Compromise and Change: Reconsideration on the Custody of Infants Act of 1839
April 24,2018   By:CSHRS
Compromise and Change: Reconsideration on the Custody of Infants Act of 1839
XU Yifei*
Abstract: The United Kingdom’s Custody of Infants Act of 1839 is generally regarded as a signature instrument for women to gain guardianship of a child, and widely considered a product of the equal rights movement launched by women in England. It has played an important role in promoting women’s equal rights and breaking patriarchal absolutism. However, there was much compromise in the legal basis for the legislation and the legal provisions, resulting in debates on the legislation that have greatly diluted the revolutionary significance of the Act. Starting with the Marxist argument on bourgeois family legislation, this paper analyzes the legislative and judicial practice of guardianship of minors before and after the promulgation of the Act in the United Kingdom. In view of its impact on the United Nations Convention on the Rights of the Child, this paper attempts to re-evaluate the historical status of this act.
Keywords: Custody of Infants Act    tender years doctrine    women’s custody of a child    family law
The United Kingdom’s Custody of Infants Act of 1839 (hereinafter referred to as the Act) was of very important legislative significance for the guardianship of minors in that country. The legislation was initiated and promoted by Caroline Norton (1808-1877). In 1836 George Norton, her husband, and she, were granted a divorce. Caroline failed to gain the custody of their child and was unable to exercise her visitation rights due to a prohibition imposed by her husband. She repeatedly tried to eliminate the problem through litigation and negotiation, but to no avail. At this time, Caroline was acutely aware that the law at the time was highly unfair to women on such issues and  she was determined to get the law changed. She published articles in journals to draw the attention of the public to women’s guardianship rights and visitation rights, and lobbied social celebrities and parliamentarians for support. Sir Thomas Noon Talfourd (1798-1854) submitted a draft proposal on the custody of infants and young children to the British Parliament on April 25, 1837. The draft was subsequently amended twice, on December 4, 1837 and May 9, 1839, but was passed after a third parliamentary debate.
The 1839 Act has long been highly regarded by researchers, as it gave mothers in the United Kingdom certain custody and visitation rights, and it is considered a breakthrough in ending patriarchal absolutism in the British custodial legislation. It extended women’s rights and is considered a significant milestone in British women’s struggle to gain their rights. It greatly enhanced the status of women in the United Kingdom, and since its promoter was a woman, the bill is also considered one of the most important pieces of legislation in the 19th-century campaign in the United Kingdom for women’s equal rights. Therefore, both the researcher of guardianship legislation and supporters of the equal rights campaign for women talked about the importance of this bill. The view of the former is it as “a turning point in British family law, the first time that the legislature allowed mothers to gain guardianship and visitation rights regarding their children through legislation... a challenge to the father’s power of a father and patriarchal authority in the common law,”1 the latter praise it as “the first legislative attempt to enhance the status of women.”2 Domestic researchers also consider that this legislation has epoch-making significance in the legislation on guardianship in the United Kingdom. However, in the opinion of the author, more attention should be paid to the legal basis of the Act, the content of the Act and the controversy over the bill, apart from the progressive aspect of the Act. These represent the continuity of the old forces and compromise, greatly diluting the revolutionary significance of the act.
Ⅰ. Decline of patriarchal absolutism
“The family is a dynamic element; it has never been static, but moves from a lower form to a higher form as a society progresses from a lower to a higher stage. In contrast, the kinship system is passive, and merely records the progress of the family that has taken place over a long period of time. It only changes fundamentally when the family has undergone fundamental change.”3 The development of the family system and legislation is gradual, and is always lagging behind compared to changing conditions and new needs of family life. This has also been verified in the development of family law in the United Kingdom. Family legislation in common law in the United Kingdom has strictly abided by the traditional moral order for quite a long period of time, and patriarchy dominates everything in the family, including the custody of children. The Industrial Revolution brought great changes to UK society and the structure of families. Under the influence of these factors, patriarchal power saw a more pronounced decline. But from the perspective of the law, it was not until the 1839 Act, which established the tender years doctrine, that women in the United Kingdom gained custody of their children. Although this progress is considered a breakthrough in ending patriarchal absolutism in the legislation concerning guardianship in the United Kingdom, it should be noted that this “breakthrough” is the inevitable outcome of the development of the family and is the continuation of the decline of patriarchal absolutism in the judicial practice resulting from social changes.
A. “Patriarchal absolutism” that is not absolute
Under patriarchal absolutism, common law before 1839 placed great emphasis on the guiding role of the parental rights in the custody of minors. This legislative tradition commending patriarchal rights emanated from the parental rights conferred on the father by Roman law. Roman law stressed the father’s controlling power over children. “In Rome, the father had the right to control the wife, children and a certain number of slaves, and to decide their life and death.”4 Roman law held that fathers conferred life to their children, so fathers also had the right to deprive their children of their lives. The father enjoyed this absolute patriarchal right throughout his life.
Different from the patriarchal right of controlling the lives of children under Roman law, the patriarchal right in UK common law emphasized the duty of raising and protecting children. According to UK common law, “the establishment of a marriage is based on the natural obligation of a father to support his children.”5 The natural obligation linked by blood lineage is seen as a rule derived from natural law. Fathers should provide their children with sufficient financial resources to meet their children’s basic living needs. This in turn extended other obligations of fathers to their children. UK common law required fathers to provide due protection for their children and to some extent exempted fathers from the liability for infringement upon others. The obligation of a father to his children in education ensured that minors received adequate education. As a result, UK common law requires through mandatory provisions that fathers had to provide education for their children befitting their social status. The obligation of the father to his children extended the rights of the father to the children. A father’s rights and authority guaranteed his children’s obedience to the father. Therefore, a father can take some punitive measures. The nod of approval of the father to the child’s marriage is one of the necessary conditions for a valid marriage under common law, so a father could take the opportunity to control the child’s marriage. The father could also benefit from the property of children while they were minors.
