Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity

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Angela Fernandez

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Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital

Unity∗∗∗

I. Introduction

Tapping Reeve wrote in his treatise on the law of husband and wife, Baron and Femme (1816),

that husband and wife were not one person in law. His rejection of Blackstone’s maxim is not as

well-known as it should be. Yet, his position was not idiosyncratic, as it was also adopted by

Nathan Dane in his important General Abridgment and Digest of American Law (1823).

However, James Kent did not follow it in his Commentaries on American Law (1826-30). This paper explores whether Dane’s agreement with Reeve in rebelling against marital unity was based on their New England background (Reeve lived in Connecticut and Dane in

Massachusetts), which Kent (from New York) simply did not share. Reeve, Dane, and Kent

were all “Fading Federalists,” using their legal expertise and their position as law book writers

and law teachers as a way to continue to exert influence lost to them in the political world. They

turned to the creation of an American common law as a way to continue to have influence on

what America would become. Like Reeve, Dane was involved in various moral campaigns,

including the temperance movement, which was an early kind of women’s movement. He was

also religious like Reeve and against slavery -- according to some, Dane was responsible for the

anti-slavery clause in the North West Ordinance. Kent was not interested in these causes or

interests and, indeed, considered those who were to be fanatics or zealots. This helps explain

why, when he wrote about married women he was inclined to choose the traditional English

∗ Angela Fernandez, Associate Professor, Faculty of Law, University of Toronto ([email protected])

1 approach, Coke and Blackstone, over the indigenous position that jurists in New England were

cultivating that sought to emphasize the rights of married women.

II. New England

Tapping Reeve wrote in his 1816 treatise on the law of husband and wife that “[t]he law does

not view the husband and wife as one person.”1 He pointed to a number of examples to support his rejection of “the maxim that the wife has no existence during the coverture, and is destitute of volition.” A married woman could exercise a “naked authority,” that is to say act as an agent for the husband for the benefit of the husband. She could be a guardian and give a receipt.2 “[W]e find her often an active agent, executing powers, conveying land, suing with her husband, and liable to be sued with him, and liable to punishment for crimes.”3 Two chapters of his treatise,

Baron and Femme, dealt with a married woman’s power to will real estate separate to her.4 Case law in Connecticut had gone against him on one-person.5 However, he managed to convince his students to pass a statute empowering married women to make a will in 1809.6

1 Tapping Reeve, The Law of Baron and Femme; of Parent and Child; of Guardian and Ward; of Master and Servant; and of the Powers of Courts of Chancery (New Haven, CT.: Oliver Steele, 1816), 89.

2 Ibid., 121.

3 Ibid., 130.

4 See ibid., 137-60.

5 See Dibble v Hutton (1804) 1 Day 221 (Ct. Sup. Ct. Errors) 235 (“By the common law, the husband and wife are considered as one person in law, the existence of the wife being merged in that of the husband, or suspended during the coverture”).

6 See Angela Fernandez, “Tapping Reeve, Coverture and America’s First Legal Treatise,” in Angela Fernandez & Markus D. Dubber eds., Law Books in Action: Essays on the Anglo-American Legal Treatise (forthcoming Hart, April 2012), 63-81.

2 Nathan Dane included a section on husband and wife in his General Abridgement and Digest of American Law (1823) and in it he wrote the following:

The old maxim, once so general and unyielding, that the wife’s existence was

incorporated in that of her husband’s, or suspended during the coverture; that she had no

will of her own, no volition, no self control, and no power to act but as his servant or

agent, now seems almost done away with … The maxim, they are one person in law,

according to Blackstone, and other eminent law writers in England … has been almost

done away with in time and practice; for numerous are the cases in which baron & feme

are viewed in courts of law, as well as of equity, as two distinct persons.7

Dane gave even better examples than Reeve did of instances in which it made no sense to think of husband and wife as one person. First, a deed or devise of land vests in her (with usufruct to him), “hence as to real estate they are clearly two distinct persons in law.”8 Secondly, in equity

“they are generally distinct persons, and may contract with each other in many cases, and especially with the formality of a trustee.”9 Third, “[i]f they agree to live separate, this contract between them is recognized in law as well as in equity” and both have to agree to cohabit again.10 Fourth, “[i]n equity she may sue him by her prochain ami” (e.g. for alimony).11 And, fifth and sixth, Dane pointed out, as Reeve did, that “in case of crimes, they are two distinct

7 Nathan Dane, General Abridgment and Digest of American Law, vol. 1 (1823), 330-31.

8 Ibid., 332.

9 Ibid. 332-33.

10 Ibid., 333.

11 Ibid. 3 persons” and a wife may be her husband’s attorney.12 Consider these other examples: wife- beating was not self-abuse, murdering one’s wife was not suicide, sex was not masturbation. 13

Dane also took up the point about a married woman making a will. In England a statute of

Henry VIII stated that married women could not make wills of land; personal property she could

will only with her husband’s consent as all her personal property became his upon marriage

(except her paraphernalia). Dane insisted, as Reeve did, that the statute of Henry VIII was

“never adopted here.”14 Even for a conveyance, Dane argued that “by American law, in

Massachusetts and Connecticut, if not all the states” allowing a married women to convey with

the husband (her conveying her estate, the inheritance that has vested in her, and he conveying

his life interest in that estate) “unquestionably implies she is of a capacity to do it; the maxim she

has no existence during the coverture, and no will, has no foundation; for if so, she could not

execute a naked power.” 15 Even in English law, the examination for conveyances of her land

acknowledged that she has a will that must consent, as the examination is supposed to be for

making sure she does act freely. 16 Dane wrote:

Enough has been said in this Chapter to shew the notion a wife has no will, is a mere

fiction, almost without foundation in fact. She is, in no sense, an idiot, or non compos ;

nor does the criminal law view her as one, in any case; and we have already seen, in

scores of cases, even the laws of property view her as able to convey or devise, and even

12 Ibid.

13 Hendrik Hartog, Man and Wife in America: A History (Cambridge MA, Harvard University Press, 2002), 107.

14 Dane, Digest , 373.

15 Ibid., 370.

16 Ibid., 371.

alone, where her husband has no interest affected thereby, as where she executes a power

as trustee, has separate property, and is separated by judicial sentence, or has a husband

[who has] excluded her country. 17

Enough has been said here to show that both of these New England jurists categorically rejected one-person-in-law as a true legal statement.

