retains elements of the old system. Courts have held that there is no implicit constitutional right to transmit citizenship to one's children; the transmission is guided by specific legislation.
For example, not until 1934 was naturalization law revised to make it possible for either citizen parent to transmit birthright citizenship to a legitimate child if the parent could show some prior residence in the United States. The basic legislation has been revised over the years, and the amount of prior residence required has varied. (For births after 1986 it has been five years of prior physical presence, at least two of which were after age fourteen.) But none of these statutes was retroactive, and an adult legitimately born abroad in 1933 or earlier who wishes to claim birthright citizenship has had difficulty claiming it through a mother. In 1971 a federal court held that the pre-1934 practice of making a distinction between fathers and mothers was not discriminatory because citizenship is "a privilege conferred as a matter of grace."111 Not until 1989 did a federal court affirm maternal birthright citizenship for a woman born abroad before 1934. When Martha Elias' Nebraska-born mother married a Canadian in 1910, she lost her U.S. citizenship; only if she divorced her husband and registered as a U.S. citizen with a U.S. consul or returned to live in the United States could she reclaim it. Martha Elias argued that her mother had never intended to give up her U.S. citizenship; that men who were born in the United States could move and marry abroad without putting their citizenship status in jeopardy. The federal court for the Northern District of California upheld the dead mother's right, as a matter of equal protection under the law, to transmit citizenship to her child. But the suit was not filed as a class action, and the court did not issue a nationwide injunction thatwould bar the State Department from denying passports in similar cases; at this writing, the question remains unsettled.112
If the status of the legitimate child born before 1934 to a nonresident woman citizen remains in doubt, the status of the out-of-wedlock child born to an alien father and a citizen mother is somewhat more clear. Until 1941, if the out-of-wedlock child was legitimated by the alien father its citizenship followed that of the father. For the out-of-wedlock child, it was the alien father's choice to legitimate (or not to legitimate) the child that determined the child's ability to claim U.S. citizenship. For refugees in the late 1930s, these limitations could have grave consequences. Not until 1941 was the line of descent also threaded through the mother.
A complex series of statutes have continued to monitor the terms by which an illegitimate child born abroad with only one citizen parent can claim citizenship. There is no question that U.S. citizen mothers can transmit their citizenship to their children born abroad, whether legitimate or illegitimate, as long as the mother had lived in the United States for at least five years, two of which were after she reached the age of fourteen.113 But U.S. citizen fathers have had to meet those requirements and also establish their paternity and financial support before the child reaches the age of eighteen. In 1998 the U.S. Supreme Court decided that the unequal burdens on citizen fathers and mothers were constitutional, because parents were differently situated: as Justice John Paul Stevens wrote: "The child's blood relationship to its birth mother is immediately obvious ... [but] an unmarried father may not even know that his child exists." But Justice Ruth Bader Ginsburg, who, as we shall see later in this book, had spent much of her career considering questions of equal rights and equal obligations, attacked the practice as dependent on stereotypes of what was likely to be "obvious" and as "one of the few provisions remaining in the United States Code that uses sex as a criterion in delineating citizen's rights." That the imbalances were now reversed, and it was the unmarried citizen father who could only transmit birthright citizenship with difficulty, did not seem to her to establish impartiality or equal application of the law. It continues to matter to a child born abroad of unmarried parents, only one of whom is a citizen, whether that parent is the father or the mother.114
Gender has been a significant, though underestimated, factor inU.S. refugee policy; most recently it has affected the issue of whether fear of genital mutilation is reasonable grounds for asylum. Nearly half the world's refugees are women; they constitute a majority of refugees from Africa.115 In U.S. law, in order to qualify as a refugee and apply for asylum, an alien must be unable or unwilling to return to his or her country of nationality because he or she has a well-founded fear of persecution on account of race, religion, nationality, political opinion, or "membership in a particular social group." Most claims for asylum have been made on the basis of persecution for political opinion or social group. (Jews in the Soviet Union were one large "social group.") Although genital mutilation has been outlawed in the United States, women who face genital mutilation have not clearly been defined as such a social group, nor has female genital mutilation clearly been defined as persecution.116 Although they are receiving increasingly sympathetic public attention, those who make that claim, either as refugees themselves or as legal visitors whose visas have expired, cannot predict the outcome. The hesitant response of the U.S. legal system to claims women make on it as a social group independent of and indeed, in the case of genital mutilation, in resistance to men as a social group, suggest how troubling American courts still find this concept to be.
A third mode in which considerations of gender continue to shape the solutions to questions of national allegiance is immigration law. Since the War Brides Act of 1948, American immigration law has aided the divided family and especially heterosexual spouses by offering preferences to aliens with family relationships in the United States. Married women whose green cards have been issued primarily as a matter of family unification, to join their legal resident husbands, find themselves in vulnerable positions should domestic violence lead them to flee their households. In these cases, the husband no longer plays the role of protector between wife and the state, which the old law of domestic relations envisioned.117
Embedded in the concept of same-sex marriage--which would assure the legal advantages of marriage to spouses of any gender--is a deep challenge to traditional immigration law. In 1975, Anthony Corbett Sullivan, who was an Australian citizen, came to Boulder, Colorado, where he and Richard Frank Adams obtained a marriage license and were married by a minister. Adams then applied for a visafor Sullivan, claiming him as his spouse and "immediate relative." When Joseph D. Howerton, acting district director for the Immigration and Naturalization Service, refused to process the application, Adams appealed. Adams claimed that he had been denied equal protection of the laws; but the U.S. Court of Appeals for the Ninth Circuit held that Congress "has almost plenary power to admit or exclude aliens" and also power to decide to confer "spouse status ... only upon parties to heterosexual marriages." As Americans continue to debate the legitimacy of same-sex marriage, sexuality is treated as a measure of political legitimacy.118
At the end of the twentieth century, the old practices of filtering civic identity through husbands are eroding, but glimpses of a world in which women's citizenship was dependent on that of their husbands can still be discerned. Birthright citizenship can generally be claimed by children born abroad to citizen mothers, although there are still some small categories (people born before 1934, for example) that remain to be brought into compliance with general practice. Unmarried male citizens face barriers to transmitting birthright citizenship to children born abroad that unmarried women citizens do not face. Gendered threats to women's bodily and mental integrity are not quickly responded to when the claims have to be filtered through husbands who insist that genital mutilation is a reasonable practice, not the persecution of a "particular social group"; the definition of what counts as persecution is still debated. The most basic challenge to the concept of coverture has come with the claims of same-sex partners to marry and to transmit to each other the privileges of the married citizen--including immigration preference--that is, the making of new citizens who are spouses, but fully independent of the rules that once governed the powers of the husband over the wife.119

Copyright © 1998 by Linda K. Kerber