However, UK common law also limited the rights of fathers. The first is the deadline. When children become adults, they possess complete rationality as adults, and their personal behavior could no longer be dominated by their father. The valid period of patriarchy was limited to the period before adulthood. A father also had a limited interest in the property of their children, even if they were minors. The father could only serve as the trustee of the property of a minor and supervise the use of the property, without enjoying other powers of disposal. If the father disposed of the property and received benefits when the child was a minor, he was to make a statement to that effect after the child became an adult.
It can be seen that the patriarchal power in UK common law was much milder than that of Roman law. It essentially eliminated the patriarchal power of “deciding the life and death” granted under the Roman law, and thus patriarchal absolutism in the United Kingdom was not unbreakable. This sowed the seeds of its decline.
B. Embodiment of the decline of patriarchal absolutism
The decline of patriarchal absolutism was first manifested in judicial practice. The judges in custody disputes used their discretionary power to provide an opportunity for state public power to counterbalance patriarchal power. In a case as early as 1774,6 a judge of the Equity Court used state power to “conditionally relieve the father of responsibility.”
In this case, the Blissets had been judicially separated for years due to bad feeling, and their daughter lived with the mother. Due to his grievances, Mr. Blisset wanted to take custody of his daughter and demanded his wife hand over the child. This was rejected by his ex-wife, and he therefore applied to the ordinary court for a writ of habeas corpus, taking her daughter away from her mother. Mrs. Brisset then filed a lawsuit in the Equity Court, pointing out that her husband had become bankrupt and did not have the actual ability to raise the child, requesting the judge award the custody and maintenance of their daughter to her.
In the trial, the presiding judge considered that the focus of the case was on whether the father was capable of exercising his rights as the father and fulfilling his obligations. Judge Mansfield pointed out that since the patriarchal rights were based on the natural rights of the father, it corresponded to the “natural obligation” that the father should bear for his children. The “privileges” granted by common law to the father were not based solely on the blood ties between the father and the children, but also on the father’s ability to provide shelter, education and source of life for his children. Only when the father satisfied these claims on him could he exercise power as a father. If the father could not afford to or was unwilling to bear that obligation, it meant that he gave up his right to custody.
Judge Mansfield further demonstrated the legitimacy of state public power against patriarchal power. In his opinion, the father’s duty of guardianship of his children concerns the interests of minors, and is also closely related to the welfare of the country and society. No matter how authoritarian the patriarchal power over the children is under common law, they still have to obey the laws of the state. Once a father violates the law, “The public power of the state overrides patriarchal power.”7
Thus, Judge Mansfield made his ruling in this regard: “Despite the father’s natural patriarchal authority, the father is bankrupt, and his financial situation cannot support the adequate care and education for his daughter or even the family life. Based on this, the father is not the right person to have custody of the child... so the court considers it improper for him to have care of his daughter.”8 Eventually, the spouses reached agreement over the custody and Mr. Blisset gave up guardianship. 
Thereafter, this precedent was developed in practice. The “act of the father damaging the interests of minors” was explained to a wider extent, adding the statutory cause of the court overturning patriarchal rights. The creation of such cases played a crucial role in the decline of patriarchal absolutism. It turned the confrontation between public power and patriarchal rights from a juridical principle to judicial practice and restricted patriarchal absolutism in law. More importantly, this decline in patriarchal absolutism provided the opportunity for the 1839 Act to counterbalance patriarchal rights. Thus, the 1839 Act, instead of breaking through patriarchal absolutism, continued the trend of declining patriarchal absolutism based on the existing judicial basis. It was also against this background that the rights of mothers entered the legislative discussion. The mother’s special care for young children and the special needs of young children also began to be recognized by lawmakers. It can be said that the decline of patriarchal absolutism laid the foundation for the establishment of the tender years doctrine in the 1839 Act.
Ⅱ. The germination of the tender years doctrine
The tender years doctrine was an important principle in establishing the 1839 Act and also the core of the Act. The principle means that the care of infants and young children by their mother best meets their needs and interests, thus directly presuming that mothers have custody of infants and young children. According to the 1839 Act, mothers should have custody of infants and children under the age of 7. Although the tender years doctrine was established in 1839 in legislative text, it had previously been used in judicial practice. In determining the mother’s custody of children born out of wedlock, judges in the United Kingdom confirmed the mother’s special responsibility and role in raising young children, and thus derived the concept of “mother’s rights”. As a result, the legislative discussion changed the tender years doctrine from judicial practice to legislative text.
A. Identity of children born out of wedlock
In common law, children born out of wedlock were referred to as filius nullius or filiuspopuli, children born outside of a legal marriage. If a baby was born prior to marriage, the illegitimate status of the child remained unchanged even if the parents later married. The illegitimate child’s biological father served only as their putative father or stepfather, and had no obligation to raise, protect or educate the child. This obligation ended when the child born out of wedlock reaches the age of 14, even though the mother requires the father of the child born out of wedlock to provide economic support through lawsuit.9 The special rules in common law on the status of children born out of wedlock were based on their maintenance of the order of marriage and family. Under common law, one of the purposes of concluding a marriage is to identify the father, who is responsible for taking care of, educating, and sheltering his children.10 As children born out of wedlock were born outside of marital relations, their kinship relationship was uncertain, and there was no the status of legal succession, otherwise it would undermine the legal status of the successor born in wedlock. Children born out of wedlock also affected the stability and effectiveness of marriage.11 The illegitimate child also meant a dishonorable relationship between a man and a woman, which also undermined traditional morality and marital family order. As a result, common law made provisions different from those concerning legitimate children in terms of the identification of the rights and obligations and kinship of children born out of wedlock. Children born out of wedlock were not legal children, nor legal heirs of the father. They could not use the father’s surname; there was no relationship with his father’s blood relations. The rights and obligations of the parents of illegitimate children, especially those of the biological fathers, were thus relatively simple, with the most important legal connection being the fathers’ obligation to provide maintenance for their children.
