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Published online by Cambridge University Press: 29 January 2009
1 Recent overviews of the legal history of American families include Eileen Boris and Peter Bardaglio, ‘Gender, race, and class: the impact of the state on the family andeconomy, 1790–1945’, in Gerstel, Naomi and Gross, Harriet Engel, eds., Families andwork (Philadelphia, 1987) 132–51;Google Scholar Michael. Grossberg, ‘Crossing boundaries: nineteenth-century domestic relations law and the merger of family and legal history’, American Bar Foundation Research Journal 4 (1985) 799–847Google Scholar; and Minow, Martha,‘“Forming underneath everything that grows”: toward a history of family law’, Wisconsin Law Review 4 (1985) 819–98.Google Scholar
2 The major exception to this lack of attention to regional variation in domestic relations law is Salmon, Marylynn, Women and the law of property in early America (Chapel Hill, 1986)Google Scholar. Other significant contributions to the legal history of southern women andfamilies include Censer, Jane Turner, ‘“Smiling through her tears”: antebellumsouthern women and divorce’, American Journal of Legal History 25 (1981) 24–47CrossRefGoogle Scholar; Gundersen, Joan R. and Gampel, Gwen Victor, ‘Married women's legal status in eighteenth-century New York and Virginia’, William and Mary Quarterly 39 (1982) 114–34CrossRefGoogle Scholar; and Lebsock, Suzanne D., ‘Radical reconstruction and the property rights of southern women’, Journal of Southern History 43 (1977), 195–216.CrossRefGoogle Scholar Important discussions can also be found in Lebsock, Suzanne D., The free women of Petersburg: status and culture in a southern town, 1784–1860(New York, 1982)Google Scholar; and Wyatt-Brown, Bertram, Southern honor: ethics and behavior in the old South (New York, 1982).Google Scholar
3 The South is defined here as the 11 states that seceded to form the Confederacy.Although somewhat arbitrary, this definition focuses attention on those states in which slavery was most deeply rooted and that were most self-conscious about their southernness, to the point that they ultimately left the Union. A sampling of current work in southern legal history can be found in ‘Symposium: the legal history of the South’, Vanderbilt Law Review 32 (1979)Google Scholar; and Bodenhamer, David J. and Ely, James W. Jr., eds., Ambivalent legacy: a legal history of the South (Jackson, Miss., 1984).Google Scholar See also Ely, James W. Jr., ‘“There are few subjects in political economy of greater difficulty”: the poor laws of the antebellum South’, American Bar Foundation Research Journal 4 (1985) 849–79Google Scholar for a fine study of the distinctiveness of southern legal developments.
4 Hundley, Daniel R., Social relations in our southern states (New York, 1860) 74.Google Scholar
5 On the centrality of kinship ties in the South, see Wyatt-Brown, Bertram, ‘The ideal typology and ante-bellum southern history: a testing of a new approach’, Societas 5 (1975) 5Google Scholar; Burton, Orville Vernon, In my father's house are many mansions: family and community in Edgefield, North Carolina (Chapel Hill, 1985) 117–18, 166, 237–42;Google Scholar and Degler, Carl N., At odds: women and the family in America from the Revolution to the present (New York, 1980) 105.Google Scholar For an analysis that questions the intensity and scope of southern kin networks, see Smith, Daniel Blake, Inside the great house: planter family life in eighteenth-century Chesapeake society (Ithaca, 1980) 175–7, 186–7, 224–30.Google Scholar
