Illegitimacy in English law and society, 1860–1930 9781784997441

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Illegitimacy in English law and society, 1860–1930

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 Altrincham Street, Manchester M1 7JA www.manchesteruniversitypress.co.uk British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data applied for ISBN 978 1 7849 9260 6 hardback First published 2016 The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guara­ntee that any content on such websites is, or will remain, accurate or appropriate.

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Contents

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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

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79 109 146 179 204 238 266

Bibliography Index

276 292

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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

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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

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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

Introduction

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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,

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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

Introduction

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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. P ­ oor-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

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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,

Introduction

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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’.

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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

Introduction

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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

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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. 2 Examples 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). 3 I 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

Introduction

11

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. 4 See, 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. 5 For examples, see endnotes 15–20, below. 6 J. 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). 7 G. 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).

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Illegitimacy in English law and society, 1860–1930

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. 9 J. Keating, A Child for Keeps:  The History of Adoption in England, 1918–45 (Basingstoke:  Palgrave, 2009); Cohen, Family Secrets, pp. 124–55. 10 The 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). 11 A. 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). 12 M. 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. 13 Gillis, For Better, For Worse, pp. 109–34; Rose, Massacre, pp. 22–5. 14 L. Zunshine, Bastards and Foundlings: Illegitimacy in Eighteenth-Century England (Columbus: Ohio State University Press, 2005), pp. 2–22, 133–6. 15 T. Evans, ‘ “Unfortunate objects”: London’s unmarried mothers in the eighteenth century’, Gender and History 17:1 (2005), 133–8; Gillis,

Introduction

13

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. 16 Cody, ‘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. 17 Cody, ‘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. 18 Gillis, For Better, For Worse, pp. 241–7. 19 Gillis, For Better, For Worse, p. 231. 20 Cody, ‘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 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

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15

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.

16

Illegitimacy in English law and society, 1860–1930 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

‘Strangers in the blood’

17

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

18

Illegitimacy in English law and society, 1860–1930

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 mother, was married when she lived with Lord Sackville (at that time, a younger son). His father had simply lied on the birth certificate to please his lover. The lawsuit was embarrassing to all parties, very

‘Strangers in the blood’

19

expensive, and Henry’s failure preyed on his mind enough that he later committed suicide.10 As this example indicates, whichever side won in these disputes (usually plaintiffs), their successes often meant losses for other children. For instance, in the adultery cases, the success of the eldest children meant younger siblings were adulterous and their status made public. Many children so designated were too young to know the difference, but this was not always true. In Simpkins v. the Attorney-General (1872), the petitioner got his declaration at the expense of his father’s second family, whom the court agreed came from a bigamous union. The second family lived in one of the father’s properties in Hull; after the decision, they had to vacate in favour of the legitimate heir.11 Their plight illustrated the need of parents in irregular situations to write wills carefully. If they did not, their children had little chance to inherit, especially in the aristocracy, where the peers guarded their titles jealously. Estates and wills An illegitimate child could not inherit a title; this remained true even after the Legitimacy Act of 1926. Conservative by nature, the Lords sided with those who had long held titles rather than challengers. Most suits involving titles and estates began because of disputed marriages, the majority of which occurred decades earlier. The 1863 Breadalbane Peerage case involved a member of the collateral branch of the family insisting that his uncle, who had inherited in 1812, was illegitimate because his parents’ marriage was invalid. The Lords found for the uncle, arguing that the evidence was not strong enough to upset the presumption of marriage.12 Similarly, in 1872, a descendant of a younger Vane son tried to say that the inheriting branch of the family came from a son born before his parents’ marriage. In this case, an uncle sued his nephew. The marriage with disputed dates was in the 1790s, and the long reputation of legitimacy aided the defence.13 As with the Sackville LDA case, these disputes were not only humiliating, but costly. The Breadalbane case stretched from 1863 to 1866, the Vane case from 1872 to 1876. The most extreme example of this was a case in 1928 over the Gordon Peerage, whose evidence stretched back to the creation of the title in the 1400s. Unsurprisingly, given this length of time, the courts sided with

20

Illegitimacy in English law and society, 1860–1930

the branch of the family that had always had the title.14 Of the eighteen cases involving large estates, the courts decided with the present heirs fourteen times. The few victories for challengers had unusual circumstances, as with the 1892 trial over the estate of the Earl of Stamford. A collateral branch of the family sued the sons of the eighth earl, his children with a black woman from Cape Colony. Under African law, the children were legitimated upon their parents’ marriage, but English law did not recognise the marriage or the subsequent legitimation, so the peerage went to the collateral branch.15 In non-titled probate cases, illegitimacy was also a severe bar, because illegitimate children had no intestacy rights. In addition, the testator could not simply write a will that left the property to ‘my children’ or ‘the children of my niece’ if he or she wished them to inherit. The legal meaning of ‘children’ was legitimate children, so testators had to mention illegitimates by name. Finally, future illegitimate children were completely excluded; otherwise, the courts encouraged immorality. Relatives who did not understand these points did not have their intentions honoured.16 Many cases involved both illegitimate and legitimate heirs, and the legitimate heirs had the advantage. If any legitimate child existed, he or she took precedence. In the leading case, William Dorin left his property to his second wife and gave her the discretion to will any or all of the property to ‘our children’ or, failing a will, he left the property to ‘my children by her’. The couple had two children, both born before their marriage; Dorin also had a grandson, the product of his child from his first marriage. After Dorin and his second wife died, the grandson sued for the estate. The defence argued that circumstances indicated that Dorin meant his illegitimate children, especially the wording ‘my children by her [the second wife]’. This argument convinced the lower court, but in 1875 the Lords reversed the ruling, based on the argument that ‘children’ in legal documents meant only legitimate issue.17 Dorin v. Dorin was cited as precedent in many cases, often to the judges’ disgust. In 1878, Isaac Moore’s will left his estate to ‘all the children then living’ of his son. Because of the wording, Moore’s grandchildren were cut out by a collateral branch of the family. Vice-Chancellor Malins complained, ‘the intention of the testator to give to the illegitimate children was perfectly clear, but he was bound by the cruel and perfectly lamentable decision of the House of Lords in the similar

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21

case of Doran v.  Doran [sic]’.18 In other words, legally, Thomas’s children were not kin to their own grandfather. At times, courts’ strict interpretations of ‘children’ were not only ‘lamentable’ but perverse. William Holden wrote his will to leave property to the ‘natural children’ of Ann Wilson, his daughter, who had two legitimate children and two illegitimate ones (born after she separated from her husband). The term ‘natural child’ had referred to illegitimate children since the early modern period. Despite this, in 1896, Vice-Chancellor Hall argued that ‘the testator used the word “natural” in the sense of “natural and lawful” ’, since he assumed Ann’s father would not expect her to commit adultery. Wilson’s barrister pointed out that Holden used this language in a codicil to the will written after the two illegitimate grandchildren were born, so Hall asked for an investigation before a final ruling (no decision is recorded).19 Perhaps the judge changed his mind, but his readiness to cut out the obvious recipients of the will showed the difficulties of making testaments correctly. As the LDA cases showed, the English courts were wary of allowing children of adultery to inherit. This was understandable when the property came from a husband, but children’s illegitimacy also barred them from maternal property. Hannah Oakman married John Cole in 1815, but they separated in 1824, and John died in 1836. Hannah had lived with John Bridger Palmer during the separation and had a son she named John Bridger Oakman. Hannah and John married after Cole’s death, and Hannah inherited property from her father, hers during her life and then to her ‘children’. When Hannah died, her son sued for his share of the property, but his illegitimacy barred him, as, according to the Vice-Chancellor, ‘there was no child of Mrs. Cole living at her death’.20 Other cases involved the property of wider kin, and these too cut out illegitimates. In Stowe v. Worth, in 1871, the nephew of Jemima Briggs took her estate because he proved his uncle was illegitimate.21 According to the law, Cole had no son, and Briggs had no brother; both were ‘strangers’ with no right to family property. These cases showed the difficulties for illegitimate children throughout the period under review. All the same, of 116 will cases between 1860 and 1930, only forty-five excluded illegitimate children entirely. In fifty-five cases, the illegitimate children inherited; in eleven others, some of the illegitimate children did; and in another ten trials, the defendants and plaintiffs compromised (five cases

22

Illegitimacy in English law and society, 1860–1930

had no decision). In the majority of cases (65.5 per cent), then, the courts secured some maintenance to children born outside of marriage. In other words, over time, judges found exceptions, showing their willingness to go beyond following precedents, a tendency some openly admitted. In 1917, in Re B.  (Deceased), the judges found for an illegitimate daughter, explaining the decision by contrasting it with ‘older cases’ where ‘it was pretty plain that there was a kind of subconscious opinion that illegitimate children ought not to be favoured’; instead, they argued, ‘in the more recent decisions the tide of judicial opinion was running against exclusion’.22 Indeed, the list of exceptions was so long by the turn of the century that H. S. Theobald’s Concise Treatise on the Law of Wills (1900) had eight pages of them, and Theobald admitted that ‘it is difficult to reconcile all the cases with principle’.23 In other words, the coherence of the legal principles had disappeared. What, then, were the exceptions? First, illegitimate children could take the property if the circumstances surrounding the will showed the impossibility of legitimate children inheriting. In Re Herbert’s Trusts (1860), the testator, William Herbert, willed his estate to the ‘daughters’ of his cousin, both listed by name. These were the only children the cousin had, and he was dead so would have no more. The Vice-Chancellor thus declared that these circumstances ‘raised a sufficiently strong presumption of knowledge by the testator’ to include the cousin’s illegitimate daughters.24 Similarly, in Clifton v. Goodrun (1868), the unmarried mother of illegitimate children left her property to ‘all my children’, who were then listed by name in a codicil. The Vice-Chancellor upheld the children’s claim against their maternal grandmother.25 As long as the children were listed by name (and thus born at the time of execution), they inherited. This tenet also had exceptions, however. Courts regarded leaving a gift for future illegitimate children as encouraging immorality. The most famous precedent for this was Hill v. Crook in 1873. John Crook married Sarah Ann Hill and, after her death, her sister Mary. Though the latter marriage was invalid, John and Mary went through a ceremony in 1854 and had four children.26 In a will in 1859, her father, John Hill, left property to his ‘daughter Mary, the wife of the said John Crook’ and, after her death, to her children. Two of the children were alive in 1859, one was in the womb, and the other was born afterwards. The lower court barred all the

‘Strangers in the blood’

23

children from inheriting, arguing that the word ‘children’ did not apply to them. The Chancery court reversed this decision, saying Hill could mean no one else; they did, though, limit the award to the two eldest children. On appeal, the Lords agreed: ‘There may be a gift to existing illegitimate children as a class … No gift, however express, to unborn illegitimate children is allowed by law.’27 The court eventually included the child in the womb, but the after-born child remained excluded, since ‘it would be contrary to public policy to include him’.28 In this case, the division between siblings was based not on their status, but on birth order. As with other cases, a key point in these suits was the possibility of legitimate issue. John Harrison left his estate to his four children in 1887, including Anne Higson and her children. Anne had married her deceased aunt’s husband, James Higson, in 1881, and her father was aware the match was invalid. They had a child before Harrison made his will and two afterwards. When Anne died in 1892, the family argued over the inheritance, with some cousins trying to take Anne’s children’s share. Justice Kekewich allowed the child born at the time of the will to inherit, but ‘The claim of the after-born children [was] entirely excluded.’29 In this case, the one child who inherited saved the mother’s property for the siblings; the antagonists were the wider kin. But the differences between after-born and older children complicated the already large divide between legitimate and illegitimate offspring. To confuse the law further, judges made yet another exception, this one based on time. In 1874, Lord Selbourne, Justice James, and Justice Mellish decided that the will of James Occleston was so explicit that the court should follow his wishes. Occleston left his property in trust to ‘my reputed children, Catherine Occleston and Edith Occleston, and all the other children that I may have or be reputed to have by Margaret Lewis, now born or hereafter to be born’. Occleston had married his deceased wife’s sister, and they had a third daughter a year after James made his will. After his death, the appeals court overturned the decision of the Vice-Chancellor that had cut out the after-born child. They argued that this time delay put her in the protected class. As Mellish put it, ‘as the only children who could take were children who must have been born, or at any rate begotten, during the lifetime of the testator, his lordship was of opinion that it did not infringe against any rule of public policy’.30 In a case in the same year, the Master of the Rolls agreed. Mary

24

Illegitimacy in English law and society, 1860–1930

Goodwin, who had married her deceased sister’s husband, left her property to her ‘husband’, and then to ‘all and every my children and child by the said Richard Perkins’. The husband inherited the property, since Mary died in 1860, though not before she had had two more children with him. The court allowed the two after-born children to inherit from Richard because they had gained the reputation of being his children since Mary’s death.31 Case law was also inconsistent on children who were in the womb at the time of the will’s writing or the death of the testator. A  gestating child could not have gained the reputation for being the child of its parents. But in Hill v. Crook, the child in the womb did inherit, and authorities differed on the suitability of including them. As Wilfred Hooper put it, ‘A bastard en ventre sa mère clearly cannot gain a name by repute … but there is nothing intrinsically impossible in doing so.’ Men could, for instance, acknowledge paternity by making an agreement to support the child after birth.32 In Ebbern v. Fowler (1909), the grandmother of the child left a settlement for her daughter’s children; at the time the settlement was executed, her daughter was pregnant with the child of her ‘husband’, her deceased sister’s widower. Since this child was the only one living at his parents’ deaths, and thus the only one who could possibly inherit, the Court of Appeal awarded him the estate.33 Though not the norm, these cases show the exceptions within exceptions that made the law of illegitimacy such a minefield. A second major set of reasons why illegitimates were included in wills involved the issue of domicile. If a child was born elsewhere, or if his or her parents had a domicile in another country, and in that country the marriage was valid and had legitimated the offspring, then English courts might allow legatees to inherit. In 1878, Rachel Goodman, whose domicile was English, died. She left her money to her niece who had predeceased her, so the property had to be divided between her next of kin. All of her siblings were dead, though two brothers, Isaac and Lyon, had living children. Isaac’s children, born in wedlock, were unproblematic. Lyon’s children, in contrast, were mostly illegitimate, but he resided in Holland for much of his life, and the mother of his children followed him there and had another daughter, Hannah, in Amsterdam. The couple then married and had a final daughter, Mary. Isaac’s children born in England did not sue, but Hannah and Mary did. The Master of the Rolls excluded Hannah, but the Appeals court overruled him, since

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25

Hannah was legitimated under Dutch law.34 Thus, the two children who could plausibly claim to be Dutch shared the inheritance with their cousins. The ruling in Re Goodman’s Trust influenced subsequent decisions. A few months later, in Forrestier v. Buddicom, the domicile was French, but the principle was the same. Harry Lindo, who died in 1878, left a life interest in his estate to Pierre Forestier and his wife and then to their children. Their eldest son was born before the marriage, but had been legitimated by the marriage of his parents. Under the law of the legatee, he was legitimate, but under the law of the testator, he was not. Vice-Chancellor Hall cited Goodman in deciding in favour of the son.35 Domicile cases were further complicated when they involved parts of the Empire. In 1894, the Judicial Committee of the Privy Council had to decide a case from Cyprus that involved a Greek couple living in a Muslim area. The testator had married the mother of his children, which legitimated them in Greek law. The wider kin argued that they had to go by Islamic law, which gave the children only their share of the widow’s third. The widow won at the district court, but lost at the supreme court in Cyprus, so she appealed to the English imperial court. The judges declared that the family lived under Christian law, so the widow and children took the property.36 In short, foreign domiciles gave judges flexibility in awarding estates. Because the two major exceptions drew such careful distinctions, the courts often included some illegitimate children and not others. Most divided decisions involved after-born children or those in the womb, but others split legal hairs in peculiar ways. In Edmunds v. Fessey in 1861, the testator left his property to the children of his cousin, Thomas Holyoake. Holyoake had an illegitimate son and daughter and then two legitimate sons. The testator’s will mentioned Holyoake’s ‘sons and daughters’. The barrister for the illegitimate daughter pointed out that he had to have included her, since she was the only daughter. He could not, though, make the same case for the illegitimate son, so the court gave the estate to the two legitimate sons and the daughter. Sir John Romilly admitted that the decision was ‘anomalous’. He preferred to give the estate to all the children, but ‘the rule of interpretation is too strong’. In this case, the court drew two lines – between legitimate and illegitimate, and between the two illegitimate siblings.37

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Illegitimacy in English law and society, 1860–1930

In short, odd quirks of fate determined whether or not an illegitimate child inherited. Ann Eccles was aware that one of her sons, William Forster, was the father of an illegitimate daughter, product of his adultery with a married woman. He later married his lover, but the marriage was bigamous, since her husband was still alive. Another daughter was born after the marriage. Eccles wrote her will to include Mrs Bennett, the child she knew to be illegitimate, but she did not realise that Forster’s marriage was invalid and so did not list the younger daughter by name. As a result, Bennett got the entire inheritance in 1897. Though equally illegitimate, the daughters were unequally protected in the will.38 In an 1891 case, the judge had to decide if an inheritance ‘to all my brothers and sisters’ included an illegitimate sister. As the testator had only one legitimate and one illegitimate sister, the judge determined that the testator’s use of the plural allowed the illegitimate sibling to take part.39 Judges justified these decisions both by the intentions of the testators and by the desire to include any children they could. Another way they could encourage this was to urge the parties to compromise. In 1867, the defendants challenged the validity of the 1866 will of William Garside, who died with two illegitimate children. The 1866 will did nothing for them, but the executors and defendants all agreed to set aside sums to support them. The defendants then accepted the 1866 will. This agreement was easy because ‘the plaintiff had always intended to make a provision for the children, and … the defendants had no interest in contesting the will’.40 In the 1890 case of John Jeffree, his children with his first wife sued over his will, which gave the bulk of the estate to his second ‘wife’ (a cohabitee) and their children. The legitimate children challenged the will on the basis of insanity. The two sides settled for a compromise will (from 1883) that gave property to all.41 When the parties did not compromise on their own, judges encouraged them to do so, again showing judicial activism. In a probate suit from 1880 over the Birchall estate, the testator left most of his money to his mistress and their two children, leaving only an annuity of £400 to his widow. Unsurprisingly, his widow protested, especially as much of the husband’s money was her inheritance of £45,000. To avoid a long suit, the mistress and the widow agreed that the widow should receive £23,000, while the remaining part of the estate, worth £27,000, supported

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the children. However, all illegitimate children were wards of the court, and their legal advisors did not accept this. They took the case to the Court of Appeal, where the appeals judges decided the judge, Malins, could not make an agreement without the guardians’ consent. Malins, though, was a Chancery justice, so he removed the troublesome guardians and appointed new ones. He then reissued the compromise, saying he ‘considered it such a monstrous piece of injustice that the bastard children should have the bulk of the wife’s property that he suggested a compromise, and the more he reflected upon the terms … the more satisfied he was that he had acted wisely’. With no one left to protest the agreement, that compromise held.42 As this case indicates, judges wanted to enact the testators’ wishes, to follow the law, and to reach equitable settlements; unfortunately, many times these goals clashed. Judges, especially in the lower courts, openly criticised precedents that excluded these children and found ways around the law. As a result, though illegitimate children often lost out in part or in whole, they could inherit under some circumstances, and partial victories and compromises added to that total. Still, one of the costs of having children outside of wedlock was the difficulty of providing for them after death. Of course, since English law had few limits in how testators disposed of their property, illegitimates could, in theory, inherit as much as any other legatee. But the general rules of inheritance for family excluded them. Moreover, when illegitimate children did inherit, the government assessed a higher estate duty on them; they paid 10 per cent, the rate for all ‘strangers in the blood’.43 Some paid without protest, but others expressed outrage at the unfairness. H. J. Mark complained in 1909, ‘I write to ask if it is a fact that if illegitimate children are left money by their Parents that in addition to the Estate Duty payable they must also be fined 10% of the amount left for being by no fault of their own illegitimate? If so it is far from justice to my humble way of thinking.’ Mark and his brother Arthur were illegitimate, but their brother Frank was born after the parents’ marriage; thus, two of the brothers paid extra, while one did not. The Marks asked for a rebate, but the Inland Revenue (IR) insisted, ‘There is no power to forego this.’ The estate was worth £1,500, so the brothers had to pay 10 per cent on £1,000 of it, and also 3 per cent estate duty.44

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Indeed, officials did not lessen the amount except if the child was possibly legitimate, no matter how severe the financial necessity. Margaret Ellen Girdler left the children of her second, illegal marriage an annuity of £200. In 1910, the children’s guardians asked for help with the tax, since the funds were not sufficient to educate them, but the IR declined to help.45 Even working-class applicants got no aid. Lizzie Collins had been brought up in the workhouse in Banstead, the illegitimate child of deceased parents. She became a servant, and in 1910 her grandfather left her £200. Collins’s employer, Fanny Martin, helped her establish her birth, but the guardians insisted on being repaid for her keep. If the State took a further 10 per cent, she would have little left. Martin pleaded that ‘the grandfather left her £200 as his grandchild not as a stranger’. Nevertheless, the IR replied that it had ‘no power to grant any indulgences’. Between the demands of the poor law and the IR, Collins received almost nothing.46 The cases were especially difficult when laws of exclusion interacted with the desire for secrecy. Alfred Palmer discovered his illegitimacy only after the death of his mother in 1914, when he found his parents’ marriage certificate. As his lawyer explained, ‘This fact had never been mentioned to anyone by the Testatrix and had been concealed from every member of her family.’ Alfred’s father had died in 1898, and Alfred had not paid the 10 per cent tax. He thus owed over £800. Alfred had three children in school so could not afford the new financial strain. Nevertheless, the IR did not alter its demands.47 In the estate of George Hardy, the family paid the wrong amount in 1877, only to discover in 1910 that the legatee, Ann Outram, was illegitimate. Though the estate was small, the interest over a thirty-three-year period amounted to £87, a ‘considerable hardship’, since her family was poor. In recognition of their poverty, the IR waived the interest, but the family had to pay the 10 per cent tax immediately.48 Children who knew they were illegitimate may well have had parents who prepared them for the added expenses. But these were primarily educated people who knew how much extra money they paid through no fault of their own. Their protests were eloquent statements about the pain of exclusion. E.  W. Mernock was the product of his mother’s adultery, his illegitimacy declared during her husband’s divorce action. When his mother died, she left him £7,500–8,000, upon which he had to pay 10 per cent tax.

