[In the following essay, Weinstein shows how Gerty's story in The Lamplighter is itself a paradigm of the production of domestic-relations laws, specifically those of adoption, which were formulated and debated concurrently with the novel's publication and which legally reconstituted “family” from a biological basis to that of choice based on domestic stability.]

My title comes from a passage in Maria Cummins's The Lamplighter (1854). Throughout the novel, Gerty, the main character, has no stable place in any one family. She is alternately Trueman Flint's “adopted child” or the child of True and Emily Graham who have “adopted her jointly.”¹ She is both a “doubly-orphaned girl” (176), according to Mr. and Mrs. Arnold, and she is an “orphan child” of the “good foster-mother world” (278). Exactly what it means to be an adopted child in Gerty's world, or to be doubly orphaned, is tantalizingly imprecise. The array of relational possibilities is quite stunning, whether from the parental perspective or the child's. This imprecision has significant consequences in terms of Gerty's development in the novel, most importantly in producing her capacity to dispense what I shall be calling “judicious sympathy”; that is, an ability not only to recognize and respond to the multiple claims people make upon her sympathy, but more importantly, to prioritize those claims and to mete out her sympathy accordingly. Gerty exercises her sympathy the way she goes about making her family—freely, rationally, and contractually.

Cummins's inconsistent vocabulary is, however, part of another story, and that is the development of what legal historian Michael Grossberg has called “the legal category of domestic relations,” specifically divorce and adoption, which was being formulated and debated during the historical moment of The Lamplighter.² Gerty's story, in fact, is the story of the production of domestic-relations law. The Lamplighter produces a paradigm of family based on chosen affections rather than biologically determined ones, and as such both intersects with and departs from antebellum formulations of the family, especially in the nascent sphere of domestic-relations law. This notion of family, in which the rules of contract apply to biological relations, reflects the republican ideal in which each family member possesses individual rights which are guaranteed, not by one's status in the family, but by the contractual obligations family members have toward one another. The novel captures in literary form the moment when courts were attempting to define terms such as adoption and guardianship, as well as trying to make sense of domestic arrangements which were based on contracts, sometimes verbal, sometimes written, rather than on biology. Were these families, or weren't they? Could families now be chosen, and if so, what rules governed the choice? The legal narrative is, as we shall see, as uneven and unstable as Gerty's, which is to say that both the law and the novel profoundly waver about affirming the very reconstitution of the family that their narratives seem to advocate—families based on choice. Many of the most significant legal cases of the antebellum period having to do with custody and adoption sought to resolve a conflict between a residual model of the family, which envisioned its members in contractual relation with one another. Cummins's novel, like the law, reproduces these conflicts, sometimes coming out in favor of blood ties, sometimes in favor of adopted ones, and also, like antebellum law, slowly and unevenly moves toward a recognition, indeed a validation of the claims of contract.

But Gerty's story is also radically different from her legal analogues. Whereas the law demands a verdict which, in delivering a child to one person meant separating a child from another, Gerty's judicious sympathy produces a much happier outcome. In the course of the narrative, we witness Gerty's gradual possession of her sympathy, enabling her to choose how, when, and to whom her affections will be given. Although Gerty gets to belong to everyone—that is, virtually every adult character in the novel adopts her at some point—her sympathy produces a family economy where one person's gain is not another person's loss. The term judicious sympathy responds to June Howard's timely call for a “transdisciplinary” approach to the study of the sentimental novel and the role of sympathy in particular.³ The disciplines being crossed are law and literature, and this crossing is in the interest of intervening in the important and contentious debate currently being staged in criticism about the sentimental novel. Heeding Howard's warning that no “account of the form [can] end discussion and produce a consensus for a single definition of sentimentality,” this reading of The Lamplighter aims to challenge recent attempts to view the deployment of sympathy in sentimental literature as only interested in and interesting as a moment in the reproduction of hegemonic power.⁴ Indeed, this is a significant part of their stories, as some of our best recent critics have convincingly demonstrated, but it is only one part.⁵ Amy Kaplan, for example, urges us to consider the production of subjectivity in the sentimental novel as “scripted by narratives of nation and empire,” and uses Gerty as a case in point: “[she] must become her own first colonial subject and purge herself of her origin in a diseased uncivilized terrain.” A key piece of evidence is the fact that “she was born in Brazil to the daughter of a ship captain, who was killed by malaria.”⁶ But in Kaplan's effort to make the case against the text as exemplifying the imperialist logic of antebellum sentimentalism, she has misread the novel. In its conclusion, we learn that Gerty's father didn't die but rather “after an almost interminable illness … made [his] way, destitute, ragged, and emaciated, back to Rio” (384) and eventually back into Gerty's life, at which point she learns and embraces her past. Far from purging her origins, Gerty must confront them. Indeed, the debate being staged in the novel between the claims of biological as opposed to contractual families necessitates his return.

My point is that the operations of sympathy ought not to be reduced (because they are not reducible) to hegemonic claims about the hegemony of the sentimental novel. Sympathy in The Lamplighter, for example, is not simply a transhistorical (or ahistorical) force of “congealed mass feeling,” to use Lauren Berlant's palpable phrase; it is also a local and fluid category, which antebellum fiction and the law each deploy to establish the parameters of northern middle-class families and the legal identities of persons therein.⁷ Yes, there are lots of tears, key players in the sentimental novel, but there are also considered decisions about how best to weigh competing claims to one's sympathy precisely so that affections will not “congeal.” And far from abandoning a “commitment to social justice,” to quote Amy Lang's assessment of The Lamplighter, the text's preoccupation with Gerty's multiple positions within a variety of chosen families intersects with legal cases similarly concerned with adjudicating children's rights within an array of domestic arrangements.⁸ In fact, it is through her multiple arrangements that Gerty at once becomes everyone's and yet loses nothing (of) herself. What she gains is herself. Gerty's self-possession is, in other words, established on the foundation of her multiple adoptions.⁹

My account of The Lamplighter, then, begins with the problem of indefinability and concludes with a reading of indefinability's virtues. The narrator doesn't know how to name Gerty's relation to the various people who care for her, whether it be Nan Grant, Trueman Flint, Emily Graham, or Mr. Graham. Gerty's power both to help others and to take care of herself, to dispense sympathy judiciously, comes from precisely the fact that her identity is productively unstable and always expanding. She is, we might say, biologically unattached. The Lamplighter forces a consideration of the presence of contract in the domestic sphere because there are very few complete biological families in the novel. Consequently, there is a self-consciousness about how one goes about making one's domestic arrangements, and the responsibilities incurred thereupon. If “every contract,” as William Story claimed in his Treatise on the Law of Contracts (1844), “is founded upon the mutual agreement of the parties,” The Lamplighter asks the question, to what have the parties mutually agreed?¹⁰ And if they no longer agree, what are the consequences? But at the same time as Gerty's chosen families configure an ideal republican family, in which each family member possesses commensurate rights, the ending of the novel seems to challenge that configuration. Gerty's long-lost father's rights seem to be more important than all of the fathers Gerty has chosen throughout the course of the narrative. Quite simply, Gerty must learn the identity of her real father before she can marry Willie Sullivan and thus start her own family. She can't take Willie's name until she's legally and biologically gotten one of her own. The Lamplighter, then, simultaneously advances an argument in favor of blood not contract even as it seems to give contract not blood the last word.¹¹

Gerty's story takes place in Massachusetts (where Cummins was born and where the first adoption law was enacted in 1851), and her beginnings are anything but auspicious. Having lost her mother five years before we are introduced to her, the eight-year-old girl is protected by no one, and physical and mental abuses are heaped upon her by the wretched Nan Grant. Nan finds herself “keep[ing] the child” (3), although her reasons for doing so remain unclear even when the novel tries to explain them in the conclusion. When Trueman Flint, the lamplighter, first discovers the awful conditions in which Gerty lives, he asks her, “Who do you belong to, you poor little thing,” to which she replies, “Nobody.” He then slightly rephrases the first question and asks again, “But who do you live with, and who takes care of you?” (12). The possibility that Gerty might live with someone to whom she doesn't belong allows True to intervene and become “her kind protector” (16), and later to become her “Uncle True, for that was the name by which True had told her to call him” (17). Shortly thereafter, Gerty is identified in the narrative as True's “adopted child” (38). Although Gerty will “live with” many people throughout the course of the novel, the answer to the first question remains the same. She will belong to “nobody,” that is, nobody will possess her, except eventually herself. She can belong to True only because she doesn't belong to Nan, but she also can belong to Emily only because she doesn't belong to True and so on.

Inasmuch as Uncle True announces his desire to “be a father to that child” (21), the wish seems to fall short of the reality. When Gerty meets Emily Graham, the woman who will be the maternal presence in Gerty's life, their conversation echoes her earlier words with True and calls attention to the ambiguity of their familial relation:

“Who are you?”

“Gerty.”

“Gerty who?”

“Nothing else but Gerty.”

“Have you forgotten your other name?”

“I haven't got any other name.”

(53)

Is her last name Gerty Flint? Not quite, because even as the narrator assures us that “the old man could not have loved the little adopted one better had she been his own child” (66), she nevertheless calls attention to the fact that Gerty is not his child in any formal way, or at least in such a way as to give her his last name. What does it mean for True to have adopted Gerty and yet not to have legally given her his name? First, it means that she lives with him but does not necessarily belong to him, and second, it means that someone else can (and several people will) subsequently adopt Gerty. Thus being adopted according to the procedures, or lack thereof, of The Lamplighter underscores the likelihood of being adopted again.¹²

Family ties, as I have begun to suggest, are elastic and transferable to the point of meaninglessness in the novel; that is, almost everyone in the novel has multiple relational identifications. Thus, Willie, upon first meeting Gerty, introduces himself as her “cousin” because “Uncle True's your uncle, and mine too” (30). Elsewhere, Willie's mother posits a fraternal relationship between the two, as “if they were [each other's] own brother and sister” (97). And still later, when Willie prepares to depart for India, he asks his cousin/sister, “Gerty, dear, for my sake take good care of our mother and grandfather—they are yours almost as much as mine” (107). These passages are particularly interesting in that they both collapse the difference between biological and non-biological ties by addressing Gerty as a member of the family and call attention to that very difference by the word “almost” and the hypothetical “if they were.” What this allows, I think, is a tremendous amount of flexibility in one's relations. Thus, Gerty, who is alternately described as a “foundling” (21), a “little charge” (34), and an “orphan” (36), has the capacity to become True's “childish guardian” (88), as well as a “guardian” (133) to Willie's grandfather when both men become ill and require her care. To be sure, Gerty's guardianship involves taking care of other people and can thus be seen as exemplifying women's limited options in antebellum culture. But in the world of The Lamplighter, all worthy characters, regardless of gender, willingly choose to care for others, whether it's Mr. Miller kindly attending to Willie's senile grandfather, or Willie taking care of the financial needs of his mother, or True offering Gerty a home. Becoming her guardian's guardian signifies both Gerty's moral fiber and her equal status within the family. It is not the case, moreover, that not having an “other name” consigns oneself to a less powerful position in the world of The Lamplighter; rather, being in the perennial place of “almost” this and not quite that produces Gerty's most admirable quality—her ability to act upon a sympathy that excludes no one because “[the world] has been a good foster-mother to its orphan child, and now I love it dearly” (278).

Let us return to the question True first poses to Gerty—“who are you?” This question could be asked of virtually any character in the novel because biological categories are either insufficient markers of identity (what do we call the relationship between Willie and Gerty once True has adopted them both?) or unavailable (there is an alarming shortage of biological mothers—Gerty's, Emily's, Belle's—and biological fathers—Willie's, Ben's). That this question still remains unanswered even after True has adopted Gerty is evident in the following exchange between Gerty and her unsympathetic schoolmates:

“Who's that man?”

“That's my Uncle True,” said Gerty.

“Your what?”

“My uncle, Mr. Flint, that I live with.”

“So you belong to him, do you?” said the girl, in an insolent tone of voice.

Ha! ha! ha!”

(60)

This passage raises a possible connection between identity and possession: the fact that Gerty does not know exactly how to refer to True (is he Uncle True or Mr. Flint?) seems connected to the fact that she doesn't exactly belong to him. Not belonging to someone and not knowing who you are appear to be related problems. True's adoption of Gerty, in other words, does little to resolve the question of the child's identity. If identity is established on the grounds of parental possession, and if True's possession of Gerty is guaranteed through their mutual affection rather than any legal decree, Gerty's status as a possession (and possessor) remains uncertain.

Indeed, one of the ultimate goals of adoption law, according to the 1851 Massachusetts legislature, was to secure “for the purposes of inheritance and succession” the adopted child's right to the possessions of her adoptive parents. In addition, the law was intended to guarantee that adoptive parents possessed rights to their adopted child “as if such child had been born in lawful wedlock.”¹³ The legalization of adoption, unsurprisingly, had as much to do with formalizing and stabilizing the transmission of property in the form of inheritance as with recognizing and guaranteeing the smooth transmission of the child from one person to another. To be sure, children had been adopted before 1851, but in the absence of legally sanctioned procedures, the relationship between adopted children and adoptive parents remained unprotected by law—natural parents could reclaim their biological children at any time, and adopted children were greatly disadvantaged when they tried to claim their inheritance. The law attempted to clarify everyone's rights: both biological parents, if living, had to consent to the adoption; adopting parents assumed all “legal rights whatsoever as respects such child”; and children aged fourteen and up had to consent to the adoption.¹⁴ The child, however, came to assume center stage, and the legal cases narrativize the acquisition of the child's rights to choose her family and to have those rights protected in court.

