The American system provided a voice and a share in the economy to many more people than most of the old world societies. But decisively not everybody. For blacks, for Native Americans, for the Chinese, and for the unorganized and the powerless in general, the share was skimpy and begrudging. In a relatively open society, interest groups made politics, and politics made law. The squeaky wheels got the oil. Power led to privilege. Old people, transients, the feeble minded, dirt-poor and crippled families—all of these people stayed, by and large, at the bottom of the social pit. Tort law blossomed, corporation law swelled in pride, contract expanded; but the poor laws remained obscure, local, haphazard, backward, and cruel. But there were certain changes in the late nineteenth century; perhaps even a measure of improvement.
There was a great deal to improve. In some counties of some states, the poor, in the age of the railroad and the telegraph, were still bound out “like cattle at so much per head, leaving the keeper to make his profit out of their petty needs.”1 Or they might be sold at auction to the lowest bidder. Sometimes, there was no real alternative. Trempealeau County, Wisconsin, in the 1870s and 1880s, boarded out its handful of “permanently demented” people; the state’s asylum could not or would not hold them.2 Many people found the auction system abusive; it would eventually die out. “Indoor” relief, that is, relief inside the walls of institutions, was clearly, by 1850, in the ascendancy; “outdoor” relief was declining. The trend meant poor farms and poorhouses, if not more specialized institutions. One reason for the change in policy was ideology. Outdoor relief was just not stigmatic enough. “Men who before had eaten the bread of industry saw their fellows receiving sustenance from the overseer of the poor…. The pauper came to look upon the aid given as his by right.”3 Many people sincerely believed that poorhouses were a good idea. Moral training, medical treatment, rehabilitation—all this was hard to do under a system of “outdoor” relief. A well-run institution could improve the lot of the poor.
In 1850, Rhode Island made a study of its poor-law system at work. The results were harrowing. There were fifteen almshouses. They spent, on average, $51.50 per inmate per year. Some of the poor were still “vendued” to keepers who competed with low bids. There was testimony about one keeper who beat and abused his charges: “He used to drag John Davis, an old man as much as sixty years old up stairs with a rope and kept him there in the cold for days and nights together until he died, having one of his legs frozen…. [H]e died before midnight, with no person watching with him & he lay until the sun was 2 or 3 hours high in the morning, & on a very cold morning before they came to him.”4
But was the poorhouse, or poorfarm, any better? Poorfarms too were run on the cheap; and sometimes callously. In the words of one observer, they housed “the most sodden driftwood from the social wreckage of the time…. In some of the country almshouses, no clergyman comes the year round; and no friendly visitor appears to encourage the superintendent to be faithful, or to bring to light abuses that may exist.”5 The Ulster County poorhouse (New York) in 1868 was an “old, dilapidated two-story wooden structure.” The rooms were small, “ceilings low, ventilation imperfect”; there were no “suitable bathing conveniences.” The little wooden house for the insane contained “twenty-five small unventilated cells.” The inmates were all “noisy and filthy”; several were “nearly nude.” The beds were disordered and torn, and the halls littered with straw and bits of clothing. The bathroom, used by both sexes, was out of repair; and the air in the room was “foul and impure.” In the Schoharie County poorhouse, “an insane woman was chained to the floor, and a man to a block of wood in the yard.” Twenty years later, some of these hovels had been improved; some had not.6 The poor got almost no medical care in many counties. In Michigan, in 1894, a former county physician reported the auction system still at work; many counties awarded medical contracts this way. The local doctor who bid the lowest got the contract to supply medicine, give medical care, and perform surgery for the poor.7
Who were the people who went to the poorhouse? Obviously, only those who had no choice—the most desperate; men and women at the bottom of the barrel. Very few studies take a worm’s-eye view of these dismal, obscure institutions. Not surprisingly, the poorhouses drew on unwed mothers with small children, widows, old folks with no place to turn, and, in great numbers, the mentally ill.8 Some contemporaries described the poorhouses as homes for the “unworthy poor.” Dr. Charles S. Hoyt, who surveyed poorhouse inmates for New York in 1874–1875, talked about “idleness, improvidence, drunkenness…vicious indulgence”; he talked about “hereditary” tendencies. Paupers were paupers because of their own inadequacy. The number who were “reduced to poverty by causes outside of their own acts is…surprisingly small.”9 But the good doctor was quite wrong. The inmates were, by and large, the detritus of capitalism, victims of the decay of traditional society. They were men who had been thrown out of work, accident victims, widows, old people, ill people; in fact, almost all the people in the poorhouse had “lived their lives in the most vulnerable sectors of the working class.”10 Now they were dumped into the poorhouse or poorfarm. Here they got at least some food, shelter, a bit of clothing, some rudimentary health care—though apparently very little empathy. No doubt some poorhouses were better than others. Whether all, or most, of the hundreds of such places were as bad as the Rhode Island or New York examples is hard to tell.
After the Civil War, some states began to experiment with more centralized administration. Massachusetts created a State Board of Charities in 1863, Illinois in 1869.11 A Connecticut law of 1873 set up a five-member board of charities—“three gentlemen and two ladies”—appointed by the governor. The board was to visit and inspect “all institutions in the state, both public and private, in which persons are detained by compulsion for penal, reformatory, sanitary, or humanitarian purposes.” The board had the duty to see whether inmates were “properly treated,” and whether they were “unjustly placed” or “improperly held” in the institution. The board had some vague powers to “correct any abuses that shall be found to exist,” but were told to work, “so far as practicable, through the persons in charge of such institutions.”12 This was something less than iron discipline over charitable institutions. But the boards had the power of publicity. They could, if they wished, evoke scandal. In the late nineteenth century, a small but enthusiastic band of people, inside and outside of government—men and women like Florence Kelley, Lawrence Veiller, and others—worked hard to improve the lot of the poor, and the institutions that served them. The reformers used words, charts, and pictures as their weapons. They tried to enlist the sympathy of the wider public, or, more tellingly, appeal to the self-interest of the public. They tried to show that callousness, in the long run, did not pay.
This social-cost argument probably had some effect. In the 1890s, Amos G. Warner and associates noted that ten American cities, with an aggregate population of 3,327,323, spent $1,034,576.50 in one year on medical relief. Warner mentioned “three strong motives” at work: “the desire to aid the destitute, the desire to educate students and build up medical reputations, and the desire to protect the public health. The latter has often been the leading cause of public appropriations for medical charities.”13 Poverty bred crime, plague, and social disorder. Fighting poverty was therefore a fight against crime, plague, and social disorder.
