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Reconstructing the Household: Families, Sex and the Law in the Nineteenth-Century South.

With the exception of Marylynn Salmon's pathbreaking Women and the Law of Property, legal historians have tended to avoid the issue of regionalism in the development of domestic relations law. Now, with Peter W. Bardaglio's Reconstructing the Household, historians have a carefully researched and thoughtful study of how nineteenth-century southern and northern family laws resembled and differed from each other. This volume joins Michael Grossberg's Governing the Hearth as the most important contributions to our understanding of family law during the critical formative period stretching from the late eighteenth to the early twentieth centuries.

Southern family history has been a historiographical battleground as bitter as any in American history. One view, associated with such scholars as Vernon Burton, Michael Johnson, Willie Lee Rose, and Anne Firor Scott, emphasized the patriarchal nature of antebellum southern society, notably the persistent significance of fatherly authority, hierarchy, and deference. Jane Turner Censer, Rhys Isaac, Jan Lewis, Daniel Blake Smith offered a diametrically opposing view, stressing the role of republicanism, romanticism, and sentimentalism in creating marriage patterns emphasizing free choice and companionship and childrearing practices emphasizing autonomy in the decades preceding the Civil War. A central goal of many recent studies, like Bardaglio's, has been to reshape this debate by emphasizing southern distinctiveness while moving away from rigid, static conceptions of southern patriarchy. For example, Steven Stowe emphasized ritualistic struggles over authority, autonomy, and intimacy within the antebellum planter class, while Joan Cashin showed how migration to the southern frontier intensified masculine independence and diminished female power.

Reconstructing the Household shows how two competing sets of familial ideals existed in tension both before and after the Civil War, one emphasizing patriarchy and personal honor, the other stressing contractualism and domesticity. The history of southern domestic relations law, he argues, not only involves a shifting balance among these conflicting systems of values, but also the state's increasingly important role in mediating relations between spouses, parents and children, and African Americans and whites (a phenomenon he terms "state paternalism").

Drawing primarily on state statutes and appellate court opinions, as well as state and regional law journals, state bar association reports, and the collections of the southern lawyers and judges, the book not only examines an extraordinary range of topics relating to domestic relations - from incest, miscegenation, illegitimacy, and rape to child custody, guardianship, and adoption - but also vividly reconstructs nineteenth-century southern legal culture. Strongly comparative in orientation, the volume contrasts the relaxed attitude of southern courts toward cousin marriages (and their strongly negative attitude toward affinal marriages) with the "Western American System" described by Bernard Farber.

Effectively balancing regional generalizations with detailed discussions of individual states, Bardaglio analyzes the development of the doctrine of mental cruelty in divorce cases; the gradual shift toward a more child-centered orientation in child-custody decisions involving divorce, indenture, and guardianship; the lack of vigorous legal sanctions against racial intermarriage in the antebellum Alabama, Mississippi, and South Carolina; and the legal doctrines used to rationalize the rape of free and slave black women. Rejecting the idea that the Civil War represented a crucial watershed in southern legal history, Bardaglio shows that many legal trends began prior to the war, as the courts expanded the grounds for divorce, strengthened the property rights of married women, and gave women greater legal standing in custody and guardianship decisions. Nevertheless, despite such innovations, persistence remains one of the book's key themes, as courts reshaped rather than destroyed paternal powers and emphasized the importance of racial distinctions. These themes were evident in revitalized efforts to prevent interracial marriage and cohabitation; and in the development of special procedural rules applying only to black defendants on trial for rape.

With its exceptional command of the primary sources and extraordinary facility with the relevant secondary literature, Peter W. Bardaglio's Reconstructing the Household is a signal contribution to legal history, the history of the family, and the study of southern race relations.

Steven Mintz University of Houston
COPYRIGHT 1996 Journal of Social History
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1996, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

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Author:Mintz, Stephen
Publication:Journal of Social History
Article Type:Book Review
Date:Dec 22, 1996
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