Illegitimacy in English law and society, 1860–1930

By Ginger Frost

Unlike most other studies of illegitimacy, Frost's book concentrates on the late-Victorian period and the early twentieth century, and takes the child's point of view rather than that of the mother or of 'child-saving' groups.

• Language: English
• Publisher: Manchester University Press
• Release date: Jun 1, 2016
• ISBN: 9781784997885

Ginger Frost

Ginger S. Frost is Professor of History at Samford University, Birmingham, Alabama

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Illegitimacy in English law and society, 1860–1930

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Illegitimacy in English law and society, 1860–1930

Ginger S. Frost

Manchester University Press

Copyright © Ginger S. Frost 2016

The right of Ginger S. Frost to be identified as the author of this work has been asserted by her in accordance with the Copyright, Designs and Patents Act 1988.

Published by Manchester University Press

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www.manchesteruniversitypress.co.uk

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First published 2016

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Contents

Acknowledgements

Introduction

1‘Strangers in the blood’: custody, inheritance, and taxation

2‘The workhouse or death’: maternal crimes and illegitimacy

3Part of the family? Non-maternal carers in the criminal courts

4Courts of last resort: affiliation and the poor law

5Simple acts of justice: illegitimacy and law reform

6Love and loss: family and illegitimacy

7‘Passed from hand to hand’: child circulation

8‘Bad blood’? Social discrimination

Conclusion

Bibliography

Index

Acknowledgements

All books are collaborative efforts to one extent or another. I have accrued many debts in writing this book, financially and intellectually. I would like to thank the National Endowment for the Humanities for giving me a summer research stipend in 2009, allowing me to stay in Britain and do much of the research. I was also privileged to be a member of the Institute for Advanced Study in Princeton in 2009–10, where the dedication to scholarship and the many academic resources made writing much easier. Samford University gave me a small grant for my research in 2009; in addition, the administration has given me time to research and write on a regular basis. I am deeply grateful for this help.

Second, I must thank archivists in Britain and the United States, including those at the IAS and Princeton University, the British Library, the National Archives at Kew, the Women’s Library (shamefully closed; its holdings are now housed in the London School of Economics and Political Science), the London Metropolitan Archives, the Institute of Historical Research, Special Collections at Reading University, Special Collections at the University of Birmingham, the Northwest Regional Studies Centre in Lancaster, the Cambridgeshire Record Office, the Gloucestershire Record Office, and the Children’s Society Record Centre in Bermondsey. Despite swingeing cuts to their budgets, these research centres continue to offer high-quality help and expertise. All historians are in their debt.

Third, I also owe a number of colleagues thanks. Professors Martin Wiener, Martha Vicinus, and George Robb wrote numerous letters for me in my quest for funding. Gail Savage, Daniel Grey, and George Robb also read the completed manuscript and made a number of helpful suggestions. I also owe gratitude to the numerous readers of the articles I have published from the material and the papers I have given on the subject. The book is much better for their constructive criticisms. Finally, I thank my family for doing without me many holidays, and for listening to my stories – funny, tragic, or peculiar – with interest and without complaint.

Some parts of the book have already been published, and I thank those publishers for allowing me to use copyrighted material. These articles include the following: ‘The black lamb of the black sheep: Illegitimacy in the English working class, 1850–1939’, Journal of Social History 37:2 (2003), 293–322; ‘I am master here: Illegitimacy, masculinity, and violence in Victorian England’, in Lucy Delap, Ben Griffin and Abigail Wills, eds, The Politics of Domestic Authority in Britain since 1800 (Basingstoke: Palgrave, 2009), pp. 27–42; ‘When is a parent not a parent? Custody and illegitimacy in England, 1860–1930’, Journal of the History of Childhood and Youth 6:2 (2013), 236–62; ‘Claiming justice: Paternity affiliation in South Wales’, Rural History 24:2 (2013), 177–98; ‘Neither fish nor fowl: Children and parents in cross-class cohabitation’, Victorian Review 39:2 (2013), 47–50; ‘The kindness of strangers revisited: Fostering, adoption, and illegitimacy in England, 1860–1930’, in Rebecca Probert, ed., Cohabitation and Non-Marital Births in England and Wales, 1600–2012 (Basingstoke: Palgrave, 2014), pp. 125–44; ‘Revolting to humanity: Oversights, limitations, and complications of the English Legitimacy Act of 1926’, Women’s History Review 20:1 (2011), 31–46; and ‘Your mother has never forgotten you: Illegitimacy, motherhood, and the London Foundling Hospital, 1860–1930’, Annales de Demographie Historique 1 (2014), 45–72.