III. New York

James Kent began his section on husband and wife in his famous Commentaries with the

following statement, cited to Coke (rather than Blackstone): “The legal effects of marriage, are

generally deducible from the principle of the common law, by which the husband and wife are

regarded as one person, and her legal existence and authority in a degree lost or suspended,

during the continuance of the marital union.”18 Not only did Kent call one-person a principle , as

opposed to what Reeve and Dane called it, a maxim , it is something from which he claimed that

one could deduce the legal effects of marriage. Where a maxim was something flexible and

malleable that one could and perhaps should move safely away from, a principle that was so

scientifically useful could not be heedlessly discarded. It was something legitimate, profound,

and fundamental, deserving of recognition and respect. 19

There was no separate Chancery Court in either Connecticut or Massachusetts. However,

New York like England had such a separate court. This probably made it easier and in some

17 Ibid.

18 James Kent, Commentaries on American Law , vol. 1 (1827), 109.

19 Thanks to Markus Dubber for making this point.

ways more natural, institutionally speaking, for Kent to make statements about what the law was at common law, which could then be qualified with exceptions about what was nonetheless available at equity. Mary Beard’s point in Woman as Force in History was of course that

Blackstone had not done this, making categorical statements about the position of married women at law without pointing out the exceptions in equity. 20 Kent did exactly the same thing

despite the fact that he himself had been Chancellor for nine years and would have known better

than anyone the substance and weight of those exceptions. However, it is not surprising to see

Kent following the (partial-view) English approach, as he was generally very pro-English in the

Commentaries .21 New England, by contrast, came from a Puritan past that was anti-English.

Cornelia Hughes Dayton has shown in her work on the New Haven Colony and Connecticut

that full-blooded “Puritan Jurisprudence” was gone by 1750. Features of what she termed “a

Calvinist style of patriarchy” such as rejection of a double standard for sexual misconduct did

not survive the eighteenth century.22 Nonetheless, there were residual features that can help explain differences between Kent and the New Englanders on this issue of rebellion on one- person. So, for instance, adultery was a very central concern to the New Englanders, whereas

Kent took a much more cavalier attitude towards it.

20 See Mary Beard, Woman as Force in History: A Study in Traditions and Realities (New York: Macmillan, 1946).

21 See e.g. Kent’s Commentaries , 102-3 (“[t]he weight of judicial authority appears, however, to be decidedly in favour of the binding force and universal application of the doctrine of English law”).

22 See Cornelia Hughes Dayton, Women Before the Bar: Gender, Law, and Society in Connecticut, 1639-1789 (Chapel Hill: University of North Carolina Press, 1995); Cornelia Hughes Dayton, “Was There a Calvinist Type of Patriarchy? New Haven Colony Reconsidered in the Early Modern Context” in Christopher L. Tomlins & Bruce H. Mann eds., The Many Legalities of Early America (Chapel Hill: University of North Carolina Press, 2001), 337-56.

Kent thought that allowing total divorce for adultery was a bad idea, preferring the English approach of a partial divorce or separation from bed and board. Connecticut at least never allowed separation from bead and board. “Lone husbands or wives, it was believed, were subject to intense temptations to enter into extramarital sexual liaisons – sins that would cause God to frown on New England’s holy experiment.” 23 They took seriously, in other words, the biblical injunction: “To avoide fornication, let everie man have his wife, and let everie woman have her owne husband.” 24 Connecticut’s divorce policy was the most liberal in New England and the

English-speaking world and access to total divorce on the grounds of desertion and adultery was

relatively commonplace. 25

Kent wrote in a distinctly anti-Puritan voice on the topic of adultery that the adultery of the husband “ought not to be noticed, or made subject to the same animadversion as that of the wife,” noting that Montesquieu, Pothier and Taylor in his Elements of the Law “all insist, that the cases of husband and wife ought to be distinguished, and that the violation of the marriage vow, on the part of the wife, is the most mischievous, and the prosecution ought to be confined to the offence on her part.” 26 This double standard was certainly present in Puritan Jurisprudence.

Connecticut used the traditional definition of adultery from the Old Testament as an act

committed with a married woman, thereby exempting sex married men had with single or

23 Women Before the Bar , 116.

24 1 Corinthians 7:2, quoted in ibid., 119.

25 Ibid., 112. The situation in Massachusetts was different, where it was more English and separation from bed and board was available. England and Massachusetts each allowed fewer than 150 divorces between 1670 and 1799; Connecticut magistrates granted nearly 1000. See ibid., 112.

26 Kent’s Commentaries , 89.

widowed women. 27 However, a married man who committed the offence with a married women could expect as harsh and perhaps more harsh response from authorities, at least in the earlier period. There would have been hardly a trace of this kind of opposition to the double standard by the nineteenth century in the population at large; however, religious evangelical types like

Reeve and Dane would still have been concerned to retain this more egalitarian and moralistic strain in their jurisprudence and would never have written about adultery in the way that Kent did, namely, that it was fine for men and problematic only for women. 28 Indeed, Reeve expressly rejected the definition of adultery as an offence that could only be committed by or with a married woman. 29

Yet the harshness towards women, exemplified most famously in Puritan New England’s

witchcraft trials and scenarios such as the one portrayed by Nathaniel Hawthorne in The Scarlet

Letter had a point. According to Dane, one of the bad effects of “the old fiction, a wife has no

existence and no will” was evident in “the old action of trepass vi et armis for criminal

conversion with the plt’s wife.” In this action, the defendant’s connection to the plaintiff’s wife

was presumed to be of violence and force since she was presumed to be “so very destitute of a

will, that she could not consent to commit adultery.” Yet, under the criminal law, she could be

adjudged to have “wittingly and willingly receive[d] him [the defendant] to her bed, and is as

27 Women Before the Bar , 32.

28 See ibid., 215-16 (noting that the protests of mid-eighteenth-century evangelicals over the double standard and general declension in morals was taken up later by female moral reformers of the 1820s and 1830s).

