Enemy Women and the Laws of War

Women have traditionally received little attention as subjects in the Civil War and, or in war in general. In a male-dominated historiography, women exist, if at all, in passive or non-military roles that are seen to have little impact on events or outcomes. In Women’s War: Fighting and Surviving the American Civil War, award-winning author of Confederate Reckoning, Stephanie McCurry offers a very different version of warfare, one in which women are active and significant agents and integral to the story of military conflict. McCurry’s vision makes clear that the female half of the population experienced the violence and deprivations of the Civil War fully and acted in diverse ways to protect themselves and their families and confront the devastation. Their personal and intimate tales of war and woe matter and bring us a far more inclusive vision of warfare and its impact on society than any we have previously held. Here is a brief excerpt.

The idea that women “were outside war” is at least as old as Antigone in western civilization. The heroine of Sophocles’s fifth century B.C. play, Antigone was a powerful representation of women’s primal commitment to the family. They belonged to the realm of kinship, not citizenship; household, not polity; family, not state. The idea of women as the essential noncombatants has a long history. It goes back to Francisco de Vitoria in the sixteenth century, to Hugo Grotius in the seventeenth century, to Emer de Vattel in the eighteenth, and to Lieber in the nineteenth. Grotius delineated the principle clearly in his book The Laws of War and Peace. “One must take care, so far as possible, to prevent the death of innocent persons, even by accident,” he wrote, specifying women and children as those who should be spared. Emer de Vattel’s Laws of Nations distinguished between those enemies who composed the state’s human means of making war, and those beyond the power of arms-bearing, namely, “women and children,” who did not. Women were enemies, he acknowledged, but they were not to be treated “like men who bear arms, or are capable of bearing them.” The definition of noncombatant starts with those (women) who do not bear arms — and moves outward to encompass children, feeble old men, sick persons, and all unarmed people. It is a concept widely acknowledged yet rarely analyzed by scholars. Assumptions about women that undergird the pairing of “gender and innocence” in war, as Best calls it, are taken as facts of nature, stable over time, or inviolably engrained in culture.

But there is nothing self-evident about these assumptions. Although central to international law, “‘the distinction’ has always been frail,” Kinsella insists, largely because of the instability of the gender categories and discourses on which it rests. Certainly, it is not safe to assume that women’s inviolability follows from their physical weakness and incapacity to wage war. As early as the fifteenth century, Christine de Pizan reminded her readers that women not only waged war but possessed attributes (above all, intelligence) that made them worth “ten soldiers.” The rationale for “the distinction” and the logic of sex difference that underlies it has changed over time. Vitoria, for example, credited women’s blamelessness to their lack of reason. Nevertheless, the distinction always owed a great deal to the institution of marriage, and the idea that women did not “devise wars,” subject as they were to the guardianship of husbands. Women and children were innocents because they were “outside war.”

The distinction at the time of the American Civil War was deeply tied to an understanding of women’s normative status as wives and, under the law of coverture, as persons subject to the guardianship of their husbands. Coverture was a legal arrangement of great antiquity — the law of Baron and Feme (or Lord and Woman), as it was called — inherited from English common law that survived the Revolutionary War intact. It was one with profound implications for women’s political status and identity as citizens.The law put women under their husbands’ authority in the interests of marital unity. In marriage, the husband and wife became one, and that one was the husband. Matrimony established a domestic relationship of power and dependency between husband and wife, not least of all by awarding him exclusive control of her body and ownership of any property she brought into the marriage. After marriage a wife did not own her body, its labor, the wages she earned, the children she produced, or any property in her own name. Indeed, marriage was itself a form of governance — and one in which the state was greatly invested. It established husbands as household heads for purposes of taxation and political representation, while relegating women to the realm of virtual representation. After marriage, a woman’s husband became her legal and political representative. The “transformation of woman into wife made ‘citizenship’ — a public identity as a participant in public life — something close to a contradiction in terms for a married woman,” the legal historian Hendrik Hartog argues. Citizenship has been gendered since its origin, differently shaping rights and obligations for men and women. Adult white women were citizens in a constitutional sense, but nobody thought of them as such. They possessed few of the political rights that increasingly defined their male counterparts’ standing in the new republic as free men and voters, and they assumed few of the attendant obligations of citizens, including military service in defense of the state.

