1. R. v. De Manneville, 5 East 221 (1804). See also Norton, Caroline, The Separation of the Mother and Child by the Law of “Custody of Infants” Considered (London: Roake, 1838), 33–37Google Scholar.

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 out-comes 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 Baker, John, An Introduction to English Legal History, 3d. ed. (London: Butterworths, 1990), chaps. 3 and 6Google Scholar.

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 Perkins, Jane Gray, The Life of Mrs. Norton (London: J. Murray, 1910)Google Scholar; Stone, Lawrence, Family, Sex, and Marriage (New York: Harper and Row, 1977)Google Scholar; 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. 15. “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): 702Google Scholar, 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.” Petit, P. H., “Parental Control and Guardianship,” in A Century of Family Law: 1857-1957, ed. Graveson, R. H. and Crane, F. R. (London: Sweet and Maxwell, 1957), 57–58Google Scholar.

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): 78–101Google Scholar.

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; Trumbach, Randolph, The Rise of the Egalitarian Family: Aristocratic Kinship and Domestic Relations in Eighteenth-Century England (New York: Academic Press, 1978), 1–5Google Scholar; Aries, Philippe, Centuries of Childhood: A Social History of Family Life (New York: Knopf, 1962)Google Scholar; deMause, Lloyd, The History of Childhood (New York: Psychohistory Press, 1962)Google Scholar; Plumb, J. M., “The New World of Children in Eighteenth-Century England,” Past and Present 67 (1975): 64–93CrossRefGoogle Scholar; Pollock, Linda, Forgotten Children: Parent-Child Relations from 1500 to 1900 (New York: Cambridge University Press, 1983)Google Scholar; Pinchbeck, Ivy and Hewitt, Margaret, Children in English Society, 2 vols. (London: Routledge, 1969)Google Scholar.

15. See Bonfield, Lloyd, “Marriage, Property and the ‘Affective Family,’” Law and History Review 1 (1983): 295–312CrossRefGoogle Scholar; 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 Gillis, John, For Better, For Worse: British Marriages, 1600 to the Present (New York: Oxford University Press, 1985)Google Scholar; and Parker, Stephen, Informal Marriage, Cohabitation and the Law, 1750-1989 (Basingstoke: Macmillan, 1990)CrossRefGoogle Scholar.

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 Anderson, Michael, Approaches to the History of the Western Family, 1500-1914 (London: Macmillan, 1980)CrossRefGoogle Scholar. 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 Abbott, Mary, Family Ties: English Families, 1540-1920 (New York: Routledge, 1993)Google Scholar. 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. Thompson, E. P., Customs in Common (London: Merlin Press, 1991)Google Scholar; 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. Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (New York: Cambridge University Press, 1989), 1–2CrossRefGoogle Scholar.

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 Cornish, W. R. and Clark, G. de N., Law and Society in England: 1750-1950 (London: Sweet and Maxwell, 1989)Google Scholar.

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 MacPherson, William, A Treatise on the Law Relating to Infants (London: A. Maxwell and Son, 1843), vol. 1, ch. 15Google Scholar.

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. Brundage, James, Law, Sex, and Christian Society in Medieval Europe, (Chicago: University of Chicago Press, 1987), 38–39CrossRefGoogle Scholar.

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 Eversley, William, The Law of Domestic Relations (London: Stevens, 1906), 509Google Scholar; Justinian, Insititutes, bk. 1, title 12. All of a child's property was controlled by his father.

44. Forsyth, William, A Treatise on the Law Relating to the Custody of Infants in cases of Difference Between Parents or Guardians. (London: William Benning, 1850), §3.Google Scholar

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.” Holdsworth, William, History of English Law (London: Methuen, 1922-1966), 2:98Google Scholar.

47. Fell, Christine, Women in Anglo-Saxon England (Bloomington: Indiana University Press, 1984), 80Google Scholar. “Ædelbert 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 Gies, Frances and Gies, Joseph, Marriage and the Family in the Middle Ages, (New York: Harper and Row, 1987), 111Google Scholar: “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. Clark, Elaine, “The Custody of Children in English Manor Courts,” Law and History Review 3 (1985): 337CrossRefGoogle Scholar.

