By Lucy Marin, author of His Family Objects
The question of what to do with underaged children—or those otherwise incapable of caring for themselves should their parents die—is timeless. The consequences of a father’s or mother’s death is well represented in Jane Austen’s works, from the Dashwood family’s impoverishment in Sense and Sensibility to the hiring of Miss Taylor in Emma, and in the loss of both parents for the Darcys and the Bingleys in Pride and Prejudice.
Although Mr Darcy was young, about 22 or 23, when his father died, he was over the age of majority, which was 21. This marks an important difference from his sister, who was only about ten years old when the elder Mr Darcy died. Their mother also was dead, although we do not know exactly when Lady Anne passed. What, then, was to be done with Georgiana Darcy and other children in her position? Simply put, orphaned children required a guardian—at least if they had high social position and had inherited wealth and/or property
An orphan was considered a minor whose father was dead. Their mother might be alive and have physical custody of their son or daughter, but a male guardian was necessary to make legal decisions and oversee their inheritance.
While today a parentless child might be adopted, adoption as we know it was not practiced at the time. A family member or friend might give a home to an orphan (or to a child with living parents), love them as their child, and make them their heir, but they could not legally establish themselves as the child’s parent. Austen provides us with examples of this, both in her life— her own brother Edward lived with the Knight family—and in her writing, with Frank Churchill in Emma. These two boys were under the guardianship of others, though that did not necessary afford those guardians legal rights, such as to give or withhold permission to marry while their ward was underage.
Children from poorer families or those without someone willing or able to give them a home might end up in an orphanage. That would not happen to a child in Georgiana Darcy’s situation, with her noble connexions and a fortune of ₤30,000. Only fathers had the right to appoint a guardian for their children; mothers could not. If a father did not include such information in his will, the Court of Chancery would be responsible for designating an appropriate guardian or guardians. The court might also overrule the provisions of a will—even remove a father as guardian—given a sufficiently strong reason to do so, such as if the father had committed a terrible crime, was considered egregiously immoral, or was raising his children as atheists.
Court-appointed guardians were usually the most closely related person that could not inherit from the child. This was to prevent the child being coerced out of their inheritance by the guardian or through marriage. Guardians marrying their wards was frowned upon, again because of the possibility that the child had been manipulated in order to gain access to their wealth. According to Blackstone’s Commentaries, ‘there may be no temptation nor even suspicion of temptation for him to abuse his trust’. This is the opposite of Roman law, in which the guardian would commonly be the person who was next in line to inherit the child’s wealth and property on the basis that it would give them a strong motive to ensure the estate remained healthy. (If you’ve read as many mysteries as I have, you might see this as an excellent motive for doing away with your ward…)
In Pride and Prejudice, the elder Mr Darcy’s will stipulated that his son and nephew Colonel Fitzwilliam would become Georgiana’s guardians. We have no explanation for why Colonel Fitzwilliam was included. Might it have been an attempt to prevent a marriage between his daughter and her much older cousin who, from what he tells Elizabeth Bennet at Hunsford, must marry a rich woman? We know that the family had discussed one marriage between cousins—Mr Darcy and Anne de Bourgh—why not another?
Guardians were considered temporary parents, those in place only until the ward reached the age of majority. In cases where the Court of Chancery was involved, children who were at least 14 years of age were permitted a say in whom their guardian was—that is, if they were aware of this right. A young person might also have a guardian even though both of their parents were alive, such as if they had inherited a grandfather’s estate. Their father was an obvious choice to perform the role, but they would have to fulfil the duties of this position as would any other guardian.
Guardians were required to be at least 21 years old, and they had to take oaths and post bonds ‘for faithful tuition’ before receiving letters of guardianship. In other words, they had to vow to carry out their duties to the best of their abilities. They were also expected to submit annual accounts for their ward’s fortune and renew their bonds upon occasion.
There were three types of guardians: of nurture, of socage or common law, and by statute or testamentary (i.e., named in the father’s will). All three might be responsible for the ward’s physical person; the latter two could also have charge of the child’s property and money. What this means is that the legally recognised guardian might not actually be the person to care for the child on a daily basis, but they would be responsible for legal matters. Thus, in the case of Georgiana Darcy, Mr Darcy might have guardianship of his sister yet have sent her to live with one of her aunts without giving up any of his legal rights or responsibilities. It seems likely that Colonel Fitzwilliam seldom lived with his ward, given his career, bachelorhood, and their relationship as cousins, especially since she had a living brother. So while both gentlemen played the same legal role in her life (being testamentary guardians), Mr Darcy was more likely Georgiana’s guardian of nurture. It was the person playing this latter role who made decisions regarding education as well as daily care.
In addition to overseeing their ward’s inheritance until they were of age, guardians were responsible for granting or withholding permission to marry, which was a serious charge. Only three people had this right: testamentary guardians, those appointed by the Court of Chancery, or mothers who had not remarried. Lady Catherine thus could have given or withheld permission for her daughter’s marriage. Minors who did not have a guardian (either testamentary or court-appointed) had to marry by banns; marrying by licence required a guardian’s permission. Presumably, a mother who had remarried could not grant permission to avoid the perception, at times likely valid, that she was being influenced by her new husband and thus putting the child’s property at risk. Interestingly, a guardian would still be responsible for their ward until they were 21, even if they had married. It thus appears that even had Mr Wickham succeeded in eloping with Georgiana Darcy, he would not have gained access to her fortune for five or six years—until her guardians were required to relinquish control of it. He might still benefit from it, possibly by being able to secure credit on the basis that he would repay it once his wife was of age, for example.
Once a young person reached the age of 21, they were entitled to receive their wealth and property and would sign papers to discharge the guardianship. The guardian would provide one final accounting of the estate, and then the legal, temporary parent-child connexion between them would be at an end.
Sources:
Image Sources (all public domain):
BBC
The Court of Chancery, Lincoln's Inn Hall, 1808; William Henry Pyne and William Combe.
Author Thomas Rowlandson (1756–1827) and Augustus Charles Pugin (1762–1832) (after) John Bluck (fl. 1791–1819), Joseph Constantine Stadler (fl. 1780–1812), Thomas Sutherland (1785–1838), J. Hill, and Harraden (aquatint engravers)[1]
Gerard, Francois Pascal Simon 1795 Portrait of the Painter Jean Baptiste Isabey with his Daughter
The Foundling Hospital, Holborn, London. Engraving by C. Grignion and P. C. Canot after S. Wale, 1749
Regarding the co-guardianship of Georgiana by her brother and her cousin, Colonel Fitzwilliam, I read some time ago that it was often done that a co-guardian from the mother's family was named in a testament. It was done so that the mother's family could safeguard the child's interests, in the case of P&P, maybe to ensure that Georgiana's fortune, probably coming from her mother, remains intact and that she is well cared for. I cannot link to my source unfortunately. Thank you for an interesting and well-documented article.