Women and the Law in Early 19th-Century Indiana
Author: Timothy Crumrin, Conner Prairie Historian
[Publication forthcoming. Not to be reproduced without permission]
A woman's gender and marital status were the primary determinants of her legal standing in Indiana and much of America from 1800 to 1850. By custom and law she did not enjoy all of the rights of citizenship. In the legal realm women were decidedly dependent, subservient, and unequal. National and state constitutions included little mention of women. Even though Hoosier women were enumerated in the census which paved the way for statehood and had to share the burden of taxation, they were not allowed to vote or hold office. Rights for which a revolution was fomented were denied women-- as they were to slaves, "lunatics," and "idiots."
Further exacerbating the situation, rights normally enjoyed by women were often withdrawn when she married. Indeed, a woman gave up so many civil and property rights upon crossing the threshold that she was said to be entering a state of "civil death." This unhappy circumstance arose partially because American (and Indiana) law was based upon English common law. Predicated on "precedent and fixed principles," common law had dictated a subordinate position for women. Married women generally were not allowed to make contracts, devise wills, take part in other legal transactions, or control any wages they might earn. One of the few legal advantages of marriage for a woman was that her husband was obligated to support her and be responsible for her debts. It is highly doubtful that these latter provisions outweighed the lack of other rights, particularly in the area women faced the most severe restriction, property rights.
These Things Not My Own
Indiana drew upon the common law tradition that "considered women almost as perpetual juveniles" in designing its statutes. Under them, a single woman had few special strictures placed upon her property rights. Her married sisters, however, found themselves subordinate to and bound by the decisions of their husbands. Under the common law doctrine of coverture, a woman's property usually went to her husband with the whispering of the "I do." The man "assumed absolute ownership of his wife's personal property," and for all practical purposes, her real estate as well. He also gained control of any wages or other income accrued by his spouse. Technically, this meant that a man could do anything he wished with his wife's material possessions. He could sell them, give them away, or simply destroy them as was his wont. Married women were also forbidden to convey (sell, give, or will) any property.
How strictly this was adhered to depended upon the couple. Each was different and, like today, decision-making was shared to varying degrees. Legally, however, the husband had the final say-- if he chose to exercise it. Common law principles were generally accepted throughout Indiana, with the noted exception of utopian New Harmony, where Robert Owen's followers espoused beliefs in the true equality of women.
There was some solace for married women under common law besides charging the husband to support his wife. The law of dower (not to be confused with dowry) was also a part of its tenets. Dower stipulated that one-third of the husband's estate (one-half if the couple was childless) was reserved for the wife. Although this might seem a small share for a lifetime's efforts, considering the small concern shown for women in other ares of common law, it seems almost enlightened by the day's standards. Dower also furnished the wife a weapon to protect herself while her husband was alive. As she was entitled to her share of the estate, no real estate transaction could be take place without her approval. This offered a means of asserting some control over her husbands actions. Indiana law recognized both dower and approval of conveyance rights.
Married women had another legal ally, equity law. Equity law, as usually practiced in chancery courts, was adjudicated on the "inherent justice" of each case and acted as a counterbalance on the scales of justice to the more restrictive common law doctrines. When adopted, the tenets of equity law could help loosen some of the strictures placed on married women-- if the state and courts allowed their use. One such feature was the separate estate, in which property could be set aside under the wife's control. Such property could have been willed to the wife, brought into the marriage, or been given to her by her husband. This afforded the wife some freedom of action and protection. Indiana's law which permitted wives control of land willed to them is an example of equity law.
Indiana must also be credited for several changes, mainly through the efforts of Robert Dale Owen, which somewhat bettered the condition of married women. During the 1837-1838 legislative session Owen pushed through a bill (over the vehement protests of a fellow lawmaker who thought it a subversion of society) that replaced dower with a provision guaranteeing women two-thirds of her husband's estate. Unfortunately, it was repealed in 1843 when some legislators still angry about the law took advantage of Owen's move to the U.S. Congress to strike his measure from the books. Ironically, during that same 1843 session lawmakers gave married women the power to devise wills. Indiana also afforded some protection for married women by excluding property brought into the marriage from being used to ameliorate debts against the husband's estate. By the same token, it also awarded an adulterous wife's property to the aggrieved husband forever. An aggrieved wife, however, was only entitled to her one-third share of her husband's estate.
Hoosier women, then, lived under legal restrictions no worse-- and in some cases better-- than other American women. Again, much depended upon the couple's relationship and many wives enjoyed freedoms above those accorded by the law books. A survey of early Hamilton County [IN] probate records showed most wives received at least their legal share. Trader and businessman John Conner allotted his wife only her minimum portion, while others were more generous. William Dyer gave his wife land and personal property exceeding one-third of his estate and Robert Colborn and S. Walls gave their wives their entire estate. Walls, though, attached an addendum typical of the time which stated in the event of his wife's remarriage, all of the estate would pass to his sons.