Still, reformers had to struggle against other strongly held attitudes—attitudes less friendly to relief. The Illinois board of charities, in 1886, voiced a common fear: the “inevitable consequences of substituting the machinery of state for the spontaneous impulses of private benevolence,” would be to “paralyze” the “charitable activity” of the private sector.14 Josephine Shaw Lowell, writing in 1890, thought that public relief was justified only when “starvation is imminent.” How could one tell when this was the case? “Only by putting such conditions upon the giving of public relief that, presumably, persons not in danger of starvation will not consent to receive it. The less that is given, the better for everyone, the giver and the receiver.”15
Nobody asked the poor their opinion in this matter. The poor were victimized by stereotypes and assumptions. If you paid people who did not “earn” their pay, you were encouraging laziness and social disorganization. On the other hand, most people did not want to let other Americans starve to death. The usual solution was to make relief available to people who needed it; but relief had to be stingy, painful, and stigmatic. It had to be so degrading and obnoxious that no one with any possible alternative, and with an ounce of pride, would choose it. Mostly, in fact, family and friends had to sustain the urban poor; private charity took care of some others; the public sector lagged behind. In times of depression, however, there were soup kitchens in the major cities. Some relief agencies protested that these kitchens were too indiscriminate; it was “impossible” to tell the “worthy” from the “unworthy poor.”16 Soup presumably corrupted the one but not the other. The big city machines had no such qualms. Boss Tweed of New York City personally donated $50,000 to provide the poor with Christmas dinners in the harsh winter of 1870. He used his position in the state legislature to squeeze out appropriations for charities in his city; city funds, too, were distributed to welfare institutions. Some of this money, to be sure, had been extorted from the public, rich and poor. Caustically, the New York Times compared Tweed to a medieval baron, “who swept a man’s land of his crops, and then gave him a crust of dry bread.”17 Hard times returned in the nineties; and with it, more poor and destitute people. Mayor Hazen Pingree of Detroit produced a garden plan; the poor would grow vegetables on vacant lots. San Francisco spent $3,000 a month in 1893 to help the unemployed. Some of these jobless men were put to work cleaning streets and building roads.18
Many states reformed the law of settlement and removal, getting rid of some of the worst features. But the obsession with drawing a line between worthy and unworthy poor continued. Unworthy were drunks, transients, tramps, and the proverbial sturdy beggars. Worthy meant, in essence, guiltless. These were the blind, children, veterans, the deaf and dumb, the epileptic. Legislatures were particularly likely to show sympathy for temporary sufferers who had fallen out of the middle class (and who were voters). Kansas, for example, was as stingy as any toward its destitute poor. But in 1869, it appropriated $15,000 to buy seed wheat for impoverished settlers on the Western frontier; more money was appropriated in 1871 and 1872. Grasshoppers scourged the western plains in 1874; in 1875, the state passed a “seed and feed” law. Townships could float bonds to provide “destitute citizens…with grain for seed and feed.” Another law authorized counties to sell bonds for relief purposes. (The farmers were expected to pay the money back.) In the 1890s, Kansas gave away seed wheat, and sold grain and coal to farmers hurt by drought and crop failures.19
There was, indeed, a tradition of federal welfare—despite the states’ right arguments. But it was confined to victims of wars and disasters. In general, war veterans were a meritorious class. There had been both state and federal pensions for veterans of every American war, including the Civil War. Thousands of Revolutionary War veterans received pensions. The Civil War produced a much larger crop of veterans. Wounded war veterans and their families were singled out for special benefits in a federal pension law of 1862. The law gave pensions to disabled veterans; and to their widows and orphans. The government also offered soldiers who lost arms and legs free prostheses; by 1966, the government had subsidized 3,981 legs, 2,240 arms, 9 feet, and 55 hands. Veterans also got preferential treatment with regard to government jobs.20 In the 1850s, Congress established a U.S. Soldiers’ Home, in the District of Columbia, for veterans; but after the Civil War, Congress vastly expanded the scope of institutional care for veterans, creating what was known after 1873 as the National Home for Disabled Volunteer Soldiers. The home was originally open only to disabled veterans; but by the 1880s, it was admitting veterans who were simply old and worn out; and there was a whole network of branches.21
Over time, the Civil War pension laws became more generous—the veterans were, after all, a potent political lobby. In 1890, Congress passed the Dependent Pension Law, which expanded coverage greatly. Anybody who served three months and was honorably discharged from service could get a pension if they suffered from a “mental or physical disability of a permanent character” (provided it was not the “result of their own vicious habits”). The “disability” no longer had to be connected to the service at all. A 1906 law made old age a “disability” in itself: Anybody over sixty was disabled enough to get a pension. In 1910, of people over sixty-five, no less than 30 percent in Kansas were getting this pension, although in some states the percentage was far less (3 percent in Georgia).22 The veterans were a potent lobby in the states, too; and various states provided a mixed bag of benefits. Connecticut, for example, granted former soldiers some tax relief (1869), established a home for orphans of soldiers (1864), gave veterans preferences in applying for state jobs (1889), and exempted veterans from the need to obtain a peddlers’ license (1895).23
There were many categorical programs—programs taking care of special classes of the unfortunate. States granted charters to private charities; and also donated money to these agencies.24 States ran many institutions themselves. In Massachusetts, the state lunatic hospital at Worcester was founded in the 1830s.25 In the 1840s, Dorothea Dix bravely roamed the country, pleading for more to be done for the mentally ill. In New Jersey, she talked the legislature into creating an insane asylum at Trenton; it opened its doors in 1848. Kansas set up a hospital for the insane at Osawatomie in 1863; later, four more such hospitals were created, and in 1881, a state home for the feeble minded. But even in states with statewide institutions, most of the insane were either at home, or at the tender mercies of county officials of the poor. The state institutions themselves were a mixed bag. Taxpayers hated to spend money; and their attention span was short. Hence, many institutions were shortchanged and neglected. Some of them turned into snake pits. Centralized abuse was no better than the decentralized kind.
Children are favorites of law and society; and there were special efforts to do something for unfortunate children. Pennsylvania, in 1860, donated $5,000 to the “Northern Home for friendless children,” a typical act of largess.26 Children win sympathy more easily than adults; moreover, people were afraid that, if nothing was done for homeless or abandoned children, they would be altogether lost to decency; and would grow up to be recruits for the army of the “dangerous classes.” In the age of cities and factories, the old apprenticeship system was dead. In New York, the Children’s Aid Society, founded by Charles Loring Brace in 1853, gathered up homeless children from the streets and sent them into the country—many to the Midwest—to work and build character on clean, honest, Protestant farms. This was not a program that worked perfectly. Some of the new foster parents were cruel and exploitative; some Catholics (and many of the children were Catholic) objected to the program as a threat to their religion. No doubt, some orphans found decent homes and a way to earn an honest living. Western farm life was in any event better than street life, hunger, and an early, violent death. Up to 1892, the Children’s Aid Society had “emigrated” 84,318 children; most of these (51,427) were boys.27
On the whole, the categorical approach was the only one that had much political appeal. Only the guiltless or worthy poor had a fair chance at arousing human sympathy. No programs dealt with the leftovers, the unworthy poor (so-called) in any meaningful way. The dregs of humanity, or what was defined as the dregs, got nothing but the dregs of support. It was a story that would be often repeated. In the 1950s, it was the fate of AFDC and public housing. These became more and more controversial and degraded, the more they became last-stop programs for the most problem-ridden, dependent, and needy. President Reagan demonized “welfare queens”; and President Clinton ended “welfare as we know it.” Tough love turned out to be mostly tough and very little love.
The second half of the nineteenth century was a period of great change in the legal position of women. Most middle-class men believed that women had their own special and limited sphere. Women were highly moral but delicate creatures, who belonged in the home, which was their exclusive empire. Railroads had separate “ladies’ cars”; and in one case, in 1874, when a man tried to get into one of these (he was tired of standing up in the smoking car), he was removed by force. He sued for damages. The supreme court of Wisconsin turned him down: Women traveling without men need “protection”; they had to be “sheltered…from annoyance and insult.”29
As we shall see, a few women successfully stormed the citadel of the legal profession—though against great opposition.30 They were at the top end of a vast army of working women. The factory revolution drew thousands of women from their farms and homes into textile mills or shops. They may have exchanged one master for another; but in some ways work led to the legal liberation of women. A woman who earned a living was not as totally dependent on men. Women did not get the right to vote until the twentieth century;31 but in the nineteenth century, there were a set of partial, but important, emancipations.
For the sake of free enterprise, if for no other reason, the law presumed that adults were fully capable of buying, selling, and acting in the marketplace. Married women’s property laws, already discussed, were extended, broadened, and generalized after 1850. No doubt some men felt that these laws went too far “towards clothing one class of females with strange and manly attributes,” as a Wisconsin judge put it.32 But the market and creditor’s rights ultimately won out over these faintly archaic sentiments. In New York, statutes of 1860 and 1862 extended the rights of married women. A married woman now had rights, not only with regard to property she owned or acquired, but also with regard to whatever she acquired “by her trade, business, labor or services.” The courts at first interpreted this statute quite narrowly. A case in 1878 held that the husband still had the right to sue for his wife’s wages.33 But the trend in the law—as in society—was clear. Women were empowered in the marketplace, at least, if not at home, or in public life.