6 Johnson, Michael P., ‘Planters and patriarchy: Charleston, 1800–1860’, Journal of Southern History 46 (1980) 45–7CrossRefGoogle Scholar; Wyatt-Brown, , Southern honor, 117–18, 195–200Google Scholar; Clinton, Catherine, Plantation mistress: women's world in the old South (New York, 1982), esp. ch. 3Google Scholar; Burton, , In my father's house, 99–103Google Scholar; Peterson, Thomas Virgil, Ham and Japeth: the mythic world of whites in the antebellum South (Metuchen, N.J., 1978) 48–53Google Scholar; and Scott, Anne Firor, The southern lady: from pedestal to politics, 1830–1930 (Chicago, 1970) 16–17.Google Scholar Recent studies that play down the patriarchal nature of family relations include Smith, Inside the great house; and Censer, Jane Turner, North Carolina planters and their children, 1800–1860 (Baton Rouge, 1984).Google Scholar
7 Wyatt-Brown, , ‘Ideal typology’, 15Google Scholar; and Fitzhugh, George, Sociology for the South (Richmond, 1854) 105.Google Scholar
8 Helpful theoretical analyses of how the law perpetuates patriarchy can be found in Rifkin, Janet, ‘Toward a theory of law and patriarchy’, Harvard Women's Law Journal 3 (1980) 83–95Google Scholar; Nadine Taub and Elizabeth M. Schneider, ‘Perspectives on women's subordination and the role of law’ and Polan, Diane, ‘Toward a theory of law and patriarchy’, in Kairys, David ed., The politics of law: a progressive critique (New York, 1982).Google Scholar
9 This study examines 59 custody suits involving parents and third parties that reached southern appellate courts in the nineteenth century. These are all of the parent-third party custody cases heard at this level, as far as the author was able to determine froman examination of the published opinions. A listing of the individual cases can be foundin Appendix A.
On the strengths and weaknesses inherent in the use of appellate decisions as historical sources, see White, G. Edward, ‘The appellate court opinion as historical source material’, Journal of Interdisciplinary History 1 (1971) 491–509CrossRefGoogle Scholar; Tushnet, Mark, ‘The American law of slavery: a study in the persistence of legal autonomy’, Law and Society Review 10 (1975) 125–31CrossRefGoogle Scholar; Nash, A. E. Kier, ‘Reason of slavery: understanding the judicial role in the peculiar institution’, Vanderbilt Law Review 32 (1979) 24nGoogle Scholar; and Censer, ‘Ante-bellum southern women and divorce’, 25–6.
For a fuller discussion of the issues raised by child custody contests between parents and third parties in the nineteenth-century South, see Bardaglio, Peter W., ‘Families, sex, and the law: the legal transformation of the nineteenth-century southern household’ (unpublished Ph.D. dissertation, Stanford University, 1987), ch. 5.Google Scholar
10 Zainaldin, Jamil S., ‘The emergence of a modern American family law: child custody, adoption, and the courts, 1796–1851’, Northwestern University Law Review 73 (1979) 1075Google Scholar; Grossberg, Michael, ‘Law and the family in nineteenth century America’ (unpublished Ph.D. dissertation, Brandeis University, 1979) 259–60Google Scholar; and McGough, Lucy S. and Shindell, Lawrence M., ‘Coming of age: the best interests of the child standard in parent-third party custody disputes’, Emory Law Journal 27 (1978) 217–21.Google Scholar
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13 On the evolution of the ‘best interests of the child’ doctrine in nineteenth-centuryAmerica, consult Zainaldin, ‘Modern American family law', 1038-89; and Grossberg, Michael, ‘Who gets the child? Custody, guardianship, and the rise of a judicialpatriarchy in nineteenth-century America’, Feminist Studies 9 (1983) 235–6.CrossRefGoogle Scholar
14 For general discussions of the issues involved in parent-third party disputes, see Note, ‘Alternatives to “parental right” in child custody disputes involving third parties’, YaleLaw Revew 73 (1963) 151–70; Marcus, Stephen H., ‘Equal protection: the custody of the illegitimate child’, Journal of Family Law 11 (1971) 12–15Google Scholar; and McGough and Shindell, ‘Coming of age’, 209–45.
