I presented the following lecture in 1998 at the Litchfield (CT) Historical Society, which operates the Litchfield Law School Museum on the site of the original school, founded in 1784 by Attorney Tapping Reeve. The Litchfield Law School has been called "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. [John H. Langbein, "Blackstone, Litchfield, and Yale," in History of the Yale Law School (New Haven: Yale University Press, 2004), p. 23.]
Reeve wrote the first American treatise on domestic relations law: 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 (New Haven, 1816) Several later editions were produced by different editors. The third edition was reprinted in 1970 and 1998, presumably because of increased interest in gender issues in law.
My lecture is intended as an analysis and critique of this seminal treatise, in the wider jurisprudential context of Reeve's era, which saw important doctrines formulated in property law in American jurisdictions, not only with regard to the immediate subjects of his book.
The Law of Baron and Femme (1816), by Tapping Reeve, judge and founding teacher of the Litchfield Law School, is an artifact of legal history: an explanation of marriage (and other "domestic relations") in late 18th and early 19th century United States.
I emphasize property and political-economy in discussing Baron and Femme because the whole book and the field of law with which it is concerned centers not on human relations, but on property as refracted through human relations; or, perhaps it should be said, on human relations as refracted through property.
Property, in legal theory, is not a thing, but a set of relations. The classic definition is that. "A owns B against C." To define property is thus to represent boundaries between people. Reeve's book is a treatise on hierarchical relationships of property and power.
Religious trappings aside, the husband-wife relation is about access to and control of property, which is regarded as the bedrock of society. Reeve's efforts to define property independently from religious issues were not unique; they were part of a wider movement of the time to separate law from theology. The secular articulation of the law of "baron and femme" did not necessarily result in a change in or expansion of married women's rights. The basic structure of marriage remained the same: wives, even when they could own separate property, were limited in the actions they could take by considerations of the rights of their husbands.
Reeve is sometimes credited with proposing emancipation of women from the restrictions of feudal laws of baron and femme. It seems clear to me, however, that Reeve focused on issues of women's property from his concern for the development of a market economy. If Reeve was a feminist in any sense, it was because his commitment to a market concept of property led him to that perspective.
The market concept of property brings us to the commingling of women and American Indians in early colonial law. Reeve's book nowhere discusses Indians; but his exegesis of property concepts in the transformation from feudalism to capitalism was completely congruent with what was happening in American law to define title to lands of indigenous peoples within the exterior borders of the United States.
Johnson v. McIntosh (1823), decided four years after the publication of Reeve's book and one of the most significant property cases in United States law, restricted the power of Native Peoples over their property, replying on concepts similar to those used in feudal law to limit a wife's power over property.
Ironically, while Reeve wrote in favor of the transformation of American law away from feudal restrictions regarding women and property, the U.S. Supreme Court decided in Johnson v. McIntosh to deprive Native Peoples of property rights on the basis of feudal conceptions of kings and "heathens."
The Law of Baron and Femme, by Tapping Reeve, judge and founding teacher of the Litchfield Law School, is an artifact of legal history. It would be a useful object of study even if it did not deal with topics frequently associated with legal and cultural conflict. It illuminates the foundations of our present situation.
The title on the binding of Reeve's book is "Domestic Relations." Current usage defines this as the branch of law that deals with "matters of the household or family, including divorce, separation, custody, support and adoption." Black's Law Dictionary, 5th edition (1979). Reeve's full title, as given on the title page, is "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."
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.
To begin with, in Reeve's day and our own, the notion of "domestic relations" implies a contrasting notion -- foreign relations, or public relations. Family and household (and for Reeve, the relations of master and guardian) are conceived of not simply as a microcosm of the wider world, but different from and perhaps antagonistic to it. As one North Carolina court put it in a mid-19th century case of wife beating:
The courts have been loth to take cognizance of trivial complaints arising out of the domestic relations -- such as master and apprentice, teacher and pupil, parent and child, husband and wife. ...[F]amily government is recognized by law as being as complete in itself as the state government is in itself, and yet subordinate to it.... ...[D]omestic government[s], which they have formed for themselves, suited to their own peculiar conditions, ... are supreme, and from them there is no appeal, except in cases of great importance requiring the strong arm of the law, and ... to those governments they must submit themselves. State v. Rhodes, 61 NC 453 (1868), quoted in Bonsignore, et al., Before the Law (Boston: Houghton Mifflin, 1998), 12, et seq.