The Massachusetts law was a logical step in defining and stabilizing new family arrangements that threatened an older notion of family as biologically based. But it was in the courts that adoption came to be constituted and protected as a legal means of creating and, as Grossberg puts it, “actually defin[ing] the artificial family.”¹⁵ As we shall see from a number of key legal cases brought before the courts in the antebellum years, artificial families were being made through a haphazard amalgam of contractual methods. Most often, a child became a part of a new family because of a death, or a belief that the child would receive greater economic advantages elsewhere, or a business arrangement whereby the child was meant to learn a trade. The legal status of these arrangements, though, was unclear. Guardians, according to nineteenth-century legal historian Lewis Hochheimer, were especially vulnerable given the fact that “considerations connected with the welfare of the child” meant that guardians, even when appointed by parents, could easily lose “custody of the child.”¹⁶ To make matters even more vexed, contracts were either written up or dispensed with altogether, and a verbal agreement was made. Oftentimes, the parties involved wanted the contract changed. Parents who had wanted informal and temporary arrangements found their children wanting those arrangements made more formal, in some instances permanent, thus necessitating judicial intervention.

It should also be noted that adoption wasn't always the endpoint. More often than not, the child simply wished to remain where she was for the time being, having established bonds and customs with her new family. In Commonwealth v. Hamilton (1810), an early Massachusetts case which helped to lay the groundwork for privileging the child's wishes, a mother attempted to reclaim her child who had been bound in service until the age of eighteen. The court responded: “as there is no evidence of any neglect of that duty on his part, but, on the contrary, the child appears to have been well treated, and to be attached to the family of the defendant,—it would be unreasonable to take her from his care, and deliver her to her mother, who, by her marriage of her present husband, ceased to have any power of controlling her own actions, or of providing for the support and education of her child. Whatever rights she might have … they have certainly ceased at the age of this child [fourteen years].”¹⁷ Once courts began to respect the validity of these new arrangements, and the child's sentimental investment in them, parents' rights no longer seemed invulnerable. Exactly what rights, then, if any, were parents abdicating once their child left the home? How long a separation was necessary before parental rights were de facto relinquished? Indeed, was it even possible for a parent to relinquish her rights to her child? And at what point did the child's rights supercede all others?

Commonwealth v. Hammond (1830) illustrates the complex domestic scenarios which judges had to disentangle and deliberate upon. The Massachusetts case contains two competing contracts, and at least three parental figures—the mother, a “respondent,” and a guardian. The child involved was eleven-year-old Margaret Holst. Her father had died and her mother “had committed [Margaret] to [Joseph Hammond], on a verbal contract for support and education.” This verbal contract, however, went against a previous judge's ruling which had named Ephraim Tufts the child's guardian. The court decided that because “the liberty of the party is not injuriously or unwarrantably infringed … the child [is] at liberty to remain in the charge of the respondent, or to go at large, as she may elect.” She elected to stay with Hammond. But what about the rights of the legally appointed guardian? In this case they were nonexistent, even though a judge had appointed Tufts as guardian. What was the status of “the letters of guardianship [which] were granted to Tufts” in relation to the “verbal contract” made between Hammond and the child's mother? Again, non-existent. Indeed, the most important element in the case was not “the relative rights of the mother and the guardian” but the child's desire to “remain with the respondent.”¹⁸ That an eleven-year-old “may elect” to remain “or to go at large” demonstrates the degree to which courts were invested in establishing and protecting a child's right to choose her family.

But this choice, to which I shall return, was predicated upon two related and contentious developments in the antebellum family and in the legal scene—the diminution of paternal rights and the expansion of maternal ones. The cases of Mercein v. The People ex. rel. Barry (1840) and Commonwealth v. Maxwell (1843) exemplify these shifts. In the infamous Mercein v. The People ex. rel. Barry, John Barry was granted four writs of habeas corpus against his wife and father-in-law, Eliza Anna and Thomas Mercein. He accused them of improperly restraining, which meant the “imprisonment or restraint or unlawful withholding of the infant child,” their nineteenth-month infant daughter Mary. Justice Bronson of the New York Supreme Court (not the highest court in the state, as one might expect) held that Common Law “emphatically establish[ed] a paramount right of the father to the custody of the children.”¹⁹ Bronson's ruling, a throwback to English Common Law, clearly goes against the growing judicial consensus in America in favor of children's rights. It suggests that paternal authority, as the organizational principle of the family, was not easily dismantled. He continued, “in these unhappy controversies between husband and wife, the former, if he chooses to assert his right, has the better title to the custody of their minor children. The law regards him as the head of the family; obliges him to provide for its wants; and commits the children to his charge, in preference to the claims of the mother or any other person.” Bronson's decision in favor of the father's right to the child reversed earlier lower-court decisions that had granted Eliza Anna maternal custody, but his decision was itself reversed by the New York Court for the Correction of Errors, which held that “the father's right to his child is not absolute and inalienable … [and] it may be lost by his ill usage, immoral principles or habits, or by his inability to provide for his children.” In a creative close reading of an earlier ruling in favor of the mother in the second writ of habeas corpus, Bronson argued that saying that the child was “not improperly restrained,” was not equivalent to “decid[ing] that there was no restraint.” Bronson then suggested that even if the child were not improperly restrained at the time of the second writ, improper restraint did take place during the period in which Mr. Barry petitioned for the additional writs of habeas corpus. The Court for the Correction of Errors, however, would have nothing to do with Bronson's interpretation of events: “maternal restraint is no illegal restraint, that if the child is of age to exercise its own judgment, the court allows it to go where it will—if not, the court may go farther, (but is not bound to go farther) in its own discretion may exercise its judgment for the child, having regard to its health, comfort and welfare.” Bronson's dogged and soon to be outmoded insistence on the preservation of the father's custodial rights, at the expense of all other considerations, was becoming less defensible as courts increasingly came to see their primary responsibility as determining “the best interests of the child.”²⁰ Children had rights too, which could and would be protected by the court, at the court's discretion.

In a less legalistic but no less vitriolic case, Ivory Maxwell claimed that his wife, Elizabeth Maxwell, was illegally detaining their two young children (ages one and four) in the Boston home of Elizabeth's brother, and Ivory wanted them back. After hearing both sides of the case, her version detailing neglect and poor treatment on the part of the husband and his version blaming the uncle for intruding on domestic affairs, Massachusetts Supreme Court Justice Wilde stated that “the right of the father is not entirely absolute; the children are not his property, and their good is to be regarded as the predominant consideration.” Wilde's circumscription of paternal rights went even further: “If the father could and would supply his children with suitable food and clothing, and a shelter from the inclemency of the weather, there are other wants which, during their tender years, no one can so well supply as their mother. … To allow these children, during their tender years, to be torn from their mother, would seem to be inconsistent with the laws of nature and the comfort and the well-being of the children.”²¹ The recognition of a mother's right to care for her children, especially young children in their “tender years,” dovetailed with the mounting importance of the “best interests of the child.” The maternal dispensation for affection rather than the paternal transmission of property was coming to be understood by the courts as one of the truest measures of the best interests of the child.

