Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers

1. The Women’s War

1 ◊1÷ The Women’s War Let the woman learn in silence with all submissiveness. I do not suffer a woman to teach, nor to usurp authority over men, but to be in silence. —1 Timothy 2:11-12 Man for the field and woman for the hearth: Man for the sword and for the needle she: Man with the head and woman with the heart: Man to command and woman to obey; All else confusion. —Alfred, Lord Tennyson, 1847 ON JUNE 18, 1860, Reverend Theophilus Packard committed his wife Elizabeth to the Illinois Hospital for the Insane. A staunch Calvinist, Theophilus held that his wife’s refusal to accept the orthodoxy of his religious views, her refusal to echo his thinking, spoke unequivocally of a deranged mind. Theophilus acted quite legally. Illinois law permitted a husband (but not a wife) to authorize the involuntary commitment of a spouse. Elizabeth Packard, forty-four, the mother of their six children, and completely sane, had not given her consent and was literally dragged off. Elizabeth spent three years imprisoned in the state insane asylum as punishment for her refusal to bend to her husband ’s commands. She won her release only in 1863 when her eldest son reached the age of majority and asserted legal standing to petition for her freedom. Months later Theophilus again, stubbornly, locked 2 The Women’s War Elizabeth in a room whose windows had been nailed shut. This time she was freed only after a court trial in which a jury declared her sane.1 Elizabeth Packard’s fate was the consequence of male action. In addition to her husband’s, the decisions of fathers, brothers, sons, male legislators, sheriffs, and doctors contributed to her imprisonment. Even the final—felicitous—ruling of a local jury declaring her sane was a judgment of men. At every step, Elizabeth Packard contended with norms and laws established and carried out by men. In the eighteenth and nineteenth centuries the power of men was so far reaching that god-fearing Abigail Adams entreated her husband John, later to become the second president of the United States, to join with others at the Continental Congress to shape a code of laws that would expand the rights of women. “Remember the Ladies,” she wrote in the spring of 1776, “and be more generous and favourable to them than your ancestors. Do not put such unlimited power into the hands of the Husbands.”2 The Revolutionary War created opportunities for women to participate in the fight against England. However, neither the Declaration of Independence nor the United States Constitution took note of women’s rights. Despite this silence, in 1798 writer Judith Sargent Murray felt confident about the future of her sex, arguing that female rights were now understood and the new nation was now ready “to do justice to women.”3 While it was true that white women shared in many of society’s fundamental liberties—including the right to speak, worship, assemble, petition, and protest—custom, and the legal doctrine of coverture (under which a married woman lost much of her individual legal identity to her husband), worked against all women in significant ways: by law, married women could not own property or dispute abusive husbands; they could not sign legal documents, enter into contract, sue in court, or be sued; they could not vote (a short-lived experiment in New Jersey ended in 1807) or serve on juries , and would have been belittled—or worse—had they attempted to run for political office. Before and after the Revolutionary War, they were celebrated as mothers of the republic. In this important domestic and civic role they were expected to uphold the ideals of The Women’s War 3 republicanism—liberty, inalienable rights, honesty, sovereignty— to counsel husbands, and to educate their sons and daughters in the virtues of republican citizenship.4 Yet in the first decades of the nineteenth century, despite the war for liberty and independence, in the world of politics traditional male power prevailed and social custom did not change. The nastiness of political party conflict, the expansion of male but not female suffrage, and the rise of deal making in smoky back rooms conspired to marginalize women, at least where electoral politics were concerned. Men counseled politically inclined women to become peacemaking negotiators—“non-partisan patriots”—rather than full-fledged players.5 Women were quieted, but this...