Child Custody and the Decline of Women's Rights

EILEEN SPRING

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.	1
From her historical review, Wright concludes that there was a downward trend in women's right to custody. In medieval times, the manorial courts, the ecclesiastical courts, and the royal courts for socage tenures had all given consideration to maternal interest in the physical custody of children. Change for the worse came with the Statute of Tenures of 1646. This statute abolished military tenure and with it the king's wardship of heirs to such tenures—which was certainly a boon to such heirs and their families. The major change the statute made, however, was to give all fathers the right to name guardians for their children, a fact that has been all too little noticed. It thus ended the automatic succession of the spouse that had prevailed in socage tenures. In the light of this development, and others she notes, Wright challenges the view, general among historians, that women's history has been one of linear progression to equality.	2
Since for many years I have been in rather lonely opposition to this view, and have been pointing to a long downward trend in women's property rights, I must own to satisfaction in the appearance of evidence from a different realm of law. Why this downward movement of women's rights should have taken place is a very large question, but no easy explanation offers itself. Looked at as a whole, the movement seems to have been independent of all the major developments in the nation's life. It was independent of religion, for it began before the Reformation and continued after it. It was independent of economic organization, for it began under feudalism and continued under capitalism. The movement continued downward even as political freedom came to mark the country.	3
It is a large question, too, why this important development has gone so little noticed by family historians. Here at least some answers suggest themselves. In the case of custody, historians' vision has been obscured by the well-known and preposterous history of royal wardship. Things can only go upward in comparison to that. Even in military tenures, it might be noted, the Crown made claims only upon heirs; nonheirs, who must have been about as common as heirs, would have remained with their mothers. In the case of inheritance, as I have suggested, historians have failed to keep in mind what the common law rules of inheritance were and thus inevitably have failed to perceive the trend of practice. Certain general causes have also worked powerfully to obscure the downward trend. There is the belief that English history has moved ever in a liberal direction—which being politically and economically true has come to seem the inevitable course for things to take. There is, too, the fact that doctrinal legal history has devoted little attention to family affairs. Concentrating naturally on technical matters, it willy-nilly left social historians without guidance when they set out to construct the history of the family. At any rate, when Caroline Norton took up her pen to protest the rule on child custody, she was not advancing along an already well-established upward path for women. She was setting out at long last to reverse a centuries-long downward trend in women's rights.	4
As to the other aspect of Wright's article, her discussion of De Manneville—while she has much of interest to say about the case, and does valuable work in bringing many eighteenth-century custody cases to notice, it is in dealing with De Manneville that she runs into difficulty. The case is simple in itself. For the first time a married woman sued her husband seeking custody of their child. She was reminded that the law gave the custody of children to their father. She was further reminded that, as the law held husband and wife to be one person in law, a wife could not sue her husband. Wright weaves, as I see it, a rather unbalanced story around the case and around the history of eighteenth-century custody in general.	5
She begins her account by reviewing custody cases preceding De Manneville. From these she concludes that fathers' rights could be challenged. The first of her cases requires particular notice before proceeding to the others, for it is spectacular and bound to impress, but it is misinterpreted and even points in the opposite direction. This is the case between George I and the Prince of Wales over the custody of the prince's children. For Wright it is the signal precedent because the decision went against the prince, the father in the case. To be sure, the decision went against a father, but look a bit further and things take on a different complexion. This father was denied control of his children on the ground that there could be no difference between him and the king about the management of the king's grandchildren—because the king and the Prince of Wales were one person in law. That the prince was the father in the case is a superficial fact. The significant fact is that against the king he was the junior. By declaring king and prince one person in law, the interest of the junior was subsumed in that of the senior. The Prince of Wales was denied custody on exactly the ground that the law denied it to a wife. Had Lord Eldon needed a precedent, he might well have cited this one.	6
The royal case aside, Wright's other examples do show that, through the courts' power as parens patriae, fathers' rights were not altogether above challenge and that mothers could expect consideration in some circumstances. Wright contends that these precedents were sufficient to allow a different decision than the one that Lord Eldon made. Thus, he cut short a promising development. This is the fundamental argument running through her discussion of De Manneville.	7
Theoretically, of course, Lord Eldon might have decided differently than he did. In reality, however, he had no choice. To be sure, he recognized that the court had the power as parens patriae to determine custody as it chose. But the hard fact was that that power had never been used against a husband in an interspousal conflict. For him to have used it in favor of Mrs. De Manneville would have been to make an inroad upon the doctrine of coverture, upon the law of marriage as that had existed for ages. Wright is aware of Eldon's reluctance to open the question of coverture, but she pays it no heed in arguing throughout that he might have—or even rather passionately that he ought to have—granted Mrs. De Manneville's suit.	8
It bears remarking that every advance for women that has made inroads upon the doctrine of coverture has come not by judicial but by legislative action. The Custody of Infants Act, the Married Women's Property Act, and the Matrimonial Causes Act, all were passed only after lengthy public debate had shown that a change had taken place in the nation's ideas of marriage and the rights of wives. The judiciary were instructed as to what the new rules were. 1	9
Whether Lord Eldon could, or could not, have followed the precedents Wright points to is one question. There is a more important question about the precedents to be asked, one that is basic. What do they really amount to? How much interference with fathers' right to custody was possible even when third parties and not mothers brought suit? As I see it, the precedents do not show meaningful interference to have been possible in any case. The evidence Wright presents goes to show that the courts were in general very little disposed to interfere with fathers' powers. And this seems the main conclusion to be drawn about custody in the eighteenth century. To be sure, Wright has demonstrated that the courts might interfere to protect a child's interest against a father when the child had come into property from other members of the family, or when a father who had given away a child sought to regain it; but these situations were not normal. She has also shown that the courts might give custody to mothers in preference to paternal relatives where fathers had appointed no guardian, but obviously here the fathers were dead. Normally, as Wright's precedents actually show, a father had to be very unfit—had to be bankrupt, or in jail, or living abroad on account of his debts—before he would lose custody. As for losing custody on account of immorality—the cases of William Wellesley Pole and Percy Shelley suggest that marital carryings-on had to be pretty outrageous to sustain a case against a father, no matter who mounted it.	10
In other words, in the eighteenth century, fathers' power was paramount, with only such exceptions as go to prove rules. That is what the precedents before De Manneville indicate and, of course, it is what De Manneville confirms. Wright has blown the exceptions out of proportion and put a rather unreal spin on the history of custody in the eighteenth century. Curiously, in the end she has not made so strong a case for the patriarchal nature of the century as she might have done, and seems to have wanted to do. Nevertheless, her article demands attention from both social and legal historians for its assembling and laying out of custody cases and for its discussion of custody law over the long term.	11
Eileen Spring, a free-lance historian, is the author of Law, Land, and Family: Aristocratic Inheritance in England, 1300-1800. Notes       1. In a sense, the settlement to a woman's own use was an interference with coverture made by the judiciary. But this only permitted the abridgement of coverture by others than the wife and involved no general setting aside of coverture.

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