Introduction

In 1874, at the Leicester Police Court, Ann Caltman, ‘of independent means’, faced charges of assaulting her servant, thirteen-year-old Elizabeth Neale. Caltman was a widow with four children, and Neale was a maid-of-all-work. On the day in question, Caltman, dissatisfied with the girl’s performance, beat her on the head, back, and shoulders with a brush stick and a poker. When examined, Neale’s body ‘presented a shocking appearance’. What made this story sadder was that the police soon discovered that Neale was Caltman’s illegitimate daughter. Neale had lived with an aunt until she was ten, then transferred to her mother’s house, presumably when her mother was widowed. Neale then became the drudge of the house. Until the trial, she had not known Caltman was her mother; indeed, in her testimony, Elizabeth referred to Ann as ‘her mistress’. The magistrate gave Caltman six months at hard labour, saying ‘no one could … witness the state of the child without shedding tears’.¹

Caltman’s cruelty earned her a gaol sentence, but her refusal to acknowledge her daughter agreed with the English legal system. According to the law, Elizabeth was a stranger to her own mother and belonged to no one. Mothers had to provide for their illegitimate offspring, but, as this case showed, did not have to treat them like family, and fathers had no legal connection at all (the newspaper’s silence about Elizabeth’s father was typical). In this case, the law defended the illegitimate child only so far, by punishing the mother as it would an unrelated employer. Over a long period, judges and juries made similar difficult decisions, determining who did or did not belong in a family, who would or would not receive protection from violence and poverty, and who could or could not claim British citizenship. Such decisions literally had life-and-death results; illegitimate children had twice the death rates of their legitimate peers. Yet few people fought for reforms until the 1920s.

The reasons for the silence were many. During the Victorian period, children ‘outside the law’ were embarrassing to their families, reminders of their mothers’ ‘falls’. Illegitimate births revealed illicit sexuality, and these children often knew they were unwanted. Until the twentieth century, most legislators and church leaders believed the only way to reduce sexual ‘immorality’ was to punish any children resulting from it. After 1834, mothers suffered too, since they bore the burden of rearing the children alone, but mothers could marry and regain their social status (and most did). In England, illegitimacy was irreversible, a punishment assessed on the one person who had done nothing wrong, and all in the name of encouraging ‘morality’.

Many historians have written about illegitimacy, but primarily from the point of view of the unwed mothers, especially in studies of infanticide or ‘baby farming’. Feminist historians, in particular, stressed the misogyny inherent in the bastardy laws and the hardships for single women in rearing children in an age with few jobs open to women and little societal support.² I do not deny that the position of an unwed mother was horrific, but this work focuses instead on the experiences of their children. Doing so highlights the failure of the Victorian criminal justice system to protect its most vulnerable citizens and the misplaced priorities that worsened their circumstances. Similarly, studies of baby farming, though fascinating, often overstate the prevalence of this crime; a focus on illegitimacy corrects these oversights through sheer force of numbers. I have collected over 1,300 criminal trials involving illegitimate children as victims, and 81 per cent were by mothers while only 0.25 per cent were by ‘baby farmers’. Though culturally significant, such trials were a tiny part of a much broader problem of provision for these infants. In addition, concentrating on infanticide or baby farming tends to understate the role of men. This book will discuss both men’s absence and presence as crucial to the life chances of children of unwed parents.³

