Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (Studies in Legal History)

Rating:
Summary: Thought provoking
Review: Peter Bardaglio's "Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South" is a polite reassessment of, as well as an expansion upon, Michael Grossberg's "Governing the Hearth: Law and the Family in Nineteenth-Century America." Through the use of similar primary sources, i.e. records from lower and appellate courts, legal treatises, and personal papers, Bardaglio challenges Grossberg's assertion that America uniformly moved from a family structure dominated by patriarchs to one shaped by jurists and the state over the course of the nineteenth century. The author of "Reconstructing the Household" claims that the American South served as a massive exception to that argument by maintaining a strict adherence to an organic, or patriarchal, family organization until the Civil War fundamentally changed many aspects of domestic relations law in the region. Moreover, Bardaglio contends that this male centered family unit served as the central organizing feature of the southern state, a unit that acted as an intermediary between the state and the rest of society.

The author divides his study into two sections: one outlining the hierarchy of the southern legal system and the organization of the family prior to the Civil War, and one examining the radical restructuring of domestic relations law after the conflict of 1861-65. Antebellum society centered on the heads of the household, which in the South meant free white males. All aspects of the family unit--including women, children, and even slaves--revolved around this all-powerful male figure. The law not only recognized but also encouraged this reality in its rulings concerning family relations. For example, in the rare cases of divorce or other instances of family dissolution the courts routinely awarded custody of children to the father. Women possessed few rights outside of their husband's domain, and could usually only maintain control over the children when their spouse specifically granted guardianship to his wife in his will. Slaves, tied to their owners and thus nominally under their absolute control, presented southern jurists with a dilemma. The fear of miscegenation led state governments and courts to interfere in the family arena, which Bardaglio indicates was the most significant instance of state intrusion into private life in the South before the Civil War.

The Civil War was a catastrophic disaster for the southern legal system. The widespread destruction of court records and the loss of talented legal scholars and lawyers on the battlefields represented a momentous setback to antebellum legal practices. But the subsequent resurrection and reshaping of courts by northern authorities rapidly brought about a massive change in how new southern judges and advocates practiced domestic relations law. Just as significant was the introduction of market capitalism, which eroded the agrarian based economic system over the following decades. This change had the same effect it did in the North; it translated into an emerging legal emphasis that shattered the monolithic patriarchal family by recognizing the individual. The terms seen in Grossberg's book, the "tender years" doctrine and the "best interests of the child" among them, moved to the forefront in southern legal rulings. Tentative recognition of rights for women and children that began as a trickle before the Civil War became a flood as judges paved the way for the state to decide who could adopt children, who could raise children, what constituted rape, and a host of other family related matters. In other words, the southern family morphed into Grossberg's republican family, or an amalgamation of individuals within the family possessing rights not contingent on the traditional head of the household.

Bardaglio's book is most effective when it describes how southern judges avoided intruding on the patriarchal society. The author discovered that the issue of incest presented a startling example of how the legal system could function as a protector of the elite class and its beliefs. Relationships between family members or in-laws are not rare occurrences in any society, and the American South was no exception. Judges spoke out about the practice in an unequivocally hostile manner, arguing that sexual contact between kin relations was a practice that would undermine the society built upon elite conceptions of how that culture should function. But, as Bardaglio convincingly argues, southern jurists went out of their way to condemn the behavior on an individual basis instead of denouncing the patriarchal system as a whole. Because the organic family fosters an environment of extraordinarily close physical and emotional contact between the dominant male and subordinate females, the author contends that the result often drifted into a sexual relationship. For the judges who had to preside over the resolution of such distasteful behavior, it was easier for them to believe incest was an anomaly instead of an inherent problem in the structure of southern domestic relations.

Arguably the biggest difference between the Grossberg and Bardaglio treatments of domestic relations law in the nineteenth century deals with abortion and contraceptive practices. Grossberg examined these two aspects in great detail while Bardaglio omits them. Why? Both methods of birth control must have played some part in southern life, if not in the years before the Civil War then definitely afterwards when market capitalism made major inroads into the South. It is no secret that slave owners looked forward to bondswomen giving birth to children because they could hold them as property. Were there stringent bans on black women practicing birth control? How did southern slave owners enforce these bans, if they existed? Moreover, was there a change in law and public opinion on the issue of birth control after emancipation? If so, how and why did it change? None of these questions begin to scratch the surface of the role birth control played amongst the white inhabitants of the region. These questions are fascinating, and the potential answers might very well increase the understanding of how southern domestic relations law differed from its northern counterpart in the nineteenth century.