I. Medicine and the Female Mind

The law's privileging of men who were able, rational, and white had deep roots in medical theories about the mind. Despite strides in medicine's ability to treat illness in the latter part of the nineteenth century, ancient ideas about the brain persisted. Between approximately 1880 and 1910, enormous advancements in pathology, bacteriology, anatomy, physiology, and embryology established “scientific medicine,” which was heralded as a major development in American medical practice.Footnote ¹⁸ Yet the ancient Greek idea of “constitutional pathology” continued to coexist with scientific theory. Constitutional pathology considered how a person's temperament affected the course and progress of disease. In the early nineteenth century, the study of phrenology and craniotomy reinforced tenets of constitutional pathology by attempting to link brain measurements with variations in human nature. By the late nineteenth century, the emphasis on racial classifications, anthropological study, and imperial concerns encouraged American doctors and scientists to continue to define groups of people based on “moral character, intelligence, and social tendencies.”Footnote ¹⁹ Where a person fell on this spectrum of classification indicated that person's fitness for the duties of American citizenship.

Medicine had many terms for describing people's psychiatric status, including employing the expressions “borderland” and “faculty psychology.” The “borderland” was the shadowy territory between madness and sanity where brain disease and nervous disorders took root.Footnote ²⁰ On this terrain, as one physician explained, lurked “many persons who, without being insane, exhibit peculiarities of thought, feeling, and character which render them unlike ordinary beings.”Footnote ²¹ Similarly, “faculty psychology” attempted to define the reasons for the onset of insanity. The mind was compartmentalized into “rooms” that had to harmoniously work in tandem, otherwise madness would result out of the disorder and fragmentation.Footnote ²² Most medical jurisprudence textbooks instructed doctors to “regard the mind as a whole, and not as consisting of independent faculties, or functions, which can be individually and independently diseased…[D]isease…affecting one of these divisions of the mind must involve the integrity of the whole.”Footnote ²³

Mania, monomania, melancholia, dementia, hysteria, neurasthenia, and idiocy developed over the course of the nineteenth century as the major mental disease categories of mental illness. All shared the same general symptoms, including fainting, vomiting, delusions, manic behavior, excessive sobbing and laughing, insomnia, depression, irritability, headaches, vertigo, and neuralgia. Neurasthenia was hysteria's more genteel cousin, though its symptoms were so similar that often physicians could often not distinguish between the two.Footnote ²⁴ A diagnosis of neurasthenia often met with doctors’ approval because it was a disease of advanced civilizations and the upper classes. Originally called “American nervousness,” it symbolized the anxiety a person developed from the technological and scientific developments of modern society. George Beard, the well-known neurologist cited “steampower, the periodical press, the telegraph, the sciences, and the mental activity of women” as the chief causes of patients’ neurasthenic symptoms.Footnote ²⁵ Another doctor writing in the Journal of American Medical Association declared that “heredity” and “strain” were the causes, with “strain” meaning “all sorts of stresses, physical and mental, direct and indirect, having to do with antecedent influences and environmental conditions.”Footnote ²⁶

Despite these uncertainties, a well-ordered body and mind with all of its faculties in perfect operation became associated with reason, masculinity, and whiteness. Intertwining theories about insanity, heredity, and “degeneracy” combined together to create various defining categories for people whose volition was diseased, rendering them unfit: what Michel Foucault referred to in the European context as “the great taxonomy of unreason.”Footnote ²⁷ The working classes, immigrants, and people of color were even more prone to insane disorders because of their life circumstances, as well as their innate primitive tendencies.Footnote ²⁸ Dr. Curran Pope of Louisville, Kentucky, insisted that it was a degenerate's “failure to coordinate his life, in the failure to orient himself with reality, in a failure to adapt his primitive and primordial tendencies” that resulted in the “‘borderliners,’ ‘demi-foos,’ ‘cranks, ‘peculiar’ people, these being different from the sane, the well-balanced.”Footnote ²⁹ Dr. Arthur Rowley Reynolds of Chicago opined that “imported dependents from Europe and Asia,” were the cause of America's rising insanity rates, while Dr. J.H. McCassy of Ohio stated “Heredity is nearly everything. ‘Blood will tell’ and blood does tell.”Footnote ³⁰ Another insisted the chief cause was economic: the result of the increase in slum dwelling populations.Footnote ³¹

In advancing these theories of social disorder, medicine assumed a position of great social power, delimiting what the rational self was supposed to be.Footnote ³² Only the ideal, rational individual was endowed with the mental capability of contributing to the republican sphere. Medical journals and textbooks also insisted that it was only trained doctors who could truly spot and treat “lunatics.” And in courts of law, medical jurisprudence texts advised them on how to testify in cases ranging from adultery to murder, and devoted entire sections to assessing insanity's effect on a person's ability to engage in business and make contracts or wills, or their likelihood of guilt in criminal actions.

Both implicit and explicit denial of women's citizenship abilities rested at the heart of these diagnoses of mental competence. Because the symptoms of mental disorder involved a person's irrational behavior, madness in all its forms had a feminine valence. Even male insanity became associated with “feminine” symptoms of emotionalism, passivity, and dependency.Footnote ³³ The former vice-president of the American Association of Obstetricians and Gynecologists pronounced in his pamphlet, “The genital functions of woman at all their stages have a marked influence on the moral condition.”Footnote ³⁴ Physician Franz Winckel's textbook Diseases of Women stated that an abnormal position of a woman's uterus resulted not only in anemia and sickliness, but also attacks of hysteria and “disturbed thoughts.”Footnote ³⁵ A menstruating woman was more likely to display “hysteria, hysteron-epilepsy, epilepsy, erotomania, dipsomania, kleptomania, and melancholia” or show criminal and suicidal tendencies.Footnote ³⁶ Some doctors even advocated performing ovariotomies, clitorodectomies, or hysterectomies in order to prevent women from becoming insane, although this method was contested.Footnote ³⁷

Therefore, the “most useful citizen” as Frederick W. Langdon, Cincinnati medical society president and sanitarium director put it, “must be of the male sex, not merely because of artificial laws to that effect, but by reason of the possession by that sex of more physical vigor and a nearer approach to organic balance for a greater portion of its life, other conditions being equal.”Footnote ³⁸ As the recent work of disability scholars has shown, the classification of women as “disabled” not only served to reify actual disabled people's inequality, but also functioned as a perfectly valid reason to deny women and other marginalized groups citizenship rights.Footnote ³⁹

