On a cold late December morning in 1878, a commissioner, six jurors, and eleven witnesses gathered at an attorney’s office in West Chester, Pennsylvania, to conduct an inquisition into the habitual drunkenness of Edward R. Edward was a wealthy, young Chester County resident who had just inherited a sizable house, land, and interest in a woolen mill. Edward had also recently married a young woman called Ida. It was her father, Edward’s father-in-law, who petitioned against him. His petition and the attached affidavits alleged that habitual drunkenness had rendered Edward “incapable of managing his estate,” threatening the well-being of his household and risking the livelihood of his mill workers.Footnote 1 As the proceedings stretched into January, twenty-six witnesses testified before Edward’s inquisition jury. His relatives, neighbors, acquaintances, and various townspeople argued whether he was a habitual drunkard.
Even though he was not being charged with a crime, the stakes for Edward were very high. If the jury convicted him of habitual drunkenness, he would be placed under guardianship, also known as conservatorship, a condition of legal disability that stripped him of his right to own property, sign contracts, or make a will. Some states even denied persons under guardianship the right to vote.Footnote 2 Although Edward’s case file uncharacteristically preserves a record of witness testimony before the inquisition jury, the early American legal archive is fragmentary and incomplete. Edward’s case file is no exception. His final status, whether he was put under guardianship, remains a mystery. However, according to case files that survive in legal archives across the Mid-Atlantic region—New Jersey, New York, and Pennsylvania—most men brought before such inquisitions were declared habitual drunkards.Footnote 3
Efforts to restrain alcohol and drinking through laws such as licensing, excise taxation, and national Prohibition (1920–1933) are well understood after over four decades of dedicated scholarship.Footnote 4 More recently, historians have studied the medicalization of alcohol-related harm through concepts such as delirium tremens, inebriety, alcoholism, and addiction. Courts adjudicating criminal cases such as murder trials gradually accepted medical framings of delirium tremens as a type of diminished capacity that resulted from excessive drinking.Footnote 5 During the second half of the nineteenth century, the study of alcohol-related pathology mirrored developments in the treatment of insane persons in specialized institutions—public mental asylums and, later, both public and private mental hospitals. In the Gilded Age, this system expanded to include specialized inebriate asylums. Like all mental hospitals, inebriate asylums often functioned as carceral spaces that gave shape to new pathologized personhoods—the inebriate, the alcoholic, and later, the addict—to be treated by specialized medical professionals.Footnote 6 While most jurisdictions rejected compulsory treatment for drunkenness by the end of the nineteenth century, a medical diagnosis of inebriety often became evidence against husbands in divorce cases.Footnote 7 Simultaneously, some states held drink sellers financially responsible for the drunkard’s failure to provide for his family under civil damages laws that awarded wives monetary compensation when husbands became incapacitated.Footnote 8
Meanwhile, guardianship, especially for habitual drunkards, has escaped sustained attention. In the first American legal treatise dedicated solely to guardianship, A Treatise on the American Law of Guardianship of Minors and Persons of Unsound Mind (1897), John Gabriel Woerner wrote, guardianship “has not” yet “been treated by any text-writer, except as included in books of a more general scope” focusing on insanity or domestic relations.Footnote 9 Almost a century later, Lawrence Friedman, Joanna Grossman, and Chris Guthrie remarked that guardianship remains “among the least-noticed, least-discussed institutions of the working legal system” despite going “back quite far in legal history.”Footnote 10 While a few historians of disability and mental health have begun to recognize its significance, as Susanna Blumenthal asserts, the historiography of guardianship in the United States is still “surprisingly thin.”Footnote 11
The expansion of guardianship to include habitual drunkenness, especially during the first half of the nineteenth century, transformed the courtroom into a site for contesting the meanings of mental capacity, defining the thresholds of compulsion, policing respectable masculinity, and drawing the borders of full citizenship before the medicalization of inebriety, the institutional treatment of alcoholism, or the passage of national Prohibition. Although fragmentary and incomplete, nineteenth-century Mid-Atlantic legal archives reveal that habitual drunkenness cases became a significant portion of adult guardianship cases, anywhere from approximately sixteen percent of all adult guardianship cases in Pennsylvania to as high as forty-one percent in New York.Footnote 12
Guardianship subjected drinkers who failed to embody patriarchy and citizenship to the legal apparatus of what Michael Grossberg calls a “judicial patriarchy” over the family.Footnote 13 When courts put habitual drunkards under guardianship, they fulfilled the states’ double parens patriae obligation in these cases: first, to protect the habitual drunkard’s property from himself, and second, to protect the habitual drunkard’s dependents from his neglect and abuse. Men facing guardianship inquisitions were respondents, not defendants. Their accusers were petitioners, not plaintiffs. Courts imposed guardianship ex relatione (ex rel.), or, on behalf of, the petitioners. In the process, the legal system constructed the habitual drunkard as a new “kind” of problematic legal person and targeted him for discipline and governance beyond criminal law and outside punitive incarceration or therapeutic confinement.Footnote 14 Struggling with the idiosyncrasy of each case, courts gradually centered the compulsion to drink as a critical but contested prerequisite for stripping propertied men of civil rights that defined manhood, legal personhood, and full membership in the community of white male citizenry.