The "domestic" realm is pictured in terms of hierarchical relationships that are both separate from and subordinate to the wider world of legal relations. Some of these relationships -- husband and wife, master and servant -- are created by agreement, by contract, thought not necessarily between equals, while others -- parent and child, guardian and ward -- are in a sense "given" by the situation. Apart from this "domestic" arena, human relations are presumably conducted as between strangers, albeit strangers who owe certain duties to each other.
Let me digress for a moment. We speak casually about the "nuclear family" as if that were an unproblematic concept, as if the marriage relation at the core of "domestic relations" were the core of society generally. This is a mistake.
The "domestic relation" of marriage is the "nucleus" of a particular view or kind of society, based on contract between individuals. This view is supported by the Bible story in which the human race starts as one (or two) individual(s); "social contract" theories of various sorts put forth this view. In other kinds of societies -- ones we might call "tribal," or clan-based -- the husband-wife pair is not the nucleus, but rather a meeting point between sections of society (or between societies) built around kinship and centering on a different male-female pair: brother -sister. One chapter in Reeve's book explains the validity and invalidity of marriages according to degrees of kinship between the parties. Rooted in Biblical injunctions as well as in ancient human experience, he says the law will refuse to recognize a marriage between siblings or between parent and child.
The reason for this digression is to allow us to see Baron and Femme as an explanation of marriage (and other "domestic relations") in a specific social situation -- namely, late 18th and early 19th century United States. The fact that this period spans the political watershed occasioned by the revolution of American colonies from the English crown means that we are witnessing also in Baron and Femme a moment in social dynamics.
Property relations were central to the colonial revolution and were the basis of political structures that fomented and won the war. We must remember that the war against the king was more a multiple and coordinated coup d'état by an oligarchy of property owners than it was an overthrow of the "Crown" in favor of "the people." When Daniel Shays and his fellow farmers discovered this, their uprising was a major catalyst for urgent meetings in Philadelphia to devise a Constitution strong enough to protect property from democracy. The Supreme Court of the United States used the new Constitution in just this way when in 1819, just 3 years after publication of Baron and Femme, it overturned the New Hampshire legislature's attempt to make Dartmouth College into a public university.
Two points were clear to the "Founding Fathers": individual property was the basis of "freedom" and only a minority of society were property owners.
The nation's Founding Fathers were acutely aware of the latent contradiction in the democratic form of government, as indeed were most political thinkers in the late eighteenth and early nineteenth centuries. They recognized the possibility that the propertyless majority might, once it had the vote, attempt to turn its nominal sovereignty into real power and thereby jeopardize the security of property, which they regarded as the very foundation of civilized society. They therefore devised the famous system of checks and balances, the purpose of which was to make it as difficult as possible for the existing system of property relations to be subverted. Baran and Sweezy, Monopoly Capital (New York: Modern Reader, 1966), 157.
As Adam Smith, sometimes called "the father of capitalism," put it:
Wherever there is great property, there is great inequality. For one very rich man, there must be at least five hundred poor, and the affluence of the few supposes the indigence of the many. ... Civil government, so far as it is instituted for the security of property, is in reality instituted for the defense of the rich against the poor, or of those who have some property against those who have none at all. Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, 4th ed., vol.2 (Dublin: Colles, Moncrieffe, et al., 1785), 224, 229.
I emphasize property and political-economy in discussing Baron and Femme because the whole book and the field of law with which it is concerned centers not on human relations, but on property as refracted through human relations; or, perhaps it should be said, on human relations as refracted through property.
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 famous book. To one familiar with legal theory, this is not altogether surprising. Property, in legal theory, is not a thing, but a set of relations.
Although ordinary language seems to suggest that property is generally a simple relationship between an individual person and a thing, it is actually a ... complicated social institution.... The classic definition is that...: "the property relation is triadic: 'A owns B against C....'" ... To define property is thus to represent boundaries between people.... William Cronon, Changes in the Land (New York: Hill and Wang, 1983), 58.