The radical transformation of white women's roles and their emergence in public life in the years after the Civil War were behind Victorian medicine's efforts to delimit women's mental and physical health. Property rights had begun expanding for women since the 1830s, and by the 1890s, female suffrage had been granted in some states.Footnote ⁴⁰ Broad changes in public life also followed as women emerged at the forefront of the most radical social movements of the day, including temperance, labor reform, and national suffrage. But the “New Woman” of the turn of the century clashed with the older version of the True Woman, as physicians warned that middle-class women's ill-advised entrance into the public sphere was causing an epidemic of insane females.Footnote ⁴¹

Harvard physician Edward Clarke argued that the increase in education for middle-class women was a major cause of female ill health and nervousness, and that women's reproductive cycles, including menstruation, rendered them unfit for the rigors of study. His 1873 publication Sex in Education; or, a Fair Chance for the Girls sold an enormous number of copies and touched off a national debate about the biological limitations of women.Footnote ⁴² Well-regarded physician Dr. William Osler also explained the problem in a draft of an article for the widely circulated publication Ladies Home Journal. “It is a thousand pities that the causes which have contributed to a product so unique as the American girl should be the very ones which favor instability and early breakdown…Intense, energetic & emotional she is apt to be swept into the race at a pace far too rapid for the length of the course, and for those who drop out at the quarter mile or [before] the half mile post is reached, a majority do so from breakdown in the nervous system.”Footnote ⁴³

Osler and others, such as Edward Clarke, insisted women's fragile reproductive systems would simply not allow them to participate in a male, public world. Indeed, women with public visibility were thought to be sexually suspect and most likely injurious to the health of the state. They had no “habitual restraint [or] ‘rational endurance’—[they had] lost their power of ‘self-rule.’Footnote ⁴⁴ Perhaps most importantly, physicians possessed enormous power to define the parameters of women's physical and emotional health. No one said it more clearly than neurologist S. Weir Mitchell, who wrote in his Diseases of the Nervous System Especially in Women that “She is your whole audience, and this with an hysterical girl gives you great power.”Footnote ⁴⁵

Physicians called women's rights advocates “suffrage-shriekers” and “disgusting antisocial being[s].”Footnote ⁴⁶ Doctors feared the social disorder and the menace to civilization presented by these female reformers who threatened to pass on their perverted mental disabilities and delusions of equality to the next generation. Louisville Kentucky physician Dr. James Weir wrote,

Weir linked equal legal rights, particularly suffrage, to the degeneration of society as whole.

The conflict of law and medicine over women's rights was further complicated by the science of eugenics. A scientific theory developed by British scientist and philosopher Francis Galton, eugenics promoted the idea that the human race could perfect itself through better breeding, and discouraged reproduction among the “unfit.” The theory of eugenics was enormously popular with Progressives, as it seemed to explain the root of all social ills and suggested that scientifically controlling reproduction was the solution. Many women reformers incorporated eugenics into their arguments for civic reforms such as protective labor laws, confinement of the insane, and sterilization of the disabled and socially “degenerate.” By the turn of the century, physicians and scientists were also turning to eugenic theory to insist that women's social roles should be confined to motherhood, as they were responsible to the state to produce fit children.

As the law struggled to encompass these theories within medical jurisprudence, legal textbooks well into the 1920s continued to advise students to think about women's capacity for rational decision as controlled by the fickle nature of their reproductive organs and functions including puberty, pregnancy, breastfeeding, menstruation, and menopause.Footnote ⁴⁸ As Dr. Jerome Van Crowninshield Smith reminded his readers in 1875, “Medical jurisprudence is destined to undergo modifications, to keep pace with a more perfect knowledge of the brain, and especially the female brain, acted upon as it is by influences particular to themselves” He explained that lawmakers needed to understand the workings of women's nervous systems in order to “reasonably account for many ungovernable freaks of an excited woman.”Footnote ⁴⁹

II. “Ordinary Contacts”: Female Insanity, Women's Legal Rights, and Marriage

In late nineteenth-century courts of law, however, physicians’ confidence about women's status often clashed with the expansiveness of legal ideals of contract freedom. The uncertainty over what exactly comprised insanity on the whole tempered doctors’ willingness to make hard and fast pronouncements in front of judges and juries, and they continued to debate the medical nature of the disease for decades. During the meeting of the American Medical Association (AMA) held in Chicago in the early summer of 1877, the committee on “Medical Jurisprudence, Chemistry and Psychology” listened to Dr. R.J. Patterson of Illinois present a paper entitled “Do Facts Justify the Recognition of Moral Insanity as a Distinct Form of Mental Disease?” The meeting minutes detail the intense discussion held among those in the audience, who disagreed over whether insanity was hereditary, and whether or not one's moral faculties could be unhealthy if one was otherwise physically healthy.Footnote ⁵⁰ Physician Orpheus Everts in his address to the AMA observed drily that, “By common consent the medical profession is looked to for intelligent answers to all questions pertaining to insanity, and the insane. Is the profession so qualified to answer? Qualified or not, there are members of the profession ever ready to respond; the least qualified, often being the readiest.”Footnote ⁵¹ There was little consensus reached by the end of the century. As Dr. Edward Francis Brady of St. Louis put it in 1901, “A definition of insanity made by one authority will be contradicted by another, there is no classical agreement, and a definition thought to be comprehensive and sufficient by one expert, is rejected by another.”Footnote ⁵²

This disagreement on the exact nature and scope of insanity in both women and men made judges unwilling to curtail certain civil rights for either sex when sanity was at issue. In the early nineteenth century, courts began to reject the idea of moral insanity in favor of the notion that a “sound and disposing mind” was not inconsistent with “a very considerable degree of eccentricity” or “moral depravity.”Footnote ⁵³ Continuing well into the twentieth century, judges were often irritated by inconsistent medical testimony and conflicting opinions on what constituted a sane mind. As one judge sardonically observed in his opinion on a deed case involving a possibly insane husband and a wife who wished to recover family property, “The testimony on this issue of insanity pro and con [and] the objectionable language indulged in by counsel on both sides need not be here perpetuated.”Footnote ⁵⁴

