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

DANAYA C. WRIGHT

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.	1
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	2
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	3
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.	4
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.	5
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.	6
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.	7
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.	8
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.	9
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	10
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.	11
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.	12
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.	13
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.	14
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.	15
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:	16
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	17
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.	18
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.	19
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.	20
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	21
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.	22
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	23
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.	24
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.	25
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.	26
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.	27
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.	28
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.	29
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.	30
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	31
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	32
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.	33
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	34
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	35
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	36
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.	37
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	38
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.	39
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	40
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:	41
[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.	42
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	43
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.	44
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.	45
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.	46
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.	47
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.	48
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	49
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.	50
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.	51
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	52
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.	53
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.	54
[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	55
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	56
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	57
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	58
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.	59
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.	60
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	61
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	62
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.	63
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.	64
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	65
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 d