Property, Domination, Married Women, 'Indians': Part Two - “Domestic Relations”
An essay on two paths in property law: “marriage and family law” on one side and "federal Indian law" on the other
Here is one of the curious anomalies that make legal history so intriguing. Two areas of law apparently widely separated are in fact creatures of a single complex set of ideas and practices: “marriage and family law” on one side and "federal Indian law" on the other.
In Part One, we looked at “property” in legal theory.
Here, we delve into “marriage and family law”.
Femme Covert [“covered woman”]
Sir William Blackstone, author of the powerfully influential Commentaries on the Laws of England (1765) wrote:
By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law- french a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture.
In sharp contrast, Tapping Reeve, author of Baron and Femme (1816), the first American treatise on “domestic relations” law, wrote:
The law does not view the husband and wife as one person.
The full title of Tapping Reeve’s book is a complicated mouthful, 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. With An Essay on the Terms, Heir, Heirs, and Heirs of the Body. 1
Baron and Femme is an important artifact of late 18th and early 19th century US legal history. Reeve founded and taught at the Litchfield Law School, "the earliest, the largest, and by far the most influential" of the proprietary law schools that constituted the transition from apprenticeship to university-based legal education in America.2 As Angela Fernandez said, “Reeve influenced…early American legal culture…through his school and his treatise”.
Property — who owns it, what it is, how it is transferred, what happens to it when its owner dies: these and other questions are what constitute the focus of every chapter of "domestic relations" in Reeve's book.
Reeve took advantage of the fact that in post-Revolutionary America many legal issues were up for grabs. His classes may have been confusing because he included teaching law as it was and law as he believed it ought to be. Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (1982), wrote of “Reeve's discomfort with certain aspects of the law of husband and wife”:
He was forced to tell his students what the law was while he criticized its logic. Nowhere was he more critical than with regard to the wife's loss of testamentary power. He did not see how it was possible for a single woman to make a will that was suddenly nullified by her marriage.
"Has marriage," he asked, "caused her to lose her ability or her volition? ... She who was sufficiently discreet to devise when unmarried, is not by marriage rendered less discreet."
Was it not enough, he protested, that marriage already gave so much to the husband at the expense of the wife? Why should she die intestate as well? Surely a mother as a testator should have the power to reward or punish children for their behavior. Economic sanctions grounded on moral considerations should belong to the mothers of the republic as well as to the fathers.
Reeve is sometimes credited with an early version of feminism because he proposed emancipating married women from the feudal restrictions of “baron and femme”. It seems clear to me, however, that Reeve focused on issues of women's property because he wanted to encourage the development of a market economy: He was really interested in freeing property from feudal restrictions.
In “Invisible Women: The Legal Fiction of Marital Unity in Nineteenth-Century America” (1979), Norma Basch explained:
The impulse for legal change was economic as well [as political]. A readjustment between the married couple and the commercial world seemed essential to the flow of commerce. Coverture, after all, was designed to meet the needs of a medieval agricultural monarchy whose economic focus had been descending scales of tenancy in land; its emphasis was on the rights and duties associated with real property. It was a striking anachronism in an economy in which land was a salable commodity and personal property was growing in significance. The development of life insurance, the growth of savings banks, the increase in corporate stock, and the presence of a female wage-earning class all compelled a redefinition of the legal position of the wife.
Master Narrative
The property relations in Baron and Femme are not simply about man and wife, master and servant, etc., but also about a great variety of third-persons in relation to the “domestic” pair — creditors, debtors, grantees, grantors, and so on. All forms of property — personal and real — and almost all possible permutations of ownership, exchange, and transfer are discussed in Reeve’s nearly 500 pages of analysis.
In this way, Baron and Femme takes on the characteristics of a master narrative of early American society. I mean this in two senses: it is a narrative that encompasses the broad, basic outlines of the prevailing social structure and it is a narrative from the perspective of a master.
The master's perspective is demonstrated by the multiple, layered sets of hierarchies in the title — Baron and Femme; Parent and Child; Guardian and Ward; Master and Servant — neatly arranged in unmistakable symmetry of superior to inferior.