Guardianship, Alcohol, and Masculinity
Guardianship emerged as a legal instrument in medieval England to resolve disputes involving succession, inheritance, and the custody of minor children.Footnote 15 The failure of precedent-based common law principles to resolve these cases inspired the formation of the Chancery Court, which adjudicated cases such as guardianship in equity, not in common law. According to Amalia Kessler, unlike adversarial common law trials that privileged jury verdicts, equity courts drew on a Roman canon law tradition that gave proceedings in equity a “quasi-inquisitorial” character.Footnote 16 Since the inception of guardianship, English courts gradually expanded it to include adults deemed non compos mentis (unsound mind) and spendthrifts.Footnote 17 Premodern treatise writer John Brydall explained, spendthrifts were “prodigal Persons” whose profligacy necessitated the appointment of guardians in the same manner as “Minors” and “mad Persons,” a distinction that endured into the early nineteenth century.Footnote 18 Crossing the Atlantic Ocean, guardianship became a permanent feature of colonial and United States law. As New York’s Field Code of Civil Procedure signaled a “fusion” of equity and law in the United States, guardianship was subsumed by the emerging paradigm of civil law by the end of the nineteenth century.Footnote 19
The expansion of guardianship in the United States to specifically include habitual drunkards occurred at a moment of intense apprehension about alcohol consumption in the new nation. Drinking has always facilitated social bonding, especially in European culture.Footnote 20 In North America, the colonies that became the United States developed a culture of copious drinking. William Rorabaugh concluded that “half the adult males—one-eighth of the total population—were drinking two-thirds of all the distilled spirits consumed” before 1830.Footnote 21 Including beer, wine, and cider, the average man drank as much as five gallons of absolute alcohol per year in the 1820s, the highest-ever alcohol consumption in United States history. In response, a national temperance movement centered in the North boasted an official membership as high as twelve percent of the nation’s adult population by the mid-1830s.Footnote 22
In this prolific drinking culture, convincing men to stop drinking was an uphill battle for reformers who blamed the drunkard for poverty, crime, domestic violence, disease, and myriad other social problems. In a kind of cultural hormesis, drinking simultaneously signified and undermined the drinker’s manliness.Footnote 23 In the words of Catherine Gilbert Murdock, “Alcohol consumption was…a sign of masculinity that took away masculinity….You drank to show that you were a man, but you get drunk, and all of a sudden, you can’t provide for your family, you can’t do your job,” and “you become violent.”Footnote 24 Drinking proved the drinker’s manhood even as it unmanned him. In response, temperance reformers promoted restrained masculinity that embraced the ideals of domesticity and, therefore, temperance, now defined as total abstinence from all forms of alcohol.Footnote 25
Concerns about drunkenness and masculinity coalesced around broader anxieties surrounding republican nation-building, the expansion of democracy, and the instability of an emerging market economy. “Twice we have bravely resisted and spurned political despotism,” lamented Dr. Billy Clark, an early temperance reformer, yet “at length we have prostrated our necks under the sceptre of king Alcohol.”Footnote 26 He chastised Americans who had gained political independence from Great Britain for willingly subjecting themselves to the tyranny of this new ruler. Clark’s invocation of “King Alcohol” linked the compulsion to drink with political unfreedom, slavery, and apprehensions about self-rule in a new republic. As the Constitution ostensibly extended suffrage to all men born in the United States after the Civil War, self-possession—demonstrated by tax payment, economic participation, and a restrained, able-bodied, mentally sound masculinity—replaced property ownership as the primary marker of full citizenship. At the same time, Black men’s supposed propensity to drunkenness became one of the arguments against their full citizenship.Footnote 27
The habitual drunkard threatened the self-abnegation of citizenship in a new nation that counted on independent, able-bodied, mentally sound white men to shoulder the burdens of democracy. His inability to manage property, provide for his dependents, make moral choices at the ballot box, and, most importantly, his compulsion to drink, exposed an uncomfortable specter of masculine failure, disability, and dependency that resembled insanity, also known as lunacy.Footnote 28 According to Susanna Blumenthal, early American courts delineated “the mental prerequisites of legal responsibility in the form of the default legal person” that linked “mental capacity and legal responsibility.”Footnote 29 Barbara Welke adds, the “universal legal person” who was entitled to the rights of full citizenship and legal personhood was conceived as an idealized white, able-bodied male who became the nineteenth-century standard against which courts judged all others.Footnote 30 “Disabled persons, racialized others, and women,” Welke argues, became “subjects of the law,” dependents who were not entitled to legal identity or civil and economic rights.Footnote 31 Moreover, as Rabia Belt shows, the disenfranchisement of disabled Civil War veterans alongside institutionalized persons and persons under guardianship meant that physical and mental capacity remained fundamental prerequisites for full citizenship, even for white men.Footnote 32 Consequently, and perhaps unsurprisingly, approximately ninety-nine percent of respondents across the Mid-Atlantic legal archive who were declared habitual drunkards and put under guardianship were white men.Footnote 33
Although not every habitual drunkard put under guardianship was wealthy, most of these men, especially during the first half of the nineteenth century, did not belong to the working class. The privilege of having estates, personal property, and money conferred respectability that distinguished them from the so-called common drunkard.Footnote 34 Poor drinkers, both men and women, fell under a different system of governance—the criminalization of common drunkenness, also known as public intoxication.Footnote 35 More likely to get caught outside, common drunkards were associated with vagrancy and public nuisance. Prosecuted as criminals, they were fined, sentenced to houses of correction and jails, or committed to almshouses and poorhouses.Footnote 36 Conversely, guardianship cases often involved private intoxication within the home. Restricting the rights of respectable men triggered a complex and expensive legal process that charged juries with defining the thresholds of habitual drunkenness and mental capacity as they deliberated which men to exclude from full citizenship, one case at a time.
Expanding Guardianship
“Drunkards, Look Out!” warned the title of an 1819 Lancaster Intelligencer article. The newspaper reported that Pennsylvania had just passed “An Act Relative to Habitual Drunkards,” which expanded guardianship to include anyone who “by reason of habitual Drunkenness has become incapable of managing his estate and is wasting and destroying the same.”Footnote 37 Almost immediately, an “Individual…possessed of a very handsome estate,” who “but a few years ago was a respectable Citizen,” was placed under guardianship.Footnote 38 While most states extended guardianship to persons of unsound mind or spendthrifts since the colonial period, Pennsylvania became the first to explicitly include habitual drunkards. Following Pennsylvania’s lead, New York passed a similar statute in 1821, and New Jersey followed in 1853.Footnote 39 Other states effectively included habitual drunkards in their guardianship statutes as spendthrifts. For example, Massachusetts defined spendthrifts as “every one who is liable to be put under guardianship, on account of excessive drinking, gaming, idleness, or debauchery.”Footnote 40 By the end of the century, most states passed generalized statutes providing guardianship to anyone a court had declared mentally incompetent, including habitual drunkards.
