Sixteen. E Pluribus Unum
Sixteen
E Pluribus Unum
IN THE MATTER OF SCOTT v. SCOTT
The Massachusetts Supreme Judicial Court
October 23, 1865
Henrietta refused to look across the courtroom at Denham. Just the idea of his coming all this way to increase his chances of legal victory, and not to resolve things with her (which she didn’t even want, she told herself), stirred up far too much emotion. It was most disheartening for Henrietta, usually the most calm and pragmatic member of her family, that her feelings toward Denham only grew stronger and more confused with time. She was beginning to worry that the emotions would never end, which for some people would indicate a most persistent form of affection. But Henrietta was too angry, and too betrayed, to see it that way, and chalked it up to the stress and strain of protracted litigation instead.
Two parties to a marriage, unable to agree on an old man’s gift, resorting to five old men on a bench for resolution, might be seen as reaching a new low in love. Henrietta only knew that she was justified in her cause. She had the full support of her family and friends, as well as the presence in court that day of Boston’s leading bluestockings, Girl Orator Anna Dickinson, who was back lecturing again, and William Lloyd Garrison of the weekly newspaper The Liberator , a publication newly dedicated to advancing the cause of women’s rights now that abolition had begun to take effect.
Henrietta marveled at everything that had happened in the six months since she and Charlotte had raced to the Music Hall to see the Girl Orator speak. Denham had watched Henrietta from across the hall, and she had to steel herself against the memory. That had been at the beginning, when she hadn’t wanted anyone—not even Charlie—to know. And now the entire world knew of their coupling! She could not have been less discreet if she had tried.
Graydon Saunders had advised Henrietta to let him do all the talking in court. As her counsel, he warned that men were not used to a woman’s voice dominating such a hallowed space and were inclined to consider it strident. As a man, however, Graydon was open-minded on matters of sex to an almost libertine degree. He believed women merely lacked the opportunity to fashion their public voice through practice, as the fine instrument it was. Henrietta did not protest his lawyerly advice but kept her hand to herself, ready to turn it face up at the exact right moment.
Denham’s American counsel was first to address the bench.
“In the great history of relations between our two nations, there is a natural respect and comity toward the laws of the other. Our laws differ because our countries are different. On the matter of property law, England has centuries of land and estate inheritance behind it, and an overriding need to protect future generations against any reckless or temporal dispersal. Full deference should be given to decisions on English law by its courts, as it should for those of our own fine judiciary.”
Denham’s lawyer stopped for effect, nodding obsequiously at each of the five men sitting on the elevated podium before him: associate justices Philip Mackenzie and Ezekiel Peabody to the right of Chief Justice Adam Fulbright, and associate justices Conor Langstaff and Roderick Norton to his left.
“Sir Cresswell, the Judge Ordinary of the Court for Divorce and Matrimonial Causes of England, has recently ruled judiciously and most wisely on the issue of law before us today—one that has already come before the Honorable Associate Justice Norton of this very court and was dismissed due to the very deference my client again seeks. A deference to British law in relation to the gifting of property by a resident of Britain, to a woman who married on a British-owned ship, before a British captain, to a British man, becoming in the process a citizen of Britain—property which itself originated in Britain, and was bestowed to the respondent during her habitation, albeit of short duration, with the British petitioner on British soil .”
Graydon Saunders slightly flinched with every repetition of the word British in this speech. Still, Henrietta was glad to have such a brilliant litigator on her side for the much larger battle ahead. Thousands had fought and died to abolish slavery, President Lincoln’s leadership and guidance had been lost, and there was still a long road ahead to achieve equality for everyone. Henrietta finally had an opportunity to do something about that herself: not just attend lectures and lyceums, not just listen and agree and nod her head at the words of others. She glanced back to see her father and Constance raise their interlocked hands and motion victory to her with comforting smiles.
Denham’s counsel had made a strong opening statement, for which he was known, and which he then undid by going on too long—for which he was also unfortunately known. The patience of Justice Roderick Norton, who had already devoted so much of the court’s time and attention to this very matter, appeared particularly strained. Graydon Saunders was determined to keep his own comments as brief as possible as he stood up next to address the court.
“Your Honors, the respondent is not British by marriage or otherwise. Congress has not yet addressed the issue of citizenship upon marriage to a foreigner, and the case law on this point is so varied as to be rendered useless. Furthermore, under English common law, foreign-born individuals cannot become citizens there through any process or ceremony—nor can those born in England ever be stripped of their citizenship. Until such time as either country might change those laws, my client was, is, and shall always be, a most esteemed daughter of Boston.”