Divorce was neither prevalent nor particularly acceptable during the first half of the nineteenth century. There were strong social and religious objections to the sundering of what many viewed as a sacred commitment. The whole "concept of divorce" was anathema to many and was usually applied only as a least resort. This does not mean it was virtually unknown in Indiana and the midwest. The Hoosier state, like others, viewed marriage as a civil contract and used its "legal Sovereignty... to determine its own policy with respect to marital affairs."
However, by the 1840s, Indiana was to become renowned for having among the most liberal divorce laws and acquiescent court systems in the nation. So liberal were they that Indiana might be called the Reno of the nineteenth century and a movent grew after the Civil War to reform the Hoosier state's pliant divorce statutes. Indiana was such a divorce mecca that famous archaeologist Heinrich Schliemann, discoverer of Troy, moved to Indianapolis for a period in 1869 specifically to obtain a divorce. This liberalization of Indiana's divorce laws, probably an outgrowth of the "New Harmony influence," evolved gradually, however.
Indiana early on recognized that it was an "interested third party" in the marriage contract. In 1807 territorial law allowed the General and Circuit Courts to grant absolute divorce in cases of "bigamy, impotency, and adultery." A legal separation (mensa et thoro) was provided for on the basis of "extreme cruelty." These laws were enacted despite the antipathy of Indiana's Territorial Governor, the aristocratic William Henry Harrison, who believed that, if divorce must be granted, the power ought to be "properly lodged with the legislature." Not surprisingly, the legislature was given the power to grant divorces and effected the dissolution of over one-hundred marriages from 1807-1840. During the territorial period more than half of the approved petitions (12 of 20) were instigated by women. Such was the case of Jane Richardson of Harrison County (ironic, as the county was named after the governor who disliked divorce) who sought a divorce after her husband "connected himself with a banditti of horse thieves" and subsequently abandoned her and their two children.
In 1813 legislators added to the reasons thought proper to entail divorce by allowing the granting of petitions based on abandonment and conviction of a felony. Absolute divorce was also acceptable in cases of cruel treatment by the husband which might endanger the wife. This last provision indicates that the lawmakers did not think "that the number of men dominated by their wives" was numerous enough to justify legislation for their [the husband's] protection. The governing body also sought to reinforce the gravity of divorce by stating that "minor grievances were not cause for divorce," no matter how "inconvenient the marriage might become." Also attached to the law was a stipulation that adjured local prosecutors to oppose the granting of a divorce "not warranted by this act." This section was repealed in 1814, but reinstated a few years later. It was not a provision that simply lay unheeded on the book. The first divorce petition filed in Hamilton County was disallowed by the court and prosecutor as being without just cause.
After attaining statehood in 1816, Indiana made further additions and refinements to its divorce code. By 1838 habitual drunkenness (for two years or more) by the husband became justification for divorce. And, in an important move, it gave the courts increased discretionary powers. In addition to the specific reasons spelled out in the law, it allowed judges to grant decrees "in any other case where the court, in the exercise of sound discretion, shall deem it reasonable." Such power in the hands of a willing judge, and there appear to have been a few of those, could open many new just causes for divorce. With the Revised Statutes of 1843 the state sought to "integrate all matters of domestic relations into one comprehensive law." Though it was without "substantive change, the 1843 statute acted to clarify and detail Indiana divorce laws." It retained the six major grounds for divorce: adultery, impotency, abandonment, cruel treatment, drunkenness, and commission of crimes. It also maintained the important discretionary powers of the courts.
Other provisions of the 1843 laws included protections for women. One section provided for restraints against a violent husband while the divorce was pending (a sort of 19th-century restraining order) and the provision for alimony and child support. If the divorce was precipitated by the husband's misconduct, the wife was entitled to immediate possession of her share of her real estate as if widowed, and was to receive the property (dowry) she brought into the marriage. Conversely, if the wife were the adulterer, her husband could hold her personal estate forever. The one major change was the elimination of the menso et thoro decree, which was tantamount to a permanent legal separation, but these were seldom used in Indiana, this was not a particularly important action.
The net result of Indian's softer divorce laws is difficult to judge. Indiana women certainly lived in a state that made escape from a particularly troubled marriage easier, but divorce was still seldom used as a recourse to a less than blissful marriage. No reliable figures exist, but it is certain that societal constraints worked to hold divorce to a minimum. Even during the period of increasing divorce rates after mid century, Indiana's rate never reached two divorces per thousand marriages-- despite the notoriety attached to its lenient laws. Undoubtedly, the rate was even lower during the first half of the nineteenth century. There were occasional advertisements announcing an impending divorce action, but it was hardly a common, ubiquitous phenomenon.
In the early nineteenth century abortion simply did not elicit as much comment or controversy as today. Though not openly encouraged-- and condemned in some circles-- it was not necessarily dismissed out of hand if done early enough into the pregnancy. Abortion before "quickening," the first signs of fetal movement, usually during the second trimester, was generally considered acceptable. "Most forms of abortion were not illegal and those women who wished to practice it did so." As there were no laws specifically addressing abortion in the America of 1800, the only source for guidance was, again, English common law, which recognized quickening.
