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11. Welke, Barbara Young, Law and the Borders of Belonging in the Long Nineteenth Century United States (Cambridge: Cambridge University Press, 2010), 24CrossRefGoogle Scholar. Welke also notes elsewhere that in the context of the law of accidental injury, “late 19th- and early 20th-century courts did not require that all actors measure up to the standard of care stated as the ‘reasonable man’; they defined due care differently for women than for men.” Injury case outcomes reified gender norms in the newer social context of railroad travel; in the contract cases discussed here, gender norms were sometimes ratified, but other times not. See Welke, Barbara Young, “Unreasonable Women: Gender and the Law of Accidental Injury, 1870–1920,” Law & Social Inquiry 19 (1994): 369–406CrossRefGoogle Scholar.

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14. See Appendix for a description of the methodology and sourcing of relevant cases.

15. Most histories of commitment law, asylums, and mental health argue that women were disproportionately treated for insanity or confined to asylums by tyrannical husbands and combative power-hungry doctors. See Carlisle, Linda V., Elizabeth Packard: A Noble Fight (Urbana, IL: University of Illinois Press, 2010)Google Scholar; Chesler, Phyllis, Women and Madness: Revised and Updated (New York: Palgrave Macmillan, 2005)Google Scholar; Dwyer, Ellen, Homes for the Mad: Life inside Two Nineteenth-Century Asylums (New Brunswick, NJ: Rutgers University Press, 1987)Google Scholar; Dwyer, Ellen, “A Historical Perspective,” Sex Roles and Psychopathology, ed. Widom, Cathy Spatz (New York: Plenum Press, 1984), 19–48CrossRefGoogle Scholar; Dwyer, Ellen, “The Weaker Vessel: Legal Versus Social Reality in Mental Commitments in Nineteenth-Century New York,” in Women and the Law: The Social Historical Perspective, ed. Kelly, D. Weisberg (Rochester, VT: Schenkman Books, 1982)Google Scholar; Faith, Karlene, Unruly Women: The Politics of Confinement and Resistance (Vancouver: Press Gang Publishers, 1993)Google Scholar; Showalter, Elaine, The Female Malady: Women, Madness, and English Culture, 1830–1980 (New York: Pantheon Books, 1985)Google Scholar; and Smith-Rosenberg, Disorderly Conduct. For general histories of the asylum and treatments for insanity, see Grob, Gerald N., Mental Illness and American Society 1875–1940 (Princeton, NJ: Princeton University Press, 1983)Google Scholar; Grob, Gerald N., Mad Among Us (New York: Simon and Schuster, 1994)Google Scholar; Rothman, David J., Conscience and Convenience: The Asylum and Its Alternatives in Progressive America (New Brunswick, NJ: Transaction Publishers, 2002)Google Scholar; and Rothman, David J., The Discovery of the Asylum (New Brunswick, NJ: Transaction Publishers, 1971)Google Scholar.

16. Michael Grossberg notes that a weakening patriarchal order was replaced with what he terms as a “judicial patriarchy” in Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill, NC: University of North Carolina Press, 1985). In matters of family law—marital prescriptions, divorce cases, involuntary commitment trials, or cases involving child custody—the courts took into account notions of maternal fitness, rational capacity, and restrictions on female sexuality in their rulings.

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57. Mohr, Doctors and the Law, 225.

58. Ibid., 226.

59. Mohr, Doctors and the Law, 198. Famous cases included the insanity trial of Mary Todd Lincoln, as well as accounts in the following: Bly, Nellie, Ten Days in a Mad-house: Or, Nellie Bly's Experience on Blackwell's Island. Feigning Insanity in Order to Reveal Asylum Horrors (New York: N.L. Munro, 1887)Google Scholar; Gilman, Charlotte Perkins, The Yellow Wall Paper (Boston: Small, Maynard, 1899)Google Scholar; Packard, Elizabeth Parsons Ware, Three Years’ Imprisonment for Religious Belief: A Narrative of Acts (Chicago: Clarke & Company, 1869)Google Scholar; and Stone, Elizabeth T., A Sketch of the Life of E.S. and of Her Persecutions, with an Appendix of Her Treatment and Sufferings While in the Charlestown McLean Asylum (Boston: 1842)Google Scholar. See also Grob, Mad Among Us, 131.

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78. See Birdsall v. Leavitt et al. 32 Utah 136 (1907); and George F. Jordan v. W.A. Kirkpatrick 159 Illinois App. 231 (1911).

