Productive Confusion: Using a Quasi-Legal Source in a Women's History Classroom

When teaching undergraduate students in my American Women's History class, I often confront their monolithic understandings of how the law "worked" in early America and of what the law reveals about women's status and experiences. Students who would never agree that current laws accurately describe their own behavior and attitudes seem perfectly content to assume that the early American law of coverture faithfully represents married women's status and opportunities in that era. To complicate these simplistic notions of the law's role and of women's experiences and status in early American society, I have turned to an ambiguous, quasi-legal source: desertion notices published in early American newspapers.

Thousands of desertion notices, most written by men, appeared in eighteenth- and early nineteenth-century American newspapers. In these notices men typically accused their wives of deserting and then announced that they would no longer pay any of their wives' debts, as did Donald Ross, who published this notice in the 20 October 1800 Vermont Journal: "Whereas Barbary my wife has Eloped from my bed & board, without any just cause or provocation, and doth utterly refuse to cohabit with me. This is therefore to warn all persons not to harbour or trust the said Barbary on my account, or in any way whatever, as they would avoid the penalty of the law; I being determined not to pay any debt of her contracting after the date hereof."¹ At first glance, such notices seem to support an interpretation of coverture as severely limiting married women's opportunities and placing wives firmly under their husbands' control. According to the law of coverture, a married woman had no legal identity separate from her husband and therefore could not contract debts in her own name. Because the law placed women's property, wages, and labor in their husbands' hands, it required that husbands support their wives and pay the women's debts. However, if a woman left her husband, he was not obligated to pay any debts she contracted as long as he notified the appropriate people of her desertion. Newspaper notices were the means many husbands used to inform merchants, shopkeepers, and other community members of their refusal to support their errant wives. Not surprisingly, many students initially perceive desertion notices as yet another example of an unyielding patriarchal legal system which subordinated women to their husbands and which stripped wives of opportunities to act in their own interests.

This perception of desertion notices accepts that men like Donald Ross were correct in assuming that their postings had the power of the law behind them. In reality, however, the legal standing of these notices was uncertain. Authors of legal treatises unanimously agreed that husbands had the right to notify shopkeepers that they would not pay their runaway wives' debts. However, they were silent on the issue of whether a newspaper advertisement announcing a wife's desertion served as legally binding notification. The legal guidebooks which proliferated in the late eighteenth and early nineteenth centuries offered no consistent assessment of the notices' legal standing: some endorsed the notices as proper legal forms while others maintained that newspaper postings were not sufficient legal notification of wives' desertions.² Students typically respond to this information with bewilderment, but their confusion is quite productive, as it forces them to consider just what makes something legal. After all, if the members of Donald Ross's community refused to extend credit to his estranged wife, then his posting was "legal," regardless of what handbooks and treatises had to say. Conversely, the members of this community may have decided that Ross was not justified in denying his wife access to his credit, in which case the newspaper notice was on far shakier legal ground. In either case, desertion postings encouraged community members to apply their own understandings of the law to these marital disputes and to act accordingly. In a very real sense, these notices required early Americans to interpret and then to apply the law. While scholars are aware of this legal contingency and flexibility, it...