De Manneville v. De Manneville: Rethinking the Birth of Custody Law under Patriarchy

In 1804 Leonard De Manneville, a poor French emigrant to England, forcibly entered his wealthy but estranged wife’s house, wrenched his eight-month-old daughter from her mother’s breast, and absconded with the naked child in an open carriage in inclement weather. When Mrs. De Manneville applied to King’s Bench for a writ of habeas corpus, Lord Ellenborough affirmed what he claimed was the well-known rule—that a father was entitled by law to complete custody and control over the children of a marriage and could even prohibit all access by a mother to her children. [1] Frustrated by the law courts, Mrs. De Manneville turned to the self-proclaimed champion of the oppressed, the equity courts, only to find that equity would not interfere with a father’s right to custody unless the child had property and was in immediate danger of life and limb. [2] Lord Eldon agreed that “the law is clear that the custody of a child, of whatever age, belongs to the father.” [3] Because Mrs. De Manneville refused to sign over property in her separate estate or execute a will in his favor, her angry husband threatened to prohibit his wife from ever seeing the child again and even to remove the child to France. [4] The law supported his right to carry out his threats.

Under the law of coverture a woman relinquished upon marriage not only her property, future earnings, and body, but all rights of custody or access to her future children. [5] Judges in England in the eighteenth and most of the nineteenth centuries unhesitatingly enforced a father’s unlimited right to custody of his children in every case where he had not forfeited his paternal rights through some malfeasance, such as cruelty or desertion. [6] Although the courts, as parens patriae, paid lip service to a “best interests of the child” doctrine in the early nineteenth century, which included a version of the “tender years” doctrine, [7] no court interferences with paternal rights during this period recognized an independent right in the mother to have custody or access to her children in the event of a separation, divorce, or forfeiture. [8] Even separation agreements between a husband and wife, in which the father voluntarily relinquished paternal rights, were held void “in so far as they deprived the father of his power over his children, or provided that the mother should have possession of them in exclusion of him.” [9] The courts would intervene to keep a child in the home of a wealthy relative if removing it would be detrimental to its social position, [10] but would not remove it from a father, living in jail with his mistress, simply on the basis of an innocent mother’s claim. [11]

This state of custody law changed slowly during the nineteenth century as women brought cases, legislators were urged to protect mothers in their domestic and child-rearing duties, and a public discourse arose in which competing views of maternal and paternal functions were hotly contested. By the end of the century the maternal presumption had taken hold and it was the rare mother who then lost custody. But despite a rhetoric of children’s interests that infused the legislative and judicial treatment of mothers’ claims, the difficulty of reconciling paternal and maternal rights prevented significant reform for many years. The best interests test was not codified until 1925 as the principal criterion for making custodial awards. [12]

As social attitudes about the importance of the maternal role, especially in the tender years, grew stronger through the eighteenth and nineteenth centuries, judges and lawmakers resisted recognizing something as powerful as maternal rights. Women’s interests in their children were more often articulated as claims to be weighed rather than rights to be protected. And even when the courts finally accepted the best interests standard as one factor in making custodial decisions, social stereotypes about women’s special abilities and god-given duties in childbearing and child rearing were often offered as reasons to deny women legal rights or equal treatment, status, or resources. Real women, it was suggested in the 1838 parliamentary debates, would be too delicate to seek enforcement of their rights in the boisterous world of men and courts so there was little point in granting them. [13] It was well into this century before custody law and the discourse of parental rights would cease to be explicitly defined with reference to the traditional male concerns of patriarchy and property.

But what made the law so resistant to the notion of mothers’ rights or a best interests standard? Many historians have claimed that the fledgling nineteenth-century custody law began by protecting the traditional interests of patriarchy and property but slowly evolved to protect women’s rights and interests. It has been argued that a linear progression from patriarchy to egalitarianism in family relations occurred in the early nineteenth century and that once mothers were accorded a presumption in custody disputes, all was right in the family. Unfortunately, this interpretation is too simplistic. Those who view what has come to be identified as a rise in companionate relations between husbands and wives, and between parents and children, locate that change in the eighteenth century, yet custody law did not address the rights of women or the interests of children until the last few decades of the nineteenth century. At the same time, by resisting the adoption of a best interests standard, the law promoted the maintenance of strong patriarchal hierarchies in many nineteenth-century marriages. Many women tolerated physical abuse, infidelity, and impoverishment from husbands who threatened to cut off access to children if they complained.

Consequently, the interrelationship between attitudes about companionate marriages and domesticity, common practices within families denigrating wives’ property holding and child-rearing functions, and legal doctrines promoting patriarchal relations between husbands and wives makes it difficult to assert a simple linear progression, in law or social practices, from patriarchal to egalitarian. What I endeavor to uncover in this article is both the complex interrelationship between the law of custody and family relations and the role of law in maintaining patriarchal power structures despite ideological shifts that seemingly call for the recognition and protection of maternal claims to children. If the law protects rather than breaks down paternal rights to children, during a period of rising maternal rights discourse, the role of law as evidence for making historical claims about social practices and attitudes is open to question.

To highlight some of the questions we need to address to understand more fully the relationship between child custody law and family structure, I seek to accomplish three things: present a history of the law of interspousal child custody law in England in the eighteenth and early nineteenth centuries; analyze the cases and legislation governing the parent-child relationship in terms of the power relationship between mothers and fathers; and suggest avenues of analysis that will allow the social historian to use legal evidence in more subtle and reliable ways.

I. The Rise in Companionate Marriage and Legalism

The eighteenth and early nineteenth centuries have proved fertile ground for social and family historians seeking to understand the impact of industrialization on private lives. A cursory look at any history of the eighteenth century will convince the reader that historians view industrialization and urbanization as having produced profound changes in people’s lives and relationships. For the family historian, this is especially true. Lawrence Stone, Randolph Trumbach, and Edward Shorter were pioneers in documenting the way Anglo/American family life responded to the increasing pressures of industrialization and modernization by contracting family boundaries. [14] They claim that the newly emerging modern family was characterized by companionate relations between husbands and wives and kinder, gentler attitudes toward children and child-rearing practices as family life became more insular and privatized.

Many historians have relied heavily on legal changes to suggest that women’s and children’s status within the family improved as a result of devices such as the strict settlement (that provided pin money and jointures) and the separate trust estate (that allowed women some control over separate property). [15] Lord Hardwicke’s Marriage Bill has been viewed as an attempt to control and regulate working-class sexuality and morality, judged as mysogynistic in its tolerance of wife sales and widespread concubinage. [16] Other changes, like the rise in companionate marriages and the decline in infant mortality rates, which led to advances in architecture that protected personal privacy and promoted closer family relationships, have been interpreted as encouraging greater equality within the family. [17] Absent definitive and extensive data directly reflecting family attitudes and relationships, changing family laws may seem to reflect growing egalitarianism within families and can be deployed to lend credence to arguments that changes in architecture or portraiture styles reflect attitudinal changes in private relationships.

But some scholars have disagreed with those who see a great shift in family life in the early modern period. Historians like Linda Pollock, Alan McFarlane, and Stephen Parker argue that the English family has been fairly unchanging in its affective ties for the past seven or eight centuries. [18] They locate the change outside the family in the conditions in which people lived their lives. They argue that the changes wrought by industrialization and urbanization influenced family life in ways that were newly documentable. [19] Thus, it may not be that there were fundamental shifts as such in the relations between parents and children. Rather, the changes that have been documented may have been the result of “profound changes in the social conditions in which childhood was lived.” [20]

Rather than attempting to adjudicate the theoretical disputes between family historians, I wish instead to examine how custody law, and the growing rhetoric of motherhood and fatherhood, did not coalesce with the other changes, either within or without the family, that have been identified by all of these historians. The changes in social conditions have been inferred in part from changes in law and judicial attitudes. Thus, if certain laws seem to contradict historical assumptions, we must look more closely at both the legal and historical claims being made. Lawrence Stone identified law, and legal change, as the “hardest evidence” to support his theory of the rise in affective ties within the family. [21] But the eighteenth-century laws he relies on were property laws regarding dower, jointure, and separate trust estates. Significant changes in custody law, marriage and divorce law, seduction, breach of promise of marriage, and criminal conversation actions, all of which had subordinated the female party’s legal rights and interests, did not occur until well into the nineteenth century. From my own research, it appears that custody law, and perhaps other so-called “family law” changes, not only did not promote the rising companionate marriage but was evidence of a backward, patriarchal turn.

Law is a complex factor in people’s lives, and it is not easy to quantify and categorize legal changes even from within the institutions of the law. And these errors can be compounded when one attempts to use the law as evidence for making claims about historical events, attitudes, and practices without a clear theory of the relationship among them. Although the law of child custody eventually changed to reflect more closely the attitudes of domesticity and separate spheres, this did not occur at a time or in a manner that would allow us to identify a clear, linear relationship between the two. Thus, we must question whether a growing egalitarianism occurred in family life despite the strict patriarchy of custody law, or whether the patriarchal imperatives of this and other so-called “family laws” undermine historians’ claims about social changes in the early nineteenth century.

As we well know, law is not always responsive to the needs of a changing citizenry. The common law of the family, which had been relatively static until the eighteenth century, was out of touch with the changing needs of an industrialized, urban citizenry and was therefore rejected in the late eighteenth and early nineteenth centuries by many who sought to structure their relationships, both private and public, in more personal ways. Insofar as the law was perceived to be inadequate to their needs, informal, nonlegal, or quasi-legal arrangements arose to enable individuals to protect their interests with minimal resort to law and legal institutions. This was especially true in family situations. For instance, divorces, which were costly and unwieldy solutions to broken marriages, increased slowly over the century while private separation contracts exploded in numbers. [22] Most couples charted a middle course between the highly formal parliamentary divorce available only to the wealthy aristocracy and the informal wife sale or abandonment that had characterized much of lower class family rupture throughout the early modern period. [23] Eventually though, law catches up, as it did in 1857 with the abolition of parliamentary divorces and the creation of the divorce and matrimonial causes courts. As historians, we must be cautious in not attributing to change in law a meaning that it cannot bear. On the other hand, the current state of the law, ossified and rigid as it might be, creates a shadow under which individuals bargain and establish relationships.

When it came to children, parents were equally creative in constructing informal and quasi-familial relationships. Some parents turned to self-help methods of resolving disputes over children by making custodial provisions in private separation contracts or informal living arrangements with relations. [24] Others turned to apprenticeships or informal adoptions. But although the law did not provide explicitly for some of these quasi-familial arrangements, it was crucial in normalizing some status and contractual relationships and not others. [25] Apprenticeships were formalized through the use of indentures and contracts. Separation agreements slowly replaced informal divorces because they were partially enforceable in court and could make allowances for custody of minor children.

In analyzing the law of child custody, as it moved from its strict patriarchal moorings to a nearly absolute presumption of maternal care, it becomes clear that what historians are saying about the family does not fit with the attitudes reflected by lawmakers and the legal doctrines being developed. Nor does it appear that very many people were clear on what their legal rights and duties were with respect to children. But we can be sure that people were thinking about law in new ways.

Historians do agree on the second important change of the eighteenth century: a greater reliance on law as a regulator of social practices and relations. The eighteenth century has been characterized by legal historians as the period in which law moved to the forefront of social consciousness. David Lieberman has aptly summarized the general consensus of legal historians:

The eighteenth century, according to the judgment of its current historians, was England’s century of law. As E.P. Thompson has put it, “‘The Law’ [was] elevated during this century to a role more prominent than at any period” of English history. The culture of law, it is increasingly observed, extended throughout the social fabric, conditioning popular protest as much as formal public debate…. Law and legal process were equally fundamental to the political dynamic of this community…. “all parties—government, radical and spectators … recognized the potency of [the law’s] symbols and rituals, knew how significant a platform its institutions provided and what a powerful legitimizing force its endorsement could be.” [26]

This was a period of rights, of legal rhetoric, and juridic symbols. The public law of eighteenth-century England experienced tremendous growth and change, and there was a heightened public reference to law and to rights during this century, which underscored the incongruities in the law of parents and children that preferred the heir over his other siblings and over the non-propertied minor child. [27]
Throughout this period there was a growing acceptance of the role of law as mediator of personal disputes even if the parties were also challenging the power of the state to intervene as mediator. As third parties began questioning parental rights on behalf of children’s best interests, a fundamental tension arose between the power of the state to dictate such family issues as inheritance, guardianship, and custody and the power of individual families, generally fathers, to regulate familial practices and relationships. But the law was not a neutral party to these disputes. The Statute of 1646, [28] granting guardianship powers to fathers, is just one example of the way in which state authority legitimated the exercise of certain forms of familial power and thus helped create hierarchical relationships and expectations of authority. [29]

The power struggle between the state and the father to define and regulate his own family affected the family structures that could be created. For instance, although the state gave to a father the right to appoint by will a guardian for his children, and he could certainly appoint his widow their guardian, the courts would not allow him to contract out of his paternal duties by giving custody of his children to their mother while he was still alive. [30] He could willfully mistreat his children and be removed as custodian, but the courts would not enforce a willful contract in which he divested himself of his paternal rights even if he had acknowledged that the children would be better off under his wife’s care. [31] Wives, therefore, were caught up in a net of legal and social constraints on their ability to negotiate their own individual relations with their most intimate partners. The state’s ambivalence toward the proper exercise of paternal rights must be reconciled with changes in domestic attitudes toward children and the exercise of state power in the private sphere.

In combining the increasing legalism of the period with the growing concern for a moral and humane parent-child relation, we begin to see legal challenges to paternal rights with regard to the moral aspects of child rearing. Encouraging a child to swear would come to be seen as equally detrimental to a child as failure to support or physical abuse and would justify judicial interference. Socially and legally, what it meant to have custody was changing. Where the law had principally cared about the trusteeship of the infant’s estate in granting custody, it slowly began to address such intangible aspects as nurturance, moral and religious training, and social improvement. But De Manneville was pivotal in shifting the law’s focus; the child’s interests, for the first time, were placed in tension with the potentially disruptive opposition of the husband and wife’s relation with regard to custodial rights and powers.

Just when the courts were moving toward a more discretionary law that would accommodate the psychological and economic needs of all children, Mrs. De Manneville sued her husband, claiming an independent right to her child simply by virtue of her maternal tie. It was no longer a legal question of which of two independent parties would do the most for the children. After De Manneville, the legal relationship of the parent and child would be mediated through the legal relationship of the husband and wife. Judges would focus on the disruptive potential of interspousal custody disputes as the evil to be avoided, rather than on the good of settling custody under a meaningful welfare standard. Thus, as we see a shift from a property-based theory of custody to a best interests of the child theory slowly working itself out in the eighteenth century, the legal doctrine of coverture that defined the husband/wife relationship was superimposed onto the custody issue in ways that distorted, and preempted, a meaningful best interests analysis. What custody meant for those who got it and what parental rights and duties were seen as most beneficial to the children began, after De Manneville, to be relevant to judicial resolution of custody cases.

II. The De Manneville Case

In 1800 Margaret Crompton married a French emigrant named Leonard Thomas De Manneville, bringing property worth £700 per year vested in a separate estate and £2000 upon her death to Mr. De Manneville should he survive her and have cohabited with her during her lifetime. Mr. De Manneville had a government annuity of £60 as a French alien. One child was born of the marriage in 1803. Soon afterwards, because of incompatible temperaments, Mrs. De Manneville left her husband’s house and returned with her child to live with her mother. Mr. De Manneville took custody of the child from a nurse who was tending it during a short illness but the child was returned to the mother as the father was shortly afterwards taken into custody under the Alien Act. [32] Upon his release, he forcibly entered his mother-in-law’s house, where he snatched the nursing child and refused to turn it back over to its mother. Mrs. De Manneville applied to the Court of King’s Bench for a writ of habeas corpus for return of the infant, but it was denied by Lord Ellenborough, who asserted that the father “is the person entitled by law to the custody of his child.” [33] With no evidence of abuse, the Court would not interfere with the father’s legal rights. [34]

Mrs. De Manneville then brought suit in Chancery seeking an order of custody or, in the alternative, an order prohibiting the father from removing the child to France. In support of her petition, Mrs. De Manneville presented affidavits alleging that her husband was guilty of ill-usage, had threatened to carry her and the child out of the kingdom, had pressed her to make a will in his favor, was irreligious, and held Jacobin views. The attorneys for Mrs. De Manneville also argued that the child’s tender years necessitated that it remain with its mother, that the father would be unable to provide proper maintenance for the child, and that the court had jurisdiction to interfere with the power of fathers when the child’s interests so dictated. Lord Eldon sympathized with the compelling nature of the mother’s claim: “I am much struck with the case, … on the one hand, a husband, endeavouring by what is called cruelty and ill usage, which undoubtedly may be most aggravated, though no blow is struck, to possess himself through the wife’s act of the property, which the parties to this settlement have been extremely careful to withdraw from his reach.” But, in denying her suit, he wrote: “I must consider the wife at present as living under circumstances, under which the law will not permit her to live…. This is an application by a married woman, living in a state of actual, unauthorized, separation, to continue, as far as the removal of the child will have an influence to continue, that separation, which I must say is not permitted by law.” [35] Although Eldon denied Mrs. De Manneville’s claim on the basis of coverture—a married woman could not bring suit against her husband without first obtaining a legal separation in the ecclesiastical court—he granted her request to order that the child not be removed from England. More important, he viewed leaving the child with the father as an incentive to Mrs. De Manneville to cease living in her legally unauthorized manner, that is, to return home to her husband where she belonged.

