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City University of New York (CUNY) CUNY Academic Works Dissertations, Theses, and Capstone Projects CUNY Graduate Center 9-2015 Knowing Children/Children Knowing: Nineteenth-Century British Child Law and Literature Donna Paparella Graduate Center, City University of New York How does access to this work benefit you? Let us know! More information about this work at: https://academicworks.edu/gc_etds/1085 Discover additional works at: https://academicworks.edu This work is made publicly available by the City University of New York (CUNY). Contact: AcademicWorks@cuny.edu KNOWING CHILDREN/CHILDREN KNOWING: NINETEENTH-CENTURY BRITISH CHILD LAW AND LITERATURE by DONNA PAPARELLA A dissertation submitted to the Graduate Faculty in English in partial fulfillment of the requirements for the degree of Doctor of English, The City University of New York 2015 Paparella ii © 2015 DONNA PAPARELLA All Rights Reserved Paparella iii This manuscript has been read and accepted for the Graduate Faculty in English to satisfy the dissertation requirement for the degree of Doctor of Philosophy. Talia Schaffer ___________________ ______________________ Date Chair of Examining Committee Mario DiGangi ___________________ ______________________ Date Executive Officer Talia Schaffer Rachel Brownstein Anne Humpherys Supervisory Committee THE CITY UNIVERSITY OF NEW YORK Paparella iv Abstract KNOWING CHILDREN/CHILDREN KNOWING: NINETEENTH-CENTURY BRITISH CHILD LAW AND LITERATURE by Donna Paparella Adviser: Professor Talia Schaffer Why are nineteenth-century literary narratives filled with children’s accounts of bad parents, dead parents, absent parents, and surrogate parents? What are the origins of our current preoccupation with children as evidenced, for example, in Ian McEwan’s new novel, The Children Act; New York State’s recent amendments to the name and role of “Attorney for the Child”; and today’s vehement debates over parenting styles? The mid-nineteenth century was a period of intense preoccupation with “the child”: it engendered family law; it generated an explosion of representations of children in art and literature; and it witnessed the beginnings of the scientific study of childhood. Knowing Children/Children Knowing: Nineteenth-Century British Child Law and Literature pursues the relatively uncharted relation between nineteenth- century Anglo-American child law reform and Victorian literary representations of childhood and childhood consciousness, arguing that this relation is the origin of our present concerns.

Examining issues of childhood and personhood, freedom, and choice, and using primary literary, legal, and historical sources, I argue that novelists and autobiographers used changes in the law as a creative opportunity, engaging legal debates about children in their plots, in their forms, and in their portrayals of childhood. These narratives, when read in their historical context, mark a Paparella v change in the understanding and representation of childhood that anticipate contemporary thinking about child welfare. Correlatively, these historical roots give us a lens through which to see and understand formal literary invention. This project begins to fill a gap in the disciplinary intersection of Victorian family law and literature.

In a 2007 Victorian Literature and Culture review of law and literature criticism, Simon Petch proclaimed that “Victorian Studies seems to have gained very little from the Law and Literature movement,” because of the movement’s narrow focus on a handful of texts. Much law and literature criticism has two main issues: it is oftentimes ahistorical and, as Petch points out, it treats “literature” as “culture.” For example, Kieran Dolin’s work is based on his assumption that law, like literature, is a fiction. Ian Ward, writing “as a member of the legal academy,” notes that the “‘law and literature’ movement has been nurtured in the main, from within this academy,” and challenges literary scholars to take up this relationship. Although there has been work on divorce law in the nineteenth century and much work done on “the child” by literary critics, these two are rarely considered together: custody law is most often viewed as a by-product of divorce reform and understood primarily as an expansion of a wife's rights developed by Victorian suffragism.

Likewise, in this context, literary representations of the child are often treated as part of the marriage and/or divorce plot or of “the woman question.” I present an alternative history, arguing that literary treatments of the child are primary and generative: the child is not secondary to these other plots but offers us another plot entirely. Child-centric literature participates in new ways of thinking about and structuring families and new ways of organizing narrative form. Maintaining the differences between legal and literary discourses, I read a reciprocal relationship between law and literature concerning children: child-centric literature is both influenced by child law and influences child law. As the law recognized that Paparella vi children have a voice and that childhood interests exist, literature gave expression to the child’s voice and interests.

The history of custody law shows us that there is a rhetoric of personhood that developed with specific applications to childhood, which has to do both with the child as such, as well as with the symbolic nature of the child as a figure of fundamental human being-ness. At the same time that the law acknowledged childhood subjectivity, it also considered children as dependents and in need of protection. In response, the court became parens patriae—literally, “parent of the nation”—displacing biological parents. By the early twentieth century the conception of the child changed from that of an object of possession to (paradoxically) that of an object in need of guardianship who is also a subject: as a result, children’s lives became regulated by the state more than by their parents.

The literary works I am examining have a stake in making adults understand the child’s perspective and, in doing so, invite the reader to use this as the key to understanding one’s own development. Childhood became necessary; it needed to be protected and managed because it was essential in formulating personhood in both real and symbolic ways. As such, childhood is a crucial component of modern identity itself. Paparella vii Acknowledgments I am so fortunate to have worked with a dream dissertation committee and I am incredibly grateful to them.