Dower, too, had been substantially revised and revamped, as we have seen. This, too, was generally in the interest of women—though also, and perhaps more crucially, it was in the interests of those who traded in the market. In community-property states (California, Texas, Louisiana, and others), although husband and wife “owned” the community property equally, the husband was totally in charge. He had the right of management and control. This situation would change, but slowly. As far as inheritance was concerned, community property states were ahead of the other states. The wife’s inheritance rights were rather firm. She automatically owned one half of the “community.” A widow came into possession of this half, no matter what her husband’s will said; after all, it was already legally hers.34
In the last half of the century, the doctrine of the common-law marriage went into decline. The doctrine, as we pointed out, had been highly favored in the earlier part of the century. But the new urban, industrial world was more bureaucratic; it was a world of records and documents. When records were sparse and poor, the common-law marriage helped regularize property rights. By the end of the century, it had become something of a nuisance. Most states made provision for marriage licenses, and for civil and religious ceremonies. A few states abolished the common law marriage; or construed their statutes as killing the doctrine.35 In other states, the common law marriage did remain valid. Courts sometimes construed marriage license laws as optional only; a couple could have a formal marriage, if they so chose, but there was no obligation. The actual incidence of common law marriage was no doubt declining. Common law marriage was now an anachronism. It created problems in inheritance cases, and later, in the twentieth century, in cases of workers’ compensation, state pensions, and social security,36 among other situations. The common law marriage had another failing: it frustrated state control over marriage. Marriage was, after all, the gateway to reproduction. Common law marriage allowed anybody, including the insane and the diseased, to marry. A Connecticut state of 1895 provided that no man or woman who was “epileptic, imbecile, or feeble-minded,” could marry, or live together, if the woman was “under forty-five years of age”; it was also a crime for an epileptic, or a feeble-minded man to “carnally know” a woman under forty-five. An Indiana law (1905) barred any man from marriage if he had been in the poor house within the prior five years, unless he could show he could support a family; no license was to issue if either party had an infectious disease.37 These statutes show the influence, too, of the eugenics movement, and to a heightened state concern for control of reproduction.
Marriage, in other words, was becoming more formal; and the state was taking a more active interest in the subject. The law concerned itself with the proper age of marriage. At common law, the age of consent (to marriage) had been fourteen for boys, twelve for girls. This common law rule allowed very young marriages; Joel Bishop thought it unsuitable to the “northern latitudes”; it must have “originated in the warm climate of Italy.”38 American statutes generally redefined the age of marital consent, raising it to more fitting levels. In Illinois, in 1827, the ages were seventeen for men, fourteen for women. In Idaho, in 1887, the ages were eighteen and sixteen. As we will see, the age of consent for sex, and not just marriage, was also in the process of going up.
One special case of informal marriage has to be mentioned. No slave had been allowed to marry. Slave “marriages” were not even common law marriages. But when slavery ended, the states had to validate those stable unions which had been, functionally speaking, marriages. An Alabama law of 1868 declared that “freedmen and women…living together as man and wife, shall be regarded in law as man and wife”; their children were “declared…entitled to all the rights, benefits and immunities of children of any other class.”39
Ex-slaves were thus allowed to marry—each other. But they were certainly not allowed to marry white folks. Interracial marriage was against the law in the Southern states; and in general, interracial sex was a crime. In 1881, Tony Pace, a black man, and Mary J. Cox, a white woman, were indicted, convicted, and sentenced to prison in Alabama for “living together in a state of adultery or fornication.” The U.S. Supreme Court upheld their conviction.40 But laws that made it an offense for whites and blacks to marry were not only found in the South.41 They were also on the books in some Western and Northern states: a California statute of 1850 declared “illegal and void” all “marriages of white persons with Negroes and mulattoes.” In 1913, thirty of the forty-eight states had some sort of law against miscegenation.
Bigamy had always been a crime; but never one that loomed very large in the criminal justice system. Bigamy became somewhat more significant in the nineteenth century. A mobile society, a society full of immigrants and strangers—and one which no longer has arranged marriages—is a society where dishonest men can easily slip from one identity to another, abandon an old wife, and marry a new one without the bother of divorce.42 Bigamy was not, however, a serious social issue—except in one regard: plural marriages among the Latter-Day Saints. The Mormon practice of polygamy evoked a storm of rage, horror, and disgust; it was denounced vehemently from pulpit, legislature, and press, to a degree hard to understand today. Polygamy somehow threatened the very basis of society. Society was a huge organic compound; the molecules that composed it were made up of traditional families, husbands and wives, bound together in “Christian monogamy.” Anything else threatened to lead to perdition.43 The Christian monogamists took action. In the Morrill Act (1862), Congress moved “to punish and prevent the practice of polygamy in the territories.” Reynolds v. United States (1878),44 was a test case, involving George Reynolds, who was Brigham Young’s secretary. George Reynolds was tried and convicted of polygamy. Reynolds argued that the anti-polygamy laws went beyond the power of Congress to govern the territories and infringed his freedom to practice his religion. The government’s lawyer argued that allowing polygamy would open the door to unspeakable horrors: “Hindu widows” throwing themselves on their husband’s funeral pyres, “East Islanders” exposing their “new-born babes,” and “Thugs,” committing murder.45 The Court seemed to agree. They upheld the laws, and Reynolds’ conviction. They repeated the horror stories about Hindu widows and human sacrifice. Moreover, polygamy was “patriarchal” and had always been confined to “Asiatic and…African peoples.” Apparently the Court felt that it belonged only in such uncivilized places. Clearly, to the Court, polygamy was not just out of place in America; it represented a profound social danger.
Many Mormons were arrested and convicted; but Mormons in Utah continued their hated practice. In the 1880s, the Gentiles returned to the battle. President Arthur in 1881 called plural marriages an “odious crime”; James G. Blaine warned against abominations disguised as religious practices; he repeated the line about “the claim of certain heathen tribes, if they should come among us, to continue the rite of human sacrifice.”46 The vicious and punitive Edmunds Law, of 1882, put more teeth into the laws against polygamy; it also attempted to smash the political power of Mormon leaders. Under the Edmunds Law, great numbers of Mormons were arrested for “unlawful cohabitation,” fined, and jailed.47 Mormon leaders went underground. The Edmunds-Tucker Law, of 1887, was even more stringent. It aimed to destroy the power of the Mormon Church, seizing its property, and dissolving it as an entity. In 1890, Wilford Woodruff, president of the Mormon Church, in defeat, threw in the towel. The Church renounced polygamy. The Mormon rebellion against America was over. Plural marriages faded into history, even though a few deviant offshoots of the main Mormon branch secretly kept this practice alive. No doubt, thousands of good Americans sighed with relief at the downfall of Satan, and the triumph of American morality.
Divorce
The law of divorce was always more complex and controversial than the law of marriage. It changed greatly in the last half of the century, both on the official level, and even more significantly in its subterranean life. The first great change was the extinction of the legislative divorce. State after state abolished it, usually by constitutional provision. By about 1880, it was virtually gone. The last holdout was Delaware, where it survived until 1897. A new constitution in Delaware then put an end to the practice. In the last year of this noble institution, the legislature of Delaware granted no less than 100 divorces.
After the era of the legislative divorce, all suits for divorce had to go through the court system, as had been true in the Northern states for a long period of time. The divorce statutes varied from state to state. At one end of the spectrum was South Carolina, the only state where absolute divorce was simply not available.48 From about 1850 to 1870, a few states adopted rather loose divorce laws. Connecticut at one point made any “misconduct” grounds for divorce, if it “permanently destroys the happiness of the petitioner and defeats the purposes of the marriage relation.” In Maine, a supreme court justice could grant a divorce if he deemed it “reasonable and proper, conducive to peace and harmony, and consistent with the peace and morality of society.” Divorce laws in states as different as North Carolina, Indiana, and Rhode Island were also quite permissive. Some states that did not go as far as Maine or Connecticut broadened their statutes considerably; they added to the traditional list of grounds for divorce (adultery, desertion, and impotence, for example) new and vaguer ones such as “cruelty.” In the Tennessee Code of 1858, for example, divorce was available on grounds of impotence, bigamy, adultery, desertion, felony conviction, plus the following: attempting to take a spouse’s life by poison; concealing a pregnancy by another man at the time of marriage; and nonsupport. In addition, the court might, in its “discretion,” free a woman from the bonds of matrimony if her husband had “abandoned her, or turned her out of doors,” if he was guilty of cruel and inhuman treatment, or if he had “offered such indignities to her person as to render her condition intolerable and force her to withdraw.”49
After 1870, the tide began to turn. Influential moral leaders had never stopped attacking loose divorce laws. Horace Greeley thought that “easy divorce” had made the Roman Empire rot. America could suffer a similar fate, “blasted by the mildew of unchaste mothers and dissolute homes.”50 Theodore D. Woolsey, president of Yale University, wrote a book in 1869 denouncing the divorce laws of Connecticut as immoral and unscriptural. If laws against adultery were not vigorously enforced, the public sense of sin would be dulled.51 Moreover, adultery should be the only legal grounds for divorce. In Woolsey’s view, “petitions for divorce become more numerous with the ease of obtaining them”. Lax divorce laws could disintegrate the family, the backbone of American life. In 1881, a New England Divorce Reform League was formed. Dr. Woolsey was its president. Out of this grew a National Divorce Reform League in 1885.52 A second edition of Woolsey’s book appeared in 1882. By this time, the Connecticut law had been repealed. Maine’s law fell in 1883. A more rigorous divorce law replaced it, with tougher grounds, a six-month wait before decrees became “absolute,” and a two-year ban on remarriage of the plaintiff without court permission; the guilty defendant could never remarry, without leave of the court.53
Militant feminists, on the other hand, took up the cudgels for permissive divorce. A furious debate raged in New York. Robert Dale Owen, son of the Utopian reformer, went into battle against Horace Greeley. Owen, like Joel Bishop, felt that strict divorce laws, not lax ones, led to adultery. New York, rather than permissive Indiana, Owen said, was the “paradise of free-lovers.”54 Bishop bitterly condemned divorce a mensa et thoro (legal separation): “in almost every place where Marriage is known, this Folly walks with her—the queen and the slut, the pure and the foul, the bright and the dark, dwell together!”55 Both men agreed, in other words, that divorce laws had a direct impact on sexual morality and sexual behavior—a questionable assumption. One thing was certain: The divorce rate was rising. In the period 1867–1871, 53,574 divorces were granted; in 1877–1881, 89,284. In every part of the country, but especially in the West, divorce rates rose faster than the population: By 1900, there were 39 divorces per 100,000 population in the North Atlantic states, and 131 per 100,000 in the Western states.56
What accounts for the rising demand for divorce? There are various possibilities. One is that dry rot had affected family life. This is what people who prattled about Babylon and chastity believed. But perhaps a larger number of people simply wanted formal acceptance of the fact that their marriages were dead. Just as more of the middle class wanted, and needed, their deeds recorded, their wills made out, their marriages solemnized, so they wanted the honesty and convenience of divorce, the right to remarry in bourgeois style, to have legitimate children with their second wife (or husband), and the right to decent, honest disposition of their worldly goods. Only divorce could provide this.
