Oldham on Creditors and Feme Covert

My Georgetown Law colleague James C. Oldham has posted Creditors and the Feme Covert, which is forthcoming in Law and Legal Process, ed. M. Dyson and D. Ibbetson (Cambridge University Press 2013).  Here is the abstract:

As is well-known, the Court of King’s Bench in Marshall v. Rutton (1800), under Chief Justice Lloyd Kenyon, overruled earlier King’s Bench decisions by Lord Mansfield that had allowed creditors to prevail in suits against married women in an expanding set of factual circumstances. As Kenyon confessed in Marshall, he had never been satisfied with the Mansfield decisions, and had wished that a case “should come to take away all the difficulties.” The Marshall case fulfilled his wish. Kenyon, however, was not the powerful leader of King’s Bench that Mansfield had been, and but for fortuities of judicial turnover, the turnabout in Marshall might not have been effected.

The Marshall case was argued twice before eleven of the twelve common law judges, first on May 9, 1798 (absent Baron Perryn), and again on May 10, 1780 (absent Justice Buller). The printed report of the case (8 Term Reports 545) is relatively brief, containing only Chief Justice Kenyon’s judgment. The Paper Book belonging to junior King’s Bench justice Soulden Lawrence, however, survives at Lincoln’s Inn Library, and it contains extensive notes by Lawrence of the two arguments before all the judges. The notes reveal that by the time of the second argument, a sea change in judicial attitudes had occurred. When the case was first argued in 1798, two of the justices who had voted with Lord Mansfield in earlier cases were still serving – Justice Ashhurst on King’s Bench, and Justice Buller, formerly Mansfield’s protégé on King’s Bench, who had transferred to Common Pleas in 1794. By the time the second argument arrived in 1800, Justice Ashhurst had resigned and Justice Buller was in failing health (he died a month after the second argument, which he did not attend). Also, Chief Justice Eyre of the Court of Common Pleas, who attended the first argument, died in July 1799 and was replaced by former Attorney General Sir John Scott, newly-created Lord Eldon. Further, plaintiff’s counsel at the second argument was Edward Law (who in 1802 became Lord Ellenborough and succeeded Kenyon as Chief Justice of King’s Bench), and it is clear from colloquies between Law and the judges that Law did not have his heart in the case.

The fact that newly appointed judges find ways to effect change while pretending to honor stare decisis is hardly surprising. It is nonetheless important where possible to make the historical record transparent. Justice Lawrence’s manuscripts allow us to see behind the curtain in the influential case of Marshall v. Rutton. Further, it is interesting in light of Chief Justice Kenyon’s views as expressed in Marshall to consider who was held liable for the wife’s “necessaries” in cases decided in the years that followed, especially when the husband’s behavior toward the wife was violent, brutish, or shockingly dismissive.