The court at no time considered the interests of the child; Eldon never mentioned the father’s limited means to support the child nor that the mother had family in England to help support them nor that she owned her own property. And although he mentioned the ill-usage Mrs. De Manneville experienced, he made no reference to whether or not the child was a victim of similar treatment. [36] Because the allegations of ill-treatment were unproven by any ecclesiastical court proceedings, Lord Eldon would not consider the issue of parental fitness at all, though he hinted that the husband’s treatment of his wife was indeed cruel. [37]

This case raises at least three legal issues. The first is the issue of coverture and what it meant to hear a suit for custody of children between married parents. Eldon ultimately decided the case on this ground—that regardless of the husband’s ill-usage of his wife, her decision to separate from him must have been authorized by the ecclesiastical courts before affidavits about the nature of the parental relationship could be considered in making a custody award. [38] The relations between husband and wife were viewed as distinctly separate issues from the question of custody, to be decided first in a different court and under a different set of legal rules. Mrs. De Manneville’s failure to seek a legal separation triggered the common law doctrine of coverture that held husband and wife to be one legal entity. Ironically, what this case ultimately held was that only the mother was legally incapacitated or restricted in her ability to sue the father for custody based on maltreatment of children. Any other third party could do so without the need of a prior ecclesiastical judgment. More important, however, is that what made this case so unique, that the mother was the petitioner, was precisely what allowed Eldon to sidestep the question of which parent’s custodianship was in the child’s best interests. He certainly could not have overlooked the fact that this case raised a new and profoundly troubling problem—two living parents disagreeing about what was best for their children—because that is why he dismissed it. But the new fact situation eventually would become the exception that swallowed the rule, as it became the defining line along which legal regulation of custody rights would be fought.

The second issue is the question of what paternal rights to custody of children might entail. What moral or economic duties must fathers fulfill to justify protection of their legal right to physical custody? Are these duties different when the petitioner is the mother or an unrelated third party? As shown in Part 4, there were precedents for removing children from their fathers and some of these precedents appear in the body of Eldon’s opinion. Such behavior ran the gamut from voluntary placement of the children with wealthy relatives to putting a daughter into prostitution. But in dismissing Mrs. De Manneville’s suit on coverture grounds Eldon did not address whether kidnapping and poverty met the paternal forfeiture standard or not. So the real effect of the case was to reduce the status of the petitioner/mother below claims of the rest of the world by not allowing her to allege and prove the substantive issue of forfeiture. All other third parties could sue on this ground without first obtaining ecclesiastical authorization.

The third issue addressed by Eldon was the equity court’s jurisdiction as parens patriae to interfere with the “legal, natural, right of the father to have the custody of the person of his child.” This issue arose in two contexts: the court’s power to interfere on behalf of the mother and the court’s power to interfere on behalf of the state. Eldon asserted that the court’s power to control the right of the father “is unquestionably established, and is not disputed,” in electing not to interfere by leaving the child with the father. But he did not need to delineate the grounds for judicial interference on the mother’s behalf. By dismissing Mrs. De Manneville’s suit under coverture, he sidestepped the questions of whether the tender years doctrine would demand return of a nursing child to its mother or whether child snatching and forcible entry, along with limited means of support, constituted forfeiture and would justify judicial interference.

But since Eldon gave custody to the father, he then had to address Mrs. De Manneville’s second claim, that the father be prohibited from removing the child to France. This claim pitted the father’s natural rights to control his child against the Crown’s power, through equity jurisdiction, to interfere on the child’s behalf. And while Eldon would not interfere on behalf of a mother, he agreed that the lord chancellor had the jurisdiction to interfere with the father so long as he had some way to ensure adherence to his orders. In granting the petition and ordering that security be given prohibiting removal of the child to France, Eldon determined that England had a stronger interest in the child’s residence than the father, but the mother had none.

What this case does not do is much more revealing than what it does do. It does not in any way state, hold, or suggest that mothers have no rights. In approving the general rule that fathers have custodial rights to their children, Eldon admitted that the court’s superior power to interfere with the father’s rights included the power to give the child to its mother: “I must either give the child to the father; … or to the mother; … or I must take some middle course.” [39] Eldon held that the mother was unauthorized to petition for custody, though she might be authorized to have it granted her if the court otherwise was able or inclined to do so. The legal question was thus not about maternal rights but about access to the courts. Also, Eldon did not discuss what behavior on the part of the father would justify removal of his children. He acknowledged that the behavior mentioned in the affidavits was “detestable,” that the principles being propagated would “lead to acts, against which these laws as to aliens were directly levelled,” and that, although the father’s right to his child was legally recognized, he could not pursue a legal object by illegal means, such as kidnapping. Yet this behavior was deemed not sufficiently detrimental to the child’s interests to warrant its removal, as habitual drunkenness and blasphemy might. [40] In other words, Eldon acknowledged that certain actions on the part of the father would justify judicial interference with his custodial rights, but he declined to enunciate what those actions might be or what impact on the child would be sufficiently injurious to warrant a change in custody.

In some ways this case is relatively insignificant. Custodial rights of fathers and mothers were not explicitly defined, nor was the forfeiture rule explained or delineated. Eldon maintained that he had the jurisdiction to award custody in whatever manner he thought fit, yet no one had really questioned that power. But as we will see, although Eldon minimized De Manneville as just one in a line of forfeiture cases, it would be cited by later courts as primary precedent for the proposition that the royal courts did not have the authority to interfere with the father’s natural, near-absolute rights to custody of children, that mothers did not have any custodial rights, and that acts constituting forfeiture of paternal rights must be so severe as to threaten the child with harm to life or limb. Thus, much of its value lies not in its holding but in what other courts claimed it held.

III. Ideologies of the Parent-Child Relationship

If we survey the different legal traditions at work throughout the development of the early common law we find competing values between the interests of property/class/patriarchy and mothers/communities/kin. [41] Looking at these different legal sources for common law guardianship doctrines, we see that Eldon’s decision in De Manneville may not have been as preordained as he or later writers assumed. The different traditions of Roman law, Anglo-Saxon law, canon law, civil law, and even American law were offered by treatise writers and judges as explanatory keys in understanding the particular English common law at the turn of the nineteenth century. A review of these will help us fit the English law within a broader ideological framework.

Under Roman law fathers had absolute rights to their children, their labor and property, including the right of life and death. By the later years of the Roman Empire they could not kill their children but only upon their own death did their children move out from paternal control. [42] They could put their wives and children out into any form of labor and collect their wages, sell them three times in the open market, and determine their child’s marital partners. [43] Roman law recognized no rights or claims on the part of the mother to her children, even if a father died intestate leaving no guardian. He could not even appoint her their guardian. [44] The father’s rights to custody of his children were so absolute that “no amount of cruelty, neglect of duty, or immorality on his part, affected in the slightest degree his claim to the custody of his children.” [45]

The rights of the Roman patria potestas were considered by many English commentators and scholars to be the most extreme example of parental rights existing in a civilized and complex legal system: absolute rights in the father and no rights in the mother who was herself subject to the father’s power. In Anglo-Saxon law, however, they perceived a notable distinction in that mothers acquired rights upon the death or desertion of the father. Although Anglo-Saxon law continued many of the Roman father’s powers over his children through the concept of “mund,” a state of protection out of which arose a number of rights and duties, [46] mothers had similar rights as fathers if widowed and significant, though less powerful, rights in cases of separation. The laws of the late Anglo-Saxons held that mothers who separated from their husbands could take half the family’s property if they also took custody of the children. It also allowed them to retain custody upon the death of a father. [47] A mother’s security in the custody of her child was not upset by the death of the father, although control over property was of concern to lawmakers and relatives. Under Anglo-Saxon law there was no concept of guardianship that would allow a substitute to take over the rights and duties of personal control, education, or maintenance that inhered in the father. Upon a father’s death custom dictated that the child’s mother continue to care for the child’s person while paternal kin would become responsible for the child’s property. [48]

After the Norman Conquest, the mother continued to be granted physical custody upon a father’s death by the local customary law applied in the manorial courts. This practice was adopted in the royal courts as the law of socage guardianship, which gave physical custody of children to mothers and often appointed them guardians of the heir’s property as they generally would not be in a position to inherit from the heir.

The position of the common law was that the guardian should be the nearest of the child’s relations who could not inherit the land. In the usual case this was the mother. In manor courts, too, the preferred guardian was the heir’s mother…. it was widowed mothers who generally could expect to raise the heir and manage the tenement. In fact the heir’s formal introduction to the manorial community usually came at the hands of his mother. Widows often brought infants and minor children into court and for them paid fines to the lord. The payment served to establish the child’s right to land and enabled the widow to inform both the lord and his court of the lawful heir. [49]

What is striking in Elaine Clark’s analysis of manorial court records is that the mother would be the most likely guardian to step into her deceased husband’s shoes so long as her control over the heir and his estate would not frustrate the interests of the lord and the community in ensuring that “productive lands would be in the hands of productive workers.” [50] If the mother’s guardianship could not ensure the productivity of the estate, or she too was deceased, the lord and his court would look next to the relevant kin, paternal kin for guardianship of a paternal inheritance and maternal kin for guardianship of a maternal inheritance. [51] But the mother’s removal from control over the estate did not imply her removal as the child’s custodian. And if she was removed, other family members would step in.

Although Clark’s data come from cases arising in the manorial courts in the thirteenth, fourteenth, and fifteenth centuries, the principles of maternal preference were adopted even earlier by the royal courts for all free nonmilitary tenures. As early as 1267 the rules governing socage guardianship were well-established when the Statute of Marlborough converted the guardian into a trustee. [52] Both Glanvill and Bracton, early English treatise writers, recognized the mother as the customary socage guardian because she would be unable to inherit from the heir. [53]

The law of socage guardianship was a clear departure from the Roman prohibition against the guardianship of the mother. Instead, it favored what appeared to be the local customs of an agricultural society that maintained family and community stability. Productivity of land and loyalty to one’s lord throughout the medieval period encouraged laws that protected continuity by keeping families together. This tradition was also reflected in the canon law being administered in the ecclesiastical courts. The church courts had guardianship jurisdiction with respect to their probate capacities over personal property. And when the court found itself having to name a guardian, it looked principally to the wishes of the family. [54] In one case in 1371 the judge called together the ward’s relations and made an appointment “by the common and express consent of all and singular cognates and agnates of the children.” [55] Richard Helmholz has found that the French custom of calling the family together to determine appropriate guardianships often occurred in the English ecclesiastical courts as well, where mothers would be likely appointees. [56] This practice represents what appeared to be common thinking in canonical circles of the period, that the interests of family unity and stability at times of rupture should be protected by the law. [57] By the thirteenth century, the canon law had developed a consistent policy regarding custody and support of children, both legitimate and illegitimate, that was fairly liberal in recognizing a limited version of the tender years doctrine. In cases of separation or divorce a mother would have custody of all children up to age three, a father was to support all his children according to his resources, and a mother who supported a child herself without help from the father could seek repayment from him or his family in a church court. [58] Although it is not clear that all people and all courts adhered to this policy, sources articulating the special rights of mothers were available as early as the thirteenth century. [59] And the policy of promoting maternal interests in physical custody of children was consistent in the ecclesiastical courts, the manorial courts, and the royal courts for all nonmilitary tenures from the Conquest to the eighteenth century. [60]

This tradition of separating custody of the child and custody of the estate protected the dual interests of family stability and community productivity at times of rupture. Most heirs would inherit very small parcels, which they or their immediate relations would farm or lease out. But with the imposition of feudal tenures after the Norman Conquest came the bifurcation of landholding into two distinct classes. For lands held in military tenure—knight service or grand or petit serjeanty—the death of a tenant resulted in the reverter of the land to the overlord under the feudal doctrine of wardship. [61] And wardship, unlike socage guardianship, was purely a creation of the royal courts. It persisted for nearly six hundred years, though its main purpose of providing trained knights for the defense of the Crown had long since passed away. What characterized wardship, almost from its inception, was the virtually complete subsuming of the person of the ward into control over the estate. Upon death of the tenant the heir would be removed immediately from his or her family to the house of the overlord who stood to gain considerable sums from the incidents of relief, primer seisin, and marriage. [62] It was not uncommon for a wardship to be bought and sold four or five times during the child’s minority for unofficial fees up to ten times its valuation because the owner could take the revenues of the estate during the period of wardship, arrange the marriage of the ward, and, if the ward were female, ensure the permanent addition of the ward’s estate to his own by marrying the ward into his own family. [63] Under this feudal system the mother had absolutely no right to the guardianship of her child except in two situations: when the overlord permitted her to retain custody for a short period, as when the child was still a young infant, or when she could independently repurchase the wardship of the child’s body out of her dower estate. [64]

The stark contrast between the feudal wardship law that completely ignored the interests of families and mothers and the common law guardianship of socage land that protected those interests is striking. After about 1300 wardship had become an anachronistic feudal burden that was more often honored in the breach than in the following. Kings no longer needed knights for specific periods of the year; they needed revenue to pay for a standing army and to support the operations of the court. They did not train their wards to be wine stewards, knights, or personal advisors. They wanted rents. And so long as they had specific sums coming in from their tenants, the personal rights of wardship were generally not exercised. Thus, until 1500 the vast majority of underage heirs would remain within the family structure through the actions of guardianship law and other statutes, [65] through uses and creative conveyancing, and the general neglect of the feudal services by the nobility. [66] By 1500 the feudal law of wardship was virtually defunct.

The sixteenth century, however, witnessed a strange rebirth of wardship. [67] In 1503 Henry VII targeted wardship as a neglected revenue source and charged his receivers general with searching out concealed wardships and supervising and selling them to profit the royal treasury. This was such a successful ploy that a wardship office was soon established with a master of the wards. In 1520 Henry VIII tightened up the office with the appointment of a new master and new receivers general. Over the next twenty years wardships continued to provide a significant portion of the Crown’s revenue. In 1540 the Court of Wards and Liveries was established by statute. As Henry Bell explains, “[t]he king was supposed, in the medieval phrase, to ‘live of his own’; that is to say, for the ordinary day-to-day expenses of government he was very considerably dependent on income derived from the crown lands and from his feudal dues. Thus arose the paradox that the legal rights of livery and wardship continued, and were systematically extended, when the feudal structure, which had given them purpose and been their excuse, had ceased to exist.” [68] Wardship was so successful that the total net income from wardships alone for Elizabeth’s reign was almost £650,000, with something like four times that amount being reaped by intermediaries and private suitors who profited from the purchase and sale of these newly discovered property rights. [69] Yet, toward the end of Elizabeth’s reign the total number of wardships that came within the “protection” of the court of wards was only ninety-two, a number that suggests the limited application of wardship law in a country of over five million people. [70] The law of wardship was clearly the exception and not the rule. [71]

In 1604, soon after the succession of James I, an attempt was made to abolish the incidents of wardship and marriage. The House of Commons engaged in a series of lengthy discussions over the onerous feudal tenures and in 1610 offered the King an annuity of £100,000 in lieu of all tenures. According to Ivy Pinchbeck, “in the debate in 1604, the Commons urged the natural claim of the mother and next of kin to the upbringing of the children and the arrangement of their marriages; ‘the great hindrance and decay of men’s houses and posterity’ that resulted from the custom; the harm done to the children by ‘forced and ill-suited marriages’; and even the damage done to England’s standing abroad by what they rightly claimed to be an anachronism which had long lost its original justification.” [72] One hundred years after the resurrection of wardships, the landed classes argued for the abolition of the outdated and unjust feudal law that put the interests of mothers, families, and communities behind the continuation of feudal land practices that had long since ceased to be productive. Ultimately the negotiations failed, but the prominence of the debate over mothers’ rights is important in evaluating attitudes toward the influence of law on family relationships.

The Court of Wards and Liveries and all feudal incidents were finally abolished in 1646 in the first Parliament of the Protectorate. At the Restoration there was some talk of resurrecting the court and reinstating the feudal incidents, but it became apparent that over £2 million would be due the Crown for the fees that had accrued in the previous fourteen years. In 1660 a bill confirming the 1646 Act was passed and made retrospective to 1645 to avoid any claims for money due. That statute, the Abolition of Military Tenures Act, [73] abolished the Court of Wards and Liveries, eradicated the feudal tenures of wardship and marriage, and provided that a father could, by will, appoint a guardian for his children in respect to his entire estate. [74] This statute moved guardianship decisions out of the hands of judges and the common law rules of succession for all types of estates and into the hands of fathers whose appointees would supersede mothers for all rights. [75] And although fathers could and often did appoint their widows guardians, they were less likely to do so than judges were. [76]

By the mid-eighteenth century, a complex set of guardianship laws had evolved out of these medieval customs that were further affected by jurisdictional battles and testamentary devises. Charles Viner, who wrote a twenty-three-volume abridgement of the laws of equity between 1741 and 1753, summarized the four types of guardianship recognized by the common law courts. [77] The first was the guardianship in chivalry, which arose out of medieval wardship and provided for custody of the heir to follow custody of the estate for lands held in military tenure. The second was the guardian by nature. This derived from the “natural” tie of parent and child but was limited in scope to the heir alone. The guardian by nature was first the father and only upon his death the mother. [78] A father was not a guardian by nature to daughters, younger sons, or other nonpropertied children because they could not inherit from him. Some confusion may have existed between the common law concept of the guardian by nature and the natural law concepts of parental duties and rights arising by virtue of the biological tie. For as Blackstone quotes Puffendorf:

[t]he duty of parents to provide for the maintenance of their children is a principle of natural law; an obligation, says Puffendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world: for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. [79]

In many of the eighteenth-century cases challenging paternal rights, the distinction between the natural rights of a father to his children and the guardian by nature was blurred, thus collapsing a legal category dependant on inheritance status, with the naturalized connection of the biological bond. [80]

The third type of guardianship under the common law was the guardian in socage, which arose out of socage holdings in the customary and manorial courts. [81] The socage guardian would often be the mother, or any third party, who could guarantee productivity of the land and that the heir would not become a burden on the parish. And the fourth classification was the guardianship by nurture. Only the guardian by nurture was unrelated to the child’s property-holding status. The guardian by nurture “hath nothing but the governance of the child” and could be either the father or mother and continued until the age of discretion (age fourteen). [82] Modern guardianships most closely resemble the guardianship by nurture. Upon the death of one parent, the other took over, and upon the death of both, guardianship by nurture ceased entirely. Only the natural parents could be guardians by nurture, and younger children and daughters could only have guardians by nurture as they had no inheritable estate.

These four types of guardians also might have different powers depending on whether they were appointed by will, by the common law courts, or by the ecclesiastical courts. Testamentary guardians were appointed only by the father pursuant to the Statute of 1646 [83] and absolutely defeated the rights of the mother as guardian by nature and by nurture. [84] As Lord Cottenham said in an important case in 1840: “It is proper that mothers of children thus circumstanced should know that they have no right, as such, to interfere with testamentary guardians, and if under the peculiar circumstances, I think it proper now to leave the child in the custody of the mother, it is not in respect of right in that mother, but it is in consequence of that power which the court has of controlling the power of testamentary guardians.” [85] Where the father had not appointed a guardian, the mother might be appointed guardian by the equity courts, but her powers were limited, just as any guardian’s would be. [86] Court-appointed guardians were scrutinized even more closely than testamentary guardians and had to report to the courts of equity on a regular basis regarding their decisions concerning the ward’s education and maintenance. [87] And although the ecclesiastical courts did not have the power to “intermeddle with the body though the parents have made no disposition thereof,” [88] they could appoint guardians ad litem for representing the child in lawsuits in their own courts. [89]

The 1646 Statute played an important role in modifying these four medieval guardianship doctrines to increase a father’s power to dispose of his children’s custody at his death. [90] The Statute allowed a father to appoint guardians for all children, thus overriding the mother’s powers as guardian by nurture over younger children and extending beyond the grave his guardianship-by-nature powers over the nonpropertied children. And under the Statute, a testamentary appointment of a guardian for custody of the child brought with it guardianship over the property of the heir. [91] Thus, the body and the property of the heir were reaggregated as under feudal wardship but now the estate was subservient to the person rather than the person to the estate.

The costs to mothers from the 1646 Statute became apparent over the next century as guardianships were challenged and adjudicated in the courts. The four-part structure of guardianship law lost most of its potency: the guardianship in chivalry was abolished, the mother as guardian by nurture was preempted, the guardian in socage was often replaced by a testamentary guardian, which shifted child-rearing decisions outside the family, and the father’s limited guardianship-by-nature powers were extended over all his children. Ultimately the father’s testamentary appointment trumped all other considerations, including the best interests of the children and the community interests in productivity of estates, and he could effectively remove the mother from her long-standing common law guardianship rights to her children simply by naming a guardian. And although the father’s testamentary devise could prevent the familial disruption caused by wardship and he could appoint his wife as guardian, he just as easily could eliminate his wife’s position altogether. The Statute, therefore, can be seen as both profamilial, in keeping families together, and patriarchal, in granting this power only to the father.

Two relatively distinct theories of the parent-child relationship can be seen operating in the history of guardianship. The first is what most resembles the Roman law doctrine of the paterfamilias and grants fathers near-absolute rights to custody. It is based to a large extent on a proprietary notion of right. A father’s rights to his wife and children partook of the same theory of ownership, control, and alienability that underlay his rights to his real and personal property. [92] Wardship law, even after feudalism declined and the feudal incidents were converted into monetary rents, embraced the propertylike aspects of the Roman patria. The children were no longer sent to the overlord’s house to be raised with an eye to their future service to the lord. They become vendable commodities on the open market.

The notion of wardship as a property right appears in both the physical and symbolic equation of the ward with his or her estate. Mothers had rights to custody of their children upon the father’s death only if they had the independent means to purchase the wardship of their children, not because they had a natural right to it. If they did not have the means, wardship of the person attached to wardship of the land and became the right of the overlord upon the death of the heir’s father. Not only was the right to custody of the heir’s person something that could be bought, it was directly connected to wardship over the heir’s estate. Custody of an heir was valuable because it entailed selling the heir in marriage and effectively selling the heir’s estate. It is easy to see how a right to custody of a child looked suspiciously like a property right. It could be bought and sold, it followed the property, and it brought income to its possessor through exercise of both wardship and marriage rights.

In contrast to the Roman property-based notion of the parent-child relationship is the communal theory that underlay the Anglo-Saxon law, the local law of the manorial courts in the medieval period, the canon law, and the common law of socage tenure. As Elaine Clark explains with relation to the manorial courts: “Communal expectations were admittedly complex and reflected the interests of both lordship and family life. Under these circumstances it is useful to bear in mind that the community as well as the lord and his court believed mothers most capable of nurturing the young. Although courts distrained property they never removed children from a mother unless she was obviously incapable of their care.” [93] The communal values of keeping families stable, ensuring continuity and productivity of landholdings, and keeping social disruptions to a minimum were protected in the common law doctrines of guardianship by nature, by nurture, and in socage.

Depending on the estate and the interests at stake, a complex variety of laws existed to perform different functions. Whether or not children actually remained with their mothers more upon the death of fathers holding in socage than in knight service is not the issue. The crucial concern is the existence of alternative legal models—some that protected family stability and others that protected fiscal rents—available as sources for later legal precedents. Only the guardian in chivalry, which had been effectively abolished in 1646, reflected the full extent of patriarchal control over the heir and his property. The other three all incorporated some recognition of maternal and communal interests in the physical welfare of all children, not just heirs. Yet the proprietary values of wardship, not the communal values of the guardianship by nurture or in socage, were the values that Lord Mansfield rejected in the 1760s and the values Lord Eldon resurrected in De Manneville in 1804. [94]

IV. Eighteenth-Century Guardianship Doctrine and

Challenges to Paternal Rights

In the early decades of the eighteenth century, the royal courts were presented with a variety of cases that adjudicated different aspects of these guardianship and parental rights. One strand showed a gradual declension in the rights and prerogatives of fathers. Another showed a consistent recognition of and protection for mothers if they were testamentary or socage guardians. A third showed a gradual awareness of and protection for children’s interests as the courts began to interfere in aspects of child rearing and educational decision making. And a fourth showed a strong willingness on the part of judges to interfere with familial life in the name of the Crown’s role as parens patriae. These four strands reflect changing views about the origins and scope of patriarchal power and the appropriateness of limitations imposed by law. As the courts gradually narrowed paternal rights, they opened a way for interspousal custody and child-rearing disputes.

The first strand of cases showed a decline in the absolutism of paternal power. In a spectacular case, the Grand Opinion of 1717, George I claimed a royal prerogative over the education, custody, and marriage of his grandchildren against the wishes of their father, the Prince of Wales. George and his only son disagreed violently about the way the king should handle his British and Hanoverian duties, lands, and rights. But when the twelve royal justices assembled to adjudicate what was effectively a domestic conflict between the king’s power to control marriages of the royal family, and by implication his power to dictate their education and custody to further his political ends, and the father’s power as guardian by nature to supersede the wishes of the grandfather, legal patriarchy was in crisis.

In the course of the debate the justices heard from Serjeant-at-Law Reynolds (afterwards lord chief baron of the exchequer) for the Prince of Wales who viewed the question as a strict legal conflict between the rights of fathers and grandfathers. As Reynolds explained, citing case law, Coke on Littleton, Bracton, Justinian, Seldon on Fleta, a number of statutes, and even Magna Charta: “The Guardianship of the Children of Right belongs to the Father, … and the Custody appears to belong to the Father and not to the Grandfather.” [95] Reynolds viewed the question as simple and straightforward. The only law that exists limiting marriage rights is the provision in Magna Charta limiting the rights of widows holding of the Crown to remarry without leave. [96] It would be absurd to imagine that a grandfather could intervene in the execution of a father’s absolute legal rights to determine the marriage and education of his children. This right, he argued, is so absolute that it supersedes even the right of the lord, under wardship doctrine, to have the feudal incidents of marriage if the father is still alive. [97]

The justices did not receive an advocate for the king but immediately proceeded to debate the question among themselves, beginning with the junior justices, who wondered whether the father’s power to dictate his child’s marriage could preempt the need for the king’s consent. The only law on the king’s side was the ancient custom making it a crime to marry into the royal family without the king’s consent. [98] Thus, when the father and the king disagreed about the marriage of a grandchild, the two laws came into direct conflict.

As the justices cited numerous situations of children, grandchildren, nieces, nephews, and even servants who received the consent of the king to marry, the issue was framed as a conflict between the royal power to control political liasons—which “in its Nature [is] so great a Trust that it cannot by the Constitution be lodged anywhere but in the Crown”—and the Law of the Father—which is premised on “narrow Rules of private property.” [99] In order to reconcile the two legal doctrines, the justices, rather than find weakness in either law, resorted to a legal fiction.

[Because] it was High Treason, by the Common Law of England (before any Statute) to compass and imagine the Death of the king’s eldest Son and Heir, … and this Offence is called Crimen Lese Majestatis, a Crime that hurts the Majesty of the king himself. It follows then that as they are but one Person in Law, so in Point of Law they are supposed to have but one Will in relation to the Education, Marriage and Management of the Grandchildren; and the Prince of Wales in Point of Law is supposed in every Thing to concur with his Majesty, which quite subverts and destroys the Distinction in common Persons of Grandfather, Father and Son. [100]

By collapsing the distinctions between father and son, and using another fiction of legal unity, the justices were able to sustain both the law of the father and the political right of the king. [101]

But most significant was the fact that the Grand Opinion had opened a way for the gradual curtailment of fathers’ powers. Over the rest of the century, fathers would be challenged by outsiders who believed the father’s custodianship was detrimental to the welfare of his children. The first cases involved fathers trying to get their children back after having temporarily relinquished custody to third parties. In 1732 a father petitioned Chancery for custody of his three daughters (and control over their inheritances) who had been raised by his wealthy brother, recently deceased. [102] Chancellor King dismissed the father’s petition as he could not give the children to their father without violating the terms of the brother’s will, which he refused to do merely on a petition, because the financial consequences to the children would be great. He held that a father cannot encourage expectations in his children and then arbitrarily turn around and deprive them of these advantages. [103] By accepting benefits from a will, a father would be construed to have forfeited his paternal rights in favor of guardians appointed under the will. [104] Even previous noninterference was deemed a sufficient “election” by the father to deny his paternal rights. [105]

The Court of Kings Bench, under habeas corpus proceedings, would not recognize a power in the father to have his children returned to him. The court might release the children from whatever custody they were wrongfully in, but it would not order the children into the custody of the father. [106] When a father was insolvent the court would interfere to appoint a suitable guardian. [107] The court also would interfere with a father’s right to marry his child, if the potential spouse was socially or financially inferior to the child. [108]

The courts also faced petitions to limit paternal rights on the basis of physical harm to children. In 1763, in R. v. Delavel, Lord Mansfield of King’s Bench faced a father petitioning for return of his seventeen-year-old daughter who he had apprenticed years earlier to a music master. The child’s contract had apparently been purchased by an old libertine who, claiming to teach her music, instead made her his mistress. Because the child was over the age of discretion she was released from her indenture and allowed to reside where she chose; Mansfield would not return her to her father who allegedly had acquiesced in the arrangement. [109]

Four years later Mansfield faced another custody case, this one brought by a father seeking to regain custody of his six-year-old child who was living with its maternal grandfather and its mother. Mansfield had no difficulty in balancing the rights of the parties. “The natural right is with the father; but if the father is a bankrupt, if he contributed nothing for the child or family, and if he be improper, … the Court will not think it right that the child should be with him.” [110]

As the century progressed, further incursions were made against father’s rights. In 1790, a father, whose financial affairs were so entangled that he was forced to reside abroad, was denied custody of his son. [111] And in 1792 another father was denied custody of his children because he was in Newgate for cruelty to his wife. [112] Although financial arrangements were the principal reasons for interfering with fathers’ rights, by the end of the century judges spent less time trying to justify their power to interfere and more time analyzing the healthiness of the child-rearing environment.

The second strand of eighteenth-century cases concerned the rights of mothers to custody of their children after death of the father. In many cases a mother would be appointed guardian without court proceedings if the father had so named her in his will. [113] The presumption of the mother’s guardianship rights extended so far that unless explicit language identified a different testamentary guardian, the mother would prevail. [114] And when a mother was named testamentary guardian, her subsequent remarriage would not terminate the guardianship unless the father’s will provided for her removal. [115] In many of the cases before the courts, mothers had been appointed guardians and they were later challenged, either for remarrying Papists or for making socially disadvantageous marriages for their children. [116] But these challenges were made principally in the children’s interests and constituted the same arguments made against fathers who also abused their trusts. In many of the cases, lawyers and judges referred to the mothers’ rights by nature and nurture, and the special care they would bestow on their natural children.

The one instance where mothers were severely curtailed in their custodianships was if they were Catholic or married into the Catholic faith. [117] In Reynolds v. Lady Tenham, the father had requested, on his deathbed, that his father, the child’s grandfather, raise the child as a Protestant, but custody had remained with the mother. [118] In a later suit by the grandfather against the mother, witnesses swore that the mother took seriously the father’s wishes that the child be raised Protestant, had had him baptized by a minister of the Church of England and taught the Church catechism, and that “it would be very hard to take a child from a mother, at the instance of a grandfather, who was so very unkind to his own son [the grandfather had refused to see his son since his marriage with the defendant and had never seen, or desired to see, his grandchild], and to commit it to the care of strangers (for he doth not desire the guardianship himself).” The mother even offered that the Earl of Litchfield be her security or that he be given custody of the child so that “she may have the liberty of seeing her own child, and not be deprived of that comfort which all other mothers naturally enjoy.” [119]

The lord chancellor praised Lady Tenham’s religious convictions but granted judgment for the grandfather anyway. The court determined that “she will always have such persons about her as may instil the principles of another religion in his mind, and make a wrong impression on his tender years. Besides, if this was not to be feared, it might be more advantageous for the child to be under the care of some other persons, and not of his mother, who by her indulgence and fondness might do it an injury.” [120] This is the only judicial expression of the potential harm of maternal indulgence that I encountered, but it is significant that it arises in a case involving the Catholic question. On appeal by Lady Tenham, the House of Lords reversed the appointment of a guardian other than the grandfather, saying that the father’s deathbed assignment was not delegable by the grandfather but was a personal trust. [121] Although most courts would respect a father’s decision to raise his children in a particular faith (this was so strong a presumption that it was not until 1973 that mothers received equal rights to make religious decison for their children), there were strong fears that mothers would undermine that right because they tended to be more pious and because they had closer and more intimate contact with their children than fathers did. [122]

But in another case between a mother and a paternal grandfather, Lord Hardwicke agreed that “the children have a natural right to the care of their mother,” as he ordered the children be surrendered from the grandfather to the mother. [123] It would be inaccurate to say that the courts were especially protective of maternal rights, but, except in cases of religion and remarriage, most mothers took over guardianship duties upon the deaths of their husbands. And more significant was the growing acceptance of a rhetoric of maternal nurturance and care that lawyers and judges accepted in considering the appropriateness of guardianship orders.

Women who behaved themselves with “great tenderness and affection” toward their husbands and children had an advantage over those women who left their husbands’ houses, even when driven away by violence or adultery, or who obstinately persisted in their Catholic convictions. [124] The courts noted the claims of mothers as special caretakers during periods of sickness or ill-health as well as during a child’s tender years. [125] Although the reports of many of these cases do not explicitly detail the arguments for the mother’s custody, or sometimes even the judge’s motivations, the mother’s position as guardian by nurture was clearly at the forefront.

From the perspective of children we can identify a third strand in the cases, some judicial reasoning that placed the interests of children higher than those of either parent. Courts regularly interfered with parents or guardians who tried to marry children to their social or economic inferiors. [126] Parents or guardians often fought over educational and religious decisions for their children. Male guardians, in particular, fought over whether children should go to Eton or Harrow, Oxford or Cambridge, and the courts often would decide based on the child’s needs and interests. In Beaufort v. Berty, the Court resolved to leave the child at Westminster rather than move him to Eton, as one of his guardians requested, because it appeared that “Lord Noel was recovered in his health, and had made a considerable progress in the school, and that a new method of instructing him might retard his learning.” [127]

And where money was an issue, the courts did not hesitate to protect children’s expectations, even at the expense of parental rights. [128] In Creuze v. Hunter, the chancellor “would not allow the colour of parental authority to work the ruin of his child.” [129] Perhaps it would be an overstatement to construe the courts’ soliciation in these cases in terms of children’s rights, though in Mellish v. De Costa Lord Hardwicke did recognize that children have a natural “right” to the care of their mother. The courts’ horror of putting a child into prostitution or indoctrinating it in Catholicism was made the grounds for interfering with legal rights of parents and guardians alike. Although some justices equated the father’s powers to dispose of the guardianship of his children with his power to dispose of his land, that power would be interfered with if it was abused. [130]

The fourth strand of cases involved the power of the Crown to interfere with private rights of parents. After the Grand Opinion the courts expressed no hesitation in interfering to protect children. As regards the jurisdiction of King’s Bench to deny the father’s claim for return of his child, Lord Mansfield said in Delavel that the true rule is “that the Court are to judge upon the circumstances of the particular cases; and to give their directions accordingly.” [131] He held that the courts not only have the power to investigate the father’s behavior but to interfere if deemed necessary and he made no distinction between the law courts and Chancery. He also declared: “the power of a father over a child, however despotic the law allowed it to be in other respects as to the child, itself, was yet subordinate to the power and constitution of the state.” [132]

In general, the courts justified their interference with fathers’ rights on the grounds of the Crown’s parens patriae jurisdiction over those who were unable to care for themselves. [133] By the mid-eighteenth century the justices of the royal courts uniformly attributed to the chancellor the jurisdiction to oversee matters regarding infants by delegation of the Crown’s parens patriae powers. [134] This power arose by virtue of the Crown’s interest in protecting children, not in its distinct power to limit paternal rights, and is the basis for the best interests standard.

On the eve of De Manneville, the principle of paternal rights to custody had been established in part because it had been challenged in courts of law. Before these eighteenth-century cases, the father’s role as natural guardian was litigated only on the question of his fiduciary duty as trustee of his child’s estate, that is, his guardianship powers with regard to the child’s inheritances. His right to raise, educate, and control his child had not been questioned before these cases, which were the first to define his paternal rights in terms of a moral duty as well as an economic one. If we see law, and especially litigation, as an index of social change, these cases accord with the claims made by many social and family historians that attention to the moral welfare of children increased during this time. But out of this growing trend to hold the father to a higher moral duty arose a rhetoric of paternal rights that ranked the father as the first and foremost guardian. From that position, only his death or malfeasance would remove him.