79. Ellen Mahoney, by guardian v. Goepper et al. 8 Ohio Dec. Reprint 33 (1881).

80. Lucy W. Elston v. Thomas Jasper 45 Texas 409 (1876).

81. Blumenthal, Law and the Modern Mind, 142.

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90. Basch, In the Eyes of the Law, 228.

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92. Blumenthal, Law and the Modern Mind, 200.

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107. Baynton, “Disability and the Justification of Inquality,” 44. Legal historian Rabia Belt has demonstrated in more detail how women suffragists participated in the making of an antidisability regime. Rabia Belt, “Outcasts from the Vote: Woman Suffrage and Disability” (working paper, Stanford Law School, 2018). Cited with permission of the author.

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112. Braude, Radical Spirits, 128.

113. Quoted in McGarry, Ghosts of Futures Past, 58.

114. Quoted in Tumber, Catherine, American Feminism and the Birth of New Age Spirituality: Searching for the Higher Self, 1875–1915 (Washington, DC: Rowman & Littlefield, 2002), 44Google Scholar.

115. Quoted in ibid., 171.

116. On the social purity movement, see David J. Pivar, Purity Crusade: Sexual Morality and Social Control, 1868–1900 (Westport, CT: Greenwood Press, 1973). On the relationship between social purity and voluntary motherhood, see Gordon, Linda, The Moral Property of Women: A History of Birth Control Politics in America (Urbana, IL: University of Illinois Press, 2002), 72–85Google Scholar.

117. Some late nineteenth-century sex radicals including Kansas socialist Moses Harman equated the state of marital law for women to state-sanctioned sexual violence. In his widely read anarchist newspaper, he editorialized, “I oppose marriage because marriage legalizes rape.” Lucifer the Light-Bearer, April 7, 1897, 107.

118. “Report of the Corresponding Secretary,” Equity Club Annual (1888), Mary Earhart Dillon Collection, Schlesinger Library. Quoted in Drachman, Women Lawyers, 85. In the late nineteenth century, Pearce and others who highlighted this issue were not necessarily supporting the use of contraception. As Linda Gordon points out, it is unsurprising that women—even sex radicals—did not initially support contraception because “legal, efficient birth control would have increased men's freedom to indulge in extramarital sex without greatly increasing women's freedom to do so even had they wanted to.” Gordon, Moral Property, 67.

119. Quoted in Stanley, From Bondage to Contract, 185.

120. Hartog, Man and Wife in America, 85.

121. Mary Ware Dennett established the first birth control organization in the United States, known as the National Birth Control League (later renamed the Voluntary Parenthood League) in 1915. There has been one full-length, popular biography on Dennett. See Chen, Constance M., The Sex Side of Life: Mary Ware Dennett's Pioneering Battle for Birth Control and Sex Education (New York: New Press, 1997)Google Scholar. Most of the scholarly work on Dennett to date has focused on the legal history and ramifications of her obscenity case, after she was charged with violating the Comstock Act for distributing her sex education booklet, The Sex Side of Life: An Explanation for Young People. See Craig, John M., “‘The Sex Side of Life’: The Obscenity Case of Mary Ware Dennett,” Frontiers: A Journal of Women Studies 15 (1995): 145–66CrossRefGoogle Scholar; and Weinrib, Laura M., “The Sex Side of Civil Liberties: United States v. Dennett and the Changing Face of Free Speech,” Law and History Review 30 (2012): 325–86CrossRefGoogle Scholar.

122. Dennett, Mary Ware, Birth Control Laws, Shall We Keep Them, Change Them, or Abolish Them (New York: F. H. Hitchcock, 1926), 246Google Scholar.

123. “An Endorsement of Voluntary Parenthood—Voluntary Parenthood League,” Pamphlet, Madeline McDowell Breckinridge Papers, Special Collections, University of Kentucky.

124. Birth Control Review, February 1917, 4.

125. Birth Control Review, October 1919, 14–15.

126. “An Endorsement of Voluntary Parenthood—Voluntary Parenthood League.” By the 1930s, Dennett and Sanger's disagreement over the “doctors-only” bill would cause a nearly unbridgeable rift between the two women. Dennett would later retire from her birth control work to pursue other causes, writing to Sanger, ““Birth control has been your whole career; it has been only an incident in mine.” Mary Ware Dennett to Margaret Sanger, February 15, 1930, Mary Ware Dennett Additional Papers, 1892–1945; MC 629, Schlesinger Library, Harvard University.

127. Dennett, Birth Control Laws, 239.

128. Holmes, The Common Law, 51.

129. See McRee, Fred W., ed., Oglethorpe County, Georgia Inferior and Ordinary Court Records, 1794–1920, Volume I (Dahlonega, GA: The Author, 2011), 393–408Google Scholar.