Reeve's chapter on “Powers of Courts of Chancery” and his “Essay on the Terms, Heir, Heirs, and Heirs of the Body” depart from the symmetrical presentation, but are nonetheless elaborations of hierarchical relations.
Chancery originated as the law of "the king's conscience" and took charge of reducing monarchical commands to writing.
Harold J. Berman, in Law and Revolution (1983), explained:
Chancery ... had the power of the royal... seal. That meant that the chancellor could issue orders in the name of the king. ... Through writs and other kinds of formal documents, the chancery could ... deal directly with barons, bishops, and other persons who participated in the government of the country at lower levels.
Similarly, the terminology of heirship was rooted in feudal hierarchies with fine distinctions about the rights of various parties. As Reeve points out:
These distinctions ... would ... have escaped the man that possessed nothing more than plain good sense, and a sound understanding.
In short, Baron and Femme is a treatise on hierarchies of property and power as they devolved from feudalism. The title itself is an obvious relic of feudalism, in which every man was noble in relation to his woman—a notion derived from feudal Norman custom.
First among the fundamental propositions of the law of baron and femme was “the right of the husband to the person of his wife. This is a right guarded by the law with the utmost solicitude.”
US Supreme Court Justice Joseph Story articulated this proposition in a concurring opinion in Dartmouth College v. Woodward, the (in)famous “corporate person” case we looked at in Part One. Discussing a tangential issue about the possible effect of the constitutional “contract clause” on marriage, he said:
Marriage is always in law a valuable consideration3 for a contract…[equal to] any other contract for a valuable consideration.
A man has just as good a right to his wife as to the property acquired under a marriage contract. He has a legal right to her society and her fortune, and to divest such right, without his default and against his will, would be as flagrant a violation of the principles of justice as the confiscation of his own estate.
Marriage, seen from this perspective, is a contract by which the husband gains right to the person and property of the wife. This is what they bargain about in their contracting.
Reeve expressed a common notion that the ‘fairer sex’ might not be up to the task of hard bargaining with the ‘stronger sex’:
The wife before marriage is indeed sui juris, capable of contracting, and competent to take proper care of her own concerns. Yet it is not supposed that a female, unaccustomed to bargains, in the moments of her warm confidence in the honorable and generous intentions of her suitor, will always sufficiently guard her rights.
In 1790, John Marshall, future US Chief Justice was still a practicing lawyer. In Crump v. Dudley, a case in Virginia's High Court of Chancery, he represented plaintiffs seeking ownership of slaves who were caught up in a complicated family history involving a will, heirship, marriages, and a sale. The specific issue involved the validity of the sale of the slaves by a prospective bride on the day before her marriage.
Marshall argued that the sale should be set aside as having been made "with an intent to deceive and cheat the husband." Marshall admitted that the would-be husband had not discussed his fiance's property, so there was no evidence her property was part of the “consideration” for the marriage.
But, Marshall explained to the court:
That [control of her property] could not be mentioned ... since it is not to be expected that declarations to that effect could be made by a gentleman who is endeavoring to obtain a lady's affection.
Marshall won the case in the High Court of Chancery, but lost on appeal when the Supreme Court of Appeals of Virginia agreed with the defendants that the sale had been accomplished while the wife was still an unmarried woman with “as perfect and complete a control over her property, as any other free person whatever”.
Slaves, ‘Indians’, Married Women’s Rights
Ultimately, it was state legislatures rather than courts that undermined the doctrines of coverture. By the middle decades of the nineteenth century, states began passing piecemeal legislation removing the legal disabilities of married women, though courts, jealous of legislative power and reared on the common law, often interpreted the statutes narrowly. By 1865 twenty-nine states had passed some form of married women's property law.
In 1839, Mississippi became the first state to grant married women the right to hold property in their own names: “An act for the protection and preservation of the rights and property of Married Women.”
The history of the Act is replete with strange twists and turns, including that it was prompted by the decision in an 1837 case, Fisher v. Allen, involving a creditor’s effort to compel the sale of a slave to satisfy a debt for attorney’s fees, where the slave was given to a girl by her mother, married to the debtor under the customs of the Chickasaw Nation.