The eighteenth-century cases also reveal a trend: the state could interfere with fathers on behalf of children for a growing variety of reasons. But through the process of litigating the scope and quality of paternal rights, those rights were articulated in terms consistent with the four-part preexisting legal categories of guardianship law. As outsiders began questioning the noneconomic aspects of the father’s guardianship role, the substance of paternal rights was explicated in light of a parental presumption. When nonparents challenged fathers, the courts were careful to insist that parents had the first claim to their children. Only if they forfeited their rights could third parties step in. Thus, a rhetoric of strong presumptions and rights, in opposition to third-party claims, developed to protect the biological tie. But father’s rights, which may be quite powerful against outsiders, were arguably different when set up against mothers. In the De Manneville case, the language of paternal rights arising out of these forfeiture cases was applied against the mother, even though mothers had not been parties to any of these previous suits and had never had the question of their rights litigated. In cases involving living fathers, parental rights became paternal rights and the role of the father as natural guardian became a trump against disruptive challenges to family integrity from within as well as without.

What is perhaps most significant about these eighteenth-century cases is that the stage was set for either the protection of maternal rights (from the cases recognizing the mother’s independent guardianship rights as against third parties) or the establishment of a best interests standard (from the cases limiting fathers’ actions on behalf of their children), both of which the state had the jurisdiction and inclination to do. Yet in De Manneville neither occurred. Instead, in the first interspousal custody dispute, Eldon subsumed the substantive rules of all four strands of these eighteenth-century cases into the arguably incorrect and misleading principle that: “the law is clear, that the custody of a child, of whatever age, belongs to the father.” Then he turned to a different set of legal principles, the law of coverture, and treated the child as just another piece of marital property under the control of the husband. By deciding the case as he did, Eldon not only ignored the eighteenth-century guardianship and forfeiture cases, but he created the illusion that those cases stood for a principle of paternal rights that was consistent with the law of coverture as he decreed it in De Manneville. And even more significant than his treatment of the eighteenth-century cases is the way later judges referred back to De Manneville for the principle that paternal rights to custody were nearly absolute.

V. The Legacy of De Manneville

One of the important issues facing legal historians is to understand why certain cases become the foundation of new legal doctrines and why others drift into obscurity. At the time Lord Eldon decided De Manneville he gave no indication that he believed the case was in any way unusual or significant. On one level, he made it sound like a continuation of the forfeiture cases of the eighteenth century in which French blood, a meager income, and child snatching did not rise to the same level as pandering or bankruptcy, and so he would not interfere with the father’s rights. But within thirty years judges and legislators looked back on the issue of child custody and cited De Manneville as the foundational case for a strict rule of paternal rights in interspousal custody disputes.

In the thirty-five years from 1804 to 1839, twelve cases adjudicated the question of paternal forfeiture and parental rights. Seven were brought by mothers, five by other relations. Six of the mother/petitioners lost; all five of the third-party petitioners won. The only mother who won custody was unopposed because the father was in prison under sentence of transportation. These are all of the published cases on this issue during this period and they are cited by judges and legislators as the principal sources of the new custody law. [135] What is notable is that De Manneville is either cited or implicitly referred to in all six cases in which the mothers lost as authority for the rule that the courts did not have the power to interfere with the rights of the father, except in extreme cases, and that the father’s rights negated the possibility of mother’s rights. Not one case mentioned that Mrs. De Manneville’s suit was dismissed on coverture grounds, that mothers’ rights had not been litigated, and that fathers’ rights had been routinely limited by both the law and equity courts.

It was fourteen years before another wife challenged her husband for custody of their children. In 1818 Lord and Lady Westmeath’s lengthy legal battles began with the question of custody of their daughter, six-year-old Rosa. [136] Although the couple had separated two years earlier and would spend the next sixteen years battling each other in the courts over a private separation deed, the suit for custody was the only straightforward element of their case. George Nugent, heir to the Earl of Westmeath, married Emily Cecil, daughter of the Marquis of Salisbury, in 1812 and a daughter was born two years later. Almost from the beginning George assaulted Emily with kicks, blows, and threats. In 1817 the couple separated when Emily discovered that George had not given up his mistress, but she returned after family and friends encouraged a reconciliation with a private agreement granting Emily custody of Rosa and £3000 if she ever separated from him again. In 1818 the couple separated, again due to George’s physical abuse of Emily, and he was compelled by family to sign another separation deed granting Emily her pin money, £1300 per year maintenance, full custody of Rosa, and a promise not to sue for restitution of conjugal rights. [137] Soon thereafter George sued for custody of Rosa and a baby boy who had been born that year. Emily obtained a writ of habeas corpus to Chancery for delivery of the children according to the separation deed but Lord Eldon refused to enforce the deed insofar as it deprived the father of his children. [138] Following the suit, George sent the children to Ireland, where the boy died during the summer of 1819. Emily then prevailed on George to let Rosa return to London with her. But on returning to London himself, George retained Rosa after a visit and Emily once again had to seek a writ of habeas corpus to see her daughter, this time in Common Pleas. Justice Dallas, however, “followed ancient practice and declared that ‘the father is in point of law entitled to the custody of the child.'” [139] Both Eldon and Dallas adopted the position that fathers cannot contract away their paternal rights even in favor of an innocent mother whose behavior was not responsible for the breakdown of the marriage. [140]

The private separation deed again raised the specter of coverture, for Emily was not legally separated from George and hence could not sue for custody. We do not know if Eldon cited De Manneville; [141] but we do know that he again relied on the coverture aspect of the case. In denying enforcement of the separation deed in a later stage of the litigation, Eldon expressed his concern that these deeds appeared to be preempting ecclesiastical adjudication of marital separation:

It comes then to this question, whether the [marriage] contract, which the law says is only to be dissolved on certain accounts, is in fact to be dissolved, not for those causes, but because the parties choose it…. The law has imposed upon husband and wife duties of the most sacred nature, which one would have supposed that no court would allow them to engage not to observe…. [i]t seems strange … that if the primary object be vicious, these auxiliary provisions should be held good, and thereby that which the law objects to should be carried into effect. [142]

It was the attempt to achieve through private contract what public policy dictated should only be achieved through ecclesiastical proceedings that prompted Eldon to deny Emily’s claim. Thus again, the custody question, and the question of George’s parental fitness, was subsumed into a question of the rights and duties the law placed on each parent as a result of the marriage contract, not the rights and duties arising out of biological parenting. After that, Rosa was placed with a friend of her father’s, the Duke of Buckingham, and became so estranged from her mother that she saw her only a handful of times before Emily’s death in 1858.

In 1824 Mrs. Skinner applied for a writ of habeas corpus in Common Pleas against her husband William Skinner and his mistress Anne Deverall (who were living in Horsemonger Lane jail) to produce their six-year-old child whom he had acquired through force and stratagem. Mrs. Skinner had legally separated from her husband because of cruelty and brutality, and custody of the child was placed in a third party through proceedings earlier that year in King’s Bench. The attorney for Mrs. Skinner argued that it was unreasonable for mothers of illegitimate children to be able to obtain habeas corpus for their children when mothers of legitimate children could not. He also cited De Manneville for the proposition that “the father of a legitimate child was entitled to its custody,” when “there was no reason to impute any motive to the father injurious to the health or liberty of the child.” [143] In addition he referred to Blisset’s Case for the proposition that the Court of King’s Bench had jurisdiction to assign the custody of a child to another party. But Chief Justice Best was not convinced by the arguments. He repudiated the jurisdiction of both King’s Bench and Common Pleas to interfere, suggesting instead that Mrs. Skinner apply to Chancery. In declining to exercise any power to interfere, Best narrowed Blisset’s Case to apply only where the father is unfit and does not have custody at the time of the suit. He wrote:

When this case first came before me at chambers, I felt considerable difficulty, and thought that, under the circumstances, neither the father nor mother was entitled to have the custody of the child … I was referred to Blisset’s case, and it certainly is extremely strong to shew, that the power of assigning the custody of a child brought before the Court of King’s Bench, was discretionary, if the father appeared to be an improper person to take it; and I therefore thought that the most prudent course would be to assign it over to the care of a third person, and which was acceded to by both its parents. But it now appears that the father has removed the child, and has the custody of it himself; and no authority has been cited, to shew that this Court has jurisdiction to take it out of such custody for the purpose of delivering it over to the mother. [144]

In other words, if the child is in the custody of a third party the court may choose not to give it to the father if he is unfit; it may then perhaps give it to the mother. But it does not have the jurisdiction to remove the child from the father once he has it, regardless of whether he is fit and despite the manner in which he obtained custody—forceful kidnapping, removal from school, and so forth. The court cited De Manneville for the “rule” that removal of a child from a father requires proof of ill-treatment, though removal from anyone else requires only a finding of improper restraint. The court ultimately recommended that Mrs. Skinner apply to Chancery, as only the chancellor had the jurisdiction to appoint a “proper person to watch over its morals, and see that it receive proper instruction and education.” [145] We do not know if she ever did; it never made it to the reports.

Three years later, however, the vice chancellor claimed that he had no jurisdiction to deprive a father of custody of his fourteen-year-old daughter, even though he continued to live in adultery, for which his wife had obtained an ecclesiastical separation. This case eliminated both the coverture issue and the Chancery jurisdiction issue, leaving only the question of paternal fitness and forfeiture. The child formerly had resided with her mother, Mrs. Ball, at the consent of the father, who wrote numerous letters approving of the mother’s custody. But after a visit one day, the father detained the girl and sent her to a school that he kept secret from the mother. Refusing to interfere once the father had obtained custody, Vice Chancellor Hart noted, with some regret, that:

Some conduct, on the part of the Father, with reference to the management and education of the Child, must be shown, to warrant an interference with his legal right; and I am bound to say that, in this Case, there does not appear to me to be sufficient to deprive the Father of his common law right to the care and custody of his Child. It resolves itself into a Case for Authorities; and I must consider what has been looked upon as the Law on this point. I do not know that I have any authority to interfere. I do not know of any one Case similar to this, which would authorize my making the Order sought, in either alternative. If any could be found, I would most gladly adopt it; for, in a moral point of view, I know of no act more harsh or cruel, than depriving the Mother of proper intercourse with her Child. [146]

Because the father was fit, that is, had not forfeited his rights, he was deemed to have the superior claim. Although Hart did not cite to De Manneville or Skinner, he referred to two cases in which he participated as counsel and lost, one being similar on its facts to this case except the father was also pressuring the mother to turn over property that was settled to her separate use and the second being a challenge to the father’s rights because of his Catholicism. In both cases the lord chancellor refused to remove the children from their father. Neither case is reported, but together they extend the rule that Chief Justice Best had articulated for the law courts: once a child is in the custody of the father, only extreme ill-treatment will justify removal, not simply unfitness. Thus we see a narrowing of the chancellor’s jurisdiction from determining who is the proper person to have custody to determining what acts of malfeasance will justify removal of a child from its father. And answering the latter question requires evidence of far more egregious mistreatment than would be necessary to satisfy the former.

By 1827 both law and equity courts had made an important distinction between their ability to give the child to its father when it was improperly restrained by someone else (including the mother) and their ability to take it from the father, regardless of how he obtained possession. This distinction clearly encouraged fathers to kidnap their children, even by force, which was apparently not viewed as evidence of ill-treatment. For if they once obtained custody, even sending the child to school would constitute a continuation of their paternal control and would require a heightened showing of ill-treatment to justify interference. Such was the case in 1831 when Mrs. M’Clellan removed her daughter from the school where the girl had been placed by her father. Mr. M’Clellan applied for a writ of habeas corpus in King’s Bench for the return of his daughter to the school at which he placed her. The attorney for Mrs. M’Clellan argued that habeas corpus could issue only upon proof that the child was improperly restrained and that since Mr. M’Clellan had not alleged anything improper or illegal in the mother’s removal of the child from school, the court should not interfere. Justice Patteson, quoting De Manneville, disagreed: “the law is perfectly clear as to the right of the father to the possession of his legitimate children, of whatever age they be. In the case of R. v. De Manneville, the Court held that the father of a child is entitled to the custody of it, though an infant at the breast of its mother, if the Court see no ground to impute any motive to the father injurious to the health or liberty of such a child.” [147] This is far from the actual holding of De Manneville, which held only that Mrs. De Manneville could not sue her husband. Patteson narrowed the question even further, however, by stating, “there must be some force or improper restraint on the part of the father, in order to enable the Court to take it from him.” Thus, the now-modified rule of De Manneville (that custody in the father must be injurious to the health of the child), combined with Patteson’s ruling that restraint must also be improper or by force, made it very difficult for a mother to win custody. The idea of a best interests standard, which was imputed to the chancellor’s jurisdiction in Skinner, is nowhere to be seen. Justice Patteson remarked:

there is nothing suggested which leads one to suppose that any ill-usage has been exercised by the father, or by the schoolmistress with whom he wishes his child to be placed. I feel myself, therefore, bound to say that the child must be delivered up to Miss __, whom the father has named. It might be better, as the child is in a delicate state of health, that it should be with the mother; but we cannot make any order on that point. [148]

Sadly, the court did not give consideration to the fact that Mrs. M’Clellan’s two other children had recently died at the same school from an outbreak of scrofula and that the schoolmistress had relinquished care of the third to the mother because the child would receive more vigilant and affectionate care than could be bestowed at the school. [149] The welfare of the child simply was not an issue.

In most of the successful challenges to paternal rights, it is unclear what role mothers played in the suits. In some, it is evident from the facts that the mother was deceased and the suit was between the father and maternal relatives. [150] In others, the mother was mentioned but not as petitioner or possible guardian to be appointed custody if the father was removed. [151] In the 1806 case of Whitfield v. Hales, the father was removed, and a guardian appointed, because he was in prison for ill-treatment and cruelty to his children. [152] The mother was not mentioned at all, but one would presume her presence would have been noted had she appeared. [153]

It should be remarked that ill-usage, the concept underlying the judicial determination of forfeiture, continued to be the standard throughout this period. However, what actions or omissions constituted ill-usage appear to have changed. In 1767 the bankrupt Mr. Blisset was denied custody principally because he was unable properly to educate and maintain his child. His bankruptcy was seen as presumptive abandonment. Similarly, in Delavel, the child’s physical well-being was at risk when she was put into prostitution. But after De Manneville there were only five cases in which fathers were removed for various forms of forfeiture. In 1806 Mr. Hales was replaced by a guardian for “gross ill-treatment and cruelty” to his children. [154] In 1817 Percy Shelley was removed from custody because of his atheism. In 1820 Mr. Lyons was denied his petition to regain custody of his three children that he had allowed to be raised by their grandmother and under whose will they stood to inherit a considerable estate. [155] And also in 1820, in the case of Colston v. Morris, the father and mother were both precluded from custody of their daughter who stood to inherit under the terms of her grandfather’s will. [156] The will also provided for a legacy to the father and mother, acceptance of which constituted a relinquishment of their claims to custody of their daughter. And in 1827 William Wellesley Pole was removed for his loose morals and adultery. As the century progressed, atheism was deemed worse than Jacobinism, and having one’s mistress travel around Europe with the family was somehow worse than supporting one’s mistress and her children on one’s estate. In only two cases was the moral quality of child rearing at issue.

One distinction between fathers who won and fathers who lost was that the different judges seemed to rely on whether or not the father brought his “vice” into the company of his children. In the most highly publicized case of a father losing custody during this period, Lord Eldon discussed at length the exposure of children to their father’s mistress. The case arose between William Wellesley Pole, nephew of the Duke of Wellington, and his deceased wife’s sisters, the Misses Long, over custody of their three children. Mrs. Wellesley had brought an annuity of about £40,000 a year to the marriage and sufficient estates to raise £100,000 by mortgage, yet Mr. Wellesley’s finances were in such ruinous condition that the family was forced to reside overseas for a number of years to escape creditors. [157] Throughout his marriage Mr. Wellesley maintained a long-term relationship with a woman named Mrs. Bligh who seemed to appear as if by chance at all stops in their European travels. When Mrs. Wellesley discovered the affair she returned to England, taking her children with her. She died soon thereafter but enjoined her unmarried sisters to resist any attempts by Mr. Wellesley to obtain custody of the three infants. After a number of petitions for habeas corpus the case finally came before Lord Eldon for a final determination of custody. After much analysis and regretting the situation in which he was placed, Eldon held that “if the House of Lords think proper to restore these children to Mr. Wellesley, let them do so; it shall not be done by my act.” [158] As it turned out, Mr. Bligh already had obtained a substantial damage award against Mr. Wellesley for criminal conversation; thus, the question of Mr. Wellesley’s adultery was indisputable. Eldon had no qualms about removing the children from a father who fled to escape his creditors, encouraged his children to lie and swear, and who kept his mistress through his travels. Because the issue of coverture did not arise due to Mrs. Wellesley’s recent death, the fear of marital breakdown that Eldon had expressed in De Manneville simply did not exist.

In an unnamed case cited in the notes to Lyons v. Blenkin, Lord Chancellor Brougham faced a case virtually identical to De Manneville. The mother had separated herself from her husband and was using property settled in her name for the support of herself and her infants; the husband’s income was small. The mother presented a petition requesting that custody of the children be granted to her so that she could properly educate them in accord with their expectations. Brougham refused to grant her petition, however, on mere financial expectations. He noted that “wherever the court had interfered against the father upon pecuniary considerations, they had been solid considerations, not merely expectations…. the court would not interfere on a mere offer.” [159] Presumably because the mother’s separate property was not settled directly on the children, their expectations were not sufficient to justify removal from their father. The court did order the father not to remove the children from England without its permission. Nevertheless, when the father was appointed to a situation abroad, he petitioned for leave to take the children with him. The lord chancellor granted his petition, ordering that “the father should be at liberty to take the infants abroad with him, undertaking to bring them, or such of them as should be living, back with him.” [160] The father’s rights extended so far that he could take the children abroad, thus exposing them to danger, without regard to the mother’s wishes and visitation rights or the children’s interests.