This was the middle class need for divorce. But divorce began to spread throughout the population. A study of divorce, in two California counties, 1850 to 1890, examined the class and income status of litigants. Almost a quarter of the husbands were laborers, another 9 percent were unskilled tradesmen; 19 percent were skilled workers, 14 percent farmers, 17 percent “middle class,” 15 percent upper class.57 But why would a ditch-digger, or his wife, want a divorce? Why would they be willing to put up with the cost and the fuss? Here, pure economic analysis breaks down. Divorce had a moral aspect, too. Living in sin was not respectable. And, thanks to divorce, not always necessary. Victorian morality was for everybody. This was the paradox of the moral attack on divorce: Divorce was immoral because marriage was holy. But the holiness of marriage only increased the demand for divorce. It was divorce that paved the way, for many people, to the sanctuary of respectable remarriage.
Divorce law, and divorce practice, reflected changes in the family that went beyond either of the factors mentioned. When divorce was a matter mostly for the well-to-do, men asked for, and got, custody of their children; the general rule was preference for the father. As divorce percolated downward, it became the custom for the woman to file for divorce; this meant she was the “innocent” party, entitled to custody, alimony, and the like. And small children, especially children of “tender years,” belonged with their mothers. In addition, it was much less damaging to accuse a man of adultery, desertion, or cruelty than to accuse a woman. Divorce became much more a woman’s remedy, at least in form. This was especially pronounced in the Northern states. In the period 1887–1906, women were plaintiffs in exactly two-thirds of the divorce cases; but there was great variation among states. In Mississippi most plaintiffs were men (almost 60 percent); in Rhode Island, 78 percent of the plaintiffs were women. Western plaintiffs were overwhelmingly female, too.58
Divorce, as we said, became a woman’s remedy; but what did it remedy? Did the state of the law (and practice) improve the lot of the deserted or mistreated wife? There is no reason to believe that it did. The women in divorce cases were victims, not partners, dependents, not independent women—by and large. Often, they wanted divorce only because it was forced on them by a brutal, absent, or philandering husband. Also, the nature of marriage itself was changing. Men were still in charge—often overwhelmingly so. But slowly, almost imperceptibly, some marriages were becoming more of a partnership—at least emotionally. The more demands people (men and women) put on marriage, however, the more they expected out of marriage, the more they wanted the other partner to be lover, friend, confidant, someone who shared all of life—then the more likely it was that a marriage would fail these awesome tests. This is a key aspect, no doubt, in the rising demand for divorce.59
Did strict divorce laws have any effect on family solidarity? Doubtful. Did they lower the divorce rate? Perhaps. But only by encouraging desertion and adultery. In Maine and Connecticut, there were short-term “improvements” when permissive laws were abolished; but between 1850 and 1900, the divorce rate skyrocketed everywhere. Yet the laws were not reformed. Those who wanted a divorce found ways to get around the laws. Divorce became what we might call a dual system: a system in which the law on the books differed radically from the law in action.
In theory, divorce came at the end of an ordinary lawsuit. Plaintiff attacked; defendant resisted. This did happen—sometimes; there were some unedifying battles in which bitter spouses aired their dirty linen in public. But by the end of the century, the vast majority of divorce cases were empty charades. Both parties wanted the divorce; or were at least willing to concede it to the other party. Even in states with rigid statutes, collusion was a way of life in divorce court. Divorce in New York was a scandal. Lawyers openly advertised their skill at arranging divorce. Reed’s “American Law Agency,” at 317 Broadway, advertised in 1882 in the New York Sun:
DIVORCES quietly; desertion, drunkenness; any cause, advice free.60
“Divorce rings” operated practically in the open. Manufactured adultery was a New York specialty. Henry Zeimer and W. Waldo Mason, arrested in 1900, had hired young secretaries and other enterprising girls for this business. The girls would admit on the witness stand that they knew the plaintiff’s husband, then blush, shed a few tears, and leave the rest to the judge. Annulments, too, were more common in New York than elsewhere. In most states, annulment was rare and hard to get, but not in New York. In New York, they were a prominent loophole in the divorce laws. Judges passed out annulments like candy. Friendly divorces were easier in states where “cruelty” as grounds for divorce. It is hard to know exactly how much collusion there was, and when it began. Francis Laurent’s figures for Chippewa County, Wisconsin, suggest a dramatic rise in friendly divorce (so to speak), in this nonurban county from the 1870s on.61
The migratory divorce, for people with money and the urge to travel, was another detour around strict enforcement of divorce law. To attract the “tourist trade,” a state needed easy laws and a short residence period. Indiana was one of these states, before the 1870s. The moral opponents of easy divorce fought these divorce colonies as hard as they could. Notoriety and bad publicity helped their campaign in Indiana; in 1873, the legislature passed a stricter law that shut the divorce mill down. South and North Dakota, too, had their day. Finally, in the twentieth century, Nevada became the place. Earl Russell was one of the birds of passage who looked for divorce in this desert haven; he was granted a divorce in Nevada in 1900, and immediately remarried in Nevada. The new Countess Russell had herself gotten a quick divorce in Nevada. The Earl was later indicted for bigamy in England; he was charged with “feloniously marrying Mollie Cooke in America,” while his wife Mabel was still alive.62 Publicity only helped Nevada’s business. The moral arguments that eventually destroyed the divorce mills in Indiana and other states had little or no effect in Nevada, a state quite impervious to moral arguments. Its career as national divorce mill proved to be quite durable.
The rising divorce rate, and the rising demand for divorce scandalized pious people all the more. The last part of the nineteenth century was an era of national panic over morality, eugenics, the purity of the bloodline, and the future of old-fashioned white America. Whores and divorce had to be contained. An irresistible force (the demand) met an immovable object (the resistance to divorce). The result was a stalemate. It became almost impossible to change the law—or the practice. State statutes were like weird ice formations, frozen into absurd shapes at whatever point in time forces had been more or less evenly balanced. South Carolina still allowed no divorces at all.63 New York allowed divorce, practically speaking, only for adultery. Most states had a broader list. In a few jurisdictions, the innocent party might remarry, the guilty party not.64 In some jurisdictions, the grounds were very broad—in Wyoming, for example, divorce was available for “indignities” that rendered the marriage “intolerable.”65 In most states, compromise took the form of the dual system we described. The moralists had their symbolic victory, a stringent law strutting proudly on the books. But nobody enforced these laws, least of all judges. A cynical traffic in runaway and underground divorce flourished in the shadows.66 Divorce law was an egregious example of a branch of law tortured by contradictions in public opinion, trapped between contending forces of perhaps roughly equal strength; trapped, too, in a federal system with freedom of movement back and forth, and beyond the power and grasp of any single state.