There was one notable exception to women’s submersion in the political identity of their husbands: as citizens, even married women had an individual obligation to refrain from treason. The conflict between this principle and every other tenet of the law of marriage was not often put to the test. In 1861, on the eve of the Civil War, the issue stood very much where it had been left by the key post-revolutionary case of Martin v. Commonwealth of Massachusetts, which concerned the state’s confiscation of the dower property of a loyalist wife. The case, which was heard in 1805, tested whether Anna Martin’s adherence to England in the Revolutionary War was an act of treason punishable by confiscation of her dower property, since Martin’s husband was an officer in the British Army. Her son wanted her property returned. The case, and verdict, revealed vividly the divergent priorities of societies in war and in peace. In a strictly legal sense the case should have been straightforward: the Massachusetts treason statute had been carefully written to include women, and the radical lawyer James Sullivan believed it should be enforced. “Cannot a feme-covert levy war?” he asked. To him the answer was clearly yes. Women were sovereign beings, accountable to their government for their own political choices, including that of loyalty and treason. But the plaintif’s lawyer, George Blake, found that claim preposterous. “What aid can they give to the enemy,” he asked contemptuously. Married women may be citizens but not citizens whose loyalty mattered. As a feme covert, a woman “had no political relation to the state any more than an alien.” Anna Martin was a married woman and, as such, her paramount obligation was to her husband. If he “commanded it, she was duty bound to obey him, by a law paramount to all other laws — the law of God.” Blake’s proved the winning argument, repeated virtually verbatim in the decision for Martin. Are we to believe that the government really intended to encourage a woman “in violation of her marriage vows, to rebel against the will of her husband?” Judge Theodore Sedgwick wrote. In 1805, with the din of war safely behind them, the answer to the question of whether a married woman could levy war in Martin v. Commonwealth was a firm, thermidorean no. At the dawn of the American republic, John Adams had justified women’s exclusion from political life on these same grounds. The government, he said, was indifferent to the matter of loyalty and treason in women.

In ways we have not always appreciated, marriage was a foundational institution of political life, structuring both the domestic polity and the rules governing the international order. Vitoria and Grotius both reasoned from that basis and so too, much later, would Francis Lieber. It was a tenet of Lieber’s liberal faith that “property and marriage” were the “first two elements of all progress and civilization,” as he once explained to John C. Calhoun. The family is crucial to the “essential order of things,” and it “cannot exist without marriage.” In 1838, already spooked by the emancipationist claims of Mary Wollstonecraft and Angelina Grimké, Lieber laid out his views about the difference of the sexes and marital unity in Manual of Political Ethics. Woman’s “true sphere is the family,” he declared, in her role as wife and mother; by the “laws of nature” she is “excluded from political life.” The “woman cannot defend the state,” as he put it in an echo of Adams.

In the nineteenth century, as the feminist legal scholar Reva B. Siegel has noted, the common law “established the family as a kind of gendered jurisdiction.” Certainly, this law of coverture was not static. In the antebellum period legal reformers pushed through married women’s property rights in a few states and the right of divorce in others. A small minority of women’s rights activists advocated for more radical political change, including women’s right to vote. Nevertheless, as Siegel has observed, statutes such as married women’s property rights did not so much destroy coverture as modernize it. After all, marriage fulfilled crucial public functions, especially the “privatiz[ation] of women’s economic dependency,” which thus relieved the government of the burden of public welfare. In that respect, its importance only increased with the emancipation of 4 million enslaved men, women, and children in the Civil War. Throughout the first republic and beyond, the parameters of female citizenship were established by the perceived necessity of marriage and its gender asymmetries between man and wife, and by the state’s commitment to upholding marriage, the law of coverture, and husbands’ authority over their wives. Women had a particular kind of citizenship and a secondhand relationship to the state.