The legal history of the western Canadian frontier has received renewed attention in recent years. Much of the work readdresses the question of “law and order,” challenging older assumptions about Canada's orderly frontier culture—orderly particularly in contrast to the United States’ violent settlement of the west. At issue is not just a revision of whether violence occurred on the Canadian frontier but a fundamental reinterpretation of what the concepts of “law” and “order” had really meant. Indeed, conflict between legal cultures has become a major theme as historians attempt to rewrite the history of the Canadian west. They understand that this conflict—whether violent or not—shaped the formation of Canada's legal culture before 1870. Methodological prescriptions for writing this type of history have emphasized the need for historians to widen their base of sources, particularly to exploit “nonlegal” sources (such as diaries, journals, and letters), and to consider the workings of what Lawrence Friedman has called the “cultural” component of a legal system: what suits were brought to court, what notions came into play there, what expectations people brought with them. Important studies on the colonial settlement of British Columbia in the nineteenth century have focused on the relationships between the Hudson's Bay Company, colonists, and Natives to demonstrate that conflict over resources and competing definitions of liberalism and law often shaped legal discourse. These rich accounts have, among other things, called into question the idea of an orderly, peaceful Canadian frontier. They have also provided a much more complex picture of the interactions between Native and European, and the uses of law and the legal system by settlers, Company men, and Aboriginals.

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. 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. Lord Eldon agreed that “the law is clear that the custody of a child, of whatever age, belongs to the father.” 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. The law supported his right to carry out his threats.

Danaya Wright's analysis of English child custody law is thoughtful and thought provoking. Through an excursion deep into English legal history, she not only contextualizes the De Manneville case but also convincingly demonstrates that child custody has long been contested and that those contests have always contained an incendiary mix of policies and practices. Wright's article documents that the key elements of custody conflicts—property, children's needs, and paternal and maternal rights and claims—have distinct and collective histories and that both defy easy analysis. In doing so, her essay makes it clear that these cases have always been difficult because they involve changing and clashing interests and because common law tribunals are the setting for their definition and application. Consequently, her essay is a compelling example of the benefits of locating a case in its particular place and time.

Wright's article has two themes running through it: a discussion of the meaning of De Manneville and a history of custody in England from medieval times onward set against historians' theories of family development. Comment on her article then is best divided into two parts. I begin with her wide-ranging history, for here she makes an indisputable contribution to women's history that needs only notice and emphasis.

I am grateful to Eileen Spring and Michael Grossberg for their thoughtful comments on a study that has occupied my life for the past five years, and which has finally been produced in a more detailed form as my dissertation. Unfortunately, many of their comments point to gaps, in the best interests standard and comparisons with U.S. law for instance, that are taken up in the longer study. But if I could put my entire dissertation into a single sentence, it would be that a history of English custody law reveals profoundly different commitments on the part of judges to protecting mother's rights and to recognizing some form of a best interests test as social conditions changed, and that the patriarchal moorings of custody law remain with us today as we try to solve the deeply problematic issues raised for a legal system that still pits parental rights against children's welfare. Grossberg and Spring both point to the issue of judicial agency that I grapple with in my article and I will briefly address a few points on that topic. Then, rather than address their comments individually, I would prefer to suggest some of the conclusions I draw in the larger study and make connections to what is presented here.

In 1770, Antoine-Louis Séguier, the avocat général (king's advocate) of the Parlement of Paris, defended Jean-Baptiste Dubarle, a Parisian wine merchant, against charges of theft, seduction, kidnapping, and adultery initiated by a carpenter, Eustache Chefdeville. For all of the offenses, Chefdeville demanded monetary reparation.

The case, summarized in a mémoire, connects the history of family law in France under the ancien régime to the skillful use of lawyerly forensics. But it also relates to literary portrayals of social scapegraces who betray the esteemed values of friendship and gratitude: in fact, this member of Paris's menu peuple emerges from the pages of the case abstract as a dissembling traitor. Séguier's legal brief, viewed as a work of fiction, projects Chefdeville as an ungrateful betrayer who feigns comradery. In Séguier's telling, this disfigured pariah, albeit socially inferior, takes his place next to the deceptive worldlings described in many eighteenth-century novels. Like them, he violates the sacred laws of sincerity, turning himself into a moral pervert. Séguier's mémoire is rich precisely because it demonstrates how a skilled lawyer attempting to win his case adopts the form of a story characterized by all the literary qualities of the day—love, friendship, avarice, and betrayal. It illustrates a classic legal approach and also reads like a novel from beginning to end.

Legal historians have had an ambivalent relationship with new technology. As students and spokespersons of the somewhat-stodgy legal past, our sympathies have predictably been with traditional methods of doing things rather than with the latest and greatest devices of our own age. In the twentieth century we have tended to champion writing and books more than radio, television, and computers. Today we may use new tools to help us create our scholarship and even to help us teach, but like most of our academic colleagues in law and in history we generally employ those tools as extensions of established media instead of exploiting their potential to deploy information and develop ideas in new ways.