The Rights of Married Women the Late 19th Century U.S. — Part 2
Part Two of a discussion of marriage, coverture, and women’s rights in the world of the Brides of Buckhorn Gap
In Part 1 of this two-part post on the rights of married women in the late 19th century United States, we focused on rights regarding property. In Part 2, we will address deeper issues of power and control. We are relating our discussion here to the two currently published Brides of Buckhorn Gap novels, The Widowmaker’s Bride and Doc O’Brien Meets His Match (Book 3, The Once-Forbidden Bride, releases Sept. 1.)
The stories of Dan and Lily Crawford and Patrick and Maggie O’Brien show not only why these legal concepts matter, but also why choosing the right man was so crucial for a woman in the 19th century. (You can count on Buckhorn Gap heroes to be the right man!) Given the power that men in general and husbands in particular had, the character of the man a woman married could determine the happiness of her entire adult life.
When a Woman Married, Who Controlled Her?
As observed in Part 1, while the legal concept of coverture (the wife’s legal identity being merged into the husband’s) was largely still in place, there were reforms underway to give married women some personal control over their own money and earnings. This was not consistent throughout the country by 1875, but there was progress being made.
We did point out, however, that having a right and exercising it are two different things. Not all husbands were tyrants who demanded control over their wives’ independent income. Not all bankers or employers only considered the husband’s authority. But in many cases, it was still a challenge for a woman, even if legally on solid ground, to have real freedom with her own money.
But property was only part of what a woman risked when she married. What about her personal freedom? Could her husband decide where she lived? Could he prevent her from working, traveling, or communicating with other people? What happened if he claimed that she was irrational or incapable of making her own decisions? If he mistreated her, could she count on anyone outside the marriage to intervene?
Those questions are more difficult to answer than questions about property statutes. The law did not ordinarily declare that every married woman was her husband’s ward, and a husband was not automatically his wife’s legal guardian in precisely the same sense that a guardian might be appointed for a child or an incapacitated adult.
However, the husband was widely regarded as the head of the family, his wife’s protector and representative, and the person entitled to direct the marital household. The practical result could look very much like guardianship, particularly when the husband’s wishes were supported by relatives, doctors, bankers, ministers, judges, and law-enforcement officers.
Whose Home Was It?
Marriage created expectations of shared residence, but the husband traditionally determined the family domicile. A wife who left him without a legally acceptable reason could be accused of desertion and might lose her claim to support.
That did not mean every husband could obtain a court order physically forcing his wife home. The details depended upon the place, the period, and the circumstances. But a woman contemplating escape had to consider more than whether she could get out the door.
Where would she go? Could she support herself? Would relatives shelter her or return her to her husband? Would a landlord rent her a room? Would an employer hire her? Would the police treat her as a person seeking protection, or as a disobedient wife creating a private family problem? Even if she had property or income of her own, could she access it easily enough to support herself?
Leaving was also more complicated if there were children. Fathers’ custody rights were no longer absolute in the entire United States by the late nineteenth century, but they remained extremely powerful. A woman might endure an intolerable marriage because leaving could mean losing her children, as there was a very strong possibility that the children would be returned to their father.
When Violence Was a Matter of Domestic “Privacy” and “Family Government”
No discussion of women’s rights would be complete without an analysis of the impunity men were historically given in physically striking their wives. In Part 1, we explored the common-law nature of coverture and the 1848 complaints of the women suffragists of Seneca Falls: “In the covenant of marriage, she is compelled to promise obedience to her husband, he becoming, to all intents and purposes, her master, the law giving him power to deprive her of her liberty, and to administer chastisement.” (It is shocking to modern readers, but this referred to corporal punishment and his right to strike her as long as he did not cause permanent injury.)
By the 1870s, American courts were repudiating the old claim that a husband possessed a legal right to “chastise” his wife. Legal historian Reva Siegel has cited rulings in the early 1870s from cases in Massachusetts and Alabama, in which judges clearly found this legal concept outdated and distasteful. However, she crucially notes that the early cases repudiating chastisement doctrine in Alabama and Mississippi were against men of color. It is important to the remember the historical context of Reconstruction in the post-Civil War South.
