Governin the Hearth Law and the Family in Nineteenth Century America Review

Michael Grossberg. A Judgment for Solomon: The d'Hauteville Example and Legal Experience in Antebellum America. Cambridge, England, and New York: Cambridge University Press, 1996. xvii + 270 pp. $32.99 (paper), ISBN 978-0-521-55745-0; $95.00 (fabric), ISBN 978-0-521-55206-6.

Reviewed by J. Herbie DiFonzo (Hofstra University)
Published on H-Law (July, 1996)

Who Gets Custody of the Family unit?

I of the truly awful aspects of legal educational activity is the trend to extract police force from life and care for it as an inviolate sphere of consciousness, elevated from pedestrian undergraduate concerns such every bit anthropology and history. Get-go-yr students brainstorm regarding children crossing a busy street as inchoate tort cases. Fairly soon, in too many instances, budding lawyers ignore Holmes and brood incessantly about the omniscience of appellate case constabulary. They then practice constabulary with the mindset of a shoehorn. They should all read Michael Grossberg.

They should do so not because historical perspective provides an added, or fifty-fifty a critical, dimension to a case summary, but because Grossberg provides a richer, more accurate portrait of the ability and paradox of law itself. A Judgment for Solomon recounts a child custody fight litigated in antebellum Philadelphia. In a sense, Ellen and Gonzalve d'Hauteville's struggle for custody of their son Frederick mattered only to them. The case prepare no binding precedent; in fact, the trial court's determination was never appealed. A report of their struggle appears in no domestic relations text. But in Grossberg's supple hands, the d'Hauteville instance is transformed into a vehicle for examining the multi-tiered legal civilisation and the way in which popular and legal norms cross-pollinate. He makes his aim clear: "to present ... a model for contextualizing popular cases, and a cursory for narratives as a way to probe the legal dynamics of social modify" (p. xv).[1] He achieves his synthesis by a advisedly braided narrative that pulls in strands of pop civilisation and formal legal argument to display an anthropological agreement of the intersection of gender and law at a moment of transition to the norms of the modernistic family.

In 1837, Ellen Sears, girl of Boston money, married Gonzalve d'Hauteville, son of Swiss nobility. Each family had much to gain. The d'Hautevilles would establish a link to a Boston family of tremendous wealth; the Sears would enlist a titled aristocrat in their quest for social acceptance. Unfortunately for these great familial expectations, Ellen and Gonzalve wed in an era when the claims of patriarchal dominance were adjusting to a subtle challenge from the romantic temper of the times and the nascent springs of feminine autonomy. Their marital relationship quickly dissolved. Pregnant and unhappy, Ellen left Gonzalve's habitation in Switzerland for Boston, giving nativity to Frederick shortly later. Gonzalve followed, demanding that his wife and son render domicile. The parties alternated efforts at negotiation with a true cat-and-mouse game of forum shopping. Ultimately, the couple turned to the American version of King Solomon, the judiciary, and a highly-popularized custody trial commenced in Philadelphia in 1840.

That the matter was even contested should exist surprising. Common law doctrine granted total sway to a father's decisions regarding child custody and family unit residence.[2] Indeed, every bit Grossberg observes, Ellen's claims to autonomy "voiced a standard of marital expectations at odds with the law" (p. 43). Gonzalve's cocky-image as paterfamilias conflicted with Ellen'south growing sense of herself as female parent tormented past an unfeeling spouse. But hierarchical claims had always trumped those of mutuality. Ellen thus faced a seemingly insurmountable obstacle. Since Gonzalve had not physically abused her or violated whatever other obligation of his union oath, she had no right to seek a divorce.[iii] Yet the law refused to arbitrate on behalf of married women. All were field of study to their husbands' ability and protection. Grossberg describes in fascinating detail how Ellen and her Philadelphia lawyers devised a strategy that would claiming the accepted legal conception along its emerging cultural fault line. Essentially, their scheme was to emphasize Ellen's maternal role, and to characterize Gonzalve's actions every bit mental cruelty, which, though insufficient to warrant a dissolution of the conjugal union, rendered him unfit to usurp the mother in the intendance of an infant. Gonzalve's legal squad, on the other hand, focused on Ellen'due south marital fault in deserting the husband's home, and relied on Gonzalve'southward paternal rights to custody of his child.