50. Ibid., 336.

51. Ibid., 337.

52. Statute of Marlborough (1267), c. 17.

53. See Pollock, F. and Maitland, F. W., The History of English Law Before the Time of Edward I (Cambridge: Cambridge University Press, 1898), 1:321Google Scholar, citing Glanvill vii 9; Bracton, Henry de, On the Laws and Customs of England, trans., with revisions and notes, by Thome, Samuel E. (Cambridge, Mass.: Belknap Press, 1968), 2:250–55Google Scholar (fol. 86b) [hereinafter, Bracton].

54. See Helmholz, Richard, “The Roman Law of Guardianship in England: 1300-1600,” Tulane Law Review 52 (1978): 225.Google Scholar

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 facilitates. See also Helmholz, , “Filius Nullius,” Virginia Law Review 63 (1977): 435Google Scholar; Abel-Smith, Brian, Lawyers and the Courts: A Sociological Study of the English Legal System, 1750-1965 (London: Heinemann, 1967), 10Google Scholar; 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. Hall, G. D. G. (London: Thomas Nelson, 1983) vii, 11Google Scholar, 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 Walker, Sue Sheridan, “Widow and Ward: The Feudal Law of Child Custody in Medieval England,” Feminist Studies 3 (1975): 104–16CrossRefGoogle Scholar. See also Hurstfield, Joel, The Queen's Wards (New York: Longman, 1958)Google Scholar, and Bell, Henry Esmond, The Court of Wards and Liveries (Cambridge: Cambridge University Press, 1953)Google Scholar 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), 14Google Scholar.

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), 160–73CrossRefGoogle Scholar.

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. Foster, E. R. (New Haven: Yale University Press, 1966), 409Google Scholar.

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.” Viner, Charles, “Guardian and Ward,” General Abridgement of Law and Equity (London: G. G. J. & J. Robinson, 1793), 14:172Google Scholar.

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 Spring, Eileen, Law, Land and Family: Aristocratic Inheritance in England, 1300-1800 (Chapel Hill: University of North Carolina Press, 1993)Google Scholar, 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. 88bGoogle Scholar [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 so-cage, 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. Wesimeath 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. Bern, 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. Wardv. 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. Ratdiffe'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. Wins. 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. 6Google Scholar.

162. Norton, Separation, 61 (emphasis in original).

163. R. v. Greenhill, 4 Ad. & E. 624, 639-40 (1836).

164. Anne Bronte, in The Tenant of Wildfetl 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 Viet. c. 54, s.l (1839). See the discussion in Shanley, Mary, Feminism, Marriage, and the Law, (Princeton: Princeton University Press, 1989), 131–55Google Scholar.

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. Zainaldin, Jamil, “Emergence of Family Law,” Northwestern University Law Review 73 (1979): 1038–89Google Scholar, 1063 n. 97.

173. Ibid., 1051-52, citing Cott, Nancy F., The Bonds of Womanhood (New Haven: Yale University Press, 1977)Google Scholar and Smith, Daniel Scott, “Family Limitation, Sexual Control, and Domestic Feminism in Victorian America,” in Clio's Consciousness Raised, ed. Hartman, Mary S. and Banner, Lois (New York: Harper and Row, 1974), 119–36Google Scholar.

174. See Chodorow, Nancy, The Reproduction of Mothering (Berkeley: University of California Press, 1978)Google Scholar.

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 Handley, Edwin Hill, “The Custody of Infants’ Bill,” British and Foreign Review 7 (1838): 269–411Google Scholar, 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): 273–96CrossRefGoogle Scholar. See also Okin, Susan, “Patriarchy and Married Women's Property in England,” Eighteenth-Century Studies 17.2 (1984): 121–38CrossRefGoogle Scholar, 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.