The Guardianship of a Woman, Part V: The Disabilities of Her Sex

[The Guardianship of a Woman FULL ARTICLE PDF here (link stays on-site)]


The Disabilities of Her Sex


But what are these disabilities of the female sex pre-feminism? The married woman was a feme covert, but the single woman laid under no such disability as the married woman, the law giving to her almost all of the same rights as that of her male counterparts. Consider the Illinois case of Ritchie v. People, 155 Ill._ (1895):

…It will not be denied that woman is entitled to the same rights, under the constitution, to make contracts with reference to her labor, as are secured thereby to men…It has been held that a woman is both a “citizen” and a “person” within the meaning of [the Fourteenth Amendment] …As a “citizen,” woman has the right to acquire and possess property of every kind. As a “person,” she has the right to claim the benefit of the constitutional provision that she shall not be deprived of life liberty, or property without due process of law. Involved in these rights thus guarantied to her is the right to make and enforce contracts. The law accords to her, as to every other citizen, the right to gain a livelihood by intelligence, honesty, and industry in the arts, the sciences, the professions, or other vocations. Before the law, her right to a choice of vocations cannot be said to be denied or abridged on account of sex…As a general thing, it is the province of the legislature to determine what regulations are necessary to protect the public health and secure the public safety and welfare. But, inasmuch as sex is no bar, under the constitution and law, to the endowment of woman with the fundamental and inalienable rights of liberty and property, which include the right to make her own contracts, the mere fact of sex will not justify the legislature in putting forth the police power of the state for the purpose of limiting her exercise of those rights, unless the courts are able to see that there is some fair, just, and reasonable connection between such limitation and the public health, safety, or welfare proposed to be secured by it.[19]

There is no evidence that a non-married woman was ever denied the right of the pursuit of life, liberty and happiness except where the state had a very rational interest in limiting her affairs in the civic and political realm. But such restrictions were done sparingly, and only upon a showing of that rational justification based upon what had always been, until fairly recently, an acknowledgement by society and the law of the basic facts of life and the very real needs and differences between the sexes based upon which society had a very real stake in acknowledging their different treatment under the law. As regards the political realm, Urofsky & Finkelman report that

Here and there one could find a woman attorney; one was admitted to the Iowa bar in 1869. That same year, Illinois denied admission to Myra Bradwell, a lawyer’s wife and suffragist. The Illinois Supreme Court declared that the “hot strife of the bar, in the presence of the public,” would destroy femininity…the nation’s highest court held similar views, and it would not be until Illinois changed its law that Bradwell gained admission to the bar, in 1890. By 1910, about 1,500 women practiced law in this country; in 1920, the number was still small, with women constituting only 3 percent of American lawyers.[20]

But are legislators not justified in acknowledging that there are instances, according to reason, justice and circumstance, to treat the sexes differently where it is warranted and would ultimately be in the best interests of the nation’s families and in the best interests of society overall? And was the Illinois Supreme Court not indeed justified in fearing that femininity would be destroyed? Until recently, legislators recognized that the state had a compelling interest in taking notice of the very real differences between men and women and judges as well would take judicial notice of this fact. Myra Bradwell was a married woman, yet determined on a career path, appealed her case to the United States Supreme Court in the case of Bradwell v. State, 83 U.S. 130 (1872). What she found was a high court unwilling to declare Unconstitutional under the Constitution and laws of the United States the right of a state to treat women, especially married women, differently from men when reason and justice warranted:

The claim of the plaintiff, who is a married woman, to be admitted to practice as an attorney and counselor at law is based upon the supposed right of every person, man or woman, to engage in any lawful employment for a livelihood…

It certainly cannot be affirmed, as an historical fact, that this has ever been established as one of the fundamental privileges and immunities of the sex. On the contrary, the civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The Constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband. So firmly fixed was this sentiment in the founders of the common law that it became a maxim of that system of jurisprudence that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state, and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most states. One of these is that a married woman is incapable, without her husband’s consent, of making contracts which shall be binding on her or him. This very incapacity was one circumstance which the Supreme Court of Illinois deemed important in rendering a married woman incompetent fully to perform the duties and trusts that belong to the office of an attorney and counselor.

