A Judgment for Solomon: The d'Hauteville Case and Legal Experience in
Cambridge, England, and New York: Cambridge University Press, 1996. xvii +
270 pp. Notes and index. $59.95 (cloth), ISBN 0-521-55745-3 ISBN
0-521-55206-0; $16.95 (paper), ISBN .
J. Herbie DiFonzo , Hofstra University.
Custody of the Family?
One of the truly awful aspects of legal education is the
tendency to extract law from life and treat it as an inviolate sphere of
consciousness, elevated from pedestrian undergraduate concerns such as
anthropology and history. First-year students begin regarding children
crossing a busy street as inchoate tort cases. Fairly soon, in too many
instances, budding lawyers ignore Holmes and brood incessantly about the
omniscience of appellate case law. They then practice law with the mindset
of a shoehorn. They should all read Michael Grossberg.
They should do so not because historical perspective
provides an added, or even a critical, dimension to a case summary, but
because Grossberg provides a richer, more accurate portrait of the power
and paradox of law itself. A Judgment for Solomon recounts a child
custody fight litigated in antebellum Philadelphia. In a sense, Ellen and
Gonzalve d'Hauteville's struggle for custody of their son Frederick
mattered only to them. The case set no binding precedent; in fact, the
trial court's decision was never appealed. A report of their struggle
appears in no domestic relations text. But in Grossberg's supple hands,
the d'Hauteville case is transformed into a vehicle for examining the
multi-tiered legal culture and the way in which popular and legal norms
cross-pollinate. He makes his aim clear: "to present ... a model for
contextualizing popular cases, and a brief for narratives as a way to
probe the legal dynamics of social change" (p. xv).
achieves his synthesis by a carefully braided narrative that pulls in
strands of popular culture and formal legal argument to display an
anthropological understanding of the intersection of gender and law at a
moment of transition to the norms of the modern family.
In 1837, Ellen Sears, daughter of a moneyed Boston family,
married Gonzalve d'Hauteville, son of Swiss nobility. Each family had much
to gain. The d'Hautevilles would establish a link to a Boston family of
tremendous wealth; the Sears would enlist a titled aristocrat in their
quest for social acceptance. Unfortunately for these great familial
expectations, Ellen and Gonzalve wed in an era when the claims of
patriarchal authority were adjusting to a subtle challenge from the
romantic temper of the times and the nascent springs of feminine autonomy.
Their marital relationship quickly dissolved. Pregnant and unhappy, Ellen
left Gonzalve's home in Switzerland for Boston, giving birth to Frederick
soon after. Gonzalve followed, demanding that his wife and son return
home. The parties alternated efforts at negotiation with a cat-and-mouse
game of forum shopping. Ultimately, the couple turned to the American
version of King Solomon, the judiciary, and a highly-popularized custody
trial commenced in Philadelphia in 1840.
That the matter was even contested should be surprising.
Common law doctrine granted full sway to a father's decisions regarding
child custody and family residence.
Grossberg observes, Ellen's claims to autonomy "voiced a standard of
marital expectations at odds with the law" (p. 43). Gonzalve's self-image
as paterfamilias conflicted with Ellen's growing sense of herself as
mother tormented by an unfeeling spouse. But hierarchical claims had
always trumped those of mutuality. Ellen thus faced a seemingly
insurmountable obstacle. Since Gonzalve had not physically abused her or
violated any other obligation of his marriage oath, she had no right to
seek a divorce.
the law refused to intervene on behalf of married women. All were subject
to their husbands' power and protection. Grossberg describes in
fascinating detail how Ellen and her Philadelphia lawyers devised a
strategy that would challenge the accepted legal formulation along its
emerging cultural fault line. Essentially, their scheme was to emphasize
Ellen's maternal role, and to characterize Gonzalve's actions as mental
cruelty, which, though insufficient to warrant a dissolution of the
conjugal union, rendered him unfit to usurp the mother in the care of an
infant. Gonzalve's legal team, on the other hand, focused on Ellen's
marital fault in deserting the husband's home, and relied on Gonzalve's
paternal rights to custody of his child.