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He complained that the laws denied ‘the natural relationship’ of mother and child, and he bitterly resented paying ‘the death duties in force for total strangers’. Some lawyers and judges agreed with him. W. P. W. Phillimore, in the early twentieth century, insisted that the tenet of filius nullius was wrongly applied to taxation, a result of ‘foolish arguments’ of judges ‘who deduce their theories from words and phrases, rather than from plain facts’. Nevertheless, the ‘natural’ relationship between a mother and child did not overcome the law’s insistence that illegitimate children belonged to no one.49 Estates of illegitimates The lack of a legal family also caused problems when illegitimates left property to others. A will solved the difficulty, as long as the legatees were not also illegitimate. But when an unmarried, childless illegitimate person died intestate, the government intervened in probate, since the money went to the Crown. Relatives challenged this, but rarely succeeded. Out of forty-nine cases in this situation, the relatives inherited in eight, the Crown took the money in thirty-one, and the testator turned out to be legitimate in six others. The last four cases were compromises. The Crown had great advantages in these cases; many times, the trials were formalities. In others, the relatives vigorously contested the case, either by producing a will or trying to prove the testator was legitimate. Judges and juries left the property to family if they could. One reason wills might not be valid was insanity, but that did not stop the court from accepting them. Edward Redman had made a will, but he was intermittently insane at the end of his life, so the Queen’s Proctor intervened. Redman’s doctor testified that his patient made the will during a lucid interval, so the jury found it valid, leaving his estate of £4,000–5,000 to his family.50 Mutilated wills were also problematic. In 1908, Harriet Baker was a widow without children when she died. Though she had made a will, she ripped it into several pieces ‘when in a temper’, so the Crown challenged the probate. Witnesses testified that Baker kept the pieces and continued to call them her will, so the jury ‘found that the will had not been revoked’.51 The Crown took the estates in cases of fraud or undue influence. In 1861, Sophia Bellis’s estate went to court because the legatee was her doctor, and he had pressured her to leave him her

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money. He also lied about his past, so the jury decided ‘the witness was quite unworthy of credit’. Not surprisingly, the judge set Bellis’s will aside, and her estate of £3,000 went to the State.52 In Whitaker v. Davies in 1868, George John Chamberlain’s desire to leave his £140,000 estate to his sister was challenged. Chamberlain was illegitimate, as was his sister and her daughter, his legatees. He signed a will on his deathbed, and the Crown contended that he was too ill to know what he was doing. A family friend admitted to helping him make the mark, in order, she claimed, to follow his wishes. Given this admission, the jury revoked the will.53 The other way that relatives lost was if the deceased had not made a will or had made one that had become invalid. In these cases, the relatives tried to prove the testator was legitimate. This did work in six cases, but failed in many others. Thomas Pemberton left a fortune of £700,000 in 1885. He was illegitimate and had made a will leaving his property to his wife and children, but all had predeceased him. His brother Edwin sued on the grounds that Thomas’s illegitimacy was not proved, to no avail.54 The niece of Henry Maudsley fought for her uncle’s estate of £120,000 on the same argument, but she could not prove his parents were married nor could she find his birth certificate. Family tradition held that he had been born before his parents’ marriage; without proofs to the contrary, she had no case. Though the Attorney-General compromised with her, granting her £15,000, this was a far cry from the total.55 Some of these claimants could support themselves adequately without the inheritances, but others faced destitution. Mary Wilson lost her son, the product of her cohabitation with a wealthy man, in 1887, when she was fifty-eight. Her partner had willed a substantial sum to the boy, but when the latter died intestate, the Crown took the bulk of the £7,000–8,000 inheritance. The Treasury returned Wilson an allowance of only £25 a year. Her grandson (also illegitimate), sixteen, got £100 a year as his father’s heir, but he lived with his aunt. As a result, Wilson fell into debt and tried to commit suicide. The magistrate asked if she could not petition to have the allowance increased, and her barrister explained that he had tried to do so. Wilson faced a poverty-stricken old age, all due to her son’s lack of a will.56 As this last example showed, in many cases in which the Crown took the property, the Treasury remitted parts of the estates back to

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relatives who would have inherited had the deceased been legitimate, especially parents and siblings. In this way, some recognition of the claims of the nuclear family seeped into the law, but extended kin could only apply if they had been dependent on the deceased or had supported him or her. Generally the amount returned to relatives was between three-quarters and half of the estates. Parents and siblings got routine consideration. Margaret Thomas, product of a marriage between a man and his deceased wife’s sister, died intestate in 1911. The Crown took its share and then passed the residue to her ‘natural father’.57 Similarly, Agnes Jane Ryder’s estate of £239.8.10 was divided between the Crown and Ryder’s ‘natural brother’, Andrew.58 During the First World War, complications periodically arose. In the case of George Schneider, a German national, the Treasury had to decide how much of his £1,100 estate to grant back to his wife and their two illegitimate children, aged twenty-one and nine (the parents married after their births). Susannah Schneider lost her British citizenship upon marriage to a German, and though the children were born in Britain, the family had been treated as enemy aliens during the war. Nevertheless, the officials tried to determine an equitable settlement. Although ‘C. S.’ pointed out that the children, being illegitimate, were entitled to nothing, he agreed that the widow and children had ‘a strong equitable claim’. As a result, the Treasury Solicitor gave one-third of their grant to the twenty-one-year-old child and two-thirds to the widow, half of her share being held in trust for the nine-year-old.59 A complicating factor for the Treasury in returning property to relatives was that illegitimates often lived with extended kin. In these cases, the Treasury explored the histories of the deceased to make fair decisions. Frank Eastwood was the child of Ann Eastwood and George Broadley. When he was six weeks old, his mother took him to George’s home, and his grandfather, James Broadley, then reared him. According to the files, ‘He was in every respect considered a member of the family of James Broadley the elder and by the children of the latter was always treated as a brother.’ Frank was, in fact, closest to his paternal uncle James, with whom he later lived. Frank had half-siblings, born to his mother after she married, but he was not as close to them. Thus, the Treasury divided the residue of the estate equally between his uncle and his half-siblings in 1917. In other words, the uncle who

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had treated him like a brother got the same treatment as his actual half-brothers and sisters.60 A final complication in testator cases, again, involved secrecy, as some relatives were unaware of their illegitimacy. In these instances, great tact was necessary. An example was the case of Henry Santer, a sailor who died intestate in June 1876. Both Henry and his sister Fanny were illegitimate, but Fanny did not know this. She petitioned to administer his estate in June 1876, with the assistance of R. G. C. Hamilton. (Fanny was a nursery maid, and Hamilton was related to her employer.) The amount was only £35, so the Board of Trade urged the Treasury to grant her the property. However, Fanny’s status was a serious bar. Hamilton, thus, wrote to a friend, T. H. Farrar, in July 1876: ‘I am in despair about the poor nursery maid … she does not even now know she & her brother, the seaman, were illegitimate, & my sister-in-law is … anxious she should be kept in ignorance … It is a horrid mess, and I  can only hope your ingenuity & kindness may see a way out of it.’ The Treasury was uncooperative, since as ‘both the Decd and the Applicant are Illegitimate … no-one has a legal claim on the Estate as next of kin’. But the relationship between Hamilton and Farrar worked in her favour. On 20 November 1876, the Board granted her the residue of her brother’s estate.61 Unless poor relatives had good fortune, they not only failed to take the property but had their illegitimacy exposed in the process. Changes in the twentieth century both improved and complicated this system. The Legitimacy Act of 1926, discussed in Chapter  5, took some people out of the category of illegitimate intestates, thus reducing the amounts awarded to the Treasury. Unsurprisingly, given the budgetary strains of the 1920s, bureaucrats tried to regain some of the income. One official, A. D. Brown, suggested tightening the rules in 1928 to include only those who were clearly dependents or had a close relationship with the deceased. He also argued that the Crown should then keep a higher percentage of the estates.62 The Treasury appeared to follow this stricter line after 1928. Henry Rowland Tisdale had four families of cousins, but no parents or siblings, when he died in 1922, leaving close to £30,000. After five years, cousins were the only claimants, and Brown argued that the Treasury grant incomes to only two of them, Minnie Jacobs and William Tisdale. Jacobs lived near Henry in Leeds and got support from him, while William had worked for Henry before he went

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to war in 1915. Eventually, the Crown gave shares to both, but kept three-fourths of the estate.63 Brown listed other cases where he urged the government to be less generous. Amelia Sparey left £467 when she died without a will in 1928. Brown argued that only one male cousin, who was ‘on most affectionate terms with her’, should get a rebate. Similarly, Herbert Wilson’s estate of £638 was claimed by the widow of his biological uncle and some first cousins, but Brown argued only one cousin deserved the money.64 Thus, after 1926, parents and siblings still got consideration, but distant kin faced greater scrutiny. Since illegitimate children often lived with wider kin, these changes potentially cut out many people. Trials in the civil courts over wills and estates showed the difficulty that illegitimacy caused. Unless parents or kin wrote wills carefully, they could inadvertently disinherit all or part of their relatives. And the illegitimates themselves, if unmarried and childless, had to leave a will or their property went to the very state that branded them ‘unlawful’. These problems stemmed from the legal definition of ‘children’. In common speech, a person’s ‘child’ included adopted, foster, and illegitimate children. But in legal language, a ‘child’ referred solely to one born in wedlock. The terms had a built-in hypocrisy, since marriage, even one day before the birth of a child, wiped away the stain of bastardy. In other words, the difference could be as short as twenty-four hours between being an actual child and a ‘putative’ one. Legal words erased children from the family, hiding them as effectively as their parents’ silence often did. Indeed, the silence colluded with the law to make inheritance difficult; some testators could not bring themselves to call their children illegitimate, and others hid the truth from relatives, who then unintentionally excluded those children in bequests. As a result, some children semantically disappeared from the family tree. By at least the 1880s, judges and juries recognised the unfairness of these rules and challenged them whenever possible. The incoherence of the law worked in favour of children of unwed parents, and many commentators approved of judicial activism on this issue. For instance, Sir Henry Bargrave Deane, a conservative judge of the probate and divorce courts from 1905 to 1917, insisted that inheritance between mothers and future illegitimate children was not ‘contrary to public policy’. Both The Times and the Manchester Guardian referred to this declaration when reporting his death in 1919, as an example of his ‘passion for common sense and humanity’. Both also

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argued that he was ‘right in morals where he was wrong in law’.65 Unfortunately, despite the increasing number of people who supported such ‘common sense’, the Lords remained firmly opposed to substantive changes, so courts could only manoeuvre within strict limits. Custody and guardianship Custody was another way illegitimate status was anomalous. Technically, an illegitimate child had no relatives, and therefore no one had custody. English statutes, though, made the mothers responsible for supporting these children, so granted mothers the corresponding right to custody. The courts did not do this to reward the mother, but ‘in order to enable her to discharge the duties which the law imposes on her in respect of the infant’.66 When custody came into dispute, equity courts set down a preference for the mother, then the father, then the maternal relatives. Only Chancery courts could name formal guardians of children of unwed parents, though, and those judges primarily considered the financial and moral welfare of the child rather than emotional ties.67 One sign of the difficulties for these children was that disputes over custody were not common; I identified only fifty-three. Biological mothers were litigants in thirty-three of these. Mothers won outright only nineteen times (57 per cent), mostly because eight cases did not have a recorded verdict or were compromised (the winning percentage rises to 76 per cent without them). Even the lower margin of victory compared favourably to fathers, who won outright only four of fifteen cases (26 per cent). Both parents, then, had difficulty asserting control over their children, but fathers had more obstacles, and mothers had a large winning percentage against fathers. In the ten cases between mothers and fathers, eight had a clear decision, and six went to the mother. In 1864, in a typical case, the father of an illegitimate infant had taken the baby away ‘on account of a quarrel’ with the mother. The judges unanimously decided that he must restore the child.68 The father’s best chance at getting custody himself was to prove the mother was unfit, but this was not easy, because both parents had transgressed sexual morality.69 Mothers also won the majority of suits against nurses or adopters (63 per cent). English law was unambiguous on this point: a

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mother could not transfer her responsibility to maintain her child to anyone, at least not until the Adoption Act of 1926. These cases came up because so many children of unwed parents lived with foster parents, wider kin, and adopters. If the mother later changed her mind about the care givers, the resulting lawsuit disrupted the child’s life. In Rex v. New and Wife (1904), the child in question had lived with her adopted parents for years; they cared for her even after her mother, Florence Smith, stopped paying maintenance. Smith later married and wanted to send her twelve-year-old daughter to a boarding school. In response, the News offered to send her to a day school at their own expense, and the girl asked to stay with her foster parents. Despite this, the court argued that the mother’s right to decide the education of her illegitimate child was supreme. Smith was respectable, so the court found no reason to relieve her of custody. The News appealed, to no avail.70 The main hope for adoptive parents was to outspend a poor mother or to stress the mother’s immorality, tactics that were most effective if they had cared for the child for a long time. In Ex Parte Margaret Rees, the mother of the child, Elizabeth Rees, had given her baby to the adopters when Margaret was eleven weeks old, and the girl had stayed there for eight years. The mother took the child away in September 1872, and the adoptive parents then kidnapped her back, so the mother went to Chancery. The adoptive parents, the Lovells, claimed that Rees was immoral, since she was married to one man but living with another. In the end, the case turned on the fact that Rees had no proof that the child was illegitimate. Justice Quain decided that Elizabeth’s estranged husband was the guardian. All the same, Quain added that ‘he certainly should not make an order to deliver the child to the mother, who was now living with another man’. Thus, a mother living in adultery might lose her custody rights to her illegitimate child, though this case was an exception, not the rule.71 Mothers battled wider kin for control of their children seven times. In five of these, the relatives acted as foster parents, so the issues were comparable to those against nurses. Again, mothers’ winning percentages were high  – they won in all five of the cases with a clear resolution. In Ex Parte Emerson, the mother of a two-year-old girl sued her aunt for custody. In February 1894, the mother had married the father of the child, but she asked her aunt and uncle-by-marriage to care for the infant born previously

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to the union. She signed an agreement to ‘give up absolutely to John and Mary Hopkins my illegitimate child Susan’. Within a year, she changed her mind because the father wanted his daughter with them. The Hopkins argued that the mother was unfit, but Justices Wills and Wright ignored this accusation because the father was a member of the Medical Staff Corp. Indeed, the judges thought it was ‘to their credit’ that the biological parents wanted their daughter. Susan went to her parents, because, as Justice Wright put it, ‘the mother has a natural right’ to her illegitimate child.72 When giving fathers custody of legitimate children, judges asserted that children’s best interests were met by the parent who could provide for them. In the case of illegitimates, mothers had custody rights without financial resources. This was partly the desire to make women accept responsibility for their ‘falls’, and also the belief that a mother was the obvious guardian for fatherless offspring. But mothers’ rights were not absolute, especially as they needed help providing, and the longer children lived with adopters or kin, the better the latter’s chances of keeping them. Moreover, judges acknowledged the roles of kin in matter-of-fact ways, accepting the emotional connections of both nature and nurture. Illegitimates lived in a wide variety of situations, and custody law adapted to include them. Interestingly, the preferences of the court followed the usual pattern of care for these children. When mothers did not give direct care, their families stepped in, and maternal relatives figured in fifteen cases (seven against mothers). In seven of the eight other cases, the mothers had died, and maternal kin had a high rate of success; courts regarded them as normal successors to the mothers. Technically, the father had precedence over the mother’s relatives, but maternal kin won against the father in the only case with a recorded resolution.73 Maternal relatives also succeeded against adopters. In In re Carey, the mother of the illegitimate girl in question had given her child to foster parents. She lived with a man (not the father of the child) for several years, so was not ‘fit’ to have custody. In 1880, she asked for the child’s return, but the adopters refused. Rose then persuaded her sister and brother-in-law to sue for custody instead. The judges awarded the girl, now seven, to her aunt, explaining that a ‘blood relationship did give [them] the preference as to the custody of the child over ordinary strangers’. In re Carey did not turn on how long the child had lived with her adoptive parents

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but on the respectability of the maternal kin. Since the aunt and uncle could offer a settled home, they won.74 Judges favoured maternal kin even over the fathers of the children in certain circumstances and regularly over ‘ordinary strangers’. Equity courts and summary jurisdictions showed a marked preference for grandparents and aunts in particular. As with laws giving mothers custody, these moves were motivated by a desire to find someone to care for the child, but the result was that these children gained family members. As long as they were willing to fight, grandparents and aunts had success rates comparable to mothers. Still, the number of children with foster parents showed the makeshifts of the poor in rearing youngsters. Single mothers gave their children to others to rear, reclaiming them only if they married or become financially stable. When wider kin or adopters refused, the courts had to sort out the disputes. This economy of makeshifts was necessary because of the real oddity of these children’s legal existence – the lack of paternal kin. The absence of fathers in custody disputes related to their tentative connection to children born out of wedlock. Even if the father eventually married the mother, the child was not legitimated, and its legal surname remained its mother’s maiden name. As a result, for most of this period, a man who fathered a child out of wedlock was only the ‘putative’ father or stepfather.75 Unsurprisingly, then, fathers were involved in custody suits only fifteen times. Eight of their suits were with the mothers, where, as stated above, men came off poorly. Fathers fought for custody three times against the local authorities, once against a stepfather, once against maternal kin, and twice against nurses. Over all, fathers had a poor winning percentage. At all levels, judges had little respect for men’s claims, especially if the men were inadequate providers. A man who refused to marry his pregnant lover had already shunned his responsibility and forfeited much of the good will of the court. Judges also assumed that children needed women nurturers and favoured men who had daughters or sisters to help. Ironically, in these instances, courts used the ‘best interests’ of the child against fathers, siding with foster parents and the State when necessary. Fathers succeeded most often when they had the mothers’ help. If a man later married the mother of his child, he had a strong case against nurses or wider kin. A  woman could also name the child’s father as the guardian in her will. Technically only the Court

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of Chancery could do this, but legal declarations of the mothers’ wishes gave fathers leverage. In a case in 1895, May, the girl, was living with her aunt and grandmother who refused to give up custody. The father, bolstered by the deceased mother’s written preferences, got a writ of habeas corpus, and eventually Hannah Rye, the grandmother, had to relent. The mother’s support, as well as the rules in equity, made this victory possible for the father.76 Custody cases of illegitimate children again show the ambiguities of the patriarchal law system in dealing with ‘fatherless’ children. For one thing, courts preferred blood ties; in this way, they followed the family arrangements of most children of unwed parents. For another, the law’s privileging of maternal rights over paternal ones offered an alternative to traditional legal assumptions. Many of the same judges who asserted that illegitimate children’s mothers were their ‘natural’ protectors eschewed these arguments when the children were born in wedlock. Though seemingly inconsistent, these decisions followed the rule that providing was the key to custody. The effectiveness of the high courts in policing custody suits was limited, as most parents could not afford their fees. Indeed, the expense affected custody suits of illegitimate children more, since parents of illegitimates had to go to Chancery to become legal guardians. Neither mother nor father could grant guardianship with a will alone. Few could manage that expense, so much of the ‘law’ was worked out on the ground in ways that did not always match legal precedents. Lower courts’ inability to hear cases meant that whoever had the child kept him or her, including fictive kin.77 Care for children outside the ‘norm’ forced families to juggle households, move children around, and involve foster kin and adopters. Many times, the families, especially mothers, did not intend for these arrangements to be permanent, but day-to-day care built bonds between the children and their foster parents. These competing claims left the courts with difficult decisions to make, but also acknowledged illegitimate children’s family ties. Including illegitimate children: the twentieth century As the twentieth century approached, lines between legitimate and illegitimate children became less distinct. Some changes had already occurred in the late Victorian period. The Small Intestacies Act (1883) and the Friendly Societies Act (1896) allowed trustees

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to distribute money left by illegitimate members to relatives who would have benefitted had the members been legitimate. The Superannuation Act (1887) did the same thing for illegitimate intestates owed sums by governmental offices. In addition, unmarried mothers could participate in the maternity benefit of the National Insurance Act of 1911, though few single women qualified. The biggest breakthrough was in 1906, when Parliament passed the third Workman’s Compensation Act. Unlike the laws from 1897 and 1900, this act considered ‘the illegitimate children and grandchildren of a deceased workman, and the parents and grandparents of a deceased workman who was a bastard’ as dependents entitled to benefits. The clause was introduced by Keir Hardie, the first Labour Member of Parliament (MP), who was himself illegitimate, born before his mother’s marriage to David Hardie (though he did not advertise his status). It passed by a large margin (232 to 81).78 These acts began the process of changing the definition of ‘children’ to include those born outside marriage. The 1906 act’s deliberate wording meant that illegitimate children’s claims were more successful in these cases than any other type of litigation. I  have ten suits involving the workman’s compensation acts between 1906 and 1930, and in nine of them, the illegitimate children got at least part of the award. Many of the cases that came to court did not dispute the right of illegitimates to participate, but were over how much income the breadwinner had provided or how to divide the assets. Those that did dispute who could inherit involved after-born children or stepchildren, and courts included as many children as possible. In 1908, the Wigan County Court awarded compensation to a posthumous illegitimate child, and the Lords upheld the decision on appeal. They did so in part because the child’s father had made arrangements to marry the mother, so clearly intended to support the boy.79 Because of the limited nature of this ruling, two more cases of posthumous children came to the Lords in 1913, and the judges interpreted the law broadly. As Lord Shaw put it, since legitimate children did not have to prove a father’s intention to support them, illegitimate children should not have to do so either. Thus, in both cases, the illegitimate dependents received compensation.80 The 1906 act was easily the most generous provision to illegitimate children in this period and nudged the judges (especially in the Lords) to including such children in the family.

