Your Legal Rights as a Woman: A Handbook for Virginians

Five years after the University of Virginia Law School began offering a “Women and the Law” course, which was supervised by two male professors in 1972, the Virginia Law Women (VLW) embarked on an extraordinary project. Six members of the group—Joan Kuriansky, Susan Buckingham Reilly, Diane Pitts, Jackie Blyn, Diane Smock, and Tracy Thompson—researched and wrote a legal handbook for women in Virginia titled Your Legal Rights as a Woman: A Handbook for Virginians (1977). Modeled on a handbook created by the North Carolina Law School Women, the text was, as the introduction stated, “written by women for women who want the law to work for them…Today we have many more rights than we had even five years ago. But unless we are aware of these rights we cannot exercise them” (VL141 .Y817 1977). The handbook, funded by the Virginia Commission on the Status of Women, was written in lay terms and explained Virginia laws concerning marriage, divorce, adoption, property rights, insurance, taxes, employment, social welfare programs such as Medicare and worker’s compensation, birth control, abortion, the criminal justice system, and gay rights. It also included a section on the Equal Rights Amendment (ERA) which had been approved by Congress in 1972 and was awaiting the requisite 38 states to ratify it into law at the time. In concert with consciousness-raising movements and projects across the country in that historical moment, the text made women conscious of the rights they were entitled to and the wrongs they suffered on account of their gender.

A stack of letters in a manila folder.
A stack of the many letters received by VLW requesting copies of the handbook.

While the Virginia Law Women distributed the handbook locally to libraries, organizations, agencies, alumni, and faculty, the Virginia Commission on the Status of Women distributed the bulk of the copies across the state. In the VLW manuscript collection here at Law Special Collections, one folder brims with requests for the handbook at the time of its publication. Dozens of women who read about the handbook in the newspaper wrote and asked for copies. Several stated that they planned on using the handbook to help them through their divorces. One high schooler even asked for the handbook as research for a paper on the ERA. The group received requests from rape crisis centers, women’s prison projects, libraries, law schools, the American Association of University Women (AAUW), the ABA, the National Organization of Women (NOW), the Women’s Law Coalition, and Legal Aid. The combination of the handbook’s popularity and the significant changes in laws applicable to women in this period resulted in revised editions in 1979 and 1984. In the second and third editions, new sections were added to reflect changing laws, such as Title VII, Title IX, establishing credit, mental health, and domestic violence. In addition to the revised editions, the VLW taught a local continuing education course on the handbook in 1980. While the handbook did not address everything (the absence of a discussion about the legal implications of American racial inequality is noticeable), it served as a much-needed resource for women across the state.

The most revised and debated section of the handbook was the section on the ERA. The VLW originally planned to openly advocate for the ERA in the first edition, but they deleted that paragraph, deciding simply to describe the amendment and its potential impact because their funder, the Commission on the Status of Women, asked them to remain “politically neutral” (VL16. L425L c.1). The second edition was delayed because the Commission asked them to remove the entire section on the ERA. The VLW objected, citing the copyright in their name and declaring the issue of the ERA “vital to the women of Virginia” (RG 209-82). The Commission eventually withdrew their request and the subsequent editions not only included a section on the ERA but a section that was longer than the original. While the ERA was not originally a partisan issue (it has appeared in the platforms of both the Republican and Democratic parties), the Commission’s anxieties about it have made me wonder whether they knew the story of the woman in the photograph on the front cover of the first and second editions. The photograph was of British suffragette Mary Leigh in her Women’s Social and Political Union (WSPU) uniform. Leigh was famous for throwing a hatchet at Prime Minister Asquith in 1912, among other militant activities.[1]

