The Liberty of Self-Degradation - Kinder Institute on Constitutional

Transcription

"The Liberty of Self-Degradation":
Polygamy, Woman Suffrage,
and Consent in
Nineteenth-Century America
Sarah Barringer Gordon
"These are strange times," charged Kate Field in 1886, "when a female Mormon
lobby asks Congress to give to Utah the liberty of self-degradation!" The degradation Field spoke of was polygamy, a practice she condemned as "monstrous," a "rock
that need[ed] blowing up with the dynamite of law." Popular lecturer, political activist, and arbiter of intellectual taste and fashion, Field was also a passionate opponent of polygamy and of the Mormon hierarchy that practiced it in Utah Territory.
Her "Mormon Monster" lectures drew sellout audiences in the mid-1880s. Her talk
was crafted to appeal to the broadest possible spectrum of listeners, guiding their
thinking while entertaining them with her unrelenting and unembarrassed discussion of a slightly naughty topic.'
Field rode the crest of a wave of antipolygamy sentiment in the mid-1880s. Her
work crystallized the ironies of the liberty of self-degradation, but she was by no
Sarah Barringer Gordon is assistant professor of law at the University of Pennsylvania Law School. Earlier versions
of this paper were presented at the Yale Legal History Forum (1994), the American Society for Legal History (1994),
the Feminist Legal Theory Workshop at the University of Chicago Law School (1995), and the Chicago Workshop
in Comparative Legal History (1995).
In addition to the many helpful comments and criticisms generated at those sessions and from colleagues at
Penn, I owe special thanks to Davis Bitton, Elizabeth Clark, Henry Hansmann, Hendrik Hartog, Richard Helmholz, Nancy Hewitt, Bruce Mann, Daniel Rodgers, and the editors and readers of the JAH, as well as to Catharine
Krieps of Biddle Law Library for invaluable assistance.
Chicago Tnzune, June 6, 1886, p. 15. For another report of a Field lecture, see John Irvine, report on "The
Mormon Monster," lecture delivered by Kate Field in the Congregational Church, Washington, D.C., Dec. 15,
1886, MS #3111 (Historical Department, Church of Jesus Christ of Latter-day Saints, Salt Lake City, Utah). On
Field's career, see Lilian Whiting, Kate Field, a Record . . . (Boston, 1899); Notable American Women, s.v. "Field,
Kate"; Helen Beal Woodward, The Bold Women (New York, 1953), 201-14; "Woman in the Lyceum," Nation,
May 13, 1869, pp. 371-72. Although newspaper accounts and notes taken at Field's lectures indicate the content
of her talks, the texts of the lectures have not survived. Field apparently varied her talks considerably, even changing
her recommendations for legislation for Utah. There appear to have been at least three lectures in the initial series.
See Edward Increase Mather, "Kate Field's New Departure," Bay State Monthly, 3 (Nov. 1885), 430-34. On lecturing, see Donald M. Scott, "The Profession That Vanished: Public Lecturing in Mid-Nineteenth-Century
America," in Professions andProfissionalIdeologies in America, ed. Gerald L. Geison (Chapel Hill, 1983), 12-28;
Woodward, Bold Women, 201-14; and James Burton Pond, Eccentricities of Genius: Memories of Famous Men
and Women ofthe Platfom and Stage (New York, 1900), 143, 533-54.
Polygamy is an umbrella term, embracing both polygyny (one husband taking multiple wives) and polyandy
(one wife taking multiple husbands). Nineteenth-century Mormons practiced polygyny, but most people at the
time and since have referred to it as polygamy.
The Journal of American History
December 1996
8 15
816
December 1996
means alone. In the 1880s, antipolygamy sentiments were common coin among
politicians, clergymen, newspaper editors, novelists, and temperance activists.
Field's advocacy of using the "dynamite of law" to reconstruct Mormon marriage
reflected a widely shared sense that legal reform, even legal upheaval, was necessary
to protect women in Utah and to prevent the spread of political contamination to
the rest of the country.
Although they spoke of dynamite, a strong term to describe the operation of
law, antipolygamists believed in an explicitly legal solution to Mormon polygamy's
challenge to federal power and to the law of marriage. Antipolygamists contemplated the reconstruction of Utah, not by arms (or by prayer), but by legislation.
Condemnations of Mormon polygamy allowed reformers to envision the national
state and individual marriages as mutually dependent, mutually reinforcing. A connection between marriage and the health of the state was not a new theory in the
nineteenth century, but antipolygamists found fertile new ground for demonstrating the political importance of marriage. Antipolygamists developed and successfully deployed political arguments about the value of the law of marriage, and of
legal uniformity, in the preservation of liberty.
One of the most intriguing claims made by antipolygamists was that woman
suffrage was part of the problem, rather than part of the solution. The "self" in
the "self-degradation" Field and other antipolygamists condemned was most painfully manifest in the woman's vote in Utah. Polygamy, they argued, was a mockery
of marriage, and its presence made a mockery of woman suffrage. Thus consent
to a valid marriage was revealed as a key to meaningful political consent.
The vote of women in Utah framed and intensified theories of the relationship
of marital and political structures, adding depth and texture to debates over woman
suffrage and its likely effect on the integrity of marriage. Politicians in Washington
heard the message. The only vote on woman suffrage taken by the full Congress
in the nineteenth century was negative. In early 1887 the Edmunds-Tucker Act disfranchised the women of Utah as part of a multifaceted attempt to dismantle the
financial and political power of the "polygamic theocracy" of the Mormon Church.
The bill, including the antisuffrage plank, received such widespread support that
the Mormon-owned Deseret News reported with dismay that the measure passed
without substantial opposition. All polygamists had been disfranchised five years
earlier by legislation introduced and championed by the same Sen. George
Edmunds of Vermont whose name appeared on the anti-woman suffrage statute.
If polygamy was already an occasion for political disability, why push further, disfranchising all the women of the territory, no matter what their marital ~ t a t u s ? ~
The answer is that the woman's vote in Utah highlighted the central problem
of consent in a political culture that embraced individual choice as the basis of state
Deseret Evening News, Jan. 13, 1887, reprinted in the Journal History, a scrapbook kept by Mormon church
officials, Jan. 13, 1887, p. 12 (Historical Department). Although vigorously debated in earlier versions, the
Edmunds-Tucker Act was passed in 1887 without even a roll call. On opposition to Republican-sponsored antipolygamy legislation, see David Buice, "A Stench in the Nostrils of Honest Men: Southern Democrats and the
Edmunds Act of 1882," Dialogue, 21 (Autumn 1988), 100-113; and M. Paul Holsinger, "Henry M. Teller and the
Edmunds-Tucker Act," Colorado Magazine, 48 (no. 1, 1971), 1- 14.
Polygamy, Woman Suffrage, and Consent
817
power. The apparent endorsement of polygamy by Utah women who voted for
polygamists, the voluntary assumption of a relationship that was widely condemned as the negation of marriage, served as a lightning rod for concerns about
women's political participation and marriage that affected the country as a whole.
The woman's vote in Utah also created significant, eventually insurmountable,
difficulties for suffragists, whose failure to disaggregate polygamy and the franchise
marked the 1880s as a low point in the woman suffrage movement. Swirling around
the franchise were other questions linking voluntarism and marriage: What was the
relationship between consent and monogamy, or (even more difficult) between consent and divorce? These analytically distinct, but often politically indistinguishable, strands of political theory about the law of marriage and its relationship to
the state coalesced in the 1880s to create a powerful logic for disfranchisement.,
This article traces the arguments of antipolygamists as they explained the integral relationship of marriage to political theory. It first situates opposition to
Mormon polygamy in its broader political context and then examines the debate
over woman suffrage in Utah in particular. Next it details the convergence of antidivorce and antipolygamy politics-the blending of multifarious concerns about
marriage, law, and national authority. Finally it focuses on the role of law in latenineteenth-century political rhetoric.4
The political theories embraced by antipolygamists in the second half of the nineteenth century were various. Often the boundary between persecution of Mormons
and protection of marriage was a fine one, as ever more drastic legal means were
invoked to punish polygamists, especially in the 1880s. Antipolygamists formed no
single cohesive group; they were scattered across the political, social, and religious
spectrum throughout the second half of the nineteenth century. Virtually everyone
except the Mormons opposed polygamy, and the opposition ranged over far wider
and more conflicted terrain than can be covered here, ebbing and flowing with the
predominance of one or another issue. But antipolygamists of all stripes shared a
central conviction that polygamy was dangerous politically-that polygamy was
fundamentally at odds with liberty, that the freedom to choose could be negated
by wrong choices.
Liberty, License, and the Law of Marriage
Before antipolygamists could plausibly argue that political participation for women
in Utah was only "the liberty of self-degradation," they had to deal with a tangle
of preliminary matters. First was the paradox of a flourishing system of structural
3 See Sarah Barringer Gordon, "The 'Twin Relic of Barbarism': A Legal History of Anti-Polygamy in NineteenthCentury America" (Ph.D. diss., Princeton University, 1995).
4 On the ascendancy of legal language and ideas in the nineteenth century, see John Phillip Reid, Law for
the Elephant: Property and Social Behavior on the Overland Trazl (San Marino, 1980), 3-10; Hendrik Hartog,
"Pigs and Positivism," Wisconsin Law Review (July 1Aug. 1985), 899-935; Eugene Genovese, Roll, Jordan, Roll:
The WorUthe Slaves Made (New York, 1975), 25-49; and Christopher Tomlins, "Subordination, Authority, Law:
Subjects in Labor History," InternationalLabor and Worhing-Ch History, 47 (Spring 1995), 65-68. Respect for
law, or for the idea of law, should not be confused with obedience or even with agreement on the substantive
content of law.
December 1996
Kate Field's popularity as a public speaker reached its height in the 1880s, as she traveled around the country delivering her "Mormon Monster" lecture. Reprinted from Lilian Whiting, Kate Field, a Record. . . , frontispiece. Princeton University Libraries. inequality deep in the land of the free. How had polygamy, "this foul blot on the
Republic's escutcheon," as Field put it, appeared in the heart of democracy? The
very existence of such a tyrannical system in the midst of liberty was an embarrassment, she was convinced, a contradiction of the benefits of freedom. Her interest
piqued by the negative publicity, Field went to Utah to investigate the Mormons
in 1884. She spent eight months there, interviewing hundreds of women, visiting
at least one jailed plural wife, talking to Mormon leaders, and attending Mormon
religious services, concerts, plays, and lectures. Her hosts recognized the impor-
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tance of her researches and spared no effort to impress her with the virtues of their
peculiar domestic institution. Once she was back in the East, however, Field's indictment of polygamy showed no trace of conciliation. She painted life for women
in Utah as an unmitigated horror, parrying Mormon claims of an industriousness,
loyalty, and thrift that matched or exceeded anything in the East with attacks on
the high percentage of foreign-born women in Utah and their lack of education.
The Mormons' marital system undermined morality, she charged; their western isolation was a transparent attempt to obscure the threat such abuse posed to the
entire nation.5
Her Mormon targets felt the sting of Field's invective. They retaliated, deriding
her as a "bitter-spirited little woman" given to "flatulent utterances," and they sent
plural wives from Utah to Washington to counter her claim that Mormon women
were "self-degraded." Both sides understood that theirs was a contest for public
opinion, and that lectures like Field's might have significant political impact. The
influence of antipolygamists was considerable. Anna Dickinson, already well
known in Republican circles, made an antipolygamy lecture tour in the late 1860s
that drew press attention. But it was an apostate Mormon, Ann Eliza Young, billed
as "The Rebel of the Harem," who first demonstrated the immediate political power
of appeals by women against polygamy. Young, whose hour-long discourse on her
"Life in Bondage" galvanized Washington in the mid-1870s, was the estranged
plural wife of Mormon president and prophet Brigham Young. Her well-timed
appearances for speeches in cloakrooms on Capitol Hill propelled through Congress the only piece of antipolygamy legislation enacted between 1862 and 1882.'
By the mid-1880s, therefore, antipolygamists had decades of antipolygamy rhetoric to feed off and augment. Mormons had long been derided for their bizarre
religious beliefs, their secretiveness, their hierarchical organization, their unquestioning obedience to self-proclaimed prophets. But loudest and most frequent, inseparable from all other quarrels with the Mormons, was the condemnation of
polygamy. Polygamy, detractors argued, proved conclusively the fraudulence of Mormon leaders, the gullibility of their followers, and the irrepressible conflict between
Mormonism, on the one hand, and democracy, freedom, and marriage, on the
other.'
Polygamy also exposed the underlying weakness of the American legal system,
See Carolyn J . Moss, "Kate Field: The Story of a Once-Famous St. Louisan," Missouri' Historzcal Review, 58
(Jan. 1994), 166-67; and Leonard J. Arrington, "Kate Field and J. H. Beadle: Manipulators of the Mormon Past,"
paper delivered as the American West Lecture, Salt Lake City, March 31, 1971 (in Sarah Barringer Gordon's possession), 8-9. Orson F. Whitney, Histoty of Utah (4 vols., Salt Lake City, 1892-1904), 111, 281-82.