The different status between children born in wedlock and those born out of wedlock led to different meanings for the right of custody and guardianship in common law. In common law custody by the father was based on the parent-child relationship. Therefore guardianship meant not only the father’s obligation to shelter, educate and raise children, but also the recognition of the legal status of his children as his successors. Guardianship was exclusive to the father, so it also implied that the father’s authority over the child was exclusive to the father. However, custody referred only to the parents’ actual custody of their children and did not involve control of their children. The identity of the successor of the children was also not recognized at this time. Similarly, mothers could not become legal guardians of children born out of wedlock and could only receive custody through judicial proceedings. A person who gained the custody of a child born out of wedlock was not called a guardian and could only be called a legal or de facto custodial parent. The case of granting mothers custody of children born out of wedlock became their unique maternal right, which had an important impact on the subsequent legislative text of the Act of 1839.
B. Rights of the mother
Matriarchal rights are an important principle in deciding which parent has custody of children born out of wedlock. Traditional moral values in the United Kingdom placed exceedingly high moral expectations on mothers. A mother was expected to perform her duty of caring for her children and be responsible for educating, accompanying and comforting her children. In the absence of patriarchal rights, common law recognized the legitimacy of the mother’s claim to the custody of children born out of wedlock. Common law made it clear that mothers had custody rights over illegitimate children. If a woman became pregnant outside a marital relationship, she could immediately file a lawsuit at the quarter sessions or at the magistrate’s court against the man who got her pregnant, requiring he be identified as the child’s father who should pay certain daily expenses for the child upkeep; however the custody rights belonged to the mother.
In judicial practice, the judge also emphasized the legitimacy of the mother having custody of an illegitimate child. The view being mothers are best able to care for minors, especially children born out of wedlock who lack legal guardians. Therefore, “mothers have natural and proper custody of their children.”12 In particular, for young children born out of wedlock, the mother’s care was considered the best defense against disease, cold and hunger. Judges emphasized the mother’s responsibility for children born out of wedlock. The mother’s custody of children born out of wedlock “not only takes into account the legitimate rights of mothers... but also enables her to assume the responsibilities entrusted by law.”13 This constituted the basis upon which judges granted mothers certain rights over illegitimate children.
The rights granted mothers gave them an advantage in any custody battle over illegitimate children. In general, mothers having the right of custody should meet certain conditions both morally and economically. In practice, however, judges granted custody of children born out of wedlock to the mothers even if the mothers failed to meet these criteria. Because of matral rights, mothers have priority in any dispute over the custody of children born out of wedlock. This gives them the opportunity to confront the children’s fathers, and as a result, there are many cases in which the courts have ruled in favor of the mothers.
In one case mediated by a magistrate, the mother’s right to custody of her illegitimate child was upheld. In this case, William Wood took custody of the illegitimate daughter he had with Clarissa Fiebig, who accused him of kidnapping the child. Wood argued that he took his daughter away because Clarissa could not afford to take care of her daughter and was not a suitable custodian. In the opinion of the magistrate, however, the mother could lawfully and preferentially retain the custody of children born out of wedlock. The reason offered by Wood did not form a defense against this priority.14
In another case,15 when a more responsible third party was willing to raise a child born out of wedlock, the judge still granted custody of the child to the mother. The New couple took in a little girl, the illegitimate daughter of Florence Smith. The mother stopped paying the couple the girl’s living expenses and ignored the child, so the New couple regarded the child as their own. Shortly afterwards, Florence married and was able to send her daughter to a boarding school. This was opposed by the New couple, triggering a dispute over custody. In this case, the girl’s mother had married and now had sufficient financial ability to raise her daughter, but she was not willing to fulfill this responsibility and did not have the legal status as a custodian. However, in the judgment, the judge declared that mother had the right to decide how her child was educated. Therefore, Florence had the right to take the illegitimate child away from the New couple and send her to a boarding school. At the same time, the court confirmed Florence’s custody of her illegitimate daughter. The verdict was upheld in subsequent appeals.16
Similar precedents greatly shook the progressives: matral rights became an important principle in judging the custody of children born out of wedlock, but mothers did not gain guardianship and custody of children born in wedlock, and it was hard to widely and universally maintain the rights of mothers. Caroline Norton raised doubts over this: “Does the law of nature consider that women are not eligible for guardianship, contact, visitation, etc., of the child they have borne after nearly one year of painful and dangerous pregnancy? Does the law of nature argue that women should not claim any rights over the children they are nurturing and caring for? Does the law of nature think that women cannot make any claims over the seriously ill or dying children whom they looked after? In that case, the natural law should say no!”17 She requested that on the basis of “matral rights” and the judicial precedents of guardianship of children born out of wedlock being granted to the mothers that the law give mothers the same custody and guardianship rights for children born in wedlock as those born out of wedlock. She also criticized the existing legislation, calling for the establishment of a legal mechanism for mothers to assert their rights over minors, especially very young children. With her determination, mother’s rights entered the legislative debate as an important legal concept and gained the general sympathy of the public, laying an important foundation for the formation of the tender years doctrine.
