Governing the Hearth

Law and the Family in Nineteenth-Century America

Michael Grossberg

• Publisher: The University of North Carolina Press
• Year: 2004
• ISBN:
  9780807863367
• Topic: Derecho
• Subtopic: Historia jurídica

Presenting a new framework for understanding the complex but vital relationship between legal history and the family, Michael Grossberg analyzes the formation of legal policies on such issues as common law marriage, adoption, and rights for illegitimate children. He shows how legal changes diminished male authority, increased women's and children's rights, and fixed more clearly the state's responsibilities in family affairs. Grossberg further illustrates why many basic principles of this distinctive and powerful new body of law--antiabortion and maternal biases in child custody--remained in effect well into the twentieth century.

CHAPTER 1


DOMESTIC RELATIONS
A LAW FOR REPUBLICAN FAMILIES

The “foundation of national morality must be laid in private families,” declared Revolutionary lawyer and future president John Adams in 1778.¹ He and others looked to the law to ensure that families would perform their critical responsibilities. But when they looked to the law, their glance did not fall on a special category specifically designed to govern household affairs. On the contrary, laws dealing with the family were strewn across the legal landscape, some to be found in diverse statutes, others in common-law decisions on matters ranging from contracts to torts, still others in various ecclesiastical rules. Yet by the time John Adams’s great-grandson Henry published his gloomy ruminations on his life’s learning, the legal governance of the family had been transformed.

At the dawn of the twentieth century, domestic relations, as the domain of family law had come to be called, occupied a special place in the American legal order. It was described in voluminous detail in countless treatises, judicial reports, casebooks, and popular tracts. By the 1860s, legal-text author Joel P. Bishop, one of the first major expounders of family law, cautioned: “[A] practitioner who is familiar with every other department of our law, yet is unread in this, cannot give sound advice on questions coming within this department.”² Bishop’s warning documents one of the most significant legal and social developments to occur within the lifespans of the two Adamses: the creation of a distinctive American family law.

Throughout the nineteenth century the basic purposes of legal governance of the family remained fairly constant. In the eyes of the law, the family was as John Adams had visualized it: the primary institution of American society. Public authority was charged with ensuring family stability and guaranteeing the present use and future transmission of household property and other resources. But a fundamental reassessment, if not transformation, occurred within that continuing rationale. Judges, legislators, litigants, legal commentators, and popular critics spearheaded the changes. Their most profound revisions occurred in the first part of the century when they reformulated the English and colonial tradition of family governance and redefined the place of domestic relations within the legal order. Significant consolidation, refinement, and revision then went on throughout the century in a continuing effort to use the law to produce families of the sort that Adams had envisioned.

The Emergence of the Republican Family

A distinctive American family law has its most direct sources in household and legal changes of the late eighteenth and early nineteenth centuries. Identifying those changes and their role in shaping a new approach to family governance provides a necessary introduction to the history of nineteenth-century family law.

Historians have only recently begun to ferret out the details of post-Revolutionary family life. A composite picture of late eighteenth and early nineteenth-century households has emerged. Though the exact sources and timing of family change are difficult to determine, alterations in the households of the era occurred symbiotically with those social, economic, and political developments that marked the path toward a predominately bourgeois, capitalist society. The birth of that new society was not an easy one. Like other departures of the post-Revolutionary era, changes in family life entailed the substantial modification of traditional ways of life.

Through much of the colonial period, most colonists conceived of the family as part of a hierarchically organized, interdependent society rather than as a separate and distinct sphere of experience. Households were tightly bound to the rest of society by taut strings of reciprocity Family and community were, a seventeenth-century author asserted, “a lively representation” of each other. Fittingly, the community not only had a deep and abiding interest in family life, but armed its agents with extensive powers to prevent homes from becoming disorderly or ineffective. A wide array of duties grew out of the public nature and communal obligations of households in an agrarian, mercantilist society. Family responsibilities ranged from economic production and the transmission of estates to craft training and dependent care. Though most fully defined as such in the New England provinces, throughout colonial America the family was seen as a public institution tightly integrated into a well-ordered society: “a little commonwealth” in historian John Demos’s succinct phrase.³

The colonial family’s status as a vital link in the colonial chain of authority provided the major rationale for its internal organization. Replicating the surrounding society, the colonial household was hierarchical, patriarchal, and vested with overlapping and undifferentiated internal and external obligations. The community charged each male governor with the duty of maintaining a well-governed home and sustained his authority by granting him control of its inhabitants as well as of family property and other resources. Women and children, as subordinates and dependents in the corporate body, had limited capacity to engage independently in community life. Though the family was composed primarily of spouses and their offspring, apprentices, servants, “bound-out” youths, and other dependents often joined a household and served under its patriarch. A 1712 essay in The Spectator, an English journal with wide colonial readership, starkly described traditional patriarchal authority:

