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The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880

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Articles Home As Work: The First Woman's Rights Claims Concerning Wives' Household Labor, 1850-1880 Reva B. Siegelt CONTENTS INTRODUCnION .............................................. 1075 I. GENESIS OF A RIGHTS DISCOURSE .............................. 1081 A. The Law of MaritalProperty in the Antebellum Era .............. 1082 B. Women's Household Labor in the Antebellum Era ................ 1086 C. Ideological Sources of Joint Property Advocacy ................. 1091 1. Utopian Communitarianism ............................ 1094 2. Abolitionism and PoliticalAntislavery .................... 1098 t Acting Professor of Law, University of California at Berkeley; Visiting Professor of Law, Yale Law School, 1993-94. B.A., 1978, M.Phil. 1982, J.D. 1986, Yale University. This Article is dedicated to Hannah, Anna, and Eve, as well as to "Pen-Holder" and all the rest of "my ladies," whose voices I have tried to make audible in these pages. I owe deep thanks to the many friends and colleagues who helped me with the manuscript along the way: Hugh Baxter, Mary Becker, Nancy Cott, Ira Ellman, Thomas Ferraro, William Fletcher, Gillian Hadfield, Hendrick Hartog, Herma Hill Kay, Christine Littleton, Kristin Luker, Martha Minow, Andrea Peterson, Robert Post, Derick Schilling, Harry Scheiber, Maijorie Shultz, Joan Williams, and workshop participants at the Yale Law School and the University of Chicago Law School. Special thanks go to Ann Lucas, Rebecca Schleifer, Laura Schlichtmann, and Peggie Smith for their research assistance, to my editor, Jonathan Weissglass, to Kristin Largent-Moyes for all kinds of help with "HAW," and to Boalt Hall and the Center for the Study of Law and Society for financial support so generously provided. 1073 1074 The Yale Law Journal [Vol. 103: 1073 3. The Roots of "Woman's Rights" in Separate Spheres Ideology ... 1108 II. JOINT PROPERTY ADVOCACY IN THE ANTEBELLUM ERA ................ 1112 A. CriticalPremises of the Joint Property Claim .................. 1113 1. Exposing the Gendered Structure of Property Law ............ 1113 2. Joint Property as a Strategy for Economic Emancipation ....... 1119 B. The New York Campaign: 1850's ........................... 1135 III. JOINT PROPERTY ADVOCACY IN THE POSTBELLUM ERA ................ 1146 A. Shifting Prioritiesof the Postwar Woman's Rights Movement ........ 1147 B. Popularizationand Depoliticization of the Joint Property Claim ..... 1153 1. Dissemination of the Rights Discourse in Postwar Suffrage Journals ............................ 1153 2. Assimilation of Rights Discourse by JournalReadership ........ 1158 3. Postwar Transformations in Joint Property Discourse ......... 1161 C. The Waning of Legislative Advocacy .......................... 1167 1. Postwar Marital Property Reform Efforts .................. 1168 a. Joint Property in Inheritance ....................... 1169 b. Joint Property During Marriage ..................... 1172 c. Abandonment of Joint PropertyAdvocacy .............. 1177 2. Reconsidering the Earnings Statutes in Context: Legislation and Interpretation .......................... 1179 IV. EXPLORING THE MOVEMENT'S RETREAT FROM JOINT PROPERTY ADVOCACY 1189 A. A New Concept of Marital Equality: "Two-Career Marriage"......... 1191 B. A New Perspective on Women' Household Labor: Cooperative Housekeeping ................................. 1198 C. Shaw v. Gilman: Debating a Now-Bankrupt Tradition ............. 1205 CODA: REFLECTIONS AT THE CROSSROADS OF HISTORY AND THEORY ........ 1211 CONCLUSION ................................................ 1215 1994] Home As Work 1075 INTRODUCTION The law is wholly masculine: it is created and executed by our type or class of the man nature. The framers of all legal compacts are thus restricted to the masculine stand-point of observation-to the thoughts, feelings, and biases of men. The law, then, could give us no representation as women, and therefore, no impartial justice, even if the present law-makers were honestly intent upon this; for we can be represented only by our peers. It is to be expected, then, under the present administration,that woman should be the legal subject of man, legally reduced to pecuniary dependence upon him .... Antoinette Brown [Blackwell], 1852' When the American feminist movement is discussed in legal circles, conversation often proceeds as if women first organized to seek equality during our lifetimes. But it was in the years before the Civil War that a "woman's rights' '2 movement first demanded equality at law. Those who do acknowledge the existence of this early woman's rights movement generally assume that its demands were satisfied long ago, with the reform of marital status law and the amendment of the Constitution