BY MIKE MAGEE
All eyes were on Wisconsin – not last week, but in 1847. That’s when Wisconsin newspaperman and editor of the Racine Argus, Marshall Mason Strong, let loose in a speech on the disturbing trend to allow women the right to buy and sell property. It seems the state had caught the bug from their neighbor, Michigan, which was considering loosening coverture laws.
“Coverture” is a word you may not know, but should. It was a series of laws derived from British Common Law that “held that no female person had a legal identity.” As legal historian Lawrence Friedman explained, “Essentially husband and wife were one flesh; but the man was the owner of that flesh.” From birth to death, women were held in check economically. A female child was linked by law to father’s entitlements. If she was lucky enough to be married, she lived off the legal largesse of her husband. They were one by virtue of marriage, but that one was the husband, as signified by taking his last name.
The practice derived from British law. Women were held in matrimonial bondage in England with the aid of ecclesiastical courts and the officiating presence and oversight of an Episcopalian clergyman. This meant control over getting married as well as well as the capacity to escape a marriage marred by abuse or desertion. Not that there was much call for divorce. Britain was a divorceless society. The richy rich occasionally could be freed by a special act of Parliament. But this was exceedingly rare. Between 1800 and 1836, there were less than 10 divorces granted per year in England. For the unhappy rest, it was adultery or desertion.
The divorceless society held for the first half of the 19th century in most of the states below the Mason-Dixon line, with South Carolina being the most restrictive. But every New England state had a general divorce law before 1800, as did New York, New Jersey and Tennessee. “Grounds” (which varied from state to state) were presented in an ordinary lawsuit by the innocent party.
Demand for divorce grew as America grew in the first half of the 19th century. With mobility came hardship and “odious abuse’, and increasing recognition that “a divorceless state is not necessarily a state without adultery, prostitution and fornication. It is certainly not a place where there are no drunken, abusive husbands.” And then there was the issue of property rights and its ties to economic growth in this still young nation.
America was rich in land, which rapidly translated into a fast-expanding smallholder middle-class. Relationships could shift on a dime, resulting in property disputes and threats to the legitimacy of children and one’s heirs. The numbers of land owners, fueled by westward expansion were enormous, and each had a stake in society. When push came to shove, economics won out over Puritan instincts – but not without a fight.
There were plenty of voices like Yale’s President, Timothy Dwight, who in 1816, labeled ready divorces as “stalking, barefaced pollution…one vast Brothel; one great province of the World of Perdition.” But, in a male-dominated world that featured desertion, abuse, and confusion over children’s welfare and legitimacy, rights to property, and protection from a missing husband’s debt collectors, “married women’s property acts” began to appear.
The first surprisingly was in 1839 in Mississippi, that is until you learned that the liberalization involved a married women’s rights to “own and dispose of slaves.” In 1844, Michigan weighed in narrowly by protecting a women’s inherited or earned property from her husbands post-mortem debtors.
Three years later Marshall Strong couldn’t help himself, and from his perch in Racine, Wisconsin, editorialized that the “domestic sphere” is under attack, and the consequences will be dire. “Finer sensibilities” are on the chopping block and “every trait of loveliness blotted out.” Summing up a whole family collapse – men are being “degraded, the wife unsexed, and children uncared for.” These new married women’s property laws, he writes, already have played out elsewhere. “It exists in France, and … more than one-fourth of the children annually born in Paris are illegitimate.”
And yet, three years after Strong’s lament, seventeen states, including Wisconsin, had adopted their own versions of gender equalizing property laws. Why?
According to Friedman, “The real fulcrum of change was outside the family and outside the women’s movement…The number of women with a stake in the economy had increased dramatically.”
Nor was there a big uproar in this mid-century legal turnaround. As Friedman sees it, “Little agitation preceded them; great silence followed them. It was the silence of a fait accompli.” But in history, about faces are not uncommon, and “freedom walks” can flow in both directions.
Consider the past decade in Marshall Strong’s home state. In 2010, Scott Walker, the son of a Baptist preacher, assumed the governorship of the state and quickly rose to national prominence by aggressively opposing abortion rights and torching union rights to collective bargaining in the state. In 2016 he set his sites on the Presidency, but fizzled and withdrew within two months under withering attacks from Donald Trump.
One of Walker’s last actions however, before loosing a bid for a third term as governor, was to appoint conservative lawyer, Dan Kelly, to a seat on the Wisconsin Supreme Court being vacated by retiring Justice David Prosser. Kelly’s conservative radicalism on women’s autonomy and comparing affirmative action to slavery was apparently a “bridge too far”, and he lost his seat in the 2020 reelection bid to liberal Judge Jill Karofsky. This was only the second time an incumbent judge had lost reelection in Wisconsin in the last half century.
Not to be deterred, Kelly ran again last week, and once again went down by double digits, this time to liberal circuit court judge Janet Protasiewicz. Kelly had thus single-handedly (with an assist from Scott Walker) flipped control of the Court from 5-2 conservative to 4-3 liberal.
But Kelly did not go quietly. As he stated in his concession speech, “I think this does not end well.” He plans to return to his prior passion, providing legal cover to Republicans redrawing statewide electoral maps. As for Protaciewicz, she seemed well aware that the ghost of Marshall Strong lives on in Wisconsin, saying simply, “There is still work to be done.”
Mike Magee MD is a Medical Historian and author of CODE BLUE: Inside the Medical-Industrial Complex.