C. Establishment of the tender years doctrine
Upholding the rights of the mother was crucial to the formation of the tender years doctrine. In practice, the rights of the mother have gradually been recognized and therefore become an important basis for legal reform: “Since the judiciary allows mothers to be entitled to custody of children born out of wedlock, Parliament should also give the mother the similar right for children born in wedlock, or simply give them a certain priority.”18 In this way, the mother’s rights are also linked with the interests of children.
First, the principle is supported by the judges. In judicial practice, judges tend to proceed from the interests of children, considering that in most cases children need protection and that children should be supervised or raised by their mothers; given the limitations of the law at that time, judges could not intervene in the custody disputes between husband and wife, thereby undermining the interests of children. Therefore, it was necessary to amend the law and establish the tender years principle.
In public opinion, children’s interests are combined with the special ability of the mother to offer care and are widely supported: “nature has provided the baby with wealth for nourishing life, which is the sweet milk in her mother’s breast; mother’s care for children goes beyond life and into the ideas of nurturing children.”19 The mother’s important role for children was widely recognized and provided the legal basis for the 1839 Act from the perspective of protecting the interests of children and highlighting the role and rights of mothers in legislative reforms. Moreover, the fathers at the time generally granted custody to a third person and forbade mothers to visit or raise their children. Thus, the father provided little care, support and protection for children. The rights of the father were “a type of right that did not truly give play to guardianship, but often separated children from their mothers and easily handed over children to others.”20 Some thus argued that it was better to expand the rights of mothers, so that mothers assumed the responsibility for the care and guardianship of young children.
In parliamentary debates, the protection of children’s interests was also frequently raised. In the last debate before the enactment of the legislation, Charles Pepys (1st Earl of Cottenham, 1781-1851) of the Equity Court delivered a speech. He discussed and pros and cons of the draft and pointed out that the act did indeed shake the basis of the current marriage and family order. However, the neglect of the children’s interests under the old legal provisions had consequences that were even more severe. The act should always be based on the protection of children’s interests. The traditional order of marriage and family should also be considered from the perspective of whether it could ensure the best interests of children. He supported the Act, calling for the House of Lords to abandon the maintenance of “tradition” and instead proceed from the interests of children. “From a legal point of view, it shall change the system of simply placing the aspiration of the mother’s rights and the welfare and well-being of children under the patriarchal rights.”21
With the support of public opinion, the tender years doctrine was established and mothers received custody and visitation rights to a certain extent. Such empowerment was no longer viewed by the House of Lords as a challenge to patriarchy, but rather as a complement to the not-so-meticulous care and attention provided by fathers.”22 The mother’s rights were no longer one of the judgment principles that only existed in the judiciary and are used to deal with the custody of children born out of wedlock. Instead, the rights of mothers are formally established through legislation. There is legal basis for the mothers to claim guardianship or visitation rights for their children, meaning that the rights of the mother have advanced from the level of judicial practice to legislation, and this provided the legal foundation for reforming the legislation and expanding mother’s rights.
Ⅲ. Compromise in the Debate on the Act
British law always develops in a moderate manner through a process of compromise. This tradition of political compromise was evident since the Magna Carta. It enabled the conservatives and the reformists to maintain their balance of power in confrontation and promote the process of social reform and political development through consultation. It did not seek abrupt change like the French Revolution, but a step-bystep improvement. Likewise, there was also a compromise between the members of parliament advocating the Act and the conservative members of parliament during its enactment. Therefore, judging from the legislative result, the 1839 Act was both reform and compromise. Through legislative reform, mothers could obtain the custody of children born in wedlock under certain conditions. However, it showed some compromise in terms of legislative principles and legislative thought. From the parliamentary debate and public opinion at the time, it can be seen that the compromise of the Act mainly manifested in two aspects: first, a compromise on the unequal gender structure at that time; and second, a compromise on the traditional order of marriage and family.
A. “Protection” behind the Act
The Act, which allowed mothers to have custody of children born in wedlock under the age of 7, appears to uphold the women’s rights. In fact, it does the opposite. In the parliamentary debates and in the public opinion warfare launched by Caroline Norton, the subordination of women was recognized. On the basis of that, the necessity of legislation to give mothers the right to custody of their children was demonstrated.
In order to gain public support for the legislation, Caroline Norton published many works in her defense. In 1837, Caroline Norton published her first booklet On Motherhood and Custody: Under the Shadow of Patriarchy.23 Here, she adopted a cautious attitude to discuss the legitimacy of her mother’s custody and guardianship of children born in wedlock and that women should have the same rights over legitimate children and children born out of wedlock. She pointed out that the common law provisions on the custody for mothers “are extremely detrimental to the protection of women’s rights.”24 However, she did not make the feminist argument of demanding “equal rights” when fighting for a mother’s rights. Instead of criticizing the prevailing patriarchal structure at the time, she publicly recognized the subordination of women and supported common law provisions on the identity of married women.
Common law provisions on the identity of married women, namely coverture, were the basic norms regarding the legal status and identity of married women. The core of coverture being that married women “have a status of temporary suspension of their human and legal existence, or their human and legal existence is absorbed by their husband as part of their husband.”25 Accordingly, upon marriage, women’s rights were subsumed by those of her husband, and so they could not independently enjoy the custody of their children. Coverture was actually a reflection in law of women’s social roles in a patriarchal culture. It determined that women should be the weaker party and married women should be regarded as the appendage of their husbands, emphasizing a husband’s protection and dominance over his wife. This was the legal source of the inequality in custody rights.