On state intervention in child abuse and neglect cases, see Areen, Judith, ‘Intervention between parent and child: a reappraisal of the state's role in child neglect and abuse cases’, Georgetown Law Journal 63 (1975) 887–937Google Scholar; and Wald, Michael, ‘State intervention on behalf of “neglected” children: a search for realistic standards’, Stanford Law Review Tl (1975) 985–104.CrossRefGoogle Scholar
15 Grossberg, Michael, Governing the hearth: law and the family in nineteenth-centuryAmerica (Chapel Hill, 1985) 255.Google Scholar
16 In re Waldron, 13 Johns. 418 (N.Y. 1816) 420.
17 See Commonwealth v. Hamilton, 6 Mass. 273 (1810); In re McDowle, 8 Johns. 328 (N.Y. 1811); U.S. v. Green, 3 Mass. 482 (1st. Cir. 1824); Commonwealth v. Hammond,27 Mass. 274 (1830); State v. Hand, 1 Ohio Dec. 238 (1848); Commonwealth v. Gilkeson, 1 Phila. 194 (Penn. 1851); Pool v. Gott, 14 Mon. L. Rep. 269 (Mass. 1851); and In re Murphy, 12 How. Pr. 513 (N.Y. 1856).
18 See People v. Cooper, 8 How. Pr. 288 (N.Y. 1853); State v. Richardson, 40 N.H. 272 (1860); and State v. Libbey, 44 N.H. 321 (1862) for cases where northern judges upheldthe superiority of parental custody rights.
19 Of the 59 custody suits that reached southern appellate courts in the nineteenth century, parents initiated 71 per cent in the lower courts and third parties initiated 29 per cent. Of the suits that they initiated, parents won 48 per cent in appellate courts and thirdparties won a mere 6 per cent. For the outcomes of the 59 supreme court cases on astate-by-state basis, see Appendix B.
20 Tutorship of Virginia Kershaw, 5 Rob. 488 (La. 1843) 488, 489. Tutorship was the termin Louisiana law for guardianship. See also In re Celina, 7 La. An. 162 (1852), in whichthe Louisiana Supreme Court again returned custody of a daughter to a father accusedof child neglect.
21 In re Mitchell, , Charlt, R. M.. 489 (Ga. 1836) 493, 491, 495Google Scholar. See also In re Kottman, 2Hill 363 (S.C. 1834); Hutson v. Townsend, 6 Rich. Eq. 249 (S.C. 1854); Ex parte Williams, 11 Rich. 452 (S.C. 1858); and Taylor V. Jeter, 33 Ga. 195 (1862).
22 Although antebellum courts strongly backed the common law rights of fathers tocustody of their children, the courts gradually imposed restrictions on the father'spower to control the property of his child without regulation. See Hall V. Lay, 2 Ala. 529 (1841); and Faulk V. Faulk, 23 Tex. 653 (1958). See also Anderson V. Darby, 1 Nott & McCord 369 (S.C. 1818); Miles V. Kaigler, 10 Yerg. 10 (Tenn. 1836); Wood v. Wood, 3 Ala. 756 (1842); and Ex parte Atkinson, 40 Miss. 17 (1864) for discussions of paternalrights to child services and custody.
23 On the status of women and the ‘cult of domesticity’ in post-revolutionary America, see Cott, Nancy F., The bonds of womanhood: ‘woman's sphere’ in New England, 1780–1835 (New Haven, 1977) 63–100Google Scholar; Norton, Mary Beth, Liberty's daughters: the revolutionary experience of American women, 1750–1800 (Boston, 1980) 242–55Google Scholar; and Degler, At odds, 26–9, 52–5. On the South, see Clinton, Plantation mistress, 47–50.
