MIA: Library: Mary Beard, Woman as a Force in History, 1946

Woman as a Force in History. Mary Beard 1946

Sway of Blackstone in the United States

MANY circumstances after 1776 fortified in the United States the doctrine of woman’s legal subjection to man as set forth by Sir William Blackstone, and gave it a large command over American minds, rendering them susceptible to the dialectical elaborations provided by Mill and Bebel.

One was the position of the common law in America. Except as altered and adapted to conditions in the English colonies, the common law of England had been in effect in all the colonies except Connecticut. Nor was it wholly abolished with the revolt against Britain and the creation of the republic. The extent and character of its sway in the United States were carefully considered by Jefferson in a memorandum written in 1812. Some of the colonial legislatures, he noted, at an early time in their development had by express act of their own adopted “the laws of England as they stood at that date [of settlement], comprehending the common law, statutes to that period, and the chancery law [equity].” Other colonies, without resorting to a formal adoption, continued to operate under the English laws and thus by practice and tacit consent gave effect to those laws. In the case of Connecticut, however, “they did not adopt the common law of England at all as their basis, but declared by an act of their own, that the law of God, as it stood revealed in the Old and New Testament, should be the basis of their laws, to be subject to such alterations as they should make.”

Yet in adopting, either by express action or practice, the common law of England, the early colonists claimed and exercised the right to modify, by legislation of their own, the rules of that law and to fit it to their own needs and conditions. “In all the cases,” said Jefferson, “where the common law, or laws of England, were adopted either expressly or tacitly, the legislatures held of course, and exercised the power of making additions and alterations.”

Owing to this mode of adoption, the common law as accepted in America varied from colony to colony. “As the different States,” wrote Jefferson, “were settled at very different periods, and the adoption for each State was the laws of England as they stood at the moment of the adoption by the State, it is evident that the system [as] adopted in 1607 by Virginia, was one thing, as by Pennsylvania was another thing, as by Georgia, in 1759, was still a different one. And when to this is added the very diversified modifications of the adoptive code, produced by the subsequent laws passed by the legislatures of the different States, the system of common law in force in any one state [in 1789] ... was very different from the systems in force at the same moment in the several other States.”

Hence the common law in force in the American republic at the end of the eighteenth century varied materially from state to state as to its extent and nature; so lawyers who practiced in more than one state were confronted by various forms of common law, not necessarily the common law of England as expounded by Blackstone. Moreover in some states this common law, as taken over, was qualified by coupling with its acceptance provisions of English statute law and equity jurisprudence likewise incorporated in the local body of law.

Nevertheless there were die-hards in America who shared Blackstone’s distaste for opening any gate to progressive legislation. In 1776, eleven years after the first volume of his Commentaries was issued, a planter of Virginia, Edmund Randolph, seriously proposed to make the Commentaries the framework for the whole body of private law in Virginia. In that year a committee of five Virginians, of which Jefferson was a member, working for the provisional legislature of that state, took under consideration the drafting of a revised colonial code of law with the object of reducing to a single text the common law as applied in that state, the English statutes adopted in Virginia, and other forms of local law then in effect. Edmund Pendleton, like Edmund Randolph, a conservative of the old political

school, advocated the use of Blackstone as the foundation of this entire revision and consolidation of Virginia law; but he was blocked if only by a single majority vote.

Lawyers in America Bow Down to Blackstone

Jefferson was against this subservience to Blackstone. He viewed it as a neglect of legal science. In describing the committee problem, in after years, he wrote that “Pendleton proposed to take Blackstone for that text, only purging him of what was inapplicable or unsuitable to us. In that case, the meaning of every word of Blackstone would have become a source of litigation, until it had been settled by repeated legal decisions. And to come at that meaning, we should have produced, on all occasions, that very pile of authorities from which it would be said he drew his conclusions, and which, of course, would explain it, and the terms in which it is couched. Thus we should have retained the same chaos of law – lore from which we wished to be emancipated.” It was on such grounds, as well as due to the bustle of the times, that the committee was deterred from attempting the reduction of Virginia law to a simple text. Of one thing a majority was certain: Blackstone was not to be taken as the basis of the new text, if it was to be made.