Deseret Evening News, Dec. 3, 1886, p. 2. Anna Dickinson, "Whited Sepulchres," [1869?], container 15,
Speeches and Writings File, Anna E. Dickinson Papers (Manuscript Division, Library of Congress, Washington,
D.C.). Dickinson gave this speech all over the country. See, for an example of press coverage, New York World,
Oct. 14, 1869, p. 2. See Ann Eliza Young, Wife No. 19; ol; The Stoty of a Life in Bondage, Being a Complete
Expose ofMormonism, andRevealing the Sorrows, Sacrifices andSuffeni2gs of Women i n Polygamy. . . . (Hartford,
1876); Woodward, Bold Women, 307-33; and Irving Wallace, The Twenty-Seventh Wife (New York, 1961).
7 On early anti-Mormonism, see David Brion Davis, "Some Themes of Counter-Subversion: An Analysis of
Anti-Masonic, Anti-Catholic, and Anti-Mormon Literature," Mississ&i W y Historical Review, 47 (Sept. 1960),
205-24. On antipolygamy in relations between territorial Utah and Congress, see Edward Leo Lyman, Political
Deliverance: Utah's Quest for Statehood (Urbana, 1986), 2-6.
'
December 1996
its vulnerability to degeneracy. Liberty, according to antipolygamists, was all too
close to its opposite-license, the opportunistic abuse of freedom. The possibility
of, even the proclivity to, licentiousness in a constitutional system designed for the
careful exercise of liberty was an old and familiar lament by midcentury. The uncertain, changeable political status of the territories added a geographic dimension
to the problem. The potential degeneration of liberty in the West was a nagging
national concern throughout the Civil War era, extending well beyond the dispute
over slavery. Polygamy proved that the liberty to marry was as fragile as other freedoms, that the governance of households was as delicate as other political structures. The painful realization that the very liberties of the American federal system
had permitted the exploitation of marriage led antipolygamists not only to condemn Mormon polygamists as licentious tyrants but also to argue that the federal
government, if not the agency responsible for the existence of polygamy, was certainly the appropriate vehicle for a careful reconstruction of the law of marriage.
Republican congressman Justin S. Morrill of Vermont, in an 1857 speech entitled
"Polygamy and its License," argued that because "a Territory is the creature of Congress," Congress had the power (and the duty) under the Constitution to remedy
the "burlesque, outrage [and] indecency" by which "artful men" sought to twist
the Constitution. As antipolygamists explained their mandate, they were charged
with cleansing the legal system to preserve political liberty. Mormon men had captured "power of legislation," claimed Sen. John Tyler Morgan of Alabama, "for the
propagation of polygamy," covering oppression with a legal veneer. The connection
between marriage and the state, political liberty and marital integrity, was nowhere
else both so unambiguously evident and so much in need of precise legal definition. Law functioned as a vessel, preserving and confining liberty. "Liberty's urn,''
said one antipolygamist, "is a safe repository of law."8
Mormons forced their opponents to articulate the need for legal reconstruction
of marriage in Utah Territory, for they refused not only to concede the connection
between monogamy and liberty as a matter of political theory but also to obey federal antipolygamy laws once enacted. Contrary to the corrupt sexual practices of
the rest of the country, argued Mormon leaders, they had a mandate to engage in
polygamy, a revelation given by God commanding faithful Mormon men to marry
On popular concern over possible degeneration from a variety of sources, see Josiah Strong, Our Country:
Its Possible Future andlts Present Cnsis (1885; Cambridge, Mass., 1963);James M. McPherson, Battle Cry ofFreedom: The Civil War Era (New York, 1988), 6-21, 37-46, 130-44; Harry Watson, Liberty and Power: The Politics
ofJacksonian America (New York, 1990), 10-13, 93-95, 147-51, 241-53; Charles S. Sellers, The Market Revolution:
Jacksonian America, 1815-1846 (New York, 1991), 396-427; and R. Laurence Moore, Religious Outsiders and the
Making of Amencans (New York, 1986), 3-10. On the uses of law and legal theory in describing and cabining
the forces of decay after the Civil War, see Daniel T. Rodgers, Contested Truths: Keywords in American Politics
since Independence (New York, 1987), 144-75; and William E. Nelson, "The Impact of the Antislavery Movement
upon Styles of Judicial Reasoning in Nineteenth Century America," HawardLaw Review, 87 (Jan. 1974), 513-66.
Justin S. Morrill, Speech of Hon Justin S. Morn% of Vermont, on Utah Territory and its Law- Polygamy and its
License; Deliveredin the House ofRepresentatives, February 23, 1857 (Washington, 1857), 10. For Sen. John Tyler
Morgan's speech, see Congressional Record, 49 Cong., 1 sess.,Jan. 7, 1886, p. 510. "Liberty's urn" is in a petition
submitted by Angelina French Newman, "Woman Suffrage in Utah," Miscellaneous Documents, 49 Cong., 1 sess.,
S. Doc. 122, June 8, 1886, p. 2. On connections between marriage and the state, see Laura F. Edwards, '"The
Marriage Covenant is the Foundation of All Our Rights': The Politics of Slave Marriages in North Carolina after
Emancipation," Law and Histor Review, 14 (Spring 1996), 82-89.
Political cartoons frequently depicted Mormon women as enslaved by violent and abusive men and the federal government as hobbled by vapid antipolygamy laws. "The Mormon Question," Daily Graphic, October 22, 1883. Courtesy of W e University Library. more than one wife. Mormons, in other words, challenged legislation as the source
of law, arguing that their consent to Latter-day revelatory faith dispensed them from
the marriage laws of other jurisdictions, even when ordered to observe them by explicit federal legislation. And unlike other nineteenth-century utopian groups,
Mormons had real political power; they were the vast majority of the population
of an entire territory. They used their power to resist the condemnation of outsiders,
to protect their intricate and far-reaching religious and economic organization.
Mormons shielded the polygamous marital practices of their leaders, claiming
before the Civil War, for example, that celestial marriage was a matter for local control, a domestic relation shielded by federalism, enjoying protection under the Constitution similar to that surrounding slavery, the South's peculiar domestic institution.9
9 On Mormon government of Utah in the pre-Civil War era and subsequent conflict between the Mormons
and their federally appointed territorial administrators, see Leonard J. Arrington, Great Basin Kingdom: An Economic History ofthe Latter-Day Saints, 1830-1900 (Cambridge, Mass., 1958); and Gustive 0 . Larson, The 'amen'-
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Mormon resistance was determined, articulate, and effective, but not persuasive.
Even before 1860, southerners distanced themselves from their putative allies; one
southern Democrat argued that he saw a vast difference between excluding property from the territories (by prohibiting the importation of slaves) and sanctioning
crime in the territories (that is, allowing the Mormons to practice polygamy).
Others condemned polygamy even as they claimed the Constitution did not authorize federal regulation of domestic relations in the territories.1°
Critics in the North were more uncompromising, condemning the theory that
the Constitution sanctioned moral or legal difference by region, or by religion. By
invoking their dispensation to practice polygamy, Mormons, after all, claimed that
they could alter marriage, the paradigmatic legal structure of gender relations because they had an unquestionable source of authority that directly contradicted
the sense of order and justice prevailing in the rest of the nation. For most of the
1850s, polygamy was the marital policy of a portion of the United States, practiced
by the governor of the territory and most subordinate officials. Republicans homed
in on the vaunted similarities between polygamy and slavery, including in their
1856 party platform a pledge to prohibit "those twin relics of barbarism -Polygamy
and Slavery" in the territories. Even after a war-torn Congress outlawed polygamy
in 1862, church leaders openly continued the practice for thirty years, arguing that
they obeyed a higher law than anything Congress could enact."
Thus the battle lines were drawn around the permissible sources of the law of
marriage. And antipolygamy did flow into legal channels, with digressions but
nonetheless steadily, even inexorably. In contrast to the struggle against slavery, the
other relic of barbarism, the war against polygamy was relatively bloodless, but it
played on many of the same themes, including Unionism, voluntarism, and the
right to marry. If Mormons had fundamentally misunderstood the nature and import of freedom, argued antipolygamists, their obligation to obey the rules of society nonetheless remained intact. Failure to appreciate the benefits of liberty did
not excuse license.
Only ineffective laws and law enforcement could explain why Mormons had for
decades violated explicit legal command with impunity. Toothless federal legislation, instead of acting like the "dynamite of law," had only sharpened resistance
canization" of Utah for Statehood (San Marino, 1971). On the shadow government that existed in Utah for most
of the territorial period, see Klaus J. Hansen, Questfor Empire: The Political Kingdom of Godand the Council
of Fifty in Mormon History (1967; Lincoln, 1974). On the ubiquity of plural marriage among the elite, see D.
Michael Quinn, The Mormon Hierarchy: On'gins of Power (Salt Lake City, 1994), 53-56, 115. On the Mormons'
invocation of slavery as a parallel social structure with parallel legal protection, see Davis Bitton, The Ritualization
of Mormon History and Other Essays (Urbana, 1994), 41-42.
lo Rep. William Barksdale (Democrat, Miss.), CongressionalGlobe, 36 Cong., 1 sess., April 14, 1860, p. 1541.
On the distinction between congressional power to define crime and its inability to define property, see Rep. James
Quarles (Whig, Tenn.), i b i d , April 5, 1860, p. 1541.
l 1 Brigham Young was the governor of Utah from the organization of the territory in 1851 until he was removed
in 1857. Two bibliographies of the extensive secondary works on polygamy are: Patricia Lyn Scott, "Mormon Polygamy: A Bibliography, 1977-1992," Journalof Mormon History, 19 (Spring 1993), 133-55; Davis Bitton, "Mormon
Polygamy: A Review Article," ibid., 4 (1977), 101-18. Kirk H. Porter, comp., NationalParty Platforms (New York,
1924), 48. On the Mormons' claim to higher legal authority, see T. W. Curtis, The Mormon Problem. The Nation's
Dilemma: New Data, New Method Involving hading Questions of the Day (New Haven, 1885), 21-29.
to national authority, exalting license over liberty. Antipolygamists left no doubt
about where the fault lay: "Think of it!" Kate Field thundered. "New York and
Utah under the same flag! We ought to be ashamed of ourselves. That is, those
of US who vote."l2
Woman Suffrage Means Woman Suffering
But there was the rub. Territorial Utah was among the most politically engaged of
American jurisdictions. Suffrage, as the historian Eric Foner pointed out recently,
was broadly understood in the Civil War era as the key to political identity, to inclusion within the ranks of freedom. Consent to government, as manifested
through the ballot, was among the most precious liberties of the American political
community, emblematic of a "collective national identity." Yet if evidence of consent was achieved through the vote, if popular power and political process were
truly the genius of American liberty, then the Mormon leaders could plausibly
argue that Utah had a more thoroughgoing structure of consent to their peculiar
domestic institution than anything their critics could claim. The vote was granted
to women in Utah by the Mormon-controlled territorial legislature in 1870. By the
mid-1880s, when Field attacked the "Mormon Monster," women in Utah had voted
for over a decade.l3
Antipolygamists could safely condemn woman suffrage in Utah (one catchy
slogan held that "woman suffrage in Utah means only woman suffering"), and by
implication woman suffrage everywhere, because by 1885 almost everyone agreed
that it was a failure. Many conservative and moderate Americans treated Utah as
a test case for woman suffrage. The Utah experiment was thus freighted from the
start with an impossible cultural burden. Women in Utah must prove to the rest
of the nation that their votes would be more thoughtfully cast than those of their
husbands. They must legislate their own freedom and moral redemption.'*
The idea of giving women in Utah the franchise emerged shortly after the Civil
War, as the failure of popular referenda at the state level and the gendered language
of the postwar constitutional amendments exposed and deepened the fissure
l2 For Field's statement, see Charles A. Dana, "Miss Field as a Model of Self-Possession and Enduring Interest,"
New York Sun, reprinted in Whiting, Kate Field, 445. Woman's Christian Temperance Union president Frances
Willard made the connection between women's lack of political power and the existence of polygamy explicit:
"Were women in the House of Representatives, the disgraceful record that must go down in history would not
be even thinkable." Frances E. Willard, "Introduction," in The Women of Mormonism, ed. Jennie Anderson
Froiseth (Detroit, 1882), xvi.
'3 Eric Foner, "From Slavery to Citizenship: Blacks and the Right to Vote," in Voting andthe Spin? ofAmerican
Democracy: Essays on the History of Voting and Voting Rights in Amenca, ed. Donald W. Rogers (Urbana, 1992),
55-67, esp. 62. On woman suffragists' understanding of the vote as evidence of consent, see Aileen S. Kraditor,
The Ideas of the Woman Suffrage Movement, 1890-1920 (1965; New York, 1981), 249-54.
Newman, "Woman Suffrage in Utah," 9; Irvine, report on "Mormon Monster," 16. Field's position on suffrage
changed over her lifetime, and perhaps even during her two-year antipolygamy campaign. From 1860 to 1890,
she refused to be identified as prosuffrage. The press occasionally criticized her for lecturing for profit, like her
male colleagues but unlike other women lecturers, who had causes they wished to promote. At the World's
Columbian Exposition in 1893, Field gave a short speech and identified herself for the first time as a suffragist.