The war, the Emancipation Proclamation, and the Thirteenth, Fourteenth, and Fifteenth Amendments ended American slavery and gave the blacks the right to vote. The Fourteenth Amendment also gave them (ostensibly) the equal protection of the laws. The basic promises of Reconstruction, however, were never kept. Until well into the twentieth century, historians who wrote about Reconstruction were mostly white Southerners; they heaped scorn on Reconstruction, on the radical Republicans, on the carpetbaggers and scalawags—and on the blacks themselves. Popular literature—and movies like Birth of a Nation and even Gone With the Wind—made much the same point. The Civil War had destroyed a rich and beautiful way of life; and the post-war era was a time of corruption and black misrule. But during and after the age of the civil rights movement, historians have peeled away all of these misconceptions; and reconstructed Reconstruction in a more generous, balanced way. Even the carpetbaggers have been rehabilitated.67
Leaders of the old South who survived the war were in no mood for racial equality. The end of slavery was a bitter enough pill to swallow. The white South wanted to change things as little as possible. Almost all the states of the old Confederacy passed laws in 1865, the so-called Black Codes, which aimed to replace slavery with a kind of caste system. The point was to preserve, in general, the prewar way of life. The 1865 laws of Mississippi, for example, plainly intended that blacks would work as laborers, on farms and plantations owned by whites. No freed slave could own any farm land. As laborers, blacks would work under written contracts. Any black laborer who quit “without good cause” could be arrested and dragged back to his employer. In Mississippi, blacks still could not testify in cases where plaintiff and defendant were white. Intermarriage between the races was strictly forbidden. Blacks could not sit on juries. There were also stringent vagrancy laws, in Mississippi and other states, which could be, and were, used to keep blacks under strict social control.68
The North—at least the radicals—found this kind of law totally unacceptable. The Black Codes were erased; Congress enacted a strong Civil Rights Act (1866), anticipating the Fourteenth Amendment (1868). The South was put under military government. The Freedmen’s Bureaus, established by Congress, were an experiment in social planning; they were supposed to help blacks adapt to the white man’s society and economy. Blacks were elected to Congress and held state offices. But Reconstruction did not last. The Freedmen’s Bureaus practically ceased operation by 1869; they were at all times understaffed and underfinanced; and their boldest moves—for example, land redistribution on the Sea Islands of South Carolina—were frustrated by the policies of the Johnson administration.69 By 1875, the North’s passion for equality, never very profound, had all but dribbled away. The North lost interest in black welfare. Northern racism, briefly and thinly covered over, came to the surface once more. The South would be left to solve the “Negro problem” on its own. As for the white South, it eagerly embraced the new situation. The Ku Klux Klan terrorized the blacks. Blacks who offended against their code—or even blacks who were too successful for their own good—were beaten and sometimes murdered. Educating blacks was a dangerous occupation. The Klan attacked a teacher in North Carolina, flogged him, cut off his hair, and left him unconscious in the woods. His offense, they told him, was “Teaching niggers.” The first black school that opened in Selma, Alabama, in the 1890s, was burned down by whites.70
During Reconstruction, blacks had voted and held office. The new white regimes were determined to end this situation. Blacks were relegated to a kind of peonage, bound laborers on the white man’s land. Rural blacks were desperately poor and largely illiterate. Around them a tight network of law and practice tied them to the soil. The network consisted of lien laws for landlords, vagrancy laws, enticement laws (which made it a crime to lure workers from their jobs, even by offering them better wages and conditions), laws against “emigrant agents,” who were more or less labor brokers, and even laws that made it a crime to quit work “fraudulently.” None of these laws specifically mentioned race; but they were practically speaking directed against black workers only. Blacks were not much better off than under slavery—except that the worker now could also be fired.71 In Florida, a statute of 1891 made it a crime to take money on a promise to do work, and then quit. Owners of turpentine camps used the law to tie their workers to the job. Black workers could also be rounded up as “vagrants,” and offered a choice of work or jail. There were some prosecutions under federal laws against “peonage”; and the U.S. Supreme Court in 1911 struck down the Alabama statute that made quitting work, in effect, a crime; but the net result of all this activity was zero.72 There was no follow-up, and the black system of virtual peonage remained stubbornly in place.
The caste-and-class system that replaced slavery included a system of legal and social apartheid. It developed inexorably in area after area of southern life. C. Vann Woodward has described the strange career of Jim Crow.73 Woodward has argued that the end of Radical Reconstruction did not mean a complete, immediate system of segregation in the South. Many of the most blatant Jim Crow laws, on the contrary, belonged to the very end of the nineteenth century. Not that race relations were smooth before that, or that the black was ever welcomed into white society. But there was a certain period of trial and error, of ambiguity and complexity, before the decisive instruments of segregation were nailed into law. “Custom” preceded law. In South Carolina, according to Joel Williamson, blacks could technically make use of all public facilities between 1868 and 1889; but few blacks actually dared to do so. In some ways, formal segregation replaced a system, not of integration, but of outright exclusion.74 Segregated schools replaced a system of no schools for blacks. And in some parts of the South, Jim Crow tightened its grip at the point where blacks showed signs of protesting against their position in society; it was a reaction, in short, to “uppity” blacks.75
What is beyond dispute is the eruption of segregation laws near the end of the century. Georgia required separate railroad cars for blacks and whites in 1891; the state even separated white and black prisoners in chain gangs. The laws and ordinances came thick and fast. In Arkansas, by 1903, the statutes required separate “apartments” for whites and blacks in all jails and penitentiaries, and “separate bunks, beds, bedding, separate dining tables and all other furnishings” (sec. 5901); even voting was segregated—voting officials were to “conduct admittance to the voting place [so] as to permit persons of the white and colored races to cast their votes alternately” (sec. 2822). Whites insisted on strict separation of the races, in every walk of life—even separate telephone booths and elevators, separate Bibles to swear on in a courtroom. Segregation even persisted after death. Cemeteries were white or black, not both; and Leon Litwack records the “bizarre” fact that a white man named Will Mathis, condemned to die, demanded segregation in execution. He objected to the use of the same gallows as a black man who was also sentenced to death.76
All of these legal and social arrangements carried a message, a strong message. They proclaimed a rigid social code, a rigid “way of life.” Those who violated the code were severely punished. Major infractions could mean death. Four blacks were lynched in South Carolina in 1876 for killing an old white couple. The Columbia Daily Register approved: “Civilization” was “in banishment…a thing apart, cowering in a corner”; there was a need for the “equity” of “Judge Lynch.” Later the bloodletting increased. Between 1888 and 1903, 241 blacks died at the hands of lynch mobs.77 Lynching was at times incredibly brutal and barbaric. Sam Hose, accused of killing a white man, was lynched in 1899, before a huge crowd near Newman, Georgia. His ears, fingers, and genitals were cut off; his face was skinned; he was soaked with kerosene, and set on fire while still alive; afterward, his body was cut to pieces and his bones crushed; some bits were sold as souvenirs. Nobody in the crowd was masked, and leading citizens took part in this horrible ritual.78
White supremacy in the deep South was total. Blacks had zero political power. The U.S. Constitution guaranteed the right to vote. But these were empty words. In fact, black southerners were unceremoniously stripped of this right, though one device or another. Black officeholders were driven from office. Southern laws and constitutions were amended to make sure blacks did not vote. Under the constitution of South Carolina (1895), a voter had to be able to read and understand the state constitution or have $300 in real property. Not many blacks could qualify. Southern states used a variety of devices: poll taxes, literacy tests, and residence requirements, for example. Then there was the infamous “grandfather clause.” First used in South Carolina in 1890, it excused voters from literacy tests, poll taxes, and the like, if they or their ancestors had voted in the 1860s (or were foreign). This let in all whites and no blacks.79 In Louisiana, the number of blacks registered to vote fell from 127,000 in 1896 to 3,300 in 1900, after the imposition of the “grandfather clause.”80 The North essentially did nothing, said nothing. In the Senate, in 1900, Ben Tillman of South Carolina told the North, “You do not love them any better than we do. You used to pretend that you did, but you no longer pretend it.” He defended what the South had done: “We took the government away. We stuffed ballot boxes. We shot them…. With that system…we got tired ourselves. So we called a constitutional convention, and we eliminated…all of the colored people whom we could.”81
Tillman was blunt, but probably accurate, in his assessment of Northern opinion. In 1860, there were only five states, all in New England, that permitted blacks to vote. Massachusetts was the only state to allow black men on juries. The post-Civil War amendments gave Northern blacks the vote, but did not change the climate of opinion very much. In such an atmosphere, one could hardly expect the federal courts to stand in the way of Jim Crow, or prevent the murder and oppression of America’s untouchables. But in truth these courts hardly tried. Even the Supreme Court had a dismal record in its race cases. In 1878, the Court faced a Louisiana statute (1869) that forbade “discrimination on account of race or color” in common carriers. The Court felt this law was an unconstitutional “burden” on interstate commerce. The case arose when the owner of a steamboat, bound for Vicksburg from New Orleans, refused plaintiff, “a person of color,” a place “in the cabin specially set apart for white persons.”82 In 1883, the Court declared the Civil Rights Act of 1875—a public accommodations law—unconstitutional.83 The Constitution, the Court said, applied only to state discrimination; private parties, including hotels, inns, and other public accommodations, were free to discriminate if they wanted to. And they did. Nothing much happened to alter this situation until the civil rights movement and the civil rights laws of the 1960s.