Pennsylvania and New York were a nexus for the demographic, political, and economic changes that generated intense anxieties about the habitual drunkard. Between 1820 and 1850, both states together represented approximately a quarter of the total population in the United States.Footnote 41 With growing urban centers such as New York City and Philadelphia, the Mid-Atlantic region became the demographic crucible in which the expansion of male suffrage was tested. Pennsylvania was one of the first states to loosen property requirements for voting, replacing property ownership with the payment of taxes in 1790. New York followed in 1821, the same year it extended guardianship to habitual drunkards. Beyond the Mid-Atlantic, Massachusetts’ disenfranchisement of persons under guardianship in 1821 also coincided with changing property ownership requirements.Footnote 42
The Mid-Atlantic region’s urbanization and population growth also situated its cities at the center of an emerging national market economy. Its population thus bore the brunt of financial crises, most notably, the Panics of 1819 and 1837, both moments of heightened anxieties about harmful drinking.Footnote 43 In this context, these cities became early epicenters of both the medical profession and temperance reform.Footnote 44 After all, Philadelphia was the home of Benjamin Rush, the Revolution-era physician whose An Inquiry into the Effects of Ardent Spirits upon the Human Body and Mind (1784) inspired the earliest temperance reformers to organize. In this Inquiry, Rush had urged the government to “secure the property of habitual drunkards, for the benefit of their families, by placing it in the hands of trustees, appointed for that purpose, by a court of justice.”Footnote 45 In 1815, two years after Rush’s death, Pennsylvania Governor Simon Snyder echoed Rush’s call to enact laws protecting habitual drunkards’ property, comparing them with the “mentally diseased” in an address to the state legislature.Footnote 46
When these calls came to fruition in Pennsylvania and New York, statutes emphasized the protection of the habitual drunkard’s property for the provision of his family. Pennsylvania empowered courts to place “any citizen” who “by reason of habitual drunkenness, has become incapable of managing his or her estate, and is wasting and destroying the same” under guardianship.Footnote 47 In New York, the statute likewise addressed the “estates” of “persons” who are “incapable of managing their own affairs in consequence of habitual drunkenness.”Footnote 48 Despite Pennsylvania’s overt emphasis on preserving property, a footnote indicating that guardianship applied in cases where “the person may not be possessed of any estate” linked money, property, and family to deeper concerns about dependency, legal personhood, and full citizenship.Footnote 49 In 1836, New York’s revised code stated explicitly that guardianship safeguarded property so that it could continue to “provide…for the maintenance of [habitual drunkards’] families and the education of their children.”Footnote 50 New York’s statute quickly caught the attention of the state’s elite physicians. The early medical jurisprudence writer Theodric Romeyn Beck included it in his discussion about insanity.Footnote 51
Meanwhile, Pennsylvania and New York’s less populous Mid-Atlantic neighbor, New Jersey, struggled to pass a similar law. First suggested as early as 1813, the legislature debated but failed to pass numerous versions of the bill for the next several decades.Footnote 52 Unfortunately, because the legislative records and newspaper accounts offer no details about the debate, it is difficult to tell why New Jersey took so long to follow its Mid-Atlantic neighbors. Perhaps, legislators thought the state’s existing lunacy statutes were enough.Footnote 53 When the law finally passed in 1853, it is not unreasonable to speculate that it reflected the growing momentum of broader temperance legal reforms, especially the growing national debates about Maine Laws, the first state-level alcohol prohibitions named after the state that first instituted them in 1851. While New Jersey never adopted its own Maine Law, legislators certainly considered it in 1853, the year they expanded guardianship to include habitual drunkards. Newspaper coverage of the statute’s passage praised it as a “temperance law.”Footnote 54 All but copying Pennsylvania’s statute, New Jersey also explicitly encoded the legal consequences of guardianship—exclusion from the right to property and contract—in the law.Footnote 55
As they expanded guardianship, Mid-Atlantic States harnessed the existing legal machinery of guardianship involving what James Moran calls “lunacy investigation.”Footnote 56 Pennsylvania’s statute empowered courts to conduct inquisitions and assign guardians “as has been heretofore practiced in cases of persons non compotes mentis.”Footnote 57 Similarly, New York recognized that habitual drunkards fell under the “jurisdiction and power” exercised by the same “court in regard to the estates of lunatics.”Footnote 58 Such statutory language recognized that habitual drunkenness and mental unsoundness were similar enough to warrant the same legal consequences.Footnote 59 As courts gradually recognized new medical articulations of alcohol-induced insanity such as delirium tremens as a mitigating factor in murder trials, medicolegal professionals began to wonder if habitual drunkenness was, in and of itself, a type of insanity.Footnote 60
For medical jurisprudence treatise writers interested in the legal implications of disease, similarities between the effects of intoxication, the compulsion to drink, and insanity facilitated the classification of habitual drunkenness as a form of mental unsoundness, a kind of partial insanity.Footnote 61 As courts, physicians, and temperance reformers struggled to account for the compulsive aspects of intemperance, they reached for the concept of habit. Habit has always been a liminal concept because it constantly questions whether individuals fully control their actions. Stuck between full agency and autonomous action, habit implies an acquired momentum in human behavior that is difficult to change or shift.Footnote 62 During the eighteenth and early nineteenth centuries, the meaning of habit in North America gradually changed in ways that emphasized its involuntary aspects. By 1865, Noah Webster’s Dictionary, for example, defined habit as an “involuntary tendency,” an “internal principle,” a “law of our being,” and a “second nature.”Footnote 63
Most physicians, many of whom were active as temperance reformers, drew on these formulations as they worked to explain the physical basis for habituation. Unlike insanity, which was understood to be caused by a range of nebulous reasons such as heredity, physical trauma, old age, or sexual sin, the immediate physical cause of habitual drunkenness was alcohol. They posited that alcohol destroyed the body’s natural physiological capacity for volition by perverting natural appetites for food and water into an artificial appetite for intoxication.Footnote 64 According to physician, asylum superintendent, and medical jurisprudence treatise writer Isaac Ray, the “pathological changes” caused by alcohol “are the effect of a long-continued voluntary habit” to the point that “they, in turn, become efficient causes” that “act powerfully in maintaining this habit” despite “the resistance of the will.”Footnote 65 While these formulations of habit and habitual drunkenness left plenty of room for volition, the language of habitual drunkenness became the terminology of choice in guardianship law because it captured the compulsive aspects of intemperance.
