SELFISH INTENTIONS - K-REx - Kansas State University

general—facilitated commercial development, the efficient deployment of capital, and the
orderly rearing of an educated labor force.” 42 However, extreme liberalization of law codes
disrupted corroding notions of male sovereignty and marital sanctity. In response to this threat,
VanBurkleo notes that, “By the 1850s, as antislavery agitation increased and women geared up
for a rebellion, legal scholars had begun to recast the marriage contract primarily as a social
institution, or ‘status.’ In so doing, they deemphasized its relations to the law of contract (which
governed market relations), labored to distinguish it from slavery, and underscored its social
consequences.” 43 She further contends that this debate between emphasizing marriage as
“status” and downplaying marriage as a “contract” became the driving force for judicial divorce
and propelled Americans toward “the notion of marriage as a social institution infused with
vested rights and public interest.” 44
Hendrik Hartog concurs. He argues that between the years of 1790 and 1850, American
case law had three options when dealing with martial exits. He explains these three powers, “the
power to declare one spouse ‘guilty’ of conduct that freed the other spouse from her or his
commitment to stay in the relationship, the power to rule on the legality or illegality of a
separation, and the power to prevent marriage. Each framed the doctrinal expression of a distinct
mode of exit: of divorce, of separate maintenance agreements, and of abandonment and informal
separation.” 45 Together these were the three options for husbands and wives who wished to end
their marriages. In the case of divorce in particular, when an individual petitioned the court for a
divorce, he or she more than likely wanted the divorce for a very private reason. But in
42 Ibid., 67.
43 Ibid., 68.
44 Ibid., 69.
45 Hartog, 64.
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