Kate Field, ' I Talk,'' in The Congress of Women, ed. Mary Kavanaugh Oldham Eagle (Chicago, 1893), 77-79.
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December 1996
Opponents of woman suffrage for Utah accused Mormon polygamists of attempting to increase their own power by dictating how their wives voted. Frank Leslie i Illzlstrated Newspapel; October 5 , 1869. General Research Diuiszbn, The New Yard Public Library, Astor, Lenox and Tilden Foundations. between the liberal and moderate wings of the woman's movement. As the conflict
between suffragists heated up in the late 1860s, reformers tossed out the idea of
enfranchising the women of the territories as a relatively cost-free experiment with
the woman's vote. Suffrage for the enslaved women of at least one territory (and
possibly several more, given the expansion of Mormonism into Idaho, Nevada,
Wyoming, and Arizona), they argued, would parallel the course of Negro suffrage.' 5
' 5 See Ellen Carol DuBois, Feminirm andsuffrage: The Emergence of an Independent Women? Movement
in America, 1848-1869 (Ithaca. 1978), 162-202; Ellen Carol DuBois. "Outgrowing the Compact of the Fathers:
Equal Rights. Woman Suffrage. and the United States Constitution, 1820-1878," in The Constitution andAmerican Lz;fe, ed. David Thelen (Ithaca, 1987), 184-92; and Eleanor Flexner, Century ofStruggLe: The Womani right^
Movement in the Unitedstates (Cambridge. Mass., 1959), 142-55. It is not clear who first came up with the idea
of enfranchising the women of the territories. For various theories, see DuBois, Feminism and Suffrage, 170; Lola
Van Wagenen, "In Their Own Behalf: The Politicization of Mormon Women and the 1870 Franchise," Dialogue,
825
George Julian, Radical Republican, universal suffragist, and antipolygamist, introduced three bills in Congress in 1867 and 1868, two to enfranchise women in
all territories and one specifically to enfranchise them in Utah. Hamilton Willcox,
president of the Universal Suffrage Association, testified in Congress that the franchise for the women of Utah would be the demise of polygamy. The New York
Times echoed his sentiments, editorializing that the franchise for women would
most likely end polygamy and perhaps even Mormonism.16
There was little chance, however, that any bill providing for woman suffrage,
even in Utah, would pass in any national or state legislature- black male suffrage
had failed in local referenda, even in the North. Susan B. Anthony conceded that
most women did not want the vote as late as 1880; of those who did not oppose
the vote, most were apathetic; most men were opposed in varying degrees. Woman
suffrage was politically unrealistic in the decades after the Civil War."
But in most of the Rocky Mountain West, territorial status gave politics a unique
cast -every local action was taken with one eye on Washington. Dependent status
galled territorial inhabitants, especially once Indians had been taken care of at federal expense. In addition, the completion of the transcontinental railroad in 1869
made the Far West accessible to migrants and tourists and subject to greater national scrutiny and supervision. Territorial legislatures moved quickly to take control of their own destinies. Wyoming, in a ploy to attract settlers, granted woman
suffrage in 1869 by a bare majority of the legislators who showed up for the vote.18
Mormon leaders watched the completion of the railroad with trepidation.
Added to the threat of outsiders was a rebellion from within, a challenge by prominent young Mormon entrepreneurs to the church's micromanagement of the territorial economy. Brigham Young took several steps to combat the threatened contamination of Utah by outside ideas and capital. All loyal church members were
counseled to boycott non-Mormon businesses, the church set up a centralized economic steering committee, and last but not least, Mormons gave women the vote.
Utah's territorial delegate to Congress, William Hooper (a loyal Mormon), reported
that Young, when told of the bills for woman suffrage in Washington, immediately
"saw the point" and determined to give women the franchise at an opportune
24 (Winter 1991). 32; Thomas G. Alexander, "An Experiment in Progressive Legislation: The Granting of Woman
Suffrage in Utah in 1870." Utah Historical Quarterly, 38 (Winter 1970), 21-24; and Gary L. Bunker and Carol B.
Bunker, "Woman Suffrage, Popular Art. and Utah," i b i d . 59 (Winter 1991). 33-35. George Q. Cannon. Utah's
delegate to Congress from 1872 to 1882, later acknowledged that giving the franchise to women had not occurred
to Mormon leaders before it was introduced in Congress: New York Times, Jan. 15. 1874, p. 5.
l6 New York Times, Dec. 17, 1867, p. 4.
Susan B. Anthony's testimony is reprinted in "Arguments of the Woman-Suffrage Delegates before the Committee on the Judiciary. . . . ,'' U.S. Congress, Senate. Miscellaneous Documents, 47 Cong., 1 sess.. S. Doc. 74,
Jan. 23. 1 8 8 0 , - ~3L.34.
~.
ls For territorial attitudes toward federal officials, see Earl S. Pomeroy, The Pacific Slope: A History of Calrfornia,
Oregon, Washington, Idaho, Utah, andNevada (1956; Seattle, 1973), 69-74: andHoward R. ~amar,- be ~ b r ~ o u t h west, 1846-1912: A Territorial History (New Haven, 1986), 378-411. On woman suffrage in Wyoming, see T. A.
Larson, "Woman Suffrage in Western America." Utah Historical Quarterly, 38 (Spring 1970), 7-19; Beverly Beeton,
Women Vote in the West: The Wooman Suffrage Movement, 1869-1896 (New York, 1986), 3-49; Virginia Scharff,
"The Case for Domestic Feminism: Woman Suffrage in Wyoming," Annals of Wyoming, 56 (1984), 29-37; and
Los Angeles Daily Journal, June 17, 1985, p. 4.
826
December 1996
moment. Only a few months later, the dissidents fielded a rival candidate for mayor
of Salt Lake City. And in late 1869, Congress began debate on a comprehensive
antipolygamy bill that would have put real teeth in the powers of federal officials
to prosecute polygamists.' 9
1n the event, neither the local nor the national threat proved as dangerous as
some in Utah feared, but the dual prospect helped prompt church leaders to introduce the Female Suffrage Bill into the territorial legislature in early 1870. Young's
motives have been debated in the historical literature, as they were in local and
national newspapers at the time. Non-Mormons in Utah (and some historians)
argued that the Mormons desired only to ensure their own political domination
of the territory by "voting their wives," doubling their own constituency while the
largely male non-Mormon voting pool remained static. The Mormon leadership
(and at least one historian) claimed that Mormonism was fully consistent with
woman suffrage and woman's rights generally. As one proponent of Mormonism
put it, if consent was the basis for valid government, then the government of Utah
was unquestionably validated by the very citizens whose liberty was purportedly
undermined by that g o ~ e r n m e n t . ~ ~
This comment leads to a third motive for the enfranchisement of women: deflection of criticism from polygamy in Utah. Given the widespread correlation between
polygamy and slavery, on the one hand, and the claim (made repeatedly by
woman's rights activists) that the franchise was the most important of all rights
denied to women, on the other, giving polygamous wives a political voice denied
to monogamous women in the East was a handy way to call reformers' bluff. "Was
there ever a greater anomaly known in the history of society?" queried the Phrenological Journal'. "That the women of Utah, who have been considered representatives ofwomanhood in its degradation, should suddenly be found on the same platform with John Stuart Mill and his sisterhood, is truly a matter for astonishment."
The Female Suffrage Bill was passed unanimously and without significant debate,
an unprecedented event in the annals of woman suffrage. The statute itself was also
unusual, granting the vote to almost every female in the territory; suffrage was extended to all female citizens over twenty-one, and also to all the wives, widows,
or daughters of native-born or naturalized men. Suffragists in the East were ecstatic.
younghad won the approbation of many eastern suffragists, at least for the time
being. Susan Anthony and Elizabeth Cady Stanton made trips to Utah to congratu-
-
'9 On popular contemporary perceptions of the railroad's role in western settlement and Mormon strength
through immigration, see Strong, Our Country, 55-56, 80-81. On the defection of young entrepreneurs in Salt
Lake City, see Lamar, fir Southwest, 399-400; and Fanny Stenhouse, Tell It All: The Tyranny ofMormonism; ol;
An Englishwoman in Utah (1872; New York, 1971), 357-60. On challenges to Mormon political power in the territorial period, see Lyman, Political Deliverance, 14-16; and G. Homer Durham, "The Development of Political
Parties in Utah: The First Phase." Utah Humanities Review, 1 (Jan. 1947), 122-33. On the response of Mormon
leaders to challenges in the late 1860s, see Arrington. Great Basin Kingdom, 235-56; and Whitney, History of
Utah, 11, 276-94. S. R. Wells. "William H. Hooper, The Utah Delegate and Woman Suffrage Advocate," PhrenologicalJoumal, 51 (Nov. 1870), 330.
2o On the timine of the introduction of the Female Suffrage Bill, see Salt M e Tribune. Dec. 15. 1877. P. 2;
and Alan P.
The Pun2an Ethic and Woman Suffrage T ~ e wYork, 1967), 33-40. For the claim that
monism and consent were fully consonant, see Edward W. Tullidge, The Women ofMormondom (New York.
rimes:
or-
late the women of the territory and to discuss other reforms on the woman's rights
agenda, especially "voluntary motherhood" and equal legal rights.21
As antipolygamy women in Utah never tired of pointing out to them, however,
eastern suffragists did not understand the nature of Mormonism: For faithful
Mormon women, childbearing was not open to the rhetoric of consent and voluntarism that liberal suffragists applied to sexual as well as political relations. Children, as a plural wife put it not long after Stanton gave advice on how to limit
family size to an audience of Mormon women in Salt Lake City, were the stars in
a mother's crown, her glory in heaven and honor on this earth. Talk of voluntary
motherhood was not welcome; Stanton never returned to Utah, although her
National Woman Suffrage Association formally protested every attempt to revoke
woman suffrage there.22
Even more important was the Mormons' understanding of the franchise, the
peculiar relationship of Mormonism to democracy in the nineteenth century. Historians commonly refer to territorial Utah as a "theocracy"; a better term, one used
by a Mormon leader in the nineteenth century, is "theodemocracy." God spoke
(through revelation to the Mormon prophet), and the people had the right
(through the franchise) to consent to God's will or refuse, as they saw fit. Once the
will of God was clear, assent tended to be unanimous: the vote was taken only after
the issue had been decided as a matter of church policy. Given this top-down view
of politics, one antipolygamist argued, "Is it not hypocritical for Mormons to declare
their allegiance to the United States, or to assert that they think for themselves?"
So prevalent was the theory that Mormons' votes were compromised by their polygamous faith-that valid marriage was the foundation of political ability-that
some antipolygamists argued that no believing Mormon, even those who practiced
strict monogamy, should vote. The ballot cast by a faithful Mormon, the theory
went, was nothing more than the vote of an aut0maton.~3
One recent study concludes that Mormon women were instrumental in the church leadership's assessment
of the utility of woman suffrage in the defense of polygamy. Van Wagenen, "In Their Own Behalf,'' 36-38. The
quote is from Wells, "William H. Hooper," 328, 329. For discussion of the passage of the Female Suffrage Act,
see Alexander, "Experiment in Progressive Legislation," 25-26. See also Beverly Beeton and G. Thomas Edwards,
"Susan B. Anthony's Woman Suffrage Crusade in the American West,"]ournalofthe We~t,21 (April 1982), 5-15.
22 Helen Mar Kimball Whitney, Why We Practice Phral Marriage, By a "Mormon" Wife and Mother (Salt
Lake City, 1884), 11. On the intense pronatalism of Mormon theology and culture, see Kimball Young, Isn't One
Wife Enough? (New York, 1954), 103-19. According to Anthony, Elizabeth Cady Stanton threw the "bombshell
of woman's individual sovereignty" into the "polygamic camp." Revolution, July 27, 1871, p. 10, quoted in Lola
Van Wagenen, "Sister-Wives and Suffragists: Polygamy and the Politics of Woman Suffrage, 1870-1896" (Ph.D.
diss., New York University, 1994), 24. Stanton was not surprised that the "doors of the Tabernacle were closed
to our ministrations" after her initial visit. Theodore Stanton and Harriet Stanton Blatch, Elizabeth Cady Stanton
(2 vols., 1922; New York, 1969), I, 238.
23 For Smith's statement, see Journal History, July 12, 1865, quoted in Hansen, Questfor Enzpire, 40, 196n49.
See also Edward A. Warner, "Mormon Theodemocracy: Theocratic and Democratic Elements in Early Latter-day
Saint Ideology" (Ph.D. diss., University of Iowa, 1973), 315-92. On Mormon unanimity and condemnation of
political divisions, see Hansen, Quest for Empire, 121-46; and Lyman, Political Deliverance, 13. For the charge
of hypocrisy, see Irvine, report on "Mormon Monster," 23-24. The Cullom-Stuble bill, debated in Congress in
the late 1880s, would have disfranchised all residents of Utah and substituted a federally appointed commission
for the territorial legislature. Kate Field apparently endorsed this proposal in at least one of her lectures. Irvine,
report on "Mormon Monster," 31. An Idaho statute disfranchising all who could not swear that they did not advocate polygamy was upheld against a constitutional challenge in Davis v. Bea~on,133 U.S. 333 (1890). See Merle W.