As North American medical jurisprudence treatise writers drew heavily from British and European legal traditions, the English chancery decision in Ridgeway v. Darwin (1802) became a leading precedent in the United States during the first half of the nineteenth century.Footnote 66 Upholding the guardianship of Ann Kendrick, a person with epilepsy, the court regarded habitual drunkenness as a form of mental unsoundness short of total insanity. “[N]ot confined to strict insanity,” the commission of lunacy can be “applied to cases of imbecility of mind, to the extent of incapacity, from any cause,” including “disease, age, or habitual intoxication.”Footnote 67 When American medicolegal writers cited this case to justify the expansion of guardianship to include habitual drunkards, they reflected and reinforced the gradual redefinition of mental illness as a disease.
Consequently, guardianship case files in New York, for example, are filled with statements comparing habitual drunkenness with mental unsoundness. In 1828, an inquisition jury found that William B. was “frequently…deranged and wild in his mind owing to his nerves and intellects being impaired by habitual drunkenness.”Footnote 68 The petition against Henry P. alleged that he “was insane with liquor,” and an accompanying affidavit accused him of “riotous conduct” while being “addicted to the habits of the grosses intemperance” that often left him “in a state of mental derangement.”Footnote 69 In 1844, an affiant (affidavit writer) swore that Ephraim V.’s “faculties are so shattered by the habitual and excessive use of spirituous liquors that he is totally unfit for the management of his business and the custody and control of his property.”Footnote 70
Meanwhile, before the 1853 statute in New Jersey, courts gradually recognized habitual drunkenness as a form of lunacy. Petitioners sought inquisitions into lunacy in cases that would have fallen under the habitual drunkenness statute in neighboring Pennsylvania and New York. As early as 1817, a petition successfully alleged that Joseph G. “hath been so far deprived of his reason and understanding that he is rendered altogether unfit to govern himself or to manage his affairs” because of his drinking.Footnote 71 Throughout the 1820s, the decade that saw the expansion of guardianship in Pennsylvania and New York, inquisition juries in New Jersey found that John M. “became a lunatic” through the “intemperate use of ardent spirits;” that Joseph O. “became [a] lunatic by intemperance”; and that the “cause” of Jonathan O.’s “incapacity has originated from excessive intemperance.”Footnote 72 Despite the absence of a habitual drunkenness statute, petitioners and jurors nevertheless understood that alcohol debilitated the body and incapacitated the mind.
No matter how similar habitual drunkenness seemed to insanity, it was not the same thing. The resemblance between compulsion and insanity thrust habitual drunkenness into broader debates about moral insanity, a new concept of mental disease that explained bad behaviors, including various compulsions such as stealing or promiscuity, in terms of physical pathology. While its proponents viewed moral insanity as an enlightened medical perspective on human frailty, its detractors denounced it as an excuse for vice, sin, and crime.Footnote 73 For example, in 1874, New York Commissioner of Lunacy John Ordronaux repudiated the idea that habitual drunkenness was a disease. Just as moral insanity excused sin, he loathed that treating habitual drunkenness as a disease threatened to absolve the habitual drunkard of his failings.Footnote 74 In the context of criminal law, the use of intoxication or delirium tremens as a diminished capacity defense in murder trials only mitigated the severity of the punishment. Even if habitual drunkenness was a form of moral insanity, it did not absolve the murderer of responsibility for his crime.Footnote 75 Configuring him as a kind of insane person who was responsible for his incapacity by drinking alcohol in the first place, guardianship cases positioned the habitual drunkard as a liminal figure, both bad and sick, somewhere in between the spendthrift and the lunatic.
Protecting Property and Family
The legal quest to safeguard the habitual drunkard’s estate through guardianship belied deeper anxieties about his inability to conduct business, failure to support his family, and physical abuse of members of the household, even though the legal definitions of “estate” and “family” distinguished persons from the property.Footnote 76 Furthermore, the habitual drunkard’s violence to those around him differentiated him from spendthrifts, who were profligate but not necessarily associated with violence or dangerousness like non compos mentis were.Footnote 77 On its face, guardianship law was about property. Nevertheless, the nineteenth-century American family and its estate were inextricably tied together, especially in the era of coverture, a common law doctrine in which husbands owned the property, labor, and legal identities of their wives and children.Footnote 78
Guardianship statutes and case files consistently linked the integrity of the habitual drunkard’s property with his family’s physical and emotional well-being. Statutes emphasized the need to protect the habitual drunkard’s family from his profligacy and incapacity. Before divorce or civil damage laws that held alcohol sellers financially responsible, guardianship offered neglected and abused wives under coverture legal recourse to challenge male authority when the head of the household became incapable of managing his “estate” in Pennsylvania and New Jersey or his “affairs” in New York. Frequently, women relied on male relatives—fathers-in-law, brothers-in-law, and sons-in-law—to intervene as petitioners.Footnote 79 When wives petitioned against their husbands they sometimes teamed up with their sons or brothers as co-petitioners.
New York diverged from Pennsylvania and New Jersey by charging the Overseers of the Poor to file habitual drunkenness guardianship petitions from the beginning. Overseers of the Poor were elected officials administering local poor relief. Although New York law allowed petitions by private parties, Overseers of the Poor were the most common petitioners during the first half of the nineteenth century. Just as in cases brought by private parties, the Overseer of the Poor, and therefore, the local municipality or county, bore the costs of the case if their petition failed.Footnote 80 As petitioners, these officials acted as interlocutors for aggrieved families with no other legal recourse. Some of the worst allegations of domestic violence in New York were made in affidavits, often written by family members, accompanying petitions filed by Overseers of the Poor.Footnote 81
Most revealing of all is women’s participation in guardianship proceedings. While New York always allowed wives to file petitions against their husbands, Pennsylvania and New Jersey initially did not. After Pennsylvania revised the law in 1836 to allow petitions by any “relation by blood or marriage,” the number of wives and women in general who filed petitions increased. The growing number of wife-petitioners, especially after 1865, suggests broader linkages to the gradual erosion of coverture during the second half of the nineteenth century.Footnote 82 Occasionally, mothers filed petitions against their sons. Women and their female siblings, friends, and other relatives also participated as affiants and witnesses. The involvement of women who were most impacted by the habitual drunkard’s incapacities confirms that guardianship cases were about preserving the integrity of the family as well as safeguarding property.
