Illegitimacy in English law and society, 1860–1930

Ginger Frost

• Publisher: Manchester University Press
• Year: 2016
• ISBN:
  9781784997885
• Edition: 1
• Topic: History
• Subtopic: Irish History
• Index: History

This book explores the legal and social consequences of growing up illegitimate in England and Wales. 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. Doing so allows for an extended analysis of criminal and civil cases involving illegitimacy, including less-studied aspects such as affiliation suits, the poor law and war pensions. In addition, the book explores the role of blended, extended and adoptive families, the circulation of children through different homes and institutions, and the prejudices children endured in school, work and home. While showing how the effects of illegitimacy varied both by class and gender, the book highlights the ways in which children showed resilience in surviving the various types of discrimination common in this period. It will appeal to anyone interested in British social history, childhood studies, or legal history.

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 legal relatives until they married. Religious and political leaders justified these laws by claiming they discouraged illegitimacy, but they also left children vulnerable to poverty and desertion.

The harshness of these laws did not go without comment. Many critics made Collins’s point that the laws of illegitimacy visited the sins of the parents on the children in an egregious way. J. S. Rubinstein spoke for many others when he argued, in 1909, that punishing innocent children rather than their parents offended ‘the most elementary sense of justice’.² Still, the church party in the House of Lords and moralists of all stripes considered these laws necessary. These forces delayed meaningful reform for decades, always on the assumption that any help to illegitimate children opened the floodgates to sexual incontinence. The amelioration of this harshness, then, fell on judges and juries, many of whom manoeuvred around the law’s limits. Judges respected precedent, but civil cases were varied enough to offer a choice of which precedents they might follow. Over time, the position of illegitimate children improved, though always slowly and uncertainly.

The legal issues centred on a number of common themes. First, courts defined illegitimacy, drawing lines between children, excluding and including as they did so. The status of illegitimacy determined, in part, who was legal family. In the nineteenth century, exclusion was the rule. In limited cases, mothers’ connections to their children were recognised, but wider kin or paternal relatives were not. In the twentieth century, illegitimate children gained more family, and adoption became an option after 1926. Still, for most of this period, the laws of illegitimacy forced divisions between parent and child, brothers and sisters, and wider kin. Second, courts had to deal with the problem of provision. Both local and national governments found that having a class of persons with no legal family made for severe economic hardships.

Overall, the legal system meshed with the religious prescriptions against unmarried intercourse. Since church courts could no longer sanction the parents, the stigma of illegitimacy shamed mothers and children instead (fathers largely escaped punishment). One result was that many families tried to hide illegitimacy, but legal processes were public. Almost all court cases involving illegitimacy required the airing of the family’s secrets; many cases showed the lengths to which families had gone to avoid exposure. Covering up illegitimacy was difficult in an age with no legal adoption and a law system that favoured open hearings and a free press. Indeed, part of the point of open processes was to discourage unwanted behaviour, so authorities were reluctant to allow hearings in camera.

The rules of provision, custody, and inheritance rarely encompassed the complexity of people’s lives, leading to differing decisions on the local and national levels. Illegitimacy complicated the rulings for judges, magistrates and juries, but Parliament’s efforts in accommodating it were particularly unimpressive. The Legitimacy Declaration Act of 1857 was a good example, a highly limited measure that nevertheless illustrated the messy personal issues with which illegitimacy was entangled – clandestine marriages, family secrets, and adultery.

Legitimacy declaration suits

The English law of marriage followed canon law in its acceptance of clandestine and irregular unions in the eighteenth century. Though Rebecca Probert has argued these marriages were uncommon and not considered full marriages, enough questionable unions occurred to keep the courts busy in sorting out the true marriages from the unsanctified ones. In order to put an end to the confusion, Parliament passed the Hardwicke Marriage Act in 1753. No one under twenty-one could marry without a guardian’s consent. Only marriages officiated in registered Anglican chapels, on certain days and times, and preceded by a reading of the banns, were valid. Couples could buy a costly licence to avoid calling the banns, but otherwise had to follow the rules. Whether the Act was a break with previous customs or not, its passage made the definition of marriage clear in England. In contrast, Scotland continued to recognise clandestine marriages, thus the popularity of Gretna Green as a destination for eloping couples.³

The difference in the law between Scotland and England was crucial. Not only were more types of marriages valid in Scotland, but the marriages of illegitimate children’s parents legitimated them north of the border. Thus, inheritance suits occurred because of differences in nationality, the most prominent of which was Shedden v. Patrick. William Shedden was a Scot who went to Virginia in 1764 to make his fortune and who inherited properties in Scotland in 1770. He later had two children with his lover, whom he married a week before his death in 1794. Shedden’s children argued they were legitimated, because Scots law legitimated children upon the marriage of their parents. In contrast, their cousins asserted that the Sheddens were American and followed English common law. Decades of litigation followed, including three appeals to the House of Lords, the last of which ended in 1869. At each stage, the courts decided for the cousins, basing the decision on nationality. William Shedden was American, so his children were not legitimated and could not succeed to British property.⁴

