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

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Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity TSpace Research Repository tspace.library.utoronto.ca Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity Angela Fernandez Version Post-print/accepted manuscript Citation Fernandez, Angela, Tapping Reeve, Nathan Dane, and James Kent: (published version) Three Fading Federalists on Marital Unity (November 18, 2011). Publisher’s Statement This is the peer reviewed version of the following article: Fernandez, Angela, Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity (November 18, 2011). How to cite TSpace items Always cite the published version, so the author(s) will receive recognition through services that track citation counts, e.g. Scopus. If you need to cite the page number of the author manuscript from TSpace because you cannot access the published version, then cite the TSpace version in addition to the published version using the permanent URI (handle) found on the record page. This article was made openly accessible by U of T Faculty. Please tell us how this access benefits you. Your story matters. 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. 4 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.
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