1866 court case disproves feminist accusations

Every time a supposed historian talks about how women had no rights in 19th century America, I wish the educated class of propagandists would just take a look at laws and court cases in the backward Southern and Western states.

What those propagandists mean is that in the states that mattered (the Northeast ones), women’s rights were quite limited. In most of the backward states, though, women had the same property rights as did men, could and did file for divorce, and often listed personal property before agreeing to marriage.

In Red River County Texas in 1866 occurred a case that encompasses all of the rights women are supposed not to have had. On Nov. 15, 1866, a man who had been gone from home in Confederate service, filed for divorce, claiming that while he was gone, his wife went to live with another man and had a child by that other man.

Showing legal and moral statements were hardly the province for men only, the wife filed six days later filed her own suit.

Reading papers in Sixth District Court records, one realizes neither Thomas J. nor his wife Hester Ann lacking in accusatory nature.

Thomas and Hester were married July 1, 1847. He claimed theirs was a good marriage, but Hester said different in her suit.

In 1863, Thomas answered the call, entering “the military service of the Confederate States and so continued serving said forces until the close of the existing war.” When Thomas returned home in spring 1865, he discovered a new addition to the household, Hester having delivered a baby that February.

Thomas claimed his investigation of the matter showed that “while your petitioner was serving with his command on the Rio Grande in this state,” Hester “committed and was taken in the act of adultery with (a named man).” And, Thomas said, the affair “was kept up until the year 1865.”

Thomas also said he “has not admitted the said Hester to his conjugal society or embrace and … he has not carnally known any other woman since this marriage.”

Thomas asked for dissolution of the marriage, custody of his and Hester’s three children (ages 16, 14 and 8) and division of community property. Hester, he said, was “not a fit person to have control or education of said children.” He also said Hester “has separate property of the value of ten thousand dollars.” Their community property was less than that, he said.

In two pages, Thomas’s suit spells out his accusations; Hester’s Nov. 21, 1866, suit fills seven pages. Hester says she and Thomas were married “__ day of __ 1848.” Shortly afterward, she discovered Thomas possessed of “quarrelsome disposition.” As a good wife and “desiring to discharge her duties, (she) made every effort to overcome his violent disposition.”

“His whole nature seemed to be changed,” she claimed. “He became a tyrant.” Thomas also used abusive language toward Hester: “’You damned old bitch, you damned hellion,’ and other language too indecent and disrespectful to be written.”

In 1861, Hester claimed, Thomas left her “with several little children” and “encumbered with debts.” She discharged all the debts which came to her knowledge. Two years later, Thomas returned “and resumed his former treatment of her.”

Matters came to a head in 1866. That year, Hester said, her husband “attacked her person and threatened to murder her. She lives in dread of her life.”

In her petition, Hester lists community property of 500 acres, of which 30-40 acres were in cultivation; 13 horses; 50 head of cattle; 30 head of hogs; a small lot of household items and furniture; and farming implements, of a total value of $2,000. She asked for division of community property and custody of her three children by Thomas. She made no mention of her other child, nor of the $10,000 in personal property Thomas said she had.

In court records, Thomas’s suit never made the court docket, nor is there evidence that he dropped his suit.

Hester’s case came before the district judge on April 1, 1867. Court records say that “at the suggestion of the plaintiff’s attorney,” the case should be dismissed at Hester’s cost.

“It is ordered by the court,” records state, “that the Defendant have and recover of the Plaintiff all the costs in this behalf expended.”

So what happened? Did Hester and Thomas settle their dispute? Did they decide to go their separate ways without divorce? Did they decide division of 500 acres and livestock would leave both in reduced circumstances? Records do not say.