It is true that many women are unmarried and not affected by any of the duties, complications and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

 The humane movements of modern society, which have for their object the multiplication of avenues for woman’s advancement, and of occupations adapted to her condition and sex, have my heartiest concurrence. But I am not prepared to say that it is one of her fundamental rights and privileges to be admitted into every office and position, including those which require highly special qualifications and demanding special responsibilities. In the nature of things, it is not every citizen of every age, sex, and condition that is qualified for every calling and position. It is the prerogative of the legislator to prescribe regulations founded on nature, reason, and experience for the due admission of qualified persons to professions and callings demanding special skill and confidence. This fairly belongs to the police power of the state, and, in my opinion, in view of the peculiar characteristics, destiny, and mission of woman, it is within the province of the legislature to ordain what offices, positions, and callings shall be filled and discharged by men, and shall receive the benefit of those energies and responsibilities, and that decision and firmness which are presumed to predominate in the sterner sex.[21]

If such an opinion were to be issued today, impeachment proceedings would begin immediately. Justice Sandra Day O’Connor, writing the opinion for the court in Planned Parenthood v. Casey, cited the very opinion in Bradwell as being “no longer consistent with our understanding of the family, the individual, or the Constitution,” exclaiming that

  This conclusion rests upon the basic nature of marriage and the nature of our Constitution: ‘[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup…’

The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.

There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. In Bradwell v. State, 16 Wall. 130 (1873), three Members of this Court reaffirmed the common-law principle that ‘a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state…’ These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.

…A husband has no enforceable right to require a wife to advise him before she exercises her personal choices…A State may not give to a man the kind of dominion over his wife that parents exercise over their children…Women do not lose their constitutionally protected liberty when they marry.[22]

Severe emphasis was put upon the separate existence of husband and wife in O’Connor’s opinion. But our ancestors feared this separate existence of husband and wife. The very existence of coverture was to safeguard the institution of marriage, of which all agreed formed the basis of civilized society. Allowing a woman to contract separately and live an independent existence as such from her husband was denounced. Turning once again to Chancellor Kent:

In Hatchett v Baddeley…the C.B. held, that a feme covert eloping from her husband, and running in debt, could not be sued alone, for that no act of the wife could make her liable to be sued alone. If she could be sued, she could sue, acquire property, and release actions, and this would overturn first principles. In no case, said one of the judges, can a feme covert be sued alone, except in the known excepted cases of abjuration or exile, where the husband is considered as dead, and the woman as a widow. It was afterwards held by the same court…that if the wife had even a separate maintenance, and lived apart from her husband, she could not be sued alone. There was no instance in the books, said the court, of an action being sustained against the wife, when the husband was living at home, and under no civil disability. A wife may acquire a separate character by the civil death of her husband, but she cannot acquire it by a voluntary separation…

…Afterwards, in Clayton v. Adams…the court of K.B. went a step further…and held, that though the wife lived apart from her husband, and carried on a separate trade, she was not suable; for if she could be sued as a feme sole, she might be taken in execution, which would operate as a divorce between husband and wife. At last, in Marshall v. Rutton, the K.B. decided, in 1800, after a very solemn argument, before all the judges, that a feme covert could not contract, and be sued, as a feme sole, even though she be living apart from her husband, with his consent, and have a separate maintenance secured to her by deed. The court said, that the husband and wife, being but one person in law, were unable to contract with each other, and that such a contract, with the consequences attached to it, of giving the wife a capacity to contract, and to sue and be sued, would contravene the general policy of the law in settling the relations of domestic life, and would introduce all the confusion and inconvenience, which must necessarily result from so anomalous and mixed a character as such a married woman would be. The only way in which such a separation can be safe and effectual, is, by having recourse to trustees, in whom the property, of which it is intended the wife shall have the disposition, may vest, uncontrolled by the rights of the husband, and it would fall within the province of a court of equity, to recognize and enforce such a trust. At law, a woman cannot be sued as a feme sole, while the relation of marriage subsists, and she and her husband are living under the same government.[23]


[19] Quoted in Urofsky & Finkelman, Documents of American Constitutional and Legal History, Volume I, p.539.

