The Law School Magazine  ·  Fall 2007 : Features

The Lawrence H. Stotter Collection: Volumes on the Law and Women

By - Fall 2007
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The collection that Lawrence H. Stotter ’58 donated to the Moritz Law Library consists of more than 200 volumes published from the 16th to the 20th centuries.  The collection includes reports of trials, treatises, guides for laypersons, compendiums of legal maxims, and even a broadside, published in 1816, seeking the return of an “indenture of a marriage settlement” issued in 1672.  Most of these works focus on various aspects of what we now call “family” law:  marriage, divorce, adoption, and the rights of women and children.  While at one level, the value of any rare books collection comes from a combination of age and scarcity (sheer survival), the value of the Stotter Collection is more complex.  It derives also from the careful selection of works which collectively show the development of the law, in one particular area, over centuries.

The depth of the Stotter Collection is nicely illustrated by its holdings of works on the law concerning women.  The earliest of these was published in London in 1632: The Lawes Resolutions of Womens Rights: Or, the Lawes Provisions for Woeman.  This is the first English language work devoted solely to laws affecting women.  It is anonymous, although the author may have been John Dodderidge (who, in addition to being a judge was also a member of the King’s Council for Virginia) or Thomas Edgar.   At the time it was written, under the common law of England a woman lost her legal status as an individual upon marriage.  The common law  treated a husband and wife as one person, and that person was the husband.  As a result, a married woman had very little legal control over her property (unless some fairly elaborate measures were taken) or children.  Furthermore, women (except, of course, for a female monarch) had no right of direct participation in the process through which the law was made.  None of this would begin to change for another 200 years.  What makes The Lawes Resolutions remarkable, however, is not just its age, but the author’s explicit hope that women would read his book:

… (Women onely Women), they have nothing to do in constituting Lawes, or consenting to them, in interpreting of Lawes, or in hearing them interpreted at lectures, leets or charges, and yet they stand strictly tyed to mens establishments, little or nothing excused by ignorance, mee thinkes it were pitty and impiety any longer to hold from them such Customes, Lawes, and Statutes, as are in a maner, proper, or principally belonging unto them: … The Lawes Resolutions, p.2

… but they to whom my travels are chiefly addressed are women … whereby things behoovefull for them to know are laid plaine together, and in some orderly connecion, which heretofore were smoothered, or scattered in corners of an uncouth language … Which concealement, because it seemed to me neither just, nor conscionable, I have framed this worke, … The Lawes Resolutions, p.403

Not surprisingly, given the dramatic impact marriage had upon a woman’s legal rights, the author of  The Lawes Resolutions and those who followed for the next 250 years, focused on the law of husbands and wives (or “Baron and Feme”).  Henry Swinburne’s A Treatise of Spousals, or Matrimonial Contracts (London, 1686) is noteworthy for interesting, albeit somewhat arcane reasons.  It was the first book in English on marriage contracts, a subject that, prior to the reformation, had been considered part of canon law.  As the teaching of canon law had been abolished during the reformation, Swinburne took a degree from Oxford in civil law  and practiced in the ecclesiastical courts of York for 40 years.  Unfortunately, Spousals was not published until sixty years after Swinburne’s death, and the subject was by then out-of-date.

The Stotter Collection contains all three 18th century treatises on the law of women identified by William Holdsworth in his A History of English Law:  Baron and Feme.  A Treatise of the Common Law Concerning Husbands and Wives, (2nd ed. 1719);  A Treatise of Feme Coverts:  or, the Lady’s Law (1732), and The Laws Respecting Women, as They Regard Their Natural Rights,… (1777).  All three works are anonymous and none question, even implicitly, the existing legal status of women:

A Feme covert in our Books is often compared to an Infant, both being Persons disabled in the Law, but they differ much; an infant is capable of doing any Act for his own Advantage, so is not a Feme Covert.  Baron and Feme, p. 8.