There was a conception among judges that wife-beating was some kind of standard feature of marriages among people of lower socioeconomic classes and less of an issue in more socially refined families. As wife-beating began to be regarded with more revulsion by society, Siegel notes that prosecution was disproportionately found in the cases of immigrants and African-American men. In short, powerful white men were far from being held accountable for physically striking their wives. Today, we know that domestic violence crosses all socioeconomic lines. It’s arguable that judges knew that too, but simply didn’t want any part of scrutinizing the marriages of “respectable” men.
This inference can be made from the “marital privacy” approach that subsequently developed. While judges didn’t want to uphold a chastisement doctrine that sounded medieval, they also didn’t want to interfere in family homes. Siegel has described how the formal rejection of a husband’s right to chastise could coexist with continued institutional tolerance of what we now know to be domestic abuse. The justification changed: authorities increasingly spoke of marital privacy rather than a husband’s right to punish. For the woman seeking help, however, nonintervention could produce much the same result.
For example, Siegel cites an 1868 North Carolina case, State v. Rhodes, in which a man had struck his wife three times with a stick “about the size of one of his fingers.” The trial court acquitted him on the “right to chastise” doctrine. On appeal, the North Carolina Supreme Court upheld the verdict for a different reason:
The courts have been loth to take cognizance of trivial complaints arising out of the domestic relations-such as master and apprentice, teacher and pupil, parent and child, husband and wife. Not because those relations are not subject to law, but because the evil of publicity would be greater than the evil involved in the trifles complained of, and because they ought to be left to family government.
Basically, the court said, while these actions are unpleasant, it would be much worse to interfere: [H]owever great are the evils of ill temper, quarrels, and even personal conflicts inflicting only temporary pain, they are not comparable with the evils which would result from raising the curtain, and exposing to public curiosity and criticism, the nursery and the bedchamber. Every household has and must have, a government of its own, modelled to suit the temper, disposition and condition of its inmates.
The Rhodes opinion made it clear that it was most concerned about privacy for the "middle class" and those of "the higher ranks" for whom "an indignity is disgrace and exposure is ruin."' It was more important for respected heads of households to keep their dignity, so wives had to put up with “trivial” complaints (and apparently, “trivial” meant anything short of severe or permanent injury.)
This belief system went on for generations, with violence within marriage being treated differently from violence between strangers. Judges and police were reluctant to enter the home or disturb the supposed privacy and harmony of the family. A wife might face pressure to reconcile, preserve the household, avoid embarrassing her husband, or accept that domestic unhappiness was not a matter for public authorities.
The mindset survived long after the nineteenth century. Many women living well into the twentieth century remember police officers declining to become involved in what they called a “domestic matter.” The law might say that a husband had no right to assault or confine his wife. But a right is only as useful as the willingness of other people to recognize and enforce it.
The Threat of Being Declared Mentally Incompetent
Wives did not only have to worry about physical abuse. A particularly frightening weapon that husbands had was the claim that a troublesome or independent woman was mentally ill. This did not mean husbands everywhere possessed an unrestricted legal right to place their wives in asylums. Commitment laws varied by state, and they changed during the nineteenth century. But some laws and institutional practices gave husbands extraordinary influence, and women had good reason to understand what such influence could mean.
Elizabeth Packard’s case provides a chilling example. Packard was an intelligent, religiously independent mother of six who began publicly disagreeing with her husband, Theophilus, a Calvinist minister. In 1860, he had her committed to the Illinois State Hospital for the Insane. Illinois law then allowed a married woman to be admitted at her husband’s request without the evidence of insanity required for other people.
Packard spent more than three years confined. After the hospital discharged her, her husband locked her in a room at home and prepared to have her committed elsewhere. Her friends eventually secured a habeas corpus hearing. In January 1864, after only minutes of deliberation, a jury declared her sane. She then became an effective advocate for reform. Illinois adopted legislation protecting the right of people accused of insanity, including married women, to a jury trial.