In Grossberg'southward earlier book, Governing the Hearth: Law and the Family in Nineteenth-Century America,[4] he outlined the fall of the hierarchical family in the face of burgeoning attention to notions of kid nurture.[5] The makeover to a "best interests of the kid" standard allowed both mothers and "surrogate" parents--that is, the land or an adoptive family unit--to circumscribe traditional paternal prerogatives. However, this power shift placed increasing options in maternal hands at the cost of having virtually the whole of family life supervised past what Grossberg called a "judicial patriarchy."[vi] In the present work, Grossberg has excavated a single site both more deeply and more than broadly. He centers his analysis on 1 custody struggle and has unearthed a enshroud of primary sources from the participants. But he likewise presents this case in the light of a broad array of cultural and anthropological studies. The range of sources he employs is truly sweeping. For instance, in 1 stretch of five pages suggesting that trials are complex social performances that should best be seen in the "anthropological pregnant of social dramas: events that reveal latent conflicts in a social club and thus illuminate its fundamental social structures" (p. 89), Grossberg cites texts in cultural history, drama and rhetoric, journalism and mass media, anthropology, a contemporary newspaper account, biography, and legal soapbox (see pp. 254-55, nn. i-11).

In seeking both judicial and public vindication, Gonzalve had bet on the past, Ellen on the hereafter of family life. But their trial took place, as all practise, in the contested nowadays. In rehearsing the scene, Grossberg nicely captures both the contingency of history and the delicate interaction of popular and legal norms. He does so past emphasizing how the determinative moments in the d'Hauteville social drama consisted of a dialectic of law and culture. Ellen significantly altered her legal posture from exploited married woman to embattled mother in light of her counsel's discovery that Pennsylvania judicial precedent provided no recourse for wives qua wives, but did offer a prophylactic custody harbor for mothers of very young children. Only Ellen's strategy also owed much to the antebellum cultural milieu, which had already begun to sanctify a split up sphere for motherhood. And Grossberg shows that Gonzalve shifted his focus away from Ellen's improper behave in refusing to recognize his sovereignty. In response to the narrow window of maternal preference opened by Pennsylvania custody cases, Gonzalve began to characterize his paternal rights as a check on standardless and unwarranted intrusion past judges into domestic arrangements. By expanding the canvas in this style, Grossberg succeeds on two fronts. He integrates client narratives into legal argumentation, and he incorporates the double helix of the constabulary's "relative autonomy" and "partial independence" (pp. 121-22) into the larger narrative of social change.

Social changes often simmer for years before boiling over, and Grossberg'south assay also suggests that mental cruelty, far and abroad the most popular twentieth-century divorce ground, began its long gestation as a component of the antebellum cultural separation between the sexes.[vii] The legal definition of marital cruelty did not encompass the intense ache Gonzalve supposedly acquired Ellen.[8] But Grossberg shows how, in her quest for custody, Ellen and her attorneys were able to leverage mental cruelty into an accusation that Gonzalve had violated the standards of the changing American family, an establishment groping its uncertain way from an institutional by to a companionate futurity. But in the point-counterpoint of their public struggle, Gonzalve and his counsel leveled the accuse that continues to haunt advocates of this expanded divorce ground: mental cruelty has no logical boundaries. An 1829 Kentucky court opinion, quoted by Grossberg, declared mental cruelty essentially not-justiciable, because of the police's disability to "define the operation of item acts, upon the mind, and so trace the influences of the mind upon the body, in producing disease and death" (p. 45). A century later, Dean Prosser acknowledged that mental cruelty "is an inevitable accessory of whatsoever marriage which has been a failure."[9] In Grossberg's telling, mental cruelty was primarily an element of the renegotiation of gender in the early on Victorian era.