In Grossberg's earlier book, Governing the Hearth: Law
and the Family in Nineteenth-Century America,
he outlined the
fall of the hierarchical family in the face of burgeoning attention to
notions of child nurture.
The makeover to
a "best interests of the child" standard allowed both mothers and
"surrogate" parents--that is, the state or an adoptive family--to
circumscribe traditional paternal prerogatives. However, this power shift
placed increasing options in maternal hands at the cost of having
virtually the whole of family life supervised by what Grossberg called a
the present work, Grossberg has excavated a single site both more deeply
and more broadly. He centers his analysis on one custody struggle and has
unearthed a cache of primary sources from the participants. But he also
presents this case in the light of a wide array of cultural and
anthropological studies. The range of sources he employs is truly
sweeping. For example, in one stretch of five pages suggesting that trials
are complex social performances that should best be seen in the
"anthropological meaning of social dramas: events that reveal latent
conflicts in a society and thus illuminate its fundamental social
structures" (p. 89), Grossberg cites texts in cultural history, drama and
rhetoric, journalism and mass media, anthropology, a contemporary
newspaper account, biography, and legal discourse (see pp. 254-55, nn.
In seeking both judicial and public vindication, Gonzalve
had bet on the past, Ellen on the future of family life. But their trial
took place, as all do, in the contested present. In rehearsing the scene,
Grossberg nicely captures both the contingency of history and the delicate
interaction of popular and legal norms. He does so by emphasizing how the
determinative moments in the d'Hauteville social drama consisted of a
dialectic of law and culture. Ellen significantly altered her legal
posture from exploited wife to embattled mother in light of her counsel's
discovery that Pennsylvania judicial precedent provided no recourse for
wives qua wives, but did offer a safe custody harbor for mothers of
very young children. But Ellen's strategy also owed much to the antebellum
cultural milieu, which had already begun to sanctify a separate sphere for
motherhood. And Grossberg shows that Gonzalve shifted his focus away from
Ellen's improper conduct in refusing to recognize his sovereignty. In
response to the narrow window of maternal preference opened by
Pennsylvania custody cases, Gonzalve began to characterize his paternal
rights as a check on standardless and unwarranted intrusion by judges into
domestic arrangements. By expanding the canvas in this fashion, Grossberg
succeeds on two fronts. He integrates client narratives into legal
argumentation, and he incorporates the double helix of the law's "relative
autonomy" and "partial independence" (pp. 121-22) into the larger
narrative of social change.
Social changes often simmer for years before boiling over,
and Grossberg's analysis also suggests that mental cruelty, far and away
the most popular twentieth-century divorce ground, began its long
gestation as a component of the antebellum cultural separation between the
definition of marital cruelty did not encompass the intense anguish
Gonzalve supposedly caused Ellen.
shows how, in her quest for custody, Ellen and her attorneys were able to
leverage mental cruelty into an accusation that Gonzalve had violated the
standards of the changing American family, an institution groping its
uncertain way from an institutional past to a companionate future. But in
the point-counterpoint of their public struggle, Gonzalve and his counsel
leveled the charge that continues to haunt advocates of this expanded
divorce ground: mental cruelty has no logical boundaries. An 1829 Kentucky
court opinion, quoted by Grossberg, declared mental cruelty essentially
non-justiciable, because of the law's inability to "ascertain the
operation of particular acts, upon the mind, and then trace the influences
of the mind upon the body, in producing disease and death" (p. 45). A
century later, Dean Prosser acknowledged that mental cruelty "is an
inevitable accompaniment of any marriage which has been a failure."
Grossberg's telling, mental cruelty was primarily an element of the
renegotiation of gender in the early Victorian era.
