20th century Maryland style
Reader Katie Garner is facing a very typical issue for genealogical research: the issue of guardianship for the child of a person who has died.
Her specific question is how to find out when a guardianship was required, and how long — to what age — it would ordinarily last.
And, in a part of the question that warms the cockles of The Legal Genealogist‘s heart,1 Katie notes that she’s sure the answer has to be “based on locality and time period” and, she adds, she’s looking for information in Maryland in the early 1900s.
So… first off, let’s review the basic rules on guardianship.
We have to start by setting aside our 21st century views of taking care of children, and keep in mind that 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.
Remember that, at 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. 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. The guardian in socage was the one who had custody of a minor’s lands and person.2
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.”3 And if nobody was named by the father, the court stepped in with a guardian by appointment of the court, with the same authority.4
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.5 Only if there wasn’t anybody willing and able to take the kids did the legal system get involved. That’s when you find orphans being bound out, or handed over to some respectable citizen to be taught a trade.6
So… if there’s no property, there’s not going to be a guardianship at all at common law.
But, as even the definitions recognize, common law guardianships gave way to statutory provisions, and yes, Katie is absolutely right — that’s going to vary from place to place and even from time to time in the same place.
So… where do we look?
You already know the answer.
Go ahead, chant along with me in my usual mantra: to understand the records, we have to understand the laws — and not as an abstract matter, but the specific laws of the time and place each record was created.
Now there’s no doubt that finding the right laws isn’t always easy, and that some jurisdictions make it easier (or harder) than others. Katie has it easier than most researchers because Maryland’s statutes are readily available online in a fabulous resource called the Archives of Maryland Online — 865 volumes of materials of all kinds, from land records to statistical reports to, yes, the laws of Maryland itself, from colonial times into the 20th century.
There’s a whole page collecting the published codes — the volumes that organize the laws by topic rather than simply by chronology. Not everything is available online, but there are a lot of options running right through the time period Katie needs.
There’s also a whole page collecting the session laws — those chronological versions of the laws passed by each session of the Legislature — and for Maryland those begin back in the 1600s and run all the way up to the 2018 session, with everything through 2017 online.
So Katie wants to start, most likely, with the codes for the early 20th century, to see what the laws said, and then fill in any gap between codes with the session laws for the specific year or years she’s researching.
And… just as a hint … keep in mind that the rules may be different for a female child when she marries…
Just sayin’ …
Yep. As always: to understand the records, we have to understand the laws — and to know what records there may be, we look to those laws as well.
Katie, you’ll let us know what you find, right…?
- Whatever “cockles of the heart” may be… it’s always sounded a little scary to me, frankly. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 552-553, “guardian by nature.” Ibid., 553, “guardian for nurture” and “guardian in socage.” ↩
- Ibid., “guardian by statute.” ↩
- Ibid., 552, “guardian by appointment of the court.” ↩
- See generally “Timeline of Adoption History,” The Adoption History Project (https://pages.uoregon.edu/adoption/index.html : accessed 11 Dec 2018). ↩
- See Black, A Dictionary of Law, 138, “bind out.” ↩
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“warm the cockles of one’s heart. Gratify one, make one feel good, as in It warms the cockles of my heart to see them getting along so well. This expression uses a corruption of the Latin name for the heart’s ventricles, cochleae cordis.”
Words are my favorite toys.
If you are lucky, you may find the records kept by the Guardian. I stumbled upon one years ago, every expenditure was listed. Clothes, paper, shoes, etc. Costs for upkeep of the ‘child’ and miscellaneous expenditures on their behalf.
I find the most interesting things in the loose paper files for different legal matters.
The loose papers are always the best part of any file, if they survive.
In 19th century Alabama some of the counties appointed a person to handle routine guardian returns. These records remained in private hands and were only recorded in court minutes if a complaint was made to the court. Lowndes county did this for a while. I don’t know if there was a legal basis for the practice or if the courts did it on their own.
Judy, what if Papa dies, and Mama re-marries? Is the new husband then the automatic guardian for his minor step-children? (It depends, right? On the laws of the time and place?)
I’m writing my ProGen proof argument assignment about which Mary Clark married Moses Gile 16 Apr 1754 in Amesbury, MA. My proof is hung up on whether a widow Mary Clark’s brother-in-law being bonded as the guardian of her 3 minor kids from her 1st marriage in 1755 means she couldn’t have remarried to Moses Gile in 1754.
The stepfather never automatically became guardian to his wife’s children. His interests were often considered inconsistent to those of the children — and certainly the interests of his children by the wife were inconsistent to the interests of the children of the first husband. So it’s irrelevant to the remarriage that the guardian was the uncle. A family member of the first husband was often appointed for the children of that first husband.