Plessy v. Ferguson (1896) was an especially dark decision. It put the Supreme Court’s stamp of approval on apartheid.84 This was another case from Louisiana. The Court confronted a law that called for “equal but separate accommodation for the white, and colored races” in railway carriages. Of course this law did not create a system of segregation; it merely ratified and formalized it. Steamboats were rigidly segregated. On trains, blacks were generally relegated to the smoking car, which was hardly de luxe; usually it was dirty, full of men drinking and spitting, and, of course, full of smoke.85 In the Plessy case, Homer Plessy, a light-skinned black, brought a test case on behalf of a New Orleans group that wanted to fight the segregation law. Plessy bought a ticket and refused to move from the white section of the car to the “colored” section. He was arrested; and the case went up to the Supreme Court of the United States. The Court turned down Plessy’s complaint and upheld the statute. The decision, which was eight to one, showed a studied ignorance (or disregard) of the realities of life in the South; according to the Court, if blacks thought such a law imposed “a badge of inferiority,” that was “not by reason of anything found in the act, but solely because the colored race chooses to put that construction on it.” In any event (said the Court), laws are “powerless to eradicate racial instincts or to abolish distinctions based upon physical differences.” In reply, Justice John Marshall Harlan wrote a lonely but powerful dissent: “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan had also dissented in the Civil Rights Cases. He was a former slave-owner himself. His ideas on race were complicated, and sometimes less than consistent.86 But he saw clearly the iniquity of the Plessy decision; and he spoke out forcefully against it. In any event, segregation became the norm in the South and in some of the border states.
First Nations
The blacks were not the only race to feel the lash of white hatred. The shock-word “genocide” is often used loosely. But it comes embarrassingly close to reality when we consider how the white man treated Native Americans. The tribes were driven from their lands; they were hounded and sometimes slaughtered. They had to give way constantly to land-hungry armies of white settlers. Both treaties and conquest were used to dispossess the tribes. In Johnson v. McIntosh (1823),87 the Supreme Court, through John Marshall, held that the Indians enjoyed only a right of “occupancy”; sovereignty rested with the United States. The tribes could sell lands to the government, but not to private citizens (this was the issue in the case). In theory, this doctrine might have protected the tribes from white settlers and their crafty ways. But the loss of sovereignty was more significant than the right of “occupancy.” The discovery of gold on lands of the Cherokee nation, in Georgia, set off a crisis. Georgia, in essence, seized the land and declared all the laws of the Cherokees null and void. A long period of legal wrangling followed. Ultimately, in 1832, in Worcester v. Georgia,88 the Supreme Court, still under John Marshall, held that Georgia had no right to dispossess the tribe; and their laws on the subject were unconstitutional. Justice Story wrote that the Court had “done its duty”; the country should “now do theirs.” But the country did not.89 Georgia paid no attention to the decision. In the end, the Cherokees were expelled, and sent on the infamous “trail of tears” to what is now Oklahoma.90
By 1880, the tribes were no longer a military threat. They had been thoroughly defeated. The remnants were herded onto reservations, usually on land the white man did not want. As Red Cloud, a Sioux Indian, put it, in 1870: whites “had surrounded me and left me nothing but an island. When we first had this land we were strong, now we are melting like snow on a hillside.”91 The United States and the individual states constantly broke faith, violated treaties, and trampled on ancient rights. The dominant culture had no respect for native religion, language, or way of life. The dominant culture looked on itself as superior—indeed, as the climax of human evolution. The Indians were “savages,” primitive and with at best a kind of childlike nobility. Cultural relativity was not a strong point of the nineteenth century.
In some ways, policy toward the native tribes was the opposite of Southern policy toward the blacks: not segregation, but assimilation. The Dawes Act of 188792 aimed at turning the natives into true Americans; it attacked traditional systems of land tenure. The land would be split into individually owned family farms; no more tribal or common ownership. Natives who conformed to the act could detribalize and become American citizens. On the surface, the point of the Dawes Act was protection of the property of the natives and their absorption into the American mainstream. The (not so hidden) agenda was destruction of native culture; moreover, through fraud and imposition, the Dawes Act resulted in another vast hemorrhaging of land from natives to whites. Sovereignty was largely a myth. In Lone Wolf v. Hitchcock (1903), the Supreme Court held that Congress had plenary power over the native tribes. Indian rights were thus inherently precarious.93
Asian Americans
In California (and in the West generally), the arrival of Chinese workers and immigrants touched off another epidemic of race hatred. The virulent feeling against Asians showed itself in a blizzard of ordinances and laws. Whites and “Mongolians” were not allowed to marry. Local laws openly or covertly aimed to harass the Chinese, in large ways and small. A San Francisco ordinance of 1880 made it unlawful to carry on a laundry in the city without the “consent of the board of supervisors,” unless the laundry was “located in a building constructed either of brick and stone.” Almost every San Francisco laundry was in fact in a wooden building. The Board turned down all applications from Chinese people; and granted every one that came from a Caucasian. In the much-cited case of Yick Wo v. Hopkins (1886),94 Yick Wo had applied for permission to run his laundry in a wooden building; the supervisors said no, he kept on working, and was arrested and fined. The Supreme Court overturned Yick Wo’s conviction. The way the ordinance had been enforced was “a denial of the equal protection of the laws and a violation of the Fourteenth Amendment.”
But such victories were rare. Anti-Chinese feeling ran very deep. One cause was fear of the competition from Chinese labor. The hostility, wrote John R. Commons, “is not primarily racial in character. It is the competitive struggle for standards of living.”95 It was, however, racist to the core. Organized labor in the West was almost as anti-Chinese as Southern populists were anti-black. Dennis Kearney, in California, rabble-rousing leader of the Workingmen’s Party, ranted and raved against the Chinese, the “Asiatic leper,” the “parasites from China,” who ate “rice and rats,” and were “used as a weapon by the grinding, grasping capitalists” to “oppress the poor laboring man.”96 Labor leaders, indeed, supported restrictions on Chinese immigration. In 1879, Congress passed the “Fifteen Passenger Bill”; on any ship arriving in the United States, there could be no more than fifteen Chinese passengers; the president vetoed it.
But cutting off the flow of Chinese laborers was a popular policy. Debate in Congress, on this issue, often sounded as racist and radical as Kearney: Senator John Miller of California denounced the “dwarfed, leathery little man of the Orient.” American civilization had to be saved from the “gangrene of oriental civilization.”97 The Chinese, moreover, could survive on less food (and less money) than the American worker. Congress acted. The law Congress passed in 1882 announced that the “coming of Chinese laborers to this country…endangers the good order of certain localities.”98 Everyone knew which localities were meant. This law suspended the immigration of Chinese laborers. It also provided that no state or federal court “shall admit Chinese to citizenship.” The Scott Act of 1888 prohibited some 20,000 Chinese (who had temporarily left the country) from coming back. An act of 1892, “to prohibit the coming of Chinese persons into the United States,” suspended immigration for another ten years, and provided that Chinese laborers were to be deported unless they applied for and obtained a “certificate of residence.” A statute of 1902 made the ban on Chinese entry and Chinese citizenship permanent.99
Race thus was an essential part of the story—race, xenophobia, fear of the “yellow peril.” Hatred sometimes led to outright violence. In the 1880s, riots in Rock Springs, Wyoming, ended with twenty-eight dead Chinese; then the whites in Tacoma, Washington, put their Chinatown to the torch. In Oregon, in 1887, a group of whites murdered thirty-one Chinese miners, and stole their gold dust. A careful and conservative estimate found 153 incidents of violence against Chinese in the West, between 1852 and 1908. In these outbreaks, 143 Chinese died, and over 10,000 Chinese were driven from homes or places of work.100 Hatred also left its mark on the statute books. The formal law discriminated against Asians. A California law, of 1880, prohibited any corporation from employing “in any capacity any Chinese or Mongolian”; in 1882, the state authorized segregated schools for Asians (there were already segregated schools for blacks).101 The racial minorities—blacks, Chinese, native Americans, and Mexican Americans in the Southwest and in California—were dealt with in different ways, and had different fates in America. But all were either voteless or powerless. They were strangers at the pluralist table.
