Regulating the Unstable Family: Eliza Haywood’s Fiction and the Development of Family Law

This essay examines Eliza Haywood’s interrogation of the legal structuring of the family, arguing that her fiction articulates the need to serve the “best interests” of the child well before early modern British law enacts that goal. Haywood’s amatory fiction, including Love in Excess; or, The Fatal Enquiry (1719), The Rash Resolve: Or, The Untimely Discovery (1724), and The Distress’d Orphan, or Love in a Madhouse (1726), depicts the family’s mistreatment of the daughter-figure and anticipates the law’s as-yet unrealized potential to protect these most vulnerable of women. A comparison of Haywood’s fiction to the Court of Chancery’s equity case law, commentaries, and treatises reveals Haywood’s participation in now-forgotten debates about the rights and responsibilities that define the parent/child and, more specifically, the guardian/ward relationship. Guardianship allows Haywood to imagine and the law to enact interventions in the structuring of the family. This essay focuses on Haywood’s and equity’s definition of three parental powers over the child: the custody of the child, the care and maintenance of the child, and the management of an account of the child’s estate. In her fiction, Haywood consistently depicts the need for a more equitable structuring of the family—a structuring that the legal system of equity itself seems unable to uphold. By criticizing the law, specifically its need to create more caring family structures for the underage daughter, Haywood’s fiction anticipates new understandings of the family that would take equity another half-century to develop.