GOVERNING 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.