The declining influence of medical opinion in the court, particularly in sanity cases, stemmed from both practical and theoretical circumstances. First, ironically, the gradual professionalization of medicine in the late nineteenth century caused a decline in the prestige and influence of medical jurisprudence.Footnote ⁵⁵ In the years prior to the Civil War, the profession had few regulations and “the barrier between the educated physician and quack” was porous.Footnote ⁵⁶ The AMA, established in 1847, did much to erase these perceptions, emerging as a “full-scale, broad-front professional association” in the second half of the nineteenth century.Footnote ⁵⁷ One of its most immediate concerns was creating a national policy statement on medical jurisprudence and the teaching of it in medical curricula.Footnote ⁵⁸ They proposed that a publicly supported commissioner position in each judicial district should be appointed by state Supreme Court judges in order to be ready to offer medical testimony in all types of cases.

But the multiplicity of clinical criteria in insanity diagnoses and treatment proposals presented serious problems for doctors serving as expert witnesses. The American public distrusted physicians, fully aware that there was a busy market for medical witnesses who would tailor their testimony to “the requirements of whoever retained them.”Footnote ⁵⁹ Often, the process of eliciting medical evidence during a trial often made “physicians look scientifically weak, internally divided, and dangerously unprofessional” when they disagreed with each other or appeared uncertain in their knowledge.Footnote ⁶⁰ Dr. John Elwell warned in one medical jurisprudence treatise, “There is no situation, perhaps, where the professional medical man can be placed, wherein he will be subjected to a more thorough, rigid and severe criticism…than as a medical witness in a court of justice, under the eagle eye of an able judge, the severe and interested scrutiny of counsel, and the candid, impartial observation of a jury.”Footnote ⁶¹ By the end of the century, there were few medical school courses that taught medical jurisprudence, and membership in professional societies devoted the subject had waned. As medical historian James Mohr concludes, “for all intents and purposes medical jurisprudence had ceased to exist.”Footnote ⁶²

The courts’ opinions also stemmed from the elevation of the culture of contract that dominated the end of the century.Footnote ⁶³ It is true that as legal and social thinkers trumpeted the virtues of a contractual society, they were ignoring inequalities of class, race, and gender, yet understandings of both property and contract also helped to form the ideological underpinnings of the women's movement from its beginnings in 1848. Although there were substantial differences between property and contract law in the nineteenth century, the cultural capital that these ideas generated in concert is significant. Legal thinkers viewed the ability of property to be exchanged both as a commodity and as a basis for maintaining social order as the keystones to a free, commercial society.Footnote ⁶⁴ So too did the veneration of the idea of contract, with its promise of free exchange and equality of opportunity, characterize much of the perception of the social promise inherent in post-emancipation America. Contract theory implied that an American society based on mutual legal obligation had the potential to advance to the highest state of human existence.

Indeed, legal treatises began trumpeting the forward-looking, modern nature of American society because of its enlightened views on coverture and property. John Proffatt in his 1874 treatise Woman Before the Law noted, “Nothing can better show the superior consideration of American law for the rights and protection of women than the fact that it accorded her full power to control and dispose of her property; and removed those unjust (as they are now considered) disabilities which the common law placed on her.”Footnote ⁶⁵ Prior to the passage of property law reform, which began as early as the 1830s in several states, courts of equity had often mediated women's disability of coverture at common law.Footnote ⁶⁶ Historians have argued that the driving forces behind the passage of the property acts were less about equality of the sexes or modernization, and more about the need to simplify rules and provide reasonable certainty in transactions.Footnote ⁶⁷ Yet reformers insisted that women's contract rights were central to defining their citizenship. Using these justifications, campaigners in the late nineteenth and early twentieth centuries continued to demand that state legal reforms should include not only women's property and earnings rights, but also reform of marriage and divorce laws, and the right of suffrage. Moreover, arguments for freedom of contract continued to hold weight long after the passage of the Nineteenth Amendment. Three decades into the twentieth century, proponents of women's rights were still emphasizing that women as “members of the whole human family” should “have the right to contract for one's services or to acquire property of every variety,” and that the denial of that right violated the principles upon which the United States was built.Footnote ⁶⁸

Yet because there was no consistent standard of mental competence to apply in contract cases that involved questions of sanity, this forced judges to evaluate each case on an individual basis. In some instances, the court outright ignored deviance in the name of preserving testamentary or contractual freedom.Footnote ⁶⁹ As Susanna Blumenthal has observed, “Since the legal definition of insanity had expanded to include so many ‘degrees and varieties of mental derangement,’ judges were in fact quite open to the possibility that a confirmed lunatic remained perfectly capable of managing at least some of his affairs.”Footnote ⁷⁰ One judge wrote in his opinion, “All men make mistakes, and some men make almost constant mistakes. But this alone does not constitute insanity.”Footnote ⁷¹

A case from Michigan in 1871 illustrates these complexities at work in the courtroom. Charlotte Daly and her husband James Daly of Kalamazoo County entered into a mortgage contract with Mr. Cooper and others, from whom they had purchased a steam sawmill for $2,900. The sale to the Dalys of this expensive piece of farm equipment was predicated on the understanding that Mr. Daly was supposed to secure the purchase price with a mortgage on land that he owned. The Dalys failed to pay on the contract, and Cooper discovered the land was actually owned by solely by Charlotte Daly and not her husband. Her ability to own property as a married woman in Michigan had been in place since the 1840s, most likely because of the desire to smooth over the dealings of business.Footnote ⁷² The mortgage was foreclosed 3 years later in 1874. The land was sold to Mr. Cooper and his business associates at the foreclosure sale, and the Dalys did not even bother to show up to the proceedings.

