Man and Wife in America: A History.

• Author: Grossman, Joanna L.
• Position: Review

MAN AND WIFE IN AMERICA: A HISTORY. By Hendrik Hartog.([dagger]) Cambridge: Harvard University Press. 2000. 408 pp.

INTRODUCTION

The conventional account of nineteenth-century marriage goes something like this: Couples met, and they, unlike their ancestors, married for love.(1) Men and women were transformed into husbands and wives. Husbands assumed their legally and culturally assigned role of provider and protector. In exchange for providing shelter and putting food on the table, they exacted obedience and sexual submission, and expected their wives to cheerfully birth and nurture children. Wives willingly assumed their place in the domestic sphere, submitted to their husbands' role in exchange for their protection, and ceased having an independent legal identity.(2) But despite these rigid roles, they placed high expectations on the relationship: Wives hoped for a romantic, communicative, and fair-minded protector; husbands for a supportive, gentle, and loving companion.(3) Marriages were fundamentally stable, but as the century progressed, expectations rose, and marital instability increased as those expectations went unfulfilled.(4) Strict divorce laws, however, typically prevented an easy exit, so couples either resigned themselves to an unhappy life together or colluded to obtain a divorce to which they were not legally entitled.(5) The divorce rate exploded, signifying the decay of marriage as an institution.

Hendrik Hartog, in Man and Wife in America: A History, both challenges and informs this traditional account of nineteenth-century marriage.(6) In Hartog's account, husbands and wives did not adhere to the rigid roles prescribed by the common law. Their marriages were not fundamentally stable, as reflected in the high rate of separation. And couples did not live together or live apart based solely on the whim of a state's divorce law. Couples wishing to split exercised a variety of options, including most notably living apart without court approval. Marriage, in the end, may have been strengthened as an institution by laws that allowed spouses out of a bad marriage and into a better one.

Seamlessly weaving together a wide variety of sources,(7) Hartog constructs a compelling vision of marriage as it was understood in the nineteenth century--a publicly regulated, standardized relationship that unified husband and wife beginning with the words "I do" (or the common law equivalent)(8) and ending with the death of one spouse.(9) His work tells a story of nineteenth-century husbands and wives and the lives they made for themselves within the governing legal regime.(10) He couches his story in the language and experience of separation,(11) an aspect of the history of marriage that has been undervalued. His focus on separation exposes a weakness in the conventional account in its failure to consider non-legal marital exits and its concomitant overstatement of the extent to which divorce law controlled social relationships.

Hartog explores separation from 1790 to 1950, though the focus is the pre-1870 period. Throughout, he emphasizes neither the abstract governing law, nor the private emotions and values, but their points of intersection. His skillful illustration of how law sometimes shaped private marriages, but more often bent to accommodate them even at the expense of theoretical purity, makes this book a uniquely valuable contribution to the historiography of marriage.(12)

This review is comprised of three parts, reflecting the three marital statuses informed by Hartog's exploration of separation: intact marriage, separation, and remarriage. Part I explains Hartog's contribution to our understanding of intact marriages--married couples living together. Separation turns out to be an important source of evidence about marital rights, duties, and expectations, for only when a couple separates does legally enforcing them become possible or important. Through an examination of cases involving separate estates and prenuptial agreements, suits to enforce separation agreements, and suits for separation or divorce, he draws a picture of nineteenth-century marriage that reconsiders notions of transformation, unity, and coercion as experienced by ordinary husbands and wives. Courts, he concludes, did not require unforgiving adherence to the legally prescribed roles as the conventional account might suggest. Couples, instead, were governed by a kinder, gentler coverture, one that accommodated the realistic needs of women to retain legal identity in some circumstances, and be protected from coercion in others.

In this Part, I suggest that the formal principle of marital unity nonetheless mattered because it was used to determine women's rights in other contexts. I also explore, drawing primarily on a study of divorce records from Alameda County, California,(13) whether the availability of divorce on grounds of cruelty placed additional limits on husbandly coercion.

Part II explores separation as a marital status: couples who were legally married but living apart. Separation is an important indicator of marital instability, and its prevalence in the nineteenth century calls into question the conventional assumption of marital stability. Separation, a category that encompasses couples living apart lawfully (by order of a court) and unlawfully (by simple separation), has also been underexamined as a status by other historians, who have focused on divorce law as the primary means of regulating private relationships and the primary indicator of marital failure. Separation was a defining facet of nineteenth-century life, and served as more than a transition to or substitute for divorce. It was instead, Hartog argues, the desired end for couples who valued marriage as a lifelong commitment, but could not live within its day-to-day constraints. This description is in stark contrast to the modern sense of separation as a prelude to divorce. But Hartog's work suggests not only a nineteenth-century preference for separation over divorce, but also one for informal over formal separation.

These claims need to be substantiated with further research. This review briefly examines the legal and practical availability of divorce, and the relative consequences of absolute divorce, legal separation, and informal separation in order to begin the project of assessing Hartog's claims. Much of the focus in this Part is on why women would prefer informal separation, when that status gave them the least in terms of financial security and emotional fulfillment. This section also considers how separation changes the conventional understanding about the relationship between divorce law and marital stability.

Part III looks at a third marital status: remarriage (legal or otherwise). Separation and the law's treatment of it illustrate the importance of marriage--and remarriage--to ordinary men and women. Hartog describes a system that, although premised on the fundamental importance of marriage and its permanence, did not force couples by and large to stay married. The actions of courts, legislators, and individuals instead intersected to preserve marriages that were viable, but to permit exit and remarriage where they were not. Courts took on a marriage-saving function, which differed from the approach in previous centuries in that they did not insist on saving first marriages. The social importance of marriage influenced law, both through the enactment of statutes permitting remarriage and the lax enforcement of statutes, like those against bigamy, preventing it. Hartog's research provides a way to reconcile the nineteenth century's growing separation and divorce rate with the continuing strength of the ideal of marriage.

In this Part, I consider why marriage continued to be important for individuals, particularly women, who often traded aspects of freedom for marriage.

1. STATUS ONE: MARRIED (AND LIVING TOGETHER)

   Nineteenth-century marriage implicates several different "histories:" a social and economic history that explains its role in relationship to work, childrearing, and community relationships; a political history that relates it to political participation, community governance, or women's quest for equality; and a psychological or literary history that sheds light on the relevance of romantic love and individual fulfillment to marriage.(14) But it also has a legal history, not just an arid description of the statutes labeled "Marriage and Divorce," but a vibrant, rich history that captures the role of law--both as received and as practiced--in regulating relationships, and the myriad ways in which husbands and wives navigated through and around legal norms and mandates. It is to that complex history that Hartog contributes.

   1. Methodology

      Marriage is more than a legal status, and using legal documents to explain it is vulnerable to criticism. But law was important to married couples for "beginnings and endings:"(15) when they entered into marriage, when they attempted (usually unsuccessfully) to individualize its terms, when they informally separated, or when they took their marital conflicts to state courts across the country. Hartog anticipates and ably responds to the critique that legal documents do not reveal anything about how real men and women conducted their lives and their marriages. He rejects the "conception of a `realer' self, unrevealed in legal texts."(16) Regardless of whether husbands and wives came to court voluntarily or under coercion, he argues, the stances they took there revealed "who they were, in their legal dealings and identities," though "other presentations and performances, occurred elsewhere."(17)

      The notion that legal documents constructed at the end of a marriage can provide insight into the marriage itself is important (though not new), for a purely non-legal history of marriage is surely incomplete. Letters, diaries, journals, and memoirs from the nineteenth century are restricted to...