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An essay by Thomas Wentworth Higginson

The Prevention Of Cruelty To Mothers

Title:     The Prevention Of Cruelty To Mothers
Author: Thomas Wentworth Higginson [More Titles by Higginson]

From the Society for the Prevention of Cruelty to Animals we have now advanced to a similar society for the benefit of children. When shall we have a movement for the prevention of cruelty to mothers?

A Rhode Island lady, who had never taken any interest in the woman-suffrage movement, came to me in great indignation the other day, asking if it was true that under Rhode Island laws a husband might, by his last will, bequeath his child away from its mother, so that she might, if the guardian chose, never see it again. I said that it was undoubtedly true, and that such were still the laws in many States of the Union.

"But," she said, "it is an outrage. The husband may have been one of the weakest or worst men in the world; he may have persecuted his wife and children; he may have made the will in a moment of anger, and have neglected to alter it. At any rate, he is dead, and the mother is living. The guardian whom he appoints may turn out a very malicious man, and may take pleasure in torturing the mother; or he may bring up the children in a way their mother thinks ruinous for them. Why do not all the mothers cry out against such a law?"

"I wish they would," I said. "I have been trying a good many years to make them understand what the law is; but they do not. People who do not vote pay no attention to the laws until they suffer from them."

She went away protesting that she, at least, would not hold her tongue on the subject, and I hope she will not. The actual text of the law to which she objected is as follows:--

"Every person authorized by law to make a will, except
married women, shall have a right to appoint by his
will a guardian or guardians for his children during
their minority."[1]

There is not associated with this, in the statute, the slightest clause in favor of the mother; nor anything which could limit the power of the guardian by requiring deference to her wishes, although he could, in case of gross neglect or abuse, be removed by the court, and another guardian appointed. There is not a line of positive law to protect the mother. Now, in a case of absolute wrong, a single sentence of law is worth all the chivalrous courtesy this side of the Middle Ages.

It is idle to say that such laws are not executed. They are executed. I have had letters, too agonizing to print, expressing the sufferings of mothers under laws like these. There lies before me a letter,--not from Rhode Island,--written by a widowed mother who suffers daily tortures, even while in possession of her child, at the knowledge that it is not legally hers, but held only by the temporary permission of the guardian appointed under her husband's will.

"I beg you," she says, "to take this will to the hilltop, and urge law-makers in our next legislature to free the State record from the shameful story that no mother can control her child unless it is born out of wedlock."

"From the moment," she says, "when the will was read to me, I have made no effort to set it aside. I wait till God reveals his plans, so far as my own condition is concerned. But out of my keen comprehension of this great wrong, notwithstanding my submission for myself, my whole soul is stirred,--for my child, who is a little woman; for all women, that the laws may be changed which subject a true woman, a devoted wife, a faithful mother, to such mental agonies as I have endured, and shall endure till I die."

In a later letter she says, "I now have his [the guardian's] solemn promise that he will not remove her from my control. To some extent my sufferings are allayed; and yet never, till she arrives at the age of twenty-one, shall I fully trust." I wish that mothers who dwell in sheltered and happy homes would try to bring to their minds the condition of a mother whose possession of her only child rests upon the "promise" of a comparative stranger. We should get beyond the meaningless cry, "I have all the rights I want," if mothers could only remember that among these rights, in most States of the Union, the right of a widowed mother to her child is not included.

By strenuous effort, the law on this point has in Massachusetts been gradually amended, till it now stands thus: The father is authorized to appoint a guardian by will; but the powers of this guardian do not entitle him to take the child from the mother.

"The guardian of a minor ... shall have the custody and tuition of his ward; and the care and management of all his estate, except that the father of the minor, if living, and in case of his death the mother, they being respectively competent to transact their own business, shall be entitled to the custody of the person of the minor and the care of his education."[2]

Down to 1870 the cruel words "while she remains unmarried" followed the word "mother" in the above law. Until that time, the mother if remarried had no claim to the custody of her child, in case the guardian wished otherwise; and a very painful scene once took place in a Boston court-room, where children were forced away from their mother by the officers, under this statute, in spite of her tears and theirs; and this when no sort of personal charge had been made against her. This could not now happen in Massachusetts, but it might still happen in some other States. It is true that men are almost always better than their laws; but while a bad law remains on the statute-book it gives to any unscrupulous man the power to be as bad as the law.

[Footnote 1: Gen. Statutes R.I., chap. 154, sect. 1]

[Footnote 2: Public Statutes, chap. 139, sect. 4.]

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Thomas Wentworth Higginson's essay: The Prevention Of Cruelty To Mothers