Perhaps this was because something was not quite right with Charlotte Daly. A neighbor in the 1860s noted that she seemed melancholy: “a disposition to be alone; talking to herself, and a reluctance to talk with others.” In the 1870s, a boarder at the Dalys’ house noted that she would laugh and talk to herself in “profane language” when “alone at her work.” She often appeared to be striking and talking to the air, as though to drive some invisible person away from her. Witnesses testified that she read and studied Spiritualist tracts, and had attended Spiritualist meetings.Footnote ⁷³ Moreover, a physician, Dr. Stillwell, who attended to her during a bout of malarial fever noted she muttered to herself. Though he was careful to say that he noticed no “other peculiarity to indicate mental derangement,” Dr. Stillwell opined that her belief in Spiritualism “contributed to her mental disturbance.”

Although it is not clear in the court records, it was perhaps because of Mrs. Daly's uncertain mental state that her husband applied to the probate court of Kalamazoo county to have her placed under the guardianship of Mr. McNett in January of 1875. Mr. McNett filed a motion, asking the court to have the mortgage foreclosure declared void on the grounds that Charlotte Daly had been insane in 1871, and was therefore not competent to enter into a binding contract. Yet the court dismissed the guardian's complaint out of hand. The court decided she had not wholly lost her understanding, declaring “the common law has drawn no line to show what degree of intellect is necessary to uphold a deed or contract.” Her “hallucination on the subject of spiritual influences and manifestations” was irrelevant, because Mr. McNett and his lawyers could not prove that she was suffering from these delusions at the time of contract. The court declared that although she may have been suffering from partial insanity, it did not void her contract.Footnote ⁷⁴

Although certainly the outcome for Charlotte Daly would have been better had the foreclosure been reversed and her property restored to her and her husband, what is significant is the court's expansive definition of what constituted sanity. In the opinion, the judge wrote, “Mrs. Daly exhibits partial mental derangement; more or less mental delusion, exhibiting itself under a single phase; hallucination on the subject of spiritual influences and manifestations…It is not necessary to have sufficient discernment to transact business with prudence and discretion… Partial insanity will not avoid (sic) a contract…[H]allucination is not per se insanity. It does not necessarily avoid a contract. It may exist as to matters in no way affecting the capacity to contract.” Judge Withey listened to the opinion of her doctor and other witnesses, but did not seem overly concerned with Mrs. Daly's mental state or her beliefs in Spiritualism.

In other, similar cases, judges demurred to restrict the rights of women to manage or dispose of their property even when their sanity was at issue because of either alternative religious belief or perceived mental disturbance. In the situation of will cases such as that of Elizabeth Bey's, it is easy to ascribe the judges’ leniency to the fact that the women were dead. A deceased testatrix's particular beliefs or even outright insanity no longer posed an immediate danger to society or its expectations for proper female behavior. As one judge notably expressed it about one woman, “[H]er personal habits [were] filthy, irritable…suspicious [and] parsimonious to the point of stinginess” but “she seemed to be rational…and her belief in Spiritualism was not necessarily evidence of insanity.”Footnote ⁷⁵

Property and contract cases like the one involving Charlotte Daly reveal the ambiguous ways in which courts were grappling with insanity and gender, while attempting to reconcile their “conflicting impulses” to both “regulate the world of contracts and to leave their parties to their own devices.”Footnote ⁷⁶ As in Charlotte Daly's case, judges often dismissed diagnoses of insanity, but ruled that women who were party to the suit must be held to their terms of contract.Footnote ⁷⁷ In other cases, the court ruled in favor of women plaintiffs or defendants precisely because they decided that the evidence proved that these women were insane. For example, several courts in these cases surveyed restored women's property to them because guardians claimed that the women were mentally incompetent, and were unable to understand the contract's terms.Footnote ⁷⁸ Women themselves sometimes even claimed diagnoses of hysteria and insanity in order to extricate themselves from contracts.Footnote ⁷⁹

In other cases, courts carefully weighed others’ claims of insanity against women's rights to keep and dispose of their property. In one case heard by the Supreme Court of Texas, the court agreed that plaintiff Lucy Elston, although she had once been under guardianship after threatening suicide upon the death of her husband, was of perfectly sound mind when she executed a deed to a neighbor, Reuben Dill, to sell him some land. The original landowner, Thomas Jasper, in an effort to claim the money paid by Dill to Elston, then claimed that Elston's deed was void because she had once been under guardianship. The court rejected this argument on appeal, stating that the guardianship had been terminated at the time of contract, that having a guardian at one time did not constitute permanent insanity, and that the evidence showed that she was of perfectly sound mind when she executed the contract. Elston won her suit.Footnote ⁸⁰

Given the medical community's uncertainty regarding how the mind worked, it is apparent that courts were willing to overlook uncertain mental capacity, sometimes even in women defendants. Susanna Blumenthal has argued that the formal debates over determining mental competency and legal liability standards would ultimately produce “frankly pragmatic models of legal personhood, drawing a distinctly legal definition of sanity and human agency.”Footnote ⁸¹ Medical jurisprudence did not only exclude women from the standard of the “reasonable man” but even attempted to separate them from the threshold of the “default legal person,” or what Blumenthal calls the individual who possessed the minimum attributes of a legally accountable agent. If judges and juries accepted that the “reasonable man” could engage in often unreasonable actions and yet still be legally responsible, then so too could the “reasonable woman.” Certainly, there was no consistent standard of judgement. Even as Gilded Age courts moved toward bureaucratic consistency and a sustained emphasis on the law as an immutable and objective character, the wide array of outcomes in capacity and contract suits produced a constant shifting of standards and interpretations. Yet precisely because of this uncertainty, instead of women being outside the common legal standard as dictated by medical jurisprudence, rather, courts often included them in that standard.