But what were these best interests? State v. Smith (1830) was, according to legal historian Jamil Zanaildan, “one of the most important disputes of the period” in its assertion of the child's best interests.²² A father of four, Jonathan Hall had voluntarily “relinquish[ed] to the mother the right of custody and control of her children.” Hall had forfeited his rights, thereby establishing Mrs. Hall's right to the children. But Justice Parris of the Maine Supreme Court went a step further and outlined the rights of their children. They were to be “maintain[ed], protect[ed] and educate[d].” The delineation of the parents' responsibilities and the child's rights is important because it contractualizes the relationship. And once the parent/child bond becomes a contract, it can be broken. Even by a mother. If “by immoral or profligate habits, the parent has become unfit to have the management and instruction of children … the courts have not hesitated to interfere to restrain the abuse, or remove the subject of such abuse from the custody of the offending parent.”²³ Courts began to conceive of children less as the “inalienable” property of their parents and more as the inalienable property of themselves. For example, the fact that eleven-year-old Margaret Holst had the power to decide her whereabouts went against the Common Law which stated that “a child could not exercise such a choice until the years of discretion (generally twelve for girls and fourteen for boys). The courts, [however], often relaxed the rule and allowed younger but more mature children to have a voice in custody proceedings.”²⁴ It is crucial to note that the category of affection is not obliterated by virtue of contract's ascendance; rather the degree to which parents (or guardians, or foster-mothers) fulfilled their contract was now to be measured by the child's affection. Once children were no longer the inalienable property of their parents, according to the law, their affections were free to circulate. This freedom, in turn, had to be protected. In allowing children “to have a voice,” the courts bestowed upon the child the fundamental right to possess and bestow her affections.

To be sure, the idea that family relationships could be as much about contractual obligations as blood relations was a key innovation of antebellum law. “The development of separate legal identities within the republican family,” according to Grossberg, was accompanied by attempts to establish the rights and obligations of individual family members, and to write into the law the consequences of improper behavior, or of breaking the contract.²⁵ The court's self-appointed obligation to protect children's rights, to serve their best interests, radically redrew the parameters constituting the family. If affection based on contract rather than biology were to organize domestic life, judges needed to imagine individual members in terms of whose rights and what rights were protected and relinquished in the contract. If parents could make contracts “relinquish[ing] custody of the child … by agreement of transfer or by abandonment or other course of conduct,” to quote Hochheimer, then a contract, say adoption, protecting the child both from future transfers and possible repossession had to be established.²⁶ Indeed, the same year that saw the passage of the Massachusetts adoption law witnessed two cases in which the court decided that the child belonged with (and belonged to) someone other than the biological parent.

In Gilkeson v. Gilkeson, custody was granted to the child's aunt rather than to the father, and in Pool v. Gott, the child's grandparents, not the father, were awarded custody. It was in these cases, according to Zanaildan, that “the words ‘adopt’ and ‘adoption’ made their common law debut.”²⁷ In the first case, the parents of Mary Gilkeson, “by contract under seal transferred the custody of her to her uncle and aunt, by the same writing agreed to adopt her as their child.”²⁸ Exactly what “adopt[ing]” meant to the parties concerned is unclear. But if the father imagined that the contract could be broken, the court vehemently disagreed. After a period of six years, during which Mary's mother and uncle died, her father “obtained possession of her, and insist[ed] on retaining the custody of her, though she prefer[red] remaining with her aunt.” The child's preference was sustained, and Judge Lowrie of the Philadelphia District Court argued that “parental authority has been solemnly renounced for six years, and the child has grown to the age of fifteen years. She has been estranged from the customs and government of her father's house. She has formed new habits and views, and become accustomed to different associations and modes of living.” The ultimate effect of the first contract was a transfer of affection, and a new contract, based on feeling rather than parental relation, was established. Interestingly, the court held out the possibility that this affection could be transferred back through “the influence of parental kindness, and consistently with honesty … but it cannot be well done by the enforcement of it as a legal right.”²⁹ Influence and kindness, not parental rights, might reunite father and child. More important, though, is the validation of the child's right to make affection the basis of a new contract and a new family, and the judicial decision to make that contract stick.

Such a transformation in affection is also the subject of Pool v. Gott, a Massachusetts case decided by Chief Justice Lemuel Shaw, in which the father of Lydia Gott Pool attempted to regain custody after she had lived with her grandfather for fourteen years “with the father's consent.” Unlike Gilkeson v. Gilkeson in which a contract was used as evidence against the father's custody claim, Shaw conceded that “there is no evidence as to the nature of the agreement made, if indeed there was any agreement at that time.” He nevertheless maintained that, “I have no doubt that it was understood on all sides that the child was to remain under the respondents' charge, and that they were to stand in loco parentis.” Pool had, in effect, relinquished through contract his biological paternity and now wanted it back. Given the fact that the father showed relatively little interest in his child (three years in which there was no contact, and annual visits thereafter), Shaw argued that Pool had “allowed the parties to go on for years in the belief that his legal rights were waived, and this relation of adoption sanctioned and approved by him.” Pool v. Gott transformed “a tacit understanding,” if not an “express agreement,” into “this relation of adoption.” Shaw named adoption as that process by which the father “by his own acquiescence has allowed the affections on both sides to become engaged in a manner he could not but have anticipated, and permitted a state of things to arise, which cannot be altered without risking the happiness and interest of his child.” His contract, whether tacit or expressed, enabled another contract by which affective ties replaced biological ones as the organizing principle of the family.³⁰

Shaw's decision is especially interesting in its vigorous acknowledgment of the importance of feelings and judicial/judicious sympathy. In stark contrast to Justice Bronson who dispenses with sympathy early on in his decision (“whatever sympathy we may feel for this lady … we have no choice but to administer the law as we find it”), Shaw is quite willing to acknowledge the power of sympathy to influence his dispensation of justice.³¹ First, Shaw anticipates the “pain and disappointment” that will follow his ruling. Second, his attention to the sentimental details of the case, by which I mean the powerful feelings evoked by the situation, is unusual: the fact that Mrs. Pool, the only child of Mr. and Mrs. Gott, died in childbirth, the fact that “under such circumstances, the attachment of the grandparents was naturally strong,” and his ardent belief that “a failure to secure the custody of the child would [not] be of as much consequence” to him as compared to the “great suffering” that would result from separating Lydia from her grandparents. When “the right of the parent is not clear, the interest of the child will govern the decision of the Court”; and here, Shaw uses comparative suffering rather than comparative rights as the criterion for determining custody. Everyone in this case has rights, which are fairly commensurate. Everyone, however, does not have equivalent feelings, and it is feelings which finally tip the scales in favor of the child/grandparent relation. Indeed, Shaw self-consciously calls attention to his task as one which must balance rights and feelings from the start: “this case presents circumstances of interest and delicacy, involving both legal rights, and the dearest feelings of parties. On the one hand, is the legal right of the only parent, and on the other, the feelings of the child, and the feelings and rights, such as those rights may be, of the grandparents.” It is interesting to note that the feelings of the only parent, as well as the rights of the child, are missing in Shaw's formulation. These absent terms, however, are crucial to his decision because it is precisely the absent feelings of the parent which enable Shaw to deduce the best interests of the child, or the child's rights. Knowing that his decision will produce pain produces a kind of anxiety on his part (“it is to be regretted that the law leaves cases of this description with so few rules for the government of the Courts”). His decision is designed to cause the least pain, as is evidenced by the concluding remarks which offer a solution to Mr. Pool's pain in the form of “some agreement [which] might be made by which the child should spend part of her time with her father, to allow opportunities for mutual affections and interests to grow up between herself and her paternal relations.” Shaw's sympathy extends itself in all directions, and that is part of his difficulty. He arrives, quite literally, at a judicious dispensation of sympathy, which even as it causes pain, holds out the possibility for future redemption and reunion. Gott v. Pool made legal and authoritative the custodial transfer of Lydia Gott Pool to her grandparents, but as Shaw's last words suggest, a transfer back of sorts via agreement or contract might be effected should the parties be so inclined.³²