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The process of expanding family for illegitimates accelerated with the beginning of a long, costly war in 1914. The War Office (WO) used pragmatism about the issue of separation allowances (and later pensions) for servicemen’s irregular families. At the outbreak of the war, the government announced that all wives of men in service would receive allowances for themselves and their children. Separation allowances covered ‘unmarried wives’ and the children of extramarital partnerships if these relationships had begun at least six months before the war. Illegitimate children, then, got allowances if they lived in the man’s home. As Probert has pointed out, unmarried partners had to pass a more stringent test to prove dependency and also got smaller sums; wives got a maximum of ten shillings, while cohabitees got, at most, seven shillings and sixpence. Still, in 1916, the government also made pensions available to cohabitees of soldiers who had died or been badly wounded, thus granting ‘unmarried’ wives ten shillings per week and five shillings for each child.81 After the long conflict ended, irregular families remained problematic. So many men lived in complicated family formations that the pension rules included numerous exceptions. A  number of ‘unmarried’ wives got pensions, either as ‘widows’ of soldiers or because they took care of disabled veterans. The Ministry of Pensions classified the recipients carefully. Women in irregular relationships were ‘Class B’ recipients (widows or mothers of the men were ‘Class A’). Children born within nine months of a disabled soldier’s discharge qualified, but applicants had to appeal for grants within seven years of the discharge. These rules made for many appeals. Henry J. Santon, a former private, lived with Ellen Parsons, and their child was born nine months after Santon’s demobilisation. Parsons received an allowance because she was caring for him (a disabled soldier) until he died in 1925. After his death, she would have qualified for a pension had she been his widow, but as it was, she was eligible only for an allowance for the child. And since more than seven years had elapsed since his discharge, she could not even ask for that. After an appeal by her MP to the Treasury, the officials, agreed to continue her allowance.82 In general, then, the Ministry of Pensions did not grant pensions to ‘unmarried’ widows, but it did give money for illegitimate dependents. In addition, if a man had a bastardy order made against him, the child received the same amount from the government after

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the soldier died. Men who got disability allowances and were later served with bastardy summonses did not get an increase to pay it, but army pensioners were not penalised for having children out of wedlock. Several local committees tried to institute lower rates of pay for illegitimate offspring, but the Ministry of Pensions forbade it until a policy could be formulated. The officials then argued until 1926 without coming to a solution; too many men lived in complicated situations to make a single policy feasible.83 The Ministry of Pensions particularly struggled with the problem of officers with two ‘wives’. A soldier got children’s allowances, but an officer’s pay was considered adequate for all. Thus, some soldiers’ families lost income when the breadwinner was promoted. To deal with this, the Royal Warrant of 1919 insisted that ‘any widow, child, or dependent of an officer promoted from the ranks during the war shall not be less favourably treated than if the officer had continued to serve as a soldier’. But how to interpret this with more than one ‘wife’? Or if the widow had some legitimate and some illegitimate children? C.  M. Wynne wrote a long memorandum in July 1920, setting out several problematic cases. The Fielding case had a widow of an officer and three legitimate children, and also Miss Cocker, a ‘Class B’ who had an illegitimate child. Cocker wanted something for the child, whom the officer had acknowledged and whom Cocker had affiliated on him. The widow got a pension and allowances for her children, but what to do about the others? Another example was the Hughes case, in which the officer left a widow with five legitimate children and Marcella Greenough, mother of his illegitimate child. Greenough claimed the man paid her £3 a week. Should the Ministry of Pensions pay for all of the man’s children? The Ministry of Pensions finally awarded eight shillings a week for all the children in these cases in 1922.84 Problems between dependents partly arose because of the government’s determination to limit support to a certain amount of money; thus women fought over small pensions in a zero-sum game. The difficulty of providing for children without a breadwinner was clear in these instances. The Ministry of Pensions received a report on a case begun in 1912, when a man had fathered an illegitimate child. He married a different woman and later went to war. When he died in 1919, his widow received a pension. At this point, the mother of the child requested support. The government granted it, but, in consequence, reduced the widow’s award. The widow then

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informed them that mother of the child had accepted a lump sum of £26 from the father in 1915. The Ministry of Pensions argued over whether such an agreement was binding. In the end, it decided it was not, since it was ‘an extremely bad bargain for the woman to make … I do not think we should be justified in holding to it’. Thus, the pension stayed as it was.85 The worst situation was for a woman receiving a pension to give birth to an illegitimate child after the death of her veteran spouse/ cohabitee. This child was not the issue of a fallen hero and was almost always a financial disaster to its mother. As Susan Pedersen has pointed out, the awarding of pensions carried with it a ‘moral test’, and if women failed, they lost their benefits. Sarah Clark, a recipient of a widow’s pension, evicted one of her tenants, a man named Strange, in 1924, and he promptly informed the Ministry of Pensions that she was cohabiting with another lodger, a Mr Tucker. Although both denied the charge, the investigation discovered that she had an illegitimate child in May 1924 (the child lived twelve hours). Clarke claimed the child was the product of a rape. Nevertheless, in July 1924, the Ministry of Pensions stopped her pension, and only reissued it in December on her plea of severe poverty.86 Rose Knight, the widow of Stephen Knight, lost her pension in 1924 because the Ministry of Pensions found out she had an illegitimate child with a married man named Porter. Rose had her pension reissued ‘on trust’ (probation) in 1925, and then directly from 1927. In this case, though, the authorities discovered that she had moved in 1934 without informing them. The subsequent investigation uncovered her living with Porter, who had separated from his wife. Unsurprisingly, the pension stopped immediately.87 Widows who had illegitimate children lost the distinction of ‘deserving’ and so did not get government help. In the immediate aftermath of the war, the government extended certain benefits to ‘unmarried wives’ and single mothers. The Maternity and Child Welfare Act of 1918 permitted local authorities to start healthcare programmes for children under five, including food and medical clinics. The guidelines specifically included illegitimate children.88 Another example was the Unemployed Workers’ Dependents (Temporary Provision) Act of 1921, which gave five shillings a week not only to a wife, but also to a woman who ‘is residing with an unemployed worker who is a widower or unmarried, for the purpose of having care of his dependent children

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and is being maintained by him, or has been and is living as his wife’. This measure, originally made for six months, stretched to six years, until the government cut benefits due to long-term unemployment. Cohabitees were not included in the Widows’, Orphans’ and Old Age Contributory Pensions Act, but the children of the couple got allowances if the woman claimed to be a ‘housekeeper’. As Probert has argued, ‘Changing the terminology allowed a veneer of respectability to be preserved while support continued.’89 Thus, the twentieth century saw widening, if uneven, support for illegitimate children. Legally, England still had far to go before the differences were erased, but the war increased the pace of change. Conclusion Civil law cases forced courts to make divisions between children – legitimate or illegitimate, but also elder and younger, acknowledged and unacknowledged, before born and after born, English and Scots, and many more. When the government was more inclusive, their prospects improved, as with veterans of the First World War or in Workman’s Compensation legislation, but provision remained a problem. Forcing a single mother to be the provider brought a host of family formations that the laws struggled to accommodate. All of these issues were further complicated by the need for secrecy, a requirement that sat ill with English legal proceedings. Illegitimate children often appeared passive and victimised in law cases. Yet the growing movement for ‘children’s rights’ had positive effects. In part because of a concern with British security, decreasing child mortality became a national goal by the turn of the century. This allowed illegitimates to take part in welfare schemes. In other words, in 1834, legislators removed much of the provision for these children, but legal changes between 1860 and 1930 returned a portion of it. In addition, judges and juries increasingly disagreed with the strictures of the law and found ways to award inheritances and pensions whenever possible. Rather than see unmarried mothers as ‘lewd’ women gaming the system, these reformers saw them and their children as victims of a legal regime that defied ‘common sense’. One reason for this change was the negative effects of illegitimacy that appeared regularly in the criminal courts. Violence and desertion cases showed that for poor illegitimate children, exclusion had deadly consequences.

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Illegitimacy in English law and society, 1860–1930 Notes

1 W. Collins, No Name (London: Penguin, 1994 [first published 1862]), p. 110. 2 J. S.  Rubinstein, ‘The law of inheritance and illegitimacy’, Solicitor’s Journal and Weekly Reporter 53 (1908–9), 827. 3 R. Probert, Marriage Law and Practice in the Long Eighteenth Century:  A  Reassessment (Cambridge:  Cambridge University Press, 2009); E.  Gorden, ‘Irregular marriage:  Myth and reality’, Journal of Social History 47:2 (2013), 507–25. 4 Shedden v. Patrick, 164 English Reports 958–980 (1858); J. B. Taylor, ‘The curious case of William Shedden and the 1858 Legitimacy Declaration Act’, Cultural and Social History 4:2 (2007), 171–2. 5 Taylor, ‘Curious case’, 177–8. 6 The final two cases were accusations of conspiracies with babies substituted for the ‘rightful’ heir or vice versa. 7 The Times (5 June 1889), p.  4. See also 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. 8 The Times (3 March 1887), p. 4; (4 May 1887), p. 5; (30 June 1887), p. 13; (25 October 1887), p. 3. 9 National Archives (hereafter NA), Court of Divorce and Probate Files, J 77/95/1253 (1864); The Times (31 July 1865), p. 11; (22 November 1865), p. 11; (25 January 1866), p. 11; (19 February 1866), p. 11; (22 February 1866), p. 11. 10 Robert Sackville-West, The Disinherited: A Story of Family, Love and Betrayal (London: Bloomsbury, 2014), pp. 210–29. 11 The Times (9 January 1872), p. 11. 12 The Times (25 June 1863), p. 9; (29 June 1863), p. 10; (30 May 1864), p. 10; (18 February 1865), p. 12; (14 November 1865), p. 7; (27 June 1866), p. 10. 13 The Times (6 November 1872), p. 11; (20 January 1873), p. 11; (16 November 1876), p.  10; (21 November 1876), p.  10; (23 November 1876), p. 11; (25 November 1876), pp.  10; (27 November 1876), p.  9-10; (30 November 1876), p.  11; Annual Register, 118 (1876), 183–91. 14 The Times (11 December 1928), p. 5; (12 December 1928), p. 5; (14 December 1928), p. 4; (16 January 1929), p. 5; (18 January 1929), p. 5; (19 January 1929), p. 4; (22 January 1929), p. 5; (23 January 1929), p. 5; (2 May 1929), p. 5. 15 Manchester Guardian (4 May 1892), p. 8; Western Mail (4 May 1892), p. 5. For a similar case, see ‘The Baralong case’, Cape Law Journal 5 (1888), 182–9.

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16 ‘Bastards as legatees’, Justice of the Peace 38 (1874), 211–12. 17 The Times (22 December 1873), p. 11; Justice of the Peace 38 (February 28, 1874), 132; 39 (December 11, 1875), 790–1. 18 Manchester Guardian (21 June 1878), p. 8. 19 Manchester Guardian (6 August 1896), p. 3; (29 June 1897), p. 8. 20 The Times (20 January 1864), p. 10; 10 Law Times Reports 16–18 (5 March 1864), quote from 18. 21 The Times (1 May 1871), p. 11. 22 Solicitor’s Journal and Weekly Reporter 61 (1916–17), 554. 23 H. S. Theobald, Concise Treatise on the Law of Wills (London: Stevens and Sons, Ltd, 1900), 5th edn, pp. 261–8, quote from p. 267. 24 The Times (10 July 1860), p. 11; 70 English Reports 545 (1860). 25 The Times (10 July 1868), p. 9. 26 This marriage had been made illegal in British law in 1835, since most in-laws were forbidden to marry by ecclesiastical rule. Any union with a deceased wife’s sister (or aunt or niece) or deceased husband’s brother (or uncle or nephew) was, then, invalid. See N. F. Anderson, ‘The “marriage with a deceased wife’s sister bill” controversy: Incest anxiety and the defense of family purity in Victorian England’, Journal of British Studies 21:2 (1982), 67–86; and E. R. Gruner, ‘Born and made: Sisters, brothers, and the deceased wife’s sister bill’, Signs: Journal of Women in Culture and Society 24:2 (1999), 423–47. 27 The Times (7 May 1873), p.  11; 6 Law Reports, House of Lords 265–86 (1873), quote from 278. 28 Justice of the Peace 41 (14 April 1877), 228–9. 29 In re Harrison; Harrison v. Higson, 1 Law Reports, Chancery Division (1894) 561–78, quote from 567–8. 30 Justice of the Peace 38 (28 March 1874), 196–7 (quote from 197); The Times (27 January 1874), p. 11. 31 Justice of the Peace 38 (8 August 1874), 500. 32 W. Hooper, The Law of Illegitimacy (London: Sweet & Maxwell, Ltd, 1911), pp. 19–20. 33 Solicitor’s Journal and Reporter 53 (1908–9), 356. 34 The Times (14 April 1881), p. 4; (15 April 1881), p. 7. 35 The Times (5 November 1881), p. 4; see also In re Andros or Andros v. Andros, 24 Law Reports, Chancery Division (1883), 637–42. 36 Manchester Guardian (20 February 1894), p. 9. 37 54 English Reports 616–17 (8–9 February 1861), quote from 617. 38 Manchester Guardian (14 May 1897), p. 3. 39 Re Cameron or Cameron v. Dowler, 13 Law Student’s Journal (1891), 207. 40 The Times (7 February 1867), p. 9. 41 The Times (3 July 1890), p. 3.

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42 Manchester Guardian (15 June 1880), p. 5; (14 February 1881), p. 6; (15 February 1881), p.  8; (16 February 1881), p.  6; The Times (16 February 1881), p. 4. 43 Atkinson v. Anderson, 21 Law Reports, Chancery Division (1882), 100–4. 44 NA, Inland Revenue, IR 62/376, Estate of Bridget Mark (1909). 45 NA, IR 62/416, Estate of Margaret Ellen Girdler (1910). 46 NA, IR 62/467, Estate of William Collins (1911). 47 NA, IR 62/613, Estate of Margaret Jane Palmer (1914). 48 NA, IR 62/439, Estate of George Anthony Hardy (1910). 49 NA, IR 62/629, Estate of Julia Blanche Walker (1914–15). His mother’s divorce found in J 77/181/4612 and J 77/183/4693; the final decree was in November 1877. W. P. W. Phillimore, ‘Nullius filius “The stranger in blood” ’, Law Magazine and Review 30 (1904–5), 268. 50 The Times (20 July 1860), p. 11. 51 The Times (28 July 1909), p. 4. 52 The Times (5 July 1861), p. 11. 53 The Times (5 March 1868), p. 11; (6 March 1868), p. 9. 54 Manchester Guardian (30 July 1885), p. 6. 55 The Times (30 November 1927), p. 5. 56 The Times (9 January 1888), p. 3. 57 NA, Treasury, Estate of Margaret Thomas, T 1/11364 (1911). 58 NA, Estate if Agnes Jane Ryder, T 1/11603 (1913). 59 NA, Estate of George Schneider, T 1/12334 (1919). 60 NA, Estate of Frank Eastwood, T 1/12060 (1917). 61 NA, Board of Trade, BT 15/12/F 13895/76, Estate of Henry Santer (1876). 62 NA, T/162/428 E.18916, A. D. Brown to Secretary of the Treasury, 3 May 1928. 63 NA, T/162/428 E.18916, Brown to Treasury, 3 May 1928, memorandum, 1–2. 64 NA, T/162/428 E.18916, Correspondence, 22 May 1928–30 July 1931. 65 Manchester Guardian (24 April 1919), p.  3; The Times (23 April 1919), p. 16. 66 Humphrys v. Polak, 2 Law Reports, King’s Bench Division (1901), 385–90, quote from 390; see also Hooper, Law of Illegitimacy, p. 135. 67 Hooper, Law of Illegitimacy, pp.  125–7; D.  Wright, ‘De Manneville v.  De Manneville:  Rethinking the birth of custody law under patriarchy’, Law and History Review 17:2 (1999), 247–307. 68 The Times (7 June 1864), p. 13. 69 A. S. Holmes, ‘ “Fallen mothers”: Maternal adultery and child custody in England, 1886–1925’, in C. Nelson and A. S. Holmes, eds, Maternal Instincts: Visions of Motherhood and Sexuality in Britain, 1875–1925 (New York: St. Martin’s, 1997), 37–57.

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70 The Times (11 May 1904), p.  3; 20 Times Law Reports (1904), 515–16, 583–4. 71 The Times (5 October 1872), p. 11; Standard (5 October 1872), p. 7. N.  Anderson, ‘ “Not a fit and proper person”:  Annie Besant’s struggle for child custody, 1878–9’, in Nelson and Holmes, Visions of Motherhood, 13–36; and Holmes, ‘Fallen mothers’, 40–51. 72 The Times (5 February 1895), p. 14; Manchester Guardian (5 February 1895), p. 8; Standard (5 February 1895), p. 6. 73 Observer (4 October 1863), p. 8. 74 The Times (6 February 1883), p.  3; (15 February 1883), p.  3; (19 February 1883), p. 4; Englishwoman’s Review, 14 (15 March 1883), 125–6; 10 Law Reports, Queen’s Bench Division (14 February 1883), 454–6; 48 Law Times (19 May 1883), 447–9. 75 Hooper, Law of Illegitimacy, pp. 101–38. 76 The Times (22 February 1895), p.  14; (26 February 1895), p.  13; North-Eastern Daily Gazette (26 February 1895), p.  3; Daily News (26 February 1895), p. 5. 77 G. Frost, ‘ “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; and J. Teichman, Illegitimacy: An Examination of Bastardy (Ithaca: Cornell University Press, 1982), pp. 67–72. 78 Hooper, Law of Illegitimacy, p. 105; J. B. Steinberg, ‘The Development of a Social Policy Towards Illegitimacy in England, 1870–1918’ (PhD Dissertation, University of Cincinnati, 1980), pp. 196–200; K. Morgan, Keir Hardie: Radical and Socialist (London: Weidenfeld & Nicolson, 1975), pp. 4–5. 79 The Times (30 November 1908), p. 11; (15 May 1909), p. 3; Manchester Guardian (30 November 1908), p. 8; (15 May 1909), p. 6. 80 The Times (14 February 1913), p. 3; (7 April 1914), p. 3. 81 R. Probert, ‘Cohabitation in twentieth century England and Wales: Law and policy’, Law and Policy 26:1 (2004), 17 and 29, ftns 8–9; S. Pedersen, ‘Gender, welfare, and citizenship in Britain during the Great War’, American Historical Review 95:4 (1990), 989–94; Steinberg, ‘Development of a Social Policy’, 210–12. 82 NA, T 161/184, Pensions to Illegitimate Children (1922–25). See also J. Lomas, ‘ “Delicate duties”: Issues of class and respectability in government policy towards the wives and widows of British soldiers in the era of the Great War’, Women’s History Review 9:1 (2000), 131–4. 83 NA, Ministry of Pensions, PIN 15/1296, Treatment Allowances, Illegitimate Children (1919–22); PIN 15/1297, Illegitimate Children and Allowances (1921–26). 84 NA, PIN 15/957; 15/958 (1918–22). 85 NA, PIN 15/1753 (1923).

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86 NA, PIN 84/10, Sarah Clarke (1924–36); Pedersen, ‘Gender, welfare, and citizenship’, 996–1000; and A. Hughes and J. Meek, ‘State regulation, family breakdown, and lone motherhood:  The hidden costs of World War I  in Scotland’, Journal of Family History 39:4 (2014), 372–3. 87 NA, PIN 84/20, Rose Knight (1924–34). 88 Steinberg, ‘Development of a Social Policy’, 228–30. 89 Probert, ‘Cohabitation’, 17–18. See also A.  Reid, ‘The influences on the health and mortality of illegitimate children in Derbyshire, 1917–1922’, in A. Levene, T. Nutt, and S. Williams, eds, Illegitimacy in Britain, 1700–1920 (Basingstoke:  Palgrave Macmillan, 2005), 168–89.

2

‘The workhouse or death’: maternal crimes and illegitimacy In the 1920s, Dorothy Thain wrote to Lady Astor about her frustration with the position of a poor unwed mother, complaining, ‘for the working woman there is only the workhouse or death, and when her trouble is over there is always the awful shame to endure’.1 Thain represented the feelings of many women who became pregnant out of wedlock. Victorians expected women to uphold sexual purity; a woman’s character depended on chastity. A  baby born out of wedlock advertised sexual incontinence to the world. If the mother survived the crisis, her child’s existence remained a bar to respectability; younger women feared their loss of marriageability, while older women might lose pensions, charitable help, or out-relief. Moreover, the child was a constant reminder of a woman’s ‘fall’. Illegitimacy was, additionally, a financial disaster. It compromised a woman’s already precarious ability to earn her living while increasing her expenses. Women alone were most vulnerable, but poor families also had difficulty accommodating extra dependents. The English government’s decision to place the burden of supporting illegitimate children on those least able to earn swelled the numbers of workhouse inmates, and also tempted mothers to abandon or harm their children. Servants, especially, could not support a child on their wages, even if they could find childcare and their employers agreed to rehire them. They thus needed to disassociate themselves from their children, as the fathers had already done. Illegitimate children were burdens to their families and the State, undesired by either, and the lethal combination of shame and economic weakness encouraged their estrangement from their kin. Crimes by mothers showed the exclusion of these children from the family most starkly and also most ironically, involving, as they did,

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major contradictions to the highly idealised Victorian relationship of a mother and her child. Given these factors, England’s legal regime on the issue was predictably contradictory. On the one hand, the Poor Law of 1834 blamed women alone for sexual incontinence. On the other hand, judges and juries in the criminal courts recognised unwed mothers’ limited options  – starvation, the workhouse, or prostitution. Since Parliament did not make substantial changes in the law until the twentieth century, the courts ameliorated the situation by giving increasingly less severe punishments to unwed mothers who harmed their children. Thus, as in many civil law cases, judges and juries influenced the reach of the law by decisions that limited or contradicted the strict letter of it. In the case of inheritances, these actions helped illegitimate children. In criminal cases, however, the mercy extended only to mothers, since their offspring received little consideration. Fatherless at law, these children represented no lineage or bloodline; they were, in Carolyn Conley’s phrase, ‘rarely considered as individual human beings’.2 Their deaths, then, were tragedies, but not threats to the larger gender order. Illegitimate newborns, in particular, were nameless and sexless in the press coverage. Thus, the younger the child, the more leniency the mother received. Except for occasional scares about ‘baby farming’ (murders by strangers), the public agreed. Press coverage centred on the mother rather than the dead child; hundreds (sometimes thousands) of people signed petitions for mercy when women faced capital sentences. In fact, the leniency became greater over time. The Infanticide Act of 1922 made killing a newborn child by its mother a different crime from murder, one with lower punishments. Older children had advocates, but violent mothers still received merciful treatment. All child victims had liminal places in society, but illegitimates were over-represented in neonaticides and infanticides. They thus lacked the most basic security under the law, protection from harm. Background and statistics In the early modern period, the criminal law was strict with mothers of illegitimate children. An infamous statute in 1624 presumed any unwed woman who tried to cover up the death of a newborn illegitimate child as guilty of murder. After the statute’s repeal in

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1803, infanticides were tried like any other murder, with one exception:  a woman who had the child in secret and tried to hide the body could also be convicted of concealment of birth, with a maximum penalty of two years in prison. This lesser crime offered an alternative in cases of child murder, though this was not necessarily the intent of the lawmakers.3 Technically, concealment of birth was not a separate charge; it was only an alternative if the charge of murder failed, but an 1828 statute made it a separate offence. An 1861 law extended the charge to cover others who helped conceal the birth, allowing indictments of multiple defendants.4 Violence against babies was a large percentage of all homicides in the Victorian period; in 1863, 63 per cent of homicides involved infants under the age of one. At mid-century, 80 per cent of women convicted of murder had killed their own children. Though this number had decreased by 1909, it was still 66 per cent.5 Illegitimate children were particularly vulnerable; they made up only 4–6 per cent of births in England and Wales, but were a full third of the victims of child homicides (excluding newborns) between 1867 and 1892. And the majority of child victims died as newborns, meaning the percentages were actually much higher.6 As Conley has argued, the age of the child victim in a murder trial was central to the outcome. Newborn murders had high acquittal rates for a number of reasons. First, the prosecution had to prove that a child had been born alive and that the death was deliberate. Since many unwed mothers gave birth alone, they claimed stillbirth with little fear of contradiction. Second, English law did not protect the life of a child while it was being born, so any injuries inflicted during birth were outside the statute’s competence. Third, both juries and the press blamed the absent father more than the mother. As Anne-Marie Kilday put it, ‘the courts increasingly preferred to give indicted women the benefit of the doubt, even when evidence of guilt was emphatic’. Thus, a conviction for murder of a newborn was rare. In Conley’s collection of homicides in Britain between 1867 and 1892, a mere three women were convicted of murdering newborns, all reprieved by the Home Office (HO). Kilday’s longer-term study had similar percentages.7 In my database, which includes children of all ages, mothers were accused of violent crimes against their illegitimate children in 1,088 of 1,337 cases (81 per cent). Of these, 714 were newborns, defined here as twenty-four hours old or younger (‘neonaticides’).