But with the growth of commerce and the increase of litigation, lawyers had multiplied in the colonies and had won a position of respectability in American society that had not been granted them in England. Lawyers were important leaders in the American Revolution and, with the outcome in independence and the federation of the states, lawyers steadily forged to the front as politicians and legislators. They became authors of statutes and they might have modified more drastically than they did the terms of the common law inherited from England. But it was not to their professional interest to have the law simplified and the jargon of the common law, so advantageous in mystifying clients, supplanted by language made easy for laymen to understand. Moreover as edition after edition of the Commentaries was printed for American usage, American lawyers became more and more imprisoned in Blackstone’s system of dogmas – legal, political and economic.

To lawyers, at the end of the American Revolution, Blackstone’s Commentaries was a veritable godsend. It reduced to a moderate compass, digested, organized, and expounded a vast mass of old laws, rulings, and precedents. Moreover, for a law work, it was written in free, flowing, and popular style, so that any literate person of a little more than ordinary intelligence could by a few months’ close study make himself master of its leading principles. With relief, law students could neglect the qualifying provisions of Equity and put aside the more difficult texts of Littleton on tenures, Coke’s commentaries on Littleton, and Coke’s institutes – all of which called for hard work if they were to be mastered. In short students could get their legal “education” from “the elegant Blackstone,” with relative ease.

In a letter to John Tyler in 1810, even Jefferson said that he still lent his “counsel and books to such young students as will fix themselves in the neighborhood. Coke’s institutes and reports are their first, and Blackstone their last book, after an intermediate course of two or three years.”

Throughout the country, ordinarily, ambitious young men who aspired to fame and fortune at the bar usually read Blackstone at the beginning of such legal education as they undertook for themselves and then made Blackstone their staunch authority for the conduct of their law business. judge Simeon Baldwin, at the opening of the twentieth century, speaking of the age of the American Revolution, declared: “Law books were largely imported. It is believed that more copies of Blackstone’s Commentaries, during the eighteenth century, were sold in America than in England. Their elegance of literary form appealed more strongly to our bar.”

As the nation expanded toward the Pacific Ocean, Blackstone’s treatise went west in its wake. Abraham Lincoln, early in his manhood, bought a copy at an auction and immersed himself in the study of law as outlined and defined by Blackstone. By the middle of the nineteenth century, the Commentaries constituted the prime legal work for instruction in the United States, except in Louisiana where the French code of law was entrenched. Near the beginning of his public career as a lawyer, Oliver Wendell Holmes, Jr., became so enamored of the common law through its “elegant” exposition by Blackstone that he almost enslaved his mind to its alleged perfection.

This servitude Jefferson and lawyers inclined to his views had never approved. Jefferson had realized the full significance of the tendency among American lawyers to exalt Blackstone as an authority binding American conscience, law, and practice. In harmony with “radicals” of his time, he insisted that Americans abandon the citation of British legal sources subsequent to 1783 – the year in which American independence was formally recognized by Great Britain. On this matter he unburdened himself June 17, 1812, to John Tyler, who had then become the federal judge for the district of Virginia, as follows: “The exclusion from the courts of the malign influence of all authorities after the Georgium sidus became ascendant [1783], would uncanonize Blackstone, whose book, although the most elegant and best digested of our law catalogue, has been perverted more than all others, to the degeneracy of legal science. A student finds there a smattering of everything, and his indolence easily persuades him that if he understands that book, he is master of the whole body of the law. The distinction between these, and those who have drawn their stores from the deep and rich mines of Coke and Littleton, seems well understood even by the unlettered common people, who apply the appellation of Blackstone lawyers to these ephemeral insects of the law.”

Jefferson had read extensively in history and philosophy but a large portion of American lawyers in the early nineteenth century had undergone no training in legal history or philosophy, and accordingly they were in no position either to understand or to criticize the animus of Blackstone’s Commentaries, or the class structure of English society reflected in its pages, or the purposes to which its argument was bent. Most of them were probably equally ignorant of contemporary English law and thus unable to discover how far Blackstone’s doctrines actually failed to represent English law and practice in the age of which he wrote. Furthermore, there is good reason for believing that few American lawyers understood, if they ever heard of, the attack begun on Blackstone by the great legal reformers such as Jeremy Bentham and John Austin, shortly after the Commentaries appeared, and continued until huge segments of English law were recast.

At all events, few American lawyers who labored so mightily to impose Blackstone on the American people knew that Blackstone had made it his business to discover and expound reasons for justifying the existence and rightness of the English class order to which he, as a conservative politician, was warmly attached. They did not know that “through his own timidity and subserviency as a man and a politician, he is always found to be a specious defender of the existing order of things” against the reformers, and that the reformers were then doing battle for a greater equality of rights and greater justice in the inherited law of England stamped by class doctrines of property. For hundreds of American lawyers the sheer ability to quote Blackstone sufficed as a way to fame and fortune.

