The History of Wisconsin's Women's Rights Law, Part
1:
Wisconsin Women and the Law, 1846-1920
The American legal system's view of women, and the rights that it has accorded to them, have changed fitfully over the years. Unlike other historically disadvantaged groups, there has not been a single, easily defined movement for women's legal rights. Women's rights have been debated and fought over in different areas at different times. The most notable areas, listed roughly in chronological order, are: 1) property rights; 2) suffrage; 3) participation in the legal profession; 4) constitutional equality; and 5) workplace law. A sixth area, family law, affects men as much as women, but its development has been closely linked to the changing role of women in American society.
The history of women's rights in Wisconsin shares these characteristics. While Wisconsin has not been benighted in its approach to women's rights, neither has it been in the vanguard. If any line can be drawn between the "older" era and the "modern" era of women's rights in Wisconsin, it probably falls at about 1920, the year the women's suffrage amendment to the U.S. Constitution went into effect and the year before Wisconsin enacted its first equal rights law for women. This article reviews the history of women's rights from statehood to 1920. A later article in this series will review changes in the law of women's rights from 1920 to the present.
The battle for married women's property rights, 1846-1850
Up to the early 19th century, it virtually was unheard of for women to work outside the home. Because of their roles as household workers and bearers of children, women were regarded as unfit to compete with men yet at the same time were idealized as morally superior to men. The law reflected these attitudes: it treated married women as legal appendages of their husbands and gave unmarried women only limited control over their own property.1
When the American industrial age began, a significant number of women began to work outside the home for the first time and a movement arose to increase their property rights commensurate with their new economic role. In the 1830s economic depression led many men to conclude that property rights for married women would be a good way to shelter assets from creditors.2 Wisconsin became a state during this era, and the debate over married women's property rights played a prominent part in the 1846 and 1847-48 constitutional conventions.
The 1846 convention adopted a provision that all property owned and acquired by married women would be their separate property. Edward Ryan, who was a delegate to the convention, opposed the provision on the ground that it would cause women to become "speculators." David R. Noggle of Janesville, in replying to Ryan, demonstrated that even among reformers traditional attitudes toward women were still very strong. "Who believes that it will make a fiend of a worthy wife?" Noggle asked. "No one believes it; it is all humbug. ... Sir, I do contend that for true merit the female sex stand much higher than the male. They know but little of the low, truckling and vacillating demagogism that pervades the male portion of creation, and in that particular their ignorance is a jewel."3
Wisconsin's voters rejected the 1846 constitution. Many delegates to the 1847-48 convention believed that the married women's property rights provision played a role in the defeat. As a result, the second convention decided to omit the provision from the constitution and leave the subject to the Legislature.4 In 1850 the Legislature passed a law making property owned by a woman at marriage and conveyed to her after marriage her separate property, and allowing her to receive and convey property without her husband's consent. However, unlike many other states Wisconsin did not pass laws explicitly allowing women to make separate wills or to have control over their own earnings.5
The halting evolution of women's property rights, 1850-1920
Passage of the 1850 law did not end the dispute over married women's property rights. In Connors v. Connors (1855) the court held that the law did not extend to a married woman's wages: under the common law, those remained the property of her husband. Reacting to Connors, the Legislature passed a law that gave married women the right to their earnings, but only in cases where the husband did not adequately provide for the wife's support.6 In 1859 the Legislature also allowed married women to dispose of their separate property by will for the first time.7
The supreme court continued to interpret women's property rights narrowly. In Todd v. Lee (1862) it held that in most cases a married woman's profits from her own business were not separate property and therefore were reachable by her husband's creditors. In Elliott v. Bentley (1863) it extended this rule to married women's wages.8 In Edson v. Hayden (1866) the court construed the 1855 wage law narrowly, holding that it allowed married women to control their wages only when their husband's failure to support them was caused by "vice." Mere poverty or improvidence was not enough.9
Women's rights groups began to form in Wisconsin for the first time
in the late 1860s. The groups focused primarily on temperance and
women's suffrage, but they also criticized the state of women's property
rights in Wisconsin. In 1872, partly in response to these groups
and partly to better
shelter debtors' assets, the Legislature passed a comprehensive law that
made a married woman's wages her separate property and made them
unreachable to satisfy her husband's debts. At the same time, the
Legislature exempted husbands from liability for their wives' premarital
debts.10
It is not clear whether the 1872 law had any significant effect on the balance of power between Wisconsin husbands and wives. The supreme court continued to interpret married women's rights narrowly. In Fuller & Fuller Co. v. McHenry (1892) it held that if a wife's money or property were used in a family business, they would lose their separate character and would pass into the husband's control. Justice Silas Pinney, speaking for the court, reasoned in backhanded fashion that to hold otherwise would subvert the married women's property laws. "It is not to be supposed," Pinney said, "that the Legislature intended that such relations and duties as exist between copartners in trade should be devolved on husband and wife ... as a possible means of disturbing domestic peace and confidence." In 1895 the court weakened the 1872 law by holding that a wife could not work and enjoy her right to wages as separate property without her husband's consent.11