Caroline Norton became aware of this when she was fighting for custody, and she also realized that since coverture had been so entrenched, challenging and opposing it would arouse public criticism. This would invalidate her efforts to win the custody rights for the mother. Thus, she chose to recognize and exploit coverture, and deduced from it the legitimacy and necessity for mothers to have custody of infants and young children.
Caroline Norton said in her pamphlet that women are weak; women’s emotions are fragile and irrational; men have natural, gender-specific advantages over women. Therefore, women “need the British Empire’s laws to protect them against the cruel treatment by men... The more cruel the laws of this country are, the more unreliable the men in this country for the more vulnerable women.”26 Based on this deduction, she stressed the need for mothers to obtain custody and visitation rights for infants and young children, called for legislative reforms to provide protection for married women against the threat of their husbands depriving the women of the custody of infants and young children, and protect their rights to visit children born in wedlock.
Caroline Norton’s compromise strategy decided that she support moderate reforms rather than violent revolution. She always denied that she advocated “gender equality” and also denied that she was inciting women to fight for gender equality. She publicly declared that: “I believe that a woman’s beauty, loyalty and dedication come primarily from her inferiority to a man. Otherwise women cannot look up to and respect her husband.”27 This argument dispelled many objections to the legislation.
If she also resorted to violent means adopted by feminists, the 1839 Custody of Infants Act would have been aborted when it was proposed. In fact, Harriet Martineau, a famous female writer at the time, harshly criticized the unequal status of men and women. “In the 19th century, in one of the most civilized countries in Europe, half of the people, British women, were still enslaved. They are the mothers, wives and daughters of the ‘Britons who are born free.’ But the chains that enslave them are in the minds of the people!”28 Martineau was particularly dissatisfied with Caroline Norton’s compromise strategy. She stressed that women must strive for their rights in a calm and rational manner. She argued that women would not secure their true rights if they sought protection from men through “gender disadvantage” and gained sympathy by making known their own personal experiences. Women only receive temporary protection from men. Martineau criticized Caroline Norton, arguing that her compromise“... only harms women’s fight for equal rights and is the single biggest obstacle to achieving that goal.”29
However, public opinion harshly criticized Harriet Martineau’s remarks about rebuilding the gender structure and promoting equality of rights: “If men and women are always equal, then why do women not have the same strong body? Why are women timid and shy, while men are decisive and bold in action? Why are women more capricious than men? Women’s abilities are even worse... Women’s subordinate position is derived from nature. For women, there is no change, and this is the wisdom of God.”30 Under the influence of the social norms at that time, the public apparently did not recognize women were entitled to equal rights. The new morality that emerged in British society in the 19th century safeguarded the traditional gender structure of the men in charge of affairs outside the home and women in charge of domestic affairs. It strictly limited the gender roles. Women were barred from entering the public sphere, which was regarded as the male preserve, while women were confined to the family sphere and were responsible for providing material care to other family members, especially men. Public opinion therefore also considered that women were male vassals and were not entitled to equal rights.
Moreover, in parliamentary debates, the members of parliament who supported amending the legislation over the custody of infants and young children also deliberately avoided the issue of gender equality and instead emphasized the protection of mothers. Sir Thomas Talfourd, who drafted and submitted the draft law, emphasized in his parliamentary speech that although he asked for the law, he did not ask for changes in law regarding patriarchal rights but merely sought to alleviate the suffering of mothers who were forced to leave their children and to restrict by law the abuse of patriarchy by fathers. Proponents of the act argued that proposals to amend the custody of infants and young children should embody humanitarianism in legislation on the premise of recognizing coverture and providing more equitable protection for a disadvantaged group at the time of enacting the law, rather than seeking equality between the two genders. They tacitly agreed that women had no right to make the laws and had no say in the process of enacting laws. Their rights and welfare were in the hands of the dominant gender deciding the laws. Thus, they argued, men should provide prevention and protection to women when making laws.
To sum up, the recognition of gender inequality runs throughout the debate on the act. Recognizing women’s subordination was the logical starting point for the act. Out of their own consideration, all parties that had a significant impact on the Act did not discuss the possible impact of granting custody of minors to their mothers on equal rights for women. Caroline Norton adopted this action to promote legislation; reformist members of parliament evaded the issue of equal rights to avoid censure from the conservatives; public opinion continued to require women to maintain their roles and status under the influence of moral values; the conservatives required maintaining the status quo and safeguarding men’s dominance over women. Therefore, it is hard to say that this Act was a victory for feminists. In this respect, the significance of its compromise far exceeds that of progress.
B. Order of marriage and family in the legislation
Another compromise in the debate on the Act was the maintenance of the traditional marriage and family. The Industrial Revolution brought violent changes to the social structure in Britain. The conservative moralists wanted to maintain the traditional moral order and thus maintain the stability of the family. In the patriarchal mode, family members should assume their respective responsibilities. Wives were subordinate to their husbands and made sacrifices for their children. Husbands were to provide for the upkeep of the family and provide shelter to other family members. Essentially, this family model maintains a relatively stable marital relationship based on maintaining the husband’s rights. In the view of conservatives, a stable marital status can provide children with the maximum source of livelihood and help maintain social stability. Conservative members of parliament questioned the Act’s potential threat to the traditional marriage and family order after the Act was submitted to Parliament. Sir Edward Burtenshaw Sugden (1781-1875) raised the most violent objection to the Act. He argued that the Act would exacerbate the conflicts between husbands and wives and cause a sharp rise in the number of divorces. He argued that the Act would not be conducive to the reconciliation between a husband and wife in judicial separation proceedings.