The last important interspousal custody case arose in 1836 and came before Chief Justice Denman of King’s Bench. In 1835 Henrietta Greenhill discovered that her husband was carrying on a long-term affair with a Mrs. Graham and that, at times, the two had assumed the names of Mr. and Mrs. Graham and Mr. and Mrs. Greenhill. Upon this discovery she removed, with the children, to her mother’s house in Exeter but allowed her husband free access to the children even though she would not relinquish custody. She then brought suit in the ecclesiastical courts for a separation seeking custody and alimony. [161] Hoping to stop the suit, Mr. Greenhill declared that, if she proceeded with the separation, he would demand custody of the three children. Mrs. Greenhill’s response was to bring a petition in Chancery to make the children wards of the court and to request that custody be granted to her, claiming that the children otherwise would be placed with her vituperative mother-in-law who had refused to see her own grandchildren and had quarreled with her own son. Evidence was sworn without contradiction that Mr. Greenhill had openly resided with his mistress for over a year, had adopted her name at times, had been engaged in a lawsuit with his own mother, and was not recognized by one of his own children upon her being brought into a room with himself and several strangers. Nevertheless, the response of the vice chancellor was “[t]hat however bad and immoral Mr. Greenhill’s conduct might be, unless that conduct was brought so under the notice of the children as to render it probable that their minds would be contaminated, the Court of Chancery had no authority to interfere with the common law right of the father, and that he had not the power to order that Mrs. Greenhill should even see her children as a matter of right.” [162] Chancery, the one court that could claim jurisdiction to resolve custody disputes, declined to exercise it unless Mr. Greenhill’s behavior was so flagrantly immoral as to constitute forfeiture. Presumably, traveling around the country with one’s mistress was not as bad as teaching one’s children to swear or professing atheism.

Additionally, since Mr. Greenhill did not have possession of the children at the time of suit, according to the language of M’Clellan and De Manneville, the chancellor had greater discretion to choose a proper custodian than would be the case had the children been in the custody of their father. However, Lord Denman explained:

There is, in the first place, no doubt that, when a father has the custody of his children, he is not to be deprived of it except under particular circumstances; and those do not occur in this case; for although misconduct is imputed to Mr. Greenhill, there is nothing proved against him which has ever been held sufficient ground for removing children from their father [somehow ignoring the Wellesley case in which open adultery did justify removal]…. But I think that the case ought to be decided on more general grounds; because any doubts left on the minds of the public as to the right to claim the custody of children might lead to dreadful disputes, and even endanger the lives of persons at the most helpless age. When an infant is brought before the Court by habeas corpus, if he be of an age to exercise a choice, the Court leaves him to elect where he will go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the Court must make an order for his being placed in the proper custody. The only question then is, what is to be considered the proper custody; and that undoubtedly is the custody of the father. [163]

Though Mrs. Greenhill would be blamed for shirking her maternal duty to raise her children in a proper household, the law would not help her prevent their moral contamination. [164] By 1836, “proper” custody for all children under the age of discretion seems to have been with the father.

After several weeks of negotiations, orders to show cause, writs of attachment, two court orders demanding that Mrs. Greenhill turn the children over to their father, and numerous appeals, she had exhausted her legal remedies. [165] When Mr. Greenhill refused to cooperate in a settlement to allow both parties access to the children, Mrs. Greenhill fled abroad, taking her children with her.

The only case in which a mother won custody was brought by Mrs. Bayley in 1838 against her husband’s sister who had obtained custody of her niece, presumably at the hands of her brother. The opinion occupies a mere paragraph in the reports and announces that the mother was entitled to the custody of the infant because the father had “been lately convicted of felony, and was now in custody at the hulks, under sentence of transportation.” [166] Thus, in the only case during this period in which a mother won custody of her child, the father did not appear or object, was incapable of caring for the child, and the opposing party was an aunt. What makes this case interesting is that although it was between the mother and the sister-in-law, the crucial issue to Justice Patteson was that the father was incapacitated. In such a situation, he deemed the mother’s rights were superior to the aunt’s. We can only speculate on the outcome had the father defended the suit. Had the father been present and expressed his desire that the child reside with his sister, the case might very well have come out like M’Clellan.

These cases represent the length to which the De Manneville ruling was followed and extended. Although some of the cases arose in the law courts of King’s Bench or Common Pleas and others arose in the equity court of Chancery, the judges’ assertions of differing jurisdictional powers to interfere are undermined by the consistency of outcomes in all these cases. The general rule was that habeas corpus issued out of King’s Bench but that if the father had custody at the time of suit the justices had no power to remove the child from the father’s possession. That was the holding of R. v. De Manneville. Yet in Greenhill, Chief Justice Denman was unwilling to entertain a best interests analysis, even though the father did not have custody of the children at the time of suit, and enunciated the rule that proper custody “undoubtedly is the custody of the father.” Although the distinction as to which party had custody at the time of suit presumably still existed after Greenhill, the presumption in favor of the father was so strong that virtual abandonment, adultery, and family feuding were not sufficiently detrimental to the children to justify removal of the father from his paternal rights to custody, and hence his rights to forbid any access by the mother.

Chancery, on the other hand, possessed the power to determine the “proper custody” of a child regardless of who had physical custody at the time of suit. But Ball is an oft-quoted case for the rule that Chancery would not interfere with a father’s right to custody unless he exposed the children to the vices or behavior that justified his wife’s separation or divorce. Thus, the court’s definition of “proper custody” only secondarily considered the child’s interests; it was primarily a test of the father’s behavior. And Wellesley shows just how far a flagrant and adulterous father could go before he lost his children. Notably, what tipped the scale against Mr. Wellesley was the exposure his daughter would have to Mrs. Bligh were he to retain custody, not the fact of his open and flagrant adultery. Eldon asked: “under the existing circumstances, is it proper that the girl should be placed under the care of Mr. Wellesley, while he has any connection with this woman, Mrs. Bligh? Certainly not.” [167] It was not the father’s contact with his children that was seen as contaminating, but the children’s contact with the father’s mistress that, especially in the case of a daughter, was the key issue. Significantly, of the numerous cases in which adultery was the fault of the father and the alleged basis of his unsuitability as custodian, only Mr. Wellesley lost his case. Mr. Ball, Mr. Skinner, Mr. Greenhill, and Lord Westmeath all won theirs. And Wellesley is the only case in which the mother was not a party to the suit. In no case was there any mention of the quality of home life that would be provided by the mother. Thus, whereas no case explicitly denied the existence of maternal rights, only one mother was awarded custody of her children during the period between 1760 and 1840: a wife whose husband did not oppose her suit because of a criminal conviction. By 1838 the courts had paid lip service to a rule about “proper” custody that closely resembled a best interests test—but the rule had no teeth. It was assumed that the father knew best. This belief became so entrenched that Lord Justice Bowen spelled out the unspoken in 1883: “it is not the benefit to the infant as conceived by the court, but it must be the benefit to the infant having regard to the natural law which points out that the father knows far better as a rule what is good for his children than a court of justice can.” [168]

At no time, in any of these reported cases, did the justices enquire into the mother’s character or fitness as custodian. The custodial issue was resolved into a question of the father’s forfeiture of his rights. But as the cases demonstrate, living with a mistress in debtor’s prison was not sufficient for forfeiture, nor was a separation deed forced on the father because of physical and emotional cruelty to his wife, nor was living in open adultery. Once the paternal rights had been affirmed the legal issue was resolved. If the paternal rights were denied, the next question was who should have custody of the children? And only Chancery had the jurisdiction to award custody to someone other than the father—but it was the father to whom the chancellor would look for assistance in determining the child’s best interests.

One of the factors that made resolution of custody issues so difficult during this period was the jurisdictional differences between the royal courts in powers to hear cases and to order remedies. The law regarding custody was like the law regarding separation deeds, a hodgepodge of conflicting issues running the gamut from jurisdiction and forfeiture to coverture and remedies. One textbook writer in 1827 summed up the disorder in the law of separations, including covenants regarding custody:

The law upon this subject stands in this very peculiar state, that if there be a covenant by which the husband engages to leave his wife free to reside where she likes, a court of equity will not enforce it, nor will it restrain the husband from violating it; that a court of [common] law will not entertain an action founded on the breach of it, though the very same court would enforce the due observance of it; and that the spiritual court may pronounce a sentence for the restitution of those very rights which the legal tribunal had declared the husband to have renounced beyond the power of revocation. These are difficulties arising from the different remedies which may be given by different jurisdictions upon the same subject matter, which, even supposing the agreement between husband and wife for separation and a separate maintenance to be perfectly valid, must introduce some embarrassment in the administration of the rights springing from such contract. [169]

Perhaps it was in the nature of competitive equity and law courts or was an ideological commitment on the part of these different judges to maintain some protection for father’s rights, but the judges’ refusal to temper the strict rule of paternal rights forced reformers into Parliament.

In 1837, through the efforts of Caroline Norton and Emily Cecil (Lady Westmeath), the Infant Custody Bill was presented in the House of Commons by a young Whig barrister, Sargeant Talfourd, who had represented Mr. Greenhill in his successful opposition to his wife’s custody claim. It passed in 1839 and provided that an innocent mother could petition Chancery for custody of or access to her children under age seven and access to her children over age seven, if they were under control of their father or a guardian appointed by their father. [170]

Although mothers did not suddenly begin to win custody, the statute marked an important shift in the law of custody from the juridical to the legislative. This statute was followed by others through the remainder of the nineteenth and twentieth centuries that slowly granted mothers a greater legal protection of their parental interest. [171] In focusing on the role that De Manneville played in the transition from pure, property-based considerations of guardianship to the still patriarchal and best interests considerations, we can see the context in which interspousal custody law was born.

When Eldon put a brake on the court’s interference with paternal rights in De Manneville, he was clearly concerned with the explosive potential of interspousal legal disputes, not with the well-established power of the courts to interfere in the personal exercise of familial power or in jurisdictional disputes between the benches. And in the next thirty-five years, fear of opening that domestic can of worms resulted in a law that was so strict and patriarchal that it went against virtually every well-established value recognized by the common law. As Jamil Zainaldin put it: “the nineteenth-century English judges adopted a patriarchal paradigm of family relations and applied it to the law with such force and vigor that it had the effect of creating new paternal rights, the existence of which had only been vaguely hinted at by previous judges.” [172] Thus, just as women were reaching what many historians have called a fulfillment of “domestic feminism” that had “the effect of … redistribut(ing) authority in the family[, and of the] wife … becoming the equal of the husband in family affairs,” [173] the law had stripped them of all power to oppose their husbands in any matters concerning children. Children became a weapon to force their submission in family matters, especially surrendering separate property and tolerating the infidelities of wanton husbands.

There are a number of important conclusions to be drawn from the development of the De Manneville case as precedent for interspousal custody law. First is the judicial reluctance to interfere in domestic disputes. The justices of King’s Bench and Common Pleas, after Lord Mansfield’s tenure, consistently refused to exercise jurisdiction to remove children from their fathers. And perhaps because Eldon was chancellor for over half the period at issue, the equity courts refused to question the propriety of paternal custody unless the father’s conduct was so wanton and immoral as to pose a direct threat to the children. Thus, the trend of the eighteenth-century cases, which interfered with fathers’ rights and protected maternal custody in the name of the child’s best interests, was effectively halted by repugnance at interfering in interspousal disputes.

Second, that these mothers found attorneys willing to petition for custody shows that many people believed mothers would receive some protection from the courts. The glaring disparity between a law that protected the rights of mothers to illegitimate children but not to legitimate children created an obvious disincentive for women to marry. And the complete denial of any maternal rights to custody created an intolerable situation for many women who found themselves under pressure to turn over separate property to their husbands or turn a blind eye on their husbands’ infidelities. Such a law allowed some men to demand extraordinary servility in their wives, thus reinforcing a patriarchal power structure that would be reproduced over generations. [174]

Third, the progression of these cases reveals how judicial precedents are created and ignored according to judicial attitudes, social climate, and legal problems. The eighteenth-century forfeiture cases revealed a clear judicial willingness to interfere with fathers’ rights, but the nineteenth-century cases distinguished and thus repudiated those in the interspousal context. Was this the product of judicial animosity toward domestic disputes, a response to the more conservative social attitudes of the Revolutionary War era, or the logical limits of the legal fiction of coverture? And what role did custody law play in shaping relationships between husbands and wives in the nineteenth century and in the fledgling women’s movement? What the law meant and how it functioned, both inside and outside the family, is of crucial concern to social historians. In Part 6 I address some of the issues and sources for further analysis that might help answer some of these questions.

VI. Custody, Patriarchy, and Property

There are many ways to analyze the De Manneville case and its role in the development of interspousal custody law and in influencing husband/wife relations. Doing so adequately would require more space than alloted here. Thus, I raise the following points more as avenues for further analysis than as conclusions about custody law, women’s rights, and legal history. To begin, I suggest that Eldon may have had more choice in deciding De Manneville than he expressed in the written opinion. He could have followed Mansfield’s lead in the forfeiture cases and asserted his jurisdiction to interfere where the interests of the child dictated the abrogation of the father’s rights. In De Manneville, the father’s reduced income, ill-usage of his wife, alleged irreligion, and Jacobin beliefs could have supported a forfeiture claim. [175] And even if Eldon ultimately decided that Mr. De Manneville had not “forfeited” his rights, a decision on those grounds would have affirmed the chancellor’s jurisdiction to interfere. Or, he could have followed the general trend of socage guardianship and granted Mrs. De Manneville a legally protected right to custody, even if it was subordinated to the father’s right. Doing so would have granted her automatic rights upon the father’s forfeiture and recognized her position as superior to third parties, especially collateral paternal relations. But Eldon denied Mrs. De Manneville any rights by denying her access to law. In referring to the rights of the father as guardian by nature and denying the mother power to assert her own rights, Eldon strengthened the legal position of the father at the expense of the mother.

The wardship and guardianship materials reveal competing systems and doctrines that valued protection for mothers and families and protection for property and the patriline differently. And De Manneville appears to reflect the wardship values of fathers, patriarchy, and property and to retreat from the Mansfeldian reforms of the mid- to late eighteenth century that protected mothers and community stability. This point alone calls into question the use of legal evidence to support claims that family relationships were becoming more egalitarian.

Michael Grossberg, in his recent book A Judgment for Solomon: The d’Hauteville Case and Legal Experience in Antebellum America, [176] gives a lengthy analysis of a single early interspousal custody case that began in New York and ended with a trial in Pennsylvania. Much of the legal debate centered around exactly the same concerns we see in the English cases: paternal rights, the welfare of children, and the interests of mothers who lived the domestic ideal of Victorian motherhood. Grossberg’s book gives us a wonderful look at what happened to the d’Hautevilles’ lives when they took their dispute to court and it became fodder for the media and legal ideologues who could debate forever the proper role of mothers, fathers, and children in the young republic. The Philadelphia Court of General Sessions, however, ruled in favor of the mother, Ellen d’Hauteville, noting that “her maternal affection is intensely strong; her moral reputation is wholly unblemished; and, under these admitted or established facts, the circumstances of this case render her custody the only one consistent with the present welfare of her son.” [177] Judge Barton repeated the “maternalistic dogmas” that had supported Ellen’s suit, and those of the women in these English cases. “The tender age and precarious state of [the child’s] health, make the vigilance of the mother indispensable to its proper care, … [although] paternal anxiety would seek for and obtain the best substitute which could be procured, every instinct of humanity unerringly proclaims that no substitute can supply the place of HER, whose watchfulness over the sleeping cradle or waking moments of her offspring, is prompted by deeper and holier feelings than the most liberal allowance of nurse’s wages could possibly stimulate.” [178]

Ironically, the d’Hauteville case was decided in 1840, one year after the infant custody bill was passed in England, and it followed in the footsteps of innumerable custody disputes between husbands and wives in the courts of the new states. Grossberg’s book reveals the inner workings of a pivotal case in the turning point of U.S. custody law. Judge Barton’s decision evoked tremendous outcry from lawyers, the bar, journalists, and ordinary citizens. But what Grossberg’s book so brilliantly shows is the way this case progressed beyond “merely a dispute between two parents” to become “a parable for the gender conflicts that raged throughout the republic. Men and women wrangled over marriage, divorce, domestic cruelty, and parenting by judging the acts of Ellen and Gonzalve and the needs of their son. The d’Hauteville case had become a widely shared legal experience.” [179] Most notably this is not what occurred in England. The English judiciary did not leap to support the “maternalistic dogmas” of the day; instead, they retreated behind the strict legalism of paternal rights and attempted to avoid legitimating marital separations by holding children hostage to men who demanded compliance from their wives. Yet, just as Grossberg notes how the d’Hautevilles’ experiences and narratives of their lives were structured within the shadow of law, so, too, were the lives of Mrs. De Manneville, Mrs. Skinner, and Mrs. Greenhill. Only these women lost. And while they did not likely return to their husbands’ roofs, their losses undeniably affected the lives of countless women who could not turn to law to vindicate the “maternalistic dogmas” they had adopted in their private lives.

The increasing power that the custody law gave to fathers did not go unused. Lord Chancellor Cottenham wrote in 1850: “A wife is precluded from seeking redress against her husband by the terror of that power which the law gives him of taking her children from her…. The torture of the mother will make the wife submit to any injury rather than be parted from her children.” [180]

But only a few years earlier, in some exasperation, he had spelled out the absolute denial of rights for widows when the father had appointed a testamentary guardian: “It is proper that mothers of children thus circumstanced should know that they have no right, as such, to interfere with testamentary guardians, and if under the peculiar circumstances, I think it proper now to leave the child in the custody of the mother, it is not in respect of right in that mother….” [181]

Although sympathizing with the mother who would be “kicked or kissed” into relinquishing separate property under threats of loss of her children, Cottenham could still assert (and further strengthen) the law that denied mothers all rights to their children. [182] Regardless of whether he approved of the law, his explicit denial of maternal rights in the Talbot case undermined any personal sympathy he might have expressed in dicta for these tortured mothers. The legal fiction of coverture clearly placed wives in a position subordinate to their husbands. But if coverture was a long-standing doctrine, what made the strict enforcement of it in the early nineteenth century so unusual? As has been suggested by a number of scholars, judges in the eighteenth century, like Mansfield, appear to have been willing to limit coverture doctrines when the interests of women and children required. Also, for many couples, resort to law was not a viable option as informal means of separation were cheaper and easier. Also, private separation deeds that granted mothers custody appear to have been enforced in the eighteenth century. This, understandably, led to a belief by some lawyers and many wives that they would be protected in their custody battles against unreasonable and violent husbands. Yet by 1836 and the Greenhill case, which was widely publicized in London, there could be no illusions that wives had any rights whatsover even against violent, bankrupt, and adulterous husbands. The disjuncture between social beliefs and legal rules forces us to think about the role custody law played in granting power to the husband at the expense of the wife.

