A Modern Madonna

by Caroline Abbot Stanley

"The question to be determined," he said, "is not one of sentiment, but of law. Briefly stated it is this: Whether the statute of Charles II, Chapter 24, Section 8, is in force in this District to the extent that the father of infant children may be deed or will transfer their exclusive custody and control to a guardian, regardless of the fact that the mother, his wife, may be competent, willing, and in all respects qualified to maintain, educate, and train them properly.

"There has been, both in and out of court, a good deal of sentimental declamation indulged in, in regard to this statute, and it has been reprobated as being in conflict with the natural rights of the mother, and in conflict with the present civilization of the people. But while it is sufficient to say that courts of justice, and especially of common law, are not at liberty to disregard the statute and act upon any mere feeling of repugnance to it, we must bear in mind that this statute of Charles II has been in force in England for more than two centuries, and that it is still in force there, and has stood the test of English civilization, with the slight modification," he went on to explain, "that the chancellor or master of the rolls may, upon petition of the mother, where the infant is within the age of seven years, order that such infant shall be delivered to and remain in the custody of the mother until attaining the age of seven; provided the mother be a fit and proper person to have the custody of the infant.

"There may be reasons," he continued, "why the wife should not be selected as the guardian of the child. In the first place the father, as the head of the family and the responsible one has the right to say who should have the training of his children."

Mrs. Pennybacker's eyes snapped.

"Who gave him that right?" she asked in a fierce whisper of Bess, who was the nearest at hand, but Bess, not knowing the answer, could only look blank.

The Judge went on to say that another reason was the probability of a second marriage and the consequent introduction of his child to the treatment of a stranger, possibly hard and unsympathetic. ("Of course men seldom marry," commented Mrs. Pennybacker satirically.)

"And yet another reason might be in the age or ill health, to say nothing of the mental or moral unfitness of the mother." He proceeded to emphasize just here that while no stress had been laid upon the mother's unfitness in the present case on account of mental or moral incompetency, it had been clearly shown by counsel for the plaintiff that she was guilty of wilfully and forcibly kidnapping and abducting said child after the will devising it to the said De Jarnette had been admitted to probate, and while it might be argued that this was an unwitting violation of the law, still it must be admitted that the act showed the defendant to be deficient in that sound judgment which would make her a safe guardian for the child.

Margaret sat looking at him with wild startled eyes.

"Like all powers of appointment," he continued, "this power in the father to appoint by testament a guardian to his children is liable sometimes to be exercised in what might appear to be an arbitrary manner, and in disregard of the feelings of the mother. But the history of the statute does not show this to have been frequently the case in reality. Many times the act has a most beneficent operation. The principle of the statute, taking it all in all, appears to have been beneficial to the family relation, and to have furnished the means of securing the welfare of the children, which after all is the thing that the court has always to consider. If not so, it could hardly have been retained in force in the English and American statute law to the present day."

Concluding, he said: