ABSTRACT
This chapter draws on local trial proceedings, case law and treatises, and medical and political texts to examine how the language of capacity and its deficit, variously labelled as incapacity, incompetency, unfitness, or insanity, sustained deeply entrenched inequalities. Capacity traditionally slips beneath historical radar because it relied on and created distance from other markers of exclusion and inferiority: namely race, disability, immigrant status, and sexual and gender identity. Civic capacity had eclipsed property requirements almost entirely as a requisite for exercising full citizenship rights by the end of the 1830s. Most states imported and then adapted capacity standards from English common law, most visible in the surviving records in capacity challenges in contracts and wills. The early nineteenth-century investment in the concept of civic capacity as undergirding legal and political participation also emerged from how citizens expressed their private relationships to others through contracts. The grammar of civic capacity was imbricated throughout nineteenth-century law.