By the 1820’s, the “Blackstone lawyers” had demonstrated that they were not the “ephemeral insects” which Jefferson had hoped they would be. Despite the many changes which reforming legislators had wrought in the common law, American lawyers had managed to impose on large sections of the country, as “good, sound law,” the stark outlines of Blackstone’s chapter “Of Husband and Wife.” Some of them did, it is true, make genuflections to the exceptions provided by Equity, but, like Blackstone, the majority of lawyers seemed to have had little use for such forms of justice. As a rule, they stuck close to the text of what Jefferson called “the Alcoran.” The great commentators Kent and Story, as we shall see later, gave Equity its due place in American jurisprudence, but the rank and file of lawyers appeared to accord it slight recognition in their teaching and practice.

By 184o Blackstone’s supremacy was unshaken, at least for the ordinary practicing lawyer and for the writers of small texts on law. When, for example, Edward D. Mansfield, to whom reference has already been made, wrote his work on The Legal Rights, Liabilities

and Duties of Women, published in 1845, he recited the Blackstone ritual. “As the marriage creates a unity,” he averred, “and the husband is religiously the head of the family, the law declares, that the external powers of this family, in respect to property and government, shall vest in the husband.” For this judgment, he gave the authority of Blackstone. After a brief reference to the wife’s rights in case of a trusteeship, Mansfield proceeded: “This merging, as it is called, of the wife’s rights of property and person in the husband, has been called little less than downright slavery. In this respect the Roman law was much more liberal than the English or American. For that law considered marriage as a sort of partnership, in which each partner had equal rights of property. We consider here, however, not the propriety, but the facts of the law; in order that women may know what it is.”

A convincing display of the tyranny which Blackstone exercised in the United States was made by the American Bar Association as late as 1924. By that date the profound researches of British scholars had revealed the specious pleadings of Blackstone; scholars of the first rank, such as Maitland and Holdsworth, had reconstructed the history of English law – the history which Blackstone had so often oversimplified and so distorted. By that time, British reformers, after more than a century of laborious work, had legislated out of existence much of the common law which the Commentaries had celebrated with such verbal flourishes, and brought English law more closely in harmony with the enlightened ideas of justice and reason combated by Blackstone in his day. Yet in the year 1924, during the administration of President Calvin Coolidge, the American Bar Association presented to the law courts of London a statue of Sir William Blackstone “to mark the influence which the great commentator had had over American jurisprudence.”

As the statue had not been executed in marble at the time of the presentation in 19 24, the American lawyers then merely unveiled a “giant plaster model.” The commission to execute the statue in marble was given to the American sculptor, Paul Bartlett, whose artistic leanings had been toward the historic. Years before Bartlett undertook this commission he had made a portrait bust of Elizabeth Cady Stanton who, amid no little derision from American lawyers, had battled valiantly against Blackstone’s dictum that woman was a favorite in English law and had lived to see many triumphs over common-law doctrines in the enactment of married women’s property acts in state after state. But, according to a biographer, “Never had the sculptor developed his teeming ideas with greater zest than in this tribute to British jurisprudence. A successful statue, yet a difficult one, since in less capable hands the subject’s greatness might have been smothered under circumstantial wig and robe.” Bartlett died before he had brought his statue of Blackstone to completion, and the finishing touches were given to it by his wife. The statue was placed in position in the Royal Law Courts in June, 1928.

American Feminists Bow Down with the Blackstone Lawyers

If possible, the dictation which Blackstone’s oversimplification of English jurisprudence exerted over the leaders of the woman movement in the course of the nineteenth century was even more autocratic than it was in the case of most competent lawyers. On what does this assertion rest? Although many of the “Blackstone lawyers,” whom Jefferson called “insects,” may have known little or nothing of Equity or the evasion of common-law doctrines for which equity had provided, centuries before Blackstone became an authoritarian exponent of the common law the better-educated American lawyers were more or less familiar with Equity, and many dispensed justice as equity judges. Jefferson knew very well how to protect the property of wives against improvident husbands by the creation of trusts which equity would enforce. So did other Americans.

