Transforming society through law: St. George Tucker, women's property rights, and an active republican judiciary.

• Author: McGarvie, Mark Douglas
• Position: The Legacy of St. George Tucker

Few people in America in the 1790s considered women to be equal to men legally and socially. Believers in gender equality were even rarer among elite southern males who lived in a society that relied upon patriarchal authority and prescribed roles, behaviors, and attitudes for its social leaders. In this context, St. George Tucker's personal and judicial expressions of women's rights evince an unusually progressive perspective that places him in the vanguard of social and legal reform in the early republic. This directly rebuts Christopher Doyle's assertions in his examination of Tucker's commitment to gender equality and social reform. (1) It also raises interesting questions regarding limits on judicial reform in the early republic, especially those reforms sought by Republican judges.

In 1794, St. George Tucker had an opportunity, while a judge on the district court for Accomack and Northhampton Counties on the Eastern Shore of Virginia, to address, in Tom v. Roberts, an area of law that he perceived to constitute a great injustice. (2) The Roberts case concerned the right of a wife, whose loyalist husband had fled Virginia during the American Revolution, to dispose of her property in slaves. (3) Women's property rights had been the focus of extensive post-Revolutionary reform in Virginia by 1794, but women had been given no appreciable increase in their rights to hold property in slaves. (4) During the same year that Roberts came before him, Tucker wrote and lectured on the inappropriateness of old colonial laws on slavery that restrained liberal reform of property laws in the early republic. (5) His notes provide new insights into his seemingly reactionary decision in Roberts.

Women's rights and slavery were integrally related in the early republic. An expansion of women's rights challenged the white male control of southern society that justified and perpetuated slavery. (6) In addition, perceptions of the black man as an untamed sexual predator served to reinforce the societal need for slave control and male protection of female virtue. (7) Generations of Americans, beginning with his contemporaries, have lauded Tucker for his outspoken condemnation of slavery. Tucker has been credited for his assertiveness on this issue while Thomas Jefferson has been condemned for his laxity, (8) despite the fact that both men proposed similar plans for eliminating the institution. (9) Yet, in discussing slaves, Tucker exhibits a racist attitude against which Jefferson's "'suspicion ... hazarded with great diffidence' that blacks were 'inferior to whites in the endowments of both mind and body" appears mild. (10)

In one of his many writings on slavery, however, Tucker asserts an evil associated with the institution that escaped the notice of others, including other attorneys. In a notebook containing teaching notes written in 1794, Tucker argued that the peculiar laws through which people were regarded as property impeded the realization of liberal Republican law reform, especially the ability of women to hold and inherit property. (11) Tucker referred to a law of 1727 that confirmed the status of slaves as real property and pronounced that the "right of a Feme covert to a slave shall vest in the husband absolutely; that of a feme sole, on her marriage." (12) He proceeded to criticize this law as absurdly denying women their equal rights:

 The laws respecting them [slaves] are not always founded in perfect Justice: A man marries a woman possessed of slaves in her own Right; they become his instantly upon the marriage; they may be taken in exemption to satisfy his previous Debts; if he dies in the Lifetime of his wife, she shall have the use of one third part of her own slaves, only, during her Life. [I]f he is indebted, she shall have the use only of one third of the surplus of them, if there be any, after payment of his Debt. She should not presume to move them out of the State under penalty of forfeiting her whole Dower. It is easy to perceive that these provisions were not enacted by a female Legislature. (13) 

In this writing, Tucker evinces a remarkable attitude toward women's rights and compels all students of the early republic to reconsider the profundity of the legal reform achieved by the Republican leadership. Writing 130 years before women were given the right to vote, Tucker certainly entertains the idea of female lawmakers and castigates the legislature for making laws that are unjust solely because they are biased to favor men. (14) While liberal reforms were being made to Virginia's property laws by both legislative and judicial action, the defensiveness that already existed around the issue of slavery precluded liberal reform from addressing that institution. (15) Virginians could conceive of women owning and inheriting property, so long as that property did not take the form of slaves. In this context, Tucker condemned the institution for impeding the progress of the legal reform that was necessary to create a more liberal society. (16)