Nothing is more gratifying to the mind of man than power or dominion; and this I think myself amply possessed of, as I am the father of a family. I am perpetually taken up in giving out orders, in prescribing duties, in hearing parties, in administering justice, and in distributing rewards and punishments. To speak in the language of the centurion, I say to one, Go, and he goeth; to another, Come, and he cometh; and to my servant, Do this, and he doeth it. In short, sir, I look upon my family as a patriarchal sovereignty, in which I am myself, both king and priest.⁴

Novel circumstances in the New World slowly but steadily undermined the ideal of the well-ordered family. The forced interdependence of rural, provincial life often gave women economic and social freedoms denied their European sisters. The availability of land and other commercial prospects weakened filial dependence on paternal largess, and maternal culture at times checked paternal authority. Demographic differences between the Old and New Worlds and between various provinces of British North America also altered the model of family life. The migration of single adults rather than families, higher mortality rates, and less effective ecclesiastical and civil establishments thus led to less ordered families in the Chesapeake than in New England.⁵

As modifications of the traditional ideal of the family accumulated with time, families became less and less willing to sacrifice domestic autonomy to the dictates of communal supervision. Individuals began to resist those community and family demands that might block their personal choices or their pursuit of material gain. Public officials were increasingly reluctant to curb generation or gender rebellions with the weapons of community authority.⁶

The gradual disintegration of the colonial ideal of the family left confusion and conflict in its wake. A process of redefinition began that reached its critical stages in the post-Revolutionary era. Led by middle-class households, families began to shed their public, multifunctional forms and stand apart in an increasingly segregated, private realm of society.

A series of interconnected changes marked the crucial transition of the family from a public to a private institution. The economic moorings of the household shifted from production toward consumption. Generational influences on family formation declined. New fertility patterns resulted in declining family size. A new domestic egalitarianism emerged to challenge patriarchy. Other alterations included companionate marital practices and contractual notions of spousal relations, an elevation of childhood and motherhood to favored status within the home, an emphasis on domestic intimacy as a counterweight to marketplace competition, and a more clearly defined use of private property as the major source of domestic autonomy.

A fundamental dichotomy flowed from these developments. The family and the outside world came to be viewed as separate entities, often pictured as bitter adversaries. Privatization spurred a new concept of the family: one in which the nation’s households occupied a narrower place within secular society, but one in which heightened emotional and affective bonds and socialization duties were seen by almost all Americans as crucial to national well-being.⁷

The “republican family” is the label that identifies most precisely the context and content of the changes that began to alter American households in the 1780s and 1790s and into the next century. This label suggests both the particular American variant of a larger transformation of Western European family life and the persistent influence of its post-Revolutionary origins. As historian John Kasson has argued in his study of nineteenth-century technological values: “Republican ideology led finally beyond politics to a major coalescence and reorientation of American culture. The Revolutionary spirit charged virtually every aspect of life.”⁸

Under the sway of republican theory and culture, the home and the polity displayed some striking similarities. These included a deep aversion to unaccountable authority and unchecked governmental activism, the equation of property rights with independence, a commitment to self-government, a belief that individual virtue could prevent the abuse of power, and a tendency to posit human relations in contractual terms that highlighted voluntary consent, reciprocal duties, and the possibility of dissolution. Most important, the American family, like the republican polity, suffered from the uncertainties of sovereignty and from the pressures of democratization and marketplace values unleashed by the Revolution’s egalitarian and laissez faire ideology. The intimate relationship between political and family change is evident in the readiness of revolutionaries like Tom Paine to describe the crisis with Britain as a domestic quarrel. Indeed, American revolutionary ideology contained a fierce antipatriarchal strain.⁹

Shared post-Revolutionary origins made the period the formative era of both the republican family and the state. In a perceptive analysis of revolutionary rhetoric, literary analyst Jay Fliegelman suggests the consequences of that temporal connection: “The American revolution against patriarchal authority in the second half of the eighteenth century provided the paradigm by which Americans for the next two hundred years would understand and set forth the claims of both individual and national independence.”¹⁰ For the family, and especially for its law, republicanism was both a founding creed and a continuing frame of reference.