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Nothing speaks more clearly about these children’s severe disadvantages; their greatest danger was from their mothers immediately after birth. Another 149 cases involved children between a day and a year old (‘infanticides’), and 102 involved children over a year (‘child murders’). The other cases were neglect/cruelty (seventy-four) and non-lethal violence (forty-nine). In each category of crime, the criminal courts showed mercy to mothers. Mothers escaped harsh penalties in a number of ways. Prosecutors often settled for the lowest charge, concealment of birth, at the outset. Out of 714 newborn murders, 468 were concealment of birth charges at the assizes (‘concealments’). In 246 of these, the charge was originally murder or manslaughter, but at some point in the process – arrest, inquest, arraignment, or indictment – the higher charge disappeared.8 Moreover, the cases tried at the assizes had low conviction rates. Of the 468 concealment cases, 140 resulted either in acquittals or dropped charges (another eighteen disappeared from the records). What constituted ‘concealing’ the child was problematic. A woman giving birth in secret was not enough; she had also to have tried to hide the body, to have failed to prepare for the birth, and to have told no one about her condition.9 As difficult as this was, proving murder of a newborn was much harder. Of the 246 trials for the murder, manslaughter, or (after 1922) infanticide of neonates, mothers were charged with murder in 195 of the cases and manslaughter in thirty-three, while infanticides made up twenty-one (three cases were unclear). Juries convicted the woman of the highest charge in only twenty-seven cases. In 110 cases, the woman was found guilty of a lesser crime, the most common of which was concealment, and juries acquitted eighty defendants outright. On the whole, then, when the original charge was higher, a defendant was most likely to be found guilty of a lesser charge, but had roughly a one in three chance of acquittal. As children got older, the conviction rate rose. My database includes 149 violence cases against children between a day and a year old (‘infanticides’). I have verdicts in 133 of them. Women were found guilty of murder and manslaughter 48.1 per cent of the time (forty-seven for murder). In twenty cases (15 per cent), women were found guilty of lesser crimes. In short, mothers stood a good chance of conviction for some offence in the deaths of older children. Still, 30 per cent (forty-two) were found not guilty. The

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conviction rate was strong, but not overwhelming. The 102 cases in which the mother was tried for killing a child over twelve months old contrast more strongly with the killing of young infants. In sixty-three of these cases, the mother was charged with murder, and she was convicted of the highest charge in thirty-seven and of manslaughter in four (66 per cent conviction rate on a serious charge). Conversely, in twenty-two cases the mother was found insane or unfit to plead, more than the combined total of insanity verdicts for neonaticides or infanticides. Only six women were acquitted entirely (the other cases have unclear outcomes or were suicides). Manslaughter cases, because they involved neglect, were harder to prove. Of fifteen charges of manslaughter, juries convicted three, acquitted ten, and convicted two of lesser charges. In short, mothers killing older children had a high chance of conviction, but only when they used direct violence. Finally, if the jury did convict, a mother was unlikely to get the harshest penalty. In concealments, most women served under six months (81 per cent); of these, 23.6 per cent served no time at all. Those charged with murder or manslaughter but convicted of concealment (40 per cent of defendants) did get longer sentences. In the 1860s, eighteen of these women (of twenty-seven) got twelve months or more, but this decade saw the most severe sentencing. The percentage of women who served two months or more went steadily down – 60 per cent in the 1870s, 46 per cent in the 1880s, 36 per cent in the 1890s, and less than 16 per cent in the twentieth century. In addition, all but two of the women convicted of murder were reprieved to life in prison, meaning they served between seven and ten years in the nineteenth century and one to three years in the twentieth. In other words, courts became both more merciful to the mothers and less protective of their children over time. These statistics alone indicate the hypocritical attitudes of the courts. Authorities disapproved of violence against children, but not enough to change the conditions causing it. Parliament did not reform the laws of affiliation until 1914, nor did the Local Government Board (LGB) allow out-relief to women with illegitimate children. Instead, the State colluded in a system that left illegitimate babies vulnerable. As Ann Higginbotham put it, ‘infant deaths were more readily tolerated than easy virtue’.10 In some ways this was true for all children, but Conley’s work showed that mothers who killed legitimate children for reasons of poverty were less likely

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to get the charges reduced.11 The Victorian State was ineffective in protecting all its vulnerable subjects, but was particularly incompetent at defending illegitimate children. This was one result of relying on the family to take care of dependents while insisting that some children had no legal families. Secrecy and shame The reasons for women’s violence towards their children were not hard to find. Indeed, the name ‘concealment of birth’ contained in it the need to hide the results of illicit sexuality. The desire for secrecy was reflected in the women’s methods of killing, the most common of which was strangulation or suffocation (46 per cent). A mother tied a string around the infant’s neck or stuffed a handkerchief in its mouth to stop its breathing. This was a violent act, but one that could be masked as an attempt to quiet the child’s cries. In 1893, Ellen Hunt’s son died of suffocation; he was found with a cloth stuffed in his mouth. Her defence that ‘the cloth might have got into the child’s mouth by accident’ was successful, as Justice Hawkins directed a verdict of not guilty.12 Most women who gave birth in secret put the children’s bodies in boxes, under beds, or in drawers. Others threw the children in privies, outhouses, or cellars. In 1873, Charlotte Summer, nineteen, confessed to cutting the throat of her newborn and then putting it in the outhouse. Summer had inflicted a four-inch wound that severed the spinal cord. Despite this evidence, the jury convicted only for concealment.13 The few cases with longer sentences clustered in the 1870s and involved obvious, and sometimes gruesome, violence. In 1870, Margaret Marshall had her baby in the privy and then forced the baby down the narrow aperture, leaving such serious wounds that the baby bled to death while lying in excrement. The jury found her guilty of manslaughter, and a disapproving Justice Brett gave her ten years.14 In 1876, Mary Mahoney, eighteen, was a servant on a farm in Llandaff when she gave birth in the water closet. She drove a pickaxe into the child’s head, tried to clean up the blood, and then hid the body in a coal pit. Mahoney’s defence was that the death was accidental, but a blow with a pickaxe was impossible to explain, and her efforts to hide the evidence showed she knew she had committed a crime. She was found guilty of murder and reprieved to life in prison.15 In these cases, the mothers not only

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used violence but threw their infants away like garbage; juries had less difficulty treating these as serious crimes. All the same, the 1870s were unusually severe, perhaps because of the infanticide scare of the 1860s, originated by Thomas Lankester, the Middlesex coroner, who publicised shocking numbers of infant deaths in his constituency. The sternness may also have been the result of ‘baby-farming’ scandals in that decade which gave more publicity to the role of mothers in discarding unwanted infants.16 Except for this period, juries and judges made allowances for women’s desire for secrecy, given the disaster the children represented. Illegitimacy strained the ‘natural’ bond between mother and child to the point that a mother who wanted to rid herself of the child was explicable to the court. This was clearest for young servants, faced with the loss of reputations and positions and betrayed by their ‘seducers’, as with Hunt and Summers (above). Indeed, concern about their reputations was common for unwed mothers whatever their ages, though courts were less sympathetic with older women. Women feared losing their positions in local communities, their employment, and their suitors. The latter was a particular worry. In thirteen child murder cases, the women had found a new sweetheart or husband who did not know about their ‘chance’ children. Mary Holliday’s nine-year-old daughter lived with her grandmother for seven years while Mary worked as a housekeeper. Mary’s lover did not know about her child, and she drowned the girl in 1888 to avoid telling him. The jury found her guilty of murder, and Justice Mathew said she had committed ‘a most cruel crime’ with ‘no pity’. The fact that Holliday was pregnant with her lover’s child when she killed her daughter did not help her case, though her desperation not to have a second child out of wedlock was understandable.17 Over time, many women discovered that their pasts stayed hidden only temporarily. Maternal kin or the fathers of the children also tried to cover up the births out of guilt and embarrassment. Twenty-seven concealment cases, nine neonaticides, and fifteen infanticides involved multiple defendants. The maternal grandmother was the most common co-defendant, as she helped with the birth and also wanted to hide her daughter’s ‘fall’, but the shame of a daughter’s pregnancy affected the entire family. In 1878, the neighbours of Charlotte Mills, a charwoman, saw her burying something in her garden, and her lodger eventually uncovered a newborn baby, the child of

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Mills’s daughter. Charlotte claimed the baby was stillborn, so both Mills and her daughter were convicted of concealment only. The daughter got three months, while Charlotte served six, indicating the judge suspected they had conspired to do away with the child.18 One of the longest sentences for concealment in the twentieth century concerned the Radford family, tried in 1920 in Wales. Hester Radford was twenty when she gave birth at her parents’ house; her baby was later found in a brook. She and her parents were tried for murder, but the jury found them guilty of concealment. Justice Avory, declaring it ‘a very bad case’, gave the parents eighteen months at hard labour, while Hester served six months, also at hard labour. The judge speculated that they had colluded to kill the child, so he gave the grandparents a comparatively long sentence; notably, the mother of the child served the least time.19 Next to the grandmothers of the child, fathers were the most likely to be charged with mothers. Fifteen fathers faced prosecution for concealment; seven got acquittals and eight convictions. Usually, the mother and father rose or fell together; in five cases, juries acquitted both, and in four cases, juries convicted both.20 The divergent cases showed the gender expectations for men in these circumstances. In 1890, Edward Lamb was tried for concealing the birth of Clara May’s child. May, a servant, gave birth while her mistress was away, and she sent for Lamb to help her. He arrived within a day and took the stillborn baby back to his residence and buried it in his garden. May, who had no part in the burial, faced no charges. Since the post-mortem indicated that the child had not lived, the judge released Lamb on his own recognisances.21 This case had no suspicion of foul play, and Edward, unlike so many unwed fathers, had helped Clara in her time of need. In two other cases, the men got longer sentences than the women because of aggravating, ‘unmanly’ behaviour. One, in 1892, involved incest between an uncle and niece, and the judge suspected murder to hide the shameful secret.22 The other was an 1886 case where the defendant violated almost every expectation for manliness. William Edgar was an eighteen-year-old cook when his seventeen-year-old lover, Lydia Westlake, fell pregnant. According to Lydia, when she went into labour, she went to his home, but he refused to admit her. When she told him she was ill, he told her to go to the hospital alone, and when she refused, he struck her. She was so near her time that she gave birth in the yard, and Edgar reluctantly put her

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to bed. When she later asked for her daughter, William told her the baby had died. Lydia did not believe him, and insisted on seeing her child, whereupon he brought her the baby’s body in a pail of water. When the baby’s body was found, the post-mortem was unable to establish the cause of death. Both were arrested and convicted of concealment, Lydia on the information given by William’s mother. At her trial, Lydia received only a seven-day sentence, but William had a quite different experience. Edgar was unusually young for a male defendant, and he strenuously denied the charges, backed up by his mother and sister. Unfortunately for him, his defence did not succeed, as he disgusted both judge and jury. In fact, the jury took the unusual step of declaring ‘their indignation at the prisoner’s conduct’. Justice Wills agreed, saying ‘he had not often listened to a more cold-blooded story than that told by the young man himself’. Wills did not think any violence charge could be sustained, but he branded this ‘a very bad case of its kind’. Edgar went to prison for twelve months.23 Though only a year older than his lover, Edgar was the ‘seducer’ who coolly rejected his lover when she was about to give birth and then disposed of his child. Even worse, he and his mother then tried to blame Lydia for the entire incident. These kinds of derelictions of duty made poor impressions on the court. In contrast, Lydia, seduced and abandoned, was blameless in the disposal of her infant. She, like their child, was Edgar’s victim. Mothers got light sentences even in the ‘bad’ cases because judges understood the compulsion to hide their shame. A year or eighteen months in jail was not pleasant, but merciful in comparison with hanging. Juries, too, found for lesser crimes for a number of reasons, most notably their concern for women giving birth alone, while the fathers suffered no consequences. (They were, then, less merciful with co-defendants.) Both judges and juries also believed that the exposure of the scandal was a severe penalty in itself; by attempting to conceal the birth, the woman had, ironically, broadcast it. But a result of this leniency was that newborns had little protection from their desperate mothers or, in some cases, grandparents and fathers. Provision and poverty The lack of provision for illegitimates was a second major theme in these cases. In each category, mothers were overwhelmingly young and employed in poorly-paid work, mostly domestic labour. The

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youth of the mothers in the cases of newborns was striking. I have ages in 202 of these cases, and of these 23.3 per cent were teenagers and 47 per cent were in their early twenties. Thus, 70 per cent of these mothers were under the age of twenty-three. In the 115 infanticides with a listed age, 16.5 per cent were teenagers and 45.2 per cent were in their early twenties. In non-lethal violence, the number was even higher; 65 per cent of the mothers were under twenty-three. In addition, domestic service accounted for between 55 and 60 per cent of the professions listed in each type of case. Others were laundresses, chars, and needlewomen, also poorly remunerated. This combination all but guaranteed destitution. An unmarried servant or needlewoman struggled to support a child alone; a teenager had virtually no chance to do so.24 The role of poverty in the deaths also showed in the children’s ages. Children were most likely to face violence immediately after birth, because covering up the existence of the child was essential to keeping a job. If the children survived for over a day, their deaths clustered at certain ages, all related to economic woes. I have the exact age of the child in 131 of the infanticide cases (those between a day and a year old). The child was two months or younger in 47.3 per cent of the cases. Another 29 per cent of the babies were between ten weeks and six months (thus three-quarters died by the age of six months). The predominance of certain ages related directly to economic pressure points for unwed mothers. The large number of children killed at one or two months indicated the high percentage born in workhouse infirmaries, the last resort for women in labour. A new mother usually stayed one to two months after her confinement.25 When she had recovered from the birth, she could leave, but she had to take her child with her. In 1862, Julia Ryan, twenty-two, left the Manchester workhouse when her child was between six and eight weeks old. She admitted that she drowned the child in a brook on her first day out so she could take employment again. The jury found her guilty of manslaughter, and Justice Willes gave her six weeks. Her poverty mitigated the punishment; all understood her reluctance to return to the workhouse.26 Mary Elizabeth Coward gave birth in St Luke’s Workhouse in London in 1875 because her parents evicted her. When she left the infirmary, she put her two-month-old daughter into the canal. Her parents then admitted her back into their home, showing their silent collusion with the crime. Coward was

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found guilty of murder, but reprieved.27 As the last example indicated, women who killed their infants usually could not get help from their families. In twelve cases, the records say specifically that family members either refused to help or demanded the removal of the children. Though their reluctance to keep the babies was understandable, these parents were passive accomplices in the acts that followed. The second pressure point came at the five-to-eight-month stage. If a child survived the mother leaving the workhouse or returning to work, mothers usually put them out to nurses, paying anywhere from two to three shillings per week in the mid-Victorian years and five to eight shillings a week in the twentieth century. The problems began when the mothers fell into arrears, which invariably happened in a few months; women’s wages were too small to accommodate even a few shillings a week. When forced to retrieve their babies, some mothers did away with the financial burdens. In 1872, Sarah Vernon, a farm servant, paid a Mrs Johnson two shillings and sixpence a week to care for her two illegitimate children, but she was unable to keep up the payments. Johnson demanded that she bring the money or take the children. Sarah took her younger son, Tom, and his body was later found drowned in a pool. Though convicted of murder, Sarah was reprieved because, as Baron Cleasby stated, ‘I have no doubt that this was done in a moment almost of desperation.’28 Without family help or assistance from the father, a single mother faced destitution and homelessness. In addition to crimes clustering at certain pressure points, these cases also emphasised the lack of support from fathers. Fathers were shadowy figures in their children’s lives from the beginning, unnamed in most records. Partly because their indifference was assumed, only fifteen cases specifically mentioned men’s lack of support as a motive, but these were instructive. In 1867, Jane Grey took her infant daughter to the father to demand he care for the child. She returned without the baby, and the girl’s body was later found in the Tyne river. Grey confessed, ‘I was driven to it; the father would not take it.’ Grey’s insistence that her child had two parents did not excuse her crime, but she was reprieved after the guilty verdict.29 In 1862, Catherine Simpson put her son in the river and then took laudanum. Her poverty and lack of opportunity showed in her almost illiterate suicide note: ‘Oh John should these lines ever rech you it will make you think of the said hend you have

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brote us bouth to by your bace behaver … I had no home but the work house and all threw youre bad bahaver.’30 Simpson survived, but the baby died. Her reaction to desertion got a sympathetic hearing – having ‘no home but the work house’ was dire indeed. Adulterine or widowed bastardy also highlighted poverty as a motive. Of five such infanticide cases, three women gave birth in the workhouse and a fourth had to apply afterwards. Married or widowed women often already supported children from their marriages; an illegitimate child added to their considerable burdens, and the birth of the child also put into danger a woman’s parish or charitable relief. In 1894, Isabella Stephenson, a widow, had two children from her marriage and then gave birth to another infant. Due to this ‘fall’, she lost her out-relief, so she had to go to the workhouse. On the way to the institution, she left the baby in a field where it was later found dead. The Carlisle jury took a merciful course and found her guilty of manslaughter, and Justice Wills gave her five years.31 Destitution was the main motive in most infanticides; ironically, some married (but separated) women were worse off than single women. Finally, poverty showed through most clearly in trials involving neglect and under-feeding. No child did well with dry-feeding, and a mother’s payments to the nurse were often not sufficient support either. Minnie Marriner was a widow in London, left with four children. Since her husband’s death she had two illegitimate children, and she was ill-equipped to support six children on her wages as a furrier (seven shillings, seven pence a week). She left them with a woman for three shillings a week while she worked. Maurice, her youngest son, sickened and died on his diet of condensed milk, though Marriner pawned most of what she owned to pay for doctors. In her manslaughter trial, the jury acquitted her, and Justice Charles said, ‘it struck him that the case was one of terrible poverty, but not of crime’.32 Of the thirty-six manslaughter or murder cases involving neglect, only fourteen mothers were convicted, while two others were found guilty of neglect. Thus, the majority were either acquitted (fifteen) or never went to trial (five). In these cases, destitution was the real culprit. Juries were more likely to convict in these cases if the highest charge was neglect rather than manslaughter (neglect charges had an 80 per cent conviction rate). The typical case was that of a mother unable or unwilling to feed or clothe her child to the point

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that neighbours intervened. Unlike in higher charges, poverty was rarely an effective defence in neglect cases; the authorities inevitably said the mother should have gone to the workhouse.33 This was, of course, contradictory, since in the violence cases, juries sympathised with women who preferred to kill their children rather than return to the house. The difference was likely the lower penalties in neglect cases; juries were more willing to convict when the punishment was only two to six months in gaol rather than hanging. In addition, many Victorians suspected that mothers purposely neglected the children or put them out with irresponsible nurses, so some punishment was in order. This variety of cases demonstrated the economic catastrophe an illegitimate child represented; at any number of points, a woman trying to support a child or children alone faced the choice of ‘the workhouse or death’. Without a male breadwinner, women had the prospect of a life in a grim institution, starvation, or ridding themselves of the child. Most women chose the workhouse over harming their children, but a minority did not. They may have lashed out in desperation, or they may have reasoned that a few years in prison was preferable to fourteen years in the workhouse. Since all of their options were terrible, judges and juries were usually merciful. Other unwed mothers refused to commit violence on their babies, but chose instead to desert them. Sixty-seven trials involved charges of desertion, and thirty-four of these were against mothers. Mothers were found guilty twenty-two times; only one was acquitted (the others disappeared, so were likely dropped). In 1862, Jane Wells put her ten-week-old child on the steps of the Clerkenwell workhouse; her excuse was that the ‘father had refused to support it, and she could not get a summons’. The magistrates gave her two months at hard labour.34 Guardians disliked mothers leaving children and running away, but at least these women left the youngsters where the latter would get care. In thirteen cases, babies were left in streets, doorsteps, abandoned houses, and open fields. Women were fortunate not to face higher charges in many of these. In 1897, Bella Jeffries left her eighteen-month-old son on a doorstep after she fell into arrears in her payments to his nurse. She was a second offender; in 1895, she abandoned another child to the Peckham Union. Jeffries’s problems paying for her children were not surprising, as she had seven illegitimate children, and none of the fathers

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paid towards their maintenance. The Lambeth police court gave her three months at hard labour.35 In the remaining cases with any details, six involved women leaving the children with nurses (two), landladies (two), or their relatives (two), and another four involved the woman leaving the child at the home of its father. The latter were the most instructive about how the criminal courts viewed support for illegitimate children. In 1888, Hannah Smith left her child on the doorstep of Charles Darby, with a note that read: ‘We have both committed a great sin, and you like a coward left me to bear all blame and evil consequences.’ She told the court that he allowed to her stay as a ‘caretaker’ in one of his properties, but a few days before the crime, he had evicted her. She opined, ‘I have sold everything, and should have been homeless but for my cousin’s kindness.’ Thus, she took the child to Darby’s house, as ‘I was determined I would not take my child to the Union while he was able to keep it’. Darby denied being the father of her child, but could not explain why he kept her in one of his houses if they had no relationship. As he was married to someone else, he had every motive to lie about the affair, and the jury did not believe him. Both judge and jury instead sympathised with Smith. The Recorder directed a ‘not guilty’ verdict because Smith had watched the house so had not technically deserted the baby. The jury complied, adding that ‘the man ought to do something for the child’ to applause from the courtroom. They then took up a subscription to help her.36 This case indicates that juries did not regard a mother’s actions as ‘desertion’ if she took the child to its other parent, a rare recognition that these children had both mothers and fathers. Guardians sometimes agreed; in 1869, the Shoreditch board dropped the desertion charge against Rosina Richards when they discovered the doorstep where she had left her child was that of the child’s father.37 Decisions like these defied the national poor-law rules and the doctrine of filius nullius and showed disdain for men who shirked their responsibilities. Smith’s and Richards’s acts, in fact, could be interpreted as those of good mothers, determined to find support for their babies, in contrast to the fathers, who refused to acknowledge paternity. Additionally, juries were especially sympathetic to mothers because fathers could not be convicted of desertion. Of the six cases with men as defendants, not a single one was found guilty, because fathers did not have to support illegitimate children except in bastardy orders. A  typical case was that of Edward Crawley,

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a labourer, who left his two children on the steps of the City of London Union in 1872 with a note that said he was looking for work and would return. The union prosecuted him for desertion, but the court dismissed the charges.38 Desertion cases again highlighted the fact that these children lacked a man’s provision. Juries resented men’s irresponsible behaviour, but did not have the political power (or perhaps will) to reverse the strictures of the poor law. Crime and punishment A number of factors influenced the conviction rate and sentencing for unwed mothers charged with crimes against their children. Unless the women had strong motives like incest or used great violence, trials for concealment of birth or neonaticides were brief, had short sentences, and got little criticism. The cases were almost ritualistic – the mother giving birth alone, the employer/parent becoming suspicious, the finding of the body, the confession, the inconclusive medical evidence. The verdict of concealment of birth was popular because it punished women while still showing sympathy. The mother’s shame, painful labour, and mental anguish, after all, were punishments in themselves.39 As a result, judges and juries repeatedly stretched a point about concealment charges, ignoring serious injuries. In Yorkshire in 1860, Mary Britton, a seventeen-year-old servant, threw her newborn into a pond. The post-mortem revealed ‘bruises above the left eye, and considerable disclouration at the front of the neck, with several abrasions … The windpipe had been torn’. Still, the prosecution withdrew the murder charge, and Mary pleaded guilty to concealment and got four months.40 Newborns simply did not get the sympathy their mothers inspired. Juries only convicted of murder when they could not find a way to convict for lesser crimes, as when witnesses saw the child alive after birth or when the violence was extreme.41 In other cases, unusual cruelty marked the women as ‘unwomanly’. Justice Coleridge was appalled by Mary Nash, who threw her five-year-old son down a well in 1907, leaving him to die of exposure. Her motive was that the nurse of the child had asked her to take him back. Mary had a great deal of difficulty supporting Stanley, having moved him three times because she fell into arrears in payments. Still, the jury found her guilty, and Coleridge told her that she ‘had put her son to a dreadful death, and the mind shuddered at the total absence she

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had displayed of all feelings of humanity or maternity’. The HO had a similar opinion, calling it ‘a bad case’. Nash served nine years and a final year in a refuge home before her release on licence, one of the longest prison stays for a mother who harmed her child. The manner of the death and the age of the boy made this case exceptional.42 Women convicted of murdering their children got the death penalty automatically, and in every case but one in my sample, the jury recommended mercy. Following their lead, the HO commuted all but a handful to life in prison.43 In my group of cases, only two women hanged for murder between 1860 and 1930, both of whom were accused of murdering their children to please their lovers. Selina Wadge, twenty-seven, was convicted of murdering her two-year-old son in 1878 after discharging herself from the workhouse. The prosecution asserted that she did this because ‘a man promised to marry her if she could get rid of one of the children’. The jury found her guilty with a recommendation to mercy, but Justice Denman did not support the recommendation, calling her actions ‘unaccountably cruel and malicious’. She hanged in August, the first execution in Cornwall for sixteen years. Tamar Hager has argued that Wadge hanged because she was on the margins of society, but this could describe many reprieved women as well. Perhaps she was simply unlucky enough to be an example to others.44 The other case was Louise Massett, a Frenchwoman accused of killing her son when she was on her way to a tryst with a young lover. The prosecution argued that she wanted to marry her lover, though the couple denied this. The evidence against Massett was circumstantial and less convincing than evidence in many trials of acquitted women. Nevertheless, the jury found her guilty, and she was not reprieved. Anette Ballinger has argued that several circumstances went against Massett – she was an older woman, a foreigner, and never denied having a young lover. She was also a governess, and therefore could not plead poverty. Another problem was that if she were guilty, the crime had to have been premeditated, since the brick used to strike the boy was identical to those at her lodgings. Most crucially, the jury did not recommend mercy; as one civil servant put it, ‘there is absolutely nothing to be said in her behalf except that she is a woman’. Thus, she hanged in January 1900.45 Except for such unusual cases, women who murdered their children did not face the ultimate punishment.

