ERADICATING WOMEN'S SURNAMES: LAW, TRADITION, AND THE POLITICS OF MEMORY.

• Author: Anthony, Deborah

INTRODUCTION

"My name is my identity and must not be lost."-Lucy Stone

In explaining her reasoning for retaining her birth name after marrying Henry Blackwell in 1855, Lucy Stone, the first known American woman to keep her surname after marriage, fastened on a concept both implicitly and explicitly acknowledged in the annals of history: the symbolic nature of names and their centrality to one's individuality and identity. (1) She resisted what was understood to be the fundamental and essential tradition of wives adopting the husbands' surname after marriage, a tradition so fundamental as to be considered unassailable, even perhaps divinely ordained. Stone also gained the distinction of being the first woman denied the right to vote by reason of her name choice. (2) Even into the twenty-first century, the practice is considered one of the most fundamental aspects of traditional marriage, dating back to to the origins of surnames themselves, which lends it a kind of mystical legitimacy. Yet, the historical record of surnames tells quite a different story.

English surname usage prior to the seventeenth century was not only variable, but the practice for women bore little resemblance to the typical "traditional" practices seen in modern-day England and the United States. Women in England, like men, once held individualized surnames reflecting personal traits, occupations, or family relations. (3) When, centuries later, surnames began to be passed down to descendants, women often retained their own names after marriage, and were as likely as men to pass on those names to their children and grandchildren, and even at times to their husbands. (4) This surname flexibility, when considered with other historical evidence, suggests a more complex and nuanced status for women in English history than is typically acknowledged. Indeed, what we consider to be traditional when it comes to naming practices (i.e. women assuming the names of the husbands, and children those of the fathers) is in fact a relatively recent phenomenon rather than a product of ancient English practice. For roughly 800 years, English women underwent an extended period of decline in rights and status, with the most pronounced and abrupt shifts taking place in the early modern period beginning about the middle of the seventeenth century. That state of affairs became the foundational status quo at the establishment of the American colonies and eventually the new nation.

The advent of the Enlightenment, as well as the political creation of the nation-state and the advancement of colonialism and imperialism in the early modern period, brought about new notions of citizen and non-citizen, self and other. These concepts were employed to reinforce a patriarchal regime which deceptively claimed that the natural order, common sense, long history, and divine right supported the current male-oriented surname system in its creation of new systems of rights and identity. Strikingly, however, the collective social consciousness failed to acknowledge these developments. Instead, the older norms were wiped clean from collective memory and the new practices, being critical to maintaining the new dominant social status quo, were made "traditional." When new modern and strictly gendered practices emerged, they quickly became so entrenched and political that both social and legal mechanisms sprang up to enforce them. Courts justified restrictive decisions about women's surnames by reference to a "tradition" so fundamental and absolute that it merited legal coercion despite nearly a millennium of common law and empirical evidence to the contrary. (5) Today, while women in British and American society possess formal legal surname equality, sex-based naming conventions not only persist, but are also still enforced in certain ways via public policy. (6)

The law often draws its principles from custom and practice, and justifies itself by reference thereto. Yet conversely, the law also works to support or discourage certain social practices, and changing the law is often the first step in altering societal perceptions and practice. It is not altogether surprising, then, that few couples deviate from the customary surname practice at marriage when the law has explicitly and implicitly worked against such a choice for the past few centuries; the current framework formally and informally prefers inegalitarian naming conventions. The fact that policy and law make resisting social trends more difficult speaks to our continuing patriarchal tendencies and our conceptions of family, identity, and values.

Surnames, once a fluid and variable convention in which women were often represented separate and apart from the men in their lives, became rigidly enforced as involuntary markers upon them through a variety of mechanisms, including social pressure, public policy practices, and legal decisions beginning in the nineteenth century in the United States. These cases referenced "tradition" going back centuries, perhaps even all the way to the birth of western civilization, but in reality judges were constructing their own version of history. This manipulation of the historical record and the common law was then used to promote concrete and compulsory policy, case law, and, occasionally, statutory law. The relationship between social custom and the common law is thus revealed to be dynamic, mutually constitutive, and, at times, contrived. Perceived traditions sometimes carry with them heavy political meaning beyond what appears at face value, such that when they are disrupted, the ways in which we have situated ourselves within our culture are shaken and enforcement mechanisms rise up to right the status quo. This process is not accidental; it is political.

There is a presumption permeating modern life that societies always tend to move in the direction of progress, albeit not necessarily linearly, and sometimes in fits and starts. Wherever we stand today, it is certainly better than where we stood a generation ago, or a century, or many centuries. So invested are we in the idea that earlier periods could not have been more enlightened or advanced than modern society that we are inclined to reject as incorrect or anomalous any evidence to the contrary (while we are disinclined to search for such evidence in the first place). In the words of Herbert Hirsch, "[t]he idea of history as some inexorable process moving toward the perfection of the human species and an era of justice and tranquility is another of those figments of the human imagination wholly without precedent." (7) This tendency encourages a flawed or incomplete representation and study of history, which, in turn, serves to reinforce the same incomplete vision that prompted it. This approach can be termed "chronological ethnocentrism." (8) It is clearly evident in the case of women's surnames specifically, and the implications of that issue for their status more broadly.

The historical development of surname usage reveals a great deal about tradition, culture, and collective memory, and their mediation through the law and politics of a society. The politics of memory is a critical vantage point from which to interpret these developments, as the warping of tradition and collective memory served multiple political purposes in the cultivation of a national culture and identity that produced and supported pronounced gendered hierarchies in England and the United States.

1. A History of Surnames in Anglo-American Culture

   Cultural surname practices worldwide are quite variable, and United Status custom has certainly been influenced by diverse cultural practices and traditions. However, this Article focuses only on English history, primarily because the English common law was incorporated into the United States law and, as will be seen below, has had formal and concrete effects on the development of both custom and law in the United States regarding surnames.

   Surnames entered the scene in England with the Norman Conquest of 1066; the previous Saxon culture utilized only given names. (9) Surnames gradually spread throughout the region, becoming more commonly adopted and used by the population over the ensuing centuries. (10) Multiple factors contributed to this trend, including the limited number of first names in use and the resulting difficulty in distinguishing individuals, the increase in government record-keeping and taxation and its attendant need to accurately identify and catalogue individuals, and the desire to more easily align and designate family estates and the inheritance systems that would perpetuate them. (11)

   Yet surnames at that time bore little resemblance to their modern forms. Up until around the seventeenth century, surname usage and adoption was a cultural practice that was flexible and inconsistent. Rather than being inherited from the father, surnames originally operated more as nicknames, assumed by common use: they might be chosen by the bearer or organically adopted by her or his acquaintances. (12) They were a reflection of the name-holder's occupation (e.g. Baker, Potter), (13) personal or physical characteristics (e.g. Goodman, Armstrong), residence (e.g. Bridges, Hilton for hill town), or family (e.g., Richardson, Hughes). As such, they were functional and could change easily and often within a person's lifetime. For instance, a young boy with very light hair might be called John Whitehead; after growing up and making carts for a living, he may be known as John Carter. Similarly, a person could be known by more than one surname simultaneously: one person may associate Robert with his father Thomas, calling him Robert Thomasson, while another knows him as Robert who lives by the wood, or Robert Wood. Members of the same family, therefore, often bore different surnames from each other. (14)

   One of the least-known aspects of historical surnames is the ways and frequency in which they were...