The Legitimacy Declaration Act (LDA) of 1858 was a result of Shedden; it gave petitioners a way to avoid the decades of litigation that had beset the Shedden/Patrick family. The law allowed petitioners to ask for clarification of their legal statuses, usually by getting a declaration on the validity of irregular nuptials. According to the law, a ‘natural born subject of the Queen’ could petition the court to confirm the marriages of parents or grandparents. Petitioners only asked for clarification of their own status, and, technically, the act only declared someone legitimate or declined to do so; it did not determine illegitimacy. All the same, a failure to get a legitimacy declaration could damage property claims. Passed in the aftermath of the Matrimonial Causes Act of 1857, these suits also clarified the status of ‘spurious’ children in divorce suits. LDA cases originated in the divorce court, so they were expensive. Thus, they usually involved substantial estates, and, in Jenny Bourne Taylor’s words, ‘exceptional or anomalous circumstances’.⁵

Not surprisingly, the courts heard few of these cases, and the majority were simple declarations of legitimacy. Of the forty-six cases in my database, thirty-one succeeded in gaining a declaration, nine failed, and six had no recorded outcome. At the least, then, the success rate was 67 per cent; without the six unresolved cases, it was 77.5 per cent. Of the forty-six, twenty-two were brought over the validity of marriages of parents or grandparents, including four Gretna Green elopements, two Scots irregular weddings, and one common-law union in the United States. A further thirteen involved accusations of adultery and were coupled with divorce petitions. The remaining nine cases involved a miscellaneous assortment of circumstances, the most common of which was an accusation that a child was born before the marriage of the parents. Since most of these suits were successful, plaintiffs were confident before they filed their cases. Judges did not invalidate marriages without strong evidence to the contrary. In doing so, they included as many children as possible in the legal family.

The majority of cases in which a child failed to get the declaration involved accusations of adultery. Of the nine failures, five were adulterous, while only two involved pre-marital births.⁶ The suit of Burnaby v. Baillie (1889) began when the Reverend Evelyn Burnaby divorced his wife in 1886. He went to court to have his eldest daughter declared legitimate in order to cut out the younger two children, whom he did not believe were his. The court agreed, making the declaration for Kathleen only.⁷ The common law presumed that the father of a married woman’s children was her husband unless the husband did not have access to his wife during the conception period. As a result, adultery cases required rehashing the divorce evidence. T. B. Bosvile’s wife, Elizabeth, eloped with her lover in June 1884, and she had a child the following April. The boy was born barely outside the gestation period, so the trial delved into the mother’s correspondence. Since Elizabeth wrote letters indicating her second child was her lover’s, the younger son’s claim to legitimacy failed.⁸

The cases involving pre-marital births where the children failed to get the declaration of legitimacy were Shedden (above) and Watson v. Attorney General (1865). In Watson, the plaintiff was the son of Arthur Watson and his parents’ servant, Elizabeth Bell. When Bell became pregnant, the two eloped to Gretna Green. The point of contention was the date of the elopement. Their son, Arthur, argued that the marriage took place before his birth, while other family members insisted the marriage took place afterward. Since Elizabeth had filed for an affiliation order against Watson, the Attorney-General had a strong case, yet the jury found for Watson. On appeal, the judges decided that the decision went against the evidence and ordered a re-trial. Arthur’s barrister insisted the affiliation order was not genuine, but this time the jury found ‘that the petitioner was born before his parents were married, and that he was, therefore, illegitimate’.⁹

Taylor is correct that the LDA had a limited impact. Going to court was not a viable option unless a large inheritance was at stake. And most applicants had strong cases or they would not have tested their legitimacy publically. Thus, even in cases with accusations of adultery, most of the petitioners were declared legitimate (eight of thirteen, or 61.5 per cent). These cases were examples both of how the civil law included or excluded children from the family, and also how frequently family secrets complicated legal proceedings. Indeed, the tendency to secrecy in illegitimacy meant that some children sued when they did not have good cases. The most famous failed LDA trial, heard in 1910, involved Henry Sackville-West, son of Lord Sackville and his long-time mistress, a Spanish dancer. Upon finding his birth certificate that indicated he was legitimate, Henry embarked on a long campaign to take the estate from his cousin, Lionel, a suit made all the more acrimonious because Lionel was married to Henry’s older sister, Victoria. The case failed when Henry could not refute evidence that Pepita de Oliva, his ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Introduction
• 1 ‘Strangers in the blood’: custody, inheritance, and taxation
• 2 ‘The workhouse or death’: maternal crimes and illegitimacy
• 3 Part of the family? Non-maternal carers in the criminal courts
• 4 Courts of last resort: affiliation and the poor law
• 5 Simple acts of justice: illegitimacy and law reform
• 6 Love and loss: family and illegitimacy
• 7 ‘Passed from hand to hand’: child circulation
• 8 ‘Bad blood’? Social discrimination
• Conclusion
• Bibliography
• Index