An illuminating look at how law and custom shaped marriage in the 19th century and how those practices echo into the 21st.
Contrary to conventional wisdom, marriage in the 1800s was neither as stable nor as imprisoning as some of those sepia-toned family portraits would have us believe. While divorce was nearly impossible for most, separation was acceptable. Princeton historian Hartog (History of American Law and Liberty, not reviewed) delves into the subtleties of separation as an option to marital conflict via case histories, court documents, and legal commentaries from the early 1800s to the late 1900s. In the earliest years of our nation, marriage was for life. Married women had no public (and not much private) identity by virtue of the doctrine of coverture, which held them subject to their husbands. In return for that wifely loyalty, husbands were responsible for the support and protection of their spouses. If facing those long years of commitment suddenly looked too bleak, husbands and wives did have the option of living apart. Sometimes this was formalized in the court (in cases of abuse or abandonment); sometimes it was informal (as husbands moved west in search of opportunity, for example, and launched new families without severing the old ties). In fact, a simple move from one state to another would often thoroughly muddle marital status, and as a result (often unwittingly) bigamy flourished. Laws and the duties and responsibilities of husband and wife slowly evolved, although traces of coverture lingered as late as the 1970s. But by then questions of child custody had long since shifted away from the father’s absolute right to custody to a doctrine of the “best interests of the child,” which almost always favored the mother. No-fault divorce and gender politics have shattered the earlier legal and social constraints that kept couples together, but, notes Hartog wryly, marriage is still being practiced on a regular basis.
For students of marriage and family law, an historic panorama, most revealing of the connections in the evolution of marriage from an autocracy to a partnership.