Tapping Reeve, Coverture and America’s First Legal Treatise
ANGELA FERNANDEZ*
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.
William Blackstone, Commentaries on the Laws of England (1765)
The husband and wife in legal consideration are one person, her existence is united with and swallowed up in that of the husband [. . .] As the law contemplates the husband and wife as being but one person, it allows them to have but one will, which is placed in the husband, as the fittest and ablest to provide for and govern the family . . .
Zephaniah Swift, A System of the Laws of the State of Connecticut (1795)
The law does not view the husband and wife as one person . . .
Tapping Reeve, Baron and Femme (1816)
I. INTRODUCTION
TAPPING REEVE WROTE in his treatise on domestic relations the following surprising statement: ‘The law does not view the husband and wife as one person’.1 Surprising because we have come to think of Blackstone’s insistence that a husband and wife were one person and the famous passage above from his Commentaries about coverture as a final and authoritative statement of the law, grounded as it was on that second bible of English common law in the colonies, Coke Upon Littleton.2 One would have thought that Coke plus Blackstone created firm ground if ever there was any on the point in nineteenth-century American law. It is certainly treated that way by both lawyers and historians of married women’s property rights who have taken little notice of Reeve.3 Tapping Reeve taught students at his school in Litchfield, Connecticut and wrote in his treatise that the language of one-person-in-law was ‘metaphorical’ only.4 How could it not be, Reeve asked, when one found that a married woman was ‘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’?5 Reeve argued that coverture could not mean that the legal existence of a woman was subsumed by her husband or suspended for the term of the marriage since she could still be a guardian and give a receipt. The power to engage in such activities showed that it could not be true that a wife ‘has no existence during the coverture, and is destitute of volition’.6 The maxim that a wife had no will had ‘not the least foundation in common sense’.7 She should, for instance, be allowed to make a will, one of the very basic entitlements of a subject with legal personality.8
Why did Reeve take such a surprising position? What hope did this reverse-principle ever have of carrying the day? Lest Reeve’s position appear to be some kind of quaint aberration, it must be said that in fact his views had noteworthy effect. The most dramatic evidence of this is a statute Reeve’s students passed in the Connecticut legislature in 1809 empowering married women to make wills. Scholars of married women’s property law have found it puzzling why this statute appeared so early (especially in Connecticut which was known for being particularly restrictive of women’s property rights) when reform enabling married women to bequeath property did not occur in most states until after 1850.9 Well, evidence suggests that the Connecticut legislature was filled with Reeve’s students, who were exposed to his passionate arguments on the issue and were convinced enough by them to pass the law.10 The other place to look for evidence of influence is subsequent legal commentary. James Kent, while generally keen on Reeve’s work, did not agree with Reeve’s position on the legal personality of married women and declined to follow it in his famous Commentaries on American Law.11 Kent chose Coke (and impliedly Blackstone) instead.12 However, Nathan Dane, in his abridgement on American law, did follow Reeve, showing that not only was Reeve’s book an important one, Reeve was persuasive to some on this most controversial point, rejection of the one-person-in-law maxim. Relying directly on Reeve, Dane wrote ‘the notion that a wife has no will, is a mere fiction without foundation in fact’.13 Reeve influenced students and early American legal culture more generally through his school and his treatise, a truly didactic or teaching text. The second question, why Reeve put forward the position he did, is more difficult to answer. It relates as we will see to Reeve’s religion, his own marriage and conditions that were unique to Connecticut during this period.
The first quarter of the nineteenth century was a time in post-Revolutionary America when many legal issues were up for grabs. In a way, the independence Reeve exhibited in his treatise was simply in keeping with the express legal philosophy that, after the Revolution, Connecticut did not have to follow English common law and, indeed, it should not if that law was wrong or made no sense. Rejection of the Coke/Blackstone maxim was certainly in keeping with this, however out of step it might be with what we have learned about the law of husband and wife in the nineteenth century. However, Reeve did not present his arguments as part of Connecticut’s right to go its own way or a continuation of what we will see was a Puritan orientation in the law specific to New England. Rather Reeve called what he wrote in the treatise ‘English law’ that was of concern to Connecticut and other states in the Union. While he included discussion of some English statutes and cases, we will see that by and large Reeve argued from what I will call ‘pure principle’, not only ignoring local Connecticut cases (those for and against) but going so far as to ignore positive law like the 1809 statute that actually supported and vindicated him. How are we to understand such odd behaviour in a legal treatise?