When we look closely at Baron and Femme, we see that the property relations with which it is preoccupied are not simply between man and wife, master and servant, etc., but between a great variety of third-persons in relation to members of the primary pair -- creditors, debtors, grantees, grantors, and so on. This is also as it should be, for in a social regime based on property and contract, it may be said that social relations are understandable only in terms of triads. This appears in the property relation -- "A owns B against C" -- and, more profoundly, in one's relation to others generally:
... [T]he touchstone of alterity is not the present and immediate second person singular but the absent or distant third person singular. ... Language exists only by means of the other, not only because one always addresses someone but also insofar as it permits evoking the absent third person.... [T]he very existence of this other is measured by the space the symbolic system reserves for him.... Tzvetan Todorov, The Conquest of America, trans. Richard Howard (New York: Harper Colophon, 1985), 157.
When all is said and done, 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 social structure and it is a narrative from the perspective of a master. The first sense is demonstrated by the breadth and comprehensiveness with which the book sets forth the dynamics of the central institution -- property. All forms of property -- personal and real -- and almost all possible permutations of ownership, exchange, and transfer are discussed in its nearly 500 pages of exegesis of received opinion and authority.
Baron and Femme as a narrative from a master's perspective is demonstrated by the title, the multiple, layered sets of hierarchies -- Baron and Femme; Parent and Child; Guardian and Ward; Master and Servant -- neatly arranged in unmistakable symmetry of superior to inferior. The symmetry is reminiscent of a similar structure in mid-16th century Spanish thought, with which the scholar Ginés de Sepúlveda explained the relation between Spaniards and "Indians" of the "New World":
Indians / |
children (sons) / |
women (wives) / |
animals (monkeys) /
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.
...[C]hancery ... 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. Harold J. Berman, Law and Revolution (Cambridge, MA: Harvard, 1983), 444.
The terminology of heirship was rooted in feudal hierarchies, with fine distinctions made as to the rights of various parties by inheritance or otherwise. As Reeve points out near the conclusion of his essay, "these distinctions ... would ... have escaped the man that possessed nothing more than plain good sense, and a sound understanding." Reeve, 484.
Reeve's book is thus a treatise on hierarchies of property and power. We must take note of the fact that marriage is categorized under the heading Baron and Femme, an obvious relic of feudalism (in which every man was noble in relation to his woman), and that marriage is first in the chain of symmetrical relations of superior-inferior. Put simply, marriage is presented as the paradigm of hierarchical social relations.
Religious trappings aside, the husband-wife relation is about access to and control of property, which is regarded as the bedrock of society. No less a lawyer than future Chief Justice John Marshall once explained why property considerations in marriage are often not explicit. In his argument before the Virginia high court of chancery in a case involving a sale of assets by a prospective bride on the day before her marriage, Marshall argued for the sale to be set aside as having been made "with an intent to deceive & cheat the hsbd." Marshall acknowledged that the would-be husband had not discussed his fiancé's property:
That 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. Jean Edward Smith, John Marshall (New York: Henry Holt, 1996), 555, n. 77.
"Holy Matrimony" is the public discourse of marriage, but the theoretical core of Baron and Femme is about power, not love or theology. Reeve touches on theological implications when he discusses the role of the clergy in celebrating marriages:
There is nothing in the nature of a marriage contract, that is more sacred than that of other contracts, that requires the interposition of a person in holy orders, or that it should be solemnized in a church. Every idea of this kind, entertained by any person, has arisen wholly from the usurpation of the church of Rome, on the rights of the civilian. She claimed the absolute control of marriages, on the ground that marriage was a sacrament, and belonged wholly to the management of the clergy. The solemnization of marriage by a clergyman, was a thing never heard of among primitive Christians, until Pope Innocent III. ordered it otherwise. The only ceremony in practise among them, was, for the man to go to the house where the woman dwelt, and, in the presence of witnesses, to lead her away to his own house. It is a mere civil transaction, to be solemnized in such a manner as the legislature shall direct, whether by a clergyman, or any other person. Reeve, 196.
In discussing adultery, Reeve admits some mixture of theology and law:
In the case of adultery, it may be proper to remark, that it is the adultery known to the common law, as understood in the spiritual courts in England, which furnishes cause for divorce; which is, where a married person has illicit commerce with any person. It is not material whether the person with whom the offence be committed, is single or married; which is a more extensive offence than the adultery punished by our statute, which does not punish the offence of illicit commerce as adultery, unless committed by or with a married woman. Reeve, 207.
