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Crossing Boundaries: Nineteenth-Century Domestic Relations Law and the Merger of Family and Legal History

Published online by Cambridge University Press:  20 November 2018

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Abstract

This essay argues for the need to study the legal history of the American family. It does so by combining a critique of secondary literature in family and legal history with examples from nineteenth-century domestic relations law. These examples, drawn from family law doctrines on seduction under the cover of a marriage promise, runaway marriages, and bastardy, are used to indicate the benefits of adding a sociocultural dimension to legal history and legal and institutional dimensions to family history. Three main themes in the history of nineteenth-century domestic relations law are developed to make these points: the law's particular fabric of issues, its distribution of authorship, and its chronological development, These themes suggest why a full understanding of the legal history of the American family requires crossing the boundaries between legal and family history.

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Copyright © American Bar Foundation, 1985 

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References

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119 2 Kent, supra note 61, at 215–16; Rollin C. Hurd, A Treatise on the Right of Personal Liberty 522–27 (Albany, N.Y., 1858); Lewis Hochheimer, A Treatise Relating to the Custody of Infants 382–92 (Baltimore, 1889).Google Scholar

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123 And see Cooley v. Dewey, 21 Mass. (4 Pick.) 93 (1826); Lange v. Richous, 6 La. 560 (1834); Earle and McNier v. Dawes, 3 Md. Ch. 230(1849); Kelly's Heirs v. McGuire and Wife, 15 Ark. 555 (1855); Flin-tham v. Holder, 16 N.C. (1 Dev. Eq.) 349 (1829); Little v. Lake, 8 Ohio 289 (1838); Miller v. Stewart, 8 Gill 12 (Md. 1849); Brown v. Dye, 2 Root 280 (Conn. 1795); Woodstock v. Hooker, 6 Conn. 36 (1825); Burlington v. Fosby, 6 Vt. 83 (1834); Kent v. Barker, 68 Mass. (2 Gray) 535 (1854); Tapping Reeve, A Treatise on the Law of Descents 96 (New York, 1825); 2 Kent, supra note 61, at 212–14; Griffith, supra note 115, vols. 1 & 2.Google Scholar

124 For a similar analysis of the impact of the Revolution on inheritance law see Katz, Stanley N., Republicanism and the Law of Inheritance in the American Revolutionary Era, 76 Mich. L. Rev. 1 (1976).Google Scholar

125 See Cott, , supra note 31; Mary Beth Norton, Liberty's Daughters: The Revolutionary Experiences of American Women, 1750–1800 (Boston, 1980); Kerber, supra note 14; Lebsock, supra note 14.Google Scholar

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127 Adams v. Adams, 59 Vt. 158, 161 (1877). For illustrations of class and culturally biased uses of the law see Philadelphia v. Bristol, 6 Serg. & Rawle 502 (Pa. 1819); Boylston v. Princeton, 13 Mass. 381 (1816); Manchester v. Springfield, 15 Vt. 385 (1843); Robalina v. Armstrong, 15 Barb. 247 (N.Y. 1852); Byrne v. Love, 14 Tex. 81 (1855); and see Bloomfield, supra note 72, at 122–35. For a particularly insightful recent assessment of the policy implications of nineteenth-century poverty and dependency see Katz, supra note 87.Google Scholar

128 Illegitimacy Laws of the United States 42 (Washington, D.C., 1919); and for examples of this aspect of bastardy law see Schooler v. Commonwealth, 16 Ky. 88 (1809); Hinman v. Taylor, 2 Conn. 357 (1817); Moncrief v. Ely, 19 Wend. 405 (N.Y. 1838); State v. Goode, 32 N.C. (10 Ired.)49 (1849); Morse v. Pineo, 4 Vt. 281 (1832); Spalding v. Felch, 1 Root 319 (Conn. 1791); Johnson v. Randall, 7 Mass. 340 (1811); Cooper v. State, 4 Blackf. 316 (Ind. 1837); Shenk v. Mingle, 13 Serg. & Rawle 28 (Pa. 1825); Burgen v. Straughan, 7 J. J. Marsh. 583 (Ky. 1832); Coleman v. Frum, 3 Scam. 378 (Ill. 1842); 2 Kent, supra note 61, at 216–17; William Rockel, Evidence in Bastardy Cases, 18 Cent. L.J. 305–7 (1884).Google Scholar

129 For examples of the process of diffusion in various categories of bastardy law, see Egbert v. Greenwalt, 44 Mich. 245 (1880); Fox v. Burke, 31 Minn. 319 (1883); Herring v. Goodson, 43 Miss. 392 (1870–71); Hawbecker v. Hawbecker, 43 Md. 516 (1875); Crane v. Crane, 31 la. 296 (1871); Pina v. Peck, 31 Cal. 359 (1866); Dickenson's Appeal from Probate, 42 Conn. 491 (1875); Bales v. Elder, 118 Ill. 436 (1887); Keeler v. Dawson, 73 Mich. 600 (1889); State v. Noble, 70 la. 174 (1886); Frederic Stimson, American Statute Law §§ 3151, 6620–6622, 6631–6636 (Boston, 1886); 4 Vernier, supra note 80, at 150–52, 178–82, 190–92; Frank Fessenden, Nullity of Marriage, 13 Harv. L. Rev. 110 (1899–1900); Florence Kelly, On Some Changes in the Legal Status of the Child Since Blackstone, 13 Int'l Rev. 96 (1882).Google Scholar

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131 Mohr, supra note 86; Linda Gordon, Woman's Body, Woman's Right: A Social History of Birth Control in America (New York, 1974); James Reed, From Private Vice to Public Virtue: The Birth Control Movement and American Society Since 1830 (New York, 1978); David Pivar, The Purity Crusade: Social Morality and Social Control, 1868–1900 (Westport, Conn., 1968).Google Scholar

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141 For a compelling view of legal ideology in this era see Robert Gordon, The Ideal and the Actual: Fantasies and Practice of New York Lawyers, 1870–1910, in Gerhard Gawalt, The New High Priests, Lawyers in Post-Civil War America 51–74 (Westport, Conn., 1984).Google Scholar

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