Given the poverty of single mothers, studying the poor law is vital to understanding the experience of illegitimacy. An increasing number of historians have looked for the voices of paupers in poor-law records, but most of these are for the ‘old’ poor law. Recent article collections are the same; the majority of pieces concentrate on the period before or during the 1840s.⁴ Few studies of the workings of the New Poor Law reach far into the Victorian period, much less the twentieth century. This is partly because the passage of the New Poor Law in 1834 has attracted so much attention, as it was one of the most significant pieces of legislation in the nineteenth century.⁵ Though valuable, such studies primarily concentrate on political discourse and reforms at the national stage. In contrast, my book uses poor-law records in Cardiff and Cambridge to see the workings of the law at the parish level, and the results show a more sympathetic administration than the discourse often indicated. These findings match those of historians like Steve King and K. D. M. Snell, who have looked at the late Victorian period and the early twentieth century, especially in their emphasis on regional differences.⁶ More such studies are needed, especially in children’s history. After all, illegitimate children were far more likely to appear in records of the poor law than in the assize courts.

Historians have also explored illegitimacy as part of larger studies of child rescue societies and the treatment of children ‘in care’. They demonstrate the many reasons children might face trauma – poverty, mental illness, parental desertion, or death.⁷ Understandably, historians of childhood usually centre solely on one group of disadvantaged children, e.g., workhouse inmates, juvenile prisoners, or child migrants. Looking at a cross-section of children across different types of public and private institutions helps identify common factors as well as differences in the reasons for children’s suffering. I have thus supplemented the poor-law records with those of two private institutions, the London Foundling Hospital (FH) and the Church of England Waifs and Strays Society (CEWSS, now the Children’s Society).⁸ Doing so shows both the constant changes for these children and the wide use of fostering and irregular adoption. This work is not a study of adoption per se, but will overlap to some extent with recent works on the subject. Secrecy was vital but also almost impossible to sustain, given the legal framework of this period. My work, then, agrees with that of Deborah Cohen, especially on the complicated interaction between secrecy and shame for illegitimate children, ‘adopted’ or not.⁹

As this brief survey shows, studies of illegitimacy almost always involve the criminal or bastardy law, or they emphasise children living apart from natal families. Despite their higher death rates, however, most illegitimate children survived infancy, and the majority lived with their kin for at least part of their lives, many for all of it. Additionally, civil cases, like the poor law, demonstrate a more benign legal regime than in studies of criminal justice. Moreover, government documents and parliamentary debates describe the (often glacially) slow progress in these children’s rights. In short, wider sources, including autobiographies, civil law cases, and oral histories, are necessary to comprehend both the ‘typical’ and the ‘atypical’ for illegitimacy in late-Victorian and early twentieth-century England.¹⁰ Children who ended up in criminal courts indicate some things about the experience of illegitimacy, but omit many others.

This book, then, analyses the legal and social consequences of growing up illegitimate in England and Wales between 1860 and 1930 through a broad spectrum of sources. I have not included Scotland, since its legal system was quite different, and historians like Andrew Blaikie have already covered illegitimacy there.¹¹ In addition, due to reasons of space, I have not treated literary representations of illegitimacy, as that is a book in itself. I chose this specific time frame for four reasons. First, two major pieces of legislation bracket the period – the Legitimacy Declaration Act of 1857 and the Legitimacy Act of 1926. Between those years, Parliament largely ignored illegitimacy except as a matter of criminal law or in bastardy laws, both of which got limited reform in the 1870s. A sustained movement to improve the lives of illegitimate children did not begin until the 1920s. Thus, the legal continuity allows for a thematic study, but one that showcases transitions in gender, class, and family ideology over several decades.

Second, this period has received the least coverage in the literature. As stated above, many historians have studied illegitimacy between the late eighteenth century and the New Poor Law (1834), and a growing number of books have emerged on the twentieth century. In contrast, illegitimacy in mid-to-late Victorian family history has received less attention, partly because illegitimacy rates were low. Nevertheless, thousands of children a year lived and died under the stain of illegitimacy. Their experiences, then, were significant and offer comparisons and contrasts with the more volatile times before and after. Third, British privacy laws sharply reduce access to files after the First World War. Without a variety of sources, I could not draw firm conclusions, especially in the 1930s, so I chose to end with the aftermath of the Legitimacy Act of 1926. I have, however, included examples from the 1930s when possible. Finally, this period was the crucial transition stage in public perception and in legal tenets – from indifference/distaste to sympathy with the plight of illegitimate children. Like their mothers, children of unwed parents came to be seen as less of a threat to the social order and more as victims of prejudice, though, of course, both views vied for supremacy for many years. Eventually, reform movements eased the problems for these children, part of larger movements in child welfare and support for lone mothers after the First World War.