The lens of critical legal theory also offers a way for us to grasp this phenomenon. The “fundamentally constitutive character of legal relations in social life” meant that the courtroom functioned as another space where women's status both within and beyond the law was mediated. In some cases, the outcomes reflected the law's relationship to women as both a “structure of authority” and a “site of social conflict.” The decisions sometimes reinforced medicine's authority over women's capacity, but, just as frequently, resulted in courts setting aside that authority to uphold women's contract freedom.Footnote ⁸²

For women legal actors and reformers, the use of the courts in these ordinary matters of contract allowed a space to negotiate their citizenship rights during a period when American law was grappling with its social role. The various outcomes of contact cases involving questions of mind represented the tensions over the emergent doctrine of formalism (in which the logic and neutrality of the law allowed courts to make decisions removed from social and gendered contexts) and the rival theory of sociological jurisprudence, in which judges considered, as Roscoe Pound would put it, “the social facts upon which law must proceed and to which it is to be applied.”Footnote ⁸³ As Gilded Age and Progressive Era courts struggled with the impulse to protect laissez-faire and freedom of contract above all else, women's suits allowed them to take advantage of a moment when courts simply did not have time to obsess over the uncertain science of mental capacity. Processing “huge numbers of small cases” at the lower levels, as Lawrence Friedman explains, meant that “the great volume of cases called for radical routinization. In probate, mortgage, divorce, and commercial law, courts developed or used standardized procedures, almost as perfunctory—and essential—as parking-ticket procedures in the twenty-first century. This was assembly-line justice.”Footnote ⁸⁴

In the predictable process of making similar decisions over and over again in cases involving questions of sanity, women often stood as capable legal actors who could control their own volition. These cases illustrate that what physicians said about female mental ability often had very little to do with the reality of their participation in market transactions. Women had a stake in the world of business, and it was one that they could successfully use the courts to vindicate if necessary. In the courts, judges were hesitant to curtail the personal freedoms of private market transactions, giving women a space where their claims were, for once, treated equally as men's. As infamous Wall Street businesswoman Hetty Green put it in an interview with the Woman's Home Companion, “The notion that women should not ‘bother their little heads about business matters’ was all right enough in the old days, but when things were very different from what they are now. I remember the first money I ever earned, and even though it was a comparatively small amount, I felt it to be a matter of the greatest magnitude and importance.”Footnote ⁸⁵ Green especially advocated that parents should give their daughters real estate property to manage to teach them the dealings of business.

And yet the waning influence of medical jurisprudence (and judges’ willingness to ignore doctors’ assessments of female rationality) by no means rendered women's legal standing equal to that of men. Isabella Beecher Hooker and Cornelia Hood pointed out in 1890 that a married woman at common law had no right to will because she had no legal capacity, citing the patchwork of laws that forced women in many states to make wills only through the consent of their husbands.Footnote ⁸⁶ Even where the law had been reformed to protect married women's property interests, reformers recognized they were often put in place merely for simple economic utility. Christian Scientist, suffragist, and temperance advocate Louisa Southworth explained, “Law makers have been keenly alive [only] to financial interests.”Footnote ⁸⁷ For example, married women in many states by the mid-nineteenth century had the right to act as femmes soles, and sell property if they could prove their husband's insanity or desertion. As one judicial opinion magnanimously explained it, “His desertion and absence are the foundation of her new rights and authority.”Footnote ⁸⁸

Yet female attorney and suffrage advocate Catharine Waugh McCullough dismissed “our much glorified equality of rights” as “really amount[ing] to nothing.” She scoffed in particular at the right of married women to sell property if their husbands shirked their married responsibilities, noting, “Most of our husbands are neither crazy nor criminal. Husbands rarely desert wives with property. They run away from poor, helpless, sick mothers with twins or triplets.”Footnote ⁸⁹

Indeed, the establishment of laws that changed women's ability to own property, keep their earnings, and vote suggested that all aspects of domestic relations were under attack. As Norma Basch warns, the image of “amazons in the marketplace”—and insane ones to boot—“was both economically and psychologically disturbing to…men.” As rights for women increased in the realm of business, courts, legislators, and society demanded the “vigilant protection of the nuclear family.”Footnote ⁹⁰ This was especially true in cases that dealt with insanity and the contract of marriage. In Shawano County, Wisconsin, a marriage took place on June 26, 1917 between a 27-year-old man named Hempel and a woman whom he had known for approximately 2 years.Footnote ⁹¹ The marriage did not start off well. According to circuit court trial court testimony from both parties, they had a “violent scene” the day following their wedding, which she testified was because he was “boasting to her of some former sweetheart.” By 1919, things had gone really sour: Hempel deserted his wife to keep the company of another woman, and filed a complaint alleging that at the time of marriage, his wife had been mentally incompetent “and an imbecile,” and that she and her mother “through trickery induced the plaintiff to marry the defendant.” He complained of fraud, requesting that the court annul the marriage.

Three physicians testified during the initial trial. One, who had known Mrs. Hempel from early childhood, claimed that “the defendant has ideas which are not corresponding with the normal active brain.” He diagnosed her “as not insane [but] feebleminded, and that a home for the feeble-minded would be the proper place for her.” The second physician also examined her, and “classified her as mentally weak…her case is one where the brain never developed. She is a child in a good many respects.” The third physician also testified that she was feeble-minded “with the type of insanity…called melancholia.” All three physicians expressed concern over her fitness for motherhood and child-rearing. One doctor testified that “her case is one where the brain has never developed. She is a child in a good many respects”

Hempel himself also took the stand, testifying that the defendant, her mother, and her brother-in-law “met him when he was working on the road, and told him he must marry the defendant” and stated that he married her because his family was insistent, and “that out of considerations of pity he did agree to do so.” He also detailed his wife's mental condition, telling the court that his wife started having “spells” after 2 weeks of marriage, where she saw the furniture “moving about.” Despite the fact that he also testified that he continued to live with her, “accepted money from her…permitted her to handle the family funds, accepted her domestic services, and permitted her to assist in work in the field with him on his father's farm,” the lower court agreed that Mrs. Hempel was an imbecile, did not have enough sufficient mental capacity to understand the marriage relations, and had committed fraud.

Apparently, Mrs. Hempel decided that she was not going away that easily, especially after her husband deserted her. She appealed the court's decision and it was heard by the Supreme Court of Wisconsin in February of 1921. Judge Franz C. Eschweiler noted that Mrs. Hempel's trial court testimony included ample evidence that she was not insane. He wrote that she surely was capable of assenting to the marriage, apparently testifying that “the plaintiff wrote to her and told her that if he couldn't marry her, he would hang himself; that she didn't want him to do that, that she loved him then and does yet. She says they married because ‘he wanted me and I wanted him.’”

Eschweiler expressed approval of Mrs. Hempel's statement. “We doubt if Eve in her pristine innocence or any other of her daughters of today, however mentally gifted, could have better expressed more concisely or accurately the mutual consent to marriage… The evidence is clear and satisfactory that she appreciated that she was to forsake all others and remain faithful unto him. There is no evidence in the record to indicate that her mind, however much like that of a child it might be, did not appreciate such obligations or that she did not continue to bear them in mind and live up to them.” Mrs. Hempel successfully had the judgement reversed and the complaint for fraud was dismissed.