The Lamplighter imagines what it would look like for a child's affections to be continually transferred back and forth, and the picture is surprisingly hopeful. The novel invests Gerty, the child and the woman, with a tremendous amount of power by virtue of her limitless capacity for affection. Loving everyone, for Gerty, doesn't mean loving anyone less. It just means that sometimes people need to wait their turn to experience her affection. It imagines a world of multiple guardianships, numerous adoptions, where no one loses the child, but no one possesses the child either—except the child herself. It is the story of Gerty's transformation from “the city's property” (12) to the object of everyone's affection, a transformation accomplished through mastery of sympathy. This education in sympathy, however, is not just a matter of learning how to feel other people's pain, although that is the first step, of course. The second, and more difficult, is the prioritization of that sympathy, the ability to exercise what I am calling judicious sympathy. And finally, Gerty's story is the discovery of her rights as a child and her growing self-knowledge about her own “best interests.” Unlike Lydia Gott Pool, whom Shaw “examine[d] in private” so as to learn where her true affections lay and protect them, Gerty learns how to protect those affections herself.³³ No one has “unlimited or unalienable” rights over her, to use the language of State v. Smith, except herself. She is both child and judge. No longer does she belong to the city; she belongs to herself.

Like Shaw's, Gerty's sympathy extends in several directions at once, and much of the novel is concerned with the proper dispensation of that sympathy. Thus, for example, when the Grahams are planning a southern tour and the “tyrannical” (144) Mr. Graham, having assumed that Gerty would care for and entertain Emily, reproaches Gerty for deciding to nurse Willie's mother and grandfather, we are meant to condemn his unfair exercise of authority. He blusters, “You are under my care child, and I have a right to say what you shall do” (139). As far as Gerty is concerned, he has no “rights,” only certain “claim[s]” (140) which she has the right to accept or reject. The narrator explains that “in the home of her kind foster father, she enjoyed a degree of parental tenderness which rarely falls to the lot of an orphan” (141). She has, of course, enjoyed a “parental tenderness” from others as well, which makes it wrong for Mr. Graham to assume that “nobody else had any claim upon her to compare with his” (142). Gerty then meditates on how Mr. Graham may have lost sight of the difference between a “foster father” and a father (an easy thing to do given the fact that the rights of guardians were frustratingly vague as Hochheimer points out): “He probably feels, too, as if I had been under his guardianship so long that he has almost a right to decide upon my conduct” (144-45). Although she acknowledges herself “a stranger, with no claims” (144), she nevertheless claims the right to act according to “what [her] duty is” (145)—a duty which she herself defines. Gerty imagines a gap between her own understanding of guardianship, in which the rights of the guardian are ultimately limited by the rights of the child, and Mr. Graham's.

When Gerty has responded to the claims of Willie's mother and grandfather, she is ready to entertain the claims which others are quick to make upon her, and once again it is Mr. Graham on behalf of Emily. He reluctantly writes Gerty and invites her to accompany them, along with his new wife and her nieces, to Europe. Gerty's friends, Dr. and Mrs. Jeremy, point out how unfairly Mr. Graham has treated her and question her willingness to give up her teaching position and the economic independence that goes with it: “it does seem a sacrifice for you to leave your beautiful room, and all your comforts,” to which Gerty replies, “nothing that I do for Emily's sake can be called a sacrifice; it is my greatest pleasure” (184-85). That this is a pleasure and not an obligation, that Gerty is in charge and not Mr. Graham, is suggested in his letter, which acknowledges the possibility that Gerty may “have contracted debts,” and if so, he “will see that all is made right” (183). We learn, however, that Gerty has no need of his “friendly interest” (183), given that she earns a sizeable “three hundred and fifty dollars a year” (184). Furthermore, Gerty's decision to accept Mr. Graham's invitation is based on the fact that “Emily was dependent upon a stranger” (185), rather than upon the beloved Gerty. Her decision to care for Emily underscores her self-confidence, not her self-abasement. Therefore, Dr. Jeremy's sense that Gerty will be “relinquishing all the independence that she has been striving after” (184) radically differs from Gerty's understanding of her independence. Independence, for Gerty, means the ability to decide for oneself when and for whom sacrifice (which for Gerty equals pleasure) is appropriate and necessary. Financial and biological independence are what allow her to determine which competing claims are most urgent, and Gerty is now ready to respond to Emily's “claim” (185). Thus, far from signifying her dependent or subservient status, Gerty's sympathetic and reasoned responses to the claims made upon her indicate the extent of her power. To be sure, she takes care of virtually everyone in the novel, but this is because she chooses to rather than has to. Her choices, furthermore, confirm her power. They are, as the narrator reminds us, a function of Emily's careful teachings in Christian duty which have made Gerty “powerful to do and to suffer, to bear and to forbear, when, depending on herself, she should be left to her own guidance alone” (73).

Gerty's independence and power are thus made possible because of her ambiguous family relations. Everyone wants her to be part of their family, and yet no one knows exactly what “rights” or “claims” (to use two well-used but ultimately indefinable terms of the novel) they have toward Gerty or vice-versa. Perhaps what they have is a right to make a claim, which Gerty then has the right to accept or reject. She chooses to be a member of everyone's family and yet no one's. At one point in the novel, Gerty is referred to as “a sort of adopted daughter” (198). Indeed, one can say with absolute assuredness that Gerty has no sure place, whether spatial, familial, or legal. She defies categorization—is she adopted or is she “sort of adopted”?

As aggravating as this categorical instability was for many commentators on adoption law and the children whose lives were affected by it, Gerty's narrative of spiritual empowerment depends upon the fact that her identity eludes any formal categorization. Because everyone and no one has claims upon her (legally she belongs to no one), she enjoys a freedom that derives from the fact that in not knowing her true origins, she is free to choose them. That the “absurd” conclusion, to borrow Nina Baym's term, eventually supplies her the story of her origins, indeed legally effects her transformation from “the city's property” (12) to Philip Amory's daughter, points to the central tension within the novel: on the one hand, Gerty's unfettered, unstable identity is what permits her development and is therefore desirable, and on the other, the novel works towards a resolution of that instability which is equally desirable.³⁴ Like its legal counterpart, The Lamplighter is torn between championing a contractual paradigm of family that was being developed in domestic relations law, based, as we have seen, on affective rather than proprietary considerations and the independent needs of individual members of the family unit, and a more traditional model of family based on status, property, and blood.

When Gerty finally learns the mystery of her origins through a dizzying array of plot complications, she writes her “dear, dear father” the following:

When you took me in your arms and called me your child, your darling child, I fancied that the excitement of that dreadful scene had for the moment disturbed your mind and brain so far as to invest me with a false identity … I now believe that it was no sudden madness but rather that I have been all along mistaken for another, whose glad office it may perhaps be to cheer a father's saddened life, while I remain unrecognized, unsought,—the fatherless, motherless one I am accustomed to consider myself.