Reeve's discussions of marriage celebration and adultery are designed to elucidate issues of property rights, e.g., whether "A gains ... right to the person or property of B; [and] ... B ... be entitled to dower, or any advantages in A's estate," or whether the children are bastardized. Reeve, 195, 208.
Reeve's efforts to define property independently from religious issues were not unique; they were part of a wider movement of the time to separate law from theology. But this should be understood cautiously. The separation of law and theology did not mean that legal rights acquired a wholly new form and foundation. Rather, it was more a matter of framing the discussion than of embarking on an entirely new path.
The secular articulation of the law of baron and femme did not necessarily result in a change in or expansion of married women's rights. The basic structure of marriage remained the same: wives, even when they could own separate property, were limited in the actions they could take by considerations of the rights of their husbands. There were limitations on husbands' actions insofar as a wife's rights might be affected, but these were not as extensive.
Consider the opening paragraph of Reeve's book:
The husband, by marriage, acquires an absolute title to all the personal property of the wife, which she had in possession at the time of the marriage; such as money, goods or chattels personal of any kind. These, by the marriage, become his property, as completely as the property which he purchases with his money; and such property can never again belong to the wife, upon the happening of any event, unless it be given to her by his will; and in case of the death of the husband, this property does not return to the wife, but vests in his executors. Reeve, 1.
Reeve explains in chapter two that the wife retains any freehold estate in real property she may have had prior to marriage, but that "the husband is entitled in her right during coverture." Reeve, 23.
It is not until the third chapter that Reeve inquires "what advantages the wife may gain, eventually by marriage, in point of property, during the coverture."
She gains nothing during his life; but upon the death of her husband intestate, she is entitled to one third part of his personal property, which remains after paying the debts due from the estate of the husband, if he left any issue; but if he left no issue, she is entitled to one half of the residuum of the personal estate, after the debts are paid; but the husband, if he had chosen so to do, might have devised such estate from her. Reeve, 37.
By the death of the husband, the wife becomes entitled, during her life, to one third part of the real estate of inheritance of which the husband was seised during the coverture. This estate is termed dower. Of this, the husband cannot deprive her by will.... Reeve, 39.
The fundamental propositions of the law of baron and femme were the same in spiritual or secular terms:
... 1st. The right of the husband to the person of his wife. This is a right guarded by the law with the utmost solicitude; if she could bind herself by her contracts, she would be liable to be arrested, taken in execution, and confined in prison; and then the husband would be deprived of the company of his wife, which the law will not suffer. 2d. The law considers the wife to be in the power of the husband; it would not, therefore, be reasonable that she should be bound by any contract which she makes during coverture, as it might be the effect of coercion. On the first ground she is privileged for the sake of her husband; on the last, for her own sake. Reeve, 98.
The absolute bottom line was that, "The wife never can, by any act of her own, place herself in such a situation, as to deprive [the husband] of his marital right to her person." Reeve, 102. This principle applied as well to torts and, with some exceptions, crimes. Reeve, 72, et seq. The wife was said to be "privileged" by her legal disabilities. Meanwhile, the husband was bound by a rule of support:
The rule is this: He must maintain his wife with necessaries, according to his rank in life, as long as she cohabits with him; and when she does not, if she have sufficient reason for refusing so to do; but if she depart without cause, he is not chargeable with her contracts for maintenance. Reeve, 81.
In the world of baron and femme, an unmarried woman -- femme sole -- could have independence and capacity to act; dependence and incapacity of a married woman -- femme covert -- were traced to a presumed female tenderness. For example, in discussing the rules for evaluating the adequacy of a marriage settlement, Reeve stated:
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. Reeve, 8.
This is the familiar imagery of female rationality compromised by feminine warmth. A similar image occurred in discussion of one species of the husband's personal property in which the wife acquires a special interest; this was called her paraphernalia:
This is of two kinds: the first consists of her beds and clothing...; the second ... of her ornaments and trinkets, such as her bracelets, jewels, her watch, rich laces, and the like. Reeve, 37.
There were some exceptions to the general patriarchal framework of baron and femme in situations where the wife had separate property acquired by a marriage settlement or by deed or bequest after marriage. In earlier times, Reeve notes, such property was conveyed to trustees for the wife, while "[o]f late years, it is no uncommon thing for an estate to be given directly to the wife ... without the intervention of trustees." Reeve, 163. The wife's transactions respecting such property were, nevertheless, hemmed in by the over-arching rule preventing her from "plac[ing] herself in such a situation, as to deprive [the husband] of his marital right to her person." There could be no personal decrees against her, nor could she sue in her own name alone.