24 Grossberg, ‘Law and the family’, 285-7; Spruill, Women's life and work, 345–6; and Boatwright, Eleanor M., ‘The political and civil status of women in Georgia, 1783–1860’, Georgia Historical Quarterly 25 (1941), 316.Google Scholar
Louisiana, with its civil law heritage, offered the sole exception at the outset of the nineteenth century to this scheme of guardianship. Under the influence of French law, the Louisiana Civil Code stipulated that,the mother could retain her status as guardian (known as a tutor in the state's law) upon remarriage. To do so, however, she had to call a meeting of family members beforehand, and gain their approval to remain tutor. If a widow remarried without requesting a family meeting, she lost her tutorship. The Louisiana Supreme Court, in several antebellum cases, upheld the revocation of maternal tutorship rights in such instances. See La., Digest of the Civil Laws (1808), title 8, ch. 1, art. 1; Robin v. Weeks, 5 Mart., N.S. 379 (La. 1827); and Webb v. Webb, 5 La. An. 595 (1850). Louisiana decisions supporting a widow's custody rights after remarriage include Delacroix v. Boisblanc, 4 Mart., O.S., 715 (La, 1817); Bailey v. Morrison, 4 La. An. 523 (1849); and Lea v. Richardson, 8 La. An. 94 (1853). For a fuller discussion of these issues, consult Harry R. Sachse, ‘The evolution of the regime of tutorship in Louisiana’, Louisiana Law Review 26 (1956) 412–30.
25 On this point generally, see Grossberg, ‘Law and the family’, 287
26 Armstrong v. Stone, 50 Va. 102 (1852) 107, 108. On the other hand, see Huie v. Nixon, 6 Port. 77 (Ala. 1837), in which the guardianship of a widow who remarried wasrevoked.
27 ‘Tender years’ usually meant under 12 years of age. On the development of the tenderyears doctrine in nineteenth-century America, see Grossberg, Governing the hearth, 248-9; Zainaldin, ‘Modern American family law’, 1072–3; Marcus, ‘Equal protection’, 10–11; and Andre P. Derdeyn, ‘Child custody contests in historical perspective’, American Journal of Psychiatry 133 (1976) 1371. For a discussion of the use of thetender years doctrine in child custody contests between parents in the nineteenth-century South, consult Bardaglio, ‘Families, sex, and the law’, 214–17.
28 Striplin v. Ware, 36 Ala. 87 (1860) 91. See also Heyward v. Cuthbert, 4 Desaus. Eq. 445(S.C. 1814); Foster v. Alston, 7 Miss. 406 (1842); Carlisle v. Tuttle, 30 Ala. 613 (1857);and Wheeler v. Hollis, 19 Tex. 522 (1857).
29 Degler, At odds, 73–4. See also Zelizer, Viviana A., Pricing the priceless child: thechanging social value of children (New York, 1985) 5–12.Google Scholar
30 Byrne v. Love, 14 Tex. 81 (1855) 91–2. See also Gates v. Renfroe, 7 La. An. 569 (1852).
31 Bybee, Cook v., 24 Tex. 278 (1859) 281. See also Lea v. Richardson, 8 La. An. 94 (1853).Google Scholar
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34 Massenburg, Pierce v., 4 Leigh 493 (Va. 1833) 495. But in Stewart v. Rickets, 2 Hump.151 (Tenn. 1840) the court suggested that a father might be able to bind his son as anapprentice without the son's assent.Google Scholar
Following the Civil War, at least two southern states passed laws that required children to sign indentures of apprenticeship as evidence of their assent. See Fla., Digest of the statute law (Bush, 1872), ch. 5, sec. 5; and S.C, Statutes at large (1875), act of 1865, 271.
35 See, for instance, the act of 1740 in S.C, Statutes at large (1838), vol. 3, 545.
36 Heiskell, Stringfield v., 10 Tenn. 546 (1831) 552.Google Scholar
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45 Legate, Legate v., 87 Tex. 248 (1894) 252, 253. The foster parents in this case hadformally adopted the child after her natural parents voluntarily relinquished custody ofher.Google Scholar
46 Ford, Verser v., 37 Ark. 27 (1881) 30, 31.Google Scholar Although surrogate mothers gained importantrights based on the tender years rule, a woman might retain custody for only a fewyears before the father regained control of the child. In this case, the Arkansas courtindicated that the father could apply again for custody of his daughter once she became ‘more advanced in years’. See also Ex parte Murphy, 75 Ala. 409 (1883). Naturalmothers found themselves similarly vulnerable in custody fights with male legalguardians. See Payne v. Payne, 39 Ga. 174 (1869).