Sir Sugden argued that children are an important link between a husband and bwife and the best reason to prevent a couple from filing for judicial separation. If the wife is unable to secure her rights regarding a legitimate child, she will always find a reason to reconcile with her husband after weighing the pros and cons. Instead, once the Act is passed, he said, the wives would gain their rights regarding their children and would no longer tolerate their husbands. He said that the mothers would declare that “as long as I can file a lawsuit according to legal procedures, I will be able to obtain custody and visitation rights under the law, and I will immediately make a judicial separation with my husband.”31 This would expose many families to the threat of disintegration. Sir Sugden also feared that should the Act be passed, the women who committed adultery or other crimes, or had moral blemishes would have custody or visitation rights. This would induce women not to abide by the moral norms of loyalty and chastity. At the same time, he considered that women would vilify the children’s father in front of the children when exercising their visitation rights and custody. “This not only harms the father’s authority, but also completely alienates children from their parents.”32The arguments of Sir Sugden were representative of the conservative members of parliament. They were not concerned with the legitimate interests of women and minors but more inclined to maintain a stable marriage and family, the traditional moral order and the absolute authority of patriarchy and husband’s rights in family life.
The supporters of the Act pointed out that not all women would abuse their custody and guardianship rights in this way. The resulting disputes could be avoided only if women fully secured and exercised their custody and visitation rights. Despite their opposition to the maintenance of unhappy marriages by restricting women’s rights, concessions were also made to ensure the passing of the Act.
In the first draft submitted in April 1837, there was adequate protection of women’s custody and visitation rights. It provided that all women might obtain the custody and visitation rights of their children through legal procedures after judicial separation; the jurisdiction over custody and visitation rights extended from the Equity Court to all courts; and that the court be allowed to dismiss the writ of habeas corpus secured by a father to exercise exclusive custody of children. The draft also allowed mothers to have visitation rights of minor children of all ages and the custody of all young children.
After the conservatives raised objections, Sir Talfourd submitted an amended draft to Parliament in December 1837. Not only was the draft more modest in wording, but the specific terms were revised according to the opinions voiced by conservatives. For starters, it restricted women’s visitation rights. The court only accepted the women’s claims for visitation rights to children under the age of 12. If a child was over the age of 12, a court would no longer accept a case; second, it cancelled the special clauses on the application and dismissal of the writ of habeas corpus for minor children. Accordingly, it would be very difficult for women to overthrow the writ of habeas corpus that the husband had legally secured for their children in the proceedings; the Act added provisions that allowed the father to file a lawsuit for visitation rights and stipulated the father’s right to visit all minor children.
In May 1839, for the third time, Sir Talfourd made a compromise on the terms the third time. The draft submitted this time made even more compromises on the eligibility of women in custody and visitation rights and the procedural matters. It stipulates that both husband and wife can only institute legal proceedings for the guardianship or visitation rights of their minor children after the Court of Arches or the Consistory Court have ruled the judiciary separation; both the Equity Court and the ordinary courts have jurisdiction over the cases of visitation rights and the ruling on mothers’ application for the guardianship of their children can only be taken by the Equity Court; if a woman is convicted of adultery in a lawsuit, or is convicted by a Church Court in judicial separation, the women cannot secure the guardianship of young children; women can file a lawsuit demanding the guardianship of children under the age of seven. This amendment adds the ethical review of the guardianship secured by women and re-emphasizes the moral norms women should follow. More importantly, it requires women to obtain guardianship only at the time of judicial separation, meaning that in normal marriage, patriarchal power still dominates and women cannot claim rights over their children. This amendment is undoubtedly a compromise on the traditional marriage and family order.
The final version of the Act that was passed placed more restrictions on women seeking guardianship. Women could have guardianship of children under the age of 7, but paternal rights took precedence over this right. If, prior to the proceedings for guardianship, the husband had appointed another person as a guardian of the child through a will or agreement, or if a godfather had been appointed for the child, the  mother would not be able to obtain guardianship of her child. As can be seen from the changes in the clauses of the Act, the reformists made great concessions and compromises in order to get the Act passed. The Act evolved from protecting women’s rights relatively broadly and equitably to conditionally granting some women the possibility of obtaining guardianship and the right to visit their children under the premise of maintaining the traditional marriage and family order. By restricting the conditions under which a mother could obtain and exercise her custody rights, it circuitously recognized the priority of paternal rights. The natural rights of mothers regarding their children the reformists tried to obtain remained unfulfilled, and women could only enjoy these rights after a rigorous examination in the proceedings. The clauses of the Act that maintained the patriarchal and husband’s rights meant extremely limited rights for the women, formally and substantially speaking.
Ⅳ. Conclusion: Brief Comment
The historical status and significance of the Custody of Infants Act of 1839 should be evaluated in many respects. It does have much progressive significance. However, whether it can be given such historic evaluations as an “achievement of the equal rights movement” or a “breakthrough in ending patriarchal absolutism” should be re-examined from a Marxist standpoint.
The 1839 Act was promulgated in the first half of the 19th century, when the Industrial Revolution in Britain was in full swing. The Industrial Revolution not only profoundly changed Britain’s industrial production, but also brought about an allround change in civil society.33 The Industrial Revolution certainly had a profound impact on legislation in this era and exerted a far-reaching influence on subsequent legislation. The 1839 Act was one of the laws deeply influenced by the Industrial Revolution and its historical significance was seismic.