I’d like to end this post by reflecting on how these handbooks serve as a historical record of change. My own research focuses on women, politics, and property rights in eighteenth-century literature. I have spent more days than I can count poring over pamphlets about women’s legal rights, law books, and case documents from the seventeenth, eighteenth, and nineteenth centuries. I inevitably came across the word “dower” in most of them. I never expected to come across that word in all three editions of Your Legal Rights as a Woman: A Handbook for Virginians. I was shocked that dower, a widow’s right to a life estate in one-third of her husband’s real property which came into being sometime around 1310, appeared in a legal handbook for women in the late twentieth century.[2] Upon further research, I discovered that dower was not abolished in the state of Virginia until 1990. I discovered that the topic of my last blog post, the law of necessaries—an integral element of coverture—was the law in Virginia until 1983 when the state Supreme Court declared it unconstitutional under the 14th amendment.[3]  Finally, I discovered the word “coverture”—the common law doctrine that rendered husband and wife legally one person after marriage, which required the husband to act as representative for them both and which stripped the wife of many legal rights—still appears in the Virginia state code in two places. The first place is section 55-35, a statute that reflects the Married Women’s Act of 1877, which enabled women to hold and dispose of property as if they were single women and declared that the wife’s property was not liable for her husband’s debts.[4]

The second place is section 55-38, a statute that states the wife’s right of entry into land cannot be barred by judgments during or after her husband’s lifetime.[5] Ironically, the word “coverture” appears in statutes that recognize women as legal persons independent of their husbands. In fact, these sections are scheduled to be repealed in October 2019 and replaced by revised sections that continue to use the word “coverture.” This means that the word “coverture” has been a part of Virginia law since the colony’s founding over 400 years ago and still is to this day.[6] To me at least as a scholar, the appearance of “coverture” in the state code raises the question of whether it was ever really abolished, or if it was simply reformed and remains part of our legal framework. Even though dower and coverture might seem like antiquated legal tools that we rightly dismissed long ago in the name of equity, they recently informed, and in the case of coverture may still inform, the way women are treated under the law in Virginia. These legal relics are one of the reasons why women would still find a handbook like this one useful today.

 

For more on the Virginia Law Women, see our collection (RG 209-82 and RG 209-2010) as well as the three handbooks (VL141 .Y817 1977, VL141 .Y817 1979, and VL141 .Y817 1984).

[1] Fern Riddell, “ Suffragettes, violence, and militancy,” British Library, 6 February 2018, https://www.bl.uk/votes-for-women/articles/suffragettes-violence-and-militancy.

[2] Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill, NC: University of North Carolina Press, 1986), 144.

[3] See Va. Code Ann. § 55-37 (2012) and Mark S. Brennan, “The New Doctrine of Necessaries in Virginia,” University of Richmond Law Review 19 no. 2 (1985): 317–330.

[4] Va. Code Ann. § 55-35 (2012).

[5] Va. Code Ann. § 55-38 (2012).

[6] After October 2019, see Va. Code Ann. § 55.1–200 (Supp. 2019) and Va. Code Ann. § 55.1–203 (Supp. 2019).

Written by

Kelly Fleming

Kelly is a Curatorial Assistant at the Arthur J. Morris Law Library Special Collections. She is also a Lecturer in the English department at the University of Virginia, where she earned her PhD in 2019. Her research focuses on the relationship between eighteenth-century British literature, women's property rights, politics, and material culture.

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Women’s Legal Rights in UVA’s First Law Library: Baron and Feme

In honor of Women’s History Month, this post by Kelly Fleming discusses the history of women’s legal rights as reflected in the 1828 Catalogue of the Library of the University of Virginia. Kelly is a PhD Candidate in the English Department at UVa, where her research focuses on women’s property rights and political participation in eighteenth-century British novels. She is assisting the Law Library with its 1828 Catalogue digitization project.

Of the 369 law titles in the 1828 Catalogue of the Library of the University of Virginia, only one was explicitly dedicated to the legal status of wives, Baron and Feme: A Treatise of Law and Equity, Concerning Husbands and Wives (U.K. .46 .B265 1738). In fact, it was the first known English legal treatise to focus solely on the laws concerning husbands and wives.[i] Penned by an anonymous author, Baron and Feme was first published in London in 1700 by John Walthoe. It was published again in 1719 by Walthoe and in 1738 by T. Waller, also in London. The university had acquired the 1738 edition for its first library. While the Catalogue entry for Baron and Feme dates the book to 1788, other nineteenth-century catalogues confirm that the original UVA library contained the 1738 edition.