(337)

It is important to remember that this anxiety about “false identity” is relatively new to the novel. Up until this point, she has thrived on it. Earlier, however, the narrator does tell us that Gerty “was a little sensitive about her name, and though she always went by that of Flint, and did not, on ordinary occasions, think much about it, she could not fail to remember, when the question was put to her point blank, that she had, in reality, no surname of her own” (127). Her letter suggests either that she was more than “a little sensitive” about not having “in reality” a “surname of her own,” or that the prospect of finally having a surname makes her realize how much she has desired one all along. Even as Gerty indulges the possibility of having her true identity revealed, she imagines how to arrange things so that affection based on contract may prevail if blood doesn't: “If you have lost a daughter, God grant she may be restored to you, to love you as I would do, were I so blessed as to be that daughter … let me be your child in heart” (337). No longer, though, will Gerty, or for that matter Mr. Amory, be “mistaken for another.” In fact, their consanguinity must be disclosed in order to put a stop to the titillating (and threatening) incestuous overtones that have characterized their relationship from the start. It is not permissible for Gerty to be either (or both) Mr. Amory's biological daughter or “child in heart.”³⁵

Knowing the identity of her father, then, puts an end to this endless round of substitutions, both for Gerty and the narrator, who hastens to add, “Mr. Phillips—or rather Mr. Amory, for we will call him by his true name—had either forgotten or neglected to mention his address” (338).³⁶ Justice Bronson's advocacy of paternal status would seem to have won the day. But not quite, because precisely at the moment that Philip identifies himself as father and Gerty as daughter, that language and his status are seen to be insufficient. He writes, “your grief unites the tie between us closer than that of kindred, and makes you a thousand times my daughter” (335). What does it mean to be “closer than kindred,” and what would it mean for Gerty to be “a thousand times [Philip's] daughter?” The first part of Philip's statement would seem to suggest that the affections which develop between Gerty and her father, the grief that unites them before she knows his identity, signify the fact that their love is chosen rather than required by biological mandate, thus validating love as a form of free contract. The second part also suggests the insufficiency of Philip's paternal claim—Gerty is not just his daughter once, but “a thousand times”—as if to make up for the thousand times she has become someone else's daughter in the text. Identities still seem unstable, even as they are incorporated into biologically identifiable and presumably fixed categories.

Philip's reappearance in Gerty's life signifies little, at least from a legal point of view. Clearly, Gerty's age (at this point she is probably in her late teens) and her “sufficient discretion” would mean that most judges would second her parental preference. He is undoubtedly her biological father, but the fact that he has not been a part of her life for so much of it (a very long and complicated story explaining their separation is part of the “absurd” ending Baym correctly notes), means, again from a legal point of view, that intentionally or not, he “waive[d] his parental rights” (465). The case of Gilkeson v. Gilkeson is a particularly useful gloss: “authority has been so long disclaimed and so solemnly transferred to another” that the “filial relation” cannot be mended by “the enforcement of it as a legal right.” It is up to Gerty, then, whether or not to transfer back that affection, and it is up to Philip to “effect it by the influence of parental kindness.”³⁷ Philip can be Gerty's “father,” but at this point that biological designation is underwritten by a contract, or as Shaw had put it in Gott v. Pool, an “arrangement,” making him a father. Parenthood is here translated into in loco parentis.³⁸

But the return of Philip and the disclosure of his paternal identity are not the only means by which the novel tries to negotiate the tension between contract and blood. The topic comes up once more, and this time quite explicitly in the comical figure of Miss Patty Pace, a Dickensian character who first appears dressed in “a gray cloak, of some sort of silk material, that you certainly would have said came out of the ark, if it hadn't been for a little cape, of a different color, that she wore outside of it, and which must have dated a generation back” (75). When it comes time to writing her will, she has little sympathy for her rightful heirs. Instead, Miss Patty solicits Gerty's help in composing “the last will and testament of Miss Patty Pace” (363). Before the women get down to the actual writing of the will, Miss Patty confesses her desire to “flee away from my kindred” who, like “vultures,” have recently visited “for the sole purpose of taking an inventory of my possessions, and measuring the length of my days” (362). The conversation then takes a familiar turn:

“I was not aware that you had any relations,” said Gertrude; “and it seems they are such only in name.”

“Name!” said Miss Pace, emphatically. “I am animated with gladness at the thought that they are not honored with a cognomen which not one of them is worthy to bear. No, they pass by a different name; a name as plebeian as their own coarse souls. There are three of them, who stand to each other in a fraternal relation, and all are alike hateful to me. One … calls me aunt—aunt; thus testifying by his speech to a consanguinity which he blindly fancies makes him nearer akin to my property.”

(362)

Once again, names play a crucial role in both identifying and destabilizing family relations. Whereas the term “uncle” when applied to Uncle True signifies love freely given, “aunt” when used by Miss Patty's blood relations signifies specious affection. Gerty's love for her uncle is indeed truer than anything Miss Patty's relations feel for her. Miss Patty fully intends to undermine through contract the blood relation established by the very term “aunt.” By naming Willie heir to her fortune (he, as a young boy, had gallantly escorted Miss Patty through inclement weather and had thus earned her ever-loving devotion) Miss Patty's will breaks the equation of consanguinity and property. Indeed, Miss Patty's “own perfect acquaintance with all the legal knowledge which the case demanded,” including the necessity of getting the document “witnessed, signed and sealed … prove[s] a satisfactory direction for the disposal of the inheritance” (363). It is no coincidence that Gerty is appointed “to gather and transfix in writing the exact idea which the woman's rambling dictation was intended to convey” (364). Miss Patty legalizes the contractual paradigm of family that Gerty has lived and validates, through her relation with Willie, the primacy of affection. As “the patient and diligent scribe” (364), Gerty herself gets to produce the legal text that both vindicates her rights as someone heretofore unprotected by the law and begins the process of producing her legal identity. Gerty, in other words, has any number of “parents,” whose last name she doesn't legally share, and belonging to so many people could mean, from a legal point of view, that none of their belongings rightfully belong to her. Miss Patty views the inheritance of property the way Gerty views the construction of family—not as biologically determined but as freely and contractually transmitted. That Willie “never availed himself of the bequest, otherwise than to make a careful bestowal of it among the most needy and worthy of her relatives” (363), doesn't take away from the significance of the act. Miss Patty's will is the kind of legal document that begins the process of transforming a “sort of adopted daughter” into an adopted daughter.

The embrace of the family in The Lamplighter is unlimited by virtue of adoption's undefinability. The novel is part of a cultural moment in which the language, procedures, and meanings of adoption are being negotiated, in which the outlines of the family are being questioned and reestablished. That the novel doesn't know what adoption or guardianship mean, that the narrator and her characters don't know what to call one another, signifies the indefinability of these terms and the narrative difficulty produced by such discursive chaos. Nevertheless, the fact that they are repeatedly used, qualified, and redefined points to the fact that The Lamplighter, like the law, is at once elaborating this phenomenon and trying to resolve its potential problems. Gerty looks forward to the resolution of these terms, while at the same time she appropriates their instability as a means of becoming a stronger, self-possessed, and more sympathetic person. Meanwhile, she feels “a sense of relief in the adoption of a course which would satisfy all parties” (252).