For starters, it kicked off the legislative reform of guardianship in the United Kingdom in the 19th century, and gradually shifted the law from safeguarding patriarchal power to defining the absolute rights of men and women. But the development of family legislation in the United Kingdom has been tortuous and slow. As Marx put it, when the family continues to develop, the kinship system becomes rigid; when the latter continues to exist in a customary manner, the family has already surpassed it.34 The Custody Act of 1839 is a good example of this. As the Industrial Revolution was nearing an end, the patriarchal authority in legislation began to be challenged. In the Industrial Revolution, the relations of production in the United Kingdom witnessed historic transformation. Women participated in social production and took part in more social and public affairs, markedly improving the status of women. Women had a greater say in society and in family life. The family structure in the United Kingdom during the Industrial Revolution changed dramatically compared to the traditional family structure wherein the husband had the dominant position. “The last remnants of man’s rule have lost ground.”35 Women’s rights were upheld to some extent but their legal status was raised. In the process, the requirements for expanding and protecting women’s rights and safeguarding the best interests of children were also highlighted in legislation. The 1839 Act objectively enabled women to obtain the guardianship and visitation rights to a certain extent and attached importance to the rights of infants and young children. This was a big step forward.
Second, the tender years doctrine established by the 1839 Act had a worldwide impact. It shifted the custody legislation in the United Kingdom from the father’s rights to the protection of children’s best interests. In the subsequent Custody Powers Acts of 1873, 1886 and 1925, the United Kingdom gradually eliminated the patriarchal element in minors’ legislation and established the principle of giving priority to the best interests of the child. In the Custody of Infants Act of 1925, the special provisions explain the principle of the best interests of minors. This legislative achievement gained worldwide recognition. The Geneva Declaration of the Rights of the Child was passed in 1924; the extended Declaration of the Rights of the Child was adopted at the UN General Assembly in 1959; the UN passed the Convention on the Rights of the Child in 1989. In the form of legal documents, the Convention stipulates the obligations that State parties should fulfill to protect children’s rights and establishes the principle of giving priority to the best interests of the child as the most important principle of legislation on children’s rights. In subsequent developments, the principles of respecting the individual opinions of children, ensuring the right of children to survival and development, and eliminating discrimination against children were established. A relatively complete legal system for guaranteeing the rights of children has thus been established in the scope of international law. The 1839 Act can rightly be called the origin of the principle of what is in the best interests of children, and so it undoubtedly had far-reaching historical influence.
Third, the 1839 Act recognizes matral rights. This was the first time that the United Kingdom enacted legislation on women’s rights. It ended the practice that the guardianship and visitation rights of women previously existed only in judicial practice, endowing women that had been married certain rights in legislation. This not only meant that women’s rights were gained, but also shook the legislative basis for the marriage order in the United Kingdom, provided the legal basis for women to secure
other rights.
On the other hand, the 1839 Act also had less positive aspects. First of all, the legislation was still based on the subordination of women, not on granting them equal rights. It recognized and extended the role of women as a disadvantaged group, and was not a product of the equal rights movement. It was the result of a compromise between legal reform and traditional marriage and family order. Therefore, it is hard to claim that it was part of the equal rights movement for the women in the 19th Century. In addition, the tender years doctrine it established played a role in consolidating the family model of men in charge of affairs outside the home and women in charge of domestic affairs, and solidified the mother’s duty of caring for children. In fact, the rigid gender-based division of labor continued, and restricted women’s roles. This runs counter to the equal rights movement with free competition advocated by women in the United Kingdom in the 19th century.
Second, on the basis of recognizing the subordinate status of women, it restricted the guardianship and visitation rights of women from a legislative perspective. The legislation did not give women complete guardianship and visitation rights. It gave women only certain legislative rights regarding legitimate children without recognizing women’s guardianship and visitation rights to children born out of wedlock. Whether women’s rights regarding illegitimate children could be recognized was still decided by the Equity Court. At the same time, the 1839 Act recognized only women’s guardianship of children under the age of 7 and their right to visit children under the age of 12, and their scope of powers remained extremely limited. The rights of the mother were not seen as being equal to paternal rights. In this sense there were still great limitations to the Act.
Third, it only continued the declining trend of patriarchal absolutism rather than confirming its decline. Prior to the promulgation of the 1839 Act, state power had to be used against paternal rights. It is against this background that the 1839 Act was accepted and acknowledged by the public. Therefore, it does not have the significance of pioneering confrontation with patriarchal authority.
Fourth, the 1839 Act was not a revolutionary law that overturned patriarchy. Judging from specific terms, it recognized the priority of patriarchy in disposing of the guardianship of young children; the empowerment of mothers was also limited to uphold patriarchy. This legislation upholds the patriarchal family structure and at the same time appropriately increases the provisions that safeguard the rights of women and children. It is not the legislation that originally aimed to secure equal rights for women and the best interests of the child. Although proposed by the reformists, the provisions confirmed the power of conservatives. The Act treated legislative reform with caution and embodied the conservatives’ intention of emphasizing historical traditions and giving priority to maintaining the marriage and family order “with which the people are familiar and which creates a sense of security.”36 The struggle between the reformists and the conservatives and the compromises of the former was evident throughout the legislative process.
