When One and One Make Two

Hendrik Hartog. Man and Wife in America: A History. Cambridge: Harvard University Press, 2000. vi + 408 pp. Notes and index. $29.95.

One time-honored feature of the common law that made its way into American marital regimes was the legal fiction of marital unity. As a doctrine cited daily in the courtrooms of the nineteenth century, marital unity not only evoked the closeness and permanence of the marriage bond but it also provided the starting point for spelling out spousal rights and duties. The gist of the fiction was simple enough. In the eyes of the law, the husband and wife were one person, and that person was the husband. Jurists, or course, understood that in some legal circumstances a husband and wife needed to act as two persons. Yet with marital unity as a fundamental premise, the law routinely obliterated the wife's independent legal identity while it invested the husband with great responsiblities and powers. As Blackstone, one of the century's best-selling legal commentators described it, the wife's legal existence was subsumed by that of her husband "under whose wing, protection, and cover, she performs everything: and is therefore called in our law-french a feme covert . . . and her condition during her marriage is called her coverture." ¹

Small wonder that a generation of feminist historians and legal theorists have found in that nearly perfect expression of patriarchy so much to analyze, historicize, deconstruct, and vent against. What an irresistible target! "How do one and one get to be one?" I ask in an undergraduate lecture on the legal status of antebellum women. "By erasing the female one," I respond, eager to illustrate the persistence of patriarchy in the heyday of liberal individualism. But as Hendrik Hartog cautions in this wide-ranging study of marriage, one and one were never totally one in American law any more than slaves were the completely volitionless property of their masters. Judges, he insists-- important, law-making, appellate judges--never deployed marital unity in some kind of ideological lockstep designed to sustain the patriarchal order. And despite the metaphorical power it exerted and the concrete legal consequences it mandated, marital unity never prevented determined spouses from fashioning exits from their unions.

This is a book about how marital exits and separations interacted with the common law paradigm for marriage, which Hartog argues did not exert anywhere near the kind of sway feminist critics of both the nineteenth and twentieth centuries have attributed to it. In what is "unapologetically a work of legal history"(p. 2) that claims as its focus the legal culture, Hartog aims to reconfigure the story of marriage law by depoliticizing it. Renouncing the idea that the historian's task is to unmask the covert political theory lurking beneath every judicial decision, Hartog sets out to shift the reader's attention to the practical legal problems, the conflicting marital values, and the underlying institutional constraints of an ambiguous and evolving marital regime. His tone is clearly revisionist from the introduction onward and suggests a recoil from recent scholarship, which he faults for its "explicit political and normative concerns" (p. 3).

On the concerns of contemporary scholars, especially feminist scholars, he is unquestionably right. Marriage, after all, was and is too pivotal, too gendered, and too hierarchical a social institution to foster much neutrality regarding its legal ground rules, and those ground rules, in turn, have been inextricably intertwined with women's political exclusion. As Hartog sees it, the scholarship falls into two competing camps. One side, (the side into which my undergraduate lecture on the legal invisibility of antebellum women would fall) claims that coverture was a great social evil and views the long, rights-oriented struggle to eradicate it as a battle between the liberating forces of egalitarianism and the enduring power of patriarchy. The other side, claims Hartog, (and this one is trickier to identify since it seems to encompass anti-contractarian feminists as well...