In this case, Mrs. Hempel was granted the outcome she had desired in the first place, with the added bonus that the court found the physician testimony on her mental status unconvincing enough that it was willing to uphold her marriage contract. Yet the judge's reasoning was representatives of the difficulties reformers faced in their fight to equate marriage with ordinary contracts. Judges and legal theorists continued to insist in cases such as the Hempels’ that marriage was a union beholden to both State and God. As Susanna Blumenthal notes, “Anxious to insulate the natural and salutary dependencies of the home from the corrosive individualism of the market, members of the bench wielded the law of contract as a mediating device, straining to distinguish domestic relations from other sorts of consensual arrangements.”Footnote ⁹² Or, as James Schouler explained in his treatise on domestic relations, “the law of marriage differs from that of ordinary contracts…Unlike other contracts it is one instituted by God himself, and has its foundation in the law of nature. It is the parent, not the child, of civil society.”Footnote ⁹³ In cases involving insanity and marriage, the paradoxical nature of the rulings revealed the inconsistencies of women's legal personhood.

Similarly, single-sex protective labor legislation also drew on medical opinion about women's capacity, with the most famous example being Muller v. Oregon, decided in 1909. In this case, the Supreme Court was asked to decide whether the state could constitutionally limit the working hours of women. The owner of a laundry business had been convicted of making a female employee work more than 10 hours in a day, which violated an Oregon state law passed in 1903 that was meant to protect worker health and safety. Louis Brandeis, the lawyer who argued the case, submitted a brief containing nearly 100 pages of sociological data on women and factory work. In the brief, Brandeis cited these data and women's “special physical organization,” her “child-bearing and maternal functions,” and the “need to prevent laxity of moral fibre which follows physical debility” as justification for upholding the state law. In the data, physicians’ diagnoses of women's physical incompetence took center stage, with the suggestion that injuries to their health could result in degeneration and in offspring who were mentally defective and injurious to “the welfare of the nation.”Footnote ⁹⁴

Indeed, the Court sided with Oregon, holding that women's sexual differences and the role of motherhood mandated state intervention and protective legislation. Although many reformers celebrated Muller as a victory for female health, some pointed out the dangers of judges curtailing women's contractual liberty. Suffragist Clara Colby argued that “The State has no right to lay any disability upon woman as an individual,” with others noting that single-sex labor laws served to deny women from being “enabled in some manner to enjoy the pleasure of an independent life.”Footnote ⁹⁵ In Muller, liberty of contract was, quite simply, sex based, and drew on medical evidence of women's health. Judge Brewer's opinion explained that a maximum hours law did not violate a woman's ability to contract, even as maximum hours law for men had been ruled a violation of contract freedom in the earlier case of Lochner v. New York.Footnote ⁹⁶

Medical opinions of female health and capacity continued to be a contested but central feature of contract and labor trials. The 1895 Illinois case of Ritchie v. People, decided over a decade before Muller, challenged a new state law that provided an 8-hour day for women factory workers. Lawyers for the state argued that “medical investigations…will show conclusively that the injury to a girl or woman in her sexual function, the breaking down not only of her own health and the shortening of her own life and productive power, but the injury to society in the form of a physically and often mentally degenerate offspring.” But unlike in Muller, the court did not find the medical evidence presented by the defense that purported to show harm to women's reproductive abilities convincing. Instead, the judge ruled that the state's maximum hours law violated the Fourteenth Amendment, opining that it was “a purely arbitrary restriction upon the fundamental right of the citizen to control his or her own time and faculties.”Footnote ⁹⁷ In this case, as in others, courts did not necessarily find medical expertise convincing enough to set aside the primacy of contract freedom.

Indeed, in the coming decades, even as Muller’s sex-based reasoning would eclipse Ritchie’s liberal interpretation of contract to become the legal foundation of protective labor legislation, common courtroom contests between law and medicine opened a flexible space for an alternative jurisprudence concerning women's rights. The pitting of freedom of contract against questions of sex and capacity pushed gender to the forefront of the disciplines of medicine and law, and the questions that resulted from the application of both.

IV. “A Healthy, Intellectual Womanhood”

As doctors and jurists clamored to define the parameters of contract, capacity, and women's abilities, women themselves added their voices to the debate. Amidst a raft of unpredictable verdicts and legal uncertainties, women reformers proclaimed the absurdity of doctors’ ideas about their bodies and minds. They rejected the idea that the female sex was, in the words of physician James Weir, “degenerate” and “psychically abnormal.”Footnote ⁹⁸ In the nascent women's movement of the 1840s, activists such as Angelina and Sarah Grimke had begun to systematically dismantle the idea that women's intellect was deficient and made them unfit for citizenship. In her influential Letters on the Equality of the Sexes and the Condition of Woman, Sarah Grimke stated emphatically that “intellect is not sexed…strength of mind is not sexed.”Footnote ⁹⁹ Five decades later, California lawyer and suffrage advocate Laura de Force Gordon would maintain in front of a crowd at the Chicago World's Fair that women actually had “masculine brains,” because if “power and capacity of intellect is to be the criterion of sex,” then women's rational abilities were clearly superlative. She explained forcefully that the medical idea that women were mentally abnormal was absurd. “The repression and suppression of all her natural aspirations toward a healthy, intellectual womanhood have gone on and on, and when the woman question is under discussion, we are gravely told that woman is by nature wholly unfitted for, and incapable of occupying, a broader or more intellectual field of thought or action. What an outrage to common sense.”Footnote ¹⁰⁰

Physician Dr. Mary Putnam Jacobi also emphasized to her readers that women's participation in the marketplace had changed their position in the world completely, rendering them “independent contributors” that made the conferral of full citizenship rights the only thing that was only logical for society. She explained, “From this moment their distinct recognition as individuals by the State, as units in the body politic, entitled to an equal place with all other units discharging the same or equivalent functions, becomes an imperative necessity, a demand to be formulated alike by expediency, by justice, and by common sense.”Footnote ¹⁰¹ Jacobi thus connected scientific understandings of women's place in the natural order to ordinary understandings of rationalism.