Baron and Feme’s importance as a legal work stemmed from its discussion of the precedents that defined married women’s legal rights in the eighteenth century. In England, married women’s legal rights were defined in common law and equity courts, likely resulting in confusion about what women’s rights actually were. Books such as Baron and Feme consolidated such precedents and made them available for both men and women as a practical litigation guide. Since, like England, Virginia had both common law and chancery courts, Baron and Feme’s discussion of precedent would have informed the way UVA students and local lawyers understood marriage settlements and argued women’s property rights in court.[ii]

Baron and Feme took up the doctrine of coverture from the perspective of both men and women, but with substantially more attention to the legal ramifications of women marrying. A relic of the Norman Conquest, the legal fiction of coverture declared that, after marriage, man and wife were, legally, one person, with the husband acting as representative for both. After marriage, a woman became a feme covert, a “covered woman” wearing the shadow of her husband’s legal existence. Feme coverts were unable to convey property, sign a contract, or execute a will on their own. One of the first chapters describes the unique position feme coverts held in English (as well as early American) law by differentiating them from infants (women and men under the age of 21). Like feme coverts, infants were “disabled by the law,” meaning they were not recognized as persons under the law.[iii] The difference, the anonymous author argued, was as follows: infants were not yet considered persons under the law, but they could perform “any Act for [their] own Advantage,” including binding themselves in a contract.[iv] Feme coverts were not persons and could only legally bind themselves with their husband’s consent.

A vignette of a man and woman exchanging a glance beside a crib.
A depiction of family life from
Godey’s Lady’s Book (1851).

Complicating this comparison, the author did not distinguish between male and female infants despite the legal difficulties female infants would have encountered on account of their gender. While Sir William Blackstone may have famously called women the “favourites ”of the law, the privileges they received were restricted by their ability to negotiate patriarchal family dynamics.[v] In both England and colonial America, patriarchal hierarchies and codes of behavior structured family life. Female infants, despite their ability to contract, were likely to be controlled by a father or male family member who would frustrate any attempt to make legal decisions without his consent. In fact, even their ability to contract was up for question: English courts debated the legality of female infants consenting to a marriage settlement that barred dower in favor of a jointure.[vi] Moreover, daughters who became feme soles (unmarried women) and could own property when they came of age were unlikely to possess it because families typically planned on using the daughter’s inheritance as her marriage portion.[vii]

In the hopes of protecting women from cruel husbands, debauched husbands, and their husband’s creditors, English courts developed precedents over the course of the seventeenth and eighteenth centuries to counteract the potentially harmful effects of coverture. These precedents specified property rights for married women and addressed questions about their ability to legally consent during marriage. Baron and Feme dedicated entire chapters to these rights in an effort to help readers negotiate the complex obstacles of coverture, such as dowers, jointures, separate estates, and separate maintenances in case of abuse or divorce. Most importantly, the author included a chapter that specified what wives got out of coverture, “What Contracts of the Wife Shall Bind the Husband,” which rehearsed the arguments for and against the law of necessaries (the right a wife has to charge things to her husband’s account or in her husband’s name) in exhaustive detail. Regardless of the author’s thoughts on the law of necessaries, there were documented cases of women charging extravagant items to their husband’s accounts and getting away with it in England.[viii] My own work, which examines women’s property rights and political participation in eighteenth-century British novels, hopes to show how coverture went both ways. The legal tools necessary to mitigate, if not negotiate, patriarchal family dynamics were already in women’s hands.

The Law Library’s copy of Baron and Feme was a gift Gerard Banks Esq. gave to William Waller Hening, as the handwritten note on the title page documents. Hening, a prominent Virginia jurist, may have read Baron and Feme as research for his legal handbook, The New Virginia Justice (1795). The handbook includes a conveyancing appendix with a sample marriage settlement that created a separate estate for the wife, one of the recommended methods for alleviating the legal austerity of coverture.


[i] Lynne Greenberg, ed. Baron and Feme: A Treatise of Equity, Concerning Husbands and Wives, The Early Modern Englishwoman: A Facsimile Library of Essential Works (New York: Routledge, 2005), 3:xlviii.