After about 1835, American lawyers had for their better understanding of Equity and its development the Commentaries on American Law by James Kent, who had served in courts of Equity and had given in his treatise an extended consideration to Equity. About this time also they had at their command the monumental Commentaries on Equity Jurisprudence, written by Joseph Story, a careful student of this branch of the law. By 1840 there was no excuse for the ignorance of American lawyers respecting the inroads which equity had made on common-law prescriptions relative to the married woman’s property rights. If lawyers failed to realize that Blackstone himself had indulged in hyperbole or had been deliberately propagandistic in his statement on the rights and obligations of husband and wife, if they did not know that equity had riddled his common law long before he published the first volume of his Commentaries in 17 65, the fault was theirs, in view of the great mass of materials on equity easily accessible to them.

As for the women engaged in starting the organized movement for “women’s emancipation,” their leaders were not as a rule careful students of jurisprudence, to put it mildly. Legal training was not available to women in American colleges when the woman movement was formally launched in 1848. Even if it had been and women had studied law at institutions of learning, they, like so many men, might have become “Blackstone lawyers” themselves. At any rate, leaders in the woman movement took Blackstone’s metaphorical words about the civil death of the married woman as inescapable law, took it to heart as if it were the supreme truth for marital relations, and advertised it throughout the Western world; yes, even as far as the Orient.

Furthermore, the women emphasized some particular formulas of Blackstone’s statement which happened to be correct in common law and neglected to discover, or to point out if they made the discovery, that Equity had long made it possible to escape from the “disabilities” imposed by the most severe of these formulas. Consequently the women who followed this course were parroting and giving currency to dogmas about woman’s legal history which were in part false when Blackstone uttered them and, insofar as they had been correct at common law in 17 65, were not generally applicable in the United States or, when applicable, were avoidable by a resort to practices enforceable in Equity.

As a matter of fact, after the American Revolution, nearly all the states recognized Equity in some measure and all of them made modifications in their laws governing the distribution of intestates’ estates, following, often line by line, an old English statute governing personal estates. Before 1850, James Kent could record: “In a majority of the states the descent of real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance, as the English statute of distributions, with

the exception of the widow, as to the real estate, who takes one third for life only, as dower. In Georgia, the real and personal estate of the intestate is considered as altogether of the same nature and upon the same footing, both in respect to their statute of distributions and the descent of property... . Such a uniform rule in the descent of real and personal property gives simplicity and symmetry to the whole doctrine of descent. The English statute of distributions, being founded in justice and on the wisdom of ages, and fully and profoundly illustrated by a series of judicial decisions, was well selected as the most suitable and judicious basis on which to establish our American law of descent and distribution.”

In other words, ‘Blackstone’s ornate dictum that “the very being or legal existence of the woman is suspended during marriage, or at least incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything” – false when made – was no universal rule of American law in 1840 or earlier, and Equity had long been shooting holes in the list of the married woman’s disabilities. But leaders of the woman movement in the United States did not take these facts into full account. On the contrary, in the 1840’s they adhered tenaciously to Blackstone’s maxim which represented married women as historically subject to their husbands and as still subject in the United States. Taking this as a starting point, especially when there were crowds to address, they often associated with the alleged subjection of wives the subjection of all women, whether single or married. Not content with attacking legal discriminations against women in detail, they adopted a myth and made a frontal assault on that.

With constant reiteration, for example, the acclaimed legalist of the woman movement in the nineteenth century, Mrs. Elizabeth Cady Stanton, an outstanding pleader for women’s rights before law-making bodies, spoke and wrote as if Blackstone’s account of English law was in fact the law of the land – supreme law – in nearly all vital man-woman relations. It is true that Mrs. Stanton mentioned from time to time the gains which women had been making and were making in their struggle against formulas of the common law; but she repeatedly resorted to wholesale generalizations which treated Blackstone’s sweeping generalizations as still binding in law, even to her day in the United States.

In her address to the legislature of the state of New York in 1854, for instance, Mrs. Stanton declared that on entering wedlock the woman met “instant civil death.” The woman signed her own death warrant when she put her name to the marriage contract: “The woman who but yesterday was sued on bended knee, who stood so high in the scale of being as to make an agreement on equal terms with a proud Saxon man, to-day has no civil existence, no social freedom.” Although later in this address, Mrs. Stanton conceded that the wife had been recently “redeemed from her lost condition” by new state legislation respecting her inherited property, the keynote for her argument was the Blackstone precept about the death of the married woman in the eyes of the common law.