Despite the idiosyncrasies of each case, the case of Chester County, Pennsylvania resident Edward R. (1878) offers a window into how a typical guardianship case proceeded. Following established form language, Edward’s father-in-law, Thomas V., petitioned the “Court to issue a Commission in the nature of a writ de lunatico inquirendo, to inquire” of Edward’s “habitual drunkenness.”Footnote 83 Affidavits accompanied the petition. Next, the court assigned a local figure, typically an attorney, to act as commissioner, who presided over the inquisition. Pennsylvania and New Jersey courts usually assigned a single commissioner, while New York often assigned three. By the end of the nineteenth century, guardianship cases were presided over by a chancellor, probate judge, or court-appointed commissioner, depending on the jurisdiction.Footnote 84
The commissioner then ordered the local sheriff to “summon” a jury of “six persons, lawful men of said County,” to hear the inquisition.Footnote 85 Habitual drunkenness inquisition juries often consisted of as many as twenty-four jurors, but never fewer than six. Once the sheriff selected a jury, he subpoenaed the respondent and witnesses. Edward’s inquisition then convened to hear witness testimony. Dutifully handwritten by a clerk, the 122 pages of uncharacteristically preserved witness testimony demonstrate that the inquisition was a quasi-adversarial proceeding like a trial. Attorneys for the petitioner questioned their witnesses while the respondent’s attorneys cross-examined them, and vice versa. After the end of witness testimony, the jury deliberated and rendered a verdict: yes, the individual was a habitual drunkard, or no, the individual was not.Footnote 86 As in so many inquisitions across the Mid-Atlantic region, Edward’s inquisition declared that he “is a habitual drunkard,” described how long he had been so (“for the space of two years last past”), and enumerated all his real estate, commercial interests, personal property, family members, and dependents.Footnote 87
Although the case file includes an inquisition with a positive verdict, only five of the six jurors signed the document. It is impossible to know if Edward was put under guardianship, if he appealed to a higher court, if he won his case, or if his case file is even complete. However, in most, if not all, cases, juries rendered unanimous verdicts before a court would put a respondent under guardianship. Once a jury returned a positive verdict, the court issued a ruling indicating the respondent’s official status as a habitual drunkard, documents formally assigning a guardian or guardians, and the guardians’ bond certificate. In New Jersey, orders transferring the case from the Court of Chancery to the Orphans’ Court, which handled the details of guardianship assignment, are typically part of the case file. Statutes required periodic audits of the habitual drunkard’s property and financial affairs, generating lengthy ledgers of inventories, income, credits, and outstanding debts that dominate most guardianship case files.
Across a wide spectrum of economic means, these documents reveal that these men were mainly rural farmers and local businessmen. In Pennsylvania in 1820, Leonard W. owned “one hundred and twenty acres of land” worth “three thousand dollars,” “personal property” worth almost “three hundred dollars,” cattle, farming implements, and other miscellaneous goods.Footnote 88 Others were “not possessed of any estate whatever” but possessed cash, such as Eli E. in 1863.Footnote 89 Conversely, in 1878, Edward R. had a portion of the “interest in a farm of one hundred and twenty acres” and “twenty five or twenty six dwelling houses,” a “woolen and cotton factory and machinery, barn and other out buildings” worth $30,000 alongside “Personal Property,” and “Household furniture,” altogether “worth $800.”Footnote 90 Throughout the nineteenth century, when most workers never made more than one dollar per day, such estates represented substantial wealth.Footnote 91
The cost of bringing a guardianship petition was not inexpensive. Petitioners typically bore the costs if they failed to have the respondent put under guardianship.Footnote 92 The bills of cost that often survive in the case files indicate that commissioners, sheriffs, jurors, and witnesses were all paid a fee in addition to court costs. Aaron G.’s inquisition and guardianship in New York in 1846 accumulated $27.50 in costs “exclusive of counsel and solicitor’s fees” to be charged against his estate.Footnote 93 During the first half of the nineteenth century, the average cost of a guardianship case involving habitual drunkenness in New Jersey was approximately $55.Footnote 94 In Pennsylvania in 1878, Thomas V., the petitioner against Edward R., filed a bill of costs totaling $60.09 while Edward spent $42.Footnote 95 By 1894, some cases cost as much as $100.97.Footnote 96 Alleged habitual drunkards had to possess enough property and, presumably, pose enough danger to that property through neglect or to their families through violence to justify the expense of filing the petition. Given average nineteenth-century wages, guardianship must have been a privilege reserved for respectable families of means.