When Roscoe Pound lectured in 1936 about the ‘taught law’ tradition and its connection to Kent’s Commentaries and treatise writers like Joseph Story and later John Henry Wigmore and Samuel Williston, he used Reeve’s Baron and Femme to mark the beginning of ‘American text writing as a significant force in our legal development’, identifying it in effect as the first American legal treatise.14 It might be something of a stretch to call the work a treatise. Reeve himself did not do so in his title, nor, we should note, did Pound. While Baron and Femme is written on a specialised topic, constituting a treatment of the law of husband and wife, it is really a collection of Reeve’s lectures and might well be judged to be not rigorous or systematic enough in its arrangement or presentation in order to qualify as a treatise. However, we should note that later editors who updated Reeve’s text did not hesitate to call it a treatise.15 And Reeve’s book is nothing if not a statement of principle. Indeed, the issue is not a want of principle; it is rather the absence of precedent that makes it an odd legal treatise.
We have come to think of the legal treatise as a place where an expert (lawyer, judge, academic) commits to paper explanations of legal doctrine supported by sources of positive law: cases and statutes (at a bare minimum). Such a treatise becomes persuasive and authoritative (if it does) in part because of who the writer is; but that judgment is also based in part on the sense that develops in the relevant legal community that the author can be trusted in his or her use of the positive legal sources. When a treatise writer pushes and wants to move from the descriptive to the normative, there is usually a signal to that effect, a mark to the reader, a ‘we might suggest’ or ‘it seems to us’.16 What is striking about Baron and Femme is that Reeve does not do this. He does not report what the cases say, for instance, and then go on to argue that they were wrongly decided; he simply ignores the cases and statute law and argues for what he thinks the law ought to be. In the case of married women making wills, it makes no sense to say married women have no will and so a default common law presumption that they cannot make a will cannot be correct. No doubt many treatise writers play some sleight of hand with the cases, burying points to the contrary in footnotes no one will follow up on or justifying exclusion of problematic or complicating cases on the grounds that the case is badly reasoned, the court is not of a sufficiently high authority, or the point of view is considered by those in the know as old or out of date.17 Indeed, ‘[t]he reader who blinks’ might well miss the treatise writer’s shift from descriptive to normative, always a slippery line at best.18 But excluding the most relevant cases and excluding positive law that actually supports the point? This seems to stretch the limit. However, Reeve did just that in Baron and Femme. He simply did not seem to feel the need to be bound in his treatise in the ordinary positivist ways. Instead he capitalised on a moment in which a legal scholar could (somewhat surprisingly) actually invoke English law as a way to challenge or contradict a formulation of that common law in a new environment. This is extremely interesting, creating in effect a version of English law that no English lawyer would agree with, evidenced in this case by rejection of the one-person-in-law maxim. Reeve’s treatise was teaching and speaking to lawyers in early America, invoking the authority of the common law while simultaneously challenging and re-creating it. In doing so, he acted as a typical ‘fading Federalist’, using whatever authority he still possessed (as a judge, teacher and treatise writer) to fashion a new American common law, only loosely connected to England and tied very much to local conditions, despite what it formally claimed and disclaimed.19
II. CAN A MARRIED WOMAN MAKE A WILL?
In the preface to Baron and Femme, Reeve wrote that ‘the governing principle’ of each subject must be viewed as the ‘pole-star’.20 In the case of a will, the ‘pole-star’ was the intention of the testator. In England, married women were expressly prohibited from being testators by statute. A sixteenth-century statute expressly listed married women among those legally incapable of making a will. Connecticut did not formally receive English law after the Revolution. There was no reception statute.21 And so English statute law, like English common law, did not formally bind the territory. Connecticut jurists like Reeve’s own teacher, Jesse Root, stated that the common law of England was not the common law of Connecticut.22 And while ‘[t]he common law of England we are to pay great deference to . . . the rules, however, which have not been made our own by adoption, we are to examine, and so far vary from them as they may appear contrary to reason or unadapted to our local circumstances, the policy of our law, or simplicity of our practice’.23 As one of Reeve’s students put it in the notebook he copied, ‘[t]he com’[mon] law of Eng. [land] [h]as been accepted so far as it has been considered as applicable to the local circumstances of [this] country; but where it has been considered as inapplicable it has been rejected’.24 Here then was the opportunity to depart from English common law and English statutory law should there be the desire to do so.