29 See Reeve, Baron and Femme , 207 (“In the case of adultery, it may be proper to remark, that it is the adultery known to the common law, as understood in the spiritual courts in England, which furnished cause for divorce; which is, where a married person has illicit commerce with any person. It is not material whether the person with whom the offence be committed, is single or married; which is a more extensive offence than the adultery punished by our statute [i.e. in Connecticut], which does not punish the offence of illicit commerce as adultery, unless committed by or with a married woman”).

guilty as he is.”30 Women could indeed consent to the commission of adultery, Dane was keen

to emphasize.

Kent’s objection to the use of adultery as a ground of total divorce, rather than using the

English system of separation from bed and board, was that it led to “fraud and corruption.” 31

This is because, as Kent explained, the legislature in 1787 authorized the Court of Chancery to pronounce total divorces, in the case of adultery upon a bill filed by the aggrieved party. 32 As

Chancellor, he would have seen a number of cases in which, as he put it, “the sin of adultery was

sometimes committed on the part of the husband, for the very purpose of the divorce.” 33 Given how he felt about men committing adultery, namely, that it was not something the law should take notice of, the objection here was less the one the New Englanders would have had about the commission of the sin and was likely related to sanctioning the practice of committing a fraud on the court over which he presided. Adultery, unless married women were committing it, was not of great concern in Kent’s eyes. He wrote that “[a]ll Christian states favour the perpetuity of marriage, and [with] suspicion and alarm watch every step to dissolve it.” 34 Although a great

admirer of the Romans, he thought they had erred to “permit[ing] the liberty of divorce to a most

injurious and shameful degree” by allowing either party to renounce the marriage “at pleasure.” 35

IV. Why?

30 Dane, Digest , 336-37.

31 Kent’s Commentaries , 88.

32 Ibid., 82.

33 Ibid., 88 n.g.

34 Ibid., 97.

35 Ibid., 83.

An important question here is why Reeve and Dane rebelled on one-person-in-law. The

answer I think is that both Reeve and Dane were embedded in a New England in which there was

a nascent “women’s rights” voice. Both were both associated with elite and middle class

women’s initiatives. In Reeve’s case, revivals, in Dane’s case, temperance, and both of them

were against slavery. So, for instance, Lyman Beecher was Reeve’s friend and talked in a

sermon after Reeve’s death about how important Reeve was to “New Divinity” and the revivals

and conversion experiences of people in Litchfield during “the Second Great Awakening.” 36

Reeve’s first wife, Sally Edwards Burr, was a granddaughter of Jonathan Edwards, the minister

who led “the First Great Awakening.” Her brother was the famous Aaron Burr and their father,

Aaron Burr Senior, was the president of the “New Light” college in New Jersey that would become Princeton. Her mother, Esther Edwards Burr was famous for her piety. 37 Beecher’s

mentor at Yale College was Timothy Dwight, whose mother was another of Edwards’ daughters.

Reeve was an active member of the Domestic Missionary Society, the Connecticut Bible

Society, and the New England Tract Society. 38 He was also the chairman of a group Beecher planned “for the Suppression of Vice and Promotion of good Morals,” run by Reeve’s second

wife, Betsey. 39 After his post in Litchfield, Beecher went to Boston and became very involved with the Temperance Movement. One of his daughters, Catherine Beecher ran a host of revival

36 Lyman Beecher, “Memoir of the Honourable Tapping Reeve,” Christian Spectator (Feb., 1827): 62-71, 66-67.

37 See Suzanne Geissler, Jonathan Edwards to Aaron Burr, Jr.: From the Great Awakening to Democratic Politics (New York & Toronto: Edwin Mellen Press, 1981), 101-102. See also The Journal of Esther Edwards Burr, 1754- 1757 , Carol F. Karlsen and Laurie Crumpacker eds. (New Haven: Yale University Press, 1984).

38 See Jacqueline Calder, Life and Times of Tapping Reeve and his Law School (Paper prepared pursuant to a Master’s Degree, University of Vermont & Litchfield Historical Society Internship, 1978), 46 (copies available at the Litchfield Historical Society and Yale Law School Library).

39 See Autobiography of Lyman Beecher , Barbara M. Cross ed., vol. 1 (Cambridge: Harvard University Press, 1961), 186-88.

activities out of her house and school for girls in Hartford, and she also wrote a treatise on domesticity and how to be a good wife and mother.40 Another, his youngest daughter, Isabella

Beecher, organized the Connecticut Women’s Suffrage Association.41 And Harriet Beecher

Stowe of course wrote Uncle Tom’s Cabin .42 Reeve was involved in one of the famous cases that helped bring a formal end to slavery in Massachusetts, a case that involved a household slave named Elizabeth Freeman, who was known as “Mumbet.”43 Dane was said to have drafted the anti-slavery clause in the North West Ordinance, and he wrote that slavery was inherently morally problematic – not because in his view, blacks and whites were equals but due to the corrupting effect of slavery on white people.44 He was one of the founding members and the president of the Massachusetts Society for the Suppression of Intemperance and contributed

financially to that organization.45

Kent shared much in common with Reeve and Dane in the sense that all three of these men belonged to the Federalist Party and saw their direct political power decrease in proportion

40 See Kathryn Kish Sklar, Catharine Beecher: A Study in Women’s Domesticity (New Haven: Yale University Press, 1973), 64-72.

41 Ellsworth S. Grant, The Miracle of Connecticut (Hartford, Ct.: Connecticut Historical Society, 1992), 259-60.

42 Although the apocryphal story had Abraham Lincoln attribute the start of the Civil War to this book, the Beechers were actually less pro-abolition than was commonly thought even by their contemporaries. See Autobiography, 115-16. See also Sklar, 132-34.

43 See Arthur Zilversmit, “Quok Walker, Mumbet, and the Abolition of Slavery in Massachusetts,” 25 The William and Mary Quarterly (1968): 614-24, 619-24.

44 See Andrew J. Johnson, The Life and Constitutional Thought of Nathan Dane (New York; London: Garland Publishing, 1987), 154-56 (on slavery).

