But she did not trust him. A “suitable” home could well mean another asylum, no matter the verdict of the court in Illinois.
Now living with the Hanfords, Elizabeth tried to get her head around what had happened. She felt she had to “grope about in midnight darkness, unaided and alone, except as her own instincts pointed out to her the way to live upon her own vitality.”2
Luckily for Elizabeth, as Duncanson had so recently attested, her own vitality was pretty damn impressive. She soon discovered that Theophilus had not taken the furniture with him; all her belongings were stored at the Doles’ house in Manteno. She immediately made contact with her Kankakee lawyers. She’d paid for that furniture herself, with money given to her by her father. She felt Theophilus had no claim to it and therefore wanted to take legal action.
“Can I replevy it as stolen property?”3 she asked the attorneys briskly. A replevy was a writ that enabled a property owner to reclaim goods.
But the lawyers shook their heads. At first, Elizabeth feared that her time in the asylum had invalidated her legal status, despite the recent verdict, but the situation was actually worse.
“You cannot replevy anything, for you are a married woman,” her attorneys explained, “and a married woman has no legal existence, unless she holds property independent of her husband… This is not your case… Your husband has a legal right to all your common property—you have not even a right to the hat on your head!”
“Why?” asked Elizabeth, outraged. “I have bought and paid for it with my own money.”
“That is of no consequence—you can hold nothing, as you are nothing and nobody in law.”
It was another cruel aspect of the legal framework that had seen Elizabeth committed to the asylum in the first place, under which married women had no legal identities of their own. They were denied all rights, because how could you grant rights to what was no more than a shadow: the silent, unseen shadow of her spouse? Married women had no rights to property or even their own wages; their husbands owned it all. It was something known as coverture: a law inherited from England, dating back to the 1100s.
Ironically, many states ranked married women and insane patients together in terms of their legal rights. Elizabeth had cleared one hurdle, but the other was not so easily set aside. She could protest all she liked that such a law “annihilates all my rights as a human being,”4 and that “I am not a chattel…but a being, after I am married, as well as before,”5 but it didn’t change the facts. She was merely an appendage to her husband, legally, and had no voice to speak.
“I…appealed to the laws for protection, as a married woman,” Elizabeth wrote in frustration, “when, alas! I found I had no laws to appeal to.”6
But her property was one thing; more pressing were her concerns about her family. With “the most intense anxiety,”7 she asked the lawyers, “How is it with my children? Can I not have children protected to me?”
“No,” they replied shortly, albeit sympathetically, “the children are all the husband’s after the tender age.” At that time, the tender age was defined by different judges in different ways; to some, the cutoff point was seven years or puberty, but to others it simply meant those being breastfed, especially with regard to male children.
Elizabeth felt herself deflate. “[I have] no ray of hope from [Theophilus] or the law, that I shall ever see them more.”8
But legally, there was nothing she could do. It was an outrage. She was angry at Theophilus, but he had, in fact, only treated her as the law allowed him to. “And can one be prosecuted for doing a legal act?” she wrote. “Nay—verily—no law can reach him.”9
All she wanted was legal protection from her husband’s actions, but her lawyers informed her that in law, Theophilus was her only protector. It didn’t matter that he’d turned on her. Because she’d given herself to him twenty-five years before, he held entire power over her—and would for the rest of her life.
“On the principle of common law,” they explained, “whatever is yours is his—your property is his—your earnings are his—your children are his—and you are his.”10
Her lawyers could offer only one slim branch of hope. “You can have no legal right to your own children,” they said, “unless you get a divorce.”11
But it was a poisoned chalice. Even if Elizabeth opted for a divorce, there was no guarantee she would win custody. In reality, she was likely not to. Although she had at least recently been found sane, she had little else to commend her: no earnings, no home, and, most crucially of all, no male protector. “The idea of a woman alone with legal custody over her children, without the support of a paternal male,” wrote an expert in the field, “would…have been almost unimaginable.”12