This book is divided into eight chapters. Chapter 1 begins with a study of the civil law, primarily custody suits and contested wills. In legal documents, a ‘child’ was a legitimate child only, semantically erasing those whose parents did not marry. The rules surrounding illegitimacy were a tangled web of contradictions, of inclusion and exclusion. Small improvements occurred in the twentieth century, but illegitimacy remained a bar to inheritance and a burden in taxation well after 1900. Chapters 2 and 3 turn to the criminal courts. Illegitimate children were overwhelmingly victims of crimes rather than perpetrators, and they rarely received the full protection of the state. Chapter 2 centres on crimes by mothers, by far the most common defendants in violence crimes involving illegitimate children, while Chapter 3 looks at the role of gender and class in murders by non-maternal carers. In both cases, poverty, shame, and secrecy influenced a child’s life chances.

Chapter 4 deals with local courts, which saw the majority of cases involving illegitimates. First, it analyses affiliation suits, the attempts of mothers to get financial assistance from ‘putative’ fathers. These hearings rehashed the circumstances of the children’s conceptions, an embarrassment to both parents, but they did acknowledge, if only in a contingent way, the role of fathers. Unfortunately, fathers did all they could to avoid contributing, helped by the many loopholes in the laws. Thus, many children of unwed parents fell into the control of the poor law, the second topic of this chapter. Poor-law guardians made every effort to find families for their charges, if only to save money, and doing so showed a conflict between the national and local authorities. Indeed, problems with provision for poor children led to a sustained movement for reform in the wake of the First World War, the subject of the fifth chapter. The passage of acts such as the Infanticide Act of 1922, the Adoption Act of 1926, and the Legitimacy Act of 1926 showed changes in attitudes, but also continuity of concerns about divorce, adultery, and cohabitation. Though welcome, the reforms were highly limited; far-reaching transformations occurred only in the late twentieth century.

The first five chapters centre on legal consequences of illegitimacy, but the next three focus on social issues. Chapter 6 explores the family crisis brought by illegitimacy. Children living with their families had advantages over those who did not, but these arrangements were often unstable, since illegitimacy was a powerful family secret. Indeed, Chapter 7 analyses the movements of these children from family to family and in and out of care. Illegitimate children were ‘extras’, lifted out of the family in crisis times, deserted to the workhouse by those who did not have to provide for them, or given to adopters or foster parents while their mothers worked. Most families tried not to give up the children, but this often just meant that the latter moved more frequently. The results of their unsettled lives were far-reaching; in this, they were similar to (and overlapped with) child migrants. However, even those who lived in only one family form had difficulties when they left its protection, as Chapter 8 shows. Children faced discrimination in school, in the workplace, when they married, and beyond. Not all children were crushed by their status, but many blamed it for at least some of their life problems, and others never overcame their guilt, depression, or anger.

Illegitimacy was (and is) an ugly word, as it implied that the people so branded were illegal and unwanted. I used it nevertheless, as the term had a legal meaning that was central to this study, and alternative terms were awkward or unclear. For similar reasons, I discussed ‘bastardy laws’; these were the names of numerous laws and whole branches of jurisprudence and were, then, unavoidable. At any rate, eliminating these terms ran the risk of whitewashing the reality of such children’s lives. Though repugnant, the words were one of the legacies of birth outside of marriage.