Legal concepts and categories do not easily translate into social practices and priorities. Legal rights and duties in the custody context seem at odds with the notion that children are individual human beings with moral as well as physical needs. Social attitudes toward domesticity and motherhood may have called for a best interests standard or a tender years doctrine, but importation of these doctrines into real cases seems to have distorted the values that underlay the change in the first place.

For instance, in the centuries before 1700 the father’s rights to custody were premised on his so-called responsibilities—his duty to support, maintain, and educate his children in a manner appropriate to their expectations. He was required to labor for them and therefore had a right to control their labor. Within a context of laboring for wages or laboring to put food in their mouths, this reciprocity made a certain amount of sense. It also made sense when men, who also had the responsibility to support, maintain, and labor for their wives, had control over their labor as well. But with changes in attitudes toward the importance of the maternal role, a growing recognition of the importance of a child-centered upbringing, and the incidental use of the same term “labor” to describe giving birth, the notion that only fathers “labored” for their children came under criticism. [183] In fact, as the mother’s role was elevated, her personalized labor, especially during the tender years, began to overshadow the mere wage-earning labor of the father and called into question his exclusive right to his children’s labor and hence his sole right to their custody. This change came in the wake of ideological shifts in theories of property to accommodate one’s labor rights and personhood rights.

So long as a father had the duty to provide for his children, a recognition of maternal rights would interfere with a father’s control over the family’s goods and income. But we have two kinds of labor and two kinds of property at issue here. A father was legally required to ensure that his children did not fall on the charity of the parish. The power of the state to preserve landed estates and to hold fathers liable for the support of their offspring worked in conjunction with custody law to preserve the integrity of the family and the patriline. Considering that the Married Women’s Property Act was not passed until 1870, [184] a separated but still married mother’s ability to provide for her children often was vulnerable to the vagaries of fathers. [185] One can argue, therefore, that until changes occurred regarding married women’s property, a woman’s claim to custody of her children would almost always lose precisely because the best interests of the child directed that it stay with the parent who had legal control over property—that is, the father. [186]

The undercurrent of property ideology was even stronger than simple control over the goods of the marriage. When the courts began using the best interests language in the forfeiture cases, they were in a position to sidestep the compelling claims of maternal labor. As women acquired a heightened role in the family’s activities and a mother’s labor in begetting and rearing children was viewed as a woman’s primary domestic function, female labor was revalued as being central to the survival and stability of the nation. It was identified as labor per se. Although unpaid, there was no question that a woman’s fulfilling her reproductive duties was a social good to be recognized and encouraged. On the other hand, the law was moving away from a labor theory of property to a new version of family ideology—toward a best interests of the child theory. Just as women were moving into a position where they could claim legal rights to their children based on the law’s equation of children with property, the law devalued the labor and property elements in the parent-child relationship to elevate the intangible elements of the relationship like the child’s interests. Although maternal functions in early childhood development were seen as important to a child’s character and morals, the paternal functions of providing an education or a skill and equipping a child for adult life in a complex commercial world appeared to be more important. Thus, the best interests of the child still dictated that custody remain with the father. This shift in the law’s attitudes toward the parent-child relationship effectively preempted women’s attempts to demand the legal rights and recognition of their own labor within the passing property-based framework. Once the law recognized the “best interests of the child” doctrine, it could ignore women’s claims about labor and reaffirm patriarchal values in a new language that reflected the ideal of the Victorian nuclear family. Although the “separate spheres” ideology and the cult of domesticity gave women a voice and a claim for recognition of their reproductive labor, it also provided a new way of thinking about the family that bolstered patriarchal control. [187]

In some respects, maternal rights to custody pose institutional problems. If rights are proprietary entitlements, then recognizing rights in mothers would necessarily abrogate those rights held by fathers. [188] Similarly, the fiction of coverture made it nearly impossible for courts to consider challenges between wives and husbands when property, custody, and contract rights were all premised on a single marital unit. But in an effort to avoid the pitfalls of the breakdown in coverture that would be necessitated by a recognition of maternal rights, the nineteenth-century judges reinforced a patriarchy within family relations that was nearly as harsh as the Roman patria. Even fear of opening the domestic can of worms does not explain the progression from De Manneville to Greenhill and the belief by later judges that the former stood for the rule that fathers had near-absolute rights to custody of their children. How cases are read and cited by later attorneys and judges represents a process of imposing meaning onto a fact situation and drawing from that meaning a general rule of law that, in this case, probably was not in the mind of Lord Eldon when he dismissed Mrs. De Manneville’s suit. It certainly was not in the minds of the many lawyers and wives who brought subsequent suits and lost. What does it mean to say that the law changed to protect a growing egalitarianism in family relations when the principal case denied the mother any meaningful access to law?

Finally, what historiographical lesson does this history teach us? Changing the reference point or the narrative framework of a historical project reveals how starkly different interpretations of the same case or series of cases can coexist. Eileen Spring’s work on the strict settlement shows that, if we change our historical perspective, certain interpretations of legal change lose their coherence. The strict settlement was a device used for the transmission of the family estate in such a way as to prevent inheritance taxes and ensure the patriline. It created life estates for the groom upon marriage, with set provisions for the widow and as-yet-unborn daughters and younger sons. One interpretation of this new device saw it as an improvement from the vagaries of dynastic parents who could blackmail children into arranged marriages against their wills under threat of disinheritance. Guaranteeing provisions for daughters was believed to free them to marry for love and to allow them to leave the harsh confines of the family home. But Spring focuses closely on the effect of the legal device on the rise of the egalitarian family [189] and points out that a guaranteed portion only looks advantageous when compared to complete disinheritance. In her eyes, the proper comparison is to the common law rules of succession, which would have granted the heiress an entire estate in 20 to 25 percent of families. [190] As Spring remarks:

… the history of the heiress is of a great downward slide. From once succeeding according to common law rules, she came to succeed as seldom as possible. With the strict settlement of the eighteenth century she reached her nadir. She was not to succeed except as a last resort; inheritance would not be traced through her except as a last resort; and her portion, calculated before her birth, was calculated at a time when the interests of the patriline were uppermost. In a word, English landowners had moved from lineal to patrilineal principles. [191]

According to Spring, the strict settlement was a patrilineal device that furthered the increasingly patriarchal social ideology of keeping the heiress out.

What Spring and I both have attempted to do is reinterpret the evidence of legal change from a different perspective. Spring has done it from the perspective of the heiress rather than that of the potentially disinherited child, the common law rules of succession rather than the arbitrary will of the patriarch. I suggest that the rise of the patriarchal interspousal child custody law is better understood from the perspective of the common law rules of socage guardianship rather than the patriarchalism of Blackstone. We both are trying to understand the forces of change from a different starting point. The strict settlement might look like an equalizing factor in family relationships but, for Spring, it is first and foremost a device to prevent female inheritance. De Manneville might appear to be a natural continuation of a benign patriarchal law of child custody but, for me, it seems more a careful erasure of maternal rights at the very point when those rights begin to be a threat.

Our understanding of a particular case is contingent on its location within a series of narratives and counternarratives. In a narrative of patriarchy, De Manneville represents another step in a long progression of laws maintaining primogeniture, retaining control over property in the hands of the father, and reinforcing the separation of the public/male and private/female spheres. The Roman law’s influence over Bracton and Glanvill, the law of wardship, Blackstone, coverture, and the 1646 Guardianship Statute are just a few in a long line of sources supporting the values of patriarchy and paternal rights within the family relationship. De Manneville continues that trend. But it deviates from the counternarrative of competing values protected in the Anglo-Saxon law, socage guardianship, the abolition of the incidents of tenure, the canon law, and the Mansfeldian reforms. Thus, to locate the case within competing narratives calls for a recognition of its multiple meanings and the importance of context, reference point, and judicial agency. For although I cannot adjudicate the “truth” value of Spring’s argument about strict settlements, her underlying methodological point remains valid. Changing our reference point enables the historian to construct multiple narratives that attribute contradictory meanings to the same law. A guaranteed portion looks advantageous only when compared to disinheritance, not when compared to full inheritance. Similarly, De Manneville’s role in the development of interspousal custody law looks benign only in a narrative of continuing patriarchal domination of the family. But as a purposeful block of the eighteenth-century limitations on paternal power, it takes on a whole new significance. It becomes the pivotal point for the near-total erasure of the mother’s claims and the willful reaffirmation of strict patriarchal power within the private sphere throughout the nineteenth century.

Danaya C. Wright is assistant professor of law at the University of Florida College of Law. She would like to thank Sue Hemberger, Dirk Hartog, Bill Nelson, and the members of the NYU Legal History Colloquium for comments on earlier drafts of this article. She especially thanks the law librarians at the Library of Congress for their helpful assistance at many stages of her research.

