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

Peter Bardaglio's "Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South" is a polite reassessment of, as well as an expansion upon, Michael Grossberg's "Governing the Hearth: Law and the Family in Nineteenth-Century America." Through the use of similar primary sources, i.e. records from lower and appellate courts, legal treatises, and personal papers, Bardaglio challenges Grossberg's assertion that America uniformly moved from a family structure dominated by patriarchs to one shaped by jurists and the state over the course of the nineteenth century. The author of "Reconstructing the Household" claims that the American South served as a massive exception to that argument by maintaining a strict adherence to an organic, or patriarchal, family organization until the Civil War fundamentally changed many aspects of domestic relations law in the region. Moreover, Bardaglio contends that this male centered family unit served as the central organizing feature of the southern state, a unit that acted as an intermediary between the state and the rest of society. The author divides his study into two sections: one outlining the hierarchy of the southern legal system and the organization of the family prior to the Civil War, and one examining the radical restructuring of domestic relations law after the conflict of 1861-65. Antebellum society centered on the heads of the household, which in the South meant free white males. All aspects of the family unit--including women, children, and even slaves--revolved around this all-powerful male figure. The law not only recognized but also encouraged this reality in its rulings concerning family relations. For example, in the rare cases of divorce or other instances of family dissolution the courts routinely awarded custody of children to the father. Women possessed few rights outside of their husband's domain, and could usually only maintain control over the children when their spouse specifically granted guardianship to his wife in his will. Slaves, tied to their owners and thus nominally under their absolute control, presented southern jurists with a dilemma. The fear of miscegenation led state governments and courts to interfere in the family arena, which Bardaglio indicates was the most significant instance of state intrusion into private life in the South before the Civil War. The Civil War was a catastrophic disaster for the southern legal system. The widespread destruction of court records and the loss of talented legal scholars and lawyers on the battlefields represented a momentous setback to antebellum legal practices. But the subsequent resurrection and reshaping of courts by northern authorities rapidly brought about a massive change in how new southern judges and advocates practiced domestic relations law. Just as significant was the introduction of market capitalism, which eroded the agrarian based economic system over the following decades. This change had the sam