A Woman’s Place

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As the terrible, wonderful year of 1848 began, with storms of liberty sweeping across Europe and the Chartists shaking the pillars of the British Establishment, Fanny was living at the epicenter, revelling in the excitement of history in the making. She had six weeks of solid bookings ahead of her, enough to pay for the trip to America and the cottage Catharine Sedgwick had found for her in Lenox. She was impatient to be there, to see—or at least to have fresh news of—her daughters. Friends who made inquiries about them could learn only that they were in boarding school. They advised Fanny to come and open a direct negotiation with Pierce for some sort of reasonable compromise.

She intended to do that when the season was over. But just as it began, she was served with a subpoena to appear before the court of common pleas in Philadelphia to defend herself against Pierce’s suit for divorce on the grounds of “wilful and malicious desertion.”

Fanny cancelled her engagements (including a royal command performance) and sailed for Boston. There she consulted friends, among them Charles Sumner, the abolitionist senator. It may well have been on his advice that she decided to base her defense on the argument that Pierce’s”… prohibition of my remaining with my children … coupled with his other acts and his declarations, was as clear an expulsion of me from his house as there could be short of one accompanied by physical violence.” She also contended that, while she had left with “the assent and license” of her husband, she would have been justified in leaving without them by “personal indignities [that] rendered [my] condition intolerable and life burdensome.”

It would have been a stronger and more conventional case if she had alleged even a single act of physical mistreatment, for mental cruelty had no legal status at the time. But Fanny would not make the charge, probably because it would have been untrue.

To support her contentions, Fanny added to her plea for a jury trial her detailed Narrative , which, although the judges would not admit it as evidence, was widely published by the newspapers, many of which came to her defense. In addition, she retained as her lawyer the renowned Rufus Choate, a courtroom performer who could draw and move an audience as strongly in his way as Fanny could in hers. Since Choate’s fee was high, Fanny contracted for a series of readings to raise the money.

Pierce did not exercise his legal prerogative of impounding her earnings. He may have considered it; he was desperately afraid of Choate and tried to hire Daniel Webster to oppose him. But any such move against Fanny would have prejudiced his case, not only in the eyes of his peers, but also in the eyes of the three judges on whose good opinion his fate would depend.

When the hearing began in early December, everyone who could squeeze into the courtroom was there- except Fanny. The Boston and New York papers sent reporters to take down every point Choate made, for there was consensus that more was at stake here than Fanny Butler’s maternal rights.

Choate did not disappoint his audience. After he had emotionally charged the proceedings with the plight of a mother who found she had no right under the law of the land to perform those functions which moral law demanded of her, he moved on to suggest —very delicately but unmistakably—that the old common law was unjust and ought to be revised. He realized that such a change was beyond the power of the three judges, but he knew that the hundreds who heard him and thousands who would read him could and would initiate change in their own time.

It took a month for the court to reach its decision: that there was, in Mrs. Butler’s countercharge, an issue of fact (which Pierce’s counsel had denied)) and that the case must be tried before a jury. This made it possible that Fanny might “win”—that the divorce might be denied and the intolerable status quo ante be resumed.

What happened next was anticlimactic but hardly inexplicable in view of what each of the contestants now stood to lose—and to gain. A compromise was negotiated. Pierce permitted the two girls to spend part of the summer with their mother, visiting them himself only once and only for a few hours. For her part, when the case came up for trial the following September, Fanny did not contest the divorce.

If Fanny ever wrote down her reasons for this change of heart and strategy, she later destroyed the record. But it seems obvious that by giving up her daughters for a few years she could win the right to her own independence and secure their love. Nothing but a revision in the law could have restored them to her before their majority, and laws are not changed by a single pleading, even by a Rufus Choate.

As it turned out, five years after Choate’s inspired defense the Pennsylvania assembly did act to amend the statutes governing the position of married women. The change was small but significant, for it granted to a woman whose husband neglects her or refuses to provide for her the right to whatever money she could earn as a “sole trade.” She also secured rights over her children, should their father fail to care for them.