[ii] Marylynn Salmon, Women and the Law of Property in Early America (Chapel Hill:  University of North Carolina Press, 1986), 82.

[iii] Baron and Feme, 8.

[iv] Baron and Feme, 8.

[v] William Blackstone, Commentaries on the Laws of England (Oxford: Clarendon Press, 1765), 1:433, Eighteenth-Century Collections Online.

[vi] Susan Staves, Married Women’s Separate Property in England, 1660–1833 (Harvard: Harvard University Press, 1990), 119–126.

[vii] Amy Louise Erickson, Women and Property in Early Modern England (New York: Routledge, 1993), 83.

[viii] For a sampling of these cases, see Margot Finn, “Women, Consumption, and Coverture in England, c.1760–1860,” Historical Journal 39, no. 3 (September 1996): 703–722.

Written by

Kelly Fleming

Kelly is a Curatorial Assistant at the Arthur J. Morris Law Library Special Collections. She is also a Lecturer in the English department at the University of Virginia, where she earned her PhD in 2019. Her research focuses on the relationship between eighteenth-century British literature, women's property rights, politics, and material culture.

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Special Collections Team Wins Cromwell Research Grant

Buried deep in the stacks of Edinburgh libraries lie court records that tell stories about early America. In the Faculty of Advocates Library and The Signet Library, both just a few doors down from Scotland’s Court of Session, and in the Centre for Research Collections at the University of Edinburgh, rests evidence of Glaswegian merchants who traded for Virginia tobacco, families divided by the American Revolution, enslaved men and women who toiled on Caribbean sugar plantations, and much more. These Session Papers, the printed material submitted to Scotland’s supreme civil court as part of the litigation process, contain hidden histories of early America and the British Atlantic world.

Through a generous grant from the William Nelson Cromwell Foundation, a team of historians from Special Collections at the University of Virginia School of Law’s Arthur J. Morris Law Library will soon visit Edinburgh to begin identifying court cases involving early American litigants. Drs. Jim Ambuske, Randi Flaherty, and Loren Moulds, the co-directors of the Law Library’s Scottish Court of Session Project, will travel to Scotland’s capital to investigate these court records. While some cases appear in published law reports, most remain hidden in the bound volumes of court documents held by these historic Edinburgh libraries.

The Cromwell Foundation, which supports American legal history scholarship, has commissioned the Law Library team to survey Court of Session cases involving early America. Working closely with Edinburgh librarians, Ambuske, Flaherty, and Moulds will locate such cases and prepare a publicly available report on their findings. The report will enhance the discoverability of these cases for future scholars working on legal or early American history projects. It will also help identify groups of Session Papers for priority digitization as part of a collaboration to make these records more accessible for legal and historical research.

Finding evidence of early America in the Session Papers will illuminate the close ties between Scotland and America in the eighteenth and early nineteenth centuries. As the historian Timothy J. Shannon has recently shown in his new book, Indian Captive, Indian King: Peter Williamson in America and Britain, Session Papers can recover the lives of individuals like Williamson. In the mid-eighteenth century, the Aberdeen native claimed to have been kidnapped and sold into indentured servitude in the American colonies. While it seems clear that he was in the colonies as a young man, and perhaps later fought in the French and Indian War, his claim to have been held captive by Native Americans at one point is more suspect. Nevertheless, Williamson “played Indian” for Scottish audiences upon his return home and parlayed his alleged experiences into commercial opportunities. We know of his story in part because he sued the Magistrates of Aberdeen in the Court of Session, charging that they had been complicit in an illegal servant trade that had sent him to North America.

While in Scotland, the Law Library team will meet with collaborators at the University of Edinburgh, the Edinburgh Law School, and representatives from the Advocates and Signet libraries to advance a transatlantic partnership that is pursuing the creation of a digital archive to hold nearly 250,000 individual Session Papers. Using a combination of computer technology and human interpretation, the collaborators are exploring ways to more efficiently identify people and places within these printed documents, which will assist in the cataloging process, enable digital humanists to conduct large-scale analyses of the material, and make it easier for scholars and the public to search for historical figures and locations.