The rate of positive verdicts and the cost of these cases imply that petitioners, including Overseers of the Poor charged with administering public poor relief, probably sued only when they felt they had a strong case. Regardless of the petitioner, most guardianship cases involved men described as being severely neglectful of their responsibilities and having become abusive to the members of their households after engaging in troubling levels of drinking. In New York, Cornelius Y. allegedly “remains in a state of intoxication for days and weeks together.”Footnote 97 Similarly, it was alleged that Frederick D. “drinks frequently four or five times hourly, that he then goes to bed until some of the effects of the liquor is gone, and then rises and recommences drinking.”Footnote 98 Ephraim V. allegedly engaged in “habits of daily intoxication,” remaining “almost uniformly more or less under the influence of intoxicating drinks.”Footnote 99
In addition to being intoxicated all the time, the habitual drunkard’s dangerousness was a recurring theme in guardianship cases. Petitions, affidavits, and, witness testimony are filled with allegations of domestic violence alongside financial mismanagement. For example, in the New Jersey inquisition of Alfred H., one witness testified, “every harvest, he does little or nothing in consequence of his intoxication” because he could afford to pay “others to do the work.” Moreover, when “intoxicated,” Alfred “appear[ed] like a raving maniac” and was violent, which made “him very dangerous” to his family.Footnote 100 Another witness saw Alfred “make an assault upon his father in the barn” after the latter had confronted him about his “drinking that day.”Footnote 101
Guardianship case files in New York also frequently contain allegations that the habitual drunkard’s dependents were subject to his abuse as well as neglect. According to a petition by an Overseer of the Poor, Cornelius Y. disturbed “the peace and quiet of his family,” and “squandered” the “means which might be applied to their comfort and support…in the purchase of intoxicating liquors.”Footnote 102 In the case of Jira P., an Overseer of the Poor’s petition alleged that “his property is in danger of being wasted and squandered and his family are in danger of being left without a support.”Footnote 103 And in the case of Lodowick W., an Overseer of the Poor stated, he “has a wife and a family of four children” whom “he shamefully abuses…without any cause.”Footnote 104
Women who participated in these cases presented what Elaine Franze Parsons calls the “drunkard’s narrative,” a tragic story of a good man having fallen because of alcohol.Footnote 105 Harvey S.’s sister-in-law, Phibe, who visited the household as many as “six or eight days at a time,” swore in her affidavit that “when he is intoxicated,” he became “the most noisey, profane, vulgar, and indecent behaved man she ever saw.”Footnote 106 She vividly described how more than once, a violent, disruptive, and drunk Harvey either forced his family to take refuge with neighbors or had to be removed from his home by the neighbors. In the case of Henry A., his wife Rebecca swore, “Until recently he was kind and indulgent to his family,” but “within the last year,” he became “abusive and violent under the influence of liquor and has threatened repeatedly to turn the family out of doors.”Footnote 107 And Alfred H. was alleged to be a kind and capable man when sober, but when drunk, “his family is in danger from him.”Footnote 108
Some of these men were alleged to have even threatened to kill their wives or themselves. Michele Rotunda explains that murder, especially the murder of a wife, under the influence of alcohol, was an all too common occurrence in the United States in the nineteenth century.Footnote 109 For example, Frederick D.’s “violence to her person, frequently threatening to shoot her, and his daily turbulence and violence” forced his wife, whose name does not appear in the documents, “to seek safety and peace elsewhere.”Footnote 110 In Ephraim V.’s case, William W., a household employee, swore in his affidavit that Ephraim “frequently committed acts of personal violence upon his wife without excuse or provocation,” including having “struck and kicked her” in his presence.Footnote 111 William further alleged that in a fit of intoxication,” Ephraim once “forced her to the wall and threatened to knock her through the chimney…because she endeavored to persuade him to quit the use of liquor.”Footnote 112 Meanwhile, in the case of Andrew H., an affiant alleged that he “frequently threatened to destroy his own existence,” that is, end his life through suicide.Footnote 113
Once again, Edward R.’s case in Chester County, Pennsylvania, exemplifies the culmination of these trends in the second half of the nineteenth century. The petition and affidavits construed both his family and his employees at the Bondsville woolen mill, “about fifty to sixty persons,” as his dependents.Footnote 114 While much of the inquisition testimony involved Edward’s appearance and behavior in public, Ida’s sister, Mary L., who had stayed in their home for as many as six months at a time, pulled back the curtain on the young couple’s private life. Although she did not specifically allege domestic violence, Mary described a new marriage torn apart over drinking. She testified that Edward carried a loaded revolver while drunk and enjoyed raucous parties with his friends that often ended with broken glass and other objects strewn throughout the house, which naturally upset his wife, Ida. According to Mary, Edward mistreated Ida, especially whenever she objected to his drinking, telling her, “he owned everything that she brought nothing [that] was hers…he always had drunk whiskey and he always expected to, and if she did not like it, she could leave, and he would furnish her with a team” of draft horses.Footnote 115 It seems Ida took Edward up on his offer—at the time of the inquisition, she was back at her father’s house, suing Edward for financial “maintenance.”Footnote 116
Contesting the Thresholds of Incapacity
Applying statutory language in court proved difficult because statutes did not define habitual drunkenness or differentiate it from other kinds of drinking. What threshold was necessary to determine that a man could not manage his estate? Was habitual drunkenness characterized by a specific quantity, frequency, and/or duration of drinking? Did other forms of misconduct such as reckless spending or domestic violence matter? Moreover, in guardianship cases involving lunacy, the inability to manage one’s estate often formed part of the evidentiary basis for guardianship. What if the alleged habitual drunkard was a heavy drinker but generally accepted by his community to be mentally capable? How did the compulsion to drink fit into this legal calculus? As courts found themselves dealing with the idiosyncratic circumstances involving respectable white men with families, they faced the almost impossible task of determining the precise line between moderate and compulsive drinking.
Confusion quickly surrounded the question of mismanagement, an important form of evidence in guardianship cases about lunacy. Quoting the chancellor, the New York jurist Oliver Barbour explained, an “erroneous impression appears to have” formed among the public.Footnote 117 It “is supposed by many” that the petitioner “is bound to prove, affirmatively, that an habitual drunkard is incapable of managing his affairs” when it was only necessary to prove “that a person is for any considerable part of the time intoxicated, to such a degree as to deprive him of his ordinary reasoning faculties.”Footnote 118 Unlike in lunacy cases, a determination of habitual drunkenness was “prima facie evidence…that he is incapacitated to have the control and management of his property.”Footnote 119 A jury verdict automatically implied incapacity, shifting the burden of production and proof to the habitual drunkard to prove his reformation in any future proceeding.