1 Quoted in Grace A. Browning, The Development of Poor Relief Legislation in Kansas (1935), p. 59 n. 7. The statement quoted, from an 1899 report, actually referred to the treatment of the insane in Kansas, who were indeed were farmed out to the counties at so much a head.
2 Merle Curti, The Making of an American Community (1959), p. 285.
3 10 th Ann. Rpt., Bd. of State Charities, Indiana (1900), p. 154.
4 Margaret Creech, Three Centuries of Poor Law Administration: A Study of Legislation in Rhode Island (1936), pp. 195–97, 325.
5 Amos G. Warner, American Charities (3rd ed., 1919), p. 179.
6 22 nd Ann. Rpt., State Bd. of Charities, N.Y. (1889), pp. 505–11.
7 Isabel C. Bruce and Edith Eickhoff, The Michigan Poor Law (1936), p. 77.
8 Elizabeth G. Brown, “Poor Relief in a Wisconsin County, 1846–1866; Administration and Recipients,” 20 Am. J. Legal Hist. 79 (1976). Another study of a poorhouse, also from the Middle West, is Eric H. Monkkonen, The Dangerous Class: Crime and Poverty in Columbus, Ohio, 1860–1885 (1975), chs. 5, 6.
9 Quoted in Michael B. Katz, In the Shadow of the Poorhouse: A Social History of Welfare in America (rev. ed., 1996), p. 89.
10 Katz, op. cit., p. 90.
11 Sophonisba P. Breckenridge, The Illinois Poor Law and Its Administration (1939).
12 Edward W. Capen, The Historical Development of the Poor Law of Connecticut (1905), pp. 213–14; Laws Conn. 1873, ch. 45. The power to investigate whether persons were “unjustly placed” or “improperly held” did not extend to “cases of detention for crime.”
13 Amos G. Warner, Stuart A. Queen, and Ernest B. Harper, American Charities and Social Work (4th ed. 1930), pp. 143–44.
14 Quoted in Breckenridge, op. cit., p. 76.
15 Quoted in Ralph E. and Muriel W. Pumphrey, eds., The Heritage of American Social Work (1961), p. 223. See also, in general, Walter I. Trattner, From Poor Law to Welfare State: A History of Social Welfare in America (6th ed., 1999), pp. 95–96.
16 Leah H. Feder, Unemployment Relief in Periods of Depression, 1857–1922 (1936).
17 Quoted in Alexander B. Callow Jr., The Tweed Ring (1966), p. 159.
18 Frances Cahn and Valeska Bary, Welfare Activities of Federal, State, and Local Governments in California, 1850–1934 (1936), pp. 201–2.
19 Grace A. Browning, The Development of Poor Relief Legislation in Kansas (1935), pp. 77–81.
20 Patrick J. Kelly, Creating a National Home: Building the Veterans’ Welfare State, 1860–1900 (1997), p. 56.
21 The story of the National Home is told in Kelly, op. cit., supra. On the history of federal disaster relief, see Michele Landis: “ ‘Let me Next Time be “Tried by Fire” ’: Disaster Relief and the Origins of the American Welfare State, 1789–1874,” 92 Northwestern U.L. Rev. 967 (1998).
22 Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (1992), Part I, ch. 2; and Appendix I, p. 541.
23 Capen, op. cit., pp. 249–55, 387–89.
24 There were innumerable instances. See, for many examples in a general appropriation law, Laws N.Y. 1850, ch. 365. See also Jacobus ten Broek, “California’s Dual System of Family Law: Its Origin, Development and Present Status,” Part II, 16 Stan. L. Rev. 900, 944–49 (1964).
25 The story of this institution is told in Gerald N. Grob, The State and the Mentally Ill (1966).
26 Laws Pa. 1860, ch. 551, sec. 38.
27 Amos Warner et al., American Charities and Social Work (4th ed., 1930), p. 136; Miriam Z. Langsam, Children West: A History of the Placing-Out System of the New York Children’s Aid Society, 1853–1890 (1964); Marilyn Irvin Holt, The Orphan Trains: Placing Out in America (1992). In Boston, too, there was a Children’s Aid Society (1864), which “maintained a home to discipline children before placing them out.” Robert M. Mennell, Thorns & Thistles: Juvenile Delinquents in the United States, 1825–1940 (1973), p. 43.
28 There is a growing literature on the history of family law. See especially Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (1985); Nancy F. Cott, Public Vows: A History of Marriage and the Nation (2000); Hendrik Hartog, Man and Wife in America: A History (2000); Lawrence M. Friedman, Private Lives: Families, Individuals, and the Law (2004).
29 Quoted in James W. Ely Jr., Railroads and American Law (2001), p. 146. On the ladies’ cars, see Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (2001), pp. 253–54.
30 See below, ch. 12.
31 There was a woman’s suffrage movement in the nineteenth century; and it made some progress. The territories of Wyoming and Utah granted women voting rights around 1870. Congress eliminated voting rights for women in Utah, in 1887; but when Utah was admitted to the union, these rights were reinstated. By 1890, some nineteen states gave women the right to vote in elections for local school boards. Eleanor Flexner, Century of Struggle (1972), pp. 159–63, 176–77.
32 Crawford, J., in Norval v. Rice, 2 Wis. 22, 31 (1853).
33Birbeck v. Ackroyd, 74 N.Y. 356 (1878); Norma Basch, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (1982), pp. 217–18.
34 See Peter T. Conmy, The Historic Spanish Origin of California’s Community Property Law and Its Development and Adaptation (1957).
35 See Beverlin v. Beverlin, 29 W. Va. 732, 3 S.E. 36 (1877).
36 Thomas Clifford Billig and James Phillip Lynch, “Common-Law Marriage in Minnesota: A Problem in Social Security,” 22 Minn. L. Rev. 177 (1937).
37 Laws Conn. 1895, ch. 365, p. 667; Edward W. Spencer, “Some Phases of Marriage Law and Legislation from a Sanitary and Eugenic Standpoint,” 25 Yale L.J. 58 (1915).
38 Joel P. Bishop, Commentaries on the Law of Marriage and Divorce, vol. I (4th ed., 1864) p. 127. See, in general, on state control over marriage, Michael Grossberg, “Guarding the Altar: Physiological Restrictions and the Rise of State Intervention in Matrimony,” 26 Am. J. Legal Hist. 197 (1982).
39 Laws Ala. 1868, ord. no. 23, p. 175.
40Pace v. Alabama, 106 U.S. 583 (1882). See Julie Novkov, “Racial Constructions: The Legal Regulation of Miscegenation in Alabama, 1890–1934,” 20 Law and History Review 225 (2002). Despite severe taboos, there were instances in the South of stable, long-term black and white relationships. See Martha Hodes, White Women, Black Men: Illicit Sex in the Nineteenth-Century South (1997).
41 See, for example, Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage, and Law—An American History (2002).
42 On bigamy in the nineteenth century, see Lawrence M. Friedman, Crime and Punishment in American History, pp. 197–201.
43 Sarah B. Gordon, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth Century America (2002), p. 33. A general study of the relationship between the Mormon church and the law is Edwin Brown Firmage and Richard Collin Mangrum, Zion in the Courts (1988).
44 98 U.S. 145 (1878).
45 Quoted in Sarah Gordon, op. cit., at 126.
46 Quoted in Thomas F. O’Dea, The Mormons (1957), p. 110. See also Ray Jay Davis, “The Polygamous Prelude,” 6 Am. J. Legal Hist. 1 (1962). In Idaho Territory, anti-Mormons were in control; and an act of 1885 required all voters to swear they were not polygamists, and that they did not belong to an “order” that taught bigamy.