45 See Henry A. Chaney, “Nathan Dane,” 3 The Green Bag (1891): 548-58, 555-556. See also “Memoir of Hon. Nathan Dane,” 2 Proceedings of the Massachusetts Historical Society (April, 1835): 6-10, 8 (calling the group instead “the Massachusetts Temperance Society”).

to the loss of influence of that party in their respective states. Each also turned to law-book writing in earnest as a consequence. As Daniel Hulsebosch has put it:

Federalists turned to the nonlegislative dimensions of law and legal training, the areas of legal culture that were beyond the reach of electoral politics … [I]f they could not control decision making directly, they could try to control the raw material on which decisions were made: the reports, treatises, handbooks, and educational institutions that inculcated law’s purpose … [resulting in the] painstaking acculturation of lawyers and judges in a supposedly nonpartisan legal culture. 46

Reeve, Dane, and Kent were all Federalists who did this – Reeve with his school and his treatise,

Baron and Femme , Dane with his abridgment, the proceeds from the sale of which were used to hire Joseph Story, whose treatises were produced as a condition of his occupancy of the Dane

Professorship, 47 and Kent with his Columbia professorship and the Commentaries .

Reeve had been very vocal in his opposition to the Republican Democrats shortly after

Jefferson’s election as President in 1800, so much so in fact that his newspaper articles landed him a seditious libel prosecution that was subsequently dropped. 48 It took some time for power

to shift in Connecticut and Massachusetts, until of course the Hartford Convention in 1814-15,

which fairly or unfairly, spelled the death knell for the Federalist Party. 49 The Republican

Democrats won the state election in 1817 and the so-called “Peaceful Revolution” of 1818

46 Daniel J. Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (Chapel Hill: University of North Carolina Press, 2005), 278-79.

47 See G. Blaine Baker, “Story’d Paradigms for the Nineteenth-Century Display of Anglo-American Legal Doctrine” in Angela Fernandez & Markus D. Dubber eds., Law Books in Action: Essays on the Anglo-American Legal Treatise (forthcoming Hart, April 2012), 82-107, 89.

48 See Robert George Wetmore, “Seditious Libel Prosecutions in 1806 in the Federal Court in Connecticut: United States v. Tapping Reeve, and Companion Cases,” 57 Connecticut Bar Journal (1983): 196-210.

49 See James M. Banner, To the Hartford Convention: The Federalists and the Origins of Party Politics in Massachusetts, 1789-1815 (New York: Knopf, 1970).

brought in a new state constitution that ended establishment of the Congregational religion and a

clearer separation of powers between legislative and judicial powers.50 Reeve reached the age of seventy in 1815 and was replaced in his position as Chief Justice of the Supreme Court by a political rival and rival treatise-writer and law-school operator, Zephaniah Swift. 51 Reeve print- published Baron and Femme in 1816, calling it a description of English law that he hoped would take root in other states.52

Dane had been involved in the process to ratify the Federal Constitutional Convention and,

although he was invited to the Massachusetts Convention in 1820, he was not expected to

accept.53 He was sixty-eight at the time and had become almost entirely deaf. 54 He withdrew from public life and turned in earnest to the completion of his eight-volume A General

Abridgment and Digest of American Law (1823) and his “ponderous” six-volume A Moral and

Political Survey of America , never published. 55

Kent successfully fought at the New York Constitutional Convention in 1821 for the

retention of his position as Chancellor which he was permitted to keep until he retired at the age

50 See M. Louise Greene, The Development of Religious Liberty in Connecticut (Boston & New York: Houghton, Mifflin, 1905; New York: Da Capo Reprint, 1975), 473.

51 For comparisons and conflicts between Reeve and Swift, see Fernandez, “Tapping Reeve, Coverture and America’s First Legal Treatise.”

52 See Reeve, Baron and Femme , preface.

53 Chaney, 557 (Dane “was chosen a member for the prestige of his name, although it was understood beforehand that he would not attend”).

54 “Nathan Dane,” Dictionary of American Biography .

55 The word “ponderous” is from Chaney, 557. The original manuscript of Nathan Dane’s A Moral and Political Survey of America is the property of Wellesley College Library, Special Collections. I rely here on a copy digitized from microfilm in 2010 by the Institute for Intermediate Study (IFIS) in Monroe, Connecticut.

of sixty in 1823; however, he was unsuccessful in having that age limitation removed from the constitution.56 Many of the reforms adopted at that constitutional convention were intended to decrease the political influence of judges, including the abolition of the Council of Revision that could review laws passed by the state legislature.57 Kent was on that Council as Chancellor,

along with the Governor and judges from the Supreme Court. He went kicking and screaming

into this forced retirement, thought about founding a law school in Albany like Reeve’s, although

this never materialized, returned to private practice, and took up his professorship at Columbia

again. 58 The first volume of his Commentaries on American Law appeared in 1826.

What is important to appreciate is that despite the similarities between these three men, old

Federalists, and the way that age, reform, and democratic change in each of their respective

states put them out to pasture, Kent was not coming culturally from the same place as the New

Englanders. He did not eschew all religion. 59 However, he saw the causes that Reeve and Dane associated themselves with that were staples of elite New England philanthropy and activism in which “respectable” women were very involved (revivals, temperance, abolition) as misguided forms of extremism. So, for instance, his biographer, John Theodore Horton, tells us that Kent thought that revivals were “crazy” and “if possible, he was more contemptuous of the temperance movement than of abolitionism.”60

56 See John Theodore Horton, James Kent: A Study in Conservatism, 1763-1847 (New York: D. Appleton-Century Co., 1939), 245-51.

57 See ibid., 251-52.

58 See ibid., 267-68.

59 Ibid., 115 (noting that Kent always rented a pew in the Wall Street Presbyterian Church).

60 Ibid., 309.

“Our religionists are fanatics,” he said, “our temperance societies are pushing to disgusting

excess and becoming intemperate in temperance.” When a committee called upon him to

urge that he sign a prohibitionist pledge, he stoutly refused to grant their request.