[20] Ibid., p. 504.; Women have been allowed to practice before the Supreme Court of the United States since 1879. 20 Stat. 292, see Louis Fisher & Katy J. Harriger, American Constitutional Law, Volume 2, Tenth Edition: Constitutional Rights Civil Rights and Civil Liberties (Durham, 2013), p 852. “[Senator Aaron] SARGENT [R-Cal.]…That there is no jealousy or consideration of impropriety on its part in the various States is shown by the fact that the Legislatures of many of the States have recently admitted women to the bar; and my own State, California, has passed such a law within the last week or two. Illinois has done the same thing; so have Michigan, Minnesota, Missouri, and North Carolina; and Wyoming, Utah, and the District of Columbia among the Territories have also done it…

“Mr. SARGENT…The medical universities of the world are receiving women and instructing them in medicine and surgery, and there are many women engaged in these studies and practicing this profession…They are admitted into the Scotch school and some of the best medical schools of the United States, and they are making their way in them all. There are in the various States of the Union women lawyers; and women in literature have won a very high place…” Ibid., pp.852-53. (From 7 Cong. Rec. 2704 (1878) and 8 Cong. Rec. 1084 (1879)).

[21] Bradwell v. The State, 83 U.S. 130, 140-42 (1872); and see In re Goodell, 39 Wis._ (1875) (Case before the Wisconsin Supreme Court of an unmarried woman, R. Lavinia Goodell): “Nature has tempered woman as little for the juridical conflicts of the court room, as for the physical conflicts of the battle field. Womanhood is moulded for gentler and better things. And it is not the saints of the world who chiefly give employment to our profession. It has essentially and habitually to do with all that is selfish and malicious, knavish and criminal, coarse and brutal, repulsive and obscene in human life. It would be revolting to all female sense of the innocence and sanctity of their sex, shocking to man’s reverence for womanhood and faith in woman, on which hinge all the better affections and humanities of life, that woman should be permitted to mix professionally in all the nastiness of the world which finds its way into courts of justice; all the unclean issues, all the collateral questions of sodomy, incest, rape, seduction, fornication, adultery, pregnancy, bastardy, legitimacy, prostitution, lascivious cohabitation, abortion, infanticide, obscene publications, libel and slander of sex, impotence, divorce: all the nameless catalogue of indecencies, la chronique scandaleuse of all the vices and all the infirmities of all society, with which the profession has to deal, and which go towards filling judicial reports which must be read for accurate knowledge of the law. This is bad enough for men…”

[22] Planned Parenthood Of Southeastern PA. V. Casey, 505 U.S. 833, 896-98 (1992).; and see United States v Dege 364 U.S. 51 (1960). “For this Court now to act on Hawkin’s formulation of the medieval view that husband and wife ‘are esteemed but as one person in Law, and are presumed to have but one Will’ would indeed be a ‘blind imitation of the past.’ It would require us to disregard the vast changes in the status of woman—the extension of her rights and correlative duties—whereby a wife’s legal submission to her husband has been wholly wiped out, not only in the English-speaking world generally but emphatically so in this country…Suffice it to say that we cannot infuse into the conspiracy statute a fictitious attribution to Congress of regard for  the medieval notion of a woman’s submissiveness to the benevolent coercive powers of a husband in order to relive her of her obligation of obedience to an unqualifiedly expressed Act of Congress by regarding her as a person whose legal personality is merged in that of her husband making the two one. Id., at 54-55. Chief Justice Warren issued a dissenting opinion stating the obvious new status of wives: “The problem, as the Court sees it, is almost absurdly uncomplicated: the basis for the notion that husband and wife are not subject to a conspiracy charge is that man and wife are one; but we know that man and wife are two, not one…” Id., at 55.

[23] Kent, Commentaries on American Law, Vol II, pp. 158, 160.