to allow women to vote. Yet, as the remarks of Antoinette Brown Blackwell suggest, nineteenth-century feminists raised questions in their time that are still alive in our own.3 This Article examines a nineteenth-century feminist claim that legislatures refused to recognize and historians have since overlooked: the claim that wives were entitled to property rights in their household labor. In exploring the life and demise of this rights discourse, I offer a political history of housework at the dawn of the industrial era, and an account of the earliest feminist politics of women's work. 1. PROCEEDINGS OF THE WOMAN'S RIGHTS CONVENTION, HELD AT SYRACUSE, SEPTEMBER 8TH, 9TH & 10"H, 1852, at 20-21 (Syracuse, J.E. Masters 1852) (emphasis added). 2. During the nineteenth century, the women's rights movement was called the "woman's rights" movement. Throughout this Article, I follow nineteenth-century convention, describing the movement as it described itself. See, e.g., supra note I (report of convention proceedings); infra note 118 (remarks of Lucy Stone). 3. Blackwell may have been one of the first feminists to note that the law reduces women to "pecuniary dependence" on men, but she was not the last. For a striking instance of historical parallelism, compare Blackwell's remarks with those of Robin West 136 years later: By the claim that modem jurisprudence is "masculine," I mean ....that the values, the dangers, and what I have called the "fundamental contradiction" that characterize women's lives are not reflected at any level whatsoever in contracts, torts, constitutional law, or any other field of legal doctrine. *.. The material consequence of this theoretical undervaluation of women's values in the material world is that women are economically impoverished ...Nurturant, intimate labor is neither valued by liberal legalism nor compensated by the market economy. It is not compensated in the home and it is not compensated in the workplace-wherever intimacy is, there is no compensation. Robin West, Jurisprudenceand Gender, 55 U. CHI. L. REV. 1, 58-59 (1988). 1076 The Yale Law Journal [Vol. 103: 1073 I first became involved in this project in the course of studying the nineteenth-century statutes that conferred on married women rights in their earnings. These "earnings statutes," I discovered, did not completely abolish the common law doctrine that made a husband owner of his wife's labor; rather, the earnings statutes gave wives rights only in their labor outside the home, and continued to protect a husband's rights to his wife's services in the home.4 When I pointed this out to colleagues, and suggested that the earnings statutes might be understood as preserving the doctrine of marital service, I was informed that I was analyzing the statutes from an ahistorical vantage point: no one in the nineteenth century would have ever thought to emancipate wives' labor in the family. I set out to determine whether nineteenth-century feminists had anything to say about the question, and discovered that they in fact did. The antebellum woman's rights movement sought to emancipate wives' labor in the household as well as in the market, and to do so, advocated "joint property" laws that would recognize wives' claims to marital assets to which husbands otherwise had title. The movement argued that wives were entitled to joint rights in marital property by reason of the labor they contributed to the family economy.5 Some may find it difficult to imagine that a debate over wives' household labor occurred in the nineteenth century, but our "common sense" intuitions about the normal subjects of political debate were formed in the aftermath of the industrial revolution, rather than at its inception. It was in the years before the Civil War, when a family-based economy was giving way to the industrial system, that feminists first attacked the common law doctrine of marital service and argued that wives were entitled to rights in their household labor. By reconstructing the social universe in which it still could be argued that wives' work was work, and a debate over the legal status of wives' household labor made "common sense," I hope to explain the life of the joint property claim and thus to change our understanding of the evolution of feminism and family law. 4. See Reva Siegel, Of Status and Contract, Marriage and Market: Nineteenth-Century Reform of Coverture: Judicial Construction of the Earnings Statutes (1986) (unpublished manuscript, on file with author). A growing number of historians have observed that the earnings statutes did not apply to the labor most wives performed in the home. See NORMA BASCH, IN THE EYES OF THE LAW: WOMEN, MARRIAGE, AND PROPERTY IN NINETEENTH-CENTURY NEW YORK 164-65 (1982); NANCY F. Corr, THE GROUNDING OF MODERN FEMINISM 186-87, 186 n.13 (1987); MARY
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