47 Sarah Gordon, op. cit., is a careful study of this campaign.
48 It says something that, under South Carolina law, a man was not allowed to leave more than one quarter of his estate to his mistress. Glenda Riley, Divorce: an American Tradition (1991), p. 70.
49 Tenn. Stats. 1858, secs. 2448–49.
50 Quoted in Nelson Blake, The Road to Reno (1962), p. 91.
51 Theodore D. Woolsey, Divorce and Divorce Legislation (2nd ed., 1882), p. 221.
52 Blake, op. cit., p. 132.
53 Laws Me. 1883, ch. 212.
54 Blake, op. cit., p. 90.
55 Bishop, Commentaries on the Law of Marriage and Divorce, vol. I (4th ed., 1864), p. 26.
56 Glenda Riley, op. cit., pp. 79, 86.
57 Robert L. Griswold, Family and Divorce in California, 1850–1890: Victorian Illusions and Everyday Realities (1980), p. 25; another study which uses divorce records is Elaine T. May, Great Expectations: Marriage and Divorce in Post-Victorian America (1980).
58 Lawrence M. Friedman and Robert V. Percival, “Who Sues for Divorce? From Fault through Fiction to Freedom,” 5 J. Legal Studies 61 (1976).
59 On this point, see William O’Neill, Divorce in the Progressive Era (1967).
60 Blake, op. cit., p. 190.
61 Francis W. Laurent, The Business of a Trial Court (1959), pp. 176–77.
62 New York Times, Jan. 18, 1901; New York Times, April 21, 1900.
63 South Carolina did, however, grant alimony under some circumstances to separated wives, even though no divorce was possible. See Michael S. Hindus and Lynne E. Withey, “The Law of Husband and Wife in Nineteenth-Century America: Changing View of Divorce,” in D. Kelly Weisberg, ed., Women and the Law, vol. II (1982), pp. 133, 140–45.
64 In Tennessee, a divorced adulterer or adulteress could not marry the “person with whom the crime was committed during the life of the former husband or wife,” Tenn. Stats. 1858, sec. 2475.
65 Wyo. Stats. 1899, sec. 2988; conduct by a husband that would “constitute him a vagrant” was also grounds for divorce.
66 As early as 1882, a committee of the American Bar Association went to work drafting uniform legislature to get rid of fake domicile and the runaway divorce. They succeeded in inducing some states to pass their statute, but the problem did not go away. See Amasa Eaton, “Proposed Reforms in Marriage and Divorce Laws,” 4 Columbia L. Rev. 243 (1904).
67 Richard Nelson Current, Those Terrible Carpetbaggers: A Reinterpretation (1988).
68 See Laws Miss. 1865, ch. 4, 6.
69 Martin Abbott, The Freedmen’s Bureau in South Carolina, 1865–1872 (1967).
70 Leon F. Litwak, Trouble in Mind: Black Southerners in the Age of Jim Crow (1998), pp. 87–88. These were extreme cases. Most Southerners, perhaps, believed in educating black people—up to a point; and teaching them deference and devotion to manual labor. Ibid., pp. 90–91.
71 William Cohen, “Negro Involuntary Servitude in the South, 1865–1940: A Preliminary Analysis,” 42 J. Southern Hist. 31 (1976); Daniel A. Novak, The Wheel of Servitude: Black Forced Labor after Slavery (1978).
72 Kermit L. Hall and Eric W. Rise, From Local Courts to National Tribunals: The Federal District Courts of Florida, 1821–1990 (1991), pp. 51–54; Laws Fla. 1891, ch. 4032 [No. 23], pp. 57–58; Bailey v. Alabama, 219 U.S. 219 (1911).
73 C. Vann Woodward, The Strange Career of Jim Crow (2nd rev. ed., 1966).
74 Joel Williamson, After Slavery: The Negro in South Carolina during Reconstruction, 1861–1877 (1965), p. 287; John William Graves, “The Arkansas Separate Coach Law of 1891,” 7 Journal of the West 531 (1968); on the exclusion thesis, see Howard N. Rabinowitz, “From Exclusion to Segregation: Southern Race Relations, 1865–1890,” 63 J. Am. Hist. 325 (1976).
75 Litwack, op. cit., p. 230.
76 Litwack, op. cit., p. 236.
77 Clarence A. Bacote, “Negro Proscriptions, Protests, and Proposed Solutions in Georgia, 1880–1908,” 25 J. Southern Hist. 471 (1959); on South Carolina, George B. Tindall, South Carolina Negroes, 1877–1900 (1952), pp. 236–37.
78 Litwack, Trouble in Mind, pp. 280–82.
79 Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (2000), pp. 111–13. The restrictions also, as a kind of side effect, discriminated against poor whites.
80 Thomas E. Gossett, Race: The History of an Idea in America (1963), p. 266.
81 Quoted in Harold U. Faulkner, Politics, Reform and Expansion, 1890–1900 (1959), pp. 7–8.
82Hall v. DeCuir, 95 U.S. 485 (1878).
83The Civil Rights Cases, 109 U.S.3 (1883). One exception to the otherwise bleak record of the Supreme Court was Strauder v. West Virginia, 100 U.S. 303 (1880). The state of West Virginia allowed only “white male persons who are twenty-one years of age” to serve on juries. The Supreme Court struck down this provision.
84 163 U.S. 537 (1896). Interestingly, Plessy argued also that he was not really “colored,” since he had only “one-eighth African blood” and “the mixture of colored blood was not discernible to him.” But the Supreme Court left to the states the power to define membership in the races. For a full treatment, see Charles A. Lofgren, The Plessy Case: A Legal-Historical Interpretation (1987).
85 Barbara Welke, Recasting American Liberty, pp. 257–62.
86 On Harlan and his views, see Linda Przybyszewski, The Republic According to John Marshall Harlan (1999), ch. 4.
87 8 Wheat (21 U.S.) 543 (1823).
88 6 Pet. (31 U.S.) 515 (1832).
89 Jean Edward Smith, John Marshall, Definer of a Nation (1996) p. 518.
90 Georgia was not the only culprit. On the removal of the Choctaws from Mississippi, roughly in the same period, see James Taylor Carson, “State Rights and Indian Removal in Mississippi, 1817–1835,” 57 Journal of Mississippi History 25 (1995).
91 Quoted in Edward Lazarus, Black Hills, White Justice: The Sioux Nation versus the United States, 1774 to the Present (1991), p. 60.
92 24 Stat. 388 (act of Feb. 8, 1887). See Wilcomb E. Washburn, The Assault on Indian Tribalism: The General Allotment Law (Dawes Act) of 1887 (1975).
93Lone Wolf v. Hitchcock is 187 U.S. 553 (1903); see Blue Clark, Lone Wolf v. Hitchcock: Treaty Rights and Indian Law at the End of the Nineteenth Century (1994); and Edward Lazarus, Black Hills, White Justice (1991), pp. 168ff, on the impact of the case on the claims of the Sioux.
94 118 U.S. 356 (1886).
95 John R. Commons, Races and Immigrants in America (1907), p. 115.
96 Quoted in Andrew Gyory, Closing the Gate: Race, Politics, and the Chinese Exclusion Act (1998), p. 116; Gyory’s book is the source for the material on the Fifteen Passenger Law and the Chinese exclusion act.
97 Andrew Gyory, Closing the Gate, p. 224.
98 22 Stats. 58 (act of May 6, 1882).
99 Ronald Segal, The Race War (1966), pp. 205–7; 25 Stats. 476 (act of Sept. 13, 1888); 27 Stats. 25 (act of May 5, 1892); 32 Stats. 176 (act of April 29, 1902). On the administration of the law, see Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern American Immigration Law (1995).
100 John R. Wunder, “Anti-Chinese Violence in the American West, 1850–1910,” in John McLaren et al., eds, Law for the Elephant, Law for the Beaver: Essays in the Legal History of the North American West (1992), pp. 211, 214–15.
101 Robert F. Heizer and Alan J. Almquist, The Other Californians (1971), ch. 7; on the treatment of Chinese Americans in the courts, see John R. Wunder, “The Chinese and the Courts in the Pacific Northwest: Justice Denied?” 52 Pac. Hist. Rev. 191 (1983).