8 - Marriage and Domestic Relations

Summary

On the eve of the American Revolution, domestic relations law, as it would come to be called in the nineteenth century, encompassed a whole constellation of relationships between the male head of the household and the subordinates under his control. These included his wife, children, servants, apprentices, bound laborers, and chattel slaves, designated by William Blackstone as those in lifetime servitude. Although Blackstone did not create this conception of household relations, he incorporated it into his Commentaries on the Laws of England, the era’s most influential legal primer, where it appeared under the rubric of the law of persons. Based as it was on a belief in the fundamental inequality of the parties and the subordinate party’s concomitant dependency, the law of persons lay at the heart of subsequent challenges to domestic relations law in general and to marriage law in particular. By categorizing the law of husband-wife as analogous to other hierarchical relationships, it generated parallels that would become sites of contestation. According to the law of persons, both marriage and servitude were “domestic relations,” and both mandated a regime of domination and protection to be administered by the male head of the household.

The law of persons cut a broad but increasingly anachronistic swath in the legal culture of the new republic and in the economic transition from household production to industrial capitalism. As a result, one change in domestic relations law over the course of the nineteenth century involved the gradual narrowing of the relations under its aegis.