Reformers also resoundingly rejected physicians Clarke and Osler's characterizations of their physical strength as related to their reproductive cycles. When asked about physician Edward Clarke's ideas about women and menstruation, lawyer Letitia Burlingame responded, “having been very subject to the peculiar difficulties of my sex, I think I ought to record that I am never in better health or spirits when put to the spur and excitement of trying cases, nor does any hurtful reaction follow the glow…I am now stronger and able to endure more than at any other period of my life. Indeed I stand court room work better than many of the men.”Footnote ¹⁰² A reporter asked suffragist and birth control reformer Mary Ware Dennett about one physician's opinion that women suffered routinely from “insanity [and] hysteria” and whether marriage rendered them incapable of making their own decisions. She scoffed, “Well, what can you do with a man like that except laugh at him? What sensible person in the Twentieth Century can take him seriously?”Footnote ¹⁰³ These arguments for female competence stood as a direct assault on medical men's overly byzantine, clinical descriptions of female sanity and its connections to reproduction. In connecting ideas about capacity, strength, and intellectual ability to broader ideals of womanhood, women's rights advocates cast doubt on medical expertise as something that should determine female legal status.

The power that American medicine held over women was thus substantially tempered by women's demands to participate in legal and social life as independent contractual subjects. Yet by the late nineteenth century, these counterarguments would have social consequences that stretched beyond reformers’ attempts to expand female citizenship rights. Refuting doctors’ claims about female incapacity also revealed suffragists’ commitment to upholding a regime of white, able-bodied enfranchisement.Footnote ¹⁰⁴ Kentucky suffrage activist Withers Smith phrased an increasingly common argument when she insisted it was shameful for women to be medically and socially classed with “idiots.”

Smith's argument illustrates the precise ways in which feminists publicly rejected the idea that women's legal status should be equal with other groups who existed at the edge of the “borders of belonging.”Footnote ¹⁰⁵ She concluded, “Now if we are to remain classed with the idiots, I ask you to extend to us the same privilege you do to them, either permit us to vote, [or] give us the $75 a year we are entitled to for our support.”Footnote ¹⁰⁶ By demanding that the state afford women the same financial provisions as “idiots,” Smith illustrated women's legal disabilities with an effective metaphor that simultaneously called into question the medical constructions of women's rationality, while buttressing most people's prevailing belief that there were still those who should be “legitimately excluded from public life.” Footnote ¹⁰⁷

This strategy of differentiating white women from common “idiots” and “lunatics” (and, by extension, other racial and ethnic groups) was nonetheless a potent argument for most Gilded Age Americans, and one employed to effective advantage by many of the most publicly visible reformers. In using the metaphor of disability, reformers presented a powerful illustration of their unequal status in public life. Further, in rejecting this status of dependency forced on them by their legal disabilities, activists also illustrated the problems of the marriage contract, which rendered women legally subject to a husband's dominion in every aspect, including sex.

Drawing parallels between their independence and the right to contract their labor or property, women demanded broad changes for women's status after marriage. In an 1896 piece for the Woman's Journal, Annie Tomlinson declared that the modern woman had a “marriage problem” that stemmed directly from “degradation” and “the inequality of the sexes.” The only solution, Tomlinson concluded, was for women to maintain themselves as economically separate from their husbands as possible and continue to educate themselves to uphold a “disciplined mind.” She concluded forcefully, “When women have demonstrated their economic and political ability, and when they have forced their own moral standard upon men, the battle will be won…the professional woman is to be the Savior of the family and of the State.”Footnote ¹⁰⁸

Reformers also warned that marriage should not be a stand-in for women's broader engagement with the world. Instead, as Pennsylvania attorney A. Florence Yerger Hagan argued, full, independent citizenship for married women should be “held to the pinnacle of women's hopes and dreams” in order to maintain “their rights of civil liberty” and bodily independence.Footnote ¹⁰⁹ Activist Mary Ware Dennett also rejected marriage as the zenith of female achievement. “That's the old, wornout masculine prejudice in a nutshell—the belief that that the end and aim of woman's existence is marriage. That is the greatest fallacy in the world. A woman is not primarily a wife, not a mother, any more than a man is primarily a husband or a father. Each one first of all is a human being.”Footnote ¹¹⁰

Some women's rights reformers also subscribed the idea of free love, a doctrine that deplored the current state of marriage as economic and sexual subjugation.Footnote ¹¹¹ Citing marriage as the source of many social problems, free lovers beginning in the 1840s, and into the early decades of the twentieth century, advocated sexual choice for both men and women, as well as liberalized divorce laws. As Ann Braude has argued, this was a “potentially powerful source of autonomy in an age without contraception and with little notion of sexual satisfaction for women.”Footnote ¹¹² One free lover explained it as “The uses of our physical bodies are to indulge in any enjoyment that offers us real comfort and happiness…We have a right to do anything that is not repudiated by our own conscience.”Footnote ¹¹³ The doctrine of free love also encompassed an idea of a female self that would no longer be dependent on men for financial reasons. Free lovers linked sex, marriage, and economic subjugation with prostitution and dependency.

Alternative religious movements such as Spiritualism or Christian Science frequently incorporated free love's ideology as part of their core tenets. Mary Baker Eddy, the founder of Christian Science, noted the problems of women before the law, explaining, “Civil law established very unfair differences between the rights of the two sexes. Christian Science furnishes no precedent for such injustice…Our laws are not impartial, to say the least, in their discrimination as to the person, property, and parental claims of the two sexes.”Footnote ¹¹⁴ Helen Wilmans Post, founder of the Mental Science movement, insisted, “If I had been brought up with any other idea than that of man's God-given right to lord it over woman, I could have changed the whole tenor of my life.”Footnote ¹¹⁵ These women viewed it as their duty to alter legal and social systems to better reflect spiritual, divine truths about humanity, and emphasized the desire to control their sexual rights.

