Public Vows

A History of Marriage and the Nation

Nancy F. Cott

• Publisher: Harvard University Press
• Year: 2002
• Print ISBN: 9780674008755, 9780674003200
• eBook ISBN: 9780674253483
• Topic: History
• Subtopic: North American History
• Index: History

We commonly think of marriage as a private matter between two people, a personal expression of love and commitment. In this pioneering history, Nancy F. Cott demonstrates that marriage is and always has been a public institution.

From the founding of the United States to the present day, imperatives about the necessity of marriage and its proper form have been deeply embedded in national policy, law, and political rhetoric. Legislators and judges have envisioned and enforced their preferred model of consensual, lifelong monogamy--a model derived from Christian tenets and the English common law that posits the husband as provider and the wife as dependent.In early confrontations with Native Americans, emancipated slaves, Mormon polygamists, and immigrant spouses, through the invention of the New Deal, federal income tax, and welfare programs, the federal government consistently influenced the shape of marriages. And even the immense social and legal changes of the last third of the twentieth century have not unraveled official reliance on marriage as a "pillar of the state."

By excluding some kinds of marriages and encouraging others, marital policies have helped to sculpt the nation's citizenry, as well as its moral and social standards, and have directly affected national understandings of gender roles and racial difference. Public Vows is a panoramic view of marriage's political history, revealing the national government's profound role in our most private of choices. No one who reads this book will think of marriage in the same way again.

1

AN ARCHAEOLOGY OF AMERICAN MONOGAMY

In the beginning of the United States, the founders had a political theory of marriage. So deeply embedded in political assumptions that it was rarely voiced as a theory, it was all the more important. It occupied the place where political theory overlapped with common sense. Rather than being “untutored,” or “what the mind cleared of cant spontaneously apprehends,” Clifford Geertz has pointed out, common sense is “what the mind filled with presuppositions . . . concludes.” Kinship organization, property arrangements, cosmological and spiritual beliefs give rise to common sense, so that it varies from culture to culture.¹ The common sense of British colonials at the time of the American Revolution was Christian; Christian common sense took for granted the rightness of monogamous marriage. Moral and political philosophy (the antecedent of social science) incorporated and purveyed monogamous morality no less than religion did.² Learned knowledge deemed monogamy a God-given but also a civilized practice, a natural right that stemmed from a subterranean basis in natural law.

Yet at that time, Christian monogamists composed a minority in the world. The predominance of monogamy was by no means a foregone conclusion. Most of the peoples and cultures around the globe (so recently investigated and colonized by Europeans) held no brief for strict monogamy. The belief systems of Asia, Africa, and Australia, of the Moslems around the Mediterranean, and the natives of North and South America all countenanced polygamy and other complex marriage practices, which British and European travel writings on exotic lands recounted with fascination. Anglo-America itself was set down in the midst of polygamist and often matrilineal and matrilocal cultures. No doubt Christians in Britain, Europe, and America at the time thought monogamy was a superior system, but it had yet to triumph.

As a result, while no one involved in founding the new nation would have disputed that Christian marriage should underpin the society, political thinkers and moral philosophers at the time were conscious of monogamy as a system to be justified and advocated. European political theorizing had long noted that legal monogamy benefited social order, by harnessing the vagaries of sexual desire and by supplying predictable care and support for the young and the dependent. The republican theory of the new United States assumed this kind of utilitarian reasoning and went beyond it, to give marriage a political reason for being. From the French Enlightenment author the Baron de Montesquieu, whose Spirit of the Laws influenced central tenets of American republicanism, the founders learned to think of marriage and the form of government as mirroring each other.³ They aimed to establish a republic enshrining popular sovereignty, ruled by a government of laws, and characterized by moderation. Their Montesquieuan thinking tied the institution of Christian-modeled monogamy to the kind of polity they envisioned; as a voluntary union based on consent, marriage paralleled the new government. This thinking propelled the analogy between the two forms of consensual union into the republican nation’s self-understanding and identity.

Although the details of marital practice varied widely among Revolutionary-era Americans, there was a broadly shared understanding of the essentials of the institution. The most important was the unity of husband and wife. The “sublime and refined . . . principle of union” joining the two was the “most important consequence of marriage,” according to James Wilson, a preeminent statesman and legal philosopher. The consent of both was also essential. “The agreement of the parties, the essence of every rational contract, is indispensably required,” Wilson said in lectures delivered in 1792. He saw mutual consent as the hallmark of marriage—more basic than cohabitation. Everyone spoke of the marriage contract. Yet as a contract it was unique, for the parties did not set their own terms. The man and woman consented to marry, but public authorities set the terms of the marriage, so that it brought predictable rewards and duties. Once the union was formed, its obligations were fixed in common law. Husband and wife each assumed a new legal status as well as a new status in their community. That meant neither could break the terms set without offending the larger community, the law, and the state, as much as offending the partner.⁴