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Overall, juries and judges were merciful and considered the circumstances in their verdicts and sentencing, but at the cost of reducing infant murder to the level of theft or common assault. Furthermore, anomalies abounded in determining degrees of guilt. For example, unwed mothers who committed non-lethal types of violence might well face longer sentences than those who smothered their newborn babies or threw them in ponds. I have forty-nine cases of non-lethal violence by mothers. In forty-five of these, the mother was charged with attempted murder; the other cases were charges of assault or felonious wounding. Charges of attempted murder resulted in guilty verdicts in 40 per cent of the cases, and a further five resulted in convictions for lesser crimes (three for grievous bodily harm). Thus, women had a 50 per cent conviction rate when they harmed, but did not kill, their children. The main reason was that these women could not claim stillbirth. In some cases, indeed, the children were thriving in workhouses or with relatives, having survived various attacks.46 The discrepancy in sentencing also resulted from the variety of methods used in non-lethal cases, especially the high number of poisonings (nine of forty-nine, or 18 per cent). Poison provoked disapproval due to the premeditation involved. Harriet Morris took her six-year-old daughter from the nurse in 1866; Morris told the nurse, Elizabeth Brown, that Emily was going to her aunt’s. Brown testified that she was ‘very sorry to part with her, as she had grown to call her mother’. A few hours later, a police constable found the girl crying in the street. Emily explained that her mother, whom she called her ‘aunt’, induced her to take some ‘medicine’ (which turned out to be oxalic acid), telling her it was peppermint ‘and that if she drank it she would take her back to Mrs. Brown’. Harriet’s poverty was her motive; the father of the child was in arrears to the amount of £17, and she complained to the constable that ‘She had no one in the world to help her, and that it was a shame the father did not do something for it.’ Harriet also claimed to have planned to take the acid herself and end it all. All of these were standard reasons women gave for harming their illegitimate children, and the jury recommended mercy, given the ‘painful circumstances’. Nevertheless, Justice Mellor gave her fifteen years, calling it ‘a most odious offence’. A premeditated poisoning was unacceptable, and this was an older child as well. Considering the more merciful treatment of some mothers who used poison, the failure of the acid was

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the real problem. Emily’s survival meant she was a real personality to the authorities and could describe her suffering and her mother’s deception.47 The difference between the punishments for attempted murder and murder troubled the authorities enough that in two trials, the HO reduced sentences given by judges. In 1881, Mary Palmer, a twenty-three-year-old servant, put her child out to nurse at five shillings a week, and she quickly fell in arrears. She took her daughter away when the child was twelve months old. The next day, strangers found the infant staggering about with a penknife sticking from her throat. Palmer’s main motive, again, was poverty; she had failed to get support from the father. Justice Lindley gave her seven years, despite the jury’s recommendation for mercy. The HO subsequently reduced it to two.48 The case in 1887 was similar. Miriam Jones, a servant, was only seventeen when she threw her eighteen-month-old daughter down a mine shaft. Jones was unable to pay the nurse because she, too, had failed to affiliate the father. The jury recommended mercy, but Justice Field gave her eight years, because she had intended a slow death from starvation for her daughter. This sentence, too, was reduced by the HO, this time to five years.49 Faced with the discrepancies between sentences for the deaths of newborns and those for attempted murders, the HO lessened the punishment for the unsuccessful instead of lengthening the punishment for the successful. But the reactions of these judges, in particular, showed the difference a live, and sometimes articulate, child victim made in assessing the punishment for violent mothers. A newborn child, or a dead child of any age, was a symbol more than a person, an empty vessel that represented the mother’s shame or tragedy. Older children who survived attempts on their lives, on the other hand, were people in their own right, and often had carers, like Mrs Brown, who loved them. They were, then, less easily ignored, and offered a counter-victim to the seduced and abandoned unwed mother. Insanity defences As many of these cases indicated, women also had the option of pleading mental instability. This was most common when the woman had just given birth, as puerperal mania was a recognised diagnosis by the 1860s. The number of women found ‘guilty

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but insane’ by juries was small in my sample, only thirty-six of over a thousand cases (five neonaticides, seven infanticides, twenty-two child murders, and two non-lethal crimes).50 Since so many women pleaded guilty to concealments, no enquiries into their mental states occurred. The many women who claimed accident or stillbirth were also unlikely to plead insanity. In addition, women may well have reasoned that a short sentence for concealment, or even serving between seven and ten years for murder, was preferable to an indefinite term in Broadmoor, where the average stay for a female patient was thirteen years. (The women would not have known this, but their defence barristers probably knew enough to advise them.)51 Thus, mental problems surfaced most often in murders of older children. As Jill Newton Ainsley has pointed out, women were twice as likely as men to be found insane in trials for violent crimes between 1832 and 1901, both because the reasons they killed – poverty and shame – were assumed to have driven them out of their minds, and because mothers’ natural love for their children made their violence inexplicable.52 Interestingly, the fact that the children were illegitimate did not change juries’ and judges’ assumptions that these crimes were irrational. With newborns, juries went with insanity only when lower charges were not possible. In 1886, Mary Medlin, a twenty-nine-year-old servant, decapitated her newborn baby with a table knife after giving birth in her employer’s house. Her defence was that she had ‘suffered from kidney disease, which would affect the brain’. Justice Smith stressed this in his summation, and the jury followed his lead. Both judge and jury were influenced by the method of killing; a mother who took off the head of her child must not be in her right mind.53 Any circumstance that was irrational to judges and juries could sway them to an insanity verdict, again, particularly when no lesser verdict was possible. In 1887, Ann Cherry lived with her sister for two months after giving birth to a little girl. Cherry then drowned her daughter in a pail and buried her in the garden, convinced her sister was evicting them. Elizabeth Pether, her sister, indignantly refuted this, saying, ‘I was very fond of the child … she knew very well that I  would not part with it.’ In light of these circumstances, the jury blamed Cherry’s behaviour on extreme ‘melancholia’.54 Victorian women found guilty but insane were detained ‘at Her Majesty’s pleasure’, which meant anywhere from a year to a lifetime

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in an asylum. In the twentieth century, judges occasionally released them to the care of their families, but the asylum was a more common destination. Women convicted of infanticides made up half of the female admissions in Perth’s criminal lunatic wing in 1902. Similarly, a report on women in Broadmoor in 1937 revealed that of 134 new admissions between 1927 and 1936, eighty-two women came for murdering their children. Only six of these had killed newborns; thirty-one killed children between six weeks and a year, and forty-five had killed children over a year old. Juries assumed that a woman who killed an older child was more likely insane than one who killed a newborn (this list included women who killed legitimate children).55 Still, insanity was not a popular option in my database primarily because women rarely faced the capital charge. Victim or perpetrator? The unwillingness of juries to find women guilty of murder or to see them hang was well known. For the most part, commentators, women’s groups, and legal reformers did not deplore the mercy extended, but instead thought the law too harsh. As early as 1871, MPs attempted to change the law to discontinue the death penalty in neonaticides. Many other attempts followed; two bills in 1874 and 1875 got through the Commons only to fall in the Lords.56 Despite these setbacks, the movement gained renewed vigor after 1900. The case for and against the law was personified by the reaction to the conviction of Daisy Lord in 1908. Lord was twenty-two when she was arrested for strangling her newborn daughter. Lord herself was illegitimate ‘and she says she put an end to her child’s life in order to save her the trouble which she herself experienced’. Although the HO commuted the death penalty to life in prison (soon lessened to two years), the conviction caused a flurry of protests and a demonstration in Trafalgar Square.57 Defenders of these mothers pointed to the unfairness of the bastardy laws and the irony of the all-male courtroom sitting in judgement on women betrayed by their ‘seducers’. Others bluntly asserted, as did James Fitzjames Stephen, that ‘the crime itself is less serious than other kinds of murder’. More practical reformers argued that juries simply would not convict. In contrast, opponents argued that lessening the charge from murder was admitting that the murder of a child was less serious than the murder of an adult, an attitude that hardly discouraged crime.58

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Because of the controversial nature of the reform, an infanticide bill did not pass until 1922. Daniel Grey has argued that its success was due to the pressure of women voters and jurors, as well as the growing power of the Labour Party. Historians also point to the conviction of Edith Roberts in 1921, which led to an extended press campaign for her release (she served one year after murdering her newborn child).59 The Infanticide Act of 1922, then, allowed courts to charge women who murdered their ‘newly-born’ children with infanticide rather than with murder or manslaughter, although nothing in the act precluded the other charges. Cases that fell under the act were those in which the jury believed that the mother ‘had not fully recovered from the effect of giving birth to such child, and by reason thereof the balance of her mind was then disturbed’. The definition of ‘newly-born’ was vague; a bill in 1938 extended its meaning to all children under twelve months, but in the 1920s, judges and juries limited its application to babies killed within a week of birth. Sentencing was left to the discretion of the judge.60 Some critics regarded this law as a licence to kill; the Recorder in the Old Bailey complained in 1925 that it allowed petty juries to ignore the indictments of grand juries. Most people, though, saw the law as humane. As one HO civil servant put it, ‘The Statute was never passed … to detract from the offence of child murder, but to prevent a Petty Jury “straining its conscience” by calling a case manslaughter or concealment of birth when it was really murder.’61 My database includes twenty-one cases of infanticide in the 1920s. Eleven were found guilty, a 52 per cent conviction rate, but sentences were light. In seven, the judges released the defendants on their own recognisances. In the other four, the penalties were between three and nine months in gaol. Thus, the change did lead juries to convict women killers more often, but the light sentences indicated that judges considered a maternal newborn murder as less serious than other murders. By the 1920s, in fact, grand juries or police courts routinely threw out charges of infanticide, and juries would not always convict the ones they saw.62 The short sentences for what was an admitted murder did not upset most of the public. On the contrary, judges had to defend themselves when they gave any punishments. When Maggie Page pleaded guilty to infanticide in 1923, Justice Sankey had to explain his decision to sentence her to three months by insisting, ‘It must not be thought that a young woman who pleaded guilty or was found guilty of infanticide was

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to escape punishment altogether.’63 At the Carmarthen Assizes in 1925, Florence Crick confessed that she strangled her newborn child and then asked her lover to throw its body in the river. The judge told the court that he gave her nine months because ‘he must have regard to the effect on others likely to commit similar offences’.64 Issues also arose over the term ‘newly-born’. Most judges assumed that the clause meant within a day or week of birth, but some people protested this limitation.65 As the Infanticide Act and its aftermath showed, the English court system viewed most murdering unwed mothers with compassion, as did many commentators. With the exception of the 1860s infanticide scare in London, press coverage was also sympathetic.66 A  typical editorial ran in the Bristol Mercury in 1884 about the conviction of Emily Wilcox: ‘surely there is a wide distinction to be drawn between the moral guilt of a depraved and hardened woman … and a mere girl overburdened with misery … He who had left this weak woman to fight the world alone, surely bore the heavier responsibility’. In this piece, the editors hit on the most common defences of these women – their poverty, the desertion of the fathers, the limited help available. And in this case, the pleas worked; Emily was reprieved and later released on licence.67 Similarly, Nicola Goc has emphasised the press’s tendency to see women in their twenties as ‘girls’; Edith Roberts was twenty-one, but the Leicester Mercury repeatedly called her the ‘girl mother’. Such ‘girls’ got great sympathy; thousands signed petitions of mercy for both Roberts and Daisy Lord.68 Editors, like so many others, ignored the victims of the crimes in order to defend the perpetrator. One of the peculiarities of the argument over these child murders was the indignation of judges (among others) about indifferent fathers and cruel natal families, as this anger was unaccompanied by any acknowledgement of the way the law enabled  – or even encouraged  – such behaviours. Judges were often sympathetic to unwed mothers, but not willing to reform the law to help them. Justice Shee, for instance, in 1865, called the fathers of these children ‘base’ and ‘selfish’ and concluded that ‘if men stood manfully by those with whom they had sinned, and bore … the consequences of their guilt, there would be few cases of infanticide’.69 Justice Wills was so puzzled by Sarah Dunn’s murder of her sixteen-month-old daughter in 1885 that he instigated his own investigation after her trial. By questioning her neighbours, he discovered her father was

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‘ “nagging” her continually about the child’, and so he seconded the jury’s recommendation to mercy. Wills’s actions resulted in Dunn’s reprieve (she served five years).70 Yet neither judge suggested changing the law of bastardy to get women more financial support  – say, raising the minimum amounts  – nor did they criticise the lack of out-relief that left young women dependent on disapproving families. Judges sympathised with unwed mothers, but they feared encouraging vice or raising poor rates more. For its part, the press, though portraying the mothers as victims, rarely printed the names of the fathers, who remained silent partners. Thus, desperate women continued to take violent courses to solve their dilemmas. Despite the press’s biases, these trials paint a more complicated picture than simple victimisation of poor women. As Donna Cooper Graves has pointed out, unwed mothers had rational reasons for murder. Some women may have seen it as a form of birth control, or, in the words of two other historians, ‘a necessary evil’ in a time of few options.71 An occasional case hinted at a more deliberate approach. In 1873, Elizabeth and Leah Banks were tried for conspiracy to murder Elizabeth’s child. Leah, though only nineteen, was Elizabeth’s aunt. Elizabeth was eighteen and the two had been brought up together near Gloucester. Elizabeth gave birth to her child in October 1872; in the next months, the two wrote to each other about how to rid themselves of the burden. Leah suggested feeding the baby salts of lemon a bit at a time, ‘and the child will gradually waste, and in a few days it will be dead’. Elizabeth replied that ‘if I  am obliged to bring it to Glocester [sic] alive, you and I can easily destroy it coming along the causeway’. In another letter, Elizabeth explained that she preferred killing her child to ‘going on the town’. In other words, murder was the best of her bad options. Elizabeth’s landlady read her letters and turned her into the police before any harm came to the infant, but the jury convicted both women, and the judge gave Elizabeth four months and Leah three.72 Their correspondence uncovered a mostly hidden discussion about infanticide between women, one the courts found troubling, since it did not fit the accepted narrative in infanticide trials. The Bankses’ correspondence was unusually frank and atypical. One newspaper account referred to both women as governesses, indicating they had more education than many unwed mothers. Still, Leah’s knowledge about how to cause a baby to die without alerting the authorities was instructive. At the least, these letters

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did not match the stereotype of the victimised single mother who killed on a desperate impulse. Of course, many young women who fell pregnant did live in denial for months and then panicked after the excruciating experience of giving birth alone. But some women used the months of pregnancy to consider their options. These actions were rational, given women’s limited opportunities and their strong chances for acquittal if arrested. These women existed in a legal and social framework that disadvantaged them, so they had limited room to manoeuvre. A minority, then, took one of the few avenues of escape. Their plights, though, should not blind historians to their culpability. A poor unwed mother was low on the social scale, but illegitimate babies were lower. And the criminal justice system, forced to choose between the mothers and the babies, primarily chose the mothers.73 One must also remember that the majority of unwed mothers did not commit violence, including some women who remained in the workhouse for decades. As Ann Higginbotham has pointed out, less than 200 murders under the age of seven were reported in London between 1860 and 1900; this was a high proportion of total murders, but a small proportion of illegitimate children born each year.74 Thus, women had choices when faced with unwanted children, and many chose to suffer in the workhouse rather than harm their babies. The press coverage ignored these options and minimised coverage of the children in favour of either sentimentalising or (less often) demonising the perpetrators. In rare instances, contemporaries argued against romanticising violent unwed mothers. Florence Firmston, a Prison Visitor, asserted that her charges repented of their actions until they got off during the trials, at which point they believed the arguments of the defence that they were not at fault. The illogic of giving long sentences for procuring abortion and short ones for murder also drew comment. One HO minute complained, ‘Child murder is … a cruel and monstrous act implying utter sterility of love and pity in a woman for her own child. Abortion, having no relation to a human being, does far less violence to natural feeling.’75 Moreover, individual women sometimes failed to impress authorities. The darling of the press, Daisy Lord, refused to go to the Duchess of Bedford’s home in January 1910, assuming she would be released soon. The governor of the prison told the HO, ‘She is not a very satisfactory case, and if sent to a Home against her will, would probably give

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trouble.’ Thus, the HO delayed her release for six months, until the Duchess reproved her into a better frame of mind.76 But these small protests generally made no headway against the avalanche of sympathy for the women on trial. The reasons were easy to see; these women were abandoned by the fathers of the children, their kin, and their employers. Men received no punishment, while parents told their daughters not to return until the babies were gone. Unwed mothers lived in poverty, barred from most work or (they might believe) future marriages. Many faced life in the workhouse or on the streets. Nevertheless, the mother who preferred to throw her child in a canal rather than go to the workhouse is understandable, but not blameless. Even a passive type of murder – leaving a baby exposed, for instance – required mothers to ignore the cries of their babies and walk away, and other methods were considerably more active. Conclusion The cheapness of an illegitimate child’s life was starkly revealed in the criminal courts. Rather than change the dire circumstances for single mothers, the State sacrificed thousands of infants between 1860 and 1930. Thus, some mothers who were deserted by their lovers and bereft of any way to earn a living chose to rid themselves of the children rather than submit to the workhouse regime. Unwed mothers posed a conundrum, as they were both victims and perpetrators, embodying passivity and helplessness at the same time that they inflicted injuries on their children. Since juries and judges understood that all of their choices were bad, they blamed ‘seducers’ or mental instability for these crimes the vast majority of the time. This was preferable to facing up to the conditions that left women with so few choices, or to questioning women’s overall passivity. In contrast, other members of the family or, especially, strangers, could not make the same pleas, so some co-defendants received scorn and longer sentences, especially errant fathers. Shame and poverty were not absent in those cases but had less power to excuse the crimes. This points up the centrality of both class and gender in the courts’ assessment of child murder. When a mother acted out of desperation, she received sympathy. When a father, grandparent, or nurse did so, the courts and press regarded them with far more ambiguity.

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Illegitimacy in English law and society, 1860–1930 Notes

1 University of Reading, Special Collections, Lady Astor Papers, MS 1416/1/335, Dorothy Thain to Lady Astor, 11 November 1924. 2 C. Conley, Certain Other Countries: Homicide, Gender, and National Identity in Late Nineteenth-Century England, Ireland, Scotland, and Wales (Columbus: Ohio State University Press, 2007), p. 163. 3 M. Jackson, New-Born Child Murder: Women, Illegitimacy and the Courts in Eighteenth-Century England (Manchester: Manchester University Press, 1996), pp. 32, 168–75; T. Evans, ‘Unfortunate Objects’: Lone Mothers in Eighteenth-Century London (Basingstoke: Palgrave, 2005), pp. 4–5; A. Kilday and K. D. Watson, ‘Infanticide, religion and community in the British Isles, 1720–1920: Introduction’, Family and Community History 11:2 (2008), 92–3. 4 H. Marland, ‘Getting away with murder? Puerperal insanity, infanticide, and the defence plea’, in M. Jackson, ed., Infanticide: Historical Perspectives on Child Murder and Concealment, 1550–2000 (Aldershot:  Ashgate, 2002), 170; L.  Rose, Massacre of the Innocents: Infanticide in Britain, 1800–1939 (London: Routledge and Kegan Paul, 1986), pp.  70–1; A.  Kilday, A History of Infanticide in Britain, 1600 to the Present (Basingstoke: Palgrave, 2013), pp. 113–18. 5 J. Andrews, ‘The boundaries of Her Majesty’s pleasure:  Discharging child-murderers from Broadmoor and Perth Criminal Lunatic Department, c.  1860–1920’, in Jackson, Infanticide, 220, ftn. 12; R. Chadwick, Bureaucratic Mercy: The Home Office and the Treatment of Capital Cases in Victorian Britain (New  York:  Garland, 1992), pp. 291–2, 404. 6 Conley, Certain, pp. 177, 162; M. B. Emmerichs, ‘Trials of women for homicide in nineteenth-century England’, Women & Criminal Justice 5:1 (1993), 100; Kilday, History, pp. 119–37. 7 Conley, Certain, pp.  167–8; Kilday, History, pp.  131–7; quote from p. 134; Chadwick, Bureaucratic Mercy, p. 292; Marland, ‘Getting away with murder’, 182; and Dangerous Motherhood: Insanity and Childbirth in Victorian Britain (Basingstoke: Palgrave Macmillan, 2004), pp. 154–8, 167–200; K.  D. Watson, ‘Religion, community and the infanticidal mother: Evidence from 1840s rural Wiltshire’, Family and Community History 11:2 (2008), 116–33; R. W. Ireland, ‘ “Perhaps my mother murdered me”: Child death and the law in Victorian Carmarthenshire’, in C.  Brooks and M.  Lobban, eds, Communities and Courts in Britain, 1150–1900 (London: Hambledon Press, 1997), 229–44. 8 Ireland, ‘Perhaps’, 233–5. 9 A. Higginbotham, ‘ “Sin of the age”:  Infanticide and illegitimacy in Victorian London’, Victorian Studies 32:3 (1989), 124–8; M.  Arnot,

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‘The murder of Thomas Sandles: Meanings of mid-nineteenth-century infanticide’, in Jackson, Infanticide, 249–67; ‘Understanding women committing newborn child murder in Victorian England’, in S. D’Cruze, ed., Everyday Violence in Britain, 1850–1950 (London:  Longman, 2000), 55–69. 10 Higginbotham, ‘Sin of the age’, 337. 11 Conley, Certain, pp. 180–2. 12 The Times (22 June 1893), p. 4; (30 June 1893), p. 3; Papers of the Old Bailey Sessions Online (hereafter POBO), 26 June 1893, Case #639. 13 Manchester Guardian (20 December 1873), p.  8; Birmingham Daily Post (19 December 1873), p. 7. This case took place at the Warwickshire Assizes. 14 Manchester Guardian (16 August 1870), p.  5; Leeds Mercury (16 August 1870), p. 6. 15 Western Mail (5 September 1876), pp. 4–5; (6 September 1876), p. 5; (14 December 1876), p. 5; (20 December 1876), p. 4; see also Kilday, History, pp. 140–6. 16 Rose, Massacre, pp. 62–9. 17 National Archives (hereafter NA), Home Office Files, HO 144/213/ A48771/48; Manchester Guardian (5 May 1888), p. 8; (21 May 1888), p. 5; Leeds Mercury (5 May 1888), p. 11. 18 The Times (7 November 1878), p.  11; POBO, 9 December 1878, Case #109. 19 Western Mail (3 July 1920), p.  13; (6 July 1920), p.  6; (21 July 1920), p. 8. 20 Kilday, History, pp. 137–8. 21 POBO, 19 May 1890, Case #463; Illustrated Police News (10 May 1890), p. 2. 22 The Times (12 December 1892), p. 10; Leeds Mercury (10 December 1892), p. 11. 23 The Times (18 September 1886), p. 12; POBO, 3 August 1886, Case #854 (Westlake); and 13 September 1886, Case #985 (Edgar). 24 Kilday, History, pp. 160–4. 25 Arnot, ‘Thomas Sandles’, 154–5. 26 Manchester Guardian (2 April 1862), p. 3. 27 The Times (7 May 1875), p. 12; POBO, 3 May 1875, Case #339. 28 Manchester Guardian (15 March 1872), p. 8; Birmingham Daily Post (15 March 1872), p. 6; Bristol Mercury (30 March 1872), p. 6. 29 Manchester Guardian (24 July 1867), p.  4; Newcastle Courant (21 June 1867), p.  2; Liverpool Mercury (24 July 1867), p.  5; Glasgow Herald (1 August 1867), p. 2; HO 45/9354/29367/1, items 10–13. 30 NA, Assize Records, ASSI 45/73, Yorkshire Spring Assizes, Coroner’s Depositions, 12 February 1862.