The High Court of Errors and Appeals of Mississippi ruled:
By the customs of the Chickasaws, the husband acquired no right to the property of the wife which she possessed at the time of marriage. It remained to her separate use and subject alone to her disposition and constraint. She was, so far as it regards the obligation of contracts, the acquisition and rights of property, perfectly independent of the husband. …
The slave Toney, who had been levied upon to satisfy Fisher's demand against [the husband], was proved to be the separate property of [the wife]… and from what has been stated of the rights which arise to the husband under the laws and customs of the Chickasaws, it is obvious that no title to this slave vested in [the husband], which could subject him [the slave] to the claims of [the husband’s] creditors.
“An Act for the Protection and Preservation of the Rights of Married Women” consisted of five short sections, four of which explicitly address property in enslaved people.
On one hand,
It is an indisputable fact that in Mississippi, a slave state with a paternalistic society, radical reform had been set in motion with the passage of this bill.
On the other hand,
We cannot and should not accept any version of legal history that…celebrates…an uncomplicated victory for “women's” rights.
Market Concept of Land
Reeve was not so much a "feminist" as a capitalist. That is, his concern had more to do with paring back feudal encumbrances on property than with emancipating women from baronial servitude. His attitude throughout was to offer a "rational" system of property law, as it existed within the structures of certain hierarchical legal arrangements. He tilted away from some of the gender-based restrictions in the old law not because they were gender-based but because they were restrictions on the alienability of property. He was careful to preserve a sphere of "protection" for the wife, while arguing for an interpretation that would allow greater freedom of action for her.
However valuable the right to engage in property transactions may appear from a feminist perspective of personal rights, it seems clear to me that Reeve was primarily concerned with the value of such right from the perspective of a market economy. His discussion focused again and again on the rights of the wife in relation to third parties — debtors and creditors, grantees and grantors, heirs and assigns, etc. Rights and powers were ascribed to the wife not as a person, per se, but as a participant in the economy of property. If Reeve was a feminist in any sense, it was because his commitment to a market concept of property led him to that perspective. Feudal restrictions were problematic not because they were aimed against wives, but because they were aimed against the alienability of land.
The Fisher case was decided in this context, as Megan Benson explained in “Fisher v. Allen: The Southern Origins of the Married Women's Property Acts”:
It is within the context of allotment treaties and Indian removal that Fisher v. Allen is to be understood.
The 1837 decision allowed Chickasaw women to convey property freely in an unrestricted, traditional, matrilineal descent. …The decision gave Chickasaw women the right to convey property freely to the increasing numbers of white land speculators gathering in the Chickasaw nation. That freedom made the choice of the land sale and the move West seem to be the inevitable, if lamentable, result of natural market forces rather than the design of those white speculators.
Next Up
The market concept of land brings us to the commingling of women and ‘Indians’ in the system of feudal power. Reeve nowhere discusses Indigenous Peoples in his book; but his exegesis of property concepts in transformation from feudalism to capitalism was completely congruent with—but opposite to—what was happening in the law of property being developed at the same time to support a US claim of title to lands of Indigenous Peoples. That part of the story continues in Part Three of this series.
In Reeve's day, "domestic relations" was a much broader field than it is today. Nowadays, "master and servant" and "guardianship" are considered topics in their own right and separate courts of chancery do not exist.
John H. Langbein, "Blackstone, Litchfield, and Yale," in History of the Yale Law School (2004).
“Consideration” is a basic element of a valid, binding contract—an ancient, hoary, and metaphysical concept rooted in 16th century common law—“the value or benefit for which the mutual promises are based upon and which the parties are required to bargain for”. The doctrine is typically taught in law school contracts classes, despite the fact that it has limited utility in law practice. In a 2020 Nevada Law Journal article, “Stop Teaching Consideration,” CUNY law professor Alan M. White wrote: “Consideration doctrine is riddled with exceptions, is largely unhelpful or even counterproductive in deciding contract disputes and has lost its explanatory power. The time has come to abandon this fruitless pedagogical exercise once and for all. We should stop teaching consideration as an element of contract law to new generations of law students.”
Thanks for the info, Peter... most of which shows how such legal stuff is, to borrow a pun line from The Three Stooges, "Baron of Greymatter."
If corporations are people, we should be able to jail the entire organismation.