Reeve is sometimes credited with proposing emancipation of women from the restrictions of ancient laws of baron and femme. Certainly he asserted the "reasonableness" of allowing women to carry into coverture some of the powers they exercised sole; but I believe the underlying "reasons" had more to do with changing concepts of property than with changing concepts of gender.
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.
It is the market concept of land that brings us to the commingling of women and Indians in the system of feudal power. This is a complex story that can only be hinted at here. Reeve nowhere discusses Indians in his book; but his exegesis of property concepts in transformation from feudalism to capitalism was completely congruent with what was happening in the law of property as it was being developed at the time to define title to lands of indigenous peoples within the exterior borders of the United States.
Real estate was the core issue in colonial and revolutionary America. An early land transaction between colonists and Indians became the focus of Johnson v. McIntosh, 8 Wheat. 543 (1823), one of the most significant cases in United States law. That case, decided just four years after the publication of Baron and Femme, marked the shift between feudal and market understandings of property and laid a foundation upon which all land titles in the U.S. continue to rest, to this day.
Johnson v. McIntosh involved a dispute between plaintiffs who claimed title to land under a purchase from the Piankeshaw Indians and a defendant who claimed under a grant from the United States. 1 At issue was which chain of title would be sustained, the purchase or the grant? The decision by the Supreme Court was in favor of the grant, on the grounds that the Piankeshaw did not have title to and power to sell their lands.
Three points stand out in a review of the court's decision: (1) that the persons who purchased from the Piankeshaw knew they were engaging in a land transaction on the cusp between feudalism and capitalism; (2) that the court's theory of the case relied on concepts remarkably similar to those used to limit a wife's power over property; and (3) that at the foundation of "private" property is a feudal concept of the power of the sovereign.
That the purchasers from the Piankeshaw knew they were on a watershed between two different notions of property is evidenced by the words with which they described the transaction. In a remarkably verbose clause of the deed, they stated:
... [O]n the 18th of October, 1775, Tabac, and certain other Indians, all being chiefs of the Piankeshaws, and jointly representing, acting for, and duly authorized by that nation, in the manner stated above, did, by their deed poll, duly executed, and bearing date on the day last mentioned, ... and at a public council there held by them, for and on behalf of the Piankeshaw Indians, with Louis Viviat, of the Illinois country, ... and for good and valuable considerations, in the deed poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify, and confirm to the said Louis Viviat, and the other persons last mentioned, their heirs and assigns, equally to be divided, or to George III., then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of all the above mentioned grantees, their heirs and assigns, in severalty, by which ever of those tenures they might most legally hold, all those two several tracts of land, in the deed particularly described....
The verbosity was a sign of the confused and changing legal world of the purchasers. The words -- "grant, bargain, sell, alien, enfeoff, release, ratify, and confirm" -- were alternative bases for enforceability of the transaction. The purchasers, unsure of their position in an emerging economy of "private" -- as opposed to feudal -- property, stated claims as individuals free from obligations to a feudal lord and as "subjects of the crown of Great Britain."
Ambiguity about the legal status of the purchasers was stated as ambiguity of action by the Piankeshaw. If the purchasers were free from their king, then the Piankeshaw "grant, bargain, sell, [and] alien" the tracts of land. If the purchasers were vassals, the Piankeshaw "enfeoff, release, ratify, and confirm." Uncertainty in colonial political-economy produced a profusion of possible verbs, the purchasers hoping to guarantee that they, "their heirs and assigns," would have this land "by which ever of those tenures they might most legally hold."
The court's theory in Johnson v. McIntosh relied on concepts remarkably similar to those used to limit a wife's power over property. Chief Justice Marshall premised the decision on "European discovery." His opinion described with candor the motivation and "apology" for "ascendency" of the discoverers:
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.
The "discovery principle" was presented as a consequence of the practical necessities of the situation:
... [A]s they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.
