Domestic Relations: The Family, Children, and Women

One of the fasting growing areas of writing in American legal (and social) history involves gender and family issues. The discovery of the family as an integral part of American social history surfaced in the several town and community studies of the 1960s and 1970s. See, for example, John Demos, A Little Commonwealth: Family Life in Plymouth Colony ( 1970). Since then, study of the family has taken an even more explicitly legal turn. Particularly valuable is Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America ( 1985), which traces the evolving legal status of parents and children within the family and on which I have relied heavily. According to Grossberg, children had by 1900 achieved a new legal status in which they enjoyed the right not to be abused, mistreated, neglected, or exploited. Grossberg also insists that patriarchal control of the family declined, to be replaced by greater and greater judicial administration of family affairs. Viviana A. Zelizer, Pricing the Priceless Child: The Changing Social Value of Children ( 1985), argues that one of the consequences of the Industrial Revolution was to increase the emotional value of the child to the family at the same time that its economic worth declined.

The evolving legal status of women has also come in for increased attention. Carl Degler At Odds: Women and the Family in America from the Revolution to the Present ( 1980) is especially useful in fitting women into a general social history context, although many scholars of women's history reject his argument that the position of women has gradually improved. Robert L. Griswold's Family and Divorce in California, 1850-1890: Victorian Illusions and Everyday Realities ( 1982) is not just good on legal developments; it also does away with many of the traditional assumptions about why marriages ended in divorce. Nelson M. Blake, The Road to Reno: A History of Divorce in the United States ( 1962), is still valuable on the legal evolution of the practice of divorce. Paula Petrik argues convincingly that the frontier environment of the West helps to explain why women there were the first to secure the electoral franchise. See Petrik, No Step Backward: Women and the Family on the Rocky Mountain Mining Frontier, Helena, Montana, 1865-1900 ( 1988).

Although scholarly concern about the legal status of women has mushroomed, much remains to be done. A good idea of the present state of research in women's history can be found in D. Kelly Weisberg , ed., Women and the Law: The Social Historical Perspective, 2 volumes ( 1982), but there is no "general" legal history of women. The tension inherent in the legal treatment of women between granting them equity or equality is nicely summarized in Norma Basch, "Equity v. Equality: Emerging Concepts of Women's Political Status in the Age of Jackson," Journal of the Early Republic 3 ( 1983). Basch has also contributed an important volume, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York ( 1982), to the growing literature on the married-women's property acts. The best treatment of the implications of the law of property for the conduct of female behavior is provided in Suzanne Lebsock, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784-1860 ( 1984). Abortion, one of the central concerns of the modern women's movement, continues to draw historical attention. James Mohr, Abortion in America. The Origins and Evolution of National Policy ( 1978), is a valuable introduction to the complex of legal, class, and economic issues behind this practice.

The Nineteenth Century Criminal Justice System

Social and legal historians have stimulated each others' interest in deviancy and dependency. Much of their research, however, has stressed the external and social implications of crime rather than examining substantive criminal law developments. One of the ironies of contemporary American life is that for a nation so consumed with a fear of crime, its historians know next to nothing about the evolution of substantive criminal law. A good deal more effort has gone into

-372-

the social determinants of crime and the crime rate. There is a growing consensus that industrialization and urbanization did not bring about more crime, but scholars are at a loss to explain why the per capita crime rates dropped through most of the nineteenth and well into the twentieth centuries. On these developments, see Eric H. Monkkonen, "A Disorderly People? Urban Order in the Nineteenth and Twentieth Centuries," The Journal of American History 68 ( 1981). Monkkonen's position has been hotly disputed. Much of the debate about crime rates turns on the issue of what crime was. The evidence does suggest that, on the whole, concern with crimes of morality gave way at the end of the eighteenth century to a new awareness of crimes against person and property. The intellectual background of this change is sketched in William E. Nelson , "Emerging Notions of Modern Criminal Law in the Revolutionary Era: An Historical Perspective," New York University Law Review 42 ( 1967). Friedman A History of American Law, 2nd Ed. ( 1985) also contains useful details about the social, intellectual, and economic foundations of changes in criminal law and the criminal justice system. Samuel Walker Popular Justice ( 1980) devotes less attention to law and more time to the criminal justice system. Much the same can be said for David J. Bodenhamer, The Pursuit of Justice: Crime and Law in Antebellum Indiana ( 1986), which is valuable for its treatment of grand and petit juries, a subject almost ignored in the literature. The connections between social change and penology are ably examined in Francis A. Allen, The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose ( 1981).