“Your Honors,” interjected Denham’s counsel, “British Parliament is already readying a bill as we speak, one that will strip women who marry foreign men of their citizenship, showing a willingness to change their own laws—”
“That’s neither here nor there,” Saunders broke in. “Last time I checked, we were in America.”
“You raised the matter, counsellor.”
“Gentlemen,” the chief justice called down from the podium where he and the four associate justices sat, stone-faced.
The hearing proceeded in this manner for nearly two hours until a break was called for luncheon. A clerk immediately ran up to deliver a message to Saunders, who read it quickly before crumpling it in his hand. “Mrs. Scott,” he whispered, “opposing counsel wants to meet with me. But if you’ve any quibble…”
Henrietta shook her head, and Charlotte rushed up to join her as Saunders left.
“Denham just scurried out, too. Harry, what are you thinking?” Charlotte asked—Charlotte, who looked so pink and flushed with love. That is what love should do to you , Henrietta was thinking as she helplessly shrugged her response. You shouldn’t feel sick with it, or go to court to enforce it— or run away.
Saunders returned to the courtroom after a lengthy absence, followed by opposing counsel. Henrietta was surprised to see Denham enter a few seconds later. She had resolved not to look over at him, but it was too late. Seeing into his eyes—seeing up close all the confusion and anger and hurt—she felt a weird, sudden pang of worry for him, the aggressor in all this. He looked so worn down by it all—was he eating enough? Sleeping? Henrietta shook her head as if to stop her own mind, then turned to her counsel. “Mr. Saunders, what is your opinion so far?”
Graydon finished writing in the notebook he carried everywhere, just like Denham; for all the lawyer’s ease of manner and chaotic desk, he was deceptively diligent. “I think that boy’s mighty confused over you .” He closed the notebook and laughed. “Now that there’s none of my business—my business is as your lawyer. I tell ya, those judges are hell-bent on the notion of comity. Their respect for another judge, no matter his kin or county, is our greatest obstacle.”
“Gray,” Connie whispered from her seat as he leaned back familiarly to hear her, “my fellow radicals believe a decision in our favor could affect lasting legislative change both here and in England.”
Saunders nodded. “We’ve a real opportunity here today, we do indeed. I aim to persuade the court that the very essence of life, liberty, and freedom for all is at stake. The more we can ingrain women in the constitution, the more rights we can get ’em.”
Henrietta was paying close attention to what Connie and Saunders were saying. Her father and Nash could not offer her any such guidance or warning, out of respect for the proceedings. Henrietta recalled the words of the Girl Orator—not just the words, but the rhythm and cadence of what she had said those many months ago at the Music Hall, the day it all began:
The widows who see the homes they have helped to earn, the lands they have helped to buy, the very house with which they have been served their household work—swept away from them by an unjust decision of a dying husband, and a wicked law…
Are these duly represented and have they all the rights they want already?
Henrietta finally glanced across the courtroom at Denham, who had just declined to take the stand on the advice of his counsel. He looked unfit to take action of any kind—quite unlike the young, strapping, confident man with whom she had fallen in love. It would be so easy, as a young woman, to decline to testify as well—and completely unexpected if she were to stand up and speak for herself. At this point, Charlotte certainly would do so—she would fight with all her passion of spirit and stubborn optimism. Today she claimed to be the happiest woman in the world as a result.
Henrietta took a breath and stood up. She might be about to speak in court for herself, but she would strike the blow for all women.
“If it please the court, I should like to say something.”
The entire room fell silent as the black-robed men on the podium stared back at her in shock. Always happy to swim against the tide, Saunders said nothing, giving her a wink and an encouraging nod instead.
“I was not aware, Your Honors, that in choosing to marry the petitioner”—for she refused to say his name even in such a forum as this—“my own citizenship in the land of my birth could be threatened. In retrospect, and in light of the petitioner’s ensuing behavior, I assure you that I would have given my citizenship in this great country far greater precedence over that decision to wed.”
At this very pointed barb, Henrietta heard laughter from the crowded courtroom, as well as angry muttering among men who could only sit and listen to her for once. It felt amazing to have the attention of the room, just like that time she had spoken up in Nash’s Harvard lecture on Austen and rhetoric.
