Tuesday, November 22, 2011

Fernandez on "Fading Federalists" and Family Law

Angela Fernandez, University of Toronto Law, has posted the paper she presented at this month’s meeting of the American Society for Legal History, Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity. Here is the abstract:
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 approach, Coke and Blackstone, over the indigenous position that jurists in New England were cultivating that sought to emphasize the rights of married women.

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