The period under review in this book differed greatly from earlier social regimes in England. Illegitimacy rates were extremely low during the medieval and early modern periods, a mere 2 or 3 per cent. The close confines of the local community and strict rules about courtship limited pre-marital intercourse for most couples, at least until they were betrothed. After betrothal, should a woman become pregnant, the couple simply moved up the date of the wedding. The few births outside of wedlock before 1750, then, involved lower-class women who lacked families to protect them or had disrupted courtships, or upper-class families, where acknowledged ‘natural’ children received support. The church courts oversaw punishment for the cases of fornication and adultery that occurred, and local parishes had to provide for children without breadwinners, one reason the communities regulated the sexuality of the young carefully.¹²

The late eighteenth century contrasted sharply with this stability. By the 1780s, the population was rising inexorably, and illegitimacy rates increased disproportionately within that, to as much as 10 per cent of live births (and in some parts of Scotland, higher). The reasons for the increase were many, mostly related to the changes associated with early industrialisation, urbanisation, and the proletarianisation of agriculture. The resulting population explosion strained the ability of local governments to support these growing families. Parish relief for those in poverty came from the poor rates, collected from householders and based on an Elizabethan statute of 1601–3 (though reformed over time, particularly during the Napoleonic wars). As the population boomed, poor rates rose exponentially.¹³

During the transitional period of the late eighteenth and early nineteenth centuries, attitudes towards illegitimacy were mixed. On one end of the scale, upper-class people spoke of ‘natural’ children regularly, and the sons of George III had numerous children out of wedlock (the Duke of Clarence, for example, fathered ten sons and daughters with actress Dora Jordan). Aristocratic families often absorbed these children and granted them dowries or settlements. As Lisa Zunshine has pointed out, illegitimate birth was not a bar to a good marriage in the upper classes as long as the child had a wealthy father, and few upper-class people expressed excessive prudery. Illegitimacy, indeed, was a major topic of novels, unsurprising given the number of illegitimate children existing at the time.¹⁴ At the other end of the social scale, in the working classes, such children did not suffer a ‘social death’ or force mothers’ exiles. A destitute woman needed help, but she was not an outcast. Tanya Evans has argued that most women petitioning the FH in this period used the language of ‘misfortune’ rather than ‘seduction’. Moreover, sometimes the children were not even financial burdens. In northwest Britain, an unwed daughter could work in cottage industry or on her family’s farm after having an illegitimate child, and such children folded into the family business as they aged. In addition, the poor law was fairly generous. The mother of an illegitimate infant could ‘swear’ the father of the child, and he had to give surety to reimburse the parish or face imprisonment. After the birth, justices then made an order for weekly payments.¹⁵

The rising power of the middle class, imbued as it was with the ideals of domesticity, evangelicalism, and liberalism, was one reason the attitude to illegitimacy hardened by the 1830s. For middling families, illegitimacy was a severe social bar. Local and national leaders, alarmed at the rise in poor rates, also argued the poor laws must change to discourage – rather than encourage – ‘vice’. As Lisa Forman Cody has argued, this concern peaked in the 1820s, influenced by Thomas Malthus’s theories of population, and concentrated in rural, southern parishes. Critics primarily blamed women, insisting they ‘trapped’ men, making a good living on a number of bastardy orders and losing all sense of decorum and self-reliance. As a result, Parliament set up a Law Commission to examine the Poor Law, and it recommended sweeping changes in the approach to care in 1833, enacted in the New Poor Law of 1834. For illegitimate children, the most important reform was to the bastardy clause, which removed responsibility for their provision from their fathers and placed all of it on their mothers. A small opportunity to sue at the Quarter Sessions remained in the bill, but almost no women used it. The logic behind this sentiment was to force ‘lewd’ women to accept the full consequences of their actions, which would, in turn, reduce the number of illegitimate births. Thus, economic problems became moral issues and required moral solutions.¹⁶