Finally, A Judgment for Solomon adds a needed case written report to the contend among legal historians about the changing contours of the public and individual spheres in the evolution of the modern family unit, too as to the related policy question whether the shift of the conjugal bond from status to contract tin or should be reversed or at least significantly modified. Lee E. Teitelbaum argued a decade ago that very picayune of the "individual" Victorian family was truly private. Courts and legislatures gradually eased out the individual sphere in establishing hegemony over issues of child-rearing, education, wedlock regulation, child custody, and spousal back up.[ten] Afterwards, in a review of Governing the Hearth, Teitelbaum suggested that even Grossberg had not fully acknowledged the transference of functions from the household to the state regulator in the grade of the nineteenth century.[xi] By dissimilarity, Jana B. Vocaliser stressed the larger trend transforming family unit law from public to private ordering.[12] That argue has of belatedly been subsumed into a discussion of whether Henry Maine's dictum about the relentless creep from status to contract applies immutably to domestic relations.[thirteen]

Grossberg sidesteps the polemics pitting the rights-talkers against the communitarians, which have flared upward in this context in current proposals to stop or severely limit no-fault divorce, and to legislate two types of relationships: a spousal relationship of "commitment" and a union of "compatibility."[14] Instead, he demonstrates the power of storytelling at junctures when the law is in flux (p. 104). Grossberg's talent at narrative soapbox allows him to bear witness that the relationship between law and social change is non susceptible to easy cause-and-effect analysis. Civilisation obeys only the law of unintended consequences, and nosotros learn our lessons by approaching issues of social technology with a healthy and historically informed measure of skepticism near our own abilities.

As readers of this review may have guessed, Ellen d'Hauteville won her custody battle. Merely the judges awarded merely temporary custody. Because the litigation had exposed every private corner of her family to public view, her limited victory ensured that the family would be subject area to "continuous judicial surveillance" (p. 165). In many means, Ellen d'Hauteville's world has entirely passed from the scene. Merely she and we share a not bad sense of life in a culture facing "continuous judicial surveillance." In a gild deeply divided over gender roles and the permissible reach of the government into domestic relations, we should be wary of those as well quick to grasp the pall of King Solomon.

Notes

[one]. In an earlier article on the d'Hauteville litigation, Grossberg described 1 of his goals as highlighting trial courts as "arenas of conflict," the front end lines for "conceptualizing legal institutions and rules as public sites for contests over the meaning and application of the police." "Battling Over Motherhood in Philadelphia: A Report of Antebellum American Trial Courts every bit Arenas of Conflict," in Mindie Lazarus-Black and Susan F. Hirsch, eds. Contested States: Constabulary, Hegemony and Resistance (New York: Routledge, 1994), 154.

[2]. Run across, for example, James Kent, Commentaries on American Law, 2d ed. (1832), 193-94.

[3]. The best treatment of divorce in this menstruum is Richard H. Chused, Private Acts in Public Places: A Social History of Divorce in the Formative Era of American Family unit Police force (Philadelphia: University of Pennsylvania Press, 1994). For an argument that seeks to explain the more iron-clad sense of paternal authority in the antebellum South, see Eugene Genovese, " Our Family, White and Black': Family unit and Household in the Southern Slaveholders' World View," in Carol Bleser, ed., In Joy and In Sorrow: Women, Family, and Marriage in the Victorian S, 1830-1900 (New York: Oxford University Printing, 1991), 69-87.

[four]. Chapel Hill: University of N Carolina Press, 1985.

[5]. Governing the Hearth, at 234-85.

[6]. Ibid., 289-307.