Notes

1. Maria Cummins, The Lamplighter, ed. Nina Baym (New Brunswick: Rutgers Univ. Press, 1998), 38, 58.

2. Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: Univ. of North Carolina Press, 1985), xi.

3. June Howard, “What is Sentimentalism?” American Literary History 11 (1999): 63.

4. Howard, 76.

5. For powerful analyses of the relation between sentimentalism and the “imperial project,” see The Culture of Sentiment: Race, Gender, and Sentimentality in Nineteenth-Century America, ed. Shirley Samuels (Oxford: Oxford Univ. Press, 1992), in particular Laura Wexler's seminal essay, “Tender Violence: Literary Eavesdropping, Domestic Fiction, and Educational Reform,” 9-38.

6. Amy Kaplan, “Manifest Domesticity,” American Literature 70 (1998): 601.

7. Lauren Berlant, “Poor Eliza,” American Literature 70 (1998): 654.

8. Amy Schrager Lang, “Class and the Strategies of Sentiment,” in The Culture of Sentiment, 131. Gerty is no slave, though, and as much as the abuse heaped upon her by Nan Grant may look like slavery, the fact that the child is not owned by Nan marks a crucial difference between the arrangements of Gerty and those of a slave: Gerty chooses and slaves don't. Her narrative of legal self-possession and the possession of her sympathy depends, in other words, upon the fact that she is not a slave.

9. It is important to distinguish Gerty from her novelistic predecessor, Ellen Montgomery, of The Wide, Wide World, whose life experiences, according to Jane Tompkins, require “an extinction of her personality so complete that there is literally nothing of herself that she can call her own” (Tompkins, Sensational Designs: The Cultural Work of American Fiction, 1790-1860 [Oxford: Oxford Univ. Press, 1985], 179). In sympathizing with Ellen, the reader is meant to learn the folly of self-reliance and the necessity of religious belief. Gerty's education is, of course, fundamentally Christian, but the model of sympathy she advances is not one of self-abnegation but rather self-possession. Domestic self-possession has been convincingly linked to the workings of the marketplace by Gillian Brown, who reads the “logic of sympathetic proprietorship [in Uncle Tom's Cabin] … as symptomatic of a problem within possessive individualism”; the problem being that such proprietorship, while domesticating the experience of ownership, is nevertheless fundamentally invested in the practice of ownership—and therefore reproduces the structure and ideology of slavery (Domestic Individualism: Imagining Self in Nineteenth-Century America [Berkeley: Univ. of California Press, 1990], 41). Sympathetic proprietorship represents Stowe's well-intentioned but doomed effort to challenge a system in which “human beings are treated as transferable, as commodities” (41). The Lamplighter, to the contrary, doesn't have a problem with this transferability. Gerty's adoptions, in fact, are based on the benefits gained by transferability. It is the source of her sympathy and the foundation for her eventual self-possession. In other words, not being possessed (biologically) doesn't mean being a possession, or a slave. In a suggestive reading of the plantation novel, Russ Castronovo argues that “adoption is the patriarchal act par excellence” (“Incidents in the Life of a White Woman: Economies of Race and Gender in the Antebellum Nation,” American Literary History 10 [1998]: 247). By contrast, adoption in the world of The Lamplighter works to undermine patriarchy by disarticulating authority from its biological bonds.

10. Quoted in Morton Horowitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard Univ. Press, 1977), 185.

11. My use of the term “contract” will operate both literally as well as metaphorically, just as it often did, according to Horowitz, in antebellum legal cases (244). He calls attention to the comparative insignificance of contract law, which was “relatively passive and amorphous” (246) and “the voracious appetite of the concept of contract” (244). The concept, as legal historians have demonstrated, helped to reorganize the family. Thus, Jamil Zanaildan claims, “the parent-child correlation increasingly came to be viewed as an emotionally laden contractual relationship” (“The Emergence of a Modern American Family Law: Child Custody, Adoption, and the Courts, 1796-1851,” Northwestern University Law Review 73 [1979]: 1083). Stephen Presser also hypothesizes that court opinions “preserv[ing] the continuity of the patrimony in the blood line” (“The Historical Background of the American Law of Adoption,” Journal of Family Law 1 [1971]) may have been a judicial reaction “against the growing trend to think of the family in what might be called ‘contractual’ terms” (513, n. 276). In fact, it is the absence of material contracts and the presence of metaphorical ones, and the no less real obligations inherent in the latter, that best describes the project of family formation in The Lamplighter. On the role of contract in late nineteenth-century law and realist literature, see Brook Thomas's analysis of fiction that registers “the persistence of status in a world claiming to be ruled by contract” (American Literary Realism and the Failed Promise of Contract [Berkeley: Univ. of California Press, 1997], 3). The ambiguous relation between status and contract is also present in The Lamplighter, but we might think of the problem as the persistence of contract in a world claiming to be ruled by status. On the importance of names in antebellum fiction, see Wai-chee Dimock's superb reading of The Deerslayer, in which proper names “figure, above all, as signs, signs of something gone awry and of an ensuing sequence of retribution” (Residues of Justice: Literature, Law, Philosophy [Berkeley: Univ. of California Press, 1996], 73). Although Dimock's reading of the law is meant to focus on the “self-imposed singularity of reference in criminal law” (25), her analysis gestures toward a more abstract account of the relation between law (nonspecified) and literature: “The law was spatialized in the nineteenth century; it had a specific locale and a specific set of boundaries. Henceforth its sphere of operation was to be narrow, precise, sharply delimited” (23). In correcting New Historical analyses which read the novel as the apotheosis of disciplinary regimes, Dimock emphasizes the novel's “allusive, elastic, circuitous” (24) qualities. As a consequence, the law assumes literature's disciplinary function, and its discursive capability becomes “narrow, precise, sharply delimited.” My reading of antebellum domestic relations law suggests that, like the novel, its significations are “allusive, elastic, circuitous.”

12. William Whitmore makes this point in his analysis of the Massachusetts laws of adoption: “The statutes generally seem to be silent as to the transfer of an adopted child to a second adopter. It may be inferred that as the general rule is to place an adopted child in the position of one lawfully born to the adopter, the new parent may dispose of this child to a second adopting parent, and so indefinitely. Whenever the law prescribes that the lawful parent, by consenting to the act of adoption, severs all his previous natural relations with it, a second adoption would be an easy method of terminating his responsibilities” (The Law of Adoption in the United States, and Especially in Massachusetts [Albany: Joel Munsell, 1876], 76). Far from being worried about the possibility of endless adoptions, The Lamplighter celebrates it.