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31 The Times (29 October 1894), p.  11; Arnot, ‘Thomas Sandles’, 150–5; 161–6. 32 The Times (27 July 1889), p. 5; (3 August 1889), p. 4; (24 September 1889), p. 12; POBO, 16 September 1889, Case #737. 33 Manchester Guardian (10 June 1874), p. 6. 34 Observer (26 October 1862), p. 16. 35 The Times (13 December 1897), p. 4. 36 POBO, 19 March 1888, Case #414; The Times (20 March 1888), p. 12. 37 The Times (19 March 1869), p. 12. 38 The Times (2 March 1878), p. 12. 39 Arnot, ‘Understanding women’, 57–66; Ireland, ‘Perhaps’, 234–40; Kilday, History, pp. 144–50. 40 Yorkshire Gazette (3 November 1860), p. 9. 41 The Times (5 March 1864), p. 13; Birmingham Daily Post (4 March 1864), p. 2. 42 HO 144/7056, 1, 9, 108; The Times (4 March 1911), p. 14; (28 March 1911), p. 6; (30 March 1911), p. 4; (10 April 1911), p. 3; (1 June 1911), p. 6; (2 June 1911), p. 4; (20 June 1911), p. 3; Manchester Guardian (5 July 1911), p. 16. 43 Rose, Massacre, pp. 76–7; D. Grey, ‘Women’s policy networks and the Infanticide Act, 1922’, Twentieth Century British History 21:4 (2010), 441–63. 44 The Times (29 July 1878), p.  4; (16 August 1878), p.  5; Leeds Mercury (16 August 1878), p. 6; HO 45/9464/75879/1/23; T. Hager, ‘Compassion and indifference: The attitude of the English legal system toward Ellen Harper and Selina Wadge, who killed their offspring in the 1870s’, Journal of Family History 33:2 (2008), 183–6; Chadwick, Bureaucratic Mercy, p. 295. 45 The Times (25 November 1899), p.  4; (12 December 1899), p.  7; (15 December 1899), p.  13; (19 December 1899), p.  12; POBO, 11 December 1899, Case #77; HO 144/1540/A61535/7; A.  Ballinger, Dead Woman Walking:  Executed Women in England and Wales, 1900–1955 (Aldershot:  Ashgate, 2000), pp.  103–28; Higginbotham, ‘Sin of the age’, 335. 46 The Times (19 November 1868), p.  9; (19 December 1868), p.  11; POBO, 14 December 1868, Case #112. 47 The Times (19 November 1866), p.  9; (20 December 1866), p.  9; POBO, 17 December 1866, Case #102. 48 The Times (4 August 1881), p. 4; Pall Mall Gazette (24 August 1881), p. 6; POBO, 2 August 1881, Case #686. 49 Western Mail (16 May 1887), p.  3; (17 May 1887), p. 3; (23 May 1887), p. 3; (5 August 1887), p. 3; (3 September 1887), p. 3; (3 October 1887), p. 2.

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50 Marland, ‘Getting away’, 173–8; Kilday, History, pp. 166–80. 51 C. Wilson, ‘Mad, Sad, or Bad? Newspaper and Judicial Representations of Men Who Killed Children in Victorian England, 1860–1900’ (DPhil Thesis, University of Essex, 2012), 210. 52 J. N. Ainsley, ‘ “Some mysterious agency”: Women, violent crime, and the insanity acquittal in the Victorian courtroom’, Canadian Journal of History 35:1 (2000), 41–5. 53 The Times (29 October 1886), p.  10; POBO, 25 October 1886, Case #1082. 54 POBO, 23 May 1887, Case #659; The Times (30 May 1887), p. 4. 55 Andrews, ‘Boundaries’, 216–48; HO 45/19230/439256/43, Report from Broadmoor Asylum, 16 March 1937. 56 ‘Murder Law Amendment Appeal’, printed by the House of Commons, 15 May 1871, 1–2; House of Commons Parliamentary Papers Online; Rose, Massacre, pp. 74–6; Parliamentary Debates, House of Commons, Vol. 214, 10 February 1873, 194; Vol. 215, 14 May 1873, 981–7; Vol. 218, 20 March 1874, 101; 14 April 1874, 539–40; Vol. 220, 9 July 1874, 1346; 14 July 1874, 1621; Vol. 221, 16 July 1874, 118; 17 July 1874, 204; 20 July 1874, 268; 23 July 1874, 542; 28 July 1874, 846–50; Vol. 222, 9 February 1875, 158; Vol. 224, 12 May 1875, 531–8; 11 June 1875, 1712; 18 June 1875, 155; 22 June 1875, 289; 28 June 1875, 629; 1 July 1875, 782; 2 July 1875, 871. 57 HO 144/1026/167981/1–6 (quote from item 6), 29, 59–65; The Times (16 July 1908), p. 4; (15 August 1908), p. 14; (16 September 1908), p. 8; (12 October 1908), p. 16. 58 D. Grey, ‘Discourses of Infanticide in England, 1880–1922’ (DPhil Thesis, Roehampton University, 2008), 429–79; and ‘Women’s policy networks’; T.  Ward, ‘Legislating for human nature:  Legal responses to infanticide, 1860–1938’, in Jackson, Infanticide, 253–61. For Stephen quote, see Higginbotham, ‘Sin of the age’, 331. This argument also occurred in the 1866 Capital Punishment Commission, Conley, Unwritten Law, p. 111. 59 Grey, ‘Women’s policy networks’, 445–7, 451–8; Kilday, History, pp. 186–90; N. Goc, Women, Infanticide and the Press, 1822–1922: News Narratives in England and Australia (Farnham:  Ashgate, 2013), pp. 145–69. 60 ‘Child Murder (Trial) Bill’, Bill 25 of 1922, printed 13 February 1922, House of Commons Parliamentary Papers Online; ‘Bill Amended by Standing Committee A’, printed 28 March 1922; ‘Lord’s Amendments’, printed 29 June 1922, Lord’s bill 173 of 1922; Parliamentary Debates, House of Commons, Vol. 150 (1922), 615–16; Vol. 151 (1922), 2152; Vol. 152 (1922), 1149, 2392, 2485–89; Vol. 156 (1922), 2313. See also Ward, ‘Legislating for human nature’, 263–5.

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61 HO 45/19230/439256/16, Infanticide Act, 1922, Clipping from the Manchester Guardian (14 January 1925); Minutes on the clipping, 19 January 1925. 62 Ward, ‘Legislating’, 265–8; The Times (19 June 1925), p. 13. 63 Manchester Guardian (14 May 1923), p. 13. The case was at the Leeds Assizes. 64 Manchester Guardian (17 October 1925), p. 14. 65 HO 144/21214/1–5, 12–14, 23. 66 Ward, ‘Legislating’, 255–7; G. Behlmer, ‘Deadly motherhood: Infanticide and medical opinion in mid-Victorian England’, Journal of the History of Medicine 34:4 (1979), 403–27. 67 HO 144/136/A35572/2–24; Bristol Mercury and Daily Post (10 May 1884), p. 5. 68 Goc, Women, pp. 156–8. 69 Manchester Guardian (15 December 1865), p. 3. 70 Yorkshire Gazette (16 May 1885), p.  9; (25 July 1885), p.  9; HO 144/155/A40322, 1–2, 14, 29. 71 D. C.  Graves, ‘  “In a frenzy while raving mad”:  Physicians and Parliamentarians define infanticide in Victorian England’, in B. Bechtold and D. C. Graves, eds, Killing Infants: Studies in the Worldwide Practice of Infanticide (Lewiston:  Edwin Mellon Press, 2006), p.  134; Kilday and Watson, ‘Infanticide, religion and community’, 95; Kilday, History, pp. 164–6. 72 The Times (10 March 1873), p. 11; Reynolds’s Newspaper (16 March 1873), p. 6; Pall Mall Gazette (10 March 1873), p. 6. 73 For another case of collusion, see The Times (4 March 1875), p. 11; POBO, 1 March 1875, Case #220. 74 Higginbotham, ‘Sin of the age’, 124. 75 HO 45/11053/178685/6, Child Murder (Record of Sentence of Death) Bill, 1909–10, Florence Firmston to Miss Gordon, 28 August 1910, Minutes on the bill, 13 October 1910. 76 HO 144/1026/167981/59–60, January–February 1910.

3

Part of the family? Non-maternal carers in the criminal courts Illegitimacy meant that mothers had sole legal responsibility for the children; the rest of the family had only a tenuous relationship with them. This was particularly true of fathers of these children, but also of grandparents, uncles, aunts, and adoptive families. Because a mother had no escape, courts showed mercy if she rid herself of the burden of her illegitimate child. Other members of the family were different, though such children were equally unwelcome to them and their motives for violence or neglect were similar. Most notably, male defendants did not get the sympathy of ‘seduced and abandoned’ women. Recent works on Victorian fatherhood have emphasised its centrality to masculinity, but illegitimacy complicated the relationship between father and child.1 Unless he had been affiliated, the father did not have the obligation for support or any custody rights. The liminal nature of the relationship between a ‘putative’ father and his child at times limited the law’s ability to intervene, while at others, gave it more scope. Neighbours and police who hesitated to interfere between a man and his legitimate children were more willing with a man and his illegitimate child (or stepchild). As a result, the criminal courts viewed fathers with far more scepticism than mothers.2 The prevalence of stepfathers showed the importance of blended families for these children, as did trials of wider kin and adopted/ foster parents. Few children lived alone with their mothers; this was not financially viable. Step-parenting was thus a constant in these children’s lives, and stepfathers had responsibility for support and correction. Wider kin also often kept these children, and at crisis points, relatives found illegitimate children financially burdensome as well as embarrassing. Fictive kin figured in trials as well, because the number of illegitimate children reared by adopters or

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foster parents was considerable. In these cases, the role of illegitimacy varied. At times, it was the major source of conflict, as when fathers or kin did not want to support the child. At others, it was less important than poverty, alcoholism, or over-discipline. Overall, fathers’ and nurses’ reasons for the crimes did not differ from those of mothers; what was distinct was the reaction of the criminal justice system. Illegitimacy and fatherhood in the court Fathers were much less likely to harm their illegitimate children than mothers. I have only 119 violence cases of fathers and stepfathers against illegitimate children between 1860 and 1930, eighty fathers and thirty-nine stepfathers. In other words, mothers were ten times more likely to be arrested for harming their illegitimate children. Yet the courts were harsher on the fathers they did see, as long as the child victims were not newborns. First, men were more likely to face a higher charge. Of the eighty cases with fathers as defendants, forty-three were for murder and fourteen for manslaughter. Second, the conviction rate was high. In the forty-three murder cases, men were found guilty of murder twenty times and guilty of a lesser crime in six others (four for manslaughter). Four men were found insane and two committed suicide, while only eleven were acquitted. Third, the rate of reprieves from the capital charge was considerably lower than for women. If found guilty of murder, a man had a 70 per cent chance of hanging (fourteen of twenty); mothers had a 0.1 per cent chance. Indeed, fathers resembled mothers only when the crime involved neglect-type methods (mostly manslaughter and attempted murder charges). In manslaughter cases, the conviction rate was 50 per cent for male defendants, and they were often tried with female partners in these crimes.3 Stepfathers made up only thirty-nine of the defendants, and thirteen of these were on murder charges. Seven were found guilty and five hanged; two others were found guilty of manslaughter. Four were acquitted, one by reason of insanity. Thus, the high percentage of hangings was also present with these men. The four manslaughter trials resulted in two convictions and two acquittals, and the one attempted murder charge resulted in a conviction for a lesser charge. What was most striking about the stepfathers was the large number of assault and cruelty cases

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involving them. Of the thirty-nine violence cases with stepfathers, twenty-one were assault or cruelty trials, and all resulted in convictions. Stepfathers were more likely to commit everyday violence, since they lived with the mothers of the children, and the courts did not excuse their violence lightly. Only nineteen men in this sample were not in the position of father to the child. Wider kin made up five of the others, with only two having no blood or step relation. The majority of male defendants (ninety-nine) were working class, but twenty-one were middle class (thirteen lower middle). In addition, men were older. I have ages in seventy-six cases, and only twenty men were under twenty-five, though the largest single group (twenty-one) was men in their late twenties. In contrast to mothers, men’s killings included only twelve newborns (out of 126 with listed ages), and over half of the victims were over a year old (this is partly a result of removing the concealment charges, discussed in Chapter 2). Most child victims were between a year and five years old (fifty-one), but twenty-one were six years old or over. With a mother, a child’s chance of suffering from violence decreased as he/she aged. With a male relative, the difference between older and younger ages was less sharp. Men also differed from women in the methods they used, with far more variety. The most popular method was skull fracture (twelve), followed closely by throat-cutting (ten), poison (ten), strangulation (nine), beating (eight), and drowning (eight). The one oddity was the number of poisonings, perhaps a reflection of the higher percentage of lower-middle and middle-class defendants. Poverty Some of men’s motives for hurting their illegitimate children resembled those of mothers. The largest category (45 of 119, or almost 38 per cent) was related to economic support. Like mothers, fathers were either unwilling or unable to provide for illegitimate children. Because of the reform of the Bastardy Laws in 1834, many men did not have to do so, but after 1872, more women affiliated the fathers, and in other cases family or community pressure forced a man to help. In addition, stepfathers were legally required to support any children of their wives, and some of them did not want to keep other men’s children. The same motive applied to men who believed their wives’ children were adulterous.

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Many fathers resented having to pay for their children’s care, but their poverty seldom generated much sympathy. In 1888, James Flint, a Birmingham painter, had an eleven-month-old son, though the records do not explain why he had custody (he was married to a different woman than the child’s mother). He hired Sarah Barnbrook to care for the boy at three shillings a week. Barnbrook could not make ends meet on that amount, and she met James in a pub to tell him she needed four. Flint, probably already under financial strain, threw his son towards the fire and then tried to kick him with his boots. Other customers stopped him, and the boy was not badly hurt, so James got only three months for assault. Still, the magistrate, said it ‘was the cruellest and most brutal case he had ever heard in his life’.4 In any number of ways, men who fathered children out of wedlock had violated their masculine duty, despite men’s wider sexual freedom. The disapproval was greater with men who also drank too much, or did not save their money and ‘get on’. Furthermore, fathers influenced by lovers seldom received reprieves, as men were supposed to be ‘masters in their own house’ and not allow women to dictate to them.5 Any man who failed to live up to the masculine ideal in multiple ways was unlikely to get mercy. Tom Mellor, a coal wheeler, killed his children when his lover, Priscilla Redshaw, refused to live with them. Not only did Mellor allow his lover to dominate him, but he also tried to get others to support his children (with a deceased cohabitee), first his brother and then the workhouse. Even worse, the Director of Public Prosecutions explained that Mellor ‘wasted most of his money in drinking, betting & gambling’, and a civil servant pointed out that ‘he does not seem to have remonstrated in any way with the woman with whom he was living’. Thus, despite the jury’s recommendation to mercy, Mellor hanged in August 1900; he was an utter failure as a man and father to the authorities.6 Ironically, both Flint and Mellor took responsibility for children that, legally, they did not have to support. The mothers of the children in both of these cases were dead, so even if both men had bastardy orders against them, these no longer held any power. Their economic and personal stresses, then, came from the fact that they had not abandoned their lovers or left the women to deal with the consequences alone. Rather than getting credit for this with the court, judges and the HO were unimpressed, perhaps because they

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assumed that the men could have married the mothers of their children if they had chosen, and also because of the other ‘unrespectable’ aspects of their lives. These factors contrasted with fathers of legitimate children. Cathryn Wilson surveyed over 4,000 newspaper reports of men killing children in the Victorian period; she noted that men who killed illegitimate children made up only 30 per cent of her cases, but they were 70 per cent of the men hanged for murdering children. Jade Shepherd, similarly, argued that courts accepted insanity pleas for destitute fathers who killed their legitimate children in despair. But a man who killed to avoid paying for an illegitimate infant was, if anything, too rational.7 Only three men who killed over money issues were reprieved after murder convictions (two fathers, one stepfather). All three trials were in the twentieth century, when a better understanding of mental illness and structural poverty had emerged. For instance, the one stepfather, Alfred Potter, murdered his wife’s child in 1911, and was reprieved because of a history of epilepsy. He stayed in a mental institution until his death in 1941.8 The large-scale unemployment in many parts of Britain in the 1920s made the courts more sympathetic to men’s difficulties. Archibald Crockford, a labourer, was twenty when he killed his five-month-old son in 1922. He was unemployed and thus could not marry his lover, so he strangled the child. He explained he was ‘down and out and half starved’, and the jury recommended mercy. Hundreds of people petitioned for reprieve for an unemployed veteran of the First World War, and the HO commuted his sentence to life in prison. The latter case, in particular, indicates that the press, at least, was willing to see unemployment as a wider problem than a man’s individual failings by the 1920s. But the HO resisted allowing a man to make the same excuse of poverty as a woman; Crockford served eight years before he was released. In this case, the contrast with the mother of the child was striking; she was working regularly as a machinist, while he had been unemployed long enough to have run out of the dole. His reaction to such emasculation was explicable enough to avoid hanging, though not all punishment.9 As with mothers in neglect cases, many poor male defendants intended no real harm to their children or stepchildren; they were simply too poor to care for them properly. These cases were manslaughters and had higher rates of acquittal. Neglect-style cases only got higher charges if a father treated an illegitimate child

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differently from his other children. In these instances, as well, men were almost always charged with stepmothers, seen as responsible for the home. In 1891, Joseph and Eliza Armistead had custody of Joseph’s seven-year-old son in addition to their own children. According to witnesses, the pre-marital child lived on bread and potatoes in the attic or coal cellar. The Armisteads denied the allegations, but the boy was ragged and filthy and had never been to school. Montagu Williams, magistrate of the Wandsworth Police Court, called it ‘an outrage upon humanity’. Both parents got three months in prison.10 The boy’s circumstances contrasted sharply with those of his half-siblings, condemning his father and stepmother equally. Technically, until 1908, a man alone could not be charged with neglect or cruelty unless he had been affiliated by the mother, one reason so many of these cases had female co-defendants. In 1902, Samuel Gregory protested his conviction for cruelty because his daughter was illegitimate (her mother was dead). He had not been affiliated, so the magistrates discharged him. The National Society for the Prevention of Cruelty to Children (NSPCC) appealed, but the judges of the King’s Bench Division found for Gregory, though they urged Parliament to amend the laws to include men ‘who were in fact fathers, although not married to the mother of a child’. The 1908 Children Act corrected this oversight.11 Thus, by the 1920s, these prosecutions succeeded more often.12 Ironically, these cases show that the criminal justice system’s attitude to men’s responsibility to provide conflicted with that of the bastardy laws. Criminal courts insisted that men should support their children; poverty was no excuse for violence or neglect. Women often took more blame in neglect cases, as men were working and out of the home, but some circumstances indicted the fathers equally. Again, these were men who did not refuse to keep their children, sometimes despite the deaths of the mothers and the end of their legal responsibility. But this behaviour only helped them if they treated their children equally to legitimate issue and kept a respectable home. In addition, these cases show that local courts, the NSPCC, and poor-law guardians all accepted that men had responsibility for illegitimate children by the twentieth century, and some laws (like the 1908 Children Act) reflected this view, a pressure from below that eventually led to limited national reforms in the 1920s.