The Connecticut legislature did not speak clearly when it turned its mind to the issue of whether or not married women would be allowed to make wills. When the state revised its laws in 1784, including its statute on testamentary capacity, it added the phrase ‘and all others legally incapable’ to the list of those who could not make a will.25 Had the English statute made it notorious that married women were to be included among those ‘others’ who were rendered legally incapable? Or was it an exclusion that the legislature needed to make explicit? Deviation suggested meaningfulness, Reeve argued, given that the statute was ‘in many of its expressions . . . a literal copy’ of the English one.26 Here was a question at least.
The Connecticut Superior Court held in 1786 that the will a married woman made disposing of her own lands was void.27 This case, Adams v Kellogg, was overruled by the Supreme Court of Errors, the state’s highest court. Zephaniah Swift wrote in 1795–96, ‘the law is now settled, that a married woman may make a devise of her own lands, even to her husband’.28 Blackstone had written that a married woman could not will lands to her husband as she is ‘at the time of making it [the will] she is supposed to be under his coercion’.29 The worry was the usual one that a wife would be pressured by her husband to will her lands to him. Under English law, when a married woman died, her husband was granted ‘curtesy’ in her lands, a kind of life estate, but only if there were children of the marriage. The husband was never given the fee simple, which stayed with the wife’s family. Reeve argued that a husband’s curtesy should not depend on the birth of a child despite the rationale for the rule, which was to provide support for children of the marriage.30 Indeed, Reeve’s advocacy for extended rights of curtesy and a married woman’s power to make a will, even to her husband, raises the question of whether his was more a case of ‘husband’s rights’ than ‘women’s rights’, particularly for husbands like him from a modest background who married into families of power and wealth like his first wife, Sally Edwards Burr, whose family would have worried about a husband like him.
Zephaniah Swift was another important Connecticut jurist in this period. He too ran a law school but in the northeast part of the state (Litchfield was in the northwest). Swift wrote a number of important legal works, including A System of the Laws on the State of Connecticut in 1795–96 (a two-volume set of commentaries on Connecticut law) and a two-volume Digest of the Laws of the State of Connecticut in 1822–23. He is sometimes called ‘the first American treatise writer’ on the basis of this first book despite its Justinian-inspired persons-things-actions structure that made it more like Blackstone’s Commentaries than a treatise on a discrete and specialised topic.31 Swift was a Democrat where Reeve was a Federalist. From 1801 to 1815, he and Reeve sat together on the Supreme Court of Connecticut (where both were eligible to sit on the once-a-year session of the Supreme Court of Errors). Not surprisingly, given their rival schools and political backgrounds that were almost literally at war with one another in Connecticut at this time, their views on the bench were ‘often divergent’.32 Swift was much more positivistic in his approach to the law than Reeve was.33 Swift wrote ‘a commentator on the laws must take the laws as he finds them’.34 As Morton Horwitz put it, Swift ‘came as close as any jurist of the age to maintaining that law is what the courts say it is’.35 On the topic of married women, Swift was also much more conservative. He opposed separate estates on the grounds that husband and wife could not make a contract with one another and he and Reeve battled over this.36 Swift accepted Blackstone’s maxim that the husband and wife were one person in law. Indeed, his version of the statement replaced Blackstone’s emphasis on coverture with an emphasis on ‘one will’, which was, he wrote, ‘placed in the husband’.37 How then could a married woman make a document purporting to be a reflection of her own will, no longer having one and residing in her husband? Although he must have disagreed with the result in the case, Swift dutifully recorded in his first work, A System of the Laws, what Adams v Kellogg said the law was – he might not like it but a married woman could make a will of her lands in Connecticut.
This issue, however, did not go away. Reeve and Swift would have found themselves on opposite sides of it as judges in the Supreme Court of Errors in 1805. In this case, Fitch v Brainerd, the court reversed itself, declaring that Adams v Kellogg ‘was not law’ after all.38 After reviewing the relevant statutory and common law history, the court found that there was no established practice in Connecticut of allowing married women to devise. ‘For near a century, femes-covert had no estate to devise. The custom for them to devise, if such it may be called, is very recent, as well as very limited – confined, so far as is known, to a few instances, and within the last twenty years’.39 There is no indication in the report who wrote the decision, but it became known in Connecticut legal circles as the case in which Zephaniah Swift reconsidered how radical the departure from English law should be.40 Swift’s first book, his System of the Laws, often argued from principle that the law should be this or that way. His second book in the 1820s is much less likely to start talking about how the law should be. It is a digest and in it he is obviously primarily concerned with gathering together what the state has now said the law is.41 However, in Fitch v Brainerd, Swift could do as a judge (in concert with others) what he did not feel he could do as a legal writer even in 1795–96, namely, reverse a case he thought was bad law. Unlike Reeve, he did not think he could ignore it and say the law was the opposite of what a case from the state’s highest court said it was.