[7]. See Chused, Private Acts in Public Places, at 87. On cruelty as the "dazzling success story of family law" because its plasticity allowed it to outperform adultery and desertion as the favored divorce ground, run across Lawrence M. Friedman and Robert 5. Percival, "Who Sues for Divorce? From Error Through Fiction to Freedom," Journal of Legal Studies 5 (Jan. 1976): 79-80. Robert L. Griswold showed that a "less restrained" definition of cruelty emerged in appellate opinions as early as the mid-nineteenth century. He identified a shift from "social and moral considerations to medical and psychological criteria," every bit well as an emphasis upon "individual autonomy at the expense of social guild." Griswold, "The Evolution of the Doctrine of Mental Cruelty in Victorian American Divorce, 1750-1900," Periodical of Social History 20 (1986): 127.

[8]. Grossberg quotes the prophetic view of mental cruelty voiced past Ellen's father: "that moral tyranny which strikes its blows upon the mind, until information technology totters, is thought fully equivalent to all that the torso can be brought to suffer" (p. 27). David Sears' opinion was wide of the mark in terms of antebellum police, simply he predictable the precise contours of marital cruelty a century later.

[ix]. "Divorce: The Reno Method, and Others," Forum 100 (Dec. 1938): 286-91.

[10]. Teitelbaum, "Family unit History and Family Law," Wisconsin Law Review (1985): 1135-81. Teitelbaum likewise objected to the whiggish view of a linear progression in American families from "fiddling commonwealths" to regulated industries. On the Puritan family unit, see John Demos, A Piddling Republic: Family Life in Plymouth Colony (New York: Oxford Academy Press, 1970).

[11]. Teitelbaum, "The Legal History of the Family" Michigan Constabulary Review 85 (1987): 1052, 1062. There is show that, for children of poor and immigrant families, the interventionist state had become a reality long earlier the antebellum catamenia ended. See, for example, J. Herbie DiFonzo, "'Deprived of Fatal Freedom': The Rhetoric of Child Saving and the Reality of Juvenile Incarceration," University of Toledo Constabulary Review 26 (1995): 855, 863-78.

[12]. Singer, "The Privatization of Family unit Law," Wisconsin Law Review (1992): 1443-1567.

[13]. Meet, for instance, Milton C. Regan, Jr., Family Police force and the Pursuit of Intimacy (New York: New York University Printing, 1993); Barbara Dafoe Whitehead, "Dan Quayle Was Right," Atlantic 271 (April 1993): 47-84; Bruce C. Hafen, "Individualism and Autonomy in Family Law: The Waning of Belonging," Brigham Immature University Law Review (1991): 1; and Carl East. Schneider, "Moral Soapbox and the Transformation of American Family Police," Michigan Law Review 83 (1990): 143.

[14]. Encounter, for instance, Barbara Vobejda, "Critics Seeking Alter, Mistake 'No-Fault' Divorce Laws for High Rates," Washington Mail service (Mar. vii, 1996): A3; 1995 Illinois House Pecker 2095, called the "Marriage Contract Human activity," would have required that couples seeking marriage cull their level of anticipated allegiance to the connubial union. Those electing a wedlock of "compatibility" could later cease it under the tenets of no-fault divorce. But a couple who embraced a wedlock of "commitment" could not legally dissolve it except by ane partner'south proof of the marital error of the other. The difficulties of monitoring cultural trends are hither apparent: in the midst of a large debate over the flow of family life from status to contract and perchance back, the Spousal relationship Contract Act attempted to re-institute status past means of contract. On pre-commitment restrictions by and large, come across Elizabeth S. Scott, "Rational Decisionmaking about Marriage and Divorce," Virginia Law Review 90 (1990): 43-44, 79-91.

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Citation: J. Herbie DiFonzo. Review of Grossberg, Michael, A Judgment for Solomon: The d'Hauteville Case and Legal Experience in Antebellum America. H-Law, H-Net Reviews. July, 1996.
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