Governing through contract: common law marriage in the nineteenth century.

• Author: Dubler, Ariela R.

When Mrs. William Reed's husband died in 1806, she requested an annual payment of twenty-five dollars from the Provident Society, of which her husband had been a member. Although the society guaranteed such support to the widows of all its members, it refused to recognize Mrs. Reed as Mr. Reed's widow, claiming that the Reeds were never lawfully married.(1)

In the trial that ensued, the following story emerged: In 1785, John Guest, Mrs. Reed's first husband, left his wife for unspecified "foreign parts."(2) In 1792, when it was "reported and generally believed" that Guest had died, his wife married Reed.(3) Following the marriage, Guest resurfaced in New York, where he lived until his death in 1800, never objecting to the marriage between Mr. and Mrs. Reed. Mrs. Reed lived with her second husband and "sustained a good reputation in society" until his death.(4)

In a per curiam opinion written by Chancellor Kent,(5) the New York Supreme Court of Judicature held, in Fenton v. Reed, that the Reeds' marriage was valid.(6) Although their marriage was null and void while Guest was alive, Kent held, no proof of solemnization after his death was needed for their marriage to be valid. The court wrote:

A marriage may be proved ... from cohabitation, reputation,

acknowledgment of the parties, reception in the family, and other

circumstances from which a marriage may be inferred.... No formal

solemnization of marriage was requisite. A contract of marriage made

per verba de presenti amounts to an actual marriage, and is valid as

if made in facie ecclesiae.(7)

In the Reeds' case, the court reasoned, because "[t]he parties cohabited together as husband [and] wife, and under the reputation and understanding that they were such ... ; and the wife, during this time, sustained a good character in society," an actual marriage between them could be inferred.(8)

With this opinion, Chancellor Kent staked out one defining pole of a controversy that was to rage in the state courts for the next century.(9) State courts throughout the nineteenth century debated, with varied levels of vitriol, the legitimacy of the doctrine of common law marriage, the doctrine by which courts could recognize unsolenmized, long-term, sexual unions as marriages. To proponents of the doctrine, a group that included a majority of state courts by the last quarter of the nineteenth century, a common law marriage was a valid contract between a man and a woman that demanded judicial enforcement. To opponents of the doctrine, by contrast, common law marriages represented the desanctification of the sacred marital relationship and the abdication of critically needed state control over the most foundational of social relationships.

In this Note, I examine the nineteenth-century doctrine of common law marriage and question why recognition of the doctrine became the majority position by the last quarter of that century. During the nineteenth century, courts were generally disinclined to favor any sexual unions that failed to conform to the traditional matrimonial model. Yet, by recognizing common law marriages, the majority of state courts seemingly granted their imprimatur to a range of nontraditional unions. I argue that the doctrine of common law marriage provided jurists a tool with which to define the proper relationship between women, their potential male providers, and the state. In other words, courts used marriage as a vector of public policy.(10)

I explore the foundations of such judicial policymaking by focusing on the language of contract that saturates courts' opinions recognizing common law marriages. I argue that nineteenth-century proponents of the doctrine invoked the language of contract, the quintessential symbol of the private and consensual, while simultaneously crafting a potentially coercive state agenda: the privatization of women's dependency in the era before the rise of the modern welfare state. As in the case brought by Mrs. Reed, most cases concerning the recognition of common law marriages were claims for the material support of women left, by death or desertion, without male partners to provide for them. Common law marriage, I contend, represents one private, common law antecedent of later public law policies to handle the problem of female poverty.(11)

In Part I of the Note, I examine the rise of the doctrine of common law marriage in nineteenth-century America, the basic arguments marshaled in its favor, and its triumph in the courts over the course of the century.(12) in addition, I briefly survey the social context of the judicial debate over common law marriage, laying out various forms of nonmarital heterosexual coupling that occurred in different communities. In Part II, I analyze the arguments of the doctrine's opponents, who denounced the institution on both moral and social grounds. I explore their perception that society was evolving at a rate that challenged social stability and that marriage was a potential check on the ensuing disarray.