The project team is grateful to the Cromwell Foundation for its significant investment in the Scottish Court of Session Project. For more information on the Foundation and its efforts to support legal history scholarship, please visit www.cromwellfoundation.org. To learn more about Special Collections at the Arthur J. Morris Law Library, please visit archives.law.virginia.edu.     

 

Written by

Jim Ambuske

Jim Ambuske is the Horatio and Florence Farmer Postdoctoral Fellow in Digital Humanities. He received his Ph.D. from UVA in 2016 and is a historian of the American Revolution and early Republic. At the UVA Law Library, Jim works in Special Collections to develop interpretive content for the library's major initiatives, curricula for future courses in the digital humanities, and research projects rooted in the library's archives and manuscript holdings. His primary responsibilities at the Law Library include oversight of the Scottish Court of Session Papers project and promoting scholarly access to the library's significant holdings in early American, Virginian, and transatlantic legal history.

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A New Guide for Legal Historians

Shortly before his death in 2010, Morris Cohen told me about a book he was writing with his Yale colleague John Nann on research in American legal history. I wondered at the time if this was mostly a means of keeping Morris engaged in work and might not amount to much. But lo and behold, eight years later The Yale Law School Guide to Research in American Legal History (Yale University Press, 2018) has landed on my desk. And it’s full of great insights for the legal historian.

Instead of divisions by material type or genre, most of the book’s chapters focus on distinct time periods in American history and highlight research approaches and resources most pertinent to each period. After the chronological chapters, the book closes with several more general chapters. Particularly useful here are the discussion in Chapter Eight on doing archival research and the treatment in Chapter Ten of historical legal dictionaries.

A very useful bibliography of additional readings accompanies each chapter, and the book has a thorough and precise index. The authors provide helpful tips throughout on finding material in online catalogs, a nice touch as new catalog interfaces make subject searching less accessible and intuitive.

Chapter 2, English Foundations of American Law, 1500s-1776, does a great job of setting us in the world of an early modern English lawyer, finding case law with abridgments rather than Lexis or Westlaw. Lord Coke’s list of the fifteen sources of the law, printed at pages 50-51, is a wonderful time capsule – I didn’t know that “the Law and priviledge of the Stanneries” was a distinct source of law, let along what a stannary was. And it is interesting to learn that the abridgements of the 17th century (Sheppard, Hughes, and Rolle) were “considered to be of mediocre to poor quality” especially compared to Brooke’s Graunde Abridgement of the late 16th century. Nann and Cohen’s Guide has great explanations of the role of the Privy Council in governing the colonies and of the Calendar of State Papers. The authors point out the dangers of hastily OCR’d digital resources — unless scanned material is proofread carefully, it’s simply not discoverable through keyword searches.

Chapter 5, The Early Republic, 1790s-1870s, warns that researchers “must be careful to understand what the judiciary looked like in the state and time being researched. They must also understand the appellate process of the time.” And the authors provide good insight as to why historians can often be frustrated finding information in court reports: “Historians will find that it was not uncommon for a historically significant lower court case to go unreported. Once judges gained control of reporting, they chose cases that would become the building blocks of the law and ignored cases that merely repeated well-settled law. Historians will often want to read a case to get insight into the people involved, whereas lawyers care only about the law involved.”

Throughout the book I learned of valuable resources in legal history. These include Neil H. Cogan, The Complete Reconstruction Amendments, a forthcoming six-volume set from Oxford University Press not even on the publisher’s website yet, but also resources I never knew about or had long forgotten. I’d better take another look at American Foreign Relations Since 1600: A Guide to the Literature, which “has been described as ‘magisterial’ and is an extremely important resource that should be among the first stops in a research project touching on this topic.” And I never knew about Clarence S. Bingham’s History and Bibliography of American Newspapers, 1690-1820, “a critically important introduction to early American newspapers.”

