Vol. 10 No. 8 (August 2000) pp. 460-463.

MAN AND WIFE IN AMERICA by Hendrik Hartog. Cambridge, MA: Harvard University
Press, 2000. 408 pp. Cloth $29.95. ISBN 0-674-00262-8.

Reviewed by Susan Sterett, Department of Political Science, University of Denver

Trouble cases make it to appellate courts. When everyone does what they expect of each other or when legal remedies seem not worth the trouble when people don't, we seldom see a trace. So, to understand legal meanings of marriage in the nineteenth century, we must examine the trouble cases: the separations, the divorces, the lovers husbands killed. That is just what Hendrik Hartog has done as he surveys nineteenth century cases from New York, California and Wisconsin, touching on divorces from early divorce havens such as Indiana along the way.

Hartog opens with a case dating from 1952. He argues that its assumptions would have been recognizable to Americans in 1872. If men did not live up to their obligations, wives could leave and gain a separation agreement in which husbands had to provide the necessaries for a woman to maintain her appropriate station in life. If the marriage was intact, all decisions were joint household decisions and it was inappropriate for courts to interfere. These assumptions are not familiar to us today in the law of marriage. Divorce and division of property is the appropriate resolution to any form of discontent, without a specific resolution for men who won't purchase home comforts. Hartog uses the continuity and, in turn, the current unfamiliarity to argue for what he calls a long nineteenth century. Little changed, he argues, in terms of the assumptions concerning marriage and its
obligations until about 1940, and for many issues even later. Along the way, divorce in many states became more bureaucratic, and Hartog argues too that treatise writers lost their sense of what the justification was for much of old doctrine. They would simply wave their hands toward some sense of "public policy" (pp. 303-305). For example, the old justification for the
marital rape exemption would have been that a woman received a range of benefits from marriage, that in marriage she had a range of duties, and sexual intercourse was among them. Newer writers, in the wake of employment for women and the erasure of some aspects of coverture, could not make the same appeal. Instead, they would simply say that it was public policy not to interfere in a marriage. Not until 1970s was such an exemption successfully challenged in feminist terms.

Hartog emphasizes American federalism as crucial to understanding the possibilities before Americans. Should someone not wish to be married anymore, he could move, and the demographers tell us that people did. If the woman left behind were to call herself a widow, who would know? Furthermore, if one lived in a state that refused divorces, which New York did, one could move to Indiana, the earliest divorce haven, obtain a divorce and return home to marry -- maybe. Despite the full faith and credit clause of the Constitution, not all states recognized divorces from elsewhere. They did, however, recognize marriages; the only possible explanation for

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the difference, Hartog argues, is that they saw marriages as basically good and divorces as basically bad (p. 258).

The primary data for this study are appellate marriage cases from the nineteenth century. However, rather than treating the judges as though they stated the framework within which people lived, Hartog emphasizes the strategic choices available to those separating. Judicial patriarchy did not only create a world oppressing women. Judges enforced some protection for
wives as well, and within legal patriarchy women sometimes tried to change states to protect themselves to obtain a divorce, in particular.

Sometimes because judges did recognize that women could make choices, their choices did not always receive judicial support. For example, Harriet Douglas Cruger wanted, in nineteenth century terms, turn her husband into a wife, as Hartog puts it. She was independently extremely wealthy and she was concerned about protecting that wealth. She had initially wanted her husband to take her name, though she failed at that. She insisted on an agreement concerning the use of property during the marriage, signed after she married. The marriage was tumultuous. Shortly before the couple finally separated she capitulated to his complaining and agreed to an equal division of her estate. She later tried to renege, claiming coercion, but the courts in adjudicating the separation held that she was perfectly capable of acting for herself, just as she had claimed. Her husband lived separate from her for many years, wealthy (pp. 176-186).

Women whose husbands were wealthy could and did make claims on property in separation agreements. In emphasizing that women could make choices, could strategize, Hartog departs (as he notes in the introduction) from a tradition in feminist scholarship that emphasizes the way that women were caught within structures of patriarchy. In emphasizing what he sees as the always-available option of running away, with or without legal sanction, Hartog also departs from the strand of scholarship that emphasizes that in the nineteenth century people stayed married. Perhaps they did, but separation was an option, informal or not, and people took that option. Too, people remarried without benefit of divorce. If the first wife was in New York and a man moved to California, found someone and remarried, who would know?