The court was leery about creating any legal rule which might lead to litigation between husbands and wives. It adopted the common law rule that a wife's recovery for personal injury belongs to the husband, and refused to join other states that held married women's property laws overturned the rule.12 In 1881 the Legislature allowed married women to bring actions for "any injury to [their] person or character" in their own name and provided that any damages recovered were separate property. But in Duffies v. Duffies (1890) the court ruled that the 1881 statute did not apply to actions for alienation of affection.13 In explaining why husbands could bring such actions but wives could not, the court stated with unusual bluntness its conservative view of women's role in society and its fear of the adverse effects which married women's rights might have on family bonds:
"The wife ... is purer and better by nature than her husband, and more governed by principle and an sense of duty and right, and she seldom violates her marriage obligations, or abandons her home. ... With the husband the case is different. ... He is exposed to the temptations, enticements, and allurements of the world, which easily withdraw him from her society, or cause him to desert or abandon her. ... The wife had reason to expect all these things when she entered the marriage relation. ... For these reasons, ... actions by the wife for the loss of his society would be numberless. This right of action in the wife would be the most fruitful source of litigation of any that can be thought of."14
In 1905 the Legislature passed a law overturning Duffies and explicitly allowing women to sue for alienation of affection.15
The suffrage movement: First phase, 1846-1890
At statehood, there was little or no popular support for women's suffrage. Only a few reformers, most notably Warren Chase of Ripon, spoke out for women's suffrage in the 1846 and 1847-48 constitutional conventions, and it was never seriously considered. Bills to allow full suffrage were introduced in the Legislature in 1855 and 1867, but failed.16
From 1850 to 1920 the energies of women's rights supporters in Wisconsin were devoted primarily to suffrage. In 1869 supporters of women's rights formed the Wisconsin Women's Suffrage Association (WWSA) to begin an organized campaign for suffrage. The campaign lasted 50 years. It was marked by bursts of activity alternating with periods of despair and dormancy. Many suffrage activists also were leaders of the temperance movement, and this proved to be an impediment to suffrage because it generated hostility from the state's powerful brewing industry and from many Wisconsinites of German ancestry.
Women also were heavily identified with the movement for better public schools, and in this area they had some success with suffrage. In 1869 the Legislature passed a law allowing women to run for school boards and other elective school offices. During the 1870s neighboring states began to allow women to vote in school- and temperance-related elections. The WWSA gained strength as the wives of several prominent lawyers, including Mary Blanchard Lynde of Milwaukee and Edna Chynoweth of Madison, rose to leadership positions.17
In 1884 the WWSA mounted an all-out suffrage campaign in the Legislature. The Legislature did not consider full suffrage seriously. It did pass a bill that gave women the right to vote at any election "pertaining to school matters." Alura Collins of Mukwonago, the drafter of the original bill, had intended that special school elections would be held at which women would be allowed to vote. In its final form, the law might be read to allow women to vote for all offices on the ballot at any election that involved a school issue; but many suffrage leaders feared that in the absence of a separate school ballot, women might not be allowed to vote at all.18
Their fears were quickly confirmed. Wisconsin's voters narrowly approved the new law in 1886, and it was first put to the test in the general spring elections of 1887. In many areas women's ballots were accepted without question, but in Racine the ballot of Olympia Brown, a WWSA leader, was rejected when she voted for municipal offices on the ground that they all affected local schools. Brown brought suit to force local officials to accept her ballot. Circuit Judge John Winslow agreed with her position, but the Wisconsin Supreme Court reversed Winslow's decision in Brown v. Phillips (1888).19
In Brown the court refused to interpret the phrase "pertaining to school matters" as broadly as Brown and Winslow. It reasoned that to do so would effectively give women the right to vote for all offices, and it refused to do through judicial interpretation what the Legislature had refused to do directly. The court also held that women could not use ballots that included offices other than school offices, because under the secret ballot system there was no way of making sure that they voted for school offices only. Candidates for school offices would have to be listed on a separate ballot, which the Legislature refused to provide. Some local officials who were sympathetic to suffrage tried to provide separate ballots, but in Gilkey v. McKinley (1890) the court ruled that this could not be done without state approval. As a result, the school suffrage law became a dead letter and the Wisconsin suffrage movement went into decline for the next 10 years.20
The suffrage movement: Second phase, 1890-1919
During the first 30 years of the Wisconsin suffrage movement, most of its leaders advocated radical rather than gradual changes in women's rights. In the 1890s the first generation of activists gave way to a second generation that believed reform could best be achieved by increment and indirection. The new generation, led most notably by Theodora Winton Youmans of Waukesha and Ada James of Richland Center, relied heavily on local women's clubs as a power base and promoted suffrage as one component of a broad menu of civic reforms. The Wisconsin Federation of Women's Clubs (WFWC) supplanted the WWSA as the leader of the campaign to advance women's rights.