The advent of the republican family altered the place of each household member in society and law. Male authority remained supreme throughout the nineteenth century. Yet its scope narrowed as a result of challenges that grew more intense during the century. Egalitarianism encouraged the decline of deference to all social superiors, even patriarchs. Republican political ideology’s reinforcement of individual worth and personal identity, the evangelical emphasis on equality before God, and the individual competitiveness and acquisitiveness unleashed by market capitalism fueled demands for greater autonomy in all relations, even domestic ones. A new respect for household dependents, and the inclination to seek individual identity and fulfillment in the home rather than the combative marketplace, also sparked challenges to traditional domestic authority. Self-government intensified intimate relations and encouraged greater reciprocity. Finally, affection began to replace status as the cement of domestic bonds.

From these profound developments came the creation of more explicit roles and responsibilities within republican households. Marriage came to be depicted in contractual terms and marital roles to fall into more clearly defined sexual spheres. As the home broke free from the world of work, the masculine responsibility for family support became more concrete while male household involvement atrophied. Domesticity became the stellar female attribute, the newly isolated home a woman’s more exclusive domain.

By charging homes with the vital responsibility of molding the private virtue necessary for republicanism to flourish, the new nation greatly enhanced the importance of women’s family duties. Studying the experiences of women in the Revolutionary era led historian Mary Beth Norton to conclude that the “revolutionaries’ one unassailable assumption was that the United States could survive only if its citizens displayed virtue in both public and private life.” At times “it even seemed as though republican theorists believed that the fate of the republic rested squarely, perhaps solely, on the shoulders of its womenfolk.” Men were to complement women by being good providers, loyal companions, and effective if distant fathers. The segregation of male and female domestic responsibilities is evident in the mid-nineteenth-century complaint of women’s rights advocate Samuel May:

The terms in which the two sexes are generally spoken of seem to imply that men must of course go forth, take part in the collisions of political party, pecuniary interest, or local concernment; get themselves care worn, perplexed, irritated, soured, angry; while women are to stay at home, and prepare themselves with all the blandishments of maternal, sisterly, conjugal, or filial affection, to soothe our irritated tempers, mollify the bruises we have received in our conflicts with other men; and so prepare us to strive with renewed resolution, and bruise or get bruised again.¹¹

A new perception of childhood also contributed to the post-Revolutionary redefinition of the home. Enlightenment ideas about human development and the influence of environment, affectionate ideas of child rearing, and the character of the new republican order transformed the perception of the young. Fliegelman in fact suggests that the “new parenting and the constitutional government were intimately related.”¹²

During the nineteenth century, children came to be seen more explicitly than ever as vulnerable, malleable charges with a special innocence and with particular needs, talents, and characters. Consequently, authoritarian child rearing and hierarchical relations succumbed to greater permissiveness, intimacy, and character building. As with spousal relations, in the republican household parents and children became bound together by a new egalitarianism and by affection. Though other institutions such as the common school and the church shared its duties, molding the nation’s young into virtuous republicans and competent burghers became more clearly the primary responsibility of the family. As the countless child-rearing manuals of the day warned, youthful minds and bodies would develop properly only in a special, sheltered home under the watchful guidance of concerned, informed parents. The widely held conceit that America represented the future and that youth must be reared successfully to fulfill the republic’s manifest destiny magnified the significance of child rearing. In the child-centered homes that began to sprout within the nation’s middle class, the parent-child relation, especially the newly created mother-child bond, became an all-important nexus.¹³

New sentiments about childhood and gender destroyed the mix of community and household that was central to the colonial family ideal. Its nineteenth-century republican replacement rested on clearly defined spheres and reciprocal obligations. By the first decades of the century, family had come to mean a separate social unit consisting of a worldly man, homebound woman, and their offspring. Most important, this republican household presented a facade of organic unity which masked the actual character of the family as a group of individuals each with his or her specialized roles and duties. The contrast between image and reality in nineteenth-century family life gave rise to some of the most dramatic and far-reaching legal controversies over the home.¹⁴

Divided by class, region, race, gender, and temporal variations in the rate of change, the republic experienced sharp and continuous conflicts generated by these family changes. But this bitter dissension should not cloud the central change in American homes: the emergence of the republican ideal of the family.

A middle-class creation, the republican family dominated household ideology and practice in an increasingly bourgeois nation. Historian Robert Griswold discovered its influence in his recent study of California divorce litigation from 1850 to 1890: “These records reveal that the companionate ideal did, indeed, affect the lives of rural men and women from all social classes. The legal documents and witness testimony make it clear that men and women from all social classes conceived of family relations...