In these words, we have the outlines of a principle of subordination of indigenous peoples to their "discoverers" that parallels the feudal subordination of wives to their husbands. The "unlimited independence" of both natives and femme sole are subjected to an ascendant power. "[A]mple compensation," as defined by the "potentates," is provided for denial of independence. The basic principle is the same in each instance: formerly free and independent beings become bound by others: in the case of the natives, their property is no longer their own; in the case of wives, their persons also are subjected to their "conqueror." In both situations, the rules are made and enforced by those who claim ascendancy.
The parallels continue in Marshall's description of the consequences of the "discovery principle" for the natives. With only a few changes, he could have been describing the change in status from femme sole to femme covert:
... [T]he rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives.
Like Reeve, Marshall acknowledged religious roots of the law he was propounding. He referred to a 1496 commission to the Cabots, "to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England." This commission asserted "... a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. "
Where Reeve exerted himself to demonstrate the "reasonableness" of certain limits on the wife's powers, Marshall provided an "excuse" for parallel restrictions on the indigenous peoples:
Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.
Where Reeve was happy to find "reasonableness" on the side of expanding the wife's powers to participate in property transactions, Marshall was willing to sustain even obviously unreasonable restrictions, in an effort to exclude the natives from such participation:
However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants.... However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.
Ultimately, and ironically, while Reeve wrote in favor of legal rules to assist the transformation of domestic relations from a feudal to a capitalist basis, Johnson v. McIntosh articulated a foundation for capitalist property on the basis of a feudal conception of the power of the sovereign:
According to the theory of the British constitution, all vacant lands are vested in the crown, as representing the nation; and the exclusive power to grant them is admitted to reside in the crown, as a branch of the royal prerogative. It has been already shown, that this principle was as fully recognised in America as in the island of Great Britain. ... So far as respected the authority of the crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to grant that title. The lands, then, to which this proclamation referred, were lands which the king had a right to grant, or to reserve for the Indians.
Here, then, is one of those curious anomalies that make legal history so intriguing. Two areas of law -- baron and femme on one side and "federal Indian law" on the other -- apparently widely separated, are in fact creatures of a single complex set of ideas and practices. Furthermore, these two areas joined at their metaphysics produce doctrines tending in diametrically opposite directions of political economy: one toward and the other away from widening participation in a market system.
If time and space permitted, we could also examine Reeve's analysis of the law of guardian and ward for further comparisons to "federal Indian law." In Cherokee Nation v. Georgia, 5 Pet. 1 (1831), Chief Justice Marshall suggested that the "special relationship" between the "Indian tribes" and the United States "resembles that of a ward to his guardian." This suggestion became the basis for an array of laws purportedly designed for the "benefit" of Indians, yet with the effect of subordinating them to a unilaterally defined and imposed power. Reeve's analysis would help us discern the doctrinal sources of federal "guardianship" over native peoples, while illuminating the great divergence between "Indian wardship" and guardian-ward law generally.
Graphic images [see Philip Deloria, Playing Indian (New Haven: Yale, 1998), 29-31] appeared at the time of the colonial revolution to depict the composite woman/Indian as a being in need of help. To the extent that woman was understood as femme, the depictions served to explain the status of Indians: that is, capable of standing on their own in a limited way, in need of parent, baron, or guardian. To the extent that women and Indians were understood as subordinate, the depictions served as an overall self-justification of patriarchal power. These images come to us today as artifacts of a past legal world that is all too much still present.
1. Eric Kades contends that "Mapping the United Companies' claims alongside McIntosh's purchases, as enumerated in the district court records, shows that the litigants' land claims did not overlap. Hence there was no real 'case or controversy,' and M'Intosh, like another leading early Supreme Court land case, Fletcher v. Peck, appears to have been a sham." "The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of Amerindian Lands," 148 University of Pennsylvania Law Review 1065, 1092 (2000). See also Eric Kades, "History and Interpretation of the Great Case of Johnson v. M'Intosh," Law and History Review, Vol. 19, No. 1 (Spring 2001), which includes a map of the various claims.
I discuss other 'sham' aspects of the case in "John Marshall: Indian Lover?" [Originally published in Journal of the West, vol. 39 no. 3 (Summer 2000).] The nature of the action, ejectment, was a "highly fictitious" common law action to restore possession of property. Despite the fictitious aspects of the case, its doctrine has been sustained to this day.
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Valeria Aleksandrova has provided a Polish translation of this essay on her blog. Thank you, Valeria!
© copyright, Peter d'Errico, 1998, 2005.