Not until the 1820 did laws concerning abortion begin to appear in the statute books. The British Parliament, in 1803, passed a law banning abortions at any time during pregnancy, but America did not immediately follow suit. The first American abortion law was not enacted until Connecticut did so in 1821. This statute, which has been called more of an anti-poisoning bill than an anti-abortion law, accepted quickening as the decisive factor. Midwestern states were the next to adopt such legislation, with Missouri following suit in 1825 and Illinois in 1827. They were clearly patterned after the Connecticut law in both language and intent. Indiana did not adopt its first abortion law until 1835., which was also found within a grouping of laws dealing with poisoning. It did, however, contain an important and telling new provision that forbade the use of "any instrument or any other means whatever" to procure an abortion unless to protect the mother's life.
In the Indiana law one sees the graphic embodiment of then current notions about the medical fraternity.
These earliest abortion laws must be viewed contextually to be properly understood. In the main, they were not promulgated out of any fervor over the "morality" of abortion. As mentioned, quickening was generally accepted by both the courts and the public as the pivotal issue in abortion. Abortion was not generally considered immoral or illegal if performed prior to fetal movement. Because this was so widely accepted most American women did not have to "face seriously the moral agonies so characteristic of the twentieth century." That Indiana's law did not specifically mention quickening should not be seen as a step away from the doctrine. Instead, it is likely further evidence that quickening was so ingrained that it need not be especially written into the statute.
Why then did the years 1820-1850 see a flurry of abortion legislation? Much of it can be traced to the contemporary opinions of the medical fraternity. Most of the laws were aimed not at prosecuting women for obtaining an abortion, but, instead, were meant to protect them from "unwanted abortions" caused by doctors or other "practioners" of the medical arts. Physicians of the period did not always enjoy the esteem accorded their predecessors or those who followed them, due to their often indifferent training and "kill or cure" methods. The anti-poisoning provisions were aimed at the sundry cathartics and emetics frequently administered by doctors. If not used carefully, such drugs could result in an abortion-- a purpose for which they were indeed used intentionally. The laws were meant to deal with doctors or other purveyors of potions and remedies which might prove dangerous. The Hoosier law's mention of instruments was also reflective of the public's attitude that surgical procedures were often too dangerous and too often employed by incompetent or under-trained doctors.
This is not to say that the high moral ground went unoccupied. The Catholic Church was, of course, opposed to any form of abortion, as were many other religious creeds. After the 1840s, an increasing number raised their voices against abortion on a moral basis. Perhaps the most vocal were the "regular," or most formally educated, doctors. They began to assert that quickening was a "step neither more or less crucial" in gestation and thought of it as just another stage in the process of fetal development. Thus, it was as wrong to abort before quickening as after it. Physicians were also among the most virulent defenders of the "value of human life, per se," even more so than many clergy. This movement did not really gain steam until after mid-century when, along with an outcry stirred by botched abortion stories, it contributed to stiffer abortion legislation.
Why this movement came to the fore during this period is difficult to establish with certainty, but one major reason may have been a change in those seeking abortions and why. The 1840s was the decade in which abortion was increasingly being used by married women as a means of family limitation, as opposed to previously when it was often a method of avoiding a scandal utilized by unmarried pregnant women. When abortion began to veer too closely to polite society, some may have taken more notice and sought to do something about it.
Whatever the reasons, Indiana had an "anti-abortion" measure on the books after 1835. It seems to have been a law little regarded and little enforced. It also seems unlikely that it prevented many women who wished an abortion from obtaining one. Chemical or natural agents for producing abortions were readily available if a woman knew where to look-- and most knew exactly where to fix their gaze. Mid-wives knew all the secrets; druggists advertised appropriate potions; medical texts provided answers.
To judge the relative importance lawmakers attached to abortion, one need only compare the penalties involved. Assisting in an abortion, or performing a self-abortion, was punishable by a maximum fine of $500.00 and a year in the county jail. Burglary's penalty was fourteen years in the state prison; murder (analogous in some modern minds with abortion) was a capital offense. Clearly, the state of Indiana did not equate abortion with murder, or even stealing your neighbor's silver service.
Crime and Punishment
Indiana was also "chivalrous" enough to take to heart the "more delicate" nature of its female residents. Swallowing whole the maxims about the fragile female, it sought ways of lessening justice's impact even upon the guilty. A female thief was not to be sentenced to more than sixty days in the county jail for petit larceny, while a masculine felon could be carted off to the harsher state prison for three years of hard labor for the same offence. Any crime serious enough to call for a term at the state prison for men could be reduced to hard labor at the county jail for the weaker vessel. Also, unlike men, women could not be imprisoned for non-payment of a contracted debt.
However, looking back, it must be doubted that these concessions to their gender made up for the losses caused by them in other areas.