Six years afterward, in another address to the New York legislature in support of a woman-suffrage bill, Mrs. Stanton again made use of the Blackstone fiction. She said: “Blackstone declares that the husband and wife are one, and learned commentators have decided that that one is the husband. In all civil codes, you will find them classified as one. Certain rights and immunities, such and such privileges are to be secured to white male citizens. What have women and negroes to do with rights? What know they of government, war, or glory?”

The chance for oratory was irresistible and Mrs. Stanton made the most of it: “The prejudice against color, of which we hear so much, is no stronger than that against sex. It is produced by the same cause, and manifested very much in the same way. The negro’s skin and the woman’s sex are both Prima facie evidence that they were intended to be in subjection to the white Saxon man. The few social privileges which the man gives the woman, he makes up to the negro in civil rights. The woman may sit at the same table and eat with the white man; the free negro may hold property and vote. The woman may sit in the same pew with the white man in church; the free negro may enter the pulpit and preach... . It is evident that the prejudice against sex is more deeply rooted and more unreasonably maintained than that against color. As citizens of a republic, which should we most highly prize, social privileges or civil rights? The latter, most certainly... .

“Look over all his laws concerning us, and you will see just enough of woman to tell of her existence; all the rest is submerged, or made to crawl upon the earth... .

“Man is in such a labyrinth of contradictions with his marital and property rights; he is so befogged on the whole question of maidens, wives, and mothers, that from pure benevolence we should relieve him from this troublesome branch of legislation. We should vote, and make laws for ourselves. Do not be alarmed, dear ladies!

You need spend no time reading Grotius, Coke, Puffendorf, Blackstone, Bentham, Kent, and Story to find out what you need. We may safely trust the shrewd selfishness of the white man, and consent to live under the same broad code where he has so comfortably ensconced himself Any legislation that will do for man, we may abide by most cheerfully.”

Blackstone’s declaration respecting the civil death of married women haunted many other outstanding leaders in the woman movement of the middle period. Although Matilda Joslyn Gage tried to meet it by a curious display of logic, she regarded it as a statement of the law. “After marriage,” she declared in 1852, “the husband and wife are considered as one person in law, which I hold to be false from the very laws applicable to married parties. Were it so, the act of one would be as binding as the act of the other; ... were it so, a woman could not legally be a man’s inferior. Such a thing would be a veritable impossibility. One-half of a person cannot be made the protection or direction of the other half. Blackstone says 4 a woman may indeed be attorney for her husband, for that implies no separation from, but rather a representation of, her lord. And a husband may also bequeath anything to his wife by will; for it cannot take effect till the coverture is determined by his death. After stating at considerable length the reasons showing their unity, the learned commentator proceeds to cut the knot, and show they are not one, but are considered as two persons, one superior, the one inferior, and not only so, but the inferior in the eye of the law as acting from compulsion.”

At the Woman’s Rights Convention held in Syracuse the following year, 1853, Mrs. Gage recurred to the subject and spoke as if equity and legislation had made no changes in the “disabilities” of married women at common law. She affirmed that “the legal disabilities of women” are numerous; that they are only known to those who bear them; that they “are acknowledged by Kent, Story, and many other legal authorities.” Without directing attention to those pages of Kent and Story which set forth at length the equitable principles by which common-law rules could be and often were nullified, Mrs. Gage went on with her oration: “A wife has no management in the joint earnings of herself and her husband; they are entirely under control of the husband, who is obliged to furnish the wife merely the common necessaries of life; all that she receives beyond these is looked upon by the law as a favor, and not held as her right. A mother is denied the custody of her own child; a most barbarous and unjust law, which robs her of the child placed in her care by the great Creator himself. A widow is allowed the use merely of one-third of the real estate left at the husband’s death; and when her minor children have grown up she must surrender the personal property, even to the family Bible, and the pictures of her dear children. In view of such laws the women engaged in this movement ask that the wife shall be made heir to the husband to the same extent that he is now her heir... .

“The present law of divorce is very unjust; the husband, whether the innocent or the guilty party, retaining all the wife’s property, has also the control of the children unless by special decree of the court they are assigned to the mother.”