The law failed to lower illegitimacy rates in the 1840s but succeeded in the long run. In the 1840s, the illegitimacy rate remained 7 per cent, but dropped to 4 per cent for the rest of the Victorian era. (This was the reported rate, which was inaccurately low, but since this was also true of the period before the reforms, the trend was downward.) Ironically, the high rates of the 1840s led to the bastardy clause being reformed in 1844, as its unpopularity threatened to derail the entire project, especially in Wales and northern England. Still, the 1844 reforms were quite limited, so they did not stop the decline in illegitimacy rates over time.¹⁷ In addition to the change in the poor laws, other factors reduced illegitimate births. Cottage industry declined rapidly in the 1830s and 1840s. Women’s employment prospects lessened, and those jobs they could get were poorly paid. In other words, after 1850, working-class women needed male providers; a single mother could not rear a child on her own, nor could her family use the child’s labour as it had in earlier times. Evangelical views of domesticity were also important, dominating public discourse. To reformers, women’s chastity was the key to their characters, thus much increasing the shame associated with illegitimacy. Though this was especially true in the middle classes, their views moved up and down the social scale. The working class could not reach the ideal of the ‘angel in the house’, but it adapted the ideology to its own circumstances. Thus, for the majority of the population, a ‘good’ woman was chaste before marriage and faithful thereafter, sacrificing what was necessary for her family’s respectability.¹⁸

By 1860, illegitimacy was a deep-seated shame to the whole family – at least, that is, to the woman’s family. Illegitimacy rates reached new lows, to the point that John Gillis labeled the period between 1850 and 1960 ‘the era of mandatory marriage’.¹⁹ The legal and social changes favoured middle-class men most of all, as they gained political power and economic opportunities, while the working class, the younger generation, and women lost power. A young working-class woman was most disadvantaged. In this context, as in so many others, the problems for illegitimate children were related to the powerlessness of their mothers, economically, legally, and socially.

A woman who gave birth to a child out of wedlock after 1860, then, had limited options. If she were well-off, she could go away from her home to give birth; she generally would have to leave her child behind, either in an institution or with an adoptive family. Middle-class women, however, rarely had illegitimate children except in illegal marriages, both because they were carefully chaperoned and because they had too much to lose. A poor woman who had a relationship with a well-off man might get provision for all the children, but was unlikely to marry the father. Still, her position was better than that of a poverty-stricken lone mother, left to the mercy of the workhouse. The hardships of the desperate unwed mother, in fact, became a theme of Victorian literature, one stressing her passivity and long suffering. In other words, once women could no longer challenge men economically or sexually, their disadvantages garnered them sympathy, though not much practical help.²⁰

As this summary indicates, law and society interacted in complex ways on the issue of out-of-wedlock births. At times, they supported each other; the legal position of these children influenced social views of them and vice versa. What was most crucial, though, was the many places where differences emerged: between judges and juries, judges in different branches of the law, and local and national authorities. Moreover, unwed mothers knew their children had two parents, and local families did as well, even if the law claimed these children were ‘fatherless’. In other words, English society faced dilemmas in dealing with illegitimate children, not only because the law was inconsistent, but because illegitimacy also contradicted one of the most basic relationships in society, that between children and their parents. Furthermore, domestic ideology was divided on this issue, as it enjoined a deep disapproval of illegitimate births but also venerated the mother–child bond as sacred. Little wonder illegitimacy remained a problem for authorities, leading to a host of negative outcomes. The results of these contradictions, and the ways children and their families dealt with them, are detailed on the following pages.

Notes

1 Manchester Guardian (29 December 1874), p. 8.

2Examples from the voluminous literature include L. Rose, Massacre of the Innocents: Infanticide in Britain, 1800–1939 (London: Routledge and Kegan Paul, 1986), pp. 113–18; A. Higginbotham, ‘Sin of the age: Infanticide and illegitimacy in Victorian London’, Victorian Studies 32:3 (1989), 319–37; M. Arnot, ‘The murder of Thomas Sandles: Meanings of mid-nineteenth-century child murder in Victorian England’, in M. Jackson, ed., Infanticide: Historical Perspectives on Child Murder and Concealment, 1550–2000 (Aldershot: Ashgate, 2002), 249–67; A. Kilday, A History of Infanticide in Britain, 1600 to the Present (Basingstoke: Palgrave, 2013).