Both the emphasis on consent and the principle of union seamlessly adapted Christian doctrine to Anglo-American law. Even before the Protestant Reformation, the Church had made consent more important than consummation in validating marriage. The legal oneness of husband and wife derived from common law but it matched the Christian doctrine that “the twain shall be one flesh,” having exclusive rights to each others’ bodies. James Wilson noted this congeniality. Christian doctrine expected heterosexual desire to be satisfied exclusively within marriage and so demanded sexual fidelity of both partners. The Bible also made the husband the “head” of his wife—his wife’s superior—as Christ was head of the church. In the spiritual domain of immortality of the soul, however, Christianity equalized wives and husbands; that did not end marital hierarchy, but it required respect for the wife’s position. Anywhere on the wide and shifting spectrum of Protestantism in the early republic, from deism to Anglicanism, these basic Christian beliefs about marriage were in place.

As Wilson emphasized, the common law turned the married pair legally into one person—the husband. The husband was enlarged, so to speak, by marriage, while the wife’s giving up her own name and being called by his symbolized her relinquishing her identity. This legal doctrine of marital unity was called coverture and the wife was called a feme covert (both terms rendered in the old French still used in parts of English law). Coverture in its strictest sense meant that a wife could not use legal avenues such as suits or contracts, own assets, or execute legal documents without her husband’s collaboration. Nor was she legally responsible for herself in criminal or civil law—he was. And the husband became the political as well as the legal representative of his wife, disenfranchising her. He became the one full citizen in the household, his authority over and responsibility for his dependents contributing to his citizenship capacity.

The legal meaning of coverture pervaded the economic realm as well. Upon marriage a woman’s assets became her husband’s property and so did her labor and future earnings. Because her legal personality was absorbed into his, her economic freedom of action was correspondingly curtailed. This was basic to the economic bargain of marriage, essential to marital unity, and preeminent in daily community life. The husband gained his wife’s property and earning power because he was legally responsible to provide for her (as well as for himself and their progeny). The wife in turn was obligated to give all her service and labor to her husband. By consenting to marry, the husband pledged to protect and support his wife, the wife to serve and obey her husband. The body of marriage was understood to rest on this economic skeleton as much as on sexual fidelity.

Because marriage and the state both were understood to be forms of governance—of the husband over the wife, the ruler over the people—in the sixteenth and seventeenth centuries it was easy to think of them analogously. Shakespeare drew on this accepted rhetoric in The Taming of the Shrew. Kate, the title character, not only became chastened and reformed by the end of the play, but also advised other recalcitrant wives to obey their husbands:

Such duty as the subject owes the prince

Even such a woman oweth her husband,

And when she is forward, peevish, sullen, sour

And not obedient to his honest will,

What is she but a foul contending rebel

And graceless traitor to her loving lord?⁵

Kate justified wifely obedience by reciting the many benefits and protections a husband was obliged to give to his wife, including laboring to support her. Marriage governed the wife, but it also governed the husband. Like a good prince, a husband had to behave in certain ways to deserve his name and was not an unconstrained wielder of power.

John Winthrop, the leader of the Massachusetts Bay colony, similarly used an analogy between marriage and secular government when he wanted to defend the power of the ruling magistrates over the restive colonial populace in the 1630s. He maintained that in both marriage and government, freedom of choice coexisted with a corollary necessity to obey once the choice was made. “The woman’s own choice” in marriage, he said, “makes such a man her husband; yet being so chosen, he is her lord, and she is to be subject to him, yet in a way of liberty, not of bondage.” The freemen of the colony had likewise exercised choice in establishing the political order, by electing the magistrates—“it is yourselves who have called us to this office, and being called by you, we have an authority from God,” he emphasized. Consequently, the freemen were obliged to bow to the magistrates’ authority.⁶

At the time Massachusetts Bay was founded, European monarchs liked to claim that royal power over subjects was authorized by God, as much as the power of fathers and husbands over their families was.⁷ Winthrop’s emphasis on the freemen’s consent showed him to be somewhat more liberal. Like monarchists, however, he saw marital governance and political governance as linked along the same continuum; they occupied the same spectrum and each contributed to the other’s stability. The Puritan leaders of Massachusetts Bay so seriously expected family, church, and state authority structures to be interlocking that they made infractions against the Fifth Commandment, “Honor Thy Father and Thy Mother,” part of their criminal law. They interpreted the commandment as a directive not only to children but also to wives to respect and obey their husbands, to congregants to respect and obey their ministers, and to subjects to respect and obey their king and magistrates. An unruly wife, congregant, or child threatened all lines of authority in church and state; one convicted of disrespect would suffer public punishment, being made to stand in the stocks wearing an identifying sign and reciting the Fifth Commandment.⁸