Wells, Anti-Mormonism in Idaho, 1872-1892 (Provo, 1978).
828
December 1996
Exacerbating the Mormon proclivity toward unanimity was the absence of a truly
secret ballot. Until 1878, when adverse publicity prompted the territorial legislature to eliminate the "marked ballot" system, each ballot was numbered and the
number recorded in the registry next to the voter's name. Mormon authorities
claimed they reduced fraud by assuring that each voter cast a single ballot. Subsequent historical research has confirmed, however, that "casting a vote in opposition to approved candidates was severely frowned upon."24
The woman's vote followed the standard Mormon pattern, increasing the Mormon majority to more than 95 percent in territorial elections. Non-Mormons in
the territory cried foul as whatever remote chance they had to achieve local political
power evaporated with the woman's vote; their complaints were endorsed by antisuffragists, who charged that woman suffrage did not benefit women but only
strengthened Mormonism. Thus began a campaign that culminated in 1887 with
the Edmunds-Tucker Act and the repeal of suffrage for Utah's w0men.~5
The same Republicans who had supported enfranchisement as a federal mandate were discomfited by Mormon appropriation of the idea. Several newspapers
echoed their fears, arguing that women in Utah could not be trusted to vote against
their husbands. In full retreat from its former support for territorial woman suffrage,
the New York Times argued that "the downfall of polygamy is too important to
be imperiled by experiments in woman suffrage." Bills and resolutions calling for
disfranchisement, often styled as "purification" of elections in Utah, were introduced at almost every session.26
Woman's rights advocates at first argued that such measures would perpetuate,
rather than curb, polygamy. In 1873, the New York Woman Suffrage Society protested Republican senator Frederick Theodore Frelinghuysen's bill to disfranchise
the women of Utah, arguing that "the vote of the women will be found a powerful
aid in doing away with the horrible institution of polygamy." But by the mid-1870s,
l4 See Robert N. Baskin, Reminiscences of Early Utah (Salt Lake City, 1913), 73-82; and Ralph Lorento Jack,
"Woman Suffrage in Utah as an Issue in the Mormon and Non-Mormon Press of the Territory, 1870-1887" (M.A.
thesis, Brigham Young University, 1954), 25-32. On the reaction of Mormon authorities to dissenting votes, see
Hansen. Quest for Empire, 137-38; and Lyman. Political Deliverance, 13-14.
2' On Mormon voting patterns, see Stanley S. Ivins. "The Moses Thatcher Case." typescript, [1964?],p. 3 (Utah
State Historical Society, Salt Lake City). On political challenges to Mormon leadership, see Mark W. Cannon, "The
Mormon Issue in Congress, 1872-1882: Drawing on the Experience of Territorial Delegate George Q. Cannon"
(Ph.D. diss.. Harvard University, 1960); Richard D. Poll, "The Twin Relic: A Study of Mormon Polygamy and the
Campaign by the Government of the United States for Its Abolition, 1852-1890" (M.A. thesis. Texas Christian
University, 1939); and Whitney, History of Utah, 111, 130-34. For claims by non-Mormons that Mormons manipulated the vote, see, for example, an editorial in a Salt Lake City newspaper, which argued that woman suffrage
in the territory allowed "[wlomen, who have no other right than being the duplicate or triplicate, and consequently
illegal, wives of some man, attend the polls in numbers." The editor then appended a charge of fraud: "Wives are
allowed to vote by proxy for their absent husbands, and children for their mothers. While [sic]non-age or nonresidence, among our opponents, is no bar to the privilege." "Proposed Memorial to Congress for a Registration Act
for Utah." Salt M e T n h n e , Feb. 16, 1872, p. 1. At statehood in 1896, women in Utah were reenfranchised, after
lengthy and sometimes bitter debate at the constitutional convention. Beeton. Women Vote in the West, 82-103;
Bunker and Bunker, "Woman Suffrage, Popular Art, and Utah," 42-44; Jean B. White, "Woman's Place in the
Constitution: The Struggle for Equal Rights in Utah in 1895," Utah Historical Quarterly, 42 (Fall 1974). 344-69.
'6 New fir4 Time4 March 5 , 1869, p. 7. The resolution introduced in 1882 by Sen. John Tyler Morgan (Democrat, Ala.) calling for the investigation and revocation of female suffrage in Utah, is typical of such proposed legislation. U.S. Congress, Senate, Miscellaneous Documents, 47 Cong., 1 sess., S. Doc. 34, Jan. 11, 1882.
even ardent suffragists acknowledged that woman suffrage had not produced the
hoped-for results. Instead of demonstrating the benefits of woman suffrage for society, the vote of women in Utah played into the hands of those who opposed
suffrage as an attack on marriage. Tales of degraded wretches driven to the polls
by the wagonload catered to stereotypes, undermining respect for the dignity of
women as voters. Women in Utah had "no adequate political expression," conceded
proponents of woman suffrage, they were the mere "catspaw of the priesthood."
Their political participation, in other words, was vitiated a fortiori by a marital system that contradicted the most basic civil liberties.27
As the 1870s progressed, antipolygamist rhetoric shifted to an emphasis on various "classes" of women. One of the commonest themes was the foreign birth of
plural wives, recruited from the slums of Europe, "wholly ignorant of our language
or laws, or the significance of the franchise, with the odor of the emigrant ship still
upon their clothing." The plural wives of a prominent polygamous household, one
antipolygamist claimed, were all "Danes, and as far removed from our idea of
womanhood as the earth is removed from the sun. They were beasts of burden."
Articles on the hypocrisy of Mormon women began to appear; others attacked their
fanaticism. Always there was the charge of voter fraud, based in part on the absence
of meaningful age or property qualifications for women in Utah's suffrage statute
and in part on the charge that the women were forced to vote to sustain the unlawful power of Mormon men. The New York Times even accused Mormons of forging signatures on petitions sent from Utah to Washington in support of woman
suffrage.2s
Mormon rhetoric exacerbated the criticism. A widely publicized interview given
to a San Francisco newspaper by a Mormon bishop played on eastern fears:
The women of Utah vote, and they never desert the colors of the church; they
vote for the tried friends of the church. . . . In some great political crisis the two
present political parties will bid for our support. Utah will be admitted as a polygamous State, and the other Territories we have peacefully subjugated will be admitted also. We will then hold the balance of power, and will dictate to the country.
Easterners heard the threat and condemned woman suffrage in Utah. One promi27 The National Woman Suffrage Association, for example, attacked an attempt in the Senate in 1870 to "disfranchise the women of Utah, as a movement in aid of polygamy." Elizabeth Cady Stanton, Susan B. Anthony,
and Matilda Joslyn Gage, eds., Histoly of Woman Suffrage (6 vols., Rochester. 1881-1922), 11. 780 (resolution
adopted at annual meeting, May 1870). U.S. Congress, House, "Suffrage in Utah. Memorial of the New York
Woman Suffrage Society . . .," in Miscellaneous Documents, 42 Cong., 3 sess., H. Doc. 95, Feb. 17, 1873. Fanny
Stenhouse, an apostate Mormon, described the practice of Mormon men when faced with a contested election:
"I have often seen one solitary man driving into the city a whole wagon load of women of all ages and sizes. They
were going to the polls and their vote would be one. Many have voted two or three times. . . . It is easy to see
how the influence of the priesthood has been exerted and the women themselves have been made the instruments
for riveting still more firmly their own fetters." Newman, "Woman Suffrage in Utah,'' 4. See also Ross Evans Paulson, Women's Suffrage and Prohibition: A Comparative Study of Equality andsocial Control (Glenview, 1973),
90. The claim that women were the "catspaw of the priesthood" is from testimony before the Joint Special Committee on Woman Suffrage of the Massachusetts legislature, reported in Woman'sJournal, Jan. 29. 1876, p. 36.
Newman, "Woman Suffrage in Utah," 4; Irvine, report on "Mormon Monster," 10. For attacks on fanaticism,
see Froiseth, Women ofMormonism. For charges of fraud and coercion, see, for example. Salt Lake T n h n e , Dec.
30, 1873, p. 2; and New York Times, Jan. 15, 1876, p. 1.
December 1996
nent member of the National Woman Suffrage Association pronounced herself
"reconciled" to disfranchisement, due to the "anomalous condition of affairs" in
Utah. Even Susan Anthony, testifying in favor of a constitutional amendment on
woman suffrage, was reduced to arguing that "suffrage is as much of a success for
the Mormon women as for the men."29
By the time Anthony spoke, the image of Mormon women had come full circle.
From the likely sources of a new law for Utah based on monogamous liberty in the
prosuffrage vision of the 1870s, the vote of Mormon women had become a cautionary tale, the countertrope to suffragists' claims that the woman's vote would cleanse
and dignify politics. Mormon women were refashioned, condemned as at best no
better than the men, unwitting dupes in their own enslavement, at worst zealots
willing to abet persistent, recalcitrant lawbreaking. The fact that Mormon women
were active in their own defense was also turned against them. As Kate Field put it:
Mormon women hold mass-meetingsin Salt Lake City that are engineered by the
church and assert that they are perfectly satisfied with their condition. Before
the abolition of slavery the world was assured that negroes were happy in their
chains, and individual slaves may have said as much.30
Temperance activists lent considerable clout to the growing clamor against
suffrage for Mormon women. In 1877 Mary Livermore, suffragist, temperance activist, and dedicated antipolygamist, argued at a New England Woman Suffrage Association convention, for example, that Mormon women's votes were dictated by their
husbands. In 1884, Woman's Christian Temperance Union activist Angelina French
Newman submitted a petition that had been circulated among women attending
Methodist home missionary society meetings. The petition, which called for the
revocation of woman suffrage in Utah, received an astronomical 250,000 signatures.31
The problem was exacerbated in 1880, when antipolygamy women in Utah
began publishing the Anti-Polygamy Standard, a monthly newspaper dedicated
to "every happy wife and mother" and asking for "sympathy, prayers and efforts
to free her sisters from this degrading bondage." The paper, which took its name
from the Anti-Slavery Standardof the Civil War era, took an early editorial position
against woman suffrage for the territory, proclaiming that "moral and mental lib29 Newman. "Woman Suffrage in Utah," 5. The suffragist's statement, attributed to Mrs. Lillie Devereux Blake,
vice president for New York of the National Woman Suffrage Association, is in Salt &he T n h n e , Aug. 11, 1888.
p. 2. Anthony's testimony was paraphrased and reported in U.S. Congress. Senate, Senate Documents, S. Rep.
70, 49 Cong., 1 sess., Feb. 2, 1886, p. 4.
a0 For Field's statement, see Chicago T n h n e , June 6. 1886, p. 15. So deep was the abhorrence of polygamy
that the perceived connection between the suffrage and plural marriage convinced some prosuffrage women to
alter their stance. A prime example is Jennie Anderson Froiseth, who refused to join a woman suffrage organization
formed by both monogamist and polygamist Mormon women in 1889. Froiseth declared that she opposed woman
suffrage for the territory, because of "the anomalous condition of affairs here," adding that she would not work
with women who believed in polygamy. Salt Lake Daily Tbbune, Jan. 11, 1889, p. 2.
3' For a report from the meeting of the New England Woman Suffrage Association, see WomaniJournal, June
2, 1877, pp. 172-73, 176, cited in Van Wagenen, "Sister-Wives and Suffragists." 189. Mary A. Livermore also endorsed the work of Ann Eliza Young, writing a laudatory introduction to Young's Wife No. 19, 9-10. See also
Woman? Journal, March 29, 1879, p. 97. Newman, "Woman Suffrage in Utah."
831
erty should take precedence [over] political enfranchisement." In Utah the franchise had only tightened women's bonds, "increas[ing] the spread of polygamy and
the consequent degradation of woman, to make them, if possible, greater slaves
than before, and to enhance the power of the Mormon priesthood." There was a
price to be paid for such political opportunism, not only by women in Utah, but
by suffragists everywhere who defended the franchise. "We venture to assert,"
charged the Standard, "that the suffrage movement has received a blow from which
it will not recover for years, in virtually recognizing Mormon polygamy."3~
Suffrage organizations felt the heat. Even when formally protesting the antisuffrage clause of the Edmunds-Tucker Act, suffragists moved on quickly to harsh
condemnations of polygamy and complementary encomiums to monogamy as the
source of woman's equality. The prosuffrage Woman's Journal' echoed the sentiment of much of the country when it labeled the franchise in Utah "only a semblance and sham of freedom among the Mormons." The support of suffrage organizations gone, woman suffrage in Utah became an embarrassment.33
Moderate Republicans led the redemption campaign. A few prosuffrage Republicans argued against sacrificing principle to expediency. And a few southern Democrats, all of whom opposed woman suffrage as a matter of federal policy, nonetheless argued that suffrage was a local matter (a question of states' rights) and should
be left to states and territories to deal with as they saw fit. But the overwhelming
sentiment was in favor of revocation. By January 1886, when the Senate debated
the Edmunds-Tucker Act, Vermont Republican George Edmunds had translated
the franchise into a form of bondage, from which Mormon women, if their true
voices could be heard, would beg to be freed. His bill, Edmunds said, was designed
"to relieve the Mormon women of Utah from the slavehood of being obliged to
exercise a political function which is to keep her in a state of degradation."34
Mormon women, in fact, were indicted in part for their failure to live up to the
prediction of antisuffragists that woman suffrage would undermine marriage by
The dedicatory statement, written by Harriet Beecher Stowe, was carried at the top of every issue. For editorial
opposition to woman suffrage in Utah, see, for example, "Polygamy and Woman Suffrage," Anti-Polygamy Standard (June 1880), 20.