At page 149, I read about two microfilm resources that were unknown to me until I had to hunt them both down in recent months:  Dockets of the U.S. Supreme Court, 1790-1950, and Appellate Case Files from the Supreme Court of the United States, 1792-1831. It’s true that finding these and borrowing the microfilm (sadly, we have neither in our library) gave me a sense of accomplishment, but how much easier life would have been if I had Nann & Cohen to help me. (It seems odd in 2018 to be relying on microfilm, particularly for information about Supreme Court cases, and LLMC is currently considering digitization of both of these sets.)

One of the valuable things about the work is that it expresses strong and clear opinions. In the very first chapter, it says that William H. Manz’s Gibson’s New York Legal Research Guide is perhaps the best of the many state legal research guides now published, with its in-depth treatment and coverage of current and historical sources. (Who can argue, when guides for nine states in Carolina Academic Press’s Legal Research Series all begin with the exact same sentence, “The fundamentals of legal research are the same in every American jurisdiction, though the details vary,” and nine more offer paraphrased versions of the same idea? How refreshing to open Hollee Schwartz Temple’s West Virginia Legal Research (2013) in the same series and read its first line, “If you want to stand out in a challenging legal marketplace, develop superior research skills.” Here’s to authors with journalism backgrounds!)

Of course, I don’t agree with all of the authors’ opinions. I don’t know why researchers trying to decipher citations are told that Prince’s Dictionary of Legal Abbreviations “is the first place they should turn to” and then only to check the online Cardiff Index to Legal Abbreviations if a citation isn’t in Prince’s. Cardiff’s coverage of American sources is broad and thorough, it includes useful information like the period of coverage and preceding and subsequent titles in a series, and its web version is so convenient. Why not reverse the order of checking these two?

As explained in the guide’s Introduction, the chronological chapters “describe the research tools available to an attorney of the past as well as the tools that a researcher of today will use to find the law of the past.” Thus, Chapter Six, Research Gets Organized, 1880s-1930s, explains the laborious procedure required to use Shepard’s Citations in print, something I thought I might never to have to read about again. I had hoped for less focus on obsolete research approaches and more discussion of modern legal history resources. There is only passing reference to one chapter of the three-volume Cambridge History of Law in America, and Lawrence Friedman’s History of American Law is only cited in one chapter’s bibliography. These books are not just “Further Reading” but great places for legal history students to begin their research and place their ideas in historical context.

The chronological structure of the guide begins to falter in Chapter Five, The Early Republic, 1790s-1870s, when the authors devote nearly a page to explaining PACER, the federal courts’ online docket system. Why in this chapter is there a discussion of a resource that begins its coverage in the late 20th century? Similarly, the chapter on the 1880s-1930s includes coverage of modern tools such as the Current Law Index (1980-date), and Chapter Seven, The Administrative State, 1930s-2010s, discusses several valuable 18th- and 19th-century resources such as Public Documents of the First Fourteen Congresses, 1789-1817 and Documentary History of the Constitution of the United States, 1786-1870. The “Administrative State” chapter focuses on administrative law and government documents, but the dates in its title are misleading.

The authors acknowledge that “research guides, including this one, represent a snapshot in time,” but in this instance the snapshot isn’t always that close to the publication date. Parts of the book show the inherent dangers of working on a project for several years. The bibliographies, while valuable, miss several recent publications, including a 2016 edition of Morris Cohen’s own Legal Research in a Nutshell. The print Foreign Law Guide hasn’t been updated since 2007, and the online Guide to Reference closed down in March 2016. In discussing the Congressional Record, the book asserts that “No easy translation tables exist to take researchers from the ‘daily’ page numbers to the ‘final’ page numbers or vice versa” – yet both HeinOnline and ProQuest Congressional offer daily edition to bound edition cross-reference tools. An unrelated quibble (in which I have a vested interest) is that referring to Specialized Legal Research as “by Penny A. Hazelton” and Guide to Reference Books as “by Robert Balay” does a disservice to the numerous contributors to these edited works.

In sum, The Yale Law School Guide to Research in American Legal History is a welcome addition to the literature of legal research and a valuable trove of insights and tips. It goes a long way to bridging the divide between historians and legal scholars.

Written by

Kent Olson

Head of Research Services, Arthur J. Morris Law Library

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