SURNAMES AND WOMEN’S RIGHTS IN THE 19TH CENTURY IN TENNESSEE, PART II- THE 19TH CENTURY WOMEN- CONTINUED FROM LAST ISSUE
May 15, 1991
SURNAMES AND WOMEN’S RIGHTS IN THE 19TH CENTURY IN TENNESSEE
PART II- THE 19TH CENTURY WOMEN- CONTINUED FROM LAST ISSUE
By: John L. Kiener, General Sessions Judge, Washington County
A feme sole is a single woman, and if an adult she was free to do most of the legal acts for which married women found themselves under a legal disability in the 19th Century. However, since most women married, I would appreciate it if when you find legal acts being undertaken by single women in your genealogical research, you would let me know.
Traditionally, I am aware that there have been several exceptions in common law regarding women, as for example, “Feme sole trader” defined in Black’s Law Dictionary (West Publishing Company, 5th Edition, St. Paul, Minnesota, 1979) as follows: “In old English law, a married woman who, by the custom of London, trades on her own account, independently of her husband; so-called because, with respect to her trading, she is the same as a feme sole. The term is applied also to women deserted by their husbands who do business as feme sole.”
If you find examples of women in femes sole in Tennessee, please let me know. It is my opinion, that there is a lot of research that could be done in this area of the law. I know that my daughter, Susan, has enjoyed taking several courses in Women’s Studies at the University of Tennessee. Probably, Washington County has records that should be examined for evidence of business, land and other transactions undertaken by women in their own right in the 19th Century.
But now it is time to get back to Rose Palermo and her difficulty with a surname different than her husband’s. In his examination of English law, Justice Henry concluded that in England “ . . . the assumption by a woman of her husband’s surname on marriage is a matter of custom and not of law (emphasis supplied).”
Turning then to American law, the opinion reads: “Virtually all cases holding that a woman changes her name by marriage are bottomed on a faulty construction of Chapman v. Phoenix National Bank of N.Y., 85 New York 437(1881). This was a case wherein a woman sought to have a confiscation proceeding set aside because it was brought in her maiden name, her insistence being that it was invalid for lack of notice. Chapman was a North Carolina school teacher. She had purchased stock in her maiden name. Dividends were paid to her until January 1, 1861. Thereafter, the War between the States ensued, but Chapman took no part in what the New York Court injudiciously and with palpable historic ignorance called ‘the rebellion.’ In February 1864 the Bank was notified that her stock and all accrued dividends were seized. Thereafter the United States Attorney filed a libel alleging that the stock belonged to ‘a rebel’ and had been bought and used for the purpose of aiding, abetting and promoting ‘insurrection and rebellion.”
Henry’s decision continues: “This case, in current parlance, probably should be denoted as “The Case of the Busy Lady.’ It was alleged that she had acted as an officer of the rebel army and navy, as a member of the Confederate Congress, as a judge, commissioner and agent of the Confederate States, and as a member of a convention and judge of some one of the confederate States. All these allegations were false.”
“Chapman, having no notice of the ensuing attachment and seizure, did not show up in court and default judgment was entered. When she learned of this action, a year later, she brought suit.”
“The court denounced the sufficiency of the notice on numerous grounds. Among other things, it was held that there was no possibility of her having received the notice and she was ‘within the Confederate lines’ and ‘could not have crossed the lines to respond thereto.’ To bolster the court’s holding that she was ‘in no way brought into court,’ the effect of the stock being held in the maiden name of a married woman was considered. In this connection the court said: “For several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband’s surname. That becomes her legal name, and she ceases to be known by her maiden name. By that name she must sue and be sued, make and take grants and execute all legal documents. Her maiden, surname is absolutely lost, and she ceases to be known thereby. (emphasis supplied)” . “This dictum was a triumph for this lady, but a travesty and a tragedy for her sex.”
After an analysis that runs four additional pages, the Supreme Court opinion says: “Based upon an intensive investigation into the law from which we distill the cases herein cited – and upon excellent and elaborate briefs submitted by counsel – we conclude that at the common law, as of the time of the separation of the colonies, a woman acquired a new name by repute and that her name was thus changed in fact and not in law. The name change came as a result of custom and usage. It was windblown across the Atlantic Ocean in the same form and has become a universal practice in this country. But it has never had the force of law in Tennessee either under our common law or statues.”
Getting right to the point in the decision announced by the Supreme Court in 1975, Judge Henry held: “ . . . we hold that in this jurisdiction a woman, upon marriage, has a freedom of choice. She may elect to retain her own surname or she may adopt the surname of her husband. The choice is hers.”
“We hold that a person’s legal name is that given at birth, or as voluntarily changed by either spouse at the time of marriage, or as changed by affirmative acts as provided under the Constitution and laws of the State of Tennessee. So long as a person’s name remains constant and consistent, and unless and until changed in the prescribed manner, and absent any fraudulent or legally impermissible intent, the State has no legitimate concern.”
“We hold that appellee’s legal name is Rosary T. Palermo.”
Thus, did the lady win her case. As a genealogist, you should now be aware that a married woman may retain her maiden name. Among current members of the Washington County bar, several ladies who are married practice law under their maiden name, as does a woman Circuit Court Judge.
When doing research today, surname tracing will become a little more involved – all because women in Tennessee are not treated in the same manner as they were treated in the 19th Century. With that, I wish you successful hunting when checking those feminine ancestral lines in the Washington County Court House.