The new reformers decided to concentrate on two short-term goals: placing more women in positions of influence in state government and making the school suffrage law workable. They gained a major success in 1901 when the Legislature at last authorized separate ballots for school elections, thus enabling women to vote under the school suffrage law. Robert LaFollette was supportive of more women in government, and during his tenure as governor (1901-06) he appointed many women to state boards and commissions and helped secure laws ensuring that women would have positions on some state boards. LaFollette was influenced heavily in this area by his wife, Belle Case LaFollette, who actively supported the women's rights movement.21
In 1911 Ada James enlisted her father, a newly elected state senator, in the cause of full suffrage and he and the WFWC successfully lobbied the Legislature to authorize a statewide referendum on suffrage. The WFWC spent much of 1911 and 1912 campaigning throughout the state. It attracted much support, most notably from its old ally Judge Winslow, who was now chief justice of the supreme court. However, it also attracted powerful opposition, in particular that of Attorney General Levi Bancroft who ruled that state campaign spending limits applied to the WFWC.22
When the referendum was held, Wisconsin men voted against suffrage by a margin of 63 percent to 37 percent. There was no consensus as to the reasons for defeat. Two of the most widely cited reasons were schisms within the women's movement and the fact that the perceived link between suffragists and temperance antagonized many Wisconsin German-Americans. One frustrated campaigner concluded that suffrage had lost because in Wisconsin, "the last thing a man becomes progressive about is the activities of his own wife."23
The WFWC merged into the WWSA in 1913, and the new organization continued the suffrage campaign. In 1913 the Legislature authorized another referendum but it was vetoed by Gov. Francis McGovern. In 1915 a more conservative Legislature rejected a new referendum bill and set back the women's rights cause by eliminating elective boards of education. This wiped out many elective school board positions that women had gained since first being allowed to run in school board elections in 1869.24
In 1916 the WWSA's leaders reluctantly concluded that the Wisconsin Legislature was "hopeless" for the local suffrage cause, and the WWSA decided to devote its time and money to the national campaign for a women's suffrage amendment to the U.S. Constitution. Most of Wisconsin's congressional delegation were sympathetic to the amendment, which steadily gained support in Congress and was finally passed in 1919. At that point the Wisconsin Legislature bowed to what it now regarded as the inevitable and ratified the federal amendment. However, an effort to extend suffrage to state elections in the 1919 Legislature failed narrowly, and women did not gain the right to vote in state elections until an amendment to the state constitution was finally passed in 1934.25
Women at the bar: The controversy over Lavinia Goodell
In 1879, after several years of effort, Lavinia Goodell of Janesville became the first woman admitted to practice before the Wisconsin Supreme Court and one of the first women admitted to any bar in the United States. The reaction to Goodell's campaign showed that the early 19th century attitude toward women, partly patronizing and partly idealistic, was still widespread. Yet it also showed that many Wisconsin men had reached the point where they were willing to tolerate women in the professions, even if not to treat them very seriously in that role.