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Secrecy The issue of secrecy and shame also showed a strong gender contrast. Eleven cases involved men who committed crimes to conceal sexual nonconformity. The men in the middle classes clustered in this group, because they had the most to lose should their liaisons become public knowledge. In five cases, the victim was a newborn, and the fathers helped the mothers dispose of the child to avoid exposure. In two others, the child was the result of incest (as was one of the newborn cases). The other four were adulterous relationships and, significantly, middle-class men. To the judges and juries, a mother’s shame at the birth of an illegitimate child partially excused her violence, but they were less sympathetic to men with the same motives. The newborn murders did not result in any guilty verdicts for murder, but all the men were found guilty of lesser charges (three for manslaughter). In each newborn case, the man had a woman co-defendant and faced the same or worse punishment as his partner. Like the concealment cases in Chapter  1, the male defendants were judged on ‘manly’ characteristics and on the degree of violence shown to the victim. Walter Honeybun ‘kept company’ with Frances Boxall in Lewes, but mostly when her father, a carpenter, was away, as Mr Boxall disapproved. Frances had a child in November 1884, and neighbours saw Walter coming out of the house two days later with a parcel. In December, a newborn child’s body was found, its neck broken. The medical evidence was inexact, so Justice Coleridge dismissed the murder charges. Instead, both were found guilty of concealment of birth, and Coleridge gave them eighteen months at hard labour, a long sentence that reflected Coleridge’s suspicion that they killed their son to hide their relationship from Boxall’s father.13 Though he stood by his lover, Walter had ‘seduced’ her and then covered up the results of that seduction instead of marrying her. In addition, the baby’s broken neck was a sign of violence. Thus, he got little mitigation for not having deserted Boxall. Illicit sexual activity in courtship was a scandal, but a fairly common one, and could be ‘made right’ by a wedding. Other sexual ‘sins’ were bigger taboos. The incest cases, for instance, showed desperate efforts to cover up the scandal; two, in fact, involved both suicide and murder. James Benson, a confectioner, had a child with

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his sister Jane in January of 1906. Their father demanded that Jane and the baby come home with him. The couple then made a suicide pact, which Jane did not keep. In contrast, James poisoned the baby ‘to save it from the insults it would have had to put up with through life’, planning to take his own life next. He was found guilty of murder, but reprieved, mainly because he had served bravely in the Boer War.14 The double shame of incest and illegitimacy meant that suicide seemed the only way to atone to Benson. Like Crockford, he could point to a ‘manly’ past as a soldier in mitigation, but his actions guaranteed that the family scandal got a thorough public airing. In addition to incest, adultery was a shameful secret, particularly in the respectable classes. Unsurprisingly, then, men tried to cover up adulterous relationships, particularly those with lower-class women. Given their financial situations, these men could have afforded to pay the small amounts required by affiliation hearings, but they were horrified at the publicity, both for their legitimate families and for their businesses. Professional men were vulnerable to scandal, as they might lose clients and face social shunning. Despite all these factors, the courts were unsympathetic. Mothers who killed to keep illicit sexuality hidden were understandable, given their economic and social weaknesses. But married, middle-class men who did so received notably harsh treatment. William Bartlett, a forty-five-year-old quarry foreman in Cornwall, was the most famous of these cases, heard in 1882. His child was the result of an affair with a widow, Elizabeth Wherry. Bartlett arranged for Wherry to have the child, found a nurse for the baby, and told Wherry he had arranged an adoption. He had, then, taken responsibility for his child, probably to forestall an affiliation hearing. The child’s body was found in a disused mine shaft near his office a month after the supposed ‘adoption’. William’s motive was not just economic, but that ‘the child’s birth might be kept secret from his wife and family’. Though he had powerful reasons to want secrecy, the press gave him no sympathy. The Times, in fact, saw his case as distinct from women in the same position: ‘It is usual to recognize, formally or informally, some claim to mercy in the case of a woman who … is driven out of her better self by the misery and shame of her position. For Bartlett no such palliation can be alleged.’ The HO agreed, disliking the obvious premeditation. Bartlett hanged in November 1882.15

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Similarly, James Dilley, a postman and picture frame-maker, was married and had a family when he had an affair with Mary Rainbow, a servant. He had seduced her in 1869, when she was seventeen, and she gave birth to a son, who lived with her parents. Ten years later, she again got pregnant. When she gave birth to a baby girl, she took care of the child for three weeks in lodgings. John fetched the two of them on 10 May 1879, and they went to the train station together. At some point on that journey the baby died, apparently from a skull fracture, though she had also taken a fatal dose of laudanum. At their trial, the jury found both John and Mary guilty of murder, but recommended Mary to mercy, since they believed she acted under John’s direction. John hanged for the crime, while Mary was reprieved to life in prison (she served ten years). John had a position in his village as well as a wife and family. His fear of exposure, then, was reasonable, yet Justice Hawkins insisted that there were ‘no extenuating circumstances in the case’ for him.16 Clearly, men worried about their social standing just as women did. A  working-class man resented the expense of these children, but a lower-middle or middle-class man was more concerned about his reputation. An adulterous illegitimate child was not the kind of fatherhood that conferred high standing and could have serious economic consequences. In 1893, Ashworth Read, a married Manchester cotton manufacturer, stood trial for the murder of his son with his servant, Elizabeth Remington. Though he was acquitted, his reputation was ruined. He had predicted that if the scandal broke, ‘it would disgrace him, and that he would never hold up his head in Burnley’, and he was correct. When he went to the Manchester Exchange a month after his trial, he was ‘surrounded, hooted, and hustled’ by a large crowd and had to escape through the manager’s office.17 For these men, exposure meant a loss of social standing, with or without a conviction. The birth of an adulterous illegitimate child, then, was a disaster for them as well as the women, and compromised their ability to earn a living and ‘hold up their heads’ as respectable men. Notably, in all these cases, the mothers were of a lower social class than the fathers; thus, the men had violated two Victorian tenets, illicit sexuality and cross-class matings. All illegitimate children had tenuous relationships with their fathers, and class differences widened the breach. This might also have made the

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social disgrace greater, given the Victorian disapproval of ‘mixed’ relationships, but the courts did not accept this as a reasonable excuse for men’s violence. Fragile patriarchs Men also differed from women in that a minority of cases involved fears over their standing as men. Poor men, in particular, feared losing their authority over women and children, the one place they could assert themselves. A man who had not married the mother of his child could not demand obedience or faithfulness from her, and some men reacted violently to this loss of control. Thus, in fifteen trials, the men’s motive for violence was revenge on disobedient or unfaithful women. These cases divide into two groups. Seven men (three stepfathers and four fathers) were angry at the mothers of the children, struck out at them, and instead hit the child. Most were tried for lesser offences, found guilty, and given sentences of months rather than years.18 The other eight cases contrasted strongly with these lesser charges. All eight were charged with murder; six were found guilty (five hanged), one found insane, and one found guilty of manslaughter. None were acquitted, and the shortest sentence (for manslaughter) was five years. Three were stepfathers, four fathers, and one a step-grandfather. These cases involved men punishing women for adultery or disobedience by attacking their children. The courts were unimpressed by men who did not marry the mothers of their children and then tried to assert ‘mastery’ over them. If a man wanted to chastise his lover, he should at least marry her and offer her a respectable home. In four of these cases as well the man killed two or more people, and multiple murderers were poor candidates for reprieves.19 A good example of these tensions was the case of Thomas Day in 1883. Day was a soldier who had a child with a servant, Caroline Meek, in July 1879. Day claimed he was unable to support her, so they never married. He visited her and their daughter Lily only twice in five years and contributed less than ten shillings to Caroline’s income. In 1882, Caroline married William Woodgate, a railway labourer. Despite his lack of support, Thomas considered the marriage a betrayal. He was especially upset that Lily now had a different father, complaining in a letter

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to Caroline, ‘You have cut the link between yourself, child, and me without any cause.’ He added ominously that ‘the day will come when I  shall see the one that is mine in spite of all’. Day visited Lily in August 1883. Caroline insisted he do so in the presence of her husband, so Thomas made an evening call. This visit degenerated into an argument, when Thomas called Caroline a ‘deceitful whore’ and her husband ordered him out of his house. Instead, Day, who was holding Lily at the time, cut her throat, and she bled to death in minutes. Though he insisted it was an accident, the jury found him guilty of murder. Day was furious that Caroline had married another man, so he punished Caroline in an effective and cruel manner, but his behaviour meant that the HO saw no reason to reprieve him.20 These acts of violence showed a possessiveness about children similar to men’s attacks on wives, as if they saw the children as property. Day was obsessed with the fear that his daughter would not remember who he was or that she ‘belonged’ to him. When he first saw her, he asked her what her name was, and she said ‘Lilian Woodgate’. He corrected her that her name was ‘Meek’, to her great confusion. Significantly, when he made the evening call, he asked her again what her name was. Day deeply resented another man acting as a father to his ‘blood and bone’, and the fact that the violence began with a confrontation with another man, Caroline’s husband, was not a coincidence. Men measured their masculinity against other men as often as against women.21 Day was not alone in his concerns, however irrational. Henry Williams, a reservist who had fought in the Boer War, became convinced that his lover, a widow, had committed adultery, though she denied it. He cut his five-year-old daughter’s throat in order, he wrote to her mother, to ‘break your heart and brand you, so that you will never hold up your head in the world again’. His anger was the result of being tormented that another man would have his child: ‘Do you think I can let my little Maggie call another man “Daddy”? It would drive me stark raving mad.’ Williams had a previous conviction for molesting his stepdaughter (in 1899), and the civil servants saw no reason to reprieve him. Knowing that his partner had allowed him to abuse her daughter, he claimed to be concerned that she would do so again, this time with his own little girl as the victim. The HO, however, refused to let him benefit from his own criminal past, and he hanged in October 1902.22

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These cases show that competing definitions of fatherhood made for deep frustrations for men. The father of an illegitimate child had no legal standing, but the mother could nevertheless affiliate him. As he was not a husband, he could not control his lover’s actions, nor did he have the right to ‘correct’ her or the children. Women could refuse to share resources, to live with the men, or to allow access to the children. Men who did not marry the mothers of their children, then, lost the domestic authority husbands assumed, and some struck back violently. Judges and juries, though, regarded the problems as by-products of the men’s refusal to take responsibility for dependants, a man’s duty, and these men certainly assumed contradictory positions about fatherhood. They limited the role of providing to legitimate family and those of their own blood (and did not always pay even then), but objected when other men supported their children. In addition, men guarded their reputations and feared scandals. Middle-class men were horrified at their sexual ‘falls’ becoming public knowledge and went to elaborate lengths to avoid it. Few of these motives much impressed the criminal courts. A  woman in this position almost always received mercy because, as Patrizia Guarnieri put it, ‘She was guilty of only a minor crime because she was entitled to recognition as a victim … of a cultural mentality which discriminated against her and ruined her life.’23 A man was not in this position. He did not give birth and so could not blame physical problems or emotional fragility. He had a higher capacity to earn so could not plead poverty as effectively. In addition, the courts insisted that men should be able to control their emotions. Most importantly, if a man did not marry the mother of his child, he had only himself to blame when things went wrong. In short, many men wanted to support their families only when they saw the duty as valid, but the criminal law, in contrast to the poor law, rarely recognised these exceptions. Irregular and blended families With provision, secrecy, and revenge, the fact that the child was illegitimate was central to men’s violence against them. A different side of men’s experience with illegitimacy was revealed by twenty-three of the violence cases and the neglect/cruelty cases. These divided into two groups  – men who lived in cohabiting

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relationships and stepfathers. Children in cohabiting families might well be unaware of their parents’ status, and their family life was similar to the children of married couples. In the second type, step-parenting, the role of illegitimacy depended on the stepfather’s attitude. If he was happy to care for the child, illegitimacy did not matter; if he was unhappy, it mattered a great deal. This point was clearest with everyday violence (from discipline or drunkenness), which accounted for 19 per cent of the trials.24 Stepfathers were the most frequently charged men in this group, fourteen of the defendants (64 per cent). Fathers followed with six (almost all in stable cohabiting relationships); the other three were other kin or adopters. These cases do not differ from fathers/stepfathers of legitimate children. Physical chastisement was a normal part of child-rearing for the working class. Unless the juries had reason to believe a man did not want the child, they assumed men did not intend to kill. In fact, in six cases, the violence came out of drunkenness. Stepfathers who accepted their responsibility to provide were usually charged with assault or cruelty rather than higher charges, and served six to twelve months. In most over-discipline cases, the few longer sentences were the result of the clash between working-class norms of discipline and those of the upper-class magistrates rather than illegitimacy. Neglect cases had a similar dynamic. In these cases, men and women were charged together, often receiving similar punishments. Again, middle-class expectations of cleanliness and respectability clashed with the norms for most working-class housing. Men were more responsible only if they used violence or had failed to provide a suitable home. In 1899, Ellen and Elijah Curtis both went to jail for three months for the neglect of Ellen’s two-year-old daughter, one of their six children. Elijah earned only £1 a week to support eight people, so he blamed poverty for the state of the house. The jury convicted them both anyway, partly because they ignored a doctor’s advice about the sick child.25 In these cases, the fathers acted as legal guardians, and the courts treated them as such. In addition, mothers often shared the blame in neglect cases because of their responsibility for the home. As long as the illegitimacy of the victims was irrelevant, the punishments showed few differences between men and women. As these examples indicate, men were far more likely to have female co-defendants than women were to have male ones. Women

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were tried with men in 34 per cent of men’s trials, while women had male co-defendants in less than 5 per cent of theirs. In nineteen trials, the cases involved both biological parents of the child; in fifteen, the stepfather and mother; in four, the father and stepmother; in nine, adopters or baby farmers.26 When both men and women were tried on the same violence charge, they were both found guilty in twenty-six cases (55 per cent). The man and woman got the same sentence in ten of those cases; the man got a longer sentence thirteen times, and the woman got a longer sentence in only three. The most likely scenario, then, was for both defendants to be found guilty, and either to have the same sentence or the man to get the longer one. Both defendants were acquitted eight times, so the two rose or fell together in thirty-four of forty-seven cases (in five cases the outcome was unclear).27 Most of the cases of two biological parents with similar outcomes we have already seen; they involved concealment or neglect/assault charges. Men who got longer sentences were exemplary cases, like Dilley, or men who had a strong influence on their lovers. In only one case, the biological father was found guilty while the mother was entirely acquitted. In 1896, Joseph Hirst, a bricklayer, lived with Martha Ann Goddard and their three-month-old baby in Stockport. Hirst strangled the baby one night when Goddard was gone. At first, she helped him to cover up the crime; the two tied a stone to the body and threw it in the water. After they were arrested, she testified against him, and the charges against her were dropped. She claimed he had threatened the baby repeatedly and ‘threatened to do for me if I ever mentioned the matter’. She also said he ‘forced me to walk the streets … and has beaten me because I refused’. Not surprisingly, the jury found Hirst guilty of murder, and he hanged. Interestingly, Joseph agreed with the judge and jury: ‘Martha Ann Goddard is not to blame at all she was under my influence and did anything I told her … in my opinion [she was] … not at all responsible for her actions.’28 In this case, even Hirst agreed that his violation of masculine norms was egregious, so he shielded a mate he had previously abused. When the parents were not both biologically related, men again usually got equal or harsher treatment. In thirteen cases, the co-defendants were biological mothers and stepfathers. Both were found guilty seven times and got the same punishment in three. All of these latter cases involved the mothers’ pre-marital children.

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In four cases, the verdict was the same, but the punishments varied, with men getting harsher treatment in three.29 Only four cases involved biological fathers and stepmothers, in part because fathers seldom had custody of these children and in part because stepmothers, despite their bad reputations, were less violent than stepfathers. Both were found guilty in three cases, while a man was found guilty, but the stepmother acquitted, in the fourth. In the three dual convictions, the man got more punishment twice and the woman once. Thus, in three of the four cases, the courts blamed the biological father more.30 As this brief review showed, in contrast to stepfathers, stepmothers partnered with biological parents figured in few crimes. Such cases were culturally significant, as they received a great deal of press coverage, fitting, as they did, with long-held stereotypes, but were atypical overall. The most famous was the murder of Eliza Stilltoe in 1864, daughter of Richard Hale, a puddler. Eliza was Richard’s daughter with his first wife, born before his marriage to her mother. The mother had died, and Eliza lived with her father and his cohabitee, Cecilia Baker. The prosecution’s case was that the couple took Eliza to a corn field, and Hale killed her because he wanted to emigrate without her. The main witness testified that at one point Eliza broke away, but Baker carried her back. Her body was found in the field, suffocated to death. The defence argued that a stranger had killed the child, but the jury found both guilty. Baker was pregnant, so she was reprieved. The press applauded the verdicts, but the Observer deplored the mercy shown Baker: ‘If [Hale’s] conduct has been so atrocious, that of the woman Baker is even worse. It was she, according to the evidence, who handed the child to the murderer … The inference to be drawn, therefore, is that it was she who was the real instigator of the crime.’ The leaps of ‘logic’ in this argument were many; that Baker was present and did not stop Hale hardly proved that she instigated the crime. Clearly, the editors assumed she felt malice to a child not her own, but without much evidence. At any rate, Hale hanged while Baker was reprieved, though she was still in prison thirteen years later, when she unsuccessfully petitioned for release.31 She was too close to the ‘evil stepmother’ stereotype to provoke much sympathy. I have only two stepmothers tried alone for murders of illegitimate children. Both were found guilty, one was for a manslaughter that may have been an accident (she got twelve months).32 The

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stepmother accused and found guilty of murder was the notorious Frances Kidder in 1868. Kidder married the father of Louisa Staples, who went missing at the age of eleven. A search party found her drowned to death. Kidder had mistreated her stepdaughter, and neighbours heard her threaten the child, so she was the obvious suspect. The jury took twelve minutes to find her guilty, and Justice Byles recommended against respiting the sentence. The HO let the hanging proceed. Like Cecilia Baker, Kidder was a ‘monster’ stepmother who seemingly murdered without remorse. Unlike Baker, she was not pregnant, so had no way to avoid the noose.33 Still, Kidder’s fate was notable precisely because it was so unusual. Instead, like stepfathers, stepmothers mostly faced the lesser charges of manslaughter, cruelty, or neglect, and often did so with their partners. In cruelty/neglect trials, stepmothers were tried with biological fathers in four cases. In two, the stepmother got a longer sentences because she treated the child in question much worse than other children in the family. For the most part, though, judges and juries held fathers equally responsible when their children suffered under their roofs. Like so much else with men, this strictness was related to provision. A  man who did not provide a decent home could not expect his partner to keep it well.34 Overall, the cases with partner defendants showed that most men and women were convicted or acquitted together. When they did differentiate, juries found men guilty more often than women, yet another way masculinity was a disadvantage in criminal trials with illegitimate victims. Men also figured in cases with wider kin, but not as frequently as in the blended families. My sample of violence cases includes eight aunts or uncles and six grandparents. An unmarried mother often turned first to her parents for help in nursing the child; if this failed, she appealed to a sister. Grandmothers rarely committed violence against their grandchildren. Instead, they often had difficulty caring for youngsters, so neglect-type cases were common, only getting convictions in cases with alcohol or violence. In 1906, Kate Spencer got the blame when her nineteen-month-old grandchild wandered into the fire because she was drunk at the time. Spencer insisted ‘She had done her best for it’, but the Manchester bench gave her six months.35 Without aggravating factors, these cases mostly got acquittals, due to poverty. A  household headed by a woman had little money, and a dry-fed infant was vulnerable to infection. Thus, grandmothers’ cases were frequently about their class status, not

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illegitimacy. This was true of the rare cases with grandfathers as well. John Redwood was seventy when he nearly decapitated his two-year-old grandson; he explained that ‘He had had nothing but bread for a few weeks, as he had only 14s. per week pension to keep five persons.’ Given the gruesome nature of the violence, Redwood was found unfit to plead and died in an asylum two weeks after his trial in May 1875.36 The other large group of relatives who agreed to nurse babies were maternal aunts and uncles; like grandmothers, aunts frequently took babies for sums that would not keep the child well. Catherine Haycock took her sister’s child, but got arrested for neglect when it was only three to four months old because she could not feed it properly on the money her sister paid. She got two months at hard labour from the Pontypool Police Court.37 Married sisters made a more economically sound choice, since they had male breadwinners, but uncles-by-marriage were not always enthusiastic hosts. George and Mary Ann Brasington took in her nephew when he was a baby. In 1900, at eight years old, John, the boy, was ragged, thin, and verminous, unlike his cousins. In this case, the court blamed George more; he went to prison for three months, while Mary Ann was discharged.38 As this short review shows, cases involving wider kin were not numerous. A baby was usually in better hands with kin, particularly homes with male breadwinners. When relatives got weekly sums from one or both parents, the benefits outweighed the disadvantages of living with them. Still, the theme of poverty again emerged; those cases that reached the courts almost always involved neglect or poor feeding. The financial burden of an illegitimate child spiralled out to the whole family. How much the child was ‘one of the family’, then, depended on resources and luck. Fictive kin: nurses, foster parents, adoption Illegitimates, like orphans, were subject to movement between family members and non-related carers. So many women had to use nurses for their children that many babies stayed with strangers. Nurses got much of the blame for any harm that came to their charges, but most were simply trying to eke out a living in one of the few jobs they could do. As a result, their conviction rate was low. I have twenty cases of female nurses accused of violence, ten

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with male defendants (adopted fathers or husbands of nurse wives), and thirty-four cases of neglect or cruelty by nurses or adopted parents. Of the sixteen manslaughter cases with women nurses, only four were convicted. As usual, neglect was difficult to separate from poverty and ignorance. The male cases divided into three charges of murder (one acquittal, two guilty of manslaughter); six charges of manslaughter (four guilty, one guilty of a lesser charge); and one assault case (a conviction). Finally, nurses were found guilty of neglect eighteen times and not guilty in thirteen, and convicted of lower charges in two. Over all, the chance of convicting adopters or nurses (excluding baby farmers) was lower than with violence cases. Nurses accused of manslaughter were a case in point. Only the most egregious cases resulted in convictions, since most of the women brought to trial received weekly payments and thus had no motive to do away with the children. As Ruth Homrighaus has demonstrated, ‘baby farmers’, who took in children for weekly sums, filled a necessary function, and children died because they were dry-nursed, not from violence. Following the customs of the time, nurses fed infants starchy diets that led to intestinal problems, or the babies got diarrhoea and could not retain enough nutrition to survive. For instance, Mary Ann Morer took in a two-month-old boy, the son of a servant, for a few shillings a week. Mary Ann’s husband was so fond of the boy that he ‘would keep it for nothing’, but the infant died in June 1868. Fed on ‘boiled bread’ and ‘a little milk and water’, he succumbed to one of the many digestive ailments that attacked infants. Thus, the judge directed an acquittal.39 Women nurses who did get convictions for manslaughter had to have been ‘culpably’ neglectful. In some of these cases, the primary problem was carelessness and/or alcoholism, and these cases resulted in sentences from two to eighteen months. In 1881, Mary Ann Proctor, fifty, was tried in Manchester for the death of a two-year-old girl. Betsy Stocks paid her four shillings a week to care for the baby. The baby died of starvation, but she also had two broken legs and a body covered with bruises and abrasions. Justice Williams, in sentencing Proctor to five years, complained, ‘she appeared to have neglected it and ill-used it without mercy, watching its little life die out inch by inch’.40 The appearance of violence made this conviction more likely. And an unrelated nurse, as a stranger to the child, was more suspect to authorities than family, though, statistically, less likely to commit the crime.