Packard’s story should not be treated as proof that every husband could casually dispose of an inconvenient wife. It demonstrates something more precise: the combination of marital authority, permissive law, and medical deference could make a husband’s accusation dangerously powerful. Once a woman had been labeled irrational, her objections to confinement could themselves be interpreted as evidence of her disorder.
Of course, this required doctors to be complicit, and many were. The more powerful the husband, the more compliant the doctor might be. However, some doctors weren’t. In speaking up for Lily when Thaddeus Drayton accuses her of “hysteria” and needing “guardianship” for her own protection, Dr. Patrick O’Brien openly scoffs at Drayton:
“What I have seen, Mr. Drayton,” Dr. O’Brien said, his voice carrying a note of scorn, “is that these so-called episodes of hysteria are almost always normal reactions to painful events. They may be uncomfortable for the men in the household, but they are rarely indicative of a problem in the mind. Most cases claiming a woman is mentally unfit are about a father or husband losing control. She develops beliefs he doesn’t like, or she has behaviors that may be unpleasant, but are not a sign of a diseased mind. I find it ludicrous that Mrs. Crawford was ever legitimately declared unfit.”
Unfortunately, not all doctors shared Patrick’s enlightened view, and when they didn’t, the “cure” was almost always far worse than the disease: the same paternalism also frequently appeared in nineteenth-century medicine
“Don’t Think. Don’t Write.”
The “rest cure,” associated particularly with physician Silas Weir Mitchell, prescribed isolation, bed rest, heavy feeding, and withdrawal from intellectual and creative activity for a woman suffering from any kind of mental health crisis, whether something real like the agony of postpartum depression or something labeled “hysteria” for other reasons. (I tend to agree with Dr. O’Brien’s view that “hysteria” was most often anything that made men uncomfortable, or normal mental health challenges that they didn’t know how to handle.)
Charlotte Perkins Gilman, after a period of depression (called “melancholia” at the time), underwent Mitchell’s treatment in 1887, somewhat later than the events of the Buckhorn Gap books. She later recalled being instructed to live as domestic a life as possible, severely limit intellectual activity, and never again touch a pen, brush, or pencil.
Gilman followed that advice for several months and believed it brought her perilously close to mental collapse. She abandoned the treatment, returned to work, and eventually transformed the experience into “The Yellow Wallpaper,” published in 1892.
Gilman’s chronology places her outside the books’ late-1870s setting, so I would not suggest that Maggie knew her story. What Gilman reveals is the persistence of the worldview Maggie already understood: male authority could present the suppression of a woman’s mind as care, protection, and medical necessity. (Dr. Mitchell’s “cure” mentioned above was not radical new thinking; women were already supposed to avoid “excessive” intellectual labor.) “Don’t think” and “don’t write” could be offered as a cure, and the husband and physician imposing this cure would be seen as benevolent and wise. For Maggie, whose work is inseparable from her sense of self, that possibility would have been terrifying.
Why Lily Needed Dan’s Protection
Guardianship is a theme here as Lily faces the villain in The Widowmaker’s Bride, who claims to be her legal “guardian,” as a friend of her late father, on the grounds of “hysteria” and “mental instability.” These words were weapons intended to bring her under his control while being seen as a benign protector. Not only were both his claims and his papers false, they were immediately scoffed at by Buckhorn Gap authorities. Why? Because Lily is now a married woman. The moment she became Dan Crawford’s wife, Drayton’s claim is finished.
Dan’s deputy, Jake Morrison, takes one look at Drayton’s papers and says the following:
“I don’t give a damn about papers from North Carolina concerning what Mary Lillian Bishop may or may not have done before she married the marshal. There is no Mary Lillian Bishop here. There is only Mrs. Dan Crawford.”
Drayton’s practiced smile flickered. “Deputy, surely you understand that legal obligations don’t simply — ”
“Second,” Jake continued as if Drayton hadn’t spoken, “anything concerning Mrs. Crawford goes through Marshal Crawford. Not through me, not through you, and sure as hell not through some fancy papers you wave around. It’s real simple law that a husband’s authority trumps all other claims.”