‘Gentlemen,’ he said, ‘I refuse to sign any pledge. I never have been drunk, and by the

blessing of God I never will get drunk, but I have a constitutional privilege to get drunk and

that privilege I will not sign away.” 61

These quotations are from Kent’s letters to his brother Moss and would have contained his frank appraisal of what he thought “religionists” like Reeve and Dane were up to with revivals, temperance movements, and abolition. Horton wrote that “[b]oth temperance and abolitionist agitation proceeded, in his [Kent’s] analysis, from those extremes of opinion which he [Kent] branded with the name of ultraism and regarded as dangerous to the public taste and tranquility.”62

Just how religious Dane was is a matter of debate. Short biographical accounts refer to the fact that he never skipped church on Sunday, even when his deafness had reached the point where he could not hear a word of the sermon. 63 The last twenty years of his life, so from about

1815 on, he is said to have spent never any less than twelve hours a day in his library. He and his wife had no children. And on Sunday, far from taking a break from arduous study, he devoted himself to theology and ecclesiastical history and in reading Greek and Hebrew

61 Ibid., 309-10.

62 Ibid., 310.

63 See “Memoir of Hon. Nathan Dane,” 9. A close version of this was repeated in Chaney, 557, which was based on the account given in Andrew Preston Peabody, Harvard Graduates Whom I Have Known (Boston; New York: Houghton, Mifflin, 1890), 12-26, 22.

Scriptures in their original languages.64 The material for several of the introductory chapters of

A Moral and Political Survey of America must have been collected during those scholastic

Sabbath study times. The first chapter of the work is a survey of many of the world’s religions

(e.g. Confucianism, Hinduism, Buddhism, Islam) with the intention of assessing to what extent those religions were consistent or inconsistent with Christianity. 65 Dane generally found

sameness, writing for example that “we have lately found, in substance, the same doctrine, precepts, and principles, in the ancient theology of the East, and in the modern theology of

Christians.” 66 Indeed, Dane usually wrote quite respectfully of other religions and cultures, with the arresting exception of Judaism and Jews. 67

As a general rule, Dane was extremely suspicious of the revelation-based part of religion, miracles, enthusiasms and what he called “inspiration.” He juxtaposed reason with revelation and inspiration, and placed true morality on the side of reason not “the mysterious and wonderful.”68 Indeed, he appears to have agreed with the characterization of religion as a necessary and “pious fraud,” pious because “among the very ignorant, it has answered, in many cases, the purpose of useful restraint, where no rational laws of rules would have had much effect.” 69 Yet a fraud because “divine pretension” “with claims to inspiration” are instances in which “[c]unning of credulity seems to have made invisible beings, good or malignant, without

64 See ibid.

65 The Chapter is called “Ancient Morals and Theology, their Influence Traced to America” and it runs from pp. 1- 120 of the manuscript.

66 Volume 1, Chapter 1, p. 16. See also pp. 20-21.

67 See ibid., pp. 70-91.

68 See ibid. 65-66.

69 Ibid., 62.

number, and put them in every place, most likely to affect terrified weakness or childish fears.” 70

Dane saw women as being particularly credulous and drawn in by inspiration, wonder and mystery in religion. 71 “This perhaps, is the richest field on earth for the artful and ambitious” he

wrote. 72 Jews also had he thought an “insatiable faith in miracles and inspiration.” 73 “[W]e

Protestants believe no miracle or miraculous events,” he stated categorically.74 Indeed, he seemed to regret that there was ever anything of wonder or invisibility in religion.

The “pious fraud” perspective was the view that Jefferson took in the uber-rationalist text of the New Testament he prepared that was handed out to Congressmen, which Dane would have received when he was a member of Congress for Massachusetts from 1785-87. Although this was clearly an influential and fashionable view among white elite Protestant men, it is somewhat surprising to see Dane refer approvingly to it, as he was so often concerned to expose fictions or fables (like one-person-in-law). He thought that “fables and fictions” were the bad part of religion. 75 He was also anti-Platonic (preferring instead Aristotle’s rationalism) and one might have thought he would have been against this kind of “noble lie,” as it was presented in Plato’s

Republic .76 However, what Dane really cared about were manners and morals, the good behavior that the “pious fraud” could secure.

70 Ibid., 62.

71 See e.g. ibid., 48.

72 Ibid., 24.

73 Ibid., 78.

74 Ibid., 91.

75 Ibid., 58.

76 See ibid., 112-13. 17

This very cold and cerebral approach to religion was consistent with the movement away from what Perry Miller famously called the “head” over the “heart” in Congregationalism.

Proponents of New Divinity and the Second Great Awakening like Beecher, Reeve, and Dwight were concerned to show that unlike the First Great Awakening, which garnered criticism for being overly emotional, this way of breathing of new life into Calvinist doctrine was oriented around light rather than heat. Gone were the three or four day camp festivals. Revivals were

“quiet and subdued” affairs, “unaccompanied by exuberance and physical manifestations.” 77

Meetings were held in churches or private houses and were led by settled ministers, not itinerant preachers. 78 “In all gatherings there was an insistence on calm, austere behavior.” 79 And conversion experiences themselves were thought to be the product of a slow, rational process rather than a sudden emotional one.

I have been unable to find out which church Dane went to and which Protestant sect he belonged to. Things were different in Massachusetts given the presence of Unitarianism, the

other more liberal branch of Edwards’ descendants that eventually gave birth to the

transcendentalism of Boston-based Whig culture. 80 Dane was unlikely to have been associated

with it and would have been suspicious of even the more conservative side of Congregational or

Presbyterian revivalism (both sects contained pro and con revivalists). So, for instance, he wrote

that “an enthusiastic new light views the best morals in his Bible as if but of little value, and

77 Charles Roy Keller, The Second Great Awakening in Connecticut (New Haven: Yale University Press, 1942), 53.

78 See ibid., 53-54.

79 Ibid., 54.

80 See ibid., 229. See also Daniel Walker Howe, The Unitarian Conscience: Harvard Moral Philosophy, 1805-1861 (Middletown, Ct.: Wesleyan University Press, 1970).

almost below his attention, whilst he wraps himself in its mysteries with fervent zeal.” 81 This was not written by someone who thought of himself as a “New Light.” The less emotional religion was in Dane’s eyes the better. The value of religion lay in its ability to promote good morals and manners. The law was a way (although probably not the most important way) to secure these.

