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Women Changing Names, Part 4. Women’s Legal Rights &Coverture

Recap:

Post #1—Women friends say they did not change their names or expressed regret they did.

Post #2—Women friends say they changed their names because they didn’t think about it, to avoid complexity, and some were conflicted but did it anyway.

Post #3—A history of women’s names.

Women’s Legal Rights & Coverture 

By the 19th Century, the legal rights of American and British women depended almost entirely on the writing of William Blackstone in 1765.

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Here’s the crux of it:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is…. therefore said to be …. under the protection and influence of … her baron, or lord; and her condition during her marriage is called her coverture. 

Blackstone’s codification of British Common Law was incredibly influential.

But why? And why did his writings take hold just then, in the late 1700s?

No one really knows, but most scholars think it probably had to do with the rise of commerce and the change from an agriculture society to one that more and more was commercial and industrialized.

When husband and wife live together on a farm, the issue of property, property rights, and money is less relevant. Hoe, grow, eat. Pretty simple.

When a person has mobility (trains) and can work in service or factories to earn her own money? That could produce economic independence. A gal can get her own stuff and take it with her. Along with her offspring. Hence a greater need for legal restriction.

In summary, by the 19th Century, the legal position of a woman upon marriage was clear.

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  • She had no legal independent existence.
  • (Except if she committed a crime, then you’re on your own, sister.)
  • She could not own property. Anything she earned belonged to her husband.
  • She could not sue or make any kind of contract without her husband’s permission.

None of this, of course, touches on a woman’s name. There was no law anywhere requiring a woman to take her husband’s name. (More on that below.)

Trends in women’s names were a parallel phenomenon, but no accident.

As the obliteration of women’s legal rights was more and more solidly codified into law, the tradition of a woman taking her husband’s name, and eventually entirely losing her own, became more and more entrenched.

Lucy Stone

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History regards Lucy Stone, 1818-1893, as the first woman of the modern era to advocate for the right of a woman to keep her maiden name.

When Lucy Stone married Henry Blackwell in 1832, this prince of a guy supported her decision to keep her maiden name and also made a public protest against the marriage laws that abrogated a married woman’s legal rights.

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The two met no end of objection to their unconventional names, but the couple toughed it out as Lucy Stone and Henry Blackwell.

 The Fly in the Ointment

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Remember when I said you were smarter than nearly every lower court judge from the 1800s until the 1970s?

That’s because you know there was never any law in any state of the union or in the United Kingdom requiring a woman to take her husband’s name when she married.

(Hawaii had such a law, but was not admitted as a state until 1959.)

You also know that according to British Common Law, a person, man or woman, could take whatever name he or she wanted and change that name throughout life.

However, by the 1800s, everyone had pretty much forgotten this fact.

Not only did they forget, they re-wrote history.

When Lucy Stone tried to vote in Massachusetts under her own (maiden) name, she was told she could not.

She brought suit, and in 1879 a judge decided a woman in Massachusetts could only vote in her husband’s name. Why? Because, the judge said, common law required her to change her name to her husband’s when she got married.

(Dumbass).

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While Lucy lived until the end of her life as Lucy Stone, she could only vote under her married name.

Fight for the Right to Get Stoned

In the teens and 1920s a new Lucy Stone movement emerged.

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More and more women decided to keep their maiden names when they got married.

But they ran into the same problem as Lucy Stone. At passport offices, in voting booths, with mortgage officers and automobile title issuers, they were told that they must use their husband’s last name.

When these matters went to court, judge after judge said (often relying on the erroneous Lucy Stone ruling) that common law mandated a woman must change her name when she married.

The State Department agreed, saying passports must be in a woman’s married name.

Despite the fact that no law in any state of the union required it.

These latter-day Stoners might keep their maiden names, but their names could not appear on any legal or public document.

 ERA and the Right to Keep Your Name

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The Equal Rights Amendment was proposed in 1972, but did not succeed. Still, the effort had a salutary effect on the issue of a woman’s right to keep her maiden name.

ACLU lawyers started taking women’s-rights cases. Finally someone researched what the law actually was and brought new suits. Throughout the 1970s, lower court rulings fell until it was established law that a wife had a right under common law to continue to use her birth name.

Funnily enough, it took until the 1960s for the last state coverture laws to be overturned. Remember, those are the ones that said you can’t own shit.

Coincidence?

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Next up, my story.

The Angry Blog.

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