Notes

1. R. v. De Manneville, 5 East 221 (1804). See also Caroline Norton, The Separation of the Mother and Child by the Law of “Custody of Infants” Considered (London: Roake, 1838), 33-37.
2. The English common law courts of this period consisted of the three central courts: King’s Bench (which also handled appeals, mandamus, and certiorari actions), the Exchequer (which primarily handled revenue actions for the Crown), and Common Pleas (which handled regular real actions—actions in which the Crown had no interest). These courts were said to dispense the common law, rules that had evolved over the centuries from the customs of the people. Alongside the law courts, Chancery evolved out of the king’s power to mediate the possible effects of strict legal rules. The Chancery courts dispensed what has come to be called “equity,” which began as a discretionary power to mediate the harsh outcomes of the central courts but evolved into a highly rule-bound and ossified institution of its own. In the context of child custody, equity courts could interfere only if the child had property of its own that could be attached. See John Baker, An Introduction to English Legal History, 3d. ed. (London: Butterworths, 1990), chaps. 3 and 6.
3. De Manneville v. De Manneville, 10 Ves. 52, 63 (1804), “In whatever principle that right is founded, it is unquestionably established, and is not disputed.”
4. Although we do not know if in fact he carried out his threats, an order from Lord Eldon prevented him from removing the child from Britain. Many women, however, found themselves under pressure to turn over property or inheritances to wayward husbands under threat of never seeing their children again. What security might have been expected by establishing separate estates was often frustrated by errant husbands who knew of their unlimited power to extort compliance through denying access to children. See Jane Gray Perkins, The Life of Mrs. Norton (London: J. Murray, 1910); Lawrence Stone, Family, Sex, and Marriage (New York: Harper and Row, 1977); idem, Road to Divorce: England 1530-1987 (New York: Oxford University Press, 1990), 170-80; and idem, Broken Lives (New York: Oxford University Press, 1995). See also the discussion below, 301-2.
5. Blackstone, Commentaries, bk. 1, ch. 1″By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: … a man cannot grant any thing to his wife, or enter into covenant with her…” (441-42). An unmarried woman, or feme sole, has all the legal rights to property, custody, and earnings as a man.
6. Cruelty that endangered life and limb must be directed at the child, not the mother, in order for a court to remove the child. See “The Law in Relation to Women,” The Westminster Review 128 (1887): 702, 705 for commentary on the harshness of a law that would leave a child with a father who was abusive to the mother if there was no evidence of abuse toward the child.
7. The tender years doctrine assumed that mothers were the most appropriate caretakers of children in their “tender years,” which was generally considered to be until they reached age seven. However, the best interests standard was extremely limited. In 1883 Bowen, L.J. put the matter succinctly: “It is not the benefit to the infant as conceived by the court, but it must be the benefit to the infant having regard to the natural law which points out that the father knows far better as a rule what is good for his children that [sic] a court of justice can.” Re Agar Ellis, 24 Ch.D. 317, 50 L.T. (n.s.) 161 (1883).
8. Even if a father forfeited his rights to custody through cruelty, he could name a guardian for his children who would have priority over the mother in all care and custody decisions. Even when a husband drove his wife away through violence, “the very fact that the mother was living separate from her husband was apparently regarded as being an argument against any claim that the mother might seek to set up against the father, since it was treated as raising a presumption that she was acting contrary to her duty.” P. H. Petit, “Parental Control and Guardianship,” in A Century of Family Law: 1857-1957, ed. R. H. Graveson and F. R. Crane (London: Sweet and Maxwell, 1957), 57-58.
9. Ibid., 58. This rule was modified in 1871 by 36 Vict. c. 12, sec. 2. But see the discussion of Westmeath cases below and Susan Staves, “Separate Maintenance Contracts,” Eighteenth-Century Life 11 (1987): 78-101.
10. Powell v. Cleaver, 2 Bro. C.C. 499 (1789).
11. Skinner, ex parte, 9 Moore 278, 27 Rev. Rep. 710 (1824).
12. 15 & 16 Geo. 5, c. 45.
13. Mr. Shaw believed that “no woman of a delicate mind would submit to call upon a court to interfere and to exercise these powers [to have custody of or access to her children].” 42 Hansards 1053 (May 9, 1838).
14. Stone, Family, Sex, and Marriage; Randolph Trumbach, The Rise of the Egalitarian Family: Aristocratic Kinship and Domestic Relations in Eighteenth-Century England (New York: Academic Press, 1978), 1-5; Philippe Aries, Centuries of Childhood: A Social History of Family Life (New York: Knopf, 1962); Lloyd deMause, The History of Childhood (New York: Psychohistory Press, 1962); J. M. Plumb, “The New World of Children in Eighteenth-Century England,” Past and Present 67 (1975): 64-93; Linda Pollock, Forgotten Children: Parent-Child Relations from 1500 to 1900 (New York: Cambridge University Press, 1983); Ivy Pinchbeck and Margaret Hewitt, Children in English Society, 2 vols. (London: Routledge, 1969).
15. See Lloyd Bonfield, “Marriage, Property and the ‘Affective Family,'” Law and History Review 1 (1983): 295-312; idem, “Affective Families, Open Elites and Strict Family Settlements in Early Modern England,” Economic History Review, 2d ser., 32 (1986): 341-54; idem, Marriage Settlements, 1601-1740 (New York: Cambridge University Press, 1983).
16. See John Gillis, For Better, For Worse: British Marriages, 1600 to the Present (New York: Oxford University Press, 1985); and Stephen Parker, Informal Marriage, Cohabitation and the Law, 1750-1989 (Basingstoke: Macmillan, 1990).
17. Lawrence Stone explains that great houses in the fifteenth and sixteenth centuries were constructed of interlocking suites of rooms. But by the eighteenth century house plans created more small rooms accessible by hallways in which privacy was greatly protected and the families could relax outside the notice of servants. See Family, Sex, and Marriage, 239-44.
18. See Michael Anderson, Approaches to the History of the Western Family, 1500-1914 (London: Macmillan, 1980). Anderson breaks family historians down into four basic groups: 1) the psychohistorians (like Lloyd deMause); 2) the demographers (like Peter Laslett, Tony Wrigley, and Roger Schofield); 3) the sentimentalists (like Lawrence Stone, Philippe Aries, and Randolph Trumbach); and 4) the socio/economists (like Alan MacFarlane and Michael Anderson). See also Mary Abbott, Family Ties: English Families, 1540-1920 (New York: Routledge, 1993). Overlapping this methodological division between family historians is something of a substantive division between those who argue for great periods of change and those who argue for continuity. Thus, Lawrence Stone, Randolph Trumbach, John Gillis, and Edward Shorter all discuss great ideological changes in the eighteenth century and Linda Pollock, Keith Thomas, and Alan MacFarlane assert a continuity in social values and practices throughout the modern and early-modern periods.
19. Industrialization created an environment in which the parent-child relationship could be viewed, judged, catalogued, and analyzed in new ways. Typical examples come from Stone’s book, in which written sources predominate. But access to books and writing supplies was not common until the eighteenth century. Similarly, it was difficult to ascertain how parents spent money on their children until there were museums, fairs, libraries, and other resources that tracked and encouraged parental expenditures.
20. Pollock, Forgotten Children, 48.
21. Stone, Family, Sex, and Marriage, 330.
22. Stone, Road to Divorce, 158-59, 432. Even if the law had been more favorable toward mothers, most women found that the inaccessibility of the courts further reduced their rights into virtual nonexistence. Access to the courts was particularly difficult during this period. A woman who no longer wished to remain married, who was physically abused, deserted, or whose husband was no longer faithful, had four basic options. She could remain with him for the sake of the children, condoning his misbehavior. Or she could seek some form of separation and live apart. Private separations, judicial separations, and parliamentary divorces were available to her so long as her conduct had been irreproachable. The private separation was particularly popular among most people who could not obtain a regular divorce or judicial separation, which required aggravated adultery (usually adultery combined with incest) or extreme cruelty. Among the poorer classes, desertion was a popular way of ending marriages, even those that involved adultery. In most private separations, a deed of separation was executed with the local justice of the peace, and included bonds given by the husband to provide his wife with a yearly allowance and by the wife’s trustees to indemnify the husband of future responsibility for her debts. During the eighteenth century these deeds usually included clauses recognizing the wife’s interest and rights and often granted custody of young children to the mother. A typical deed usually “assured her economic freedom, by empowering her to act financially in all respects as if she were a single woman, capable of making contracts, and of suing and being sued…. assured her personal freedom, thanks to a bond from the husband not to molest or seize her person, nor to sue her in the ecclesiastical courts for restitution of conjugal rights, … allowed her to live where and with whom she pleased, the husband giving bond not to molest or sue in any court of law any such person for harbouring her. [T]he couple mutually agreed not to harass each other with litigation…. [and] many deeds contained a clause which transferred the custody of one or more of the younger children from the father to the mother.” Stone, Road to Divorce, 153. Most of these clauses, however, were contrary to the common law, equity, and the canon law, and as a result were unenforceable in most courts. Ibid., 153-54. In 1873, Parliament finally legislated that separation deeds providing for custody of children were not per se invalid. See 36 Vict. c. 12, sec. 2 (1873) (“no agreement contained in any separation deed made between the father and mother of an infant or infants shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother: provided always, that no court shall enforce any such agreement if the court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto”).
23. E. P. Thompson, Customs in Common (London: Merlin Press, 1991); Gillis, For Better, For Worse.
24. See Staves, “Separate Maintenance Contracts,” and Gillis, For Better, For Worse.
25. The most absurd situation arose in the much publicized bigamy case of Regina v. Hall (1845) in which Justice Maule explained to the bankrupt prisoner that he was convicted of a very serious crime, a crime which the law provides a means for avoiding, by bringing a criminal conversation action, obtaining a judgment for damages against his wife’s seducer, seeking a divorce a mensa et thoro in the ecclesiastical court, and then petitioning the House of Lords for a parliamentary divorce, all of which would cost between five and six hundred pounds. See Stone, Road to Divorce, 368-69.
26. David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (New York: Cambridge University Press, 1989), 1-2.
27. The number of volumes of the Statutes at Large for the eighteenth century are more than three times the number for the previous five hundred years of English parliamentary history.
28. Although people had been granted the power to dispose of their property by will in 1540 pursuant to the Statute of Wills (32 Hen. 8, c. 1), tenants in knight service were prohibited from devising the entirety of their estate by will. They had to let one-third of their estate pass through the common law rules of succession which would be subject to the feudal incidents of relief, primer seisin, wardship, and marriage. See the discussion of wardship below and in Baker, Legal History, 284-94. With the Abolition of Military Tenures Act of 1646 landholders were given the right to appoint guardians for their children for the first time.
29. See W. R. Cornish and G. de N. Clark, Law and Society in England: 1750-1950 (London: Sweet and Maxwell, 1989).
30. A father acquired the power to devise his land before he acquired the power to appoint a guardian for his children.
31. Of course, he could give his children away and no one would be the wiser. The crucial situation arose when he contracted out of them and then changed his mind. In that case he would not be bound by the contract. See Westmeath v. Westmeath, Jac. 125, 37 Eng. Rep. 797 (1821); and Staves, “Separate Maintenance Contracts.”
32. 33 Geo. 3, c. 4 (1793), which required registration of aliens and surrender of government passports upon request by magistrates or customs officials.
33. R. v. De Manneville, 5 East 222, 223 (1804).
34. A parent who wished to claim custody had two methods to follow. Anyone, principally the father, could request a writ of habeas corpus to be issued out of any of the superior courts at Westminster if his child was being held improperly by another. A child who had not reached the age of discretion (fourteen years) would be surrendered to the father regardless of the father’s bad character. Ex. p. Skinner, 9 Moore C.P. 279 (1824). The preferences of a child over the age of discretion would be considered but by no means would control. Obviously, seeking this mode of redress meant that the petitioner had to be located near London and have adequate funds to petition the court. See also William MacPherson, A Treatise on the Law Relating to Infants (London: A. Maxwell and Son, 1843), vol. 1, ch. 15.
The second method, equally restrictive, was to petition in Chancery, which had wide jurisdiction over infants in its right as parens patriae. This authority was exercised solely by the Court of Chancery, which recognized, as early as 1745, its jurisdiction to consider the best interests of the child. Smith v. Smith, 3 Atk. 304 (1745), per Lord Hardwicke, L.C.: ” … it is not a profitable jurisdiction of the Crown, but for the benefit of the infants themselves.” This power, however, did not extend to deprive fathers of custody if they had not forfeited their rights through misbehavior. In 1883 the Court summarized this well-established doctrine in Re Agar Ellis, where Bowen, L.J. claimed: “It is not the benefit to the infant as conceived by the court, but it must be the benefit to the infant having regard to the natural law which points out that the father knows far better as a rule what is good for his children than a court of justice can.” 24 Ch.D. 317 (1883), summarizing Re Fynn, 2 DeG. & Sm. 457 (1848) and Re Curtis, 28 L.J.(n.s.) Ch. 458 (1859). The Court of Chancery could interfere with a father’s rights on five basic grounds: 1) unfitness in character or conduct; 2) failure to provide support for his children; 3) lack of means to support his children; 4) by agreement (not between fathers and mothers but between fathers and third parties if the third parties had acted so that revocation would prejudice the child); and 5) if the father intended to leave the jurisdiction.
35. De Manneville v. De Manneville, 10 Ves. 51, 60 (1804).
36. We can only imagine from the father’s actions in kidnapping the child that he was less than solicitous of its needs.
37. But cruelty to a wife was considered far different from cruelty to a child. This separation became a hard rule that took over a century to change. In 1887 an article in The Westminster Review pointed out the absurdity of the custody law that gave abusive fathers the benefit of the doubt. As Lord Ardmillan explained: “The rule, as a general rule, is settled; and notwithstanding his conduct to the mother, we have no reason to dread injury to the health or morals of the child. To leave his wife with the defender were to subject him to an influence exciting and tempting him to violence towards her. To leave his little child in his house is, or may well be, to introduce a soothing influence to cheer the darkness and mitigate the bitterness of his lot, and bring out the better part of his nature.” But as the author remarked: “[t]he desirability of ‘cheering the darkness and mitigating the bitterness’ of the wife’s lot does not seem to have crossed the judicial mind at all, and the poor lady obtains absolutely no redress except the privilege of living separate from the brute who had so abused her.” “The Law in Relation to Women,” 705.
38. An important distinction to be made in any analysis of English law is the separation between common law and ecclesiastical jurisdiction. The ecclesiastical courts had developed their own system of law based on the canon law of the continent and administered by courts affiliated with the dioceses. The ecclesiastical courts had jurisdiction over tithing, probate, marriage, and defamation cases. See Baker, Legal History, 146-54.
39. Baker, Legal History, 65.
40. See Shelley v. Westbrook, Jac. 266 (1817) and Ex. p. Hopkins, 3 P.Wms. 152 (1732).
41. These are not mutually exclusive categories but instead represent what appear to be competing values and interests that are all protected by some law or other.
42. James Brundage, Law, Sex, and Christian Society in Medieval Europe, (Chicago: University of Chicago Press, 1987), 38-39.
43. A child was only freed from his father’s “paternal power” by the father’s death or by an act of emancipation. See the discussion of the Twelve Tables in William Eversley, The Law of Domestic Relations (London: Stevens, 1906), 509; Justinian, Insititutes, bk. 1, title 12. All of a child’s property was controlled by his father.
44. William Forsyth, A Treatise on the Law Relating to the Custody of Infants in cases of Difference Between Parents or Guardians. (London: William Benning, 1850), §3.
45. Ibid.
46. Holdsworth tells us that “[p]ossibly the father had the power of life and death over a child who had not tasted food. He could sell his children under seven years of age, but only in cases of absolute necessity…. he had the right of moderate chastisement. He could veto the marriage of a daughter under the age of seventeen; but he could not force a marriage upon his daughter. Possibly he possessed similar rights in the case of a son.” William Holdsworth, History of English Law (London: Methuen, 1922-1966), 2: 98.
47. Christine Fell, Women in Anglo-Saxon England (Bloomington: Indiana University Press, 1984), 80. “→delbert 79 makes it clear that if a woman wishes to leave her husband there is no automatic ruling on custody. If she takes the children with her, she is also entitled to half the property. If she leaves the children with their father then the amount of property she may take is lessened accordingly. The slightly later Kentish laws of Hlodhere and Eadric legislate for the mother’s right to keep her children in the event of her husband’s death…. ‘If a man dies, leaving a wife and child, it is right that the child should stay with the mother, and one of the child’s paternal relatives, who is willing, be appointed protector to look after the property until the child is ten years old.'” Ibid., 57. Fell believes that the right of the married woman to take the children with her, and her corresponding right to take half the property, meant that she had “reasonable independence and security.” Ibid.
48. Holdsworth, History of English Law, 2: 99. See also Frances Gies and Joseph Gies, Marriage and the Family in the Middle Ages, (New York: Harper and Row, 1987), 111: “The laws of Ine of Wessex declared that a widow was to ‘have her child and rear it,’ with money provided for its maintenance and ‘a cow in summer, an ox in winter,’ and ‘the kinsmen are to take charge of the paternal home until the child is grown up.'”
49. Elaine Clark, “The Custody of Children in English Manor Courts,” Law and History Review 3 (1985): 337.
50. Ibid., 336.
51. Ibid., 337.
52. Statute of Marlborough (1267), c. 17.
53. See F. Pollock and F. W. Maitland, The History of English Law Before the Time of Edward I (Cambridge: Cambridge University Press, 1898), 1: 321, citing Glanvill vii 9; Henry de Bracton, On the Laws and Customs of England, trans., with revisions and notes, by Samuel E. Thorne (Cambridge, Mass.: Belknap Press, 1968), 2: 250-55 (fol. 86b) [hereinafter, Bracton].
54. See Richard Helmholz, “The Roman Law of Guardianship in England: 1300-1600,” Tulane Law Review 52 (1978): 225.
55. Ibid., 238.
56. Ibid., 238-39.
57. It is important to note that the different types of inheritances in different centuries have a profound influence on the suitability of certain guardians. It is far more important in a predominantly agricultural society that productive lands be maintained during the minority of a child so that they do not revert back into wild lands. A modern trust or stock folio today might be better overseen by a banker than a farmer and hence it might be more reasonable for guardians of the estate to be non-kin or professional trustees. Similarly, where the child will take over control of the land upon reaching majority, it is more critical that he or she be raised in proximity to the estate to learn how to run it than today’s heir, who need only learn the bank account number and the phone number of the trustee.
58. Bernard of Parma, Glossa Ordinaria, X. 4.7.5 s.v. secundum facultates. See also Helmholz, “Filius Nullius,” Virginia Law Review 63 (1977): 435; Brian Abel-Smith, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750-1965 (London: Heinemann, 1967), 10; and Brundage, Law, Sex, and Christian Society, 480. According to Brundage it was the general practice that minor children would remain with the mother when a marriage ended.
59. See The Treatise on the Laws and Customs of the Realm of England, Commonly Called Glanvill, ed. G. D. G. Hall (London: Thomas Nelson, 1983) vii, 11, and Bracton, 254-55.
60. Again, it is important to remember the general rule that the royal courts were most interested in property—hence, the manorial courts and ecclesiastical courts might assign guardians for nonpropertied heirs when the royal courts would decline to intervene except for heirs of freehold estates.
61. Wardship is a legal term of art referring to a particular type of guardianship, the guardianship in chivalry, which applied primarily to the very largest landholdings. See Sue Sheridan Walker, “Widow and Ward: The Feudal Law of Child Custody in Medieval England,” Feminist Studies 3 (1975): 104-16. See also Joel Hurstfield, The Queen’s Wards (New York: Longman, 1958), and Henry Esmond Bell, The Court of Wards and Liveries (Cambridge: Cambridge University Press, 1953) for extensive discussions of the disruptions caused by wardship in the sixteenth and seventeenth centuries.
62. If the landholder’s heir was over the age of majority (twenty-one for estates in military service), he or she could succeed to the estate simply by paying “relief,” a fee that was set by law for certain types of estates but which was tied to a demand for homage, “primer seisin,” that entitled the lord to the proceeds of estates until relief had been paid. Although relief and primer seisin were set at a certain fee in 1267, except for the rights of the king over his tenants in chief, these duties continued in the form of inheritance taxes and death fees.
63. Walker, “Widow and Ward,” 110, and Pinchbeck and Hewitt, Children in English Society, 1: 58-74. See also Hurstfield, The Queen’s Wards, and Bell, The Court of Wards and Liveries.
64. Walker, “Widow and Ward,” 105-6.
65. The Statute Quia Emptores in 1290 prohibited the process of subinfeudation, which had the effect of slowly eliminating the mesne lords. The consequence was that most lands held in military tenure eventually were held directly of the king and the king’s direct tenants were the only ones liable for most feudal incidents. See Baker, Legal History, 255-79.