Note whose rights are being upheld here. Not Lily’s — Dan’s, as her husband, for anything regarding her welfare or living situation. The reality is not that Drayton has no right to bother Lily, because Lily is entitled to peace and freedom from harassment (though these were certainly concerns, and Deputy Morrison would likely have come to her aid.) The real legal issue is she is another man’s wife, and that man makes the decisions. Drayton has no right to interfere in Dan Crawford’s household.
Before her marriage, Lily was in a precarious position. She was legally her own guardian as an adult woman of age, but a powerful man like Drayton, who was obsessed with her, was a threat to her emotional and physical safety. Lily found her own solution: marry a man that she hoped and prayed would be a good one, and place herself under his protection. That is the terrible irony at the heart of Lily’s situation. She gains freedom from Drayton by entering a relationship that the outside world understands as placing her under another man’s authority.
The difference is Dan Crawford. He does not protect Lily by treating her as incapable. He uses the authority society gives him to defend her ability to choose for herself. The same system that could make marriage a trap gives his protection credibility because he is the husband, and because he is a good man who refuses to turn that power against her.
Lily had to stake her personal freedom on a man’s character. She was simply fortunate enough to choose a man worthy of the trust. And Dan does deserve that trust. In an era where a wife’s consent to physical intimacy was assumed as a husband’s right, Dan tells her, “That’s not who I am. It’s not about any right. It’s about love and trust.” He uses his position as husband to protect Lily from those who would harm her, and he helps her heal by believing her story of trauma and offering her the comfort no one else has. He uses the legal system to let her speak her truth in her own voice to the men who had the power to vindicate her. Lily’s gamble in marrying Dan paid off not only in protection from Thaddeus Drayton, but in the personal happiness that came from the blooming of genuine love.
Maggie’s Insightful Reservations About Marriage — And Why Patrick’s Character Reassured Her
In Doc O’Brien Meets His Match, Maggie didn’t want to marry her Philadelphia suitor Charles Adams because she found him tedious and condescending, not because she was afraid of him personally. But Maggie had some serious reservations about the institution of marriage, as we saw in Part 1 (she tells Patrick how powerless a woman is after she marries.) What exactly was Maggie, who was not a shy or timid creature, afraid of? Why had she secretly been hoping (before she fell in love with Patrick) for a way to just bypass the whole necessity of marriage?
She was not really worried about the income from her writing or her personal finances. She feared losing the right to define the boundaries of her own life. A man like Charles would not think of himself as a tyrant. That may make him more dangerous, not less. He believes his authority is proper, benevolent, and natural. If he limited Maggie’s writing, managed her money, chose their home, or overruled her decisions, he could tell himself he was merely fulfilling his duty as a husband. Society would back him up completely.
The Wife’s Submission Painted as the Key to Domestic Harmony
The law was only one source of a husband’s authority. Society itself reinforced this. Religious teaching, domestic advice books, women’s magazines, and guides to marriage all helped teach women what a “good wife” was expected to be.
These books did not tell husbands they were free to behave like tyrants. On the contrary, they described the ideal husband as loving, protective, self-sacrificing, and considerate. But when husband and wife disagreed, the final authority still belonged to him. Domestic harmony depended on his benevolent rule and her willingness to yield to that rule.
A striking example appears in Catharine Beecher and Harriet Beecher Stowe’s influential domestic guide The American Woman’s Home, published in 1869. Beecher and Stowe believed that women’s domestic work required intelligence, training, and considerable skill. They also declared that the husband was the family’s “head and chief magistrate.”
The husband was supposed to love his wife sacrificially and consider her happiness equal to his own. No one has a problem with that. But if a genuine disagreement arose, he possessed “the deciding control,” while his wife’s duty was to obey. Even if she was his intellectual or moral superior, they advised, her only “dignified and peaceful” course was submission.
In other words, the system was presented as an exchange: the husband would exercise his authority lovingly, and the wife would respond with obedience. If each performed the proper role, the home would remain peaceful. Unfortunately, this did not always function as a two-way street.