130. See Elston v. Jasper 45 Texas 409 (1876); Philip F. Scanlan v. Thomas Cobb, Guardian 85 Ill. 296 (1877); McNett v. Cooper 13 F. 586 U.S. App (1882); Farnsworth v. Noffsinger 46 West Virginia 410 (1899); Anna Uecker v. John Zuercher 54 Texas Civ. App. 289 (1909); Miranda C. Rogers, an Incompetent Person by Robert S. Ewing, Her Guardian v. Linda Scott et al. 28 California App. 93; 151 P. 379 (1915); Adolph Achatz et al. v. Fred A. Bailey 108 Ne. 272 (1922); and Farmers National Life Insurance Company of America v. Ed Ryg and A.O. Hauge 209 Iowa 330 (1929).

131. See Mahoney v. Goepper 8 Ohio Dec. Reprint 33 (1881); Hanley v. National Loan & Investment Co. 44 West Virginia. 450 (1898); Birdsall v. Leavitt 32 Utah 136 (1907); Floyd County, Iowa v. Ernestina Wolfe, Insane, and Robert Eggert, her guardian 138 Iowa 749 (1908); Jordan v. Kirkpatrick 159 Illinois App. 231 (1911); and Herbert Gates v. Ernest H. Williams 101 New Jersey Eq. 232 (1927).  In the case of In the Matter of Harriet E. Beach, an Alleged Incompetent Person—Frederick C. Beach and Jennie Beach Gasper v. Harriet E. Beach and Henry R. Rogers 48 New York 437 (1897), Harriet Beach's children's petition to have a commission investigate her competency to manager her affairs was granted. One case was inconclusive as to the woman's sanity during the making of the contract and ordered a new trial. See William C. Boschen, as Committee of the Person and Property of Julia B. Bryant, an Incompetent Person v. Ulysses G. Stockwell 224 New York 356 (1918).

132. See William J. Slais v. Mary Slais 9 Missouri App. 96 (1880); William Gerhold v. Josephine Wyss 13 Nebraska 90; (1882); John Merritt Lewis v. Ella E. Lewis 44 Minnesota 124 (1890); J.H. Lohner v. N.J. Coldwell 15 Texas. Civ. App. 444 (1897); Smith v. Smith 131 Alabama 590 (1904); Hempel v. Hempel 174 Wisconsin 332 (1921); Kuehne v. Kuehne 185 Wisconsin 195 (1924), Robertson v. Roth 163 Minnesota 501 (1925); MacMillan v. Carlton 121 Kansas 797 (1926); and Behrmann v. Behrmann 110 Connecticut 443 (1930). In two cases, the court ruled in favor of the husband and granted his request for a divorce or annulment. See George C. Chapline v. Isaac B. Stone 77 Missouri App. 523 (1898); and Vincent v. Le Doux 146 Louisiana 144 (1919).

133. See Steinkuehler et al. v. Wempner et al. 169 Indiana 154; (1907); and Barr et al. v. Sumner et al. 183 Indiana 402 (1915).

134. See Mary A. Robinson v. Francis Adams and another, Executors 62 Maine 369 (1870); George S. Brown v. William H. Ward, William A. Fisher and Bernard Carter, Executors of Jane Bay 53 Maryland 376 (1880); In the Matter of the Estate of Mary C. Spencer, Deceased 96 California 448 (1892); Succession of Elizabeth Bey 46 Louisiana 773 (1894); Miranda J. McClary et al. v. John S. Stull et al. 44 Nebraska 175 (1895); Matter of the Will of Martha B. Halbert, Deceased 37 New York 757 (1895); Frank Schoch et al. v. Julius Schoch et al. 6 Ohio 110 (1905); Hanson v. Rhodes 87 Wash. 113 (1915); Masterson et al. v. Sheahan et al. 524 Missouri (1916); Vineland Trust Company v. Katharine Westendorf and Helen Campbell et al. 86 New Jersey 343 (1916); Laura B. Mecutchen v. Winter Gigous et al., Executors 150 Maryland 79 (1926); and In re Saunder's Estate 235 Michigan 342 (1926).

135. See Charles Orchardson v. Amelia T. Cofield et al. 171 Illinois 14 (1897); Irwin et al. v. Lattin 29 South Dakota 1 (1912); In the Matter of the Estate of Dorothy Drury Siebs—George W. Drury v. Jennie D. Moulton et al. 70 Washington 374 (1912); and Nalty's Administrators v. Franzman's Executor 221 Kentucky 709 (1927).