13. Whitmore, 2-3. It is also worth noting that the adoption law of 1851 was passed in conjunction with another law that sought to simplify the procedure whereby one's name was changed. An editorial in the Boston Daily Advertiser noted: “As usual, the names of a large number of persons have been changed by acts of the legislature, but a law has been passed by which persons may hereinafter have their names changed by authority of the judges of probate without the necessity of application to the legislature” (quoted in Zanaildan, 1044). In fact, Presser hypothesizes, “the men in Massachusetts might not have thought of adoption as much more than a change of name for the adopted child” (471). Also see Presser and Grossberg for an analysis of antebellum adoption laws in Massachusetts and elsewhere.

14. Whitmore, 3.

15. Grossberg, 273.

16. Lewis Hochheimer, A Treatise on the Law Relating to the Custody of Infants (Baltimore: John Murphy, 1887), 11. This murky state of affairs is further evident in Joel Bishop, whose chapter “Custody of Children” begins with the following series of pronouncements and hesitations: “At common law the father is, in some sense, the guardian of his children, though in precisely what sense, the books do not seem perfectly to agree.” If fathers are “in some sense” guardians (mothers, according to Common Law, become guardians when fathers die), then how to distinguish between the sense in which a biological parent is a guardian and a third party, appointed either by the court or parent, is a guardian? The term guardianship, then, is ambiguous right from the start in that it can apply to any person, biological parent or not, “entrusted by law with the interests of another, whose youth [and] inexperience … disqualify him from acting for himself in the ordinary affairs of life” (Commentaries on the Law of Marriage and Divorce [Boston: Little Brown, 1852], 5). Hochheimer suggests that the fundamental difference between “mere guardian[ship]” (11) and parenthood is “the presumption that the promptings of natural affection are the strongest guarantee of the proper fulfilment of their [the parents'] charge” (12). The “natural affection” of a parent, however, wasn't always the “strongest guarantee” that the child's best interests were being served.

17. Commonwealth v. Hammond, 10 Pick 274 (Mass. 1830), 273.

18. Commonwealth v. Hammond, 274-75.

19. Mercein v. People ex. rel. Barry, 25 Wend. 65 (N.Y. 1840), 70, 80. It should be noted that the paramount right of the father to custody of the children was almost always invoked as a feature of Common Law, even when judges went on to award custody to the mother. See State v. Smith, 6 Me. 462 (1830), Commonwealth v. Maxwell, 6 Mon. L. Rep. 214 (Mass. 1843), Dumain v. Gwynne, 92 Mass 10 Allen, 270 (1865).

20. Mercein v. People ex. rel. Barry, 71, 100, 80, 86. Leo Albert Huard observes, “the ‘best interests’ formula has consistently been honored by our courts and is a uniquely American contribution to the law of adoption” (“Adoption: Ancient and Modern,” Vanderbilt Law Review 9 [1956]: 749). Connecticut, as early as 1796, had established a version of the “best interests of the child” in Nickols v. Giles: “the child was well provided for; and said Nickols having no house and very little property, and very irregular in his temper and life, his wife had left him and went and lived with her father, where both she and her child were well provided for” (Nickols v. Giles, 2 Root 461 [Conn. 1796], 462). Even in the case of Commonwealth v. Addicks, where the child's mother was living in adultery, the court could not “avoid expressing our disapprobation of the mother's conduct, although so far as regards her treatment of the children, she is in no fault. They appear to have been well taken care of in all respects. It is to them, that our anxiety is principally directed” (Commonwealth v. Addicks, 5 Binn [Pa. 1813], 521). Also see Commonwealth v. Maxwell.

21. Commonwealth v. Maxwell, 6 Mon. L. rep 214 (Mass. 1843), 218. Grossberg notes, “gradually a father's custody power evolved from a property right to a trust tied to his responsibilities as a guardian; his title as father thus became more transferable … [this] was yet another example of the antipatriarchal ethos embedded in republican family law” (236).

22. Zanaildan, 1057.

23. State v. Smith, 6 Greenleaf 426 (Me. 1830), 469, 464.

24. Grossberg, 388, n. 56.

25. Grossberg, 24.

26. Hochheimer, 29.

27. Zanaildan, 1083.

28. Gilkeson v. Gilkeson, Wall. Phila. Rep. 194 (Allegheny County Dist. Ct. 1851), 194.

29. Gilkeson v. Gilkeson 195-97.

30. Pool v. Gott, 14 Mon. L. Rep. 269 (Mass. 1851), 269. Zainaldin observes, “within the doctrine of child custody, then, an adopter maintaining custody for a lengthy period of time might acquire a customary right upon evidencing a superior ability to meet the child's critical needs. Under the decisions in Gilkeson and Gott as well, an adopter might also reap a Common Law right through an explicit or implicit transfer” (1083).

31. Mercein v. The People ex. rel. Barry, 71.

32. Pool v. Gott, 269-72.

33. Pool v. Gott, 270.

34. Nina Baym, A Guide to Novels by and about Woman in America, 1820-1870 (Ithaca: Cornell Univ. Press, 1978), 165. In Elizabeth Barnes, States of Sympathy: Seduction & Democracy in the Early American Novel (New York: Columbia Univ, Press, 1997), Barnes makes a similar point about the conclusion of the novel but does not read the resolution in the context of the development of domestic-relations law (84-91).

35. G. M. Goshgarian interestingly discusses the incestuous subtext of The Lamplighter, as well as other antebellum sentimental novels, and argues that the “real stakes of the novel [have to do with] Gerty's (re)union with her biological father” (To Kiss the Chastening Rod: Domestic Fiction and Sexual Ideology in the American Renaissance [Ithaca: Cornell Univ. Press, 1992], 168). I agree that Gerty's reunion with her father is an attempt to install biology as the definitive paradigm for identity, but given that the novel works to authorize both biology and contract, there are mutually competing “real stakes” in the novel. Glenn Hendler also discusses the sentimental novel and its ineluctable fascination with incest, suggesting that even as “sympathy imagines that the term ‘family’ can designate something chosen rather than a given set of biological or legal relations,” sentimental novels “contain this ambiguity by raising the specter of incest as the family's internal limit” (“The Limits of Sympathy: Louisa May Alcott and the Sentimental Novel,” American Literary History 8 [1996]: 688). Both Goshgarian and Hendler argue that the possibility of incest ultimately functions to arrest the chosen affections of the heroine, limiting her choices, problematizing her sympathy, and, as Hendler argues, producing “a kind of agency predicated on selflessness” (690). The limitations installed by incest, though significant, don't convincingly account for Gerty's agency in the novel, which if anything is predicated on an increasing capacity for self-possession rather than selflessness. The novel's refusal to allow Gerty to consummate her relationship with her father doesn't mean that her agency is mitigated to the point of eradication.

36. Similarly, the insufficiency of family identifications continues at the end of the novel when Kitty, Gerty's friend, has married and “the child she held by the hand was [her husband's] orphan niece, and just like a daughter to him” (414).

37. Gilkeson v. Gilkeson, 196-97.

38. One may ask whether in waiving his parental rights, Amory establishes his right to be Gerty's suitor, which would make “closer than kindred” a relation that embraces and therefore exceeds both contract and biology. Gerty's marriage to Willie (a “brother,” but not a brother), I would suggest, illustrates her authority to define the father/daughter “arrangement,” as well as the principle of “sufficient discretion.”