Finally, A Judgment for Solomon adds a needed case
study to the debate among legal historians about the changing contours of
the public and private spheres in the development of the modern family, as
well as to the related policy question whether the shift of the conjugal
bond from status to contract can or should be reversed or at least
significantly modified. Lee E. Teitelbaum argued a decade ago that very
little of the "private" Victorian family was truly private. Courts and
legislatures gradually eased out the private sphere in establishing
hegemony over issues of child-rearing, education, marriage regulation,
child custody, and spousal support.
Later, in a
review of Governing the Hearth, Teitelbaum suggested that even
Grossberg had not fully acknowledged the transference of functions from
the household to the state regulator in the course of the nineteenth
contrast, Jana B. Singer stressed the larger trend transforming family law
from public to private ordering.
That debate has
of late been subsumed into a discussion of whether Henry Maine's dictum
about the relentless creep from status to contract applies immutably to
Grossberg sidesteps the polemics pitting the rights-talkers
against the communitarians, which have flared up in this context in
current proposals to end or severely limit no-fault divorce, and to
legislate two types of relationships: a marriage of "commitment" and a
marriage of "compatibility."
he demonstrates the power of storytelling at junctures when the law is in
flux (p. 104). Grossberg's talent at narrative discourse allows him to
show that the relationship between law and social change is not
susceptible to easy cause-and-effect analysis. Culture obeys only the law
of unintended consequences, and we learn our lessons by approaching issues
of social engineering with a healthy and historically informed measure of
skepticism about our own abilities.
As readers of this review may have guessed, Ellen
d'Hauteville won her custody battle. But the judges awarded only temporary
custody. Because the litigation had exposed every private corner of her
family to public view, her limited victory ensured that the family would
be subject to "continuous judicial surveillance" (p. 165). In many ways,
Ellen d'Hauteville's world has entirely passed from the scene. But she and
we share a keen sense of life in a culture facing "continuous judicial
surveillance." In a society deeply divided over gender roles and the
permissible reach of the government into domestic relations, we should be
wary of those too quick to grasp the mantle of King Solomon.
an earlier article on the d'Hauteville litigation, Grossberg described one
of his goals as highlighting trial courts as "arenas of conflict," the
front lines for "conceptualizing legal institutions and rules as public
sites for contests over the meaning and application of the law." "Battling
Over Motherhood in Philadelphia: A Study of Antebellum American Trial
Courts as Arenas of Conflict," in Mindie Lazarus-Black and Susan F.
Hirsch, eds. Contested States: Law, Hegemony and Resistance (New
York: Routledge, 1994), p. 154.
for example, James Kent, Commentaries on American Law, 2d ed.
(1832), pp. 193-94.
best treatment of divorce in this period is Richard H. Chused, Private
Acts in Public Places: A Social History of Divorce in the Formative Era of
American Family Law (Philadelphia: University of Pennsylvania Press,
1994). For an argument that seeks to explain the more iron-clad sense of
paternal authority in the antebellum South, see Eugene Genovese, " Our
Family, White and Black': Family and Household in the Southern
Slaveholders' World View," in Carol Bleser, ed., In Joy and In Sorrow:
Women, Family, and Marriage in the Victorian South, 1830-1900 (New
York: Oxford University Press, 1991), pp. 69-87.
Hill: University of North Carolina Press, 1985.
Governing the Hearth, pp. 234-85.
Chused, Private Acts in Public Places, p. 87. On cruelty as the
"dazzling success story of family law" because its plasticity allowed it
to outperform adultery and desertion as the favored divorce ground, see
Lawrence M. Friedman and Robert V. Percival, "Who Sues for Divorce? From
Fault Through Fiction to Freedom," Journal of Legal Studies 5 (Jan.
1976): pp. 79-80. Robert L. Griswold showed that a "less restrained"
definition of cruelty emerged in appellate opinions as early as the
mid-nineteenth century. He identified a shift from "social and moral
considerations to medical and psychological criteria," as well as an
emphasis upon "individual autonomy at the expense of social order."