My advisor, Talia Schaffer, is a true mentor. Her profound generosity, encouragement, and intelligence have infused every page of this project. It has been a privilege to work with Rachel Brownstein, who has read everything and knows everything. Anne Humpherys’s exacting readings of my early work on this project set the highest standards.

I am grateful to my dear friends Kirsten Tranter, Tanya Agathocleous, and Bob Bettendorf, who have sustained me with their friendship, love, and intellectual and emotional support over many years. Bob Bettendorf read a portion of this project in the meticulous way that only he can do. My thanks to Jeremy Glick for his early input and continued interest in this work. I thank my colleagues in office 1436 at Hunter College, who have made daily life and work infinitely happier, especially Jason Ueda, Josh Ginsberg, Jen Mitchell, Joost Burgers, Kathryn Narramore, and Liz Goetz.

Thank you to my friend, Barbara Wilding, who, when I was at a crossroads in my life, gave me the advice I needed to take on this project. I also wish to thank my family—Linda, Anthony, Phoebe, Eileen, and my father—for their enthusiasm and support for my work. My mother and grandparents would be very proud. Most of all, I am grateful to my son, Sam, who has made my life and writing more meaningful, worthwhile, and wonderful than anything I could ever have imagined.

I dedicate this to him. Paparella viii TABLE OF CONTENTS 1. The Empire of the Child: British Court Intervention in Nineteenth-Century Custody Law 1 2. Inventing Motherhood: Moral Crimes and the Maternal Plot 44 3.

Splitting the Baby: What Maisie Knew about Joint Custody 92 4. “O how I do hate that Law”: Rewriting the Law of the Father 137 Epilogue: Our Children/Ourselves 185 Bibliography 192 Paparella 1 1. The Empire of the Child: British Court Intervention in Nineteenth-Century Custody Law The legal power of a father,—for a mother, as such, is entitled to no power, but only to reverence and respect; the power of a father, I say, over the persons of his children ceases at the age of twenty-one: for they are then enfranchised by arriving at years of discretion, or that point which the law has established, as some must necessarily be established, when the empire of the father, or other guardian, gives place to the empire of reason. Yet, till that age arrives, this empire of the father continues even after his death; for he may by his will appoint a guardian to his children.

(William Blackstone, Commentaries on the Laws of England, 1765) The first education is the most important and this first education belongs incontestably to women; if the Author of nature had wanted it to belong to men, He would have given them milk with which to nurse the children. The laws—always so occupied with property and so little with persons, because their object is peace not virtue—do not give enough authority to mothers. However their status is more certain than that of fathers; their duties are more painful; their cares are more important for the good order of the family; generally they are more attached to the children. Fathers’ ambition, avarice, tyranny, and false foresight, their negligence, their harsh insensitivity are a hundred times more disastrous for children than is the blind tenderness of mothers.

(Jean-Jacques Rousseau, Emile, 1762) The next century will be the century of the child, just as this century has been the women’s century. When the child gets his rights, morality will be perfected. (Amelia Barr, The Lion’s Whelp, 1901) Why are nineteenth-century literary narratives filled with children’s accounts of bad parents, dead parents, absent parents, and surrogate parents? What are the origins of our current preoccupation with children as evidenced, for example, in Ian McEwan’s recent novel, The Children Act; New York State’s recent amendments to the name and role of “Attorney for the Child”; and our current vehement debates over parenting styles? The mid-nineteenth century was a period of intense preoccupation with “the child”: it engendered family law; it generated an explosion of representations of children in art and literature; and it witnessed the beginnings of the scientific study of childhood. From Philippe Ariès on, there has been extensive consideration of the child in almost all disciplines.

What has remained relatively uncharted, however, is the relation between nineteenth-century child law reform and Victorian literary representations of Paparella 2 childhood and childhood consciousness. While critics of Victorian literature have produced much work on divorce law in the nineteenth century and much work on “the child,” they often treat child custody law as a derivative of divorce law reforms and/or the feminist movement. In this context, they often are concerned with the literary figure of the child only insofar as it is part of the marriage plot. I present here an alternative history, arguing that literary treatments of the child are primary and generative: the child is not secondary to the marriage plot but offers another plot entirely.

Writers of literature found creative opportunities in changes in child custody and welfare laws and they engage legal debates about children in their plots, in their forms, and in their representations of childhood. Child-centric literature, like child law, participates in new ways of thinking about and structuring families and, focusing on the child offers writers new ways of organizing narrative form. Children are born on the borderlands of humanity. In the context of conceptualizing children, law and literature have a special connection: both endeavor to construct children as subjects, as “persons”—and in doing so, reveal the paradox of such a project.1 Thus, what is at stake is not only defining “child,” but defining “person” as well, which entails navigating the relationship between what Barbara Johnson calls “a lyric ‘person’—emotive, subjective, individual—and a legal ‘person’—rational, rights bearing, institutional” (Persons and Things 189).

Historian Anna Davin describes “childhood” as mutable: the “properties” of childhood, she claims, “are multiple and elusive; its limits elastic. There is no absolute definition of childhood, whether subjective or official, because it is always lived and defined in cultural and economic contexts” (qtd.