Table Of ContentGOVERNING T H E HEARTH
Studies in Legal History
Published by The University of North Carolina Press
in association with the
American Society for Legal History
Editor
G. Edward White
Editorial Advisory Board
John D. Cushing
Lawrence M. Friedman
Charles M. Gray
Thomas A. Green
Oscar Handlin
George L. Haskins
J. Willard Hurst
S. E C. Milsom
Joseph H. Smith
L. Kinvin Wroth
M I C H A E L G R O S S B E R G
GOVERNING THE HEARTH
LAW ,4ND THE FAMILY IN
NINETEENTH-CENTURY AMERICA
THE UNIVERSITY OF NORTH CAROLINA PRESS
CHAPEL HILL AND LONDON
O 1985 The Universiry of North Carolina Press
All rights resewed
Manufactured in the United States of America
Library of Congress Cataloging in Publication Data
Grossberg, Michael, 1950-
Governing the hearth.
(Studies in legal history)
Includes index.
1. Domestic Relations-United States-History.
I. Title. 11. Series.
KF505.G76 1985 346.730 1 '5'09 84-22107
ISBN 0-8078-1646-9 347.3061509
ISBN 0-8078-4225-7 (pbk.)
Portions of Chapter 4 appeared as "Guarding the Altar:
Physiological Restricaons and the Rise of State Intervention in
Matrimony," in American Journal of Legal History 26 (1982):
197-226, and portions of Chapters 7 and 8 appeared as "Who
Gets the Child?" in Feminist Studies 9, no. 2 (Summer 1983):
235-60, by permission of the publisher, Feminist Studies,
Inc.,C/o Women's Studies Program, University of Maryland, Col-
lege Park, Maryland.
Design by Carla S. Garrett
To Tina
C O N T E N T S
Preface ix
.
Acknowledgments Xl*l.l
INTRODUCTION
1 Domestic Relations:
A Law for Republican Families
The Emergence of the Republican Family
The Beginning of the "Crisis of the Family"
Founding a Republican Legal Order
Creating a Republican Concept of Domestic Relations
PART ONE. MATRIMONY: COURTSHIP, NUPTIALS, PROHIBITIONS
2 Broken Promises:
Judges and the Law of Courtship
A Common Law for Republican Courtship
The Judicial Reception of the Suit
The Effort to Liberate Courtship from the Law
3 Nuptial License: The Regulation of Weddings
Matrimony Becomes a Republican Right
Expanding the Legal Freedom to Marry
A Marriage Reform Movement Challenges the Law
4 Matrimonial Limitations: Who's Fit to Wed?
The Adoption of Traditional Nuptial Prohibitions
Americans Fashion Racial Restrictions
Late Nineteenth-Century Attempts to Prevent
"Unfit" Marriages
.. .
Contents vzu
PART TWO. PARENTHOOD: BIRTH, LEGITIMACY, CUSTODY
5 Contraception and Abortion:
Who Controls the Womb?
The Law Endorses Parental Choice
in Antebellum America
Contraception and Abortion Become Obscenities
The Courts and the Defense of Family Limitation
6 Bastard Rights:
Recognizing a New Family Member
The Colonies Inherit a Repressive Heritage
The Creation of a Republican Bastardy Law
Bastardy Law and the Process of Legal Diffusion
A New Drive to Reform Illegitimacy Law
7 Custody Rights: Who Gets the Child?
The Creation of the "Best-Interests-of-the-Child"
Doctrine
Surrogate Parents Gain Greater Custody Rights
Adoption and the Creation of a New Legal Family
Child Custody at the End of the Century
CONCLUSION
8 A Judicial Patriarchy:
Family Law at the 'hrn of the Century
The Sources of Judicial Dominion
The Impact of the Judicial Patriarchy
The Continuing Legacy of Nineteenth-Century
Family Law
Abbreviations
Notes
Index
P R E F A C E
A specialized law of the family was one of the most significant products
of the nineteenth-century legal order. Traditional Anglo-American ways
of governing the family were transformed. By the end of the century a
new set of rules, regulations, and practices had acquired the label "do-
'
mestic relations."
During the nineteenth century a series of policies blended tradition
and innovation to form a distinctive American family law. Its nature and
extent became the subject of protracted and often bitter public and
private controversy and debate. The problems of family governance
were greatly exacerbated by twin tendencies of the era: a reliance on the
private family as the primary institution for confronting social and eco-
nomic change, and a dependence on the law for resolving public and
private disputes. Yet these also increased the importance of finding
effective methods of governing the home. The struggle to meet these
challenges produced a dynamic body of law.
At the center of domestic-relations law is the complex and vital
relationship between two primary institutions and spheres of experience:
the family and the law. Nineteenth-century changes had a profound
effect on both. Innovations in family law did much to define the "mod-
em family" as social historians classify the results of the fundamental
household developments of the eighteenth and early nineteenth centu-
ries. An American law of domestic relations was in turn the creatior
of a legal order whose institutions, ideology, and practices were being
transformed into what legal historians consider "modem." Despite the
changing relationships between these institutions, it is possible to iden-
tify one continuing reality: the family is in many ways a legal creation.*
My purpose is to explain the creation of American domestic-relations
law. I have reconstructed its history by taking a broad approach tha;
examines general policies developed over the entire nineteenth century
and followed in most states, rather than dwelling on local or temporal
peculiarities. Since domestic relations during the era was the province oi
the states, I have examined the major instruments of policy making
within the American commonwealths: appellate court opinions; legisla-
tive acts; commission reports; political commentaries; and public and
professional journals, treatises, and polemics. These have been drawn
from the post-Revolutionary era to the early twentieth century.
