“The Rigour of the Old Rule”: Using Marriage to Define Modernity

This paper traces the trans-Atlantic career of Manby  v. Scott,  a Restoration-era case that framed legal conversations about authority and obligation in households for two centuries. The original decision was a masterful political compromise, in which mid-seventeenth-century England’s leading legal authorities used marriage and misogyny to bind political wounds.   The prevailing justices aligned the domestic power of husbands with the political power of kings, asserting the antiquity of masculine privilege in order to mask legal innovations and smooth over significant disagreements about the practical implications of their patriarchal doctrine.  Eighteenth and nineteenth-century commentators defined themselves against Manby’s starkest claims, even as they reified its basic arguments.  Sir William Blackstone and James Kent – respectively authors of the definitive Commentaries on English and American law – were among those who used it as an example of the “rigour of the old rule” governing marriage, in comparison to which their own affirmations of women’s subordinate legal status seemed enlightened and humane.  Seventeenth-century jurists’ depictions of ancient, “clear and settled” marriage law, and subsequent generations’ stories of its liberalization both obscure fundamental continuities. 

Manby  was much written about because it was much debated.  Later treatises and opinions intermingled the dissenting and prevailing views in the case rather indiscriminately.  Tracking these contradictory arguments into eighteenth and nineteenth-century American legal practice complicates inherited accounts of the progressive liberalization of marriage law, and suggests the need to reevaluate assumptions about the transformation of domestic relations embedded in sophisticated recent scholarship by Holly Brewer, Carole Shammas, Lynn Hunt and others.