Goodell was admitted to the bar of the circuit court that served Rock County in 1874. She was sponsored by several prominent members of the Janesville bar. Circuit Judge Herman Conger, though he had doubts, could find no legal impediment to her admission. But when Goodell applied for admission before the supreme court in 1875, she was rebuffed. Chief Justice Edward Ryan, who throughout his career was a consistent opponent of women's rights, held that because the common law did not sanction the admission of women and the Legislature had not provided for it, Goodell could not be admitted:
"The law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it."26
Ryan's opinion elicited mixed reactions. The Rock County bar vigorously defended Goodell and criticized the court's decision. One of Goodell's Janesville supporters, John Cassoday, was elected speaker of the Assembly in 1877. He introduced a bill permitting the admission of women to the bar and used his influence as speaker to help secure its passage. In 1879 Goodell renewed her application to the supreme court and this time was admitted. All of the justices except Ryan concluded that the new law settled the issue. Ryan argued that the court had absolute power over the bar and was not bound by the law, but to no avail.27 Several other women attorneys were admitted during the next few years, but women were not to play a significant role in the bar until another century had passed.
Women's place in Wisconsin family law, 1849-1920
When Wisconsin became a state, the American view of divorce was undergoing a fundamental change. "Whereas divorce in earlier periods of history had been primarily a prerogative demanded by men to rid themselves of unwanted wives ..., nineteenth century American divorce was becoming more and more a right demanded by women on humanitarian grounds." This was in keeping with the idealized view of women that prevailed in the 19th century. It also was in keeping with the increasing popularity of temperance and the growing perception that wives and children were the real victims of drunkenness. At the same time, most states abandoned the traditional English practice of placing divorce jurisdiction with the legislature and transferred it to their courts.28
Early Wisconsin divorce law was a product of these trends. The 1848 constitution abolished legislative divorce. When the Legislature enacted the state's first domestic code in 1849, like most other Midwestern and frontier states it allowed divorce on more grounds than did most of the older states. In addition to adultery, which was a ground for divorce in nearly every state, Wisconsin added impotence, cruel and inhuman treatment, habitual drunkenness, desertion and imprisonment as grounds for divorce.29
 Joseph A. Ranney, Yale 1978, is a trial lawyer
with DeWitt Ross & Stevens S.C., Madison. He is the author of
several articles on legal and historical topics. |
During the 19th century the supreme court consistently sustained this public sentiment. "Cruel and inhuman treatment" was the most common ground on which divorce was sought. The court defined the term narrowly, holding in one of its earliest divorce cases that cruelty was limited to conduct which "endangers the life or health of the wife, which exposes her to intolerable hardship and renders cohabitation unsafe." Abusive language or other conduct creating mental distress was not sufficient.31 Nevertheless, a culture developed among litigants, lawyers and judges whereby "cruelty" was interpreted to include a broad range of marital conduct and disputes, many of which were not stigmatizing. Most likely, cruelty became the most popular ground for divorce because it best fitted the contradictory moral and practical needs of the Victorian era.
Wisconsin's conservatism was even shown by the few efforts made to liberalize the divorce laws before 1900. In 1866 the Legislature allowed divorce after a voluntary separation of five years, thus becoming one of the first states to create a no-fault ground for divorce.32 However, the voluntary separation law proved to be less revolutionary in practice than on paper, simply because divorcing couples did not make much use of it.33 Voluntary separation may have been unpopular because it did not meet society's need for divorce to have some moral component; because the five-year separation requirement taxed most people's patience; or for both reasons.
The Legislature and the courts were more liberal toward women with respect to post-divorce support and child custody issues. As part of the first divorce code in 1849, the Legislature allowed the courts to award alimony except where the ground for divorce was adultery by the wife. The Wisconsin Supreme Court ruled in 1910 that only wives were entitled to alimony.34 This remained the rule until no-fault divorce was enacted in 1977. And although the common law gave the husband custody of children, in Campbell v. Campbell (1875) the court ruled that this was only a rebuttable presumption and that custody depended on the circumstances of both parents and the best interests of the children.35
By 1920 Wisconsin feminists could look back with satisfaction at past gains. Women finally had gained access to the electoral process, and married women enjoyed some protection in the areas of property law and family law against the risks posed by impecunious and abusive husbands, yet the law was far from accepting women as the equals of men. Wisconsin had lagged behind many other states in promoting women's rights, and it was not clear whether women would continue to make gains.