“As the court, however, is aware, my ability to obtain a divorce from the petitioner rests on the impossibly high bar of proving physical injury or harm. To lose both my citizenship and my freedom seems an equally high price to pay for the mistake of a moment.”
Henrietta noticed Justice Norton dismissively avert his head. It was probably a good thing he had not given himself jurisdiction in her own suit for divorce. She gave silent thanks for his punting the entire matter back to England, for all the trouble it had since caused.
“I value marriage as an institution most highly, Your Honors. Highly enough to be willing to make over my entire life to satisfy its exchange of vows—highly enough that I would never seek to void my marriage by claiming that it had never happened. How could I attempt to negate the very genuine and real act of a moment? We cannot change the past—for that very reason, we need a law that can bend to the future. The fine men of Massachusetts who sit in public office did that very thing, in voting on the Married Women’s Property Act these ten years past. They voted for change—voted for increased liberty for married women, at least when it comes to property. The kind of liberty that, in making each of us better off, is to the betterment of all.
“We have just endured one war, to realize such freedom for our country’s men and women of color. Black men shall have the vote, God willing—but such participation in the lawmaking of our country should be everyone’s due. Only then will we have a country that can hold us all within it, and thereby keep us truly united.
“What, you may ask, does this have to do with the issue before the court? What does a tenderhearted gesture by a dying man mean in the grand scheme of things? I can only say, far more than we today can comprehend. That is the challenge for the law—to comprehend all that might happen, now and tomorrow. Our lack of comprehension or foresight today should never be used as a weapon against positive change. Our development, individually and societally, demands change. I beseech the justices of this supreme judicial court to consider the plight of the women in this state, at this time in history, and to uphold and affirm the evolution of their rights, and mine, such as our lawmakers have seen fit to issue and without undue regard to the lesser rights of another country. Countries stretch and bend their own laws for their own reasons—that strikes me as the very reason why this court should not neglect the laws of its sovereignty in preference to those of another.
“Finally, I am most grateful for the significant time and attention that has been paid by the courts to this matter, and to such an unprecedented and protracted extent. I earnestly wish to be the best citizen of this state and country that I can, to move forward in a positive direction and not be imprisoned by the past, and to protect the gifts my friends and loved ones have bestowed on me not as a wife, not as merely a part of my husband, but as myself . The Henrietta that they know and care for—the woman who inspired such generosity and trust from them in turn.
“To betray that trust by depriving me of such gifts does not respect the wishes of the great man who bequeathed them to me. To betray that trust also betrays him. It does not lend itself to the positive development of anyone, man or woman. As John Stuart Mill wrote, this development is critical to liberty for all, for those who give, and for those who receive. Thank you.”
Such a sudden uproar burst forth from the crowd at these last two words that Henrietta barely heard them. There was much shouting and protestation from some quarters, but, as is often the way with any critical juncture, the voices for change were loudest of all. Chief Justice Fulbright announced the retirement of the court to consider the issues of law that had been raised, then stepped down from the podium alongside his associate justices Mackenzie, Peabody, Langstaff, and Norton. All five men departed the courtroom, one after the other, heads bowed as if to indicate the majesty and significance of the task now before them.
“My dear, you were marvelous.” Connie beamed at Henrietta as she sat down, overcome, while Charlotte rushed forward to hug her.
“Peabody and Norton are our blockers,” Saunders whispered to Henrietta, his mind always strategizing. She was still being hugged by Charlie as he spoke, still felt flushed from the effect of her words on so many.
“Mackenzie’s a slippery fella when it comes to any deciding vote,” Saunders continued. “He can lean so literally on the law as to slide through to the opposite end of its intent altogether. Sometimes that can work in one’s favor—sometimes not.” He looked over and shrugged at her father and Connie, then turned back. “Mrs. Scott, I must say, you would make a fine lawyer—if only our fine state, or any other, would relent and allow for women at its bar. England, too, for that matter, should you end up living there.…”
But Henrietta did not hear his last two words, either. She was tired—tired of not being allowed to try for any kind of profession, tired of being forced to stay in a moribund marriage. A most painful distinction between principle and practice indeed, yet one so heartily embraced by the men in power. Meanwhile, life was going on without her, while she sat mired in the business of the courts, the very kind of forum whose participation was denied her. When would her own life finally, and fully, be hers?