Historically, an ambitious agenda such as women’s equality and women’s liberation cannot be achieved by legal reform alone. By the late 19th century, Friedrich Engels concluded that, “in the case of marriage, even the most progressive laws are satisfactory if the parties allow them to formally record the voluntary marriage.” As for the real life behind the law, and how this voluntary marriage occurs, both law and jurists can ignore these.”37 “The legal equality of men and women after marriage does not seem better. The gender inequality in law between men and women inherited from the past social relations is not the cause, but the result, of the economically oppressed women.”38 He soberly judged that “the first prerequisite for the liberation of women is to allow women back into public undertakings; to this end, the attributes of individual families as the economic unit of society shall be removed.”39 Obviously, even in contemporary societies with highly developed socio-economic conditions, these are still goals that could only be achieved with great effort. If we go back to the deep-rooted 19th-century foundation of private ownership, there are sharp contradictions between the bourgeoisie and the proletariat. “The prejudices of a class cannot be thrown away like old clothes, least of all by the conservative, narrow and selfish British bourgeoisie”.40 In the era when the bourgeoisie dominated, it is impossible to fundamentally change the law because “the entire legislation is, first and foremost, to protect the possessors and oppose the proletarians.”41 The difference between the original legislative purpose and the legislative result of the Custody of Infants Act of 1839 shows that it is far from enough to realize the great task of gender equality and women’s emancipation through minor changes to the law.
In general, the 1839 Act, despite its considerable progress, is not an act that completely reformed the legislation on the guardianship of infants and young children in the United Kingdom. Unequal gender relations and paternalism still existed in the Act’s inherent spirit and specific norms, indicating that its legislative basis was still deeply rooted in its era and did not break the historical norms. The Act of 1839 inherited the patriarchal decline that was already evident in judicial practice. It was in keeping with the tendency of the collapse of the traditional order and was promulgated through the compromise and argument. It is thus a law full of compromise and continuity.
(Translated by NI Weisi)

* XU Yifei ( 徐奕斐 ), Ph.D. Candidate at Renmin University of China Law School.
1. Susan Maidment, Child Custody and Divorce: the Law in Social Context (London: Croom Helm, 1984), 115.
2. Ray Strachey, The Cause (London: Virago Press, 1989), 34.
3. Marx and Engels, Collected Works of Marx and Engels, vol. 21 (Beijing: People’s Publishing House, 2016),41.
4. Ibid., 69.
5. William Blackstone, Commentaries on the Laws of England, trans. You Yunting and Miao Miao (Shanghai: Shanghai People’s Publishing House, 2006), 499.
6. The Blisset’s Case, 1774, 98 Eng. Rep.899 (K.B.).
7. Ibid.
8. Ibid.
9. Wilfrid Hooper, The Law of Illegitimacy: A Treatise on the Law Affecting Persons of Illegitimate Birth, with the Rules of Evidence in Proof of Legitimacy and Illegitimacy, and an Historical account of the Bastard in Mediaeval Law ( London: Sweet & Maxwell Press, 1911), 101—138.
10. William Blackstone, Commentaries on the Laws of England, 510.
11. Ibid.
12. Ginger Frost, “‘When is a Parent Not a Parent?’ Custody and Illegitimacy in England, 1860-1930”, Journal of the Childhood and Youth 6 (2013): 240.
13. Hamphrysv Ploak, Kingi Bench Division, Law Reports (1901): 385-390.
14. Ginger Frost, “‘When is a Parent Not a Parent?’ Custody and Illegitimacy in England, 1860-1930”, 240.
15. The King v. New and Wife, (1904) Times Law Reports 515 (K.B.).
16. The King v. New and Wife, (1904) 20 Times Law Reports 583 (C. A.).
17. Caroline Sheridan Norton, The Separation of Mother and Child by the Law of “Custody of Infants” Considered (London: Roake and Varty, 1838), 9-10.
18. H. C. Debates, 3d Ser. vol. 43, 146.
19. S. Wilderspin T. J. Terrington, Manual for the Religious and Moral Instruction of Young Children in the Nursery and Infant School ( London: Hamilton Adams, 1845), 5.
20. H. C. Debates, 3d Ser. vol. 43, 103-104.
21. The Times, 19 July, 1839, 4.
22. Ibid.
23. Caroline Sheridan Norton, Observations on the Natural Claim of the Mother to the Custody of Her Infant Children: Is Affected by the Common Law Right of the Father (Cambridge: Cambridge University Press, 2012).
24. Letter from Caroline Norton to Brinsley Sheridan, 18 January 1837, BLMC, MS 42767, 102.
25. William Blackstone, Commentaries on the Laws of England, 491.
26. N. Ogle, “The Custody of Infants’ Bill”, Frasser’s Magazine for Town and Country 19 (1839): 205.
27. The Times, 29 August, 1838, 5.
28. “An Outline of the Grievances of Women”, The Metropolitan Magazine 22 (1838 ): 16. This article was anonymously published, but according to the hints given by other journals at the time, the article is likely to be the work of Harriet Martineau.
29. Harriet Martineau, Harriet Martineaus’ Autobiography, vol. 1 ( London: Elder Smith Press, 1877), 400-402.
30. “Practical Reasoning Versus Impracticable Theories”, Frasers Magazine for Town and Country 19 (1839): 567-568.
31. H. C. Debates, 3d Ser., vol. 40, 14 February, 1838, 1116.
32. H. C. Debates, 3d Ser., vol. 43, 23 May, 1838, 144-145.
33. Marx and Engels, Collected Works of Marx and Engels, vol. 2 (Beijing: People’s Publishing House, 2016), 281.
34. Marx and Engels, Collected Works of Marx and Engels, vol. 21 (Beijing: People’s Publishing House, 2016), 41.
35. Ibid., 85.
36. Long Taijiang, “Political Compromise and Western Political Civilization”, the Journal of Humanities 6 (2004): 44.
37. Marx and Engels, Collected Works of Marx and Engels, vol. 2, 86.

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