Habitual drunkards contested this interpretation of the statutes in several appeals that would become a key part of nineteenth-century guardianship case law. After being put under guardianship in New York in 1821, Obadiah H. petitioned the court to set his guardianship aside, arguing he had reformed. However, members of his family testified that he still drank. In the Matter of Hoag (1838), New York’s Chancery Court upheld the guardianship on the basis that “indications of a permanent reformation are entirely illusory so long as he permits himself to use any intoxicating drinks whatsoever.”Footnote 120 Reflecting the logic of temperance reform, the chancellor ruled that only “total abstinence from all alcoholic liquors…for at least one year, is necessary to authorize the court to presume there is a permanent reformation.”Footnote 121 Despite courts’ adoption of a total abstinence standard for a guardianship to be set aside, legal provisions for restoration to full citizenship reflected a broader understanding of the compulsive drinker’s capacity for volition than that of many physicians and temperance reformers.
Hoag anticipated the issues animating Ludwick v. Commonwealth (1851), a Supreme Court of Pennsylvania decision that became the leading nineteenth-century precedent defining habitual drunkenness. Samuel Ludwick challenged his guardianship after an inquisition jury had determined that he was a habitual drunkard, even though witnesses never testified that he squandered or mismanaged his estate.Footnote 122 Decrying the lack of empirical standards, his attorneys argued that the quantity, frequency, and duration of drinking justifying guardianship ought to be determined by the court, “not left as a question of fact to a jury, because juries may differ on the subject.”Footnote 123 They also challenged the principle that habitual drunkenness was prima facie evidence of a respondent’s incapacity. Ludwick’s attorneys argued, without evidence of mismanagement, “it by no means follows” that incapacity is “inferred by the law from the habit of drunkenness.”Footnote 124 Defending the guardianship, the opposing counsel argued, “an acquired taste” for “intoxicating drinks” depended “on the peculiarities” of an individual’s “constitution” so much so that “there cannot be any uniform standard to which the habit of drunkenness may be referred.”Footnote 125 Only a jury could, and should, decide.
Upholding Ludwick’s guardianship, Justice Morton Cropper Rogers reflected the tension between entrenched drinking culture and new temperance ideologies as he pondered the threshold of incapacity in his ruling. “To constitute an habitual drunkard,” Rogers declared, “it is not necessary that a man should be always drunk.”Footnote 126 Observing that a “man may be a habitual drunkard and yet be sober for days and weeks together,” the judge asked, “Has he a fixed habit of drunkenness? Was he habituated to intemperance whenever the opportunity offered?”Footnote 127 Admitting the impossibility of creating “any fixed rule,” Rogers refused to set a numerical threshold for habitual drunkenness, leaving the decision in the hands of individual juries. The only guidelines he offered were that a habitual drunkard was a “man who is intoxicated or drunk” at least “one-half his time” and who could not refuse a drink “whenever the opportunity offered.”Footnote 128 Thus, Ludwick introduced compulsion as the dividing line between a capable moderate drinker and an incapable habitual drunkard.
The most significant part of Ludwick is Rogers’ ruling that proving mismanagement was not necessary, mirroring legal interpretations in New York. Once a respondent had been declared a “habitual drunkard, it was unnecessary to decide whether he was capable or incapable of managing his estate” because his “incapacity” was “a conclusion of law.”Footnote 129 Reasoning that the law was “precautionary in its design,” Rogers declared that “evidence of squandering property” to declare someone a habitual drunkard would defeat the statute’s purpose.Footnote 130 Rogers again conjured temperance formulations of volition and the logic of total abstinence when he concluded that any “disposition of mind or body which might lead to the wasting of an estate, is sufficient to enforce the statute” because “the very act of drunkenness is itself waste.”Footnote 131
While Ludwick became a leading legal precedent for the rest of the century, its legal framework for detecting habitual drunkenness remained difficult to apply in practice.Footnote 132 The fixed habit standard remained a vague, inchoate test for compulsive drinking. Consequently, from archival lower court cases such as that of Edward R. (1878) to published case law precedents such as McGinnis v. Commonwealth (1873), jurors continued to hear testimony about whether the respondent had a fixed habit of drunkenness and whether he could manage his estate.Footnote 133 Nevertheless, Ludwick’s elimination of mismanagement as a criterion for habitual drunkenness created an opening through which the compulsion to drink increasingly demarcated the fuzzy boundary between the moderate drinker from the habitual drunkard.
Governing Habitual Drunkards
Guardianship disciplined and governed habitual drunkards under noncriminal law by demoting them from being full rights-bearing citizens. The imposition of guardianship formalized the habitual drunkard’s incapacity and disability by reducing him to a legal status that resembled, in the words of legal treatise writer Joseph Ragland Long, the “disabilities of coverture.”Footnote 134 Sometimes, guardianship explicitly inverted the normative gendered order of household patriarchy. For example, when Obadiah H. was put under guardianship in New York in 1821, the court assigned his son Ezekiel, one of the petitioners against him, as his guardian. Despite audits showing that Ezekiel’s mismanagement left his father’s property in even worse shape, the court refused to set aside his guardianship.Footnote 135 As a ward of his own son, Obadiah must have regarded his legal status as a perverse and embarrassing reversal of his normative patriarchal prerogative. Imposing a loss of civil rights that women, children, and other dependents never had by default, this diminished legal status both reflected and enacted the habitual drunkard’s fallen manhood and lost adulthood. Guardianship thus transformed the habitual drunkard from a universal legal person into a subject of the law.
Although guardianship statutes emphasized the benevolent protection of habitual drunkards’ estates for the provision of their families, in practice, the consequences of guardianship, which ranged from the loss of civil rights to public embarrassment, were also punitive. Many of the men accused of habitual drunkenness vigorously contested their guardianships, often at great personal expense. They hired attorneys to defend them, called witnesses, and traversed inquisitions. When these efforts failed, they appealed guardianships or filed petitions to be restored. Men who could conclusively prove at least one year of total abstinence, usually through exhaustive witness testimony, had their guardianships set aside. Other proceedings went on for decades without success. For example, Obadiah H. petitioned tirelessly to be released from his son’s guardianship. In 1838, the court’s denial of his petition was even published in case reports. As late as 1845, his petitions were still being denied.Footnote 136 Obadiah’s efforts exemplify how many men under guardianship, even those who continued drinking, remained competent enough and had the financial means to strenuously resist their loss of rights.