66. Before 1540 an English landholder could not devise his estate through a will; it could only pass through the common law rules of succession. Although landowners could effectively sell their estates, this would ensure that some property would be passed on to the next generation and would be subject to inheritance taxes. Baker explains that most developments in property law were attempts to escape the inheritance taxes and feudal incidents that would accrue when an estate changed hands. One popular method was to convey one’s estate to a corporation of trustees, like one’s solicitor, who would be required to hold the estate “for the use of” the original owner. I could therefore convey my estate to my attorney just before my death with the condition that after my death he convey it back to my child. Because it was not owned by me at my death it was not subject to inheritance taxes. Henry VIII took care of that gimmick, however, with the Statute of Uses in 1536. See Baker, Legal History, 289-94.
67. In 1267 primer seisin and relief had been abolished for all lords except the king over his tenants in chief. Ibid., 274. But wardship and marriage survived until 1646, though the king, as the supreme lord, had priority as to all wardships and most were assiduous in protecting these rights that were “inflation-proof.” Although the king was just one of many lords who had tenants subject to feudal incidents, all of his tenants in chief, the largest estates in the kingdom, were subject to wardship, marriage, relief, and primer seisin. Thus, he had more to gain than anyone else in preserving the incidents. And although other lords had the rights to claim marriage and wardship from underage tenants, they were on their own in enforcing their rights, especially as wards could seek redress in the royal courts for abuse of wardship powers upon coming of age. Magna Charta even prohibited waste of a ward’s lands. The king, on the other hand, as the supreme lord and provider of royal justice, was in a unique position to enforce his wardship rights.
68. Bell, The Court of Wards and Liveries, 2.
69. Hurstfield, The Queen’s Wards, and Bell, The Court of Wards and Liveries.
70. Rogers and Smith, Local Family History in England (New York: Manchester University Press, 1991), 14.
71. Peter Laslett found that in one English village in 1676 over 40 percent of all young children would suffer the loss of at least one parent during their minorities, with roughly 64 percent suffering the loss of a father. And in compiling data from nineteen English communities between 1599 and 1811 Laslett discovered that 52 percent of orphaned children had suffered the loss of a father. Thus, at least 21 percent of all children suffered parental deprivation, and that 10 percent suffered the loss of a father and potentially came under the aegis of guardianship or wardship laws. Laslett, “Parental Deprivation in the Past,” in Family Life and Illicit Love in Earlier Generations (New York: Cambridge University Press, 1977), 160-73.
72. Pinchbeck and Hewitt, Children in English Society, 1: 73. Nicholas Fuller, in a speech to the House of Commons on November 23, 1610, put it as dramatically as possible. “Touching wardship and tenures, because it is thought a law heavy and grievous to the subjects that, after the father’s death, the son and heir within age should be taken or rent (as it were) from the mother and kindred to be bought and sold.” Proceedings in Parliament: 1610, ed. E. R. Foster (New Haven: Yale University Press, 1966), 409.
73. 12 Car. 2, c. 24 §8 (1660).
74. Presumably this statute also replaced the common law of socage guardianship by allowing the father’s testament to replace the common law’s preference for mothers and kin. According to Viner, “At common law before the act, the father, tenant in socage, could not dispose of the custody of his heir; for the law gave it to the next of kin, to whom the land could not descend [the mother in most cases], and the father had not such an interest in it as to grant it over, but it was inseparably annexed to his person.” Charles Viner, “Guardian and Ward,” General Abridgement of Law and Equity (London: G. G. J. & J. Robinson, 1793), 14: 172.
75. Eyre v. Shaftesbury, 2 P. Wms. 103, 24 Eng. Rep. 659 (1722).
76. Both nineteenth- and twentieth-century scholars and commentators have noted that the usual motive for exercising testamentary and estate-planning powers is to bypass the common law rules of succession. Thus, when the common law would grant guardianships commonly to wives, only those fathers who did not want their wives to occupy that position would bother making a testamentary guardianship devise. See Eileen Spring, Law, Land and Family: Aristocratic Inheritance in England, 1300-1800 (Chapel Hill: University of North Carolina Press, 1993), and Cornish and Clark, Law and Society in England. However, in at least one case where a father nominated executors of his will, but did not explicitly appoint a guardian, the mother was appointed custodian of the person of the heir while the executors were left to control the estate. Dormer v. Dormer, Webb, and Weedon, Finch Chanc. Rpts. 432 (1679).
77. Viner, Law and Equity, 14: 160-205.
78. Ibid., 170-71.
79. Blackstone, Commentaries, bk. 1, ch. 16. But the legal constraint of inheritance rules on the guardianship by nature of the father distinguished between the purely legal concept of the guardian by nature and the more general “natural” relation of either parent to his or her offspring. The “natural” parental tie, deriving from the biological connection, was, for Blackstone, the cornerstone of the parental duties of support, maintenance, and education. The guardian by nature, however, was a formal, legalistic term that denoted a particular legal relation of the father to his heir.
80. In the Hargrave and Butler edition of Coke on Littleton, the editors devote a lengthy footnote to the confusion likely to arise over use of the term “nature.” As they explain: “Thus when in chancery the father and mother are styled the natural guardians of all their children born in marriage, or of any of their illegitimate issue, we should suppose those who express themselves so generally, to refer to that sort of guardianship which the order and course of nature, so far as we are able to collect it by the light of reason, seem to point out and to mean, that it is a good rule to regulate the guardianship by, where positive law is silent, and it is in the discretion of the lord chancellor to settle the guardianship. So too when lord Coke says, that the custody of a female child under sixteen, to which the father, and after his death the mother, is … jure naturae, we should understand him to mean, not that such a custody was a guardianship by nature recognized by our common law, but merely that it was a statutory guardianship adopted by the legislature in conformity to the dictates of nature, and upon principles of general reasoning.” Coke’s Commentary on Littleton, ed. Hargrave and Butler (Philadelphia: Small, 1853), fol. 88b [hereinafter Coke on Littleton].
81. The manorial courts were located in the manors and castles of the large land-holding lords who would see to it that some form of law was available to their tenants. As the Crown became more powerful after William II and was able to enforce orders by its own courts through the actions of royally appointed sheriffs, the royal courts provided a competitive system of justice that vied with the manorial courts for customer/litigants. See Baker, Legal History, 14-40.
82. Viner, Law and Equity, 14: 171.
83. 12 Car. 2, c. 24 §8 (1646). Lord Macclesfield, in Beaufort v. Berty, 1 P. Wms. 703 (1721), construed the powers of the testamentary guardian to be as limited and subject to court supervision as those of socage guardians.
84. Ex. P. Edwards, 3 Atk. 519 (1747); Bedell v. Constable, Vaugh. 180 (1680).
85. Talbot v. Earl of Shrewsbury, 4 Myl. & Cr. 672, 683 (1840).
86. Eyre v. Countess of Shaftsbury, 2 P. Wms. 103; 24 Eng. Rep. 659 (1722) and Villareal v. Mellish, 2 Swanst. 536 (1737). Dormer v. Dormer, Weedon, & Webb, Finch. Chanc. Rep. 432 (1679).
87. Travel abroad was an important issue, as was sending a child to university. In one case, the guardian wanted to send a child to Cambridge, but the child preferred Oxford. After his twice leaving Cambridge and going to Oxford, the court finally sent a messenger to carry him back to Cambridge and to keep him there. Tremain’s case, 1 Stra. 168 (1720)
88. Viner, Law and Equity, 14: 175.
89. These guardians could take at least two different forms, the tutor for children not yet reaching puberty (age of discretion) and concerning both the child’s person and property and the curator for children past puberty and concerning the child’s property and specific litigation issues. See Helmholz, “The Roman Law of Guardianship,” 223. And within these canon law categories existed differences, as for instance whether the tutor was “testamenta,” “legitima,” or “dativa.”
90. Bingham, The Law of Infancy and Coverture (Exeter, 1824), 158. Thorpe et al., Holt’s Rpts. 333 (Trin 8W3-1702).
91. But not vice versa. See Dormer, Finch. Chanc. Rpts. 432 (1679).
92. C. Donahue, “Ius Commune, Canon Law, and Common Law in England,” Tulane Law Review 66 (1992): 1745, 1758-60; Baker, Legal History, 33-34, 201; Justinian, Institutes, bk. 1, title 9 (finding paternal power to be the basis of the paterfamilias and family and guardianship law); and Bracton, at 34-37.
93. Clark, “Custody of Children,” 343.
94. This would be as if a law existed removing children from custody of their parents if they inherited an estate worth over $1 billion. The law would have a very limited application and would be quite disruptive to those it applied to. But when outrage over the disparate treatment and intrusiveness into parental rights succeeded in requiring equal treatment, the courts declared that equality means enforcing the law on all rather than on none. Thus, all children would be removed from their parents rather than none.
95. Grand Opinion for the Prerogative Concerning the Royal Family, Fortescue 401, 406 (1717).
96. Magna Charta cap. 7.
97. Where the tenant of lands held in military tenure died with an underage heir, the land would revert to the overlord but the child’s person, if the father still lived, would remain with the father who would have custody of the child and would have the child’s marriage. This most often occurred with the death of a maternal grandfather where the grandchild would inherit the estate but the father still lived. But where the maternal grandfather held in socage, the father might take custody of the child’s estate and continue as guardian by nature. In that instance, however, the father’s duty to the child as a socage guardian superseded his duty as guardian by nature because the socage guardian’s duties were higher. Co. Litt. 88b.
98. Ironically, George III codified this custom in the Royal Marriages Act, 12 Geo. 3, c. 11 (1772), which provided that no descendant of the body of George II “shall be capable of contracting matrimony without the previous consent of his Majesty, his heirs, or successors.”
99. The Grand Opinion, 409, 411.
100. The Grand Opinion, 412.
101. It is ironic that the grandson, Prince Frederick, who was the subject of so much familial rancor, died before his father, George II, who was then succeeded by Frederick’s son, George III.
102. Ex. Parte Hopkins, 3 P. Wms. 152, 24 Eng. Rep. 1009 (1732).
103. Forsyth, Custody of Infants, 39.
104. Blake v. Leigh, Ambl. 306 (1756).
105. Creuze v. Hunter, 3 Cox 242 (1790), in which the father was not only insolvent but had been outlawed and resided abroad, and Ex. Parte Warner, 4 Bro. C. C. 102 (1792), in which the father was alleged to be an “unfit” person. However, though the court would find an equitable estoppel where the father had agreed or encouraged expectations for his children by allowing them to reside elsewhere, it would find no estoppel when the other party was the mother and the child resided with her pursuant to a separation deed. Westmeath v. Westmeath, Jac. 125. His willful and sworn agreement to allow the mother to retain custody would not bar his suit for return, though an informal living arrangement with third parties would.
106. R. v. Smith, 2 Str. 982 (1735).
107. Wilcox v. Drake, 2 Dick 631 (1784).
108. Kiffin v. Kiffin, cited in Beaufort v. Berty, 1 P. Wms. 703 (1721); Roach v. Garvan, 1 Ves. Sr. 157 (1748).
109. R. v. Delavel, 1 S.W. Black 410 (1763); 2 Burr. 1434, 97 Eng. Rep. 913 (1763).
110. Blisset’s Case, Lofft. 748, 749, 98 Eng. Rep. 899 (1767).
111. Creuze v. Hunter, 2 Bro. C.C. 500 (1790).
112. Ex. p. Warner, 4 Bro. C.C. 102 (1792); see also Potts v. Norton, 24 Eng. Rep. 666n (1792).
113. Ward v. St. Paul, 2 Bro. C.C. 583 (1789); Peckham v. Peckham, S.C. 2 Cox 46 (1788); Mellish v. De Costa, 2 Akt. 14 (1737); Dillon v. Mount-Cashell, 4 Brown Parl. Cases 306 (1727).
114. Dormer v. Dormer, Webb, & Weedon, Finch. Chanc. Rpts. 432 (1679), in which the father named “executors” of his will, granting them rights over the property, but in which the mother retained custody because no “guardian” had been appointed.
115. Ratcliffe’s Case, 3 Co. Rep. 37(b) (1592); Dillon v. Mount-Cashell, 4 Brown Parl. Cas. 306 (1727); Darcy v. Lord Holderness, 1 Will. Rpt. 703n (1725).
116. Roach v. Garvan, 1 Ves. Sr. 157 (1748); Eyre v. Countess of Shaftesbury, 2 P. Wms. 103, 24 Eng. Rep. 659 (1722); Edwards & Wife, Barn. Chanc. Rpts. 139 (1740).
117. In the case of Edwards & Wife, Barnard. Chanc. Rpts. 139 (1740), the court noted that had Mrs. Edwards been a testamentary guardian or socage guardian, instead of merely a guardian by nurture, the result might have been different. See also Preston v. Ferrard, 4 Brown Parl. Cases 298 (1720).
118. 4 Brown Parl. Cases 302, 88 Eng. Rep. 302 (1724).
119. Ibid. at 88 Eng. Rep. 303.
120. Ibid. (emphasis added).
121. H. L. Journal, vol. 22, p. 322 (1724).
122. See Re Agar Ellis, 24 Ch.D. 317 (1883); Re Besant, 48 L.J. Ch. 497, 11 Ch.D. 508, 40 L.T. 469 (1879).
123. Mellish v. De Costa, 2 Atk. 14; 2 Swanst. 567 (1737).
124. Dillon v. Mount-Cashell, 4 Brown Parl. Cas. 306 (1727).
125. Eyre v. Shaftesbury, 2 P. Wms. 103 (1722); Reynolds v. Tenham, 9 Mod. 40 (1724); Roach v. Garvan, 1 Ves. Sr. 157 (1748).
126. Roach v. Garvan, 1 Ves. Sr. 157 (1748); Eyre v. Countess of Shaftesbury, 2 P. Wms. 103 (1722); Shipbrook v. Hinchbrook, 2 Dick. 547 (1778).
127. 1 P. Wms. 702, 706. See also Tremain’s Case, Stra. 168 (1720).
128. Ex. p. Hopkins, 3 P. Wms. 152 (1732); Creuze v. Hunter, 2 Bro. C.C. 500 (1790); Ex. P. Warner, 4 Bro. C.C. 101 (1792); Blake v. Leigh, Ambl. 306 (1756).
129. Cited in Powel v. Cleaver, 2 Bro. C.C. 499, 500 (1789).
130. The Court, in Beaufort v. Berty, 1 P. Wms. 703 (1721), explained that “by the statute of 12 Car. 2, c. 24, [a father] had as much power to dispose of the guardianship of his children as by the statute of 32 H. 8, a man hath to dispose of his lands.”
131. Delavel, 914.
132. Blisset’s Case, 749.
133. However, at least a few commentators noted that the legal power in Chancery to protect lunatics, idiots, and miserabiles personae did not extend to infants who had other protectors: namely fathers. Hargrave’s comments to Coke on Littleton explained that the chancellor’s guardianship jurisdiction over infants was not satisfactorily justified. “Saying that his jurisdiction over idiots and lunatics is undoubted, furnishes an argument against his having any over infants; for he derives the former from a separate commission under the sign manual, but there is not any such to warrant the latter. The writs of ravishment of ward and de recto de custodia prove as little: for … how doth a jurisdiction to decide between contending competitors for the right of guardianship prove a power of appointing a guardian, where it happens that one is wanting?” [Coke on Littleton, fol. 88b n. 16.] Lord Hardwicke also disapproved of comparing the court’s jurisdiction over infants to that of idiots and lunatics. Ex. P. Whitfield, 2 Atk. 315 (1742).
134. “However, we must not be understood by these remarks to controvert the present legality of the jurisdiction thus exercised in Chancery over infants; our intent being simply to show that such jurisdiction is not, as far as yet appears, of ancient date; and that, though it is now unquestionable, yet at first it seems to have been an usurpation, for which the best excuse was, that the case was not otherwise sufficiently provided for” (Coke on Littleton, fol. 88b n. 16).
135. These cases represent every case brought by a mother seeking custody against the father. It also represents every case brought by a third party against the father where the father lost. It does not represent every case brought by third parties in which the father won as these cases did not affect the issue of the father’s behavior that would justify judicial interference, whether for the mother or for a third party.
136. See discussion of the Westmeath case in Stone, Broken Lives, 284-346.
137. The deed was subsequently held by every court to be invalid on grounds that it contemplated a future separation, an event contrary to public policy. See Staves, “Separate Maintenance Contracts.”
138. 162 Eng. Rep. 1035-36; Wood v. Westmeath, Royal Irish Academy/Haliday Pamphlets, 1342: 50-3; Westmeath v. Westmeath, Reg. Lib. A. 1818, fol. 1359 and 1534 (1818) and cited in Lyons v. Blenkin, Jac. 245, 264 (1821).
139. Stone, Broken Lives, 313; RIA/HP 1342: 24, 27-30.
140. This was a relatively recent shift. See Staves, “Separate Maintenance Contracts.” Before the early nineteenth century, most provisions in these separation contracts had been upheld. But in 1818 Eldon put his foot down on contracting away custody rights.
141. Unfortunately, the only published records of the Westmeaths’ custody battles exist as notes to other cases or in summary form in an ecclesiastical court opinion. This was a common practice. There was no official procedure for reporting cases, which often appeared posthumously as publications of notebooks or shorthand reports of oral arguments and decisions. Until 1865, when the Council of Law Reporting was established to produce the Law Reports, the reports are difficult to use and frustratingly incomplete. See Baker, Legal History, 208-11. For instance, this case is a note to Lyons v. Blenkin, Jac. 246, 251 (1821).
142. Westmeath v. Westmeath, Jac. 125, 37 Eng. Rep. 797 (1821).
143. Ex parte Skinner, 9 Moore 278, 279 (1824).
144. Ibid. at 281 (emphasis added).
145. Ibid. at 282.
146. Ball v. Ball, 2 Sim. 25, 36-37 (1827).
147. Ex. p. M’Clellan, 1 Dowl. P. C. 81, 84 (1831).
148. Ibid. at 86 (emphasis added).
149. See Norton, Separation, 45-49.
150. Wellesley v. Duke of Beaufort, 1827 Ann. Reg. 297 (1827); Shelley v. Westbrooke, Jac. 266 (1817).
151. Blisset’s Case, Lofft 748 (1767); Creuze v. Hunter, 2 Bro. C.C. 500 (1790).
152. 12 Ves. Jr. 492 (1806).
153. See Ex. p. Bayley, 49 Rev. Rep. 727 (1838).
154. Whitfield v. Hales, 12 Ves. Jr. 492 (1806).
155. Lyons v. Blenkin, Jac. 245 (1820).
156. Jac. 257 (1820).
157. It is interesting to compare this case to the 1790 case of Crueze v. Hunter. In the earlier case, finances alone occupied the court’s consideration and justified removal of the father from custody. In the later case, the adultery was the prime factor in removing the father.
158. Wellesley v. Duke of Beaufort, 1827 Ann. Reg. 297, 310.
159. Jac. 264-65 n. 7 (1836).
160. Ibid. at 265 (emphasis added).
161. The ecclesiastical courts did not have the power to enforce a custody award and in fact were not able to make any determination as to custody, but they did have indirect powers in their alimony awards and in their findings of parental fault to tilt the scales toward one parent or the other. See Shelfourd, A Practical Treatise on the Law of Marriage and Divorce (Philadelphia: Littell, 1841), sect. 6.
162. Norton, Separation, 61 (emphasis in original).
163. R. v. Greenhill, 4 Ad. & E. 624, 639-40 (1836).
164. Anne Brontë, in The Tenant of Wildfell Hall, explored at great lengths the dilemmas facing mothers who wished to instill Christian virtues of moderation and reverence in the face of profligate and excessive fathers.
165. R v. Greenhill, 4 Ad. & E. 624 (1836); Greenhill v. Greenhill, 163 Eng. Rep. 162 (1836).
166. Ex. p. Bayley, 6 Dowl. Prac. Cas. 311, 49 Rev. Rep. 727 (1838).
167. Wellesley, 307.
168. Re Agar Ellis, 24 Ch.D. 317 (1883) summarizing Re Fynn, 2 DeG. & Sm. 457 (1848) and Re Curtis, 28 L.J. (n.s.) Ch. 458 (1859).
169. Stone, Road to Divorce, 158.
170. 2 & 3 Vict. c. 54, s.1 (1839). See the discussion in Mary Shanley, Feminism, Marriage, and the Law, (Princeton: Princeton University Press, 1989), 131-55.
171. The history of the 1873 and 1886 custody acts have been thoroughly researched and analyzed in Mary Shanley’s Feminism, Marriage, and the Law.
172. Jamil Zainaldin, “Emergence of Family Law,” Northwestern University Law Review 73 (1979): 1038-89, 1063 n. 97.
173. Ibid., 1051-52, citing Nancy F. Cott, The Bonds of Womanhood (New Haven: Yale University Press, 1977) and Daniel Scott Smith, “Family Limitation, Sexual Control, and Domestic Feminism in Victorian America,” in Clio’s Consciousness Raised, ed. Mary S. Hartman and Lois Banner (New York: Harper and Row, 1974), 119-36.
174. See Nancy Chodorow, The Reproduction of Mothering (Berkeley: University of California Press, 1978).
175. Mere bankruptcy was enough in Blisset’s Case.
176. New York: Cambridge University Press, 1996.
177. Ibid., 163.
178. Ibid.
179. Ibid., 200.
180. Stone, Road to Divorce, 173.
181. Talbot v. Shrewsbury, 4 Myl. & Cr. 672 (1840).
182. The “kicked or kissed” problem was an enduring one for judges and legislators throughout the century. It most often referred to attempts by husbands to get at property held in separate trusts for their wives. If they could not coax it out with kisses or force it out with kicks, they would then try blackmailing it out with threats of losing access to children. This dilemma arose frequently in the discussions of legal cases during the first part of the century; see Caroline Norton’s life (Perkins, The Life of Mrs. Norton) and the Turst and Blood families (Stone, Broken Lives); it was also a literary trope that we see in Mary Wollstonecraft’s Maria: or the Wrongs of Woman (1797).
183. In contrasting the “law of nature” with “man-made law,” Norton writes: “Does nature say that the woman, who endures for nearly a year a tedious suffering, ending in an agony which perils her life, has no claim to the children she bears? Does nature say that the woman, who after that year of suffering is over, provides from her own bosom the nourishment which preserves the very existence of her offspring, has no claim to the children she has nursed? Does nature say that the woman who has watched patiently through the very many feverish and anxious nights which occur even in the healthiest infancy, has no claim to the children she has tended? And that the whole and sole claim rests with him, who has slept while she watched; whose knowledge of her sufferings is confined to the intelligence that he is a father; and whose love is at best but a reflected shadow of that which fills her heart? No! the voice of nature cries out against the inhuman cruelty of such a separation.” Norton, Separation, 9-10.
184. 33 & 34 Vict. c. 93 (1870).
185. It was not uncommon for a husband to desert his wife and then show up miraculously as soon as she had acquired a few assets, reclaim possession of her, leaving her in a few weeks or months with an empty bank account and no furniture.
186. We often see separation cases in which advocates for the mother assert that the mother will be a fit custodian because her father or brother or other male relative has agreed to support her and her children. Without her own property or her own means of support, a woman’s custody claim would be rejected. In Greenhill v. Greenhill we see Mrs. Greenhill acting through the good offices of her brother and using him as a go-between in order to prevent her husband from discovering her whereabouts.
187. A similar trend can be seen when women get separate property rights and then claim custody, for the terms of the debate switch again to ability to prepare a child for adult life and fathers conveniently still had legal control over educational, medical, and religious decisions.
188. This position was forcefully argued in Edwin Hill Handley, “The Custody of Infants’ Bill,” British and Foreign Review 7 (1838): 269-411, where the author labeled the 1839 Act the “Robbery of Fathers Bill.”
189. Spring, Law, Land, and Family.
190. Spring, “The Heiress-at-Law: English Real Property from a New Point of View,” Law and History Review 8 (1990): 273-96. See also Susan Okin, “Patriarchy and Married Women’s Property in England,” Eighteenth-Century Studies 17.2 (1984): 121-38, who argues that the changes in social values of domesticity and women’s status of the late seventeenth and eighteenth centuries actually occur after the legal changes in marital property and the strict settlement which can be traced back to the period between 1581 and 1640 (123-24).
191. Spring, “The Heiress-at-Law,” 280.

 

By DANAYA C. WRIGHT