In 1999, Michael Grossberg published an essay in which he described how Jeffersonian Republicans transformed Virginia law after the Revolution to embody revolutionary ideals. (17) He argues that reforming the inheritance law constituted one of the greatest successes in bringing about radical change in American society. (18) Laws of 1776 and 1785 abolished entail and primogeniture, opening up land for use by its present holders. (19) This reform certainly reflects the early republic's commitment to encouraging economic development. The abolition of entail benefited creditors and debtors by facilitating borrowing and debt collection. (20) Land became an economic resource that was useful in commerce. (21) To ideologues like Jefferson, however, the essence of this reform was the recognition of all children, male and female, as legal equals. Recognition of the wife or widow as a legal individual, who should not be dependent upon or a burden to her children, but who should be able to hold and convey the property of her deceased husband in her own right, logically followed. (22)

St. George Tucker, an ardent Republican devoted to Jefferson, addressed the ideology at the root of these legal changes and professed the importance of the law of 1776 in his writing, teaching, and judicial decisionmaking. (23) He presents compelling evidence of how broadly Jeffersonian reformers in the post-Revolutionary Era defined the ideal of legal equality and conceived of it as a transformative device in shaping economic, social, and sexual relationships in the new republic. (24) Tucker considered entail to be "the offspring of feudal barbarism and prejudice" (25)--a system of thought that was wiped out "when the Revolution took place [and] a different mode of thinking succeeded." (26) He referred to post-Revolutionary law as "our" law and contrasted it with earlier colonial laws: "whereas the rule of our law, comprehends the whole of a man's children, or other descendants without regard to sex or primogeniture." (27) In teaching about the meaning of this change, he used an example. In the early republic in Virginia, if a man died intestate with a son, daughter, and grandchildren by both the son and the daughter, all would inherit without sexual distinction, whereas under colonial law, only the son or his issue would inherit. (28) Yet, Tucker's record as a judge evinces a position that was just as important to Tucker and which mitigated his ability to act on his own beliefs--the Republican perspective that judges should not legislate from the bench. (29)

Statutory reform in post-Revolutionary Virginia encountered limitations imposed by strong public opinion rooted in acceptance of an established slaveholding hierarchy. (30) Certainly, single women in turn-of-the-century Virginia were free to hold slaves, but married women were not. (31) This legal distinction provides evidence of the South's retention of premodern patriarchal ideas that served to legitimize the institution of slavery and to subordinate women to their husband's, father's, or even son's, control. Holly Brewer, discussing the law of 1727, asserts that entailing slaves to land may have mitigated some of the growing denunciations of slavery, for "if slaves could not be separated from an estate, they need not fear what many considered the worst part of slavery--sale." (32) She also noted that

 if slaves were personal property, they would be divided among the children .... The heir then would have to pay his younger siblings for their value instead of being able to protect and help them while retaining both land and slaves as rightful head of the family .... [A] n explicit part of the justification of entail---of both slaves and land--was the assumption that the elder son was head over his siblings [as well as the protector of the mother]. (33) 

This paternalism conflicted with the prevailing understanding in the early republic that individuals are equal, free, and autonomous actors--an idea ultimately expressed in the widespread adoption of contract law as a means of defining social relationships. Brewer, in fact, contends that prerevolutionary legislators intended to "introduce into Virginia a type of feudalism" and that many Virginia planters still preferred an old world societal model to the individualistic reforms of the early republic. (34)

Other legal historians have noted how Virginia's judges hindered the commonwealth's full adoption of contract law principles. F. Thornton Miller argues that the South resented and fought the imposition of contract law as potentially destructive of its premodern economy. (35) Contract law gave the courts power to overcome provincial considerations in asserting human equality and property rights, implicitly including the right to sell one's own labor. (36) In the North, it served as a major force in breaking down the communitarianism of colonial society and imposing a...