In Part III, I analyze the deeper preoccupations and the possible social agenda of the judicial proponents of common law marriage by interrogating their use of contract language as a basis for recognizing the doctrine. I begin by analyzing the critique of a perhaps unlikely opponent of common law marriage (unlikely given the number of female plaintiffs who seemingly benefited in the cases(13)) : Elizabeth Cady Stanton. Stanton's speeches, I argue, reveal the conservative underpinnings of the seemingly liberal doctrine of common law marriage.

In her speeches, Stanton pointed to the instability of the marriage-as-contract formulation that lay at the heart of judicial recognition of common law marriages.(14) In recognizing the fallacies of this formulation, Stanton was not alone. Two leading jurists of the late nineteenth century, Joel Bishop and Oliver Wendell Holmes, also criticized the legal foundations of the equation of marriage and contract. Using the work of Stanton, Bishop, and Holmes, I expose the doctrinal weaknesses with the marriage-as-contract language and suggest that by using such language, courts successfully contained single women's dependencies within the private sphere of the family, as opposed to the public arena of the state.

In Part IV, I conclude by positing that the judicial proponents of common law marriage were engaged in what I call the act of "governing through contract," that is, the public recognition of private relationships between individuals as contractual in the furtherance of social policy. In so arguing, I do not claim to reveal with absolute certainty the motives of the judicial proponents of common law marriage. As I discuss below,(15) cases unfortunately offer quite limited insight into the subjective motivations of their cast of characters. Judges are no exception to this rule. As the concept of "governing through contract" that I develop implies, in this Note I take seriously judicial opinions as a form of social governance. I thus use judges' opinions, their stated concerns, and their perceptions of appropriate remedies to suggest an awareness on their part of the consequences of their opinions in the realm of social policy. In making this behavior visible as a form of governance, I hope not only to explain the ideological underpinnings of nineteenth-century common law marriage, but also to provide a broader critical lens through which to view contemporary approaches to female dependency.

1. THE CASE FOR COMMON LAW MARRIAGE

   1. The Rise of Common Law Marriage

      With Chancellor Kent's 1809 opinion in Fenton v. Reed,(16) New York became a common law marriage state, recognizing informal marriages--relationships that were never solemnized or celebrated before any officiant, but conformed to a pattern of marital behavior--as falling within the legal rubric of marriage.(17) The precise requirements for a common law marriage varied among the states that recognized the doctrine. All recognizing states, however, agreed with Chancellor Kent that a marriage contracted per verba de presenti, with words of present consent, was valid and binding.(18)

      In 1843, the United States Supreme Court first considered the validity of common law marriages in the case of Jewell v. Jewell.(19) With only eight Justices sitting, however, the Court was evenly divided on the question of whether the relationship in question constituted a valid marriage.(20) Not until 1877 did the nation's highest court decisively enter the common law marriage debate. In Meister v. Moore,(21) interpreting Michigan law, the Court recognized a growing consensus among courts and commentators in favor of the doctrine of common law marriage and added its approval to the doctrine.(22)

      Like Jewell, Meister was the culmination of an ejectment action that turned on the validity of a long-term unsolemnized relationship, in this case, the relationship between William Mowry and a woman identified by the court as Mary, the daughter of an Indian named Pero.(23) William and Mary married in Michigan and had a daughter, Elizabeth. Seven years after their relationship began, William died intestate. Subsequently, Elizabeth married Isaacs and they sold some of her father's land in Pittsburgh to Meister. Meister brought suit to eject the defendants from the land. The defendants claimed that they owned the lot in question as it had been conveyed to them by William's mother. They argued that William's marriage to Mary was invalid because its celebration had not conformed with the Michigan statute's requirement that a minister or magistrate be present at the ceremony. Since William never married, they claimed, his lands belonged to his mother after his death, and she was the only person authorized to sell them.(24)

      The lower court charged the jury that if it found that neither a magistrate nor a minister was present at William and Mary's marriage, then it must find that the marriage was invalid and that the...