3I have 1,328 cases of violence against illegitimate children. I collected these from a search of three newspapers, The Times (London), the Manchester Guardian, and the Western Mail (Cardiff), using search terms like ‘illegitimate’, ‘infanticide’, and ‘bastardy’. I supplemented these with legal treatises and the records of the Home Office and Assize courts. In addition to criminal trials with child victims, I found seventy-one perjury cases from affiliation suits, sixteen violence trials from affiliation suits, twenty-five prosecutions of false declarations on birth certificates, and twenty-six crimes committed by illegitimates for a total of 1,466 criminal trials. For an important work on baby farming, see R. Homrighaus, ‘Wolves in women’s clothing: Baby-farming and the British Medical Journal, 1860–1872’, Journal of Family History 26:3 (2001), 350–72; S. Swain, ‘Toward a social geography of baby farming’, History of the Family 10:2 (2005), 151–9; and M. Arnot, ‘Infant death, child care and the state: The baby-farming scandal and the first infant life protection legislation of 1872’, Continuity and Change 9:2 (1994), 271–311.

4See, e.g., A. Levene, T. Nutt, and S. Williams, eds, Illegitimacy in Britain, 1700–1920 (Basingstoke: Palgrave Macmillan, 2005); A. Levene, ‘Poor families, removals, and nurture in late old poor law London’, Continuity and Change 25:2 (2010), 233–62; S. King, Poverty and Welfare in England, 1700–1850: A Regional Perspective (Manchester: Manchester University Press, 2000); and ‘Friendship, kinship and belonging in the letters of urban paupers, 1800–1840’, Historical Social Research 33:3 (2008), 249–77; J. Bailey, ‘Think wot a mother must feel: Parenting in English pauper letters, c. 1760–1834’, Family and Community History 13:1 (2010), 5–19; B. Harvey, ‘The putative fathers of Swinton, England: Illegitimate behavior under the old poor laws, 1797–1835’, Journal of Family History 40:3 (2015), 373–98. Similarly, works on race and illegitimacy also cluster in the early nineteenth century. See M. Finn, ‘The Barlow bastards: Romance comes home from the empire’, in M. Finn, M. Lobban, and J. B. Taylor, eds, Legitimacy and Illegitimacy in Nineteenth-Century Law, Literature and History (Basingstoke: Palgrave, 2010), 25–47; D. Cohen, Family Secrets: Shame and Privacy in Modern Britain (Oxford: Oxford University Press, 2013), pp. 13–46.

5For examples, see endnotes 15–20, below.

6J. Stewart and S. King, ‘Death in Llantrisant: Henry Williams and the new poor law in Wales’, Rural History 15:1 (2004), 69–87; S. King, ‘We might be trusted: Female poor law guardians and the development of the new poor law: The case of Bolton, England, 1880–1906’, International Review of Social History 49:1 (2004), 27–46; K. D. M. Snell, Parish and Belonging: Community, Identity and Welfare in England and Wales, 1700–1950 (Cambridge: Cambridge University Press, 2006).

7G. Behlmer, Child Abuse and Moral Reform in England, 1870–1908 (Stanford: Stanford University Press, 1982); Friends of the Family: The English Home and its Guardians, 1850–1940 (Stanford: Stanford University Press, 1998); C. Oliver and P. Aggleton, Coram’s Children: Growing up in the Care of the Foundling Hospital, 1900–1955 (London: Coram Family, 2000); J. Sheetz-Nguyen, Victorian Women, Unwed Mothers, and the London Foundling Hospital (London: Continuum International Publishing Group, 2012).

8 I relied primarily on the secretary’s letter books from the FH, as they are open for the entire period, but I read other files when available. I looked at one hundred case files from the CEWSS. Some of these are online, so have the website as their reference. Others are from the archives at Bermondsey. Because of privacy concerns, the children from the Bermondsey files are identified only by a letter (or a letter and a numeral), and the citation in the endnotes is a record number based on my personal code. Those who need exact references should contact me privately.

9J. Keating, A Child for Keeps: The History of Adoption in England, 1918–45 (Basingstoke: Palgrave, 2009); Cohen, Family Secrets, pp. 124–55.