Guardianship also imposed public embarrassment and social stigma upon the drinker and his family. For example, when Jacob Hess was put under guardianship in Pennsylvania (1826), advertisements in the Lancaster Intelligencer requested “all persons having claims against him… to present them” and “all persons indebted” to him “to make immediate payments.”Footnote 137 Such advertisements were common and often ordered by the court. Nevertheless, it must have been embarrassing for Hess when his status as a habitual drunkard was broadcast across his community. By the 1880s, prominent people accused of habitual drunkenness attracted growing newspaper attention. The Daily Graphic printed “The Curse of Rum,” a cautionary tale about Charles Sisson, a thirty-year-old Jersey City farmer from a wealthy New Jersey family whose “wild career” ended when “he was declared to be a habitual drunkard” and put under guardianship.Footnote 138 In a rare example of a female respondent, the case of Henrietta Wiley—a middle-aged New York warehousing heiress and socialite who was declared a habitual drunkard, put under guardianship, and committed to an asylum—generated sensational nationwide newspaper coverage.Footnote 139 When Charles Scribner, a relative of the famous publisher, faced an inquisition in 1885, The New York Times reported on his case.Footnote 140 Similarly, the case of Dr. George Bull (1885), a “wealthy…scion of one of New York’s most aristocratic families” who “married a woman of the Tenderloin while on a debauch,” was covered by newspapers across the United States.Footnote 141
When men under guardianship filed petitions to set aside their guardianship, the language they often used illustrates that they felt stigmatized by their diminished legal status. When Peter W. petitioned a New York court to set aside his eighteen-year-long guardianship in 1842, he wanted to regain control of his estate. However, and perhaps more importantly, he also longed to “be restored to his former privileges as [a] citizen,” for “the stain that now rests upon him, and his family” to be “removed.”Footnote 142 Men under guardianship in Pennsylvania expressed similar sentiments. The legal forms they used for petitions to set aside a guardianship recognized that guardianship carried a “stigma upon your petitioner and [his] family.”Footnote 143 Emphasizing the shame of being labeled a “habitual drunkard,” the language in these petitions indicated an intense desire to regain legal personhood and some measure of respectability as well as control over property.
Sometimes, the habitual drunkard’s family members expressed bereavement when they attended court proceedings. According to the New York Times, George Bull’s inquisition in 1885 had the pall of a fashionable funeral. “Had it not been for the maroon scarf” and “bandana neckerchief” of the two commissioners, the courtroom “would have been utterly destitute of color.”Footnote 144 Dr. Bull’s three daughters, the oldest of whom had filed the petition against him, “all wore mourning suits trimmed with fur.”Footnote 145 George’s second wife, a much younger woman about the same age as his youngest daughter, “appeared in a tight black basque and a plaited black frock,” her “black hat adorned with a black feather.”Footnote 146 Lost to the artificial appetite for alcohol and facing guardianship, it was as if George had already died.
Such performances demonstrate that habitual drunkenness and guardianship signified a social stigma akin to civil death. According to Rabia Belt, the concept of civil death originated in early modern England to deal with felons who lost their freedom and civil rights for violating the social contract through their crime. It also applied to people deemed non compos mentis.Footnote 147 Habitual drunkards under guardianship in the nineteenth-century United States faced a similar but less totalizing loss of civil rights. The exact threshold for a positive verdict of habitual drunkenness remained in the hands of individual jurors, each of whom had to decide what the fixed habit standard meant to them. And, although all habitual drunkards lost property and contract rights uniformly, not all states disenfranchised people under guardianship. This inconsistent and uneven governance of the habitual drunkard rendered him metaphorically a bit like a zombie—not dead, but no longer possessing the full agency ascribed to the living. Just as habit was a liminal concept between full agency and total subjection, once put under guardianship, the habitual drunkard likewise occupied a liminal legal status between full citizenship and total exclusion, a state of civil undeath.
Conclusion
As guardianship cases persisted into the twentieth century, most states eventually subsumed all non compos mentis, including spendthrifts and habitual drunkards, under generalized mental capacity statutes. However, the legal meanings of habitual drunkenness were adopted and appropriated across new contexts such as divorce and life insurance.Footnote 148 Conservatorship persists as an obscure, poorly understood, and often-abused legal status, raising human rights concerns about the estimated two million, mainly elderly, adults living under guardianship in the United States.Footnote 149 In the twenty-first century, cases involving famous young people such as pop star Britney Spears and football prodigy Michael Oher have thrust questions about guardianship and its abuse into a more public spotlight.Footnote 150 Moreover, links between the use of intoxicating substances, financial incompetence, and mental incapacity continue to appear in adult guardianship cases. For example, in 2022, radio and television personality Wendy Williams was put under a court-ordered guardianship in New York before being diagnosed with alcohol-related frontotemporal dementia and aphasia, a diagnosis she continues to dispute. And, in 2023, the singer Cher petitioned a California court to put her son, Elijah Blue Allman, under conservatorship on allegations of addiction and financial mismanagement.Footnote 151 Both cases distinctly echo nineteenth-century anxieties about compulsive drinking. Centering the compulsion to drink as the defining characteristic of the habitual drunkard, the administration of guardianship law in the nineteenth-century United States anticipated the modern alcohol addict by governing men who had lost the ability to govern themselves.
Acknowledgements
For reading earlier versions and offering feedback that greatly strengthened this article, I thank Susanna Blumenthal, Sally Barringer Gordon, Dominique Tobbell, Sarah Tracy, Barbara Welke, the chairs and fellows of the 2023 J. Willard Hurst Summer Institute in Legal History, the attendees of a 2019 University of Minnesota Legal History Workshop, LHR editor Gautham Rao, and the anonymous LHR peer reviewers. I am especially grateful to research assistant Shane Agee, a Colorado State University Department of History graduate student, for helping me construct a database of cases. The research in this article received grants and fellowships from the American Society for Legal History, the William Nelson Cromwell Foundation, the New York State Archives, the Consortium for the History of Science, Technology, and Medicine, and the University of Minnesota Program in Law and History. Finally, I owe a special debt of gratitude to James Moran for guiding me to the archives in New Jersey that first launched this project.
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