LEGAL FICTIONS, LITERARY NARRATIVE, AND THE HISTORICAL TRUTH: THE JURISPRUDENCE OF MARRIAGE IN THE LONG EIGHTEENTH CENTURY Suzanna Geiser A dissertation submitted to the faculty at the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of English and Comparative Literature. Chapel Hill 2018 Approved by: James Thompson Jeanne Moskal Thomas Reinert John McGowan Megan Matchinske © 2018 Suzanna Geiser ALL RIGHTS RESERVED ii ABSTRACT Suzanna Geiser: Legal Fictions, Literary Narrative, and the Historical Truth: The Jurisprudence of Marriage in the Long Eighteenth Century (Under the direction of James Thompson and Jeanne Moskal) This dissertation explores the impact of legal and literary fictions about marriage on the modern historical consciousness. By reading the early English novel in conjunction with contemporary legal texts on marriage—parliamentary acts and debates, case law, marriage settlements, and private separation deeds—I demonstrate that eighteenth-century English marriage law and practice was constituted through a variety of conflicting legal fictions. I further demonstrate that the early novel was preoccupied with how those fictions shaped the lived experience of domesticity, particularly for women. The fictional precepts and presumptions underwriting emerging contract theory and traditional marriage doctrine at once directed and circumscribed (proto)modern developments in marriage, property, and divorce law. Moreover, the novel, in its mimetic and ideological capacities, variously worked to expose, advance, and revise those fictions, thereby amplifying and altering their historical force. Examining the dialectical relationship between legal texts and the novels of Daniel Defoe, Eliza Haywood, Samuel Richardson, Frances Burney, Charlotte Smith, Elizabeth Inchbald, Mary Wollstonecraft, and Jane Austen, this project challenges traditional conceptions of the law as stable, objective, and truth-bearing, and it demonstrates the importance of an interdisciplinary approach to historical inquiry. The project also highlights the need for renewed attention to the concept of “legal fiction,” including its influence on the modern individual’s perceptions of self and other, masculinity and femininity, and legal rights and moral duties. iii Each chapter explores the legal fictions implicated at a particular stage in the marriage contracting process. Chapter one, on marriage formation, focuses on the principles of the then- emerging theory of contract development. Chapter two, on marital unification, centers on the classic legal fiction of “unity of person.” Chapter three, on marital dissolution, addresses the foundational assumptions of the indissolubility doctrine, as well as the presumption of “paternal right” and the fiction of illegitimacy, filius nullius. Collectively, these chapters chart the entire trajectory of marriage, from start to finish. iv ACKNOWLEDGEMENTS I begin by thanking my dissertation directors, James Thompson and Jeanne Moskal, for their constant encouragement and support. James’s unwavering confidence in my intellectual pursuits ushered me through moments of self-doubt, and his enthusiasm for my project motivated me to dig deeper and reach farther. Jeanne’s unparalleled ability to listen without judgment, her concern for my well-being, and her generosity of spirit kept me steady and focused. Moreover, both directors’ willingness to share their knowledge-base and help me cultivate my own was invaluable to me as I defined and developed my scholarly interests and research methodology. I would also like to thank Tom Reinert, John McGowan, and Megan Matchinske for their consideration and care as I moved through the graduate program and the dissertation process. This project was inspired, in large part, by Tom’s eighteenth-century novel course, John’s equality seminar, and Megan’s philosophies of history class. Moreover, my critical engagement with law and literature was sustained and enriched through their feedback and their commitment to producing meaningful scholarship. There are many others in my academic career to whom I am indebted, including John Morillo, who introduced me to the eighteenth-century and the early English novel; Sharon Setzer, who urged me to pursue a doctorate; and Tommy Nixon, who promptly and happily responded to all of my research queries. Special thanks go to Mary Floyd-Wilson and Jennifer Ho, both of whom, as directors of graduate studies, were indispensable to me as I charted my course of study. Additional thanks to Ben, Katie, Doreen, Jennifer, and Sarah, each of whom served as my readers, editors, and advisers throughout the program. v Final thanks go to my family. First to my parents: to my mother, Diane, for imparting to me a love of reading and intellectual inquiry; to my father, Harlan, for modeling a strong work ethic; and to the both of them for giving me the opportunities that led me here. To my siblings, Nick and Maria, for their care and understanding. And, to my husband, Bryan, without whom none of this would have been possible. vi TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 Fiction and the Historical Consciousness ........................................................................... 3 The Marriage Contract, Fiction, and the Historical Record.............................................. 19 CHAPTER 1: THE FICTIONS OF MARRIAGE-CONTRACT FORMATION ........................ 24 Part I: The Liberal Subject and the Freedom of Contract ................................................. 25 Part II: Freedom of Contract in the Private Sphere and Key Developments in Marriage Law ................................................................................................................ 31 Hardwicke’s Marriage Act ........................................................................................ 32 Breach of Promise of Marriage .................................................................................. 41 Part III: The Domestic Novel and the Fictions of Formation ........................................... 53 Conclusion ........................................................................................................................ 87 CHAPTER 2: THE FICTIONS OF MARITAL UNIFICATION ................................................ 88 Part I: A Return to Status .................................................................................................. 89 Part II: Unity of Person and Key Developments in Equitable Property Law ................... 95 The Marriage Settlement ........................................................................................... 96 Married Women’s Separate Property in Equity ....................................................... 106 Part III: The Domestic Novel and the Fiction of Unification ......................................... 115 Conclusion ...................................................................................................................... 145 CHAPTER 3: THE FICTIONS OF MARRIAGE-CONTRACT DISSOLUTION .................... 147 Part I: The Immutability of Status .................................................................................. 148 Part II: Domestic Happiness, Public Welfare, and Key Developments in Divorce Law.................................................................................................................... 157 vii Parliamentary Divorce ............................................................................................. 159 Private Separation .................................................................................................... 170 Part III: The Domestic Novel and the Fictions of Dissolution ....................................... 180 Conclusion ...................................................................................................................... 223 CODA ......................................................................................................................................... 225 WORKS CITED ......................................................................................................................... 231 viii INTRODUCTION Eighteenth-century legal commentary often presents a vastly different picture of women’s position under the law than that constructed by contemporary literary narrative. For example, in his celebrated legal treatise Commentaries on the Laws of England (1765-69), Sir William Blackstone observes that “the female sex” is a “great . favourite . of the laws of England,” and argues that the legal “disabilities” to which a woman is subject upon marriage “are for the most part intended for her protection and benefit” (1: 433). Similarly, the anonymous author of the legal treatise The Laws Respecting Women (1777) asserts that “England has been stiled the Paradise of women,” and connects the fortune of the “softer sex” to the nation’s acknowledgement and enforcement of the “the natural rights of mankind” (vi; Preface). In contrast, the eponymous heroines of Daniel Defoe’s Roxana (1724) and Mary Wollstonecraft’s The Wrongs of Woman: or, Maria (1798) vehemently argue that the law, particularly the law of marriage, operates as a mechanism for stripping women of their natural rights. It requires them, in Roxana’s words, to “‘giv[e] up Liberty, Estate, Authority, and every-thing, to the Man’”