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Why not the mother?

Reader Jeanie Attenhofer was struggling to understand what happened when her third great grandfather died in 1828.

He was killed, she said, along the Santa Fe trail — shot with his own gun (“he fell asleep at the switch, as it were,” she reports) — and left a wife and four minor children.

guardianAnd that’s when something happened that she couldn’t figure out. The children were placed under the guardianship of their mother’s brother. “But why?” she asked. “Why would her brother have been given guardianship of the children if she was still alive?”

The Legal Genealogist understands Jeanie’s confusion here. We are, after all, 21st century women accustomed to taking care of ourselves and our families. But that wasn’t always the expectation in the past — and it certainly wasn’t what the law expected.

The first thing to keep in mind here is that the law generally didn’t get involved with children at all in generations past — not the way it does today and not with our modern focus on the best interests of the child.

About the only time the legal system really cared about kids until very modern times was when they were a public nuisance or a public charge, in which case they were locked up or bound out, or when they were entitled to get property, in which case the law stepped in to make sure the kids didn’t trade the property for a hunting dog and no adult stole it from them.

And when the law stepped in, in the vast majority of cases, it stepped in to give control to a man.

We start with the fact that, at common law, control over the persons and the estates (property) of a child rested with the father — and only the father. And in the course of explaining the legal power of the father, Blackstone in his Commentaries on the Laws of England noted, in passing, that “a mother … is entitled to no power, but only to reverence and respect…”1

Let’s repeat that: “a mother … is entitled to no power, but only to reverence and respect…”

We can add in the legal disabilities of women generally, both in the common law and in early statutes. Think, just as one example, about the fact that a wife didn’t ordinarily inherit from her husband: all the property went, not to her, but to the children — and then often to the sons and not the daughters.2

So when it came to guardianship, the law naturally looked to men as well — at least when it came to property.

To understand that better, we need to keep in mind that, in the common law, there were three essential types of guardians: the guardian by nature; the guardian for nurture; and the guardian in socage. The guardian by nature or guardian for nurture had the right to physical custody of a minor child. That was always the father or, if the father died without naming a guardian in his will, then the mother.3 The difference between the two was that the guardianship by nature lasted to age 21 and gave the guardian control over the child’s personal property. Guardianship for nurture lasted to age 14 and didn’t involve property at all.4 The guardian in socage was the one who had custody of a minor’s lands and person.5

In America, the guardian in socage gave way to the guardian by statute — the person “appointed for a child by the deed or last will of the father, and who has the custody both of his person and estate until the attainment of full age.”6 And if nobody was named by the father, the court stepped in with a guardian by appointment of the court, with the same authority.7

Notice that this type of guardianship came into play only when there was an estate involved. If Papa died, and there wasn’t any property involved, then if Mama was able to keep the kids, she simply kept them. If Mama died too, then Gramma or Grampa took them in. Or Aunt Fanny and Uncle Bert. Or a cousin down the road. Or even a neighbor down the road. This was informal, and if the kids got raised, didn’t starve and didn’t run wild, nobody took a second look. Remember: the notion of formal adoption under the law didn’t even start in the United States until the 1850s.8

But when property was involved, the preference was overwhelmingly for the nearest male relative who couldn’t inherit from the child to serve as guardian. Even the example used by Blackstone points this out: “where the estate descended from his father, … his uncle by the mother’s side cannot possibly inherit this estate, and therefore shall be the guardian.”9

And that’s exactly what happened in Jeanie’s case: the mother was bypassed by the law as entitled to “reverence and respect” but not to legal power, and her brother was named the guardian instead.

That doesn’t mean the children lived with him. In all likelihood, they would have remained with their mother. But the legal authority over their property remained with him (or any substitute guardian) until each child reached full age.


SOURCES

  1. William Blackstone, Commentaries on the Laws of England, Book I: The Right of Persons (Oxford, England: Clarendon Press, 1770), 453; digital images, Google Books (http://books.google.com : accessed 1 March 2015).
  2. See e.g. ibid., at 463-464.
  3. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 552-553, “guardian by nature.” Ibid., 553, “guardian for nuture.”
  4. Ibid.
  5. Ibid., 553, “guardian in socage.”
  6. Ibid., “guardian by statute.”
  7. Ibid., 552, “guardian by appointment of the court.”
  8. See “Timeline,” The Adoption History Project (http://pages.uoregon.edu/adoption/index.html : accessed 1 Mar 2015).
  9. Blackstone, Commentaries on the Laws of England, Book I: The Right of Persons, at 461.
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