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 PhD Candidate in English at the University of Virginia and a Curatorial Assistant at Arthur J. Morris Law Library Special Collections. Her research focuses on the relationship between eighteenth-century British novels, women's property rights, politics, and material culture.

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Alumnus Profile: Napoleon Breedlove Ainsworth, Lawyer and Choctaw Nation Official

In recognition of National Native American Heritage Month, this post highlights UVA Law alumnus Napoleon Breedlove Ainsworth, a member of the Choctaw Nation and a law student from 1881 to 1882.

Napoleon B. Ainsworth, printed in Leaders and Leading Men of the Indian Territory (1911), 106.

Ainsworth, a citizen of the Choctaw Nation, was born on February 26, 1856 in Skullyville, Oklahoma, part of Indian Territory. At age fifteen, he enrolled in Roanoke College in Salem, VA. According to Ainsworth’s 1885 testimony before a Congressional committee on “The Condition of Certain Indian Tribes,” the Choctaw government sent a group of students each year to universities and supplied them with stipends. Ainsworth was such a student, and he attended Roanoke College on a scholarship funded through Choctaw coal mining. He graduated from Roanoke in June 1880 with the Orator’s Medal and then enrolled in the University of Virginia for the 1881–1882 term to study law.

UVA School of Law, Catalogue of Students, 1881-1882. Ainsworth was the first UVA Law student to provide a residence location in Indian Territory.

Since a JD was not required to pass the bar at that time, this single session at UVA was enough for Ainsworth to pursue the career he already had chosen as a practicing lawyer. Prior to returning home to the Choctaw Nation, Ainsworth married Emily Thompson in Roanoke, and they eventually had three children, Ben P., Helen, and Agnes. Upon his return, Ainsworth was appointed draftsman for the Council of the Choctaw Nation by Chief Jack McCurtain. He then served as National Weigher at McAlester, in Indian Territory, for three years, before resigning in order to focus on his law practice. Following the death of the National Auditor, Ainsworth was appointed to that position, and then in 1887, he was reelected to fill the same office for a second term.

In 1889, Congress established the United States Court in Indian Territory. Ainsworth became a noted member of the bar of this Court, which held jurisdiction over civil cases between persons residing in Indian Territory and citizens, states, or territories of the United States. He remained active in the affairs of the Choctaw government until he died on August 20, 1922.

The law establishing a United States Court in Indian Territory (links to the full text).

Written by

Kelly Fleming

Kelly is a PhD Candidate in English at the University of Virginia and a Curatorial Assistant at Arthur J. Morris Law Library Special Collections. Her research focuses on the relationship between eighteenth-century British novels, women's property rights, politics, and material culture.

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Profiles in Service, Veterans Day 2018

As we observe Veterans Day today, we honor the military service of our alumni/ae with two profiles of UVA Law veterans: Alice R. Burke, a 1926 law graduate and U.S. Navy veteran who served as counsel in the Tokyo War Crimes Trials, and Farrell Dabney Minor, Jr., a member of the law class of 1911 who died from battle wounds one hundred years ago while serving in the U.S. Army during World War I.

Alice R. Burke

LLB, University of Virginia, 1926
Lieutenant Commander, USNR (W)

Alice Rebecca Burke was born on May 1, 1901, in Charlottesville, Virginia. She was a member of the first class of women at William & Mary and graduated with a BA in 1921. Burke’s senior yearbook noted her strong interest in the law, even as an undergraduate. Burke went on to earn a LLB from the University of Virginia in 1926 as the law school’s second female graduate.

Corks and Curls, 1926

After graduation, Burke served as a civil attorney in San Antonio, Texas before returning to Virginia to earn an MA from William & Mary. In 1936, she took a position as lecturer in Government and English for the Norfolk division of William & Mary (later Old Dominion University).

During World War II, Burke resigned her position at Norfolk and joined the U.S. Navy. She was commissioned Lieutenant Junior Grade in 1942, Lieutenant in 1944, and Lieutenant Commander in 1946—all in the Women’s Reserve of the U.S. Naval Reserve (commonly known as WAVES for Women Accepted for Volunteer Emergency Service). During the war, Burke assumed command of the WAVES Barracks in Balboa Park, San Francisco, California.

Lieutenant Alice R. Burke, USNR (W), assumes command of WAVES Barracks, Balboa Park, San Francisco, CA.

After the war, Burke served as defense counsel during the Tokyo War Crimes Trial. (Today, incidentally, the UVA Law Library is home to one of the largest collections of papers from these trial proceedings.) Burke stayed on in Japan as a legal and government officer in civil affairs. She retired from the Navy in 1955 and continued her legal career in New York. Burke died on May 1, 1973 and is buried in Charlottesville’s Riverview Cemetery. Her tombstone reads Alice Rebecca Burke, Lieut. Commander, USNR (W).

Further Reading:
Alice Burke biographical sketch, Old Dominion University,  https://www.lib.odu.edu/exhibits/womenshistorymonth/2000/burke.htm

Farrell Dabney Minor, Jr.

LLB, University of Virginia, 1911
Lieutenant, U.S. Army

Farrell Dabney Minor, Jr. was born in Galveston, Texas on February 10, 1889. After graduating from the University of Virginia School of Law in 1911, Minor moved back to Beaumont, Texas to practice law with his father.

When the US entered World War I in 1917, Farrell quickly enlisted in the military and obtained a commission as a Second Lieutenant. He was assigned to the 42nd “Rainbow” Division of the Army, under the command of Douglas Macarthur (who was at that time a colonel), as part of the 167th Infantry regiment. He sailed for Europe in November 1917 and shortly thereafter led his platoon in the Croix Rouge Farm fight of the Second Battle of the Marne. Half of Minor’s company was killed in less than forty minutes in this extraordinarily bloody fight. Minor himself was wounded on July 26 while leading his men in a charge across an open wheat field at Croix Rouge Farm.

Farrell succumbed to his wounds on August 29, 1918. He is buried at the Aisne-Marne American Cemetery in Belleau, France. After the end of the war, his name was inscribed on the University of Virginia’s Memorial Tablet Dedicated to Those Who Perished in the World War. In the 1920’s, Minor’s parents honored his service and his law school alma mater with a special endowment to the UVA Law Library in the name of Lieutenant Farrell Dabney Minor, Jr.

Grave of Second Lieutenant Farrell Dabney Minor, Jr. at Aisne-Marne American Cemetery in Belleau, France. Photograph by Edwin L. Fountain, American Battle Monuments Commission, UVA Law 1990.

 

Further Reading:
Proceedings of the Thirty-Eighth Annual Session of the Texas Bar Association, Volume 38 (Texas Bar Association, 1919), 92.

Written by

Tom Butcher

Tom is an Assistant with the Law Library's Special Collections team. He is also a lecturer for the UVa History department, where he earned his PhD in 2018. His research focuses on the history of sex, gender, and sexuality in Europe, as well as questions of political violence and human rights.

Randi Flaherty

Randi Flaherty is the Special Collections Librarian at the Arthur J. Morris Law Library. She is also an early American historian with a focus on foreign maritime commerce in the early American republic.

Kelly Fleming

Kelly is a PhD Candidate in English at the University of Virginia and a Curatorial Assistant at Arthur J. Morris Law Library Special Collections. Her research focuses on the relationship between eighteenth-century British novels, women's property rights, politics, and material culture.

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