33 Van Wagenen, "Sister-Wives and Suffragists," 372-80. See also "Eighteenth Annual Washington Convention
of the National Woman Suffrage Association," Woman i T n h n e (March 1886), 2. Mormons condemned suffragists
for their refusal to allow Mormon women to attend their meetings or publish defenses of polygamy in suffrage
journals. See Curtis, Mormon Problem, 33-36; and Woman's Jourflal, June 21, 1879, p. 196. For the assertion
that the woman's vote in Utah was a sham, see i b i d , May 24, 1884, p. 168.
34 The objections of Thomas Reed (Republican, Me.) were typically perfunctory. In debate in the House on
the proposed bill, he declared that, while he saw "no reason for incorporating [disenfranchisement] into the bill,"
nonetheless "the advantage of [the proposed legislation as a whole] under the circumstances constrains my vote."
Congressional Record, 49 Cong., 2 sess., Jan. 12, 1887, p. 592. Sen. George Hoar (Republican, Mass.), however,
voted against the entire bill, based on his opposition to the "abolition of the right of suffrage by women as not
merely unjustifiable but as tyrannical." I b i d , Feb. 18, 1887, p. 1904. Wilkinson Call (Democrat, Fla.) pointed
out with no small satisfaction the fact that "Twenty Senators voted here the other day, who will vote for this bill,
to submit an amendment of the Constitution to the people of the United States as to whether there should be
discrimination against women in reference to their right to vote." Ibid , p. 1903. "Mrs. Pavy Defends Mrs. Newman's
Advocacy of the Disfranchisement of the Women of Utah," Woman's Tn'bune (July 1886), 2. For Edmunds's speech,
see Congressional Record, 49 Cong., 1 sess., Jan. 5 , 1887, p. 405.
832
December 1996
introducing political discord into a relationship founded on perfect identity of
interests. And contrary to the prediction of suffragists that women in Utah would
vote their own liberation by opposing Mormon men, women in territorial Utah
voted along traditional church lines. The woman's vote in Utah thus effectively
countered suffragists' claim that women's votes would purify American politics, instead reinforcing a web of theories painstakingly woven together by antipolygamists
over the previous three decades. The nineteenth century's most important test of
the woman's franchise was a victory for defenders of a politics based on marriage
in which consent was both highly valued and tightly confined. The role of consent
in American political theory in the mid-nineteenth century, of course, was highly
contested-deeply implicated in the Civil War, in Unionism, in the very concept
of national authority.
Consent, Contract, and Union
Among the most persistent and most effective of the charges leveled against Mormons was the claim that Utah's peculiar domestic institution, like the South's, was
evidence of disloyalty to the national government. Mormonism, charged Kate
Field, "is death to patriotism." Mormons were widely believed to pledge their first
loyalty to the church. "'We must obey as mules and horses obey,'" she quoted one
Mormon as saying, even unto "treason." Unquestioning obedience supposedly
infused "the polygs," as their opponents called them, with dictatorial powers. With
such loyalties, "is it not hypocritical for Mormons to declare their allegiance to the
United States?" In reality, antipolygamistsclaimed, Mormons were "nullifiers," antirepublican,
"rebellious."35
The connections of antipolygamy to antislavery and pro-Unionism were various,
sometimes even contrapuntal. But antipolygamy was deeply tinged by the ideology
of abolitionism. One of the most powerful themes of antislavery thought, for example, was that slaves were denied personal liberty because they were denied the
right to marry, as well as the right to sell their labor.36
Marriage and wage labor- these were the essential private rights that abolitionists subsumed under the "freedom of contract" label. In the nineteenth century,
the law of master and servant (employment law) and the law of husband and wife
(marriage law) were the two primary subsets of the law of "domestic relations," a
far broader concept then than now. These were the voluntary legal relations denied
slaves. Antipolygamists argued that the legal restrictions of slavery were replicated
for women in Utah. Like slaves, Mormon women were denied the most important
legal privileges, charged antipolygamists; the tyranny of Mormon men undermined
their ability to contract valid marriages. Thus, the antipolygamists argued, began
3, Irvine, report on "Mormon Monster," 18-20, 32, 33. On Field's Unionism, see W. J. McGee, "Memorial of
Kate Field," Records of the Columbia Histotical Society, 1 (March 1897), 173-74; and Moss, "Kate Field," 157.
$6 Eric Foner, "The Meaning of Freedom in the Age of Emancipation,"Journal of American Histoy, 81 (Sept.
1994), 448-49, 455-56; Robert J. Steinfeld, The Invention of Free Laboc The Employment Relation in English
and Amencan Law and Culture, 13j0-1870 (Chapel Hill, 1991), 156-63, 185-87.
833
a downward spiral of exploitation and abuse that belied the theory that polygamy
was truly voluntary.37
The claim that polygamy was by its very structure nonconsensual resonated
deeply in the post-Civil War era. Yet the focus on patriotism and tyranny also raised
issues that were the subject of intense debate. Antipolygamists, through long years
of practice, acquired considerable deftness in dealing with such potentially explosive concepts. To appreciate their adeptness, a sense of the breadth and depth of
the contractarian proclivities of their intellectual climate is essential.
Legal historians often call the nineteenth century the "age of contract," when
consent (to marriage, to employment, to government) governed the creation of relationships of authority. As Henry Sumner Maine put it in a book influential throughout the last four decades of the century (in a chapter on slavery, the condition of
women, parental powers, and "the disintegration of the family"), "the movement
of the progressive societies has hitherto been a movementj+om Statlls to Co,ntract."
Human society, in this view, progressed over time toward greater respect for individuality through the expansion of Contract-a word Maine always capitalized.38
Maine had his critics, then as now. Nor was his understanding of "contract" any
more precise than the "Contract with America" that was the darling of Republican
politicians in 1994. But Maine's formula still roughly approximates our sense of the
evolution of individualism, the gradual recognition of the legal personhood of
wives, employees, citizens. Contract theory broadly conceived profoundly
influenced antislavery; free-labor ideology equated liberty not only with ideals of
consent-based employment but also with a broader voluntarism, including geographic and social mobility, equal opportunity, and economic independence.
Consent, imagined through a series of more or less theoretical contracts (the "social contract," the marital contract, the employment contract), was so closely identified at midcentury with freedom and civic responsibility that lack of consent
proved the lack of freedom. The "will theory" of contract, the notion that there
must be theoretical, if not actual, meeting of the minds to form an enforceable
37 To give a well-known example of the perceived importance of marriage to freedom, Harriet Beecher Stowe's
Uncle Tom? Cabin is in many senses an allegory of the harm to humans caused by the failure to recognize freedom
to marry, to have one's sexual relations surrounded by legal rules and protections. See also Amy Dru Stanley, "Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation," Journal of American History, 75
(Sept. 1988), 471-94; Nancy F. Cott, "Giving Character to Our Whole Civil Polity: Marriage and the Public Order
in the Late Nineteenth Century," in US. History as Women? History: New Feminist Essays, ed. Linda K . Kerber,
Alice Kessler-Harris, and Kathryn Kish Sklar (Chapel Hill, 1995), 110-12; and Hendrik A. Hartog, 'Abigail
Bailey's Coverture: Law in a Married Woman's Consciousness," in Law in Everyday Life, ed. Austin Sarat and
Thomas R. Kearns (Ann Arbor, 1993), 63-108, 102n51. On the overlap between employment law, including the
law of slavery, and the law of husband and wife, see Tornlins, "Subordination, Authority, Law," 69-71; Peter W.
Bardaglio, Reconstructing the Household: Families, Sex, & the Law in the Nineteenth-Century South (Chapel
Hill, 1995), xi-xiv; and Edwards, "'The Marriage Covenant is the Foundation of All Our Rights,'" 85n5. See also
James Schouler, A Treatise on the Law ofthe Domestic Relations: Embracing Husbandand Wife, Parent and Child
Gwrdian and Ward: Infancy, andMaster andServant (Boston, 1870), 3-21. For the claim that all women in Utah
lived in "perpetual agony," whether or not their husbands had taken plural wives, see Irvine, report on "Mormon
Monster," 13-14.
38 Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to
Modern Ideas (1884; Gloucester, Mass., 1970), 165. See also E. L. Godkin, "The Labor Crisis," North Ametican
Review, 105 (July 1867), 183; and Victoria Woodhull, "The Principles of Social Freedom," Woodhull & Clapink
Wee&, Aug. 16, 1873, quoted in Stanley, "Conjugal Bonds and Wage Labor," 474n4.
December 1996
agreement, was peculiarly a creature of the nineteenth century. It implied that contracts were based on positive choice-that a contract was the child of consent.39
Ideas about the importance of consent were also vital to the development of antipolygamy. In the 1850s and 1860s, novelists, newspaper editors, clerics, and congressmen all argued that women did not consent to polygamous marriage-that
such a relationship was antithetical to their very nature. A woman naturally gave
her heart to one man for life, according to these early critics of polygamy; his embrace of other women was a fundamental betrayal of that gift. Women were duped,
hypnotized, or brutalized into polygamy, claimed antipolygamists. Never were they
voluntary participants in their own degradation. The betrayal of women's trust and
affection was so painful, they argued, that many died of the wound; others tried
to escape the horror by flight.40
This conviction of the coercive nature of polygamy had staying power despite
the vocal defense of their voluntary participation in the system by Mormon men
and women. In 1882, in a story entitled "Woman's Consent," Jennie Anderson
Froiseth made essentially the same charge, arguing that "women have been, and
still are, coerced into giving consent for their husbands to take other women" by
church leaders and by the utter absence of legal protection for wives under Utah
law.41
The legal picture of contract and consent was more complicated. Consent, although the trigger for valid relationships of authority, was not necessary to sustain
a relationship once it had been formed. The emphasis on consent (voluntarism in
the entry into the relationship) should not be confused with voluntarism within
the relationship. Marriage, a domestic relation triggered by consent, was neither
negotiated as to terms nor terminable at will, argued conservative theorists of marriage. The essence of marriage, in this view, was its permanence, its irrevocability
once consensually celebrated.42
Many antipolygamists picked up on the argument for permanence, as critical of
the notion that one could revoke consent to an ongoing marriage as of the fraudu39 See J. Willard Hurst, Law andthe Conditions of Freedom (Madison, 1955), 3-18; Lawrence M. Friedman,
ContractLaw in America: A SoczalandE~onomi~
Case Study (Madison, 1965), 17-26, 184-98; Morton J. Horwitz,
The Transformation of American Law, 1790-1860 (Cambridge, Mass., 1977), 160-210; Michael Grossberg, Gouerning the Hearth: Law and Family in Nineteenth-Century America (Chapel Hill, 1985), 18-21; and Amy Dru
Stanley, "Contract Rights in the Age of Emancipation: Wage Labor and Marriage after the Civil War" (Ph.D. diss.,
Yale University, 1990).
40 On the conflicted role of consent theory in the nineteenth century, see Rodgers, Contested Zhths, 92-101,
122-43. On escape or death as the choice for plural wives, see, for example, Maria Ward [pseud.], Female Life
Among the Mormons (New York, 1855), 172; Morrill, "Polygamy and its License," 13; and Sarah Barringer Gordon,
"'Our National Hearthstone': Anti-Polygamy Fiction and the Sentimental Campaign against Moral Diversity in
Antebellum America," W e Journal of Law and the Humanities, 8 (Summer 1996), 317-23.
4 1 "Woman's Consent," in Women of Mormonism, ed. Froiseth, 50, 54. See also Irvine, report on "Mormon
Monster," 5-9.
4 2 Consent to marriage should not be construed as implying consent in any full-bodied sense of the term.
Definitions of husband and wife were essentially "prefabricated," rather than created by the parties to a marriage.
Tomlins, "subordination, Authority, Law," 69-71. Marital partners' ability to enforce agreements that departed
from a prepackaged marriage contract may have constricted in the first half of the nineteenth century, rather than
expanded. Linda K. Kerber, "The Paradox of Women's Citizenship in the Early Republic: The Case of Martin v.
Massachusetts, 1805," American Histon'cal Review, 97 (April 1992), 349-78; Cott, "Giving Character to Our
Whole Civil Polity," 113-16, 119-21.