Griswold, "The Evolution of the Doctrine of Mental Cruelty in Victorian
American Divorce, 1750-1900," Journal of Social History 20 (1986):
quotes the prophetic view of mental cruelty voiced by Ellen's father:
"that moral tyranny which strikes its blows upon the mind, until it
totters, is thought fully equivalent to all that the body can be brought
to suffer" (p. 27). David Sears' opinion was wide of the mark in terms of
antebellum law, but he anticipated the precise contours of marital cruelty
a century later.
The Reno Method, and Others," Forum 100 (Dec. 1938): pp. 286-91.
"Family History and Family Law,"
Wisconsin Law Review
(1985): pp. 1135-81. Teitelbaum also objected to the whiggish view of a
linear progression in American families from "little commonwealths" to
regulated industries. On the Puritan family, see John Demos, A Little
Commonwealth: Family Life in Plymouth Colony (New York: Oxford
University Press, 1970).
"The Legal History of the Family"
Michigan Law Review
85 (1987): pp. 1052, 1062. There is evidence that, for children of poor
and immigrant families, the interventionist state had become a reality
long before the antebellum period ended. See, for example, J. Herbie
DiFonzo, "'Deprived of Fatal Liberty': The Rhetoric of Child Saving and
the Reality of Juvenile Incarceration," University of Toledo Law Review
26 (1995): pp. 855, 863-78.
"The Privatization of Family Law,"
Wisconsin Law Review
(1992): pp. 1443-1567.
for example, Milton C. Regan, Jr., Family Law and the Pursuit of
Intimacy (New York: New York University Press, 1993); Barbara Dafoe
Whitehead, "Dan Quayle Was Right," Atlantic 271 (April 1993): pp.
47-84; Bruce C. Hafen, "Individualism and Autonomy in Family Law: The
Waning of Belonging," Brigham Young University Law Review (1991):
p. 1; and Carl E. Schneider, "Moral Discourse and the Transformation of
American Family Law," Michigan Law Review 83 (1990): p. 143.
for example, Barbara Vobejda, "Critics Seeking Change, Fault 'No-Fault'
Divorce Laws for High Rates," Washington Post (Mar. 7, 1996): p.
A3; 1995 Illinois House Bill 2095, called the "Marriage Contract Act,"
would have required that couples seeking marriage choose their level of
anticipated fidelity to the connubial union. Those electing a marriage of
"compatibility" could later terminate it under the tenets of no-fault
divorce. But a couple who embraced a marriage of "commitment" could not
legally dissolve it except by one partner's proof of the marital fault of
the other. The difficulties of monitoring cultural trends are here
apparent: in the midst of a large debate over the flow of family life from
status to contract and perhaps back, the Marriage Contract Act attempted
to re-institute status by means of contract. On pre-commitment
restrictions generally, see Elizabeth S. Scott, "Rational Decisionmaking
about Marriage and Divorce," Virginia Law Review 90 (1990): pp.
Library of Congress
Call Number: KF228.D48 G76 1996
* D'Hauteville, Ellen--Trials, litigation, etc
* D'Hauteville, Gonzalve--Trials, litigation, etc.
* Custody of children--Pennsylvania--Philadelphia
* Justice and politics--History
Citation: J. Herbie DiFonzo . "Review of Michael Grossberg,
A Judgment for Solomon: The d'Hauteville Case and Legal Experience in
Antebellum America," H-Law, H-Net Reviews, August, 1996. URL: http://www.h-net.org/reviews/showrev.cgi?path=29660857057203.
“Were scandal the end of
it, we could hop, skip, and jump through Michael Grossberg’s story of the
d’Hauteville case…His book is, however, a masterful, minutely detailed,
and engrossing analysis of the role of law in American culture.”
William H. Pease, review
of A Judgment for Solomon: The d’Hauteville Case and Legal Experience
in Antebellum America, by Michael Grossberg, The American
Historical Review 102 (June 1997): 889-890.