Photo: State Historical Society of Wisconsin
Endnotes
1 J. Hoff, Law, Gender and Injustice: A Legal History of U.S. Women (New York, 1991), 119-22.
3 Journal of Debates of the Constitutional Convention of 1846, Oct. 21, Dec. 4, 5, 7, 11, 1846, reprinted in M.M. Quaife, ed., The Convention of 1846 (Madison, 1918), 212, 638, 662, 702.
4 Journal of Debates of the Constitutional Convention of 1847-48, Dec. 16, 28, 1847, reprinted in M.M. Quaife, ed., The Attainment of Statehood (Madison, 1928), 179, 290.
6 4 Wis. 112 (1855); L. 1855, c. 49.
7 L. 1859, c. 91; Will of Ward, 70 Wis. 251, 35 N.W. 731 (1887).
8 15 Wis. 365 (1862); 17 Wis. 591 (1863). In Elliott the court recognized that its decision went against the purpose of the 1850 law to shelter assets, and it urged the Legislature to consider a corrective statute.
10 Cleary, Married Women's Property Rights in Wisconsin, 1846-1872, 78 Wis. Mag. Hist. 128-34 (Winter 1994-95); L. 1872, c. 155.
11 83 Wis. 573, 581-82 (1892); Emerson-Talcott Co. v. Knapp, 90 Wis. 34 (1895).
12 See, e.g., Shaddock v. Town of Clifton, 22 Wis. 114 (1867); Gibson v. Gibson, 43 Wis. 23 (1877).
13 L. 1881, c. 99; 76 Wis. 374, 45 N.W. 522 (1890).
16 G. McBride, On Wisconsin Women (Madison, 1993), 3-5, 21, 45.
18 L. 1885, c. 211; McBride, On Wisconsin Women, 114-19.
19 71 Wis. 239, 36 N.W. 242 (1888); McBride, On Wisconsin Women, 118-21.
20 71 Wis. at 253-54; 75 Wis. 543, 44 N.W. 762 (1890); McBride, On Wisconsin Women, 130-33.
21 L. 1901, c. 285; see L. 1905, c. 381 (requiring at least one woman to be appointed to state Board of Control); McBride, On Wisconsin Women, 134-41, 154-63.
22 L. 1911, c. 227; McBride, On Wisconsin Women, 199-229.
23 McBride, On Wisconsin Women, 230, quoting Crystal Eastman Benedict.
25 L. 1919, cc. 5, 120, 607; Const. (1848) Art. III, § 1; 1931 Jt. Res. 59; 1933 Jt. Res. 76.
26 In Matter of Motion to Admit Goodell, 39 Wis. 232, 245 (1875).
27 L. 1877, c. 300; In re application of Miss Goodell, 48 Wis. 693, 81 N.W. 551 (1879); see generally Cleary, Lavinia Goodell: First Woman Lawyer in Wisconsin, 74 Wis. Mag. Hist. 243 (Summer 1991).
28 See N. Blake, The Road to Reno: A History of Divorce in the United States (New York, 1962), 88-99.
29 Const. (1848) Art. IV, § 24; L. 1849, c. 79; M.A. Stamp, "Wisconsin's Marriage and Divorce Laws: A Historical Perspective" (LL. M. thesis, University of Wisconsin, 1982), 78-79.
30 Wisconsin began to compile divorce statistics in 1908; there are no comprehensive statistics for the 19th century. The 1910 divorce rate was 0.5 per 1,000 people; in 1990 it was 3.6. Wisconsin 1993-94 Blue Book (Madison, 1993), 784. There is no evidence that divorce rates were higher in the 19th century than in 1910.
31 Johnson v. Johnson, 4 Wis. 154 (1855); see also Beyer v. Beyer, 50 Wis. 254, 6 N.W. 807 (1880).
32 L. 1866, c. 37. Wisconsin was the third state to allow divorce based on voluntary separation. Stamp, "Wisconsin's Marriage and Divorce Laws," 79.
33 Twentieth century statistics show that cruel and inhuman treatment consistently was the most popular ground for divorce in Wisconsin from 1908, when statistics were first kept, to 1977, when the state changed to a no-fault system. Stamp, "Wisconsin's Marriage and Divorce Laws," 83, 87.
34 Rev. Stat. 1849, c. 79, §§ 24, 29; Brenger v. Brenger, 142 Wis. 26, 125 N.W. 109 (1910).
35 37 Wis. 206 (1875); see also the discussion of 19th century custody rules in Dovi v. Dovi, 245 Wis. 50, 13 N.W.2d 585 (1944).
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