So, for instance, Dane wrote about the practice among the ancient Greeks and Romans of

requiring every father give his son a trade. Solon’s laws in Greece “obliged everyone to have

some regular employment, and carefully enforced temperance,” and “[p]arents were obliged to

educate their children to some occupation, and if they did not, the children were not held to

maintain their poor and aged parents.” 82 In ancient Rome, the son of any father who neglected to instruct his child in a trade would not be held liable to support the father in old age.83 Somewhat surprisingly, Dane was probably responsible for having included a version of this in the

Northwest Ordinance, which required that “all persons while young shall be taught some useful occupation.”84 This certainly would have been linked to temperance in his mind in the sense that

securing gainful employment in each family unit was a precursor to trying to devise ways to

convince men to use that money to support their families rather than spend it on alcohol.

Dane and Reeve then both embodied a particular New England perspective, which helps

explain their rebellion on one-person-in-law and promotion of legal rights for married women.

81 See Volume 1, Chapter 1, p. 66.

82 Volume 1, Chapter 2, p. 127.

83 Ibid., 157.

84 See Johnson, The Life and Constitutional Thought of Nathan Dane , 39.

However, little or no recognition of the New England perspective survived. Conservatives like

Kent would not have wanted to acknowledge it. They wanted to make truth by continuing to insist on one-person. So, for instance, one of Reeve’s students who settled in the Northwest

Territory, Ohio, published a book for women setting out their legal rights and duties. 85 Reeve had evidently convinced him on the point about allowing married women to make wills, as he noted with pride that “[i]n Ohio the rule [was] as liberal as possible” and calling a rule to the contrary “one of the most curious pieces of barbarism extant.” 86 However, this student asserted an unwavering allegiance to one-person, writing, referring explicitly to Blackstone, that “[t]he first great principle of Scripture, the unity of husband and wife, is repeated by the law. They are in law, one person .” 87 Reformers who might have appreciated the “progressiveness” in Reeve

and Dane rejecting one-person probably did not acknowledge it, as it was in their interests to paint the situation in as dire terms as possible in order to make a compelling case for change. As

Dirk Hartog has put it, Blackstone provided “the common currency of legal and political

descriptions of marriage, relied on by voices on all sides of the political spectrum.” 88 Yet in

doing that, in using Blackstone to stand for the truth about married women’s property rights in

the nineteenth century, we cover over a more interesting truth and reality about just how

contentious this was.

85 Edward Deering Mansfield, Legal Rights, Liabilities, and Duties of Women (Salem Mass.: John P Jewett, 1845).

86 Ibid., 211-12.

87 Ibid., 263 (emphasis in the original).

88 Hartog, Man and Wife in America , 116.

IV. How do you kill a legal fiction? 89

Dane thought that adherence to one-person had to do with two things: (i) “an undue

adherence to fictions and old maxims of law”; and (ii) “religion, morality, and public policy of a

rigid cast.”90 What Reeve and Dane did not seem to understand was that it was precisely because

one-person was a fiction that it could not be disproved by pointing to reality . Yes, reality would

throw up a large number of exceptions, but the exceptions could never kill the fiction because it

was only ever meant to be a fiction, selectively employed. No one thought that husband and

wife were literally one person. 91 The one way in which the one-person fiction was literal, i.e. in the sex act, was the one thing that was never mentioned, although it is almost certainly where this comes from (the idea in the Bible of husband and wife as “one flesh”) and might be what

Dane had in mind (at least indirectly) when he referred to “religion, morality, and public policy of a rigid cast.”

If you think about it, the insignificance of the sex act (at least quantitatively) in relationship to everything else in a marriage parallels the insignificance of one-person versus separate-person in fact, married women are separate persons for so many purposes. However, this was never about quantity, as the number of exceptions and all the things that a married woman could do demonstrate, like the amount of time not spent coupled with one’s spouse, matters less than that small percentage of time actually spent as “one-person” or “one flesh.” The significance of that

89 Thanks to Karen Knop for putting the question to me in this way.

90 Dane, Digest , 337

91 See Christopher Tomlins, “Affairs of Scale: Toward a History of the Literature of Law,” in Angela Fernandez & Markus D. Dubber eds., Law Books in Action: Essays on the Anglo-American Legal Treatise (forthcoming Hart 2012), 220-42, 230.

act, or the old moral, legal, or religious commitment to its significance, rendered everything else insignificant, an exception. Consider, for instance, the old requirement of consummation of a marriage to its legal validity. 92 We obviously view this very differently than people in the early

nineteenth century would have given differences in the way that we view sex, not least the

uncoupling of sexual pleasure and reproduction for both men and women. However, “oneness”

for those in the early nineteenth century was not just more likely to have been seen through a

religious lens, with concerns about certainty surrounding paternity never lurking far away in the background. It was probably also influenced by the way that people in the early modern period

saw the boundaries between persons as porous. 93 So, for instance, a comingling of spirit was thought to arise from any activity involving the exchange of bodily fluids like kissing or even sharing a meal or drinking from a common cup. 94 Actual intercourse then would have been thought of as really capable of making two persons one in a deep and profound sense that could be seen to justify making it the rule and anything that did not fit the exception. When does the number of exceptions reach a tipping point and swallow the general rule, Reeve and Dane asked.

Why attach all this prima facie presumption to the sex act giving us one-person, we might add, especially once bodies are no longer viewed as porous between persons.

On the question of rule/exception, it must be noted that the exceptions themselves were mostly things that would be of use and benefit to a married man. 95 So, for instance, it would be

92 Thanks to Edward Iacobucci for making this point.

93 See John R. Gillis, “From Ritual to Romance: Toward an Alternative History of Love” in Carol Z. Stearns & Peter N. Stearns eds. Emotion and Social Change: Toward a New Psychohistory (New York, 1988), 90-121, 93.