In addition to free love, advocates for voluntary motherhood and social purity, and, later, birth control reformers, shared a broad commitment to reforming the role of sex in women's lives. Voluntary motherhood was against the use of contraception, but demanded that women choose when, where, and with whom they would have children within marriage. Social purity, which grew out of the earlier antebellum reform movements including abolitionism, temperance, and utopian thought, called for confining sex to marriage and called on women to work toward enforcing men to utilize sexual self-control with their wives. Reformers active in the social purity movement also generally supported the idea of voluntary motherhood, worked to eliminate prostitution, lower the age of sexual consent, and moderate sexual excess in all forms.Footnote ¹¹⁶

Although there were significant differences and rivalries among these various factions of the women's movement, together they all recognized the dangers of sex for women. Marital rape law did not exist and the health risks of pregnancy and childbirth were manifold.Footnote ¹¹⁷ Lawyer Martha Pearce argued that controlling fertility was even more important than the vote, writing, “Sometimes I feel that there is no question so sacredly important to woman as [the choice of motherhood], and that the ballot even will be worth but little to her.”Footnote ¹¹⁸ These arguments for marriage reform represented a way for women across the political spectrum to attempt to wrest control of sex from a patriarchal status quo that gave men unlimited power over the bodies of women.

In the language of the law, ordinary contract rights were thus a powerful metaphor for remedying the sex inequalities of marriage. As Elizabeth Cady Stanton urged, “Let the State be logical; if marriage is a civil contract, it should be subject to the laws of all other contracts.”Footnote ¹¹⁹ The right to make contracts implied a right to privacy in marriage relations and in a woman's sexual life. Stanton and others foresaw their right to enter into marriage, knowing it was an agreement between equal parties who could also agree to dissolve it at will, as a “transformative and regenerative” experience, a “way to assert possession of individual self, capable of acting in and on the world.”Footnote ¹²⁰

Together, these arguments stressed that not only were women were able to intellectually bear the duties of suffrage and citizenship, but that also in doing so, they deserved total bodily independence, both outside of marriage and within it. Even as abortion and birth control remained illegal and husbands’ marital power remained immutable, women's arguments for the elevation of freedom of contract and bodily independence shaped the emergent rhetoric of the modern birth control movement. Moreover, women's vocal distrust of both the medical and legal establishments became even more apparent in the ways that reformers such as Mary Ware Dennett and Margaret Sanger pushed back against hostile (or at the least, indifferent) physicians and legislators who sought to keep contraception illegal.

Beginning in 1915, Dennett and Sanger stood at the forefront of the fight to remove contraception from the federal and state obscenity laws, emphasizing the real-world impact of these restrictions on women's lives.Footnote ¹²¹ Both regarded women's choices about their relationships and sexual lives to be reasonable and, like so many of their predecessors, they attacked the range of laws that circumscribed women's ability to enact their full complement of citizenship rights. Reviving older arguments in application to new circumstances, Dennett called attention to the inequity of marital laws that placed women in a situation that was a cruel mockery of contract rights, wherein their “services” of housework and sexual relations earned them the “necessaries” of food, clothing, and shelter, but not the right to control the number of children they bore.Footnote ¹²² She then cleverly couched contraception as a necessary “part of human reason and intelligence,” arguing that both the medical and legal establishments’ withholding and prosecution of birth control information was, in fact, directly responsible for the “shattered” increase in women's general “nervous and physical condition.”Footnote ¹²³

In “Shall We Break This Law,” Sanger's opening salvo published in the first issue of the Birth Control Review, she told her readers that women must wrest their legal right to contraception from diffident male doctors and legislators.

Sanger's dramatic plea was an effective one at garnering sympathy for the movement, and it acknowledged the ways that women had always found space within and outside the law to assert their rights.

As the birth control movement solidified in the 1920s, both Sanger and Dennett also criticized the medical profession for their unwillingness to openly support the legalization of contraception, urging physicians to use their expertise for good. Sanger argued, “It is indeed a strange task for me to seek the medical profession a right which it has neglected to claim for itself. None knows better than I, perhaps, the indifference, neglect, and evasion which has so generally characterized the attitude of physicians toward Birth Control.” She concluded that legal birth control would help women “regain health, obtain time for self-improvement and be of use in the larger struggle for human freedom,” and that physicians, more than anyone else, needed to be at the forefront of a social movement that would advance humanity.Footnote ¹²⁵ By the mid-1920s, Sanger would indeed begin to form an effective alliance with physicians sympathetic to her cause, and firmly align the quest to legalize contraception with the authority of medical expertise.

Dennett, however, was less certain that physicians made the best allies in the birth control movement. Cognizant of the history of physicians’ characterizations of women, she rejected Sanger's support for a “doctors-only” bill that would ensure that only doctors could have unregulated access to birth control information. Instead, she insisted that the decision about when a woman should have a child was only “for the individual family concerned to decide” and should have nothing to do with a doctor's opinion or moral attitudes.Footnote ¹²⁶ Wary of the idea that medical control contraception would “better safeguard the public,” she warned, “The function of the medical profession is to cure and prevent disease. It is not to act as arbiter of morals and ethics… . Laws that would try to empower physicians to act as inquisitors into the private lives of their patients and to be responsible for the ethical use of contraceptive instructions, would be an imposition both upon the physicians and upon the people.”Footnote ¹²⁷ Her words implied the long history—and future—of the contentious, tangled relationship among the law, medical authority, and women's rights. Wary of the ways that doctors had long sought to define female capacity and rights, Dennett's rejection of a physician monopoly over contraception was entirely logical.

In 1881, legal theorist and Supreme Court Justice Oliver Wendell Holmes famously referred to the “average man, the man of ordinary intelligence and reasonable prudence” as the standard by which to judge legal competency.Footnote ¹²⁸ As women reformers rejected the power of medicine and law to dictate how they conducted both their business and their private lives, they constructed their own narrative of the “reasonable woman” who was not, by default, insane or incapable. The argument over what insanity meant in the courtroom relied on gendered conceptions of freedom and citizenship. But as women utilized the courts as femmes soles in various kinds of civil cases, it also allowed for reformers to draw explicit connections between the broader implications of the right to contract—personhood, independence, and free exchange—and women's private sexual lives. Significantly, we can trace this story to the busy yet unremarkable courtrooms of the Gilded Age and Progressive Era, and the ways in which women sought justice for their property, their rights of citizenship, and the very bodies they inhabited.