For the gentle Quaker, Lucretia Mott, one of the most persuasive American women of her time, Blackstone was no less an unquestioned authority than he was for Mrs. Stanton and Mrs. Gage. After hearing Richard H. Dana deliver a lecture in 1849 ridiculing “the new demand of American womanhood for civil and political rights,” Mrs. Mott also delivered a lecture, in reply to the Boston orator. In her discourse appeared the inevitable Hamlet of the play.

In the solemn resolutions of women’s conventions, as well as in speeches, lectures, and articles, rose the specter of Blackstone, pronouncing the married woman as civilly dead. When leaders of the woman movement assembled in Ohio in 1850 to formulate a program of demands to be made upon the coming constitutional convention in that state, they concentrated fire on Blackstone’s doctrines. “We believe,” they declared in their memorial and address, “the whole theory of the Common Law in relation to woman is unjust and degrading, tending to reduce her to a level with the slave... . At the marriage-altar, the law divests her of all distinct individuality. Blackstone says: ‘The very being or legal existence of the woman is suspended during marriage, or at least incorporated or consolidated into that of her husband.’ Legally she ceases to exist, and becomes emphatically a new creature, and is ever after denied the dignity of a rational and accountable being. The husband is allowed to take possession of her estates, as the law has proclaimed her legally dead. ... She can own nothing, have nothing, which is not regarded by the law as belonging to her husband... . Slaves are we, politically and legally.”

While recognizing the fact that certain important reforms had been made in respect of married women’s property rights in the state of New York, women of this state assembled at the state capital, Albany, in 1854, taking Blackstone’s interpretation of English law as the whole picture of English jurisprudence and its American counterpart, among their resolutions passed this one:

Resolved, That the fundamental error of the whole structure of legislation and custom, whereby women are practically sustained, even in this republic, is the preposterous fiction of law, that in the eye of the law the husband and wife are one person, that person being the husband; that this falsehood itself, the deposit of barbarism, tends perpetually to brutalize the marriage relation by subjecting wives as irresponsible tools to the capricious authority of husbands; that this degradation of married women re-acts inevitably to depress the condition of single women, by impairing their own self-respect and man’s respect for them; and that the final result is that system of tutelage miscalled protection, by which the industry of women is kept on half-pay, their affections trifled with, their energies crippled, and even their noblest aspirations wasted away in vain efforts, ennui, and regret.”

In order that the widest possible circulation might be given to the Blackstone creed of the married woman’s complete subjection, leaders in the American woman movement incorporated it in their literature of propaganda. For example, after asserting that women had been utterly subjected to men under Hindu laws as long ago as 2000 B.C., The Woman’s Rights Almanac of 1857 published a list of modem grievances in the West. This list started with the inevitable passage from Blackstone, forever ringing like a bell to summon women to a wailing wall or to gird themselves for battle; it was characterized as “scarcely” varying “in principle” from the barbaric laws of the ancient Hindus. “By marriage,” the characterization as quoted from Blackstone read, “the husband and wife are one person in law; that is, the very being or existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband, under whose wing, protection, and cover she performs everything; and is, therefore, called in our Law-French a feme-covert, is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquire by the marriage.”

After citing another long passage from Blackstone and additional examples of man’s inhumanity to woman, the compiler of the Almanac commented on changes in common-law doctrines in a manner which implied that these changes were only of recent date: “Signs of the Times. 1857. It is obvious that the English common law, as above stated, is scarcely a step beyond barbarism. Yet this law remained almost unaltered in the United States, as respects woman, till the year 1848 – the year of the first local Woman’s Rights Convention... . Since then every year has brought improvements, and even those who denounce the Woman’s Rights Movement admit the value of its results.” From this statement it would seem that to feminists of 1857 Blackstone’s view of the law had long been the absolute law of the land and that equity and a huge volume of state legislation, some of it enacted before the women’s convention met at Seneca Falls in 1848, had made no material alteration in the force of the common law, which was “scarcely a step beyond barbarism.”

From these examples taken from the literature of the woman movement near the middle of the nineteenth century it is clear that the full-fledged thesis of woman’s historic subjection to man was grounded on the belief in Blackstone’s doctrine. Older than that doctrine, of course, were the preachments of many theologians, clergymen, and moralists to the effect that woman is evil and ought to be subject to man, but Blackstone afforded sanction for the feminist manifesto that woman had been in fact subject to man throughout the long history of Anglo-American law – and, indeed, of all law. Here was the original construct that was to give forms and twists to endless writing and speaking, even that alleged to be scientific, and to bedevil women and befuddle men in years to come in all parts of the world.