94 Ibid., 91.

95 Thanks here to Yasmin Dawood for asking when if ever exceptions to the fiction operated to disadvantage of husbands. 22

convenient to him for his wife to be able to give a receipt in the event that he was not at home or available to give it. So too, allowing her to act as a guardian might be to his liking if he did not want to trouble himself with it. Certainly empowering her to act as his attorney and exercise a

“naked authority,” something that was by definition explicitly to his benefit, would be helpful to him. Even her ability to will her separate property would usually benefit him, as she would most often choose him to will her property to. Certainly, allowing her to be liable for her own debts when she was living separate from him was to his benefit, as he would not be responsible for paying those debts. He would be unlikely to disagree with making her (and not him) responsible for her crimes. Indeed, one might conclude from these examples that the fiction actually operated in exactly the way that it was intended to, namely, selectively, and the exceptions were not actually exceptions but were rather coming in and out of the fiction in just the way that was intended. In other words, married women were meant to move in and out of being under cover

as was thought to be desirable and convenient. Moving in and out of legal personhood actually

seemed to be a feature of those who were supposed to lack it. Slaves, for instance, could inherit

under wills and speak in a court of law as witnesses in certain cases even though they were

supposed to be the quintessential category of non-person: property. 96 We must note that

exceptions to one-person were not to the exclusive benefit of the husband. She might actually

sue him in equity, she might will the fees simple of her real estate to someone other than him,

and it was obviously of great value to her to be able to obtain credit if she lived separate from

96 See Adrienne Davis, “The Private Law of Race and Sex: An Antebellum Perspective” 51 Stanford Law Review (1999): 221-288; Laura F. Edwards, The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (Chapel Hill: University of North Carolina Press, 2009), 87, 128. Thanks to Mayo Moran for making this point. See Mayo Moran, “The Mutually Constitutive Nature of Public and Private Law” in A. Robertson & H.W. Tang eds., The Goals of Private Law (Oxford: Hart Publishing, 2009), 17-45, 28 (calling attention to this point and discussing “the shifting status of women who married, their movement into and then eventually out of a property-like status”).

him. However, this just was the machine in operation and it was a machine with many moving parts. The important thing to retain was rule/exception formulation.

Yet Reeve and Dane had a point. If there were enough exceptions and those things were important – more important than the “oneness” that came from the sex act – perhaps they could eventually swallow the rule and in that way kill the legal fiction. This starts to look very much like a matter of perception. Was the glass half empty or half full? Were husband and wife one person and therefore she could not make a contract with her husband except with a trustee or were they “generally distinct persons [who] may contract with each other in many cases, and especially with the formality of a trustee”? It really could be put either way. The law/equity distinction created a lot of room for play, allowing the rule to be stated in a conservative way, while providing the actual wiggle room that men and women needed for their benefit. Without a prior commitment to the paradigmatic nature of one-person, the content of which was supplied by what Dane called “religion, morality, and public policy of a rigid cast” and the way that it seems to have silently but strongly put sex at the heart of things, little could be said for viewing it in the conservative way.

IV. Cautionary Note

So were Reeve and Dane feminists? 97 I think we want to be careful about this and it depends very much of course on what we meant by “feminist.” We know a lot about how later moral reform initiatives that involved middle class women were seriously problematic. So, for example, in the Progressive era, women’s courts doling out “feminized justice” were not

97 See Tomlins, “Affairs of Scale: Toward a History of the Literature of Law,” 229 (concluding from my description of Reeve that he was a feminist).

necessarily engaged in “feminist justice” in the sense that they targeted the poor, the wrong kind of woman and so on. 98 That kind of policing of morality was very much there in the New

England/Evangelical culture that Reeve and Dane belonged to, as Dane’s emphasis on one- person leading to the untenable conclusion that a married woman was unable to consent to adultery. A feminist would certainly want to say that a married woman could so consent but would question I think the emphasis being put on the desire to police female sexuality.

One the one hand, these Puritans were less puritanical than you might think. Reeve, for instance, remarried shortly after his wife’s death his much younger housekeeper, which raised some eyebrows. Elizabeth (Betsey) Thompson was twenty-four in 1798, making her twenty years younger than Sally and thirty years younger than Reeve, although not as beautiful as Sally was widely said to have been.99 In the months after Sally’s death, the only child of Sally and

Reeve’s marriage, Aaron Burr Reeve, was already calling Betsey “Mama.” 100 Sally had been in

delicate health for many years. One of Reeve’s students thought that the marriage was a mark of

Reeve’s eccentricity. 101 This kind of practical response to a wife and mother’s death – marry the woman who is already in the house and who has been mothering the child/children – is similar to

98 See Angela Fernandez, “Feminized not Feminist Justice at the Toronto Women’s Court,” reviewing Amanda Glasbeek, Feminized Justice: The Toronto Women’s Court, 1913-1934 (Vancouver: University of British Columbia Press, 2009), posted on JOTWELL (The Journal of Things We Like (Lots)) (March 31, 2011), available at http://legalhist.jotwell.com/. This was already starting to happen in Connecticut once fornication was decriminalized for white men. In the 1750’s and 1760’s, fornication starts to become for women only and increasingly disreputable women – the poor, domestic servants, women in inter-racial relationships, women who repeatedly bore children without marrying. See Dayton, Women Before the Bar , 161.

99 See Calder, Life and Times of Tapping Reeve , 14.

100 See Marian C. McKenna, Tapping Reeve and the Litchfield Law School (Dobbs Ferry, N.Y.: Oceana Publications, 1986), 93.

101 See Edward Deering Mansfield, Personal Memoirs , 127.

the practice of widowed men marrying their dead wife’s sister. One-person-in-law made this incest according to some – a deceased wife’s sister would be the widower’s sister and marrying her should be prohibited. 102 However, this happened so frequently (e.g. when a sister moved in

after her sibling’s death in childbirth to help care for the household) that it was impractical to

make it illegal. 103

On the other hand, Dane was very consistent in his condemnation of sex-related

transgressions. So, for instance, in A Moral and Political Survey of America , ancient Germany

garnished the highest marks of the societies surveyed, higher than either Greece or Rome in

terms of their political system and for “morals and manners.” Adultery was rare, according to

Dane, and unpardoned when found, polygamy also infrequent, infanticide and restraining

reproduction a sin. 104 Dane called it a wise measure taken by the ancient Germans “[t]o preserve female chastity” to fine “a man for touching a woman not his wife, and according to the part he touched.” 105 He tied the principle of “one wife at the same time, and female rights generally” to

Christianity and noted that it was “the law of the Roman government from its origin, and

generally of the Greeks in practice, and other European nations when pagans.”106 He thought

102 See Charlotte Frew, “Coverture and Affinity Marriage in Nineteenth Century Britain and Colonial Australia” in this volume.