47 Maples, Maples v., 49 Miss. 393 (1873) 403.Google Scholar See also Spears v. Snell, 74 N.C. 210 (1876);and Fullilove v. Banks, 62 Miss. 11 (1884).
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51 Snell, Spears v., 74 N.C. 210 (1876) 215.Google Scholar Other cases in which the court consulted thewishes of the child, and at least in part rested its decision on this inquiry, included Maples, Maples v., 49 Miss. 393 (1873)Google Scholar; and Swimley, Merritt v., 82 Va. 433 (1886).Google Scholar
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63 Hunter v. Dowdy, 100 Ga. 644 (1897) 645. See also State v. Kilvington, 100 Tenn. 227(1898), in which the Tennessee high court turned down the request of a mother to regaincustody of her seven-year-old daughter, although the girl had been committed to theTennessee Industrial School for orphaned, delinquent, and neglected children withoutthe formal inquiry required by statute.
64 For an astute analysis of the flowering of this vision and its dangers, see Rothman, David J., ‘The state as parent: social policy in the progressive era’, in Gaylin, Willard et al. . Doing good: the limits of benevolence (New York, 1978) 69–95.Google Scholar
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68 Comas v. Reddish, 35 Ga. 236 (1866) 237–8 (emphasis in original).
69 See Lowry v. Holden, 41 Miss. 410 (1867).
70 Other cases in which black parents regained custody of their offspring after they had been subjected to public apprenticeships include Adams v. Adams, 36 Ga. 236 (1867); Adams v. McKay, 36 Ga. 440 (1867); Hatcher v. Cutts, 42 Ga. 616 (1871); Mitchell v. McElvin, 45 Ga. 558 (1872); and Mitchell v. Mitchell, 67 N,C. 307 (1872).
71 Miller v. Wallace, 76 Ga. 479 (1886) 487. For other post-war discussions of father's custody rights in disputes with nonparents, see Barela v. Roberts, 34 Tex. 554 (1871); McKinney v. Noble, 38 Tex. 195 (1873); Ely v. Gammel, 52 Ala. 584 (1875); McDowell v. Bonner, 62 Miss. 278 (1884); and Stirman v. Turner, 16 S.E. 787 (Tex. 1890).
72 Moore v. Christian, 56 Miss. 408 (1879). For other post-war cases involving third parties in which mothers received custody, see Payne v. Payne, 39 Ga. 174 (1869); Thompson v. Thompson, 72 N.C. 32 (1875); Beard v. Dean, 64 Ga. 258 (1879); Ashby v. Page, 106 N.C. 328 (1890); and Prieto v. St Alphonsus Convent, 52 La. An. 631(1900).
73 Ark., Statutes (1874) ch. 3035; Ga., Code (1861) ch. 1754; Miss., Revised code (Campbell, 1880) ch. 2099; and N.C, Code (Dortch, Manning, and Henderson, 1883) vol. 1, ch. 1565. For judicial discussions of a mother's rights as natural guardian, see Keene v. Guier, 27 La. An. 232 (1875); Hood v. Perry, 73 Ga. 319 (1884); and Byrom v. Gunn, 102 Ga. 565 (1897).
74 Latham v. Ellis, 116 N.C. 30 (1895) 33–4 and Miller v. Wallace, 76 Ga. 479 (1886) 487. See also Franklin v. Carswell, 103 Ga. 553 (1897); Casanover v. Massengale, 54 S.W. 317 (Tex. 1899); Hibbette v. Baines, 78 Miss. 695 (1900); and State v. Deaton, 54 S.W. 901 (Tex. 1900) for other post-war decisions supporting the rights of parents to recover custody after a voluntary transfer.
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