Reeve, on the other hand, takes a completely different attitude. His two chapters on the willing issue in Baron and Femme do not refer to either Adams v Kellogg or Fitch v Brainerd. He wrote that he would approach the issue ‘independent of any authorities; as if it were a question wholly novel, respecting which there had been no adjudications, and was now to be decided upon principle. In such case, unshackled with precedents, nothing can govern us, in deciding the question, but what is reasonable and right’.42 He did not say there were no authorities. He said he would treat the question ‘as if’ there were none.43 We know that Reeve promulgated this ‘as if’ approach almost 15 years before he was over-ruled in Fitch v Brainerd and he might have been doing it for even longer, strongly suggesting that he did not ignore Connecticut case law simply because it was unfavourable to him. Indeed, the earliest available version of these lectures on a married woman’s right to make a will were given in 1791, at a time when he could have relied on Adams v Kellogg to support him and did not.44 Authorities for or against were not determinative. ‘[I]f the authorities teach a different doctrine . . . nothing more can be inferred from this, than that the law, in this instance, is unreasonable’. While admittedly, ‘[n]o maxim is of more utility to the community than stare decisis’, Reeve wrote, ‘we can never fail to decide on that side which is reasonable and right’.45 A de novo treatment, with complete disregard of the cases in the jurisdiction, was a perfectly legitimate way to arrive at a statement of what the law was.
Reeve’s reasoning is a remarkable statement of pure principle given the absence of any connection to precedent. The spirit that motivated it seems very similar to the Supreme Court of Errors’ blanket pronouncement that Adams v Kellogg was no longer (and maybe never was) law. However, a court of law is authorised to issue such statements, make law or over-rule if necessary its previous decisions. In the hierarchy of formal sources of law, a treatise cannot do this, no matter how authoritative its author is. It can recommend that the law be changed (because it is bad, unreasonable, immoral, inefficient, ugly or for any other reason); but a common law treatise ignoring case law and setting out what the law is in opposition to what case law in the jurisdiction says stands in serious danger of simply being characterised as a bad treatise. So, for instance, in 1804, in a case called Dibble v Hutton, the Supreme Court of Errors adopted the Coke/Blackstone version of the one-person-in-law maxim in no uncertain terms: ‘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’.46 How could Reeve continue to write what he did in Baron and Femme about this issue in the face of such a ruling? This was not just ‘law-making by treatise’ but over-ruling by treatise.47
Some contemporaries did see Reeve’s treatise as a bad treatise. One former student, Edward Deering Mansfield, who moved to Ohio, ‘the new Connecticut’, and wrote his own (extremely conservative) book on married women’s property rights, said that ‘the lawyers admired [Reeve’s treatise on Domestic Relations], but said [it] was not law, on account, I believe, of its leaning too much to women’s rights’.48 In making this statement, Deering seems to have been politely saying that this is what he thought. I am sure Swift would also have viewed the book that way, both for its disregard for the positive law in Connecticut and for being too progressive on women’s issues.
III. WHY DID REEVE ARGUE AS HE DID?
Reeve’s promotion of women’s rights was almost certainly related to his religion. Reeve was an ardent Congregationalist, the traditional dominant sect of Calvinist Protestantism in New England, and he was very active in a movement known as the ‘Second Great Awakening’ in Connecticut, a long revival that took place in New England in the 1790s. Women had special roles to play in this kind of evangelical movement. They constituted the greatest number of converts during revivals, and they figured prominently in the organisational efforts of reform organisations, including anti-slavery and temperance groups. Indeed, the era has been called ‘an age of female societies’ given the importance of women in raising money and organising various charitable and other kinds of institutionally-organised activities.49 Women moved outside the domestic sphere in order to participate in these activities, raising their prominence and importance in areas that men like Reeve cared about and were impressed by the ability to make achievements in.
High numbers of female participants in religious activity in this period have led some scholars to speak about the ‘feminization of Protestantism’.50 Doctrines like infant damnation – something that caused particular distress to mothers who lost children before they could be baptised – came up for reconsideration.51
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