In relying on improvisation as a framework, Hartog emphasizes that people were not as restricted as we might have thought if we read the cases, as he describes one form of reading, as "covert political theory." The implication is almost that people could remake the law. An old, old question, though, is whether invoking oppressive authorities for the purposes of assistance thereby remakes those categories or simply reinforces them. A pressing current example concerns custody disputes between lesbian partners who have been raising a child together, then split. In North Carolina, a biological mother left her partner to care for their child. She then returned, asking that the court not grant custody to her partner because North Carolina does not approve lesbian adoptions. She is, as a lesbian, able to deploy a law that is meant to work against lesbians. In the immediate case, it works against the emergent presumption that those who care for children ought to keep caring for them, that it is not a good thing to disrupt children's lives very much. It certainly works against lesbian adoption. The official meanings of law do not wholly control what we make of the law. The biological mother is, after all, lesbian

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and is likely to gain custody of her child. Still, the case does nothing to disturb dominant meanings, unless that emergent presumption concerning who should care for children becomes strong enough that such cases promote some legal change in legislatures.

Also, Hartog takes on board reminders that gender is a division of the world into masculine and feminine, that not only women enact gender. Therefore, he writes about what it meant to be a husband, not just what the legal regulations were concerning what it meant to be a wife. He envisions what was at stake in being a husband. It evoked a whole world sometimes
difficult for us to imagine today, one in which a man had a place because he had a household, a wife and children, to govern. Some men, when they faced losing that through divorce, evidenced a panic only explicable as a fear of losing their identity (pp. 165-166). In the law of honor killings it was also evident how much men, at law, anyway, could stake their sense of who
they were in being married to a woman who was loyal to him. If they killed in the immediate moment when they found the two together in a way in which there could be no mistaking adultery, men could kill their wives' lovers. The law would not hold them responsible. Although that was the formal law, as a matter of fact juries often would refuse to hold responsible men who had
killed their wives' lovers with premeditation (pp. 218-242).

In dealing with appellate cases not as statements of judicial ideology but as both structure and discourses people could deploy in their own interest, Hartog invites the questions of how much did people separate, how much did the law color their understanding of marriage. How frequent were the trouble cases? How much did the trouble cases shape the everyday?
As he notes, much of separation would leave no legal trace. Spouses would just disappear. Also, appellate cases would most likely capture the wealthy elites of the day, for they had enough property to make it worthwhile to pursue separation agreements. Indeed, Hartog tells stories of people who were friends with Horace Greeley. These wealthy persons could not be my next-door neighbors. What is unknowable in what he discusses is how prevalent the belief in the possibility of splitting up was, or how meaningful the law concerning honor killings was to those who were married. As he notes in a brief discussion of method, scholars could capture much more by going through county court records. What we have is not a story of
how men and women saw marriage in the nineteenth century, though sometimes Hartog implies that. What we have instead is stories of how THESE men and THESE women saw marriage when they no longer wanted THIS spouse. Each of the stories Hartog gracefully tells, though, has behind it a range of cases in the footnotes.

People remarried, often in violation of the laws against bigamy. Hartog argues that rather than revealing contempt for marriage, though, and the law of marriage, what bigamy and divorce revealed was a belief in marriage, a faith that happiness was possible, and that happiness not in a community but with a particular individual was worth pursuing. This too, continues to characterize the United States. A young Dutch friend of mine, observing the prevalence of divorce among my friends, said that marriage simply wasn't taken seriously in the United States. People wait to marry in the Netherlands, she noted, so that it would last. I tried to explain to her that it might be quite the reverse. Someone we knew who was well on her way to her

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third marriage by the age of 40 took marriage very seriously, believing it wrong to live together without the benefit of legal sanction. In the long 19th century Americans' hope that they could make a life with someone, a particular someone, could lead to troubling ambiguities. The courts favored marriage and would hold that people who held themselves out to be married were. What started as fornication could rapidly become marriage (p. 285).

MAN AND WIFE IN AMERICA is beautifully told. Although telling stories of unhappy marriages, Hartog also covers topics such as equity in the United States and Britain and the full faith and credit clause of the Constitution. In other places, such material is seldom compelling, but Hartog's light touch weaves those questions with real people's recognizable emotional trials.
Federalism is seldom a central part of the analysis in law and politics, but it needs to be. Hartog has made the existence of a large, federal nation crucial to understanding how people chose to leave their spouses. In even opening the question of how representative the friends of Horace Greeley were, Hartog has opened the way to new ways of understanding nineteenth
century marriage.