10The civil cases include 368 affiliation summonses, 143 will disputes, fifty-three custody cases, forty-six suits brought under the Legitimacy Declaration Act, eighteen cases over estates and titles, forty-one disputes over other inheritances, and thirty-four cases over the estates of illegitimate intestates (703 total). I also used a wide array of government records: the Foreign Office, Inland Revenue, Local Government Board, Treasury, Lord Chancellor’s Office, Ministry of Health, Registrar General, and War Office files. The oral histories were from the Elizabeth Roberts Collection at Lancaster University. Her respondents are coded, and I have used the codes rather than the names when referring to them (usually an initial, a numeral and a letter based on the city of residence).

11A. Blaikie, Illegitimacy, Sex, and Society: Northeast Scotland, 1750–1900 (Oxford: Clarendon Press, 1993); ‘Infant survival chances, unmarried motherhood and domestic arrangements in rural Scotland, 1845–1945’, Local Population Studies 60 (1998), 34–46; A. Reid, R. Davies, E. Garrett, and A. Blaikie, ‘Vulnerability among illegitimate children in nineteenth century Scotland’, Annales de Deomographie Historique 1 (2006), 89–113; and, for an earlier period, L. Leneman and R. Michison, Sexuality and Social Control: Scotland, 1660–1780 (Oxford: Blackwell, 1989).

12M. Ingram, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge: Cambridge University Press, 1987), pp. 125–67; S. D. Amussen, An Ordered Society: Gender and Class in Early Modern England (New York: Columbia University Press, 1988), pp. 95–111; J. Gillis, For Better, For Worse: British Marriages, 1600 to the Present (Oxford: Oxford University Press, 1985), pp. 11–54.

13Gillis, For Better, For Worse, pp. 109–34; Rose, Massacre, pp. 22–5.

14L. Zunshine, Bastards and Foundlings: Illegitimacy in Eighteenth-Century England (Columbus: Ohio State University Press, 2005), pp. 2–22, 133–6.

15T. Evans, ‘Unfortunate objects: London’s unmarried mothers in the eighteenth century’, Gender and History 17:1 (2005), 133–8; Gillis, For Better, For Worse, pp. 110–15, 126–9; U. Henriques, ‘Bastardy and the new poor law’, Past and Present 37 (1967), 103–9; L. F. Cody, ‘The politics of illegitimacy in an age of reform: Women, reproduction, and political economy in England’s new poor law of 1834’, Journal of Women’s History 11:4 (2000), 131–9.

16Cody, ‘Politics of illegitimacy’, 137–9, 143–50; Henriques, ‘Bastardy’, 112–25; Gillis, For Better, For Worse, pp. 231–7; Sheetz-Nguyen, Victorian Women, pp. 15–35.

17Cody, ‘Politics of illegitimacy’, 143–50; Henriques, ‘Bastardy’, 114–29; Gillis, For Better, For Worse, pp. 237–41; S. King, Poverty and Welfare, pp. 18–76.

18Gillis, For Better, For Worse, pp. 241–7.

19Gillis, For Better, For Worse, p. 231.

20Cody, ‘Politics of illegitimacy’, 146–50; Sheetz-Nguyen, Victorian Women, pp. 136–65; Rose, Massacre, pp. 70–8; C. L. Krueger, ‘Literary defenses and medical prosecutions: Representing infanticide in nineteenth-century Britain’, Victorian Studies 40:2 (1997), 271–94.

1

‘Strangers in the blood’: custody, inheritance, and taxation

I am far from defending the law of England … On the contrary, I think it is a disgrace to the nation. It visits the sins of the parents on the children; it encourages vice by depriving fathers and mothers of the strongest of all motives for making the atonement of marriage; and it claims to produce these two abominable results in the names of morality and religion.¹

This passage from Wilkie Collins’s 1862 novel, No Name, encapsulates the contradictions in the English law of illegitimacy. Children born even one day before their parents’ marriage remained illegitimate for life, while those born one day after a wedding had the full benefits of legitimacy. To be ‘illegitimate’ was to be outside the law, filius nullius, ‘no one’s child’. As Collins’s title suggests, illegitimate children did not have the right to a last name; they got a surname by reputation only, and they had no