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  • Milton, Deliberative Liberty, and the Law of Spousal Privileges
  • Todd Butler

In 1876, caught up in an ongoing legal battle with the male executors of her late husband's estate, the American suffragist Marietta Stow wrote and subsequently self-published her sprawling Probate Confiscation; or, The Unjust Laws Which Govern Women. In this text, which would become the basis for a nationwide tour of lectures and lobbying, Stow reframes her personal struggle with the California probate courts in apocalyptic terms, demanding a thoroughgoing reform in the systems of nineteenth-century American law, politics, and business that she regarded as fundamentally hostile to the rights of women. Stow's fervent convictions garnered the attention of luminaries such as William Lloyd Garrison, Ralph Waldo Emerson, and Henry Longfellow, all of whom supported Stow's initiatives in Massachusetts and elsewhere to revise state probate laws. These efforts, however, repeatedly foundered upon legislative presumptions—contrary to Stow's own experience, and that of other women as well—that the courts and their male judges already did sufficiently protect widows and children. Reflecting acidly on such assumptions, Stow remarks in the third edition of her book that while many men believed that women were well [End Page 231] taken care of at law, those same men "have fashioned women's legal garment so deftly, so cunningly, she can exclaim with Paulus Emilius, who being asked why he put away his wife for no visible reason, replied 'This shoo' (holding out his foot) 'is a neat shoo, a new shoo; and yet none of you know where it wrings me."1

Though Stow does not cite her source for this story, Milton scholars will likely recognize the anecdote as being a direct quotation from The Doctrine and Discipline of Divorce, the first of Milton's four divorce tracts. Stow's use of the Paulus Emilius reference in support of her model "Act for the Protection of Widows" suggests that while Milton's divorce tracts originally yielded little in the way of immediate political or legal change they offered at least a conceptual touchstone for future generations of impassioned reformers. Historians of American divorce law, for example, regularly cite the influence of the shared experience of rebellion that spurred both Milton and the newly independent citizens of the former thirteen colonies to formulate divorce as a matter of not only domestic but also political contract.2 Most recently, both literary and legal scholars have returned to Milton's divorce tracts in the context of Obergefell v. Hodges, the 2015 U.S. Supreme Court case that recognized that same-sex couples possess a fundamental right to marry. Here the focus has been on Milton's insistence that the foundations of marriage rest upon spiritual compatibility rather than bodily congress, an argument that Martha Nussbaum, Sarah van den Berg, W. Scott Howard, and others have viewed as presenting a direct challenge to the presumption that the state's interest in limiting marriage to heterosexual couples lies in its prioritization of child-bearing within a biological partnership.3

Milton's recurrent presence in readings of American law suggests the importance of reading his divorce tracts not just in their immediate context but also within the legal doctrines that have since evolved around their central arguments. In particular, this essay argues that a close reading of the importance and sanctity Milton and other seventeenth-century writers accorded marital conversation reveals a new genealogy for certain modern legal protections afforded to such conjugal intimacies. Manifested today in [End Page 232] what is now collectively called "spousal privilege," or, generally speaking, the right of a husband or wife to limit or prevent the evidentiary testimony of his or her spouse in a court of law, the roots of such evidentiary rights have been generally assumed to lie in the medieval and early modern doctrine of coverture, or the sublimation upon marriage of a woman's independent identity into that of her husband. By the nineteenth century, however, the justification for spousal privilege had become centered on the maintenance of marital harmony rather than male headship. When it is addressed at all, this shift has generally been credited to the economic changes of the...


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