103 Kent noted that Noah Webster had discussed this issue in his 1790 lectures and that it had been made lawful in Connecticut by statute. See Kent’s Commentaries , 73 n.c.

104 Volume I, Chapter 3, p. 226.

105 Ibid., 227.

106 Volume 1, Chapter 1, p. 14 (although noting that another scholar thought Christianity permitted polygamy).

ancient Germany was the place which “laid the foundation of female rights.” 107 Yet, it was also a place where “unnatural prostitutes” or “lewd women” were, along with cowards, “smothered in the bogs in order to conceal effeminacy and pollution.” 108

In other words, when Dane wrote about women’s rights, or when Reeve’s book was

noted as being in favor of women’s rights, it was not really the kind of orientation we would feel

comfortable calling feminist today. Indeed, it is not clear it was even equality-oriented. Dane

was a little inconsistent on this. For instance, he wrote at one point that “[t]here is nothing in the history of mankind that is a better test of the pure morals, wise government, and even of correct religion in a nation, than the happy condition and generous treatment of women as friends and equals .” 109 However, in this same passage he goes on to say that women should be treated “as

companions not equals; as justly entitled to personal liberty, and to share in property; to be

executors, administrators, guardians, and witnesses as well as men, to education for usefulness

and refinement to be helpmates to men, and not as mistresses or courtesans to charm and seduce

them.”110 The point and the advancement, as Dane saw it, was to cease to treat women as slaves

or sexual objects. In what he called the “savage state” women were “slaves and drudges[,] ugly

and forbidding; the men cold and unfeeling attached to women by animal instinct only, and void

107 Volume 1, Chapter 3, p. 232. See also Chapter 1, pp. 93-94 (“To the old Germans from whom we have naturally and politically descended many fundamental principles of law and liberty, indirectly and many of our best principles on which women are treated in the marriage state”).

108 See Volume 1, Chapter 3, 225. It seemed as if an “unnatural prostitute” might have referred to a gay prostitute given the reference here to effeminacy. However, I think the effeminacy refers to the cowards, as Dane wrote a number of pages later, “we have seen that lewd women were of no importance, but, with cowards, were sunk in the bogs.” See p. 243.

109 Ibid., 240 (emphasis added).

110 Ibid., 241 (emphasis added).

of sentimental love.” 111 However, “the last stages of refined corruption” were equally problematic, “women were again in a miserable condition; as a large body of them became the mere instruments of luxury.” 112 He saw “the middle stages” as one where men would have “the sentimental feelings of love, as well as instinctive desires, in the highest degree.” 113 This was a state in which “men treat[ed] women with lenity and indulgence” and “[i]n which education and the social intercourse of the sexes, make generous men, and chaste women; as the want of them make mere savages in the woods, or animal lovers in opulent cities.”114 In this stage, a man learned “to treat a woman well in principle” and as an “end for his own reputation.” 115

Both Dane and Reeve likely saw themselves belonging to this civilized “middle stage” and, indeed, thought of their own marriages along these companionate lines, as vehicles for expressions of sentimentality and generosity. Reeve, for instance, was reported to have allowed his first wife Sally to remain in control of the property she brought into the marriage. 116 Dane thought that “women held their respectable rank in America, by having secured to them by the laws, nearly the same rights men have.” 117 Equality was not the point, at least not the most important point, and sexual independence was clearly not contemplated; yet something friendly

111 Ibid., 240-41.

112 Ibid., 241. Dane likely had Rome in mind here. He wrote in his chapter on ancient Greece and Rome that “Roman greatness unquestionably stood on morals and religion, frugality and discipline, and perished in luxury and ease.” Volume 1, Chapter 2, p. 154.

113 Volume 1, Chapter 3, p. 241.

114 Ibid.

115 Ibid.

116 See Helen Evertson Smith, Colonial Days and Ways, As Gathered from Family Papers (New York: Century, 1900), 304-5.

117 Volume 1, Chapter 3, p. 240 (emphasis added).

towards women was being expressed. These were women’s rights as these men would have conceived of them. As limited as these might seem to us now, it is remarkable to find someone like Dane casting his eye over so many different cultures and religions and speaking approvingly of the near-equal treatment of men and women whenever possible.118

It would be misguided I think to look in Reeve and Dane for expressions of feminism that

square well with our own. As L.P. Hartley put it, “[t]he past is a foreign country: they do things

differently there.” 119 It is weird, it is foreign, and it is supposed to be. What is important, however, is to register that something significant was afoot here. “The long nineteenth century” was not some homogenously regressive period that can or should be summed up in the one- person-in-law principle (as per Kent) or maxim (as per Reeve and Dane). When one-person came to be indelibly associated with Blackstone, I would venture to say that it became in effect a mantra that covered in a mindless (rather than a mindful) way a more interesting reality and truth. It was part-truth, part-fiction, even as a legal fiction. However, one-person was not an effortless triumph of conservatism in the early American period. The New Englanders certainly put up a good fight in their didactic texts, even if what motivated them and what they put forward was ultimately conservatism differently configured, what Cornelia Hughes Dayton has

118 See e.g. Volume 1, Chapter 1, p. 62 (Dane reports that in Egypt, women were “early well treated, in most respects, by the men, who considered them as equals and companions ; generally had but one wife, and no concubines. They rightly preserved virgin chastity by law and manners; allowed their women personal liberty, daughters to inherit estates with sons; and widows a support out of their husbands’ estates”) (emphasis in the original); p. 102 (pointing out that there was no primogeniture among the ancient Greeks and they “had the highest regard to the marriage state and the happiness of domestic life; they held adultery to be a crime of the blackest dye; a second marriage though not absolutely forbidden was disreputable”).

119 L.P. Hartley, The Go-Between (1953). I lift this reference from an excellent short paper written by one of my Legal Archaeology students, Susan Deefholts.

called one of many “different styles and strands of patriarchy.”120 The point is to try and

understand what shape this particular reconfiguration took and create space for it in our

ordinarily monolithic understanding of the Blackstone mantra and its reception.

120 “Was there a Calvinist Type of Patriarchy?” 338.