The obvious problem was what happened when the husband failed to be loving or considerate. The wife’s obligation did not disappear simply because he was selfish, controlling, or wrong. Indeed, the responsibility for preserving domestic harmony often remained hers. If she openly resisted him, she, not the man attempting to control her, could (and likely would be) be blamed for bringing conflict into the home.
Advice like this gave moral and emotional force to the husband’s legal advantages. A woman did not merely risk being overruled. She risked being told that objecting to his authority made her selfish, unwomanly, ungodly, or responsible for the failure of her marriage.
The Danger of a “Respectable” Husband
That is what makes a man like Charles Adams so troubling. Charles would not think of himself as the least bit cruel. He would sincerely believe that he would be a generous and indulgent husband. He would provide Maggie with a comfortable home, protect her from unpleasantness, and perhaps even allow her to continue writing her “charming articles,” provided they did not interfere with what he considered her proper duties.
If Maggie objected, Charles would believe that she was the unreasonable one. After all, he would be fulfilling the accepted role of husband: providing for her, guiding her, and determining what was best for their household. He could limit her life while remaining entirely convinced of his own benevolence.
That may be more frightening than an openly brutal man. Maggie could recognize and avoid a villain. A respectable husband who mistook control for love would be much harder to challenge, and society would be inclined to take his side.
Maggie would not have needed to know every provision of Colorado or any state’s marriage laws to understand that risk. She had grown up hearing the assumptions behind it. She knew that marriage was expected to make a husband’s career the central one and his wife’s ambitions relegated to the domestic sphere. She also knew that a woman who harbored her own ambitions could be accused of placing her selfish desires above the peace of her home.
Charles assumes Maggie will fit herself into his life. When she orders a new sketchbook for the project she is helping Patrick with, he says, “I’m sure you won’t be needing that anymore. You’ll be far too busy once we return to Philadelphia.” Though he does acknowledge, in front of Mrs. Simms, that “some of her sketches would look quite charming displayed in the library at our home in Philadelphia. A nice hobby for her to pursue when she has time between her other duties as a wife.” Maggie can see the handwriting on the wall: a tedious existence with little intellectual stimulation no matter how much physical luxury Charles can provide.
Patrick, on the other hand, upends his life to fit Maggie’s. While she thinks he is ignoring her in the book’s dark moment, he is actually working day and night to rearrange his life to accommodate her. He tells her:
“I have spent years building a life that fit exactly one person,” he said. “My work. My routines. Not having to tell anyone when I was leaving or when I was coming home. When you came into it, I realized— too late—that I was trying to decide whether you could be made to fit into what already existed.” He shook his head, once. “That was wrong. You deserve more than that.”
He goes on to tell her, “I will not ask you to make yourself smaller to remain here. I will not ask you to trade one narrow life for another…So I did what I should have done from the beginning. I thought about how to build something larger.”
This is fortunate for Maggie. Not only because the man she loves genuinely loves her in return, and his personal beliefs and nature made him a safe man to marry. The law could offer Maggie some property protections. Colorado was comparatively progressive in several important respects. But no statute could guarantee that her husband would listen to her, respect her work, or refuse to use society’s assumptions against her.
For that, she had to know the man. And that is why I gave her Patrick. It’s also why I gave Dan to Lily. My novels’ happy endings exist because the heroines have found men who not only have fallen deeply in love with them but also respect them as people and cherish them as their soul mates. It’s why I write “green-flag” heroes.
Sources and further reading
On Elizabeth Packard: https://www.illinoiscourts.gov/News/1037/Illinois-Supreme-Court-history-Elizabeth-Packard-and-mental-health-laws/news-detail/
Early American Psychiatry
https://www.nlm.nih.gov/hmd/topics/diseases-of-mind/index.html (mentions Dr. S. Weir Mitchell and the earlier case of Elizabeth Packard)
Elizabeth Packard’s contributions to reform
Charlotte Perkins Gilman: Why I Wrote “The Yellow Wallpaper” (story opens in a new window)
Reva Siegel’s detailed analysis of the legal history of marital violence in the United States
https://law.yale.edu/sites/default/files/documents/pdf/Faculty/Siegel_TheRuleOfLove.pdf