Things had not much changed 60 years later:

By marriage the very being or legal existence of a woman is suspended; or at least it is incorporated and consolidated into that of the husband; … Upon this principle, or 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.  The Laws Respecting Women, p.65

Much of the English common law was adopted in the United States and by the early 19th century, American lawyers were writing treatises for their fellow attorneys.  The Stotter Collection includes the first edition of the first American work on the law and women:  Tapping Reeve’s The Law of Baron and Femme; of Parent and Child; …  (1816).  Tapping Reeve was well known for the law school that he founded in Litchfield, Connecticut, and this book was built upon his lecture notes:

He has not published this volume with the expectation of rendering any essential service to the Jurist.  His utmost expectations will be answered, if it should be found beneficial to the learner.  If the manner should partake too much of the character of instruction, he hopes for the candour of the reader, when it is know, that the work contains that which for many years has been delivered as lectures to pupils.  The Law of Baron and Femme (Preface)

Reeve’s work passed through several editions before being rendered obsolete by the passage of married women’s property acts in most states by the late 19th century.

This brief tour of a small part of the Stotter Collection closes with two 19th century titles, each written by a woman.  Published only 35 years apart, the books frame the shift in the legal status of married women in England and in the United States. In 1854, Caroline Norton privately published English Laws for Women in the Nineteenth Century.   Norton’s book is no detached discourse on the law of women.  Instead, it is a denunciation of a system of laws which afforded married women few rights.  Caroline Norton, the granddaughter of the playwright Richard Brinsley Sheridan, used her own prolonged and very nasty marital dispute as the foundation for English Laws for Women:

{“It won’t do to have TRUTH and JUSTICE on our side; We must have LAW and LAWYERS”} Charles Dickens [Bleak House]. I take those words as my text. In consequence of the imperfect state of the law, I have suffered bitterly, and for a number of years: … and as the law is constituted, I find redress impossible.

To publish comments on my own case for the sake of obtaining sympathy; … would be a very poor and barren ambition. I aspire to a different object. I desire to prove … that the present law of England cannot prevent any such suffering, or control any such injustice. I write in the hope that the law may be amended; and that those who are at present so ill-provided as to have only “Truth and Justice” on their side, may hereafter have the benefit of “Law and Lawyers.” English Laws for Women, p.1

Due in part to Norton’s writings, Parliament enacted the Divorce and Matrimonial Causes Act of 1857 which gave married women who were judicially separated from their husbands, control over their property and the right to make contracts.

Lelia Josephine Robinson’s The Law of Husband and Wife Compiled for Popular Use, was published in Boston in 1889.  The author was the first woman to graduate from the Boston University School of Law and was the first woman admitted to the bar in Massachusetts (although, she had to lobby the legislature to achieve the latter).  She thus stood in a new era in which not only were there great changes in the laws affecting women, but women could become lawyers.  Her audience was women, and in the introduction  she gave her reasons for writing this book:

A strong demand has been made on me for such a work as this … and from no source has the call been louder or more persistent than from clubs and societies of women all over the country who are banded together for study, and who seek among the first branches of knowledge some information regarding the laws that especially concern women …  Except in the way of political disabilities, there are now no laws that discriminate against women as women, …  but it is at her marriage that a woman walks into a complicated legal net whose meshes entangle her the more closely with every step she takes, unless she is led intelligently by the guide whose name is Knowledge.”  The Law of Husband and Wife, p.5.

Although it took some effort on her part to become a member of the bar, Lelia Robinson undoubtedly believed that it was entirely reasonable for a woman to be a lawyer.  It is also reasonable to imagine that the author of The Lawes Resolutions would have found entirely preposterous the notion that a woman could be a lawyer. Yet, however different the cultures in which The Lawes Resolutions and The Law of Husband and Wife were written, these authors are linked by a common belief that  “concealement” of the law from women could be corrected “by the guide whose name is knowledge.”  The Lawrence H. Stotter Collection provides one such guide, revealing to us the law as it has appeared at various times, illuminating its evolution.

 

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