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Such cases were frequent because single mothers needed day care. If a woman’s mother or sisters failed her, a nurse was her only option. With the best will in the world, mothers and nurses could often not keep dry-fed babies alive, and not all these women had the best wills. Many nurses had other jobs to supplement the small payments from mothers, so left the infants unattended; others drank to excess. Judges and juries had difficulty determining ‘criminal neglect’ in this context. They also often suspected some mothers hoped the babies would die, but they could not prove collusion, and poor nurses who got weekly payments had no motive to kill their charges. These women were, then, mainly guilty of poverty, and the children disadvantaged in not having fathers to support them. Again, the interaction of class and gender – and the utter lack of provision from fathers or the State – was the crucial feature in these children’s early deaths. Criminal baby farming What Homrighaus has called ‘criminal baby farming’ made up a small percentage of cases, but, much like stepmother cases, loomed large in the public discussion. Criminal baby farmers differed from nurses in several ways, primarily in their business-like approach. Most either answered advertisements of mothers or gave out ads themselves for babies to adopt. They accepted lump sums and gave false names and addresses to avoid being traced. Only a minority deliberately murdered children. More often, they put the children out to sub-farmers for a weekly sum and then disappeared or simply abandoned babies on roads or in fields. Still others waited for hand-fed children to succumb to disease or malnourishment. Female baby farmers horrified the Victorian public because they profited from an activity that was supposed to be ‘natural’ to women. As a result, baby farmers got far harsher treatment than other women defendants.41 I have only thirty-four cases involving criminal baby farming (0.25 per cent of all cases) – twelve for murder, ten for manslaughter, one for attempted murder, one for collecting money under false pretenses, five for neglect, and eight for violations of the Infant Life Protection Act (ILPA) of 1872 (eventually expanded in the Children Acts of 1889 and 1908). The number of these trials, then, was infinitesimal compared to those of mothers, but their profit

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motives gave them great prominence. The trials for murder resulted in seven guilty verdicts (seven women hanged, though two were hanged together in one case, so one defendant was respited). Four of those accused of murder were found guilty of manslaughter. The manslaughter trials had nine guilty verdicts and one found guilty of false representation. Thus, juries were unlikely to acquit criminal baby farmers; if the latter did not hang for murder, they faced long prison spells. The cases with women baby farmers found guilty of murder dominated the Victorian press and much subsequent coverage by historians. The infamous cases were those of Margaret Waters, Charlotte Winsor, Rhoda Willis/Leslie James, the duo of Amelia Sachs and Annie Waters, and Amelia Dyer. Some were mentally ill, while others were convicted primarily because they treated babies like commodities. The relatives of these infants probably suspected that such ‘adopters’ were too good to be true. Dyer was unbalanced, but people continued to pay her to take their babies until she was finally caught and hanged. In the case of Charlotte Winsor, the mother of the child colluded with her to kill the baby and escaped the murder charge by turning State’s evidence. The press and public expressed great outrage at their ‘fiendish’ behaviour, but, as Homrighaus has argued, baby farmers’ actions were only an extreme version of the common view that illegitimate children’s lives were not as valuable as others.42 ‘Nurses’ or ‘adopters’ raised the most suspicions when they asked for lump sums and used advertisements, both of which betokened a business relationship. These sums ranged anywhere from £5 to £50 per child; baby farmers could make a good living. Though murder cases got most of the attention, manslaughter was charged around half the time, especially for a woman alone. Any ‘adopter’ who used advertisements, accepted lump sums, gave false names, or took in multiple children raised suspicions. In 1898, Maud McKenzie ‘adopted’ Fanny Tear’s son for £10; McKenzie had answered Tear’s advertisement, asking for an adopter. When the child died of starvation, McKenzie was charged with manslaughter and got twelve months at hard labour from Justice Ridley.43 In 1899, Amy Douglas put in an advertisement to adopt babies, and Esther Hodson answered it, eventually paying £5 5s for Douglas to take charge of her daughter. The authorities were alerted when the baby girl died. They discovered then that Douglas had three other

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adopted children, all neglected. Still, she was tried for manslaughter, not murder, though in this case Justice Phillimore gave her five years.44 Women who got the longest prison sentences for manslaughter used methods other than neglect. In 1909, Jessie Byers was tried for the manslaughter of a five-month-old boy. Lizzie Turnball had advertised for someone to adopt her son, and Byers agreed to do so for £5. Byers dosed him with laudanum, stuck a towel in his mouth, and threw him over the railings in Finsbury Park. Unfortunately for her, he was found alive, though he later died. Justice Channell gave her ten years, since she ‘had been morally guilty of murder of the child’.45 Byers did not get the capital charge because she did not directly kill the baby. What is most striking, though, in all these instances, was the small sums involved; the mothers had to know that £5–£10 would not go far in keeping their children. As Cathryn Wilson found in her large-scale study, gender mattered less in these cases than historians have assumed, based on the notorious trials. Though the mental picture of a ‘baby farmer’ was female, women were tried with male partners many times, and men also helped with the advertisements, transporting the babies, and keeping accounts. In my database, men were charged eleven times for baby-farming offences, close to a third of the time (four murders, five manslaughters, one for false pretenses, and one for neglect). In sensational trials like that of Ada Chard Williams and her husband, the woman took the blame and received the penalty (in the case of Williams, a hanging). Often, men’s claims of ignorance stretched credulity to the breaking point, but juries sometimes accepted them, especially when wives insisted it was true.46 A 1919 manslaughter case showed this dynamic. Henry and Beatrice Hatchard took in multiple children (the police found nine in the house). Henry claimed to know nothing about his wife’s business, although how he could fail to notice nine poorly-cared-for children is something of a mystery. Two of the children died and four others were neglected, so this was an egregious case. Henry, however, succeeded in his argument that he was ignorant, helped by the fact that Beatrice shielded him. He was acquitted on all charges, whereas she was convicted on all. Justice Darling insisted that ‘the case of the man was very different from that of the woman’. Henry worked long hours and had simply failed to ‘keep his wife in order’. Beatrice, though, knew what she was doing: ‘These children … are

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absolutely defenceless in the hands of … women like you, who for their own most sordid purposes take them from parents who do not want them.’ Given Darling’s attitude, Beatrice was fortunate to get only five years.47 But she and Ada Chard Williams were exemplary cases that did not reflect the general run of baby-farming trials. In most of the others, whatever the charge, both the man and the woman were found guilty and received identical sentences. For example, except for the Hatchard case, juries convicted both the men and women of manslaughter in trials where the charge was murder. In the four with manslaughter as the highest charge, at least one of the two defendants was found guilty, and in only one did the woman get more blame. In addition, in the two cases of false pretenses, both partners were found guilty and both men got longer sentences than their female partners. No men hanged for murder in baby-farming trials, then, but the majority spent months or years in prison. Such cases involved large-scale businesses that implied a male head; they also usually had multiple child victims. Thus, the perpetrators, male and female, drew great scorn from the press and the court. Indeed, the longest sentence for manslaughter in all my cases was the life sentences handed down to both John and Catherine Barns in 1879. The husband-and-wife team used advertisements to find clients and sometimes got as much as £60 for adopting babies. Most of the babies died quickly of natural causes. They finally got convicted for a three-month-old girl who starved to death under their ‘care’. The Barnses always told mothers that they were a childless couple and wanted the babies for themselves, usually giving false names. Justice Brett explained the long sentences to the defendants: ‘You have been guilty for years past of the vilest trade that human malignity could have ever invented … this is a case of as bad manslaughter as was ever brought to the attention of the Court.’ Both served the full twenty years in prison; officials were determined not to let them out a day early. In her petitions for early release, Catherine blamed John for the crimes, but the civil servants disdained both equally.48 In all of these trials, hypocrisy was rampant. Mothers and kin paid small amounts to strangers, probably hoping never to see the children again. Newspapers seldom pointed that out, though an occasional trial brought the issue to the fore. At the end of the Barnses’ trial, a Times editorial insisted, ‘When a woman takes her

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illegitimate child to a total stranger and hopes that for a sum of £10 to £30 the child will be tenderly treated and carefully brought up, she must be either singularly callous or singularly ignorant.’49 Similarly, in the Hatchard trial, Darling described the children as those whose ‘parents do not want them’. Yet no parents faced charges, nor did the wider kin who had abandoned them. And though many people expressed horror at the fates of these children, few were willing to pay more for poor relief, to found creches, or pay single mothers decent wages. Thus, children remained vulnerable to abuse from a number of sources, moved from person to person with little regulation. Middle-class crimes The vast majority of those tried for neglect were working class, but a few middle-class or lower-middle-class defendants also appeared. These defendants were usually adopters, employers, or charity workers. Most were women, but when men appeared, they got similar sentences to their female co-defendants. Some of the longest sentences and greatest scorn went to employers charged with cruelty or neglect of servants. In general, these employers kept up appearances with great difficulty, but this did not earn them leniency. Many were single or widowed women who had only a slim hold on respectability. The defendants were not wealthy, but instead wives of small farmers, school mistresses, and other lower-middle-class professions. They were, then, the most likely to want a general servant, and, tellingly, a ‘friendless’ one whom they could exploit without interference. Their difficulties were compounded when groups like the NSPCC and school boards began insisting on better treatment and elementary education for all children. In addition, child servants were old enough to testify against employers, showing their suffering on their bodies and with their words. In 1880, Emily Scott, a mistress of a small school in London, faced charges of neglecting her fourteen-year-old servant, Eleanor Houseman. Eleanor grew up in Scarborough. When she was eleven, a ‘gentleman’ brought her to London, and Scott paid a lump sum for the girl’s services. None of the reports of the trial ever revealed the identity of this guardian, or why he had the power to sell Houseman as a servant, but his participation again demonstrated the (often ignored) role of men in these trials. Like many maids-of-all-work,

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Houseman had a great deal to do, and Scott did not feed her well. Eventually, a constable found Eleanor in convulsions and took her to the infirmary. The doctor described her as ‘more like a mummy than a human being’, and she lost part of her toes to frostbite. Scott barely made a profit on her school and insisted that Houseman ate the same food as the others. She defended her respectability fiercely, and two students and the local vicar testified for her. The jury nevertheless convicted her, mainly because within hours of Eleanor’s death, Scott wrote letters to various people, asking if they knew of a girl ‘with no friends’ who could be a replacement. She clearly wanted a free hand to overwork any girl who came to her, perhaps unable to squeeze out a profit any other way. Agreeing with the misgivings of the jury, the Recorder gave her two years.50 Though Scott was not blameless, the gentleman who virtually sold Eleanor to a cruel employer faced no charges. Eleanor, an unwanted child, was moved around against her will. The role of men was more obvious in an infamous case in 1911. Mary Dorcas Wilesmith, her son John, and her bailiff, George Turner, were all tried for mistreating Florence Pastorfield. Florence, known as Flossie, went as a general servant to Wilesmith at only eight years old. As with Houseman, Pastorfield’s guardian took a lump sum in return for her, and she lived with the Wilesmiths for five years. During that time, Turner had, on more than one occasion, thrashed the girl with a horsewhip after undressing her. Wilesmith also sent Flossie to school only under compulsion, and when the NSPCC intervened, the girl was covered with scars and wounds. Mary insisted that she was fond of Flossie and never approved the whippings. Turner said John was the culprit. Neither the jury nor the judge at the Worcester Quarter Sessions believed them. The Recorder scolded Mary because she ‘knew [that] … a man given to violent language and violent conduct … was not a person to have anything to do with the girl’. Turner, for his part, ‘was guilty of gross violence … in unseemly, if fact, indecent, circumstances’. Both got the maximum penalty under the Children Act – two years. (John was discharged for time served for an assault on another servant, a boy.) The Manchester Guardian applauded the court for not letting class, age, or gender temper the sentences in ‘one of the most revolting cases of the kind’:  ‘[The sentence] attaches a social stigma which, in the case of the woman, can never hope to be removed … even after her sentence is completed she can have

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no hope of a return to the way of life she has hitherto followed.’51 Again, the mysterious guardians who had sold an eight-year-old girl into virtual slavery faced no punishment; Flossie was another child deserted by her guardians to the exploitation of strangers. Although all these cases were unusual, they did show that with power and position came responsibility. Middle-class people faced longer penalties if they brought their class into disrepute, even those clinging to respectability by a slender thread. Young servant girls, especially, provoked protective feelings (Flossie got far more press coverage than her male counterpart). The respectable as well as the poor came under scrutiny with the increasing regulation of childcare. The role of the NSPCC was especially notable in the Wilesmith case; William Clark Hall, one of their legal advisors, acted as the prosecutor. In addition, these employers were faced with older children able to testify to the court on their own behalf. Flossie did so at both the arraignment and the assize trial. Her physical transformation from a beaten drudge to a cheerful, strong girl during the months between the two trials made a great impression on the press and public, and she became something of a local celebrity. After the arraignment, she ‘was driven away in an open coach, had a great ovation, being loudly cheered all along High Street’.52 Still, as in the ‘baby-farming’ cases, the public ignored the collusive role of the families as well as the role of bastardy and poor laws in encouraging parents and guardians to dispose of illegitimates through dubious means. Conclusion As these two chapters have shown, illegitimate children were overwhelmingly victims in the criminal courts and almost entirely silent ones. Mothers, fathers, step-parents, wider kin, and nurses all had motives to do away with them. Though the criminal courts were harder on non-maternal defendants, mothers were collusive in many crimes. In addition, poor-law unions and charities were not always careful about the nurses they used. Even with the best of intentions, nurses lost a number of infants to infections or accidents  – and some did not have the best intentions. Some mothers tried to visit their children and paid regularly, but others paid strangers small sums to carry their children away. Many of them must have known they were dooming their children to early graves, as did fathers who

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offered no help at all, but both chose to ignore the consequences. Except in criminal baby farming, the press and public preferred to deplore these results without doing anything useful about them. Poor women were the vast majority of defendants in criminal trials involving illegitimates – as mothers, as nurses, as baby farmers, and as employers. Indeed, historians have pointed out the bias of the courts against women in domestic crimes. Especially in neglect cases, women got more of the blame for deficiencies in the household. Additionally, courts assumed baby farming and nursing were ‘women’s work’. Still, when the courts did bring charges against men, the men were convicted a high percentage of the time. Fathers and stepfathers were held accountable for the deaths or injuries of their children, and far more fathers hanged for the murder of infants than mothers. In baby-farming cases, most men who got charged faced equal penalties with their wives, especially in large-scale businesses (though, of course, many men were likely not charged). Gender and class interacted in complex ways in the criminal justice system. For women, the closer the relationship between perpetrator and victim (mother–child), the more merciful the court; the few women who hanged for murder were overwhelmingly baby farmers. Juries and judges treated poor mothers especially sympathetically. In contrast, for men, the closer the relationship between perpetrator and victim (father–child), the harsher the court. No male baby farmers hanged, but many fathers and stepfathers did. Neither shame nor poverty were acceptable excuses for them. The one place where gender did not change the courts’ attitude was in step-parenting; both stepmothers and stepfathers were suspect to judges and juries. Though in practice, step-parents were often good to stepchildren, the cultural assumption of their hostility was strong. In addition, class factors were complicated. Middle-class defendants, though arrested less often, were exemplary defendants and got long sentences. A middle-class man trying to avoid scandal received little sympathy, and middle-class employers were expected to maintain respectability and compassion. If they did not do so, they took the consequences. A man, or a middle-class person, had advantages poor women did not, and juries and judges had little reason to mitigate punishments as a result. In the case of men, this dynamic ironically meant that men who took responsibility for their children sometimes faced far more penalties than the majority of fathers who simply walked away.

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Fathers, wider kin, and strangers did not get the almost automatic sympathy that mothers generated, though their needs were often as great. The reason was both class and gender expectations, as well as their relationships to the children. Stranger murders were the most deplored, as these had ‘mercenary’ motives, but increasingly child welfare reformers demanded higher standards of living for all children, and this included those ‘outside the law’. Eventually, the 1908 Children Act, which allowed regulation of all nurses of children under six years old, eliminated baby farming as a large problem. Only with the 1926 Adoption Act, though, did a viable alternative to fostering or institutional care emerge. Between 1860 and 1927, an unwed mother had to rely on her family or poorly paid nurses to rear her child. If these failed, her only other recourse was the poor law. Notes 1 J. Tosh, A Man’s Place:  Masculinity and the Middle-Class Home in Victorian England (New Haven:  Yale University Press, 1999), pp. 79–101; L. Davidoff and C. Hall, Family Fortunes: Men and Women of the English Middle Class, 1780–1850 (Chicago: Chicago University Press, 1987), pp.  321–56; J.  Gillis, For Better, For Worse:  British Marriage, 1600 to the Present (Oxford:  Oxford University Press, 1985), pp.  348–59; G.  Behlmer, Friends of the Family:  The English Home and its Guardians, 1850–1940 (Stanford:  Stanford University Press, 1998), pp.  181–229; M.  Doolittle, ‘Fatherhood and family shame:  Masculinity, welfare and the workhouse in late nineteenth-century England’, in L.  Delap, B.  Griffin, and A.  Wills, eds, The Politics of Domestic Authority in Britain Since 1800 (Basingstoke:  Palgrave, 2009), pp.  84–108; J.  Strange, Fatherhood and the British Working Class, 1865–1914 (Cambridge:  Cambridge University Press, 2015), pp. 21–48, 177–210. 2 C. Conley, Certain Other Countries:  Homicide, Gender and National Identity in Late Nineteenth-Century England, Ireland, Scotland, and Wales (Columbus: Ohio State University Press, 2007), pp. 177–9. 3 Conley, Certain, pp.  178–9; R.  Chadwick, Bureaucratic Mercy:  The Home Office and the Treatment of Capital Cases in Victorian Britain (New York: Garland, 1992), pp. 310–11. 4 Birmingham Daily Mail (21 February 1888), p.  3; The Times (22 February 1888), p. 8. Conley, Certain, pp. 177–9. 5 S. D’Cruze, Crimes of Outrage:  Sex, Violence and Victorian Working Women (DeKalb: Northern Illinois University Press, 1998), p. 68.

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6 HO 144/281/A62017; Leeds Mercury (30 July 1900), p.  3; Western Mail (30 July 1900), p. 4; Manchester Times (17 August 1900), p. 4; The Times (15 August 1900), p. 4; (17 August 1900), p. 8. 7 C. Wilson, ‘Mad, Sad, or Bad? Newspaper and Judicial Representations of Men who Killed Children in Victorian England, 1860–1900’ (DPhil Dissertation, University of Essex, 2012), 211–12; J.  V. Shepherd, ‘Victorian Madmen:  Broadmoor, Masculinity, and the Experiences of the Criminally Insane, 1863–1900’ (DPhil Dissertation, Lancaster University, 2014), 170–207. 8 The Times (16 June 1911), p. 4; (21 June 1911), p. 7; HO 144/19781/5, 28–30. 9 The Times (27 June 1922), p.  5; (8 July 1922), p.  8; Manchester Guardian (27 June 1922), p.  9; (4 July 1922), p.  11; (6 July 1922), p. 10; (8 July 1922), p. 11. 10 The Times (24 December 1891), p. 9; (8 January 1892), p. 5; Lloyd’s Weekly Newspaper (24 January 1892), p. 15; Western Mail (9 January 1892), p. 6. 11 The Times (1 March 1902), p.  5. For a case using the new act, see Liverpool Daily Post (11 June 1914), p. 5. 12 Manchester Guardian (10 January 1928), p. 3. 13 The Times (16 February 1885), p. 10; Conley, Certain, pp. 178–9. 14 The Times (10 March 1906), p. 4; POBO, 5 March 1906 (no case number), HO 144/1005/138459/7, 15. 15 The Times (28 October 1882), pp. 9–10; Exeter and Plymouth Gazette Daily Telegram (28 October 1882), p.  3; NA, ASSI 21/70; ASSI 25/54/34; ASSI 26/18; HO 144/104/A21506. My thanks to Daniel Grey for sharing his research on Bartlett. See also Wilson, ‘Mad, Sad, or Bad?’, 249–58. 16 NA, Proceedings of the Central Criminal Court, PCOM 1/116; HO 144/40/83853; The Times (12 June 1879), p.  14; (9 August 1879), p. 11; (11 August 1879), p. 11. Shepherd, ‘Victorian Madmen’, 191. 17 Western Mail (30 September 1893), p. 5; The Times (13 October 1893), p. 4; (21 October 1893), p. 9; (24 November 1893), p. 11; Aberdeen Weekly (29 November 1893), p.  6; Manchester Times (1 December 1893), p. 3. 18 Manchester Guardian (6 October 1875), p.  6; Manchester Times (4 December 1875), p. 6. 19 C. Conley, The Unwritten Law:  Criminal Justice in Victorian Kent (New York: Oxford University Press, 1991), pp. 108–9. 20 HO 144/125/A32776/3, 10; ASSI 36/28, Magistrates Depositions, South-eastern Circuit; Supplement to the Norwich Chronicle and Norwich Gazette (3 November 1883), p.  2; The Times (27 October 1883), p. 6.

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21 Supplement to the Norwich Chronicle and Norwich Gazette (3 November 1883), p. 2. 22 The Times (12 September 1902), p. 7; (17 September 1902), p. 11; (24 October 1902), p.  7; (12 November 1902), p.  9; POBO, 20 October 1902, Case #735. 23 P. Guarnieri, ‘Men committing female crime:  Infanticide, family and honor in Italy, 1890–1981’, Crime, History, and Societies 13:2 (2009), 49. 24 Conley, Certain, pp. 95–205. 25 The Times (4 January 1899), p. 9; (17 February 1899), p. 4. 26 A man was tried with other men three times, all unrelated friends. 27 These statistics match those of Wilson, ‘Mad, Sad, or Bad?’, 268–76. 28 ASSI 52/32, Magistrate’s Depositions, Charge Sheet, and Statements; The Times (15 July 1896), p.  12; (5 August 1896), p.  9; Manchester Guardian (15 July 1896), p. 3. 29 The Times (22 April 1915), p. 7. 30 The Times (24 July 1903), p. 10. 31 HO 45/9375/40246; The Times (7 December 1864), p. 11; (23 December 1864), p. 10; Oxford Times (10 December 1864), p. 2; Glasgow Herald (29 December 1864), p. 3. 32 The Times (28 June 1883), p. 7; POBO, 25 June 1883, Case #659. 33 Maidstone and Kentish Journal (16 March 1868), p. 2; The Times (13 March 1868), p. 11; (25 March 1868), p. 5; (3 April 1868), p. 12; ASSI 36/14, Depositions and Coroner’s Report, 1868. Conley, Unwritten Law, p. 108; J. Knelman, Twisting in the Wind: The Murderess and the English Press (Toronto: University of Toronto Press, 1998), pp. 132–3. 34 For examples, see The Times (6 March 1901), p. 9; (28 March 1901), p. 15; POBO, 25 March 1901, Case #278; Western Mail (27 February 1900), p. 7. 35 Manchester Guardian (28 March 1906), p. 3. 36 POBO, 3 May 1875, Case #362; The Times (16 March 1875), p. 5; (17 March 1875), p. 13; (24 March 1875), p. 11 (for quote); (6 May 1875), p. 11; (25 May 1875), p. 11. 37 Western Mail (18 November 1895), p. 3. 38 Western Mail (20 July 1900), p. 7. 39 R. Homrighaus, ‘Baby Farming:  The Care of Illegitimate Children in England, 1860–1943’ (PhD Dissertation, University of North Carolina at Chapel Hill, 2003), 150–8; POBO, 17 August 1868, Case #731; The Times (18 August 1868), p. 9. 40 Manchester Guardian (4 May 1881), p. 6. 41 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; L.  Rose, Massacre of the Innocents:  Infanticide in

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Great Britain, 1800–1939 (London: Routledge and Kegan Paul, 1986), pp. 41–5, 93–107; 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. 42 Homrighaus, ‘Baby Farming’, 52–89; 158–81; ‘Wolves’, 359–63; Arnot, ‘Infant death’, 277–80; A. Ballinger, Dead Woman Walking: Executed Women in England and Wales, 1900–1955 (Aldershot: Ashgate, 2000), pp.  81–103; Chadwick, Bureaucratic Mercy, pp.  299–300; Conley, Certain, pp.  201–2; Unwritten Law, pp.  116–17; Rose, Massacre, pp.  41–2, 95–102, 113–14, 151–2; S.  Swain, ‘Toward a social geography of baby farming’, History of the Family 10:2 (2005), 151–9; Behlmer, Friends, pp. 274–84. 43 POBO, 28 March 1898, Case #288. 44 POBO, 12 September 1899, Case #624; The Times (18 Setpember 1899), p. 2; (19 September 1899), p. 9. 45 POBO, 7 December 1909 (