By the 1760s, however, few Britons in the American colonies believed that monarchs governed by divine right handed down from the first father, Adam. Most of them had come to think that government authority derived from men’s consent and intention to preserve their own interests. A revolution in theory and practice had challenged the patriarchal theory of political legitimacy, by radically differentiating the authority of family heads from that of political rulers and denying that the two occupied the same continuum. During the power struggle between king and Parliament leading to Britain’s Glorious Revolution of 1688, parliamentary supporters argued that political authority did not come naturally, as parental authority did. Legitimate political authority had to be purposely constructed by individuals’ collective consent to be governed, because these individuals had inherent natural rights to defend. In the view of John Locke and other theorists, individuals would give their consent and thus form a governing social contract in order to gain the advantages of social order and collective protection, endowing a ruler with power but also setting limits on it. The people’s consent to be governed bound them to obey. If the ruler abused his power and broke the social contract, however, then rebellion among the governed might be reasonable.⁹

This transformation underlay the political theory justifying the American Revolution. When colonial Americans were imagining their way toward independence they nonetheless often interpreted Great Britain’s imperial relations with the colonies in terms of familial analogies.¹⁰ Since children typically first confront authority, hierarchy, and reciprocal rights and duties in a family setting, use of a family model to think about justice in the polity has never become entirely irrelevant.¹¹ Rebellious colonists used both parent-child and husband-wife analogies in their rhetoric—the first in order to make the break with Great Britain, the second more often to model the political society to be. These analogies remained forceful in considerations of political authority despite the way that social contract theory had broken the direct link between patriarchal authority and legitimate government.

Contractual thinking about authority was so appealing, in fact, that it became knit into views of the ideal family. In an era when the natural rights of individuals were being heralded, even parental and husbandly authority seemed to require justification other than nature or custom. The eighteenth-century Scottish moral philosophers favored by colonial revolutionaries contended that reciprocal rights and responsibilities bound husbands and wives, parents and children, magistrates and subjects, masters and servants, all, just as they did the ruler and the citizens.¹² Thus the child should obey the parent because the parent guarded and supported the child, not simply because generational hierarchy was in place. In corollary, the parent who was abusive or negligent might not deserve obedience.

Belief in a father’s natural dominion had once justified kingly absolutism, but American revolutionaries used the analogy between familial and governmental authority to reinforce ideals of contractualism and reciprocity as requirements for justice. When they protested against imperial harshness in the 1760s, American spokesmen portrayed the colonies as the abused offspring of a cruel and unfeeling imperial parent, who left the child no alternative but to disobey. John Adams, the Massachusetts revolutionary who would become the second president of the United States, wrote, “We have been told that . . . Britain is the mother and we are the children, that a filial duty and submission is due from us to her and that we ought to doubt our own judgment and presume that she is right, even when she seems to us to shake the foundations of government. But admitting we are children, have not children a right to complain when their parents are attempting to break their limbs, to administer poison, or to sell them to enemies for slaves?” Revolutionaries justified colonial independence with a family analogy of generational change, contending that Britain “took us as babes at the breast; they nourished us . . . [but now] the day of independent manhood is at hand.” “A parent has a natural right to govern his children during their minority,” another emphasized, “but has no such authority over them as they arrive at full age.”¹³

When the colonies declared independence and joined together in a new nation, a marital metaphor became far more compelling than the parent-child reference so serviceable to interpret empire and colony. The method of the new nation was union and the essence of the national union was to be the voluntary adherence of its citizens. Allegiance was to be contractual, not coerced—to be motivated by love, not fear. Yet this chosen bond could not be a passing fancy of the moment. Individuals’ loyalty and the states’ allegiance to one another had to last if the new nation was to succeed. “Only in union is there happiness,” the Revolutionary minister Jonathan Mayhew declared. Marriage, being a voluntary and long-sustained bond, provided a ready emblem. Understood to be founded on consent, marriage could be seen as an analogue to the legitimate polity.¹⁴ And marital status permeated personal identity and civic role as national allegiance was intended to.

As an intentional and harmonious juncture of individuals for mutual protection, economic advantage, and common interest, the marriage bond resembled the social contract that produced government. As a freely chosen structure of authority and obligation, it was an irresistible model. The suitability of the marital metaphor for political union drew tremendous public attention to marriage itself in the Revolutionary era. Newspapers, essays, pamphlets, novels, stories, and poetry—includingThomas Paine’s journalistic writings just at the time he wrote the incendiary pamphlet Common Sense—abounded with discussions of marriage choices and ro...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• 1 An Archaeology of American Monogamy
• 2 Perfecting Community Rules with State Laws
• 3 Domestic Relations on the National Agenda
• 4 Toward a Single Standard
• 5 Monogamy as the Law of Social Life
• 6 Consent, the American Way
• 7 The Modern Architecture of Marriage
• 8 Public Sanctity for a Private Realm
• 9 Marriage Revised and Revived
• Notes
• Acknowledgments
• Index