Other parts of the criminal justice system have received attention. Eric H. Monkkonen, Police in Urban America, 1860-1920 ( 1981), distinguishes the changing roles played by the police as urban America developed. Wilbur R. Miller, Cops and Bobbies: Police Authority in New York and London, 1830-1870 ( 1977), shows the importance of cultural differences in expectations about policing. These and other studies of the police have complemented an equally imaginative literature on the prison and jails. David J. Rothman The Discovery of the Asylum: Social Order and Disorder in the New Republic ( 1971) gave far too little emphasis to developments outside the North, but he brilliantly connected social change and the role of the asylum where he did look. Edward L. Ayers, Vengeance & Justice: Crime and Punishment in the Nineteenth-Century American South ( 1984), suggests that Southerners believed in jails but that the region's peculiar race relations created its own special problems of providing criminal justice. A similar theme can be found in Michael Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767-1878 ( 1980). Children's crime (juvenile delinquency) is discussed in Anthony Platt, The Child Savers: The Invention of Delinquency ( 1969). Lawrence M. Friedman and Robert V. Percival, The Roots of Justice: Crime and Punishment in Alameda County, California 1870-1910 ( 1981), is a remarkable study of the operation of an entire criminal justice system in one place over a period of time. Friedman and Percival, like other recent students of criminal justice, stress that urbanization and industrialization seem to have fostered a social discipline and rhythm that lowered rather than raised the crime rate.

The connection between criminality, insanity, and eugenics has received attention. David A. Jones , History of Criminology: A Philosophical Perspective ( 1986), is a good general introduction to these matters. John S. Hughes, In the Law's Darkness: Isaac Ray and the Medical Jurisprudence of Insanity in Nineteenth-Century America ( 1986), is a valuable treatment of one of the nation's great teachers on medical jurisprudence.

Professionalization of the Bench and Bar

Growing professionalization of the bench and bar accompanied the social and economic transformation of the nineteenth century. The professionalization of law and other occupations is discussed in Burton J. Bledstein, The Culture of Professionalization: The Middle Class and theDevelopment of Higher Education in America

-373-

Development of Higher Education in America ( 1976). Professional and political pressures, which have always been in tension, were not entirely resolved, themes analyzed by Maxwell Bloomfield in American Lawyers in a Changing Society, 1776-1876 ( 1976). Bloomfield not only discusses the various themes of law versus politics, but includes a valuable discussion of the rise in the era after the Civil War of a small corps of black lawyers. The subsequent impact of industrialization on the profession is treated in Gerard W. Gawalt, ed., The New High Priests: Lawyers in Post-Civil War America ( 1984). These essays cover the emergence of the American Bar Association, the development of the large corporate law firm, and the social backgrounds and training of lawyers and judges. The role of attorneys in shaping economic development and race relations in one local community in the South is skillfully examined in Gail Williams O'Brien , The Legal Fraternity and the Making of a New South Community, 1848-1882 ( 1986). The development of legal education during these years is the subject of Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s ( 1983). The codification movement is ably treated in Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Reform ( 1981).

The evolution of the bench and judicial behavior is the subject of G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges ( 1976), which devotes considerable attention to distinguishing nineteenth- and twentieth-century styles of judging. One area where law and politics did meet was through the practice of electing state appellate judges, although professional goals and political accountability were far more compatible than was once presumed. See Kermit L. Hall, "The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary, 1846-1860," The Historian 44 ( 1983). On the middle-class backgrounds of nineteenth-century federal judges (both in the states and the territories), see Hall, "'The Children of the Cabins': The Lower Federal Judiciary, Modernization, and the Political Culture, 1789-1899," Northwestern University Law Review, 32 ( 1980). On the territorial judiciary of the post-Civil War West, see John D. W. Guice fine study, The Rocky Mountain Bench ( 1972).

The nation's expanding economy created more work for courts and judges, both in the form of more common law actions and in the need to review more statutes and administrative findings. On the connections between economic change and judicial behavior in the state appellate courts, see Robert A. Kagan et al., "The Business of State Supreme Courts, 1870-1970," Stanford Law Review 30 ( 1977). A similar pattern of development is traced in Richard A. Posner, The Federal Courts: Crisis and Reform ( 1985). The jurisdiction of the federal courts expanded in response to the dynamic national economy, although, as William M. Wiecek explains in "The Reconstruction of Federal Judicial Power, 1863-1876," The American Journal of Legal History 13 ( 1969), much of the growth in federal judicial power that served the interests of business was at its inception in Reconstruction designed to aid the enforcement of black civil rights. Greater legislative activism, by both Congress and state legislatures, meant that appellate judges, practiced in common law interpretation, had increasingly to take account of the legislative history of major acts. As John W. Johnson has shown in "Retreat from the Common Law? The Grudging Reception of Legislative History by American Appellate Courts in the Early Twentieth Century," Detroit College of Law Review ( 1978), this development forced judges (and the lawyers who argued before them) to search for new kinds of materials, such as statistics, to bring to bear in the courtroom.

Did the legal profession react uniformly to social and economic change? Of course not. Yet the most visible and professional part of the bar, with its ties to emerging corporate capitalism growing ever closer, protected its interests rather than the public good, at least according to Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America ( 1976). Auerbach shows that racial, ethnic, and gender prejudice impeded access to the legal profession by minority groups and hampered the delivery of legal services to a society ever more in need of them.

-374-

Date: 2015-01-29; view: 764