835
Antipolygamist authors often portrayed polygamy as involuntary. In "Brooming the Bishop," Sister Jones reportedly took up her broom and chased an offending Mormon bishop through the streets of Salt Lake City, crying, "I'll teach you to come into an honest woman's house and advise her husband to take another wife." Reprinted from Jennie Anderson Froiseth, ed., The Women o f Mormonism; oq The Story of Polygamy A s Told by the Victims Themselves. Princeton University Libraries. lent procurement of consent in the first place. They found grist for their mill in the
dissolution of plural marriages as well as in the creation of such illicit unions. Thus
Justin Morrill could follow his condemnation of polygamy as involuntary by citing,
with equal outrage, a quotation from a sermon delivered by Brigham Young in 1856:
My wives have got to do one of two things- either round up their shoulders and
endure the afflictions of this world and live their religion, or they may leave; for
I will not have them about me. I will go into heaven alone, rather than have
scratching and fighting around me. I will set all at liberty. What! first wife too?
Yes, I will liberate you all.
The thought that Brigham Young contemplated "liberating" his wives-that is,
divorcing them-for failing to endure their misery silently was as shocking to
Morrill's listeners as the existence of polygamy. Shocking, but not surprising. The
Mormon system, this "Mohammedan barbarism revolting to the civilized world,"
with its forced entry (polygamy)and lax exit (divorce)appeared as a coherent whole,
as two sides of the same corrupt coin, devaluing consent where it was most essential
to liberty, while allowing it to rule where it served only licentiousness. The one was
as bad as the other; both were intolerable in a republic dedicated to liberty.43
43 Morrill, "Polygamy and its License," 10, 13. Southern Democrats, opponents of Republican antipolygamy
legislation both before and after the Civil War, also argued that "consecutive polygamy" was practiced by more
December 1996
The connection between prohibition of polygamy and stringent divorce laws was
widely accepted. One antipolygamist clergyman, arguing that divorce and polygamy came from the same "allegorical lake," asked rhetorically "'What made Mormon polygamypossibl'e, in this country?' The tersest, and truest answer to this inquiry is, 'the unchastity that makes divorces easy, and popular."' Antidivorce
activists called divorce "the polygamic principle" or "polygamy on the instalment
plan." Whatever treated marriage as permeable, temporary, vulnerable to whim
and caprice, they argued, was cut from the same cloth.44
What, one might ask, had happened to the principle of consent? Hadn't the
Mormons got at least half the equation right, in allowing miserable marriages to
be dissolved at the will of the parties? In most contracts, one could buy out of the
agreement. The marital contract described by antidivorce theorists, however, was
impossible to breach without committing a crime (adultery or, in some proposals,
extraordinary domestic violence). Wasn't it coercion to require spouses to remain
together in an unhappy marriage?45
This is where "liberty" and "consent," according to antipolygamists, should be
distinguished from license. Liberty to choose did not imply license to make all
choices. Freedom of contract contained the power to participate in domestic relations, not to restructure them at will. The marriage contract, in other words, was
drafted by the state and triggered by the consent of the parties, not constructed
by their idiosyncracies. Thus, like other political structures in a democracy, marriage
was a creation of the exercise of the sovereignty that ultimately rested in the whole
people, rather than in individual husbands and wives. Exit, unlike entrance, was
a matter for which the will of the spouses was necessary but not sufficient.46
The apparent contradiction between consent as the basis for a valid decision to
people in New England than simultaneous polygamy by Mormons, and that New Englanders would do better
to cleanse their own immoral jurisdictions than to meddle in the affairs of Utah, as they had in the South. Joseph E.
Brown, Polygamy in Utah and New England Contrasted Speech of Hon. Joseph E. Brown, of Georgia, Delivered
in the Senate of the United States, Tues., May 27, 1884 (Washington, 1884), 4, 7-9, 22-25, 30-32.
44 Ballard S. Dunn, The Twin Monsters; and How National Legislation May He& to Solve the Mormon Problem, and Restore to Society, Somewhat of the Sacramental Character of the Rite of Holy Matn'mony (New York,
1884), 2; E. P. W. Packard, Modern Persecution, or Married Women? Liabilities, as Demonstrated by the Actions
of the Illinois Legislature (2 vols., New York, 1873), 11, 396, quoted in Hendrik Hartog, "Mrs. Packard on Dependency," W eJ o u r n a l o f h a n d t h e Humanities, 1 (Dec. 1988), 951-153;Cardinal Gibbons, "Is Divorce Wrong?,"
No,& American Review, 149 (Nov. 1889), 520. The "instalment plan" language is attributed to "Father Yorke,
of San Francisco," and quoted in George Elliott Howard, A History ofMatrimonial Institutions: Chiefly in England
and the United States. . . . (3 vols., Chicago, 1904), 111, 250.
4 5 O n occasion, a minority of prodivorce commentators advocated treating marriage like a private contract.
See Howard, History of Matrimonial Institutions, 111, 251nn1, 2; Elizabeth Cady Stanton, 'Address on Marriage
and Divorce," in A History of the National Woman? Rights Movement, comp. Paulina Wright Davis (New York,
1871), 59-83. Even those who favored liberal divorce laws tended to shy away from the privatization of divorce
that contract doctrine would dictate, relying instead on "careful state regulation." Matrimonial Institutions, 111,
251. See also Amy Dru Stanley, "Beggars Can't Be Choosers: Compulsion and Contract in Postbellum America,"
JournalofAmencan Hirtory, 78 (March 1992), 1265-93; and Lea S. Vandervelde, "The Gendered Origins of the
Lumlej Doctrine: Binding Men's Consciousness and Women's Fidelity," Yale Law Journal, 101 (Jan. 1992), 775-83.
46 O n legal regulation of marriage in the nineteenth century, see Grossberg, Governing the Hearth, 17-30,
64-102. O n antipolygamists' invocation of the sovereignty of the people (collectively in a republic, rather than
individually as spouses) as the legitimate source of authority over marriage, see Newman, "Woman Suffrage in
Utah," 2.
837
marry and coercive maintenance of existing marriages did not escape unnoticed.
After the Civil War, battle was joined in earnest between those who argued that
consent was irrelevant to an ongoing union and those, especially woman suffragists,
who argued that marriage should be understood as nothing more and nothing less
than a contract. Antidivorce theorists and their antipolygamy allies were crystal
clear on this point. Notions of contract and consent, they said again and again,
were inapplicable to marriage except where they were vital- they were the only
valid means to a binding union.
Judge Noah Davis of New York, in an 1884 essay, gave the usual prelude on freedom of contract: "[The State] should require nothing but the one essential element; and that is, the consent to the matrimonial contract of parties capable in
law of making it." In the next breath, Davis explained that to end a valid marriage
the consent of the parties was not enough. "They have no power or right to annul
[the contract] without the consent of the State." Furthermore, the state had a vital
interest in ongoing marriage, in the "life-unity of one man and one woman," contrary to the spurious claims of the individualism advocated by proponents of easy
divorce. That individualism, charged Davis, "is the culminating thought of the
harem. It has been the curse and degradation of woman, making her the slave and
man the master, a creature for the shambles, bought and sold at the price of lust."
Divorce and polygamy, so the theory went, were the twisted strands of a dangerous
rope, already beginning to strangle society through the destruction of marriage.
The "price of lust," as Davis put it, was the stamp of contractualism where it was
least appropriate, that is, the treatment of sexual relations as if they were properly
subject to negotiation, exchange, sale. Polygamy bore a strong family resemblance,
in this view, to prostitution. Both were tantamount to slavery, monogamous marriage, by contrast, to liberty. Consent was therefore as ineffective in translating
licentious agreements into valid contracts as its revocation was in dissolving consensually formed marital (or political) unions.47
The liberal wing of the woman's rights movement was not convinced. Elizabeth
Cady Stanton inveighed against "marriage as a compulsory bond enforced by law
and rendered perpetual by that means," charging that all forms of coercion replicated slavery. Force was by definition incompatible with democracy, she argued, be
it in government of the nation or of the family. Contract was both a means of describing voluntary entry into marriage and, in the liberal woman's rights rendition,
a formula for sundering an unsatisfactory union. Stanton made the connections between marriage and slavery, divorce and freedom explicit in a letter to the New Yorh
Tn2une editor Horace Greeley, whose antidivorce and antisuffrage views galled her.
We assert that man can not hold property in man, and reject the whole code of
laws that conflicts with the self-evident truth of that assertion. [Yet in marriage
47 Noah Davis, "Marriage and Divorce," North American Review, 139 (July 1884), 31, 34. O n connections between contractualism and prostitution in early-twentieth-century fiction, see Walter Benn Michaels, "The Contracted Heart," New Literary History, 21 (Spring 1990), 506-8.
December 1996
a woman is denied] her rights to person, children, property, wages, life, liberty
and the pursuit of happiness.48
Most suffragists avoided the questions raised by Stanton, for both strategic and
philosophical reasons. Especially after the Civil War, the political price of the "antimarriage" label, always substantial, became virtually unbearable. Even Susan
Anthony and Belva Lockwood, outspoken leaders of the most liberal wing of the
movement, became, as a prominent Mormon put it, "very defensive about their
loyalty to monogamy" and cautious about supporting divorce.49
Where was consent theory, the evolution "from Status to Contract" in all this
backpedaling? Did suffragists simply cave in to conservative theorists who were
themselves blind or duplicitous in their refusal to extend the benefits of contractualism to marriage? That may be part of the answer; a full-bodied importation of
the rules of contract might have had significant implications for women. "Consent"
in the work of the classic theorists of social contract was always highly gendered.
The critique of fatherly authority in the writings of John Locke, Thomas Hobbes,
and JeanzJacques Rousseau was based from its inception on a fundamental distinction between the consent of men (to their government) and of women (to their
husbands), even as both were labeled "individual" choices. * O
Yet it is also worth exploring the contours of consent in the era of the Civil War,
a war fought to preserve a union created by the consent of the parties from dissolution when one party sought to withdraw, arguing that it no longer consented to
the marriage. Unionists argued, and fought for, the proposition that a constitution,
like a marriage, was more than a compact formed with the possibility of dissolution
in view. As President James Buchanan put it bluntly in his final address to Congress
in 1860, the Union was not "a mere voluntary association of States, to be dissolved
at pleasure by any one of the contracting parties."51
Abraham Lincoln explained the problem posed by slavery in the southern states
in 1858 in a metaphor as applicable to marriage as to government: "a house divided
against itself cannot stand." The South, by attempting to divide what was by nature
indivisible, would destroy the whole. Like the marital union, the "house" that became such a powerful metaphor for political union had been built by the voluntary
48 The quotes from Stanton are reprinted in Ellen Carol DuBois, "On Labor and Free Love: Two Unpublished
Speeches of Elizabeth Cady Stanton," Signs, 1 (Autumn 1975), 265; and in Stanton, Anthony, and Gage, eds.,
History of Woman Sz&age, I, 739-40. For the antisuffragist response, see Catharine E. Beecher, Woman Suffrage
and Woman's Profession (Hartford, 1871), 57-58. On Stanton's views on contract, divorce, and coercion, see
Elizabeth B. Clark, "Matrimonial Bonds: Slavery and Divorce in Nineteenth-Century America," Law and History
Review, 8 (Spring 1990), 34-38. For an exploration of suffragists' arguments about the contradictions between
notions of government based on force, on the one hand, and democracy, on the other, see Kraditor, Ideas of the
Woman Suffrage Movement, 249-57.
49 George Q. Cannon to Mormon president John Taylor, June 14, 1882, First Presidency File, John Taylor Presidential Papers (Church of Latter-day Saints Archives), quoted in Van Wagenen, "Sister-Wives and Suffragists,"
342. See also Joan Iversen, "The Mormon-Suffrage Relationship: Personal and Political Quandaries," Frontiers,
11 (nos. 2-3, 1990), 14.
ro Carole Pateman, "Women and Consent," Political Theory, 8 (May 1980), 149-68. See also Carole Pateman,
The Sexual Contract (Stanford, 1988). For a critique of Pateman, see Lynn Hunt, The Family Romance ofthe French
Revolution (Berkeley, 1992), 201-4. See also Don Herzog, Happy Slaves: A Cn'tique of Consent Theory (Chicago,
1989); and Linda Hirshman, "Material Girls: A Game Theoretic Analysis of Social Contract Theory" (Ph.D. diss.,
University of Chicago, 1994).
fl McPherson, Battle Cty of Freedom, 246.
839
association of citizens, whose consent transformed the nature of their relationship.
There was no going back again, according to Unionists, even if the initial consent
had evaporated-the "bonds of affection," as they referred to the political ties
among the states, could not be sundered. The war was in that sense a rejection of
the claim that revocation of consent had the same effect as absence of consent at
the outset. Consent was vital to political union, marital union, and even labor
union, but that did not imply that all authority, all relations of subordination, were
invalid.52
An act of will-of love, of trust, at the very least of hope-was isolated in the
nineteenth century as traditional hierarchies collapsed or were reconfigured as consensually based. As the emotional content of consent to relationships of authority
bore greater weight as the signifier of a valid union, the responsibility for choosing
well was correspondingly thrown into stark relief. Defenders of the political and
marital household proposed to solve the problem of personal unhappiness by inculcating the duty to make a good bargain, rather than giving the discontented
a chance to get out of a bad one. They dismissed the erosion of emotional commitment with a callousness that betrays the strain of harmonizing sentiment and
stability. Catharine Beecher put the whole problem succinctly when she charged
that unhappy wives and employees would do better to choose husbands and
masters more carefully, for "no woman is forced to obey any husband but the one
she chooses for herself. . . . So every . . . artisan or laborer . . . can choose the
employer to whom he is to' accord obedienceY53
Choice of a husband or a wife became a national metaphor of reunion after the
war. The constitutional crisis of the 1860s and 1870s-the qfestion of how to explain and codify the realignment of power relations between states and the national
government-was dramatized in romances. In such love stories men and women
bridged political divisions, uniting and by their marriages creating cross-sectional
loyalties anew in the postwar configuration of federalism. Reconciliation as submission, coded as gender roles, was acted out as northern men won southern
women, or even (rarely) vice versa. In debates over the Reconstruction amendments
in Congress, the "national household" became a political trope, shading into demands for wifely subordination by the southern states.14
'2 Address of Abraham Lincoln before the Illinois State Republican Convention, June 16, 18S8. JZincoln's
House Divided Speech" (Springfield, 1958), 3 . See also Roy C. Basler, ed., The Collected Works of Abraham Lincoln ( 9 vols., New Brunswick, 1953), IV, 262-71. On the controversy surrounding the proposition that slavery was
the cause of the Civil War, see Don Fehrenbacher, "The New Political History and the Coming of the Civil War,"
PacifiG Historical Review, 54 (May 1985), 117-42.
'3 Catharine E . Beecher, A Treatise on Domestic Economy (Boston, 1842), 26, quoted in Jeanne Boydston,
Home and Work: Housework, Wages, and the Ideology of Labor in the Early Republic (New York, 1990), 161.
On the emotional content of the decision to marry in the nineteenth century, see Karen Lystra, Searching the
Heart: Women, Men, and Romantic Love in Nineteenth-Century America (New York, 1989), 157-81. See also
Shirley Samuels, ed., The Culture of Sentiment: Race, Gendel; andSentimentality in Nineteenth-Century America (New York, 1992); Ann Douglas, The Feminization ofAmerican Culture (New York, 1977); and Jane P. Tompkins, Sensational Designs:, The Cultural Work of American Fiction, 1780-1860 (New York, 1985).
'*On magazine stories depicting cross-sectional love and marriage in the Civil War era, see Kathleen Diffley,
Where My Heart Is Turning Ever: Civil War Stones and Constitutional Reform, 1861-1876 (Athens, Ga., 1992),
54-79. For a delightfully ambiguous reversal of the classic love story between northern man and southern woman
after the Civil War, see Henry James, The Bostonians (New York, 1886). Thanks to Hendrik Hartog for this cite.
840
December 1996
The language of unity resonates with the traditional common-law treatment of
marriage known as coverture, the legal union of husband and wife through marriage in the person of the husband. The presumption that a separate political identity (for women or for regions) would undermine the unity, the necessary submersion of the self in the relationship, was the rallying cry of conservative theorists of
marriage. One Democratic senator, alive to the multiple implications of Lincoln's
metaphor, argued that the franchise would re-create the same division of authority
that precipitated the war, a "family with two heads- a house divided against itself"
instead of "perfect union." Noah Davis, comparing degrees of laxity in divorce legislation in the various states, lauded South Carolina for its refusal to countenance any
form of divorce, claiming, however, that "by strange political perversion that State
has never been over-attached or faithful to another union." As one antidivorce activist pithily explained her opposition to divorce: "I am a Unionist, not a secessionist."55
Opponents of woman suffrage also made the argument. Madeleine Vinton Dahlgren, antisuffrage activist, novelist, and political hostess, writing to the Senate Committee on Privileges and Elections in opposition to woman suffrage in 1878, explained her conviction that the woman's franchise was "unpatriotic." It inevitably
would spell the end of political as well as marital union:
Marriage is a sacred unity. The family, through it, is the foundation of the State.
Each family is represented by its head, just as the State ultimately finds the same
unity, through a series of representations. Out of this come peace, concord, proper
representation, and adjustment - union.56
Antipolygamists understood the power of such arguments and their usefulness
for the antipolygamy movement. Unionism, nationalism, "extreme measures," they
claimed, were the only answers to Mormon licentiousness. They capitalized on the
sense that politics and marriage were mixed together in unprecedented ways and
that, whatever the proper solution, the Mormons had gotten the formula terribly
wrong. The politics of Utah and the marital system on which politics must rest,
they were convinced, expressed what could happen if Americans compromised the
politics of consent, monogamy, coverture - union.
"The Already Alarming Prevalence of Divorce"
One permutation of the sense that marriage and politics were structurally connected was the melding of arguments for uniform marriage and divorce law with
anti-woman suffrage rhetoric and the eventual connection of both to antipolygamy. The political ethicist Francis Lieber, for example, argued both that monogamy
" St. George Tucker, ed., Blackstonei Commentaries (5 vols., Philadelphia, 1803), I, 441. Sen. Thomas Bayard
(Democrat, Del.) reprinted in History of Woman Suffrage, ed. Stanton, Anthony, and Gage, 11, 577. Davis, "Marriage and Divorce," 35. Packard, Modern Persecution, or Married Women? Liabilities, 11, 114, cited in Hartog,
"Mrs. Packard on Dependency," 96.
' U r g u m e n t s before the Committee on Privileges and Elections o f t h e United States Senate, in Behalf of a
Saxteenth Amendment to the Constitution o f t h e United States, Prohibiting the Several States fiom Disfianchising United States Citizens on Account of Sex, Jan. 11 and 12, 1878 (Washington, 1878), 44.
84 1
was "the foundation of all that is polity. . . . one of the pre-existing conditions
of our existence as civilized white men" and that a "woman loses in the same degree
her natural character . . . as she enters into publicity." The theologian Horace Bushnell made the connections explicit, condemning woman suffrage as tending toward
a "relaxation of the just bonds of marriage, and a greatly increased tendency . . .
to obtain divorce."57
A separate political identity for women, according to antisuffragists, was tantamount to "discontent with marriage, and . . . legislation to facilitate divorce." Equality in politics, argued Bushnell, was based on the reduction of marriage "to a mere
partnership contract." Inevitably, such contractarian notions privatized the marriage relationship, moving it outside the realm of public regulation and virtually
ensuring dissolution of marriages at unprecedented rates. As Madeleine Dahlgren
put it, suffrage "must introduce a fruitful element of discord in the existing
marriage relation . . . and increase the already alarming prevalence of divorce
throughout the land."58
Antisuffragists and their antipolygamist allies had good reason to play the divorce card. Although alarm at spiraling divorce rates prompted several states to
tighten their divorce laws in the 1870s, divorce rates nonetheless grew exponentially
from 1860 to 1880. Liberty, argued antidivorce theorists, could not long tolerate
such decay. Theodore Woolsey, president of Yale College, pointed to the historical
effects of rising divorce and marital infidelity on one flourishing civilization, Rome.
Woolsey's theory that the Roman Empire perished from within, eroded by divorce,
provided a powerful historical example of the price paid by a political system that
downplayed the importance of family life. His argument was repeated by other antidivorce activists. It was challenged indirectly, by suffragists and a sprinkling of social
scientists, virtually none of whom advocated divorce as a positive good. Instead,
they argued that divorce reflected other causes of social decay, such as inequities
in marriage, or that informal divorce, especially separation, had always existed, and
that the new statistics reflected a rate of marital failure that had only been formalized, not augmented, by legal divorce.59
Despite the counterarguments, it was far more popular to bewail mounting
divorce rates as evidence of increasing immorality and disloyalty among spouses.
5 7 Francis Lieber, "The Mormons: Shall Utah be Admitted into the Union?," Putnam? Monthly, 5 (March
1855), 234; and Francis Lieber, Political Ethics (2 vols., 1838; Philadelphia, 1876), 11, 124-25. See also Francis
Lieber, On CivilLiberty andSelfGovemment, ed. Theodore Woolsey (1838; Philadelphia, 1872), 4. Horace Bushnell, Women? Suffrage: The R e f o n against Nature (New York, 1870), 152.
Bushnell, Women? Suffrage, 152, 154-55. Madeleine Dahlgren, Thoughts on Female Sdrage andin Vindication of Woman? True Rights (Washington, 1871), quoted in Thomas J. Jablonsky, The Home, Heaven, and
Mother Party: Female Anti-Suffragists in the United States, 1868-1920 (Brooklyn, 1994), 3. Dahlgren also wrote
several novels, including Madeleine Dahlgren, Divorced(Chicag0, 1887). For analysis of popular literature on divorce and debates over the role of contract in marriage, see George R. Uba, "Status and Contract: The Divorce
Dispute of the 'Eighties and Howells' A Modern Instance," Colby Library Quarterly, 19 (Summer 1983) 78-89.
59 Theodore D. Woolsey, Essay On Divorce andDiuorce Legidation, with SpecialRefirence to the Unitedstates
(New York, 1869), 34-49. See also Nathan Allen, "Divorces in New England," North American Review, 130 (June
1880), 547, 563-64. On divorce as a reflection, rather than a cause, of failed marriages, see Elizabeth Cady Stanton,
"The Need of Liberal Divorce Laws,'' ibia', 139 (Sept. 1884), 236; Carroll D. Wright, A Report on Mamage and
Divorce in the United States, 1867 to 1886 (1889; Washington, 1891), 186; and Sydney G. Fisher, The Cause of
the Increase of Divorce (Philadelphia, 1890), 14-20.
December 1996
Popular equation of divorce and polygamy depicted men as seeking "variety" through a corrupt and compliant legal system. "What is the use of Mormonism," queried a bemused cartoonist, "when a man can change his wife whenever he likes?" Puck, February 13, 1884. Courtesy o f Yale University Library. The West was especially troublesome for those concerned about the breakdown of
marriage. The ease of migratory divorce in a transient culture was a constant theme
of critics. Indiana was the first western divorce mill, but the problem was not
confined to Indiana-other western states and territories offered lax residency requirements and liberal standards for divorce in the 1870s and 1880~.~O
Utah was the worst case. The territorial legislature in 1852 enacted a divorce
statute that required the petitioner to demonstrate only that he or she was "a resident or wishes to become one." Since that undemanding residency requirement
was coupled with an omnibus clause that allowed judges to grant a divorce "when
it shall be made to appear to the satisfaction and conviction of the court, that the
parties cannot live in peace and union together, and that their welfare requires a
separation," Utah's statute was the most permissive of all. Designed in all likelihood
to allow converts whose spouses did not become Mormons to obtain a quick civil
divorce and remarry within the faith, the statute was construed outside Utah as yet
60 On concern about the West as a lure for easterners seeking easy divorces, see Allen, "Divorces in New
England," 550. On divorce in Indiana, see Richard Wires, The Divorce Inue and Refom in Nineteenth-Century
Indiana (Muncie, 1967). Nebraska, Idaho, and Nevada, for example, had six-month residency requirements, while
South Dakota had a mere 90-day residency requirement. Howard, History ofMatn'monial Institutions, 111, 131-32;
Roderick Phillips, Patting Asander: A History of Divorce in Western Society (New York, 1988), 455.
843
more evidence of Mormon disregard for the integrity of marriage. As one commentator put it, the divorce statute alone gained "instant notoriety" for the territory
"among Americans concerned about the decline of marriage and the family." Justin
Morrill drew the inevitable connections. In language saturated with the Republican
party's condemnation of licentiousness, Morrill charged that the "slimy folds" of
polygamy not only allowed one man to marry multiple "sisters, mothers, and
daughters," but "in order that no element of cruelty and loathsomeness may be
wanting, it includes facility of divorce. . . . As well might religion be invoked to
protect cannibalism or infanticide."bl
Travelers to Utah commented on the ease of divorce in the territory (even after
the statute was amended in 1878), shoring up the theory that divorce, like polygamy and woman suffrage, was a peculiarity of Mormonism. Indeed, divorce was
more common among nineteenth-century Mormons in Utah than among residents
of other jurisdictions in the United States. Especially when divorces in polygamous
marriages (granted exclusively by ecclesiastical courts because of the illegality of
plural marriage after 1862) are included in the total, the rate of divorce in Utah
was extraordinarily high. Utah was a "consent divorce" jurisdiction, a label that
implied all the disloyalty and disunionism antipolygamists had worked so hard to
associate with polygamous marriage62
The problem was exacerbated in the 1870s, after the completion of the transcontinental railroad. Utah rapidly become a haven for migratory divorce petitioners,
the scurrilous pleasure-seekers so despised by antidivorce activists. Utah's residency
standard allowed lawyers from New York, Cincinnati, and Chicago to flood local
courts with divorce petitions. So common was the practice, according to the statistician Carroll Wright, that lawyers used forms in which intention to become a
resident and incompatibility allegations were already printed on the page, requiring only names, dates, and localities to be filled in.63
Tales of abuse of process flowed into the press and courts outside Utah. Several
cases, including one decided in her home state of Massachusetts shortly before Field
began her lecture tour, involved claims of polygamy, bigamy, and fornication, in
which convictions were upheld despite the defendants' claims that they had been
divorced in Utah. The Supreme Court of Indiana, for example, condemned Utah's
divorce statute as a "palpable case of the exercise of extra-territorial jurisdiction,"
Act in Relation to Bills of Divorce, March 6, 1852, Acts, Re~olution~,
andMemonhh, Passedat the Several
Annual Sessions ofthe Legirlative Assembly of the Territory of Utah (Salt Lake City, 1855), 162-63. On the relationship between divorce and conversion to Mormonism, see Richard I. Aaron, "Mormon Divorce and the Statute
of 1852: Questions for Divorce in the 1980's,'']ournalofContemporary Law, 8 (1982), 21-22. On the public perception of Utah's "vicious" residency requirement, see Howard, History of Matn'monial Institutions, 111, 131-33.
Morrill, "Polygamy and its License," 10.
62 For travelers' reports, see Aaron, "Mormon Divorce," 141136. For the "consent divorce" label, see Laws in Utah,
H.R. Rep. No. 21, pt. 2,41 Cong., 2 sess., Feb. 14, 1870, pp. 14-15. On divorce rates in territorial Utah, see Eugene
E. Campbell and Bruce L. Campbell, "Divorce among Mormon Polygamists: Extent and Explanations," Utah H ~ J toricalQuarterly, 46 (Winter 1978), 4-23; Leonard J. Arrington, Bngham Young, American Moses (Urbana, 1986),
318-21; and Edwin Brown Firmage and Richard Collin Mangmm, Zion in the Courts: A Legal History o f t h e
Church ofJesus Chnst of Latter-day saint^, 1830-1900 (Urbana, 1988), 325-32.
63 Wright, Report on Mamage and Divorce, 203-6.
844
December 1996
adding that "marriage is more than a contract. It is not a mere matter of pecuniary
consideration. It is a great public institution, giving character to our whole civil
polity."64
The ease of divorce in Utah was a frequent refrain in antipolygamy rhetoric, a
counter to arguments made by Mormons that "consecutive polygamy" was practiced by easterners who divorced and then remarried, whereas in Mormon society
divorce was "unknown." Au contraire, charged Kate Field, telling the story of an
"excellent, kind hearted woman," whose husband "got a divorce without [her]
knowledge." Not only were the courts corrupt, but Mormon leaders allegedly
profited by granting church divorces. Brigham Young, Field claimed, "drove a thriving business by untieing his own pe0ple."~5
Further evidence that marriage was not respected by polygamous men, antipolygamists claimed, was supplied by the astonishing number of Mormons who
were unfaithful to their wives. At a meeting, according to Field, Brigham Young
"asked all present- they were all priests-who had been unfaithful to their wives
to stand up. Between three and four hundred stood up!" Thus handily (and indirectly) did antipolygamists dispose of the Mormon claim that polygamy was the
only reliable antidote for prostitution. The charge that Mormon men were unfaithful even to multiple wives both countered the Mormon claim to extraordinary
sexual fidelity and implied that polygamy, divorce, and prostitution were interdependent vices, by-products of the introduction of market relations (that is, contractualism) into domestic relations. Field even brought in mining camps, those
fabled cesspools of sexual license, in hammering home her point: Due to polygamy,
divorce, and their attendant vices, Salt Lake was "worse than [the] mining camps
and that is saying a great deal."6G
A "United States marriage law" was to be the cure. This notion, popularized
in a New York Tribune editorial, called for uniform marriage and divorce laws to
protect American society from corruption from within. Divorce was sapping the
nation's moral strength, charged the Tribune; the source of the corrosion was the
64 Hood v. State, 56 Ind. 263, 270-71 (1877) (quoting Noel v. Ewing, 9 Ind. 37 [1857]). See also Hardy v.
Smith, 136 Mass. 328 (1884); State v. Armington, 25 Minn. 29 (1878); Litowich v. Litowich, 19 Kan. 451 (1878);
Davis v. Commonwealth, 13 Bush 318 (Ky. 1877); and Aaron, "Mormon Divorce," 23-25.
65 Irvine, report on "Mormon Monster," 14-15. On Mormon defenses of polygamy as open and above board,
as opposed to the deception and abandonment of eastern bigamists and divorce seekers, see George Q. Cannon,
A Review of the Decision of the Supreme Court of the United States in the Case of Geo. Reynolds vs. the United
States (Salt Lake City, 1879), 31-33, 52; Curtis, Mormon Problem, 2; and Bitton, Ritualization ofMormon History
and Other Essays, 37-38.
For Field's statements, see Irvine, report on "Mormon Monster," 15, 17-18. For the argument that polygamy
and prostitution could not exist in the same society and that monogamy and prostitution went hand in hand,
see Parley P Pratt, Mamage andMorals in Utah (Liverpool, 1856), 2; John Taylor, The Mormon Question, Being
a Speech of Vice-president Schuyler Colfax at Salt Luke City, A Reply thereto by ElderJohn Taylor; and a Letter
of Vice-President Colfax Publirhedin the New York Independent, with Elder Taylor? Reply (Salt Lake City, 1870),
(26 vols., Los Angeles, 1956), XIII, 102. Radical suffragist Sara Spencer, testifying
23-25; andJouma~ofDi~courses
at a congressional hearing on woman suffrage, endorsed the theory that polygamy was a protection against prostitution. See Van Wagenen, "Sister-Wives and Suffragists," 199. See also Friedrich Engels, The Ongin oftbe Family,
Private Property, and the State in Light of the Researches of Henry Lewir Morgan (1884; New York, 1942). On
the attempt to use legal form as a protection against contractualism, see Michaels, "Contracted Heart," 522.
845
West, where free-love advocate Robert Dale Owen had turned Indiana into a
divorce mill, and Utah, where polygamy and divorce went hand in hand.67
The call for uniform laws was not simply reactionary. Proponents of nationalized
domestic relations law recognized that under a uniform law divorce would become
more widely available in some jurisdictions-New York, for example, allowed divorce only for adultery, and some uniform marriage law advocates would have included bigamy, habitual intemperance, desertion, and intolerable cruelty among
the grounds for divorce. What they opposed without compromise, what they condemned in Utah, was the idea that divorce was a matter of the parties' pleasure,
rather than the state's interest.68
The jurisdictional complexities of postwar federalism, however, convinced opponents of liberal divorce law that only federal legislation could curb the tendency
of western states to cater to licentiousness as they tried to attract (mostly) men who
sought such easy divorce. Nor did many migrants bother to seek legal dissolution
of marriages celebrated in other (often eastern or midwestern) jurisdictions, before
they contracted new marriages in the West. Although there are no statistics on
bigamy, desertion, and separation, state criminal and probate records are full of
cases of bigamy involving a marriage celebrated in one state and a second (often
without benefit of even a sham divorce) celebrated in another. Whether or not legal
rules permitted it, many Americans treated their marriages as dissolvable at will.
Utah virtually codified that proclivity with its permissive divorce policy, luring men
who might otherwise remain married and thus politically responsible.69
Antipolygamists' invocation of law was in part conservative, an appeal to the
national legislature to surround marriage with laws that protected it - to preserve
the traditional boundaries of marriage by new means in the interests of liberty. But
it was also potentially subversive, invoking the power of federal law to define and
structure what had previously been entrusted to states. The use of national legal
authority to police marital relations sounded less threatening in the work of
Greeley or Field or Morrill than it did coming from, say, Elizabeth Cady Stanton.
Antipolygamists sought the codification of "natural" law, neatly tied to legal tradition and political liberty.TOThe Edmunds-Tucker Act slipped federal law into
7' New York Tndune, July 28. 1879, p. 4. The editors labeled Utah the most corrupt for allowing divorce when
the parties cannot "live together in peace and union." See also Glenda Riley, Dzvorce, an American Fadtion (New
York, 1991). 108-18 Novelists, lawyers. clerics, and politicians condemned the legal diversity that allowed migratory divorce. See Margaret Lee, Divorce; or, Fazthfuland Unfazthful (New York, 1881);James H. Barnett, Divorce
and the American Divorce Novel (Philadelphia, 1939), 81-92; Samuel W. Dike, "The National Divorce Reform
League," Our Day, 1 (Jan. 1888), 49-54; and Dunn, Twin Monsters, 4-5.
68 On the sometimes bitter debates between delegates to a national convention on divorce reform, see William
L. O'Neill, Divorce in the Progres~iveEra (New Haven, 1967), 254-73.
O n the connection between bigamy and westward migration. see Lawrence M. Friedman, "Crimes of
Mobility." Stanford Law Review, 43 (Feb. 1991), 637-50. O n such cases and their treatment in the courts, see
Hendrik Hartog, "Marital Exits and Marital Expectations in Nineteenth Century America," Georgetown Law
Journal, 80 (Oct. 1991), 122-28.
On the success of conservative women's appeals for potentially subversive legal reform, see Hartog, "Mrs.
Packard on Dependency." 99-103; Grossberg. Governing the Hearth, 300-302; and Gordon. "Our National
Hearthstone;' 343-46. See Elizabeth B. Clark, "Self-ownership and the Political Theory of Elizabeth Cady Stanton," Connectzcut Law Review, 21 (Summer 1989), 905-41.
846
December 1996
grooves well worn by the traditional common-law treatment of marriage, and the
limits of consent such union implied.
Antipolygamists mobilized political rhetoric about law, reconstructing the territory
of Utah to protect marriage. Their theory that law could be the "dynamite" that
exploded deviance, that national authority was best understood and exercised
through legal constructs, provides a window into political theory and legal development in the late nineteenth century. That perspective both revitalizes the argument of the constitutional historian Charles Warren that the 1880s witnessed "the
increase of nationalism" and qualifies claims that legal theorists of the period strove
to make law "less political."71
The private government of marriage and the public government of the nation
were connected in antipolygamists' vision through legal and political categories
used to define both - consent, union, permanence. In confronting polygamy and
describing to themselves and the rest of the nation why the marital structure of
territorial Utah should be treated with "dynamite," rather than, say, existing law,
tolerance, or even lack of interest, antipolygamists implicitly acknowledged the
paradoxical nature of law in their own agenda. Not only were many legal commands ineffective but the hortatory aspects of law (the "should be" quality of legal
rhetoric) were as important as actual experience.72
Dynamite is therefore something of a misnomer; "glue" might more accurately
convey the qualities of law in antipolygamy polemics. When successful, law could
meld what Norma Basch called "the gaping contradictions of a society committed
to conjugal love on the one hand and lifelong monogamy on the other." Consent
(love, hope, trust) and commitment (duty, obligation, responsibility), in other
words, were married in late-nineteenth-century antipolygamy thought, glued together by law as emblematic of both.73
The paradox goes even deeper than the contradictions between legal reality and
aspiration or consent and commitment. Antipolygamists on both sides of the debate over the franchise for Utah's women took positions that conflicted with their
own deepest loyalties. For antisuffragists, the vote of women in Utah provided an
opportunity to demonstrate that the disintegration of marriage and woman suffrage were part of the same licentious alloy. Yet the vapid role they assigned consent
brought them uncomfortably close to the Mormons they opposed. For if consent (to
marriage or to political structure) was valid only if the contract came prepackaged
Charles Warren, The Supreme Court zn UnitedStates Hirtory (3 vols., Boston, 1922), 111, 344-84. Cf. Morton
Keller, Affairr ofstate: Publzc LzJe in the Late Nineteenth Century (Cambridge, Mass., 1977), 289-342. Morton J.
Honvitz, The Transformation of Amencan Law, 1870-1960: The Cnsir ofLegal Orthodoxy (New York, 1992), 15,
9-31.
7 2 On the aspirational qualities of legal rhetoric and their relationship to lived legal experience, see Hendrik
Hartog, "The Constitution of Aspiration and 'The Rights That Belong to Us All,'" in Constitution andAmeriGan
Lz$, ed. Thelen, 354-56, 370-73.
7 3 Norma Basch, "Marriage, Morals, and Politics in the Election of 1828,"JournalofAmencan Htitory, 80 (Dec.
1993), 918.
and predigested, then Mormons engaged in essentially the same exercise when they
consented to the will of God as revealed to their leaders. In either case consent was
hardly evidence of the individual will and sovereignty that its defenders claimed
to cherish.
For suffragists, the vote of women in Utah was a problem to be explained awayto be marginalized and eventually swept under the rug. The revocation of woman
suffrage for Utah spared suffragists the pain of witnessing a refutation of their most
basic claim - that the votes of women would be cast in the interests of women. Suffragists, however much they inveighed against traditional marriage, could not bring
themselves to make common cause with Mormon polygamists, to argue that suffrage really was more important than marriage. Instead, they ignored the troublesome tale. The Histoy of Woman Sufrage, the six-volume history of the suffrage
movement written by participants, devoted thirty pages to an 1887 Senate debate
on the proposed sixteenth amendment, but it buried the Edmunds-Tucker Act in
ado-paragraph summary in a sanitized chapter on Utah that did not even mention polygamy. The central event of the 1880s, the story of the revocation of woman
suffrage in Utah, was obscured in a winner's history that extolled the franchise and
glossed over the shallowness of the consent it supposedly embodied.74
7* For the chapter on the proposed sixteenth amendment, see Htstory of Woman Suffrage, IV, 85-113. On the
Edmunds-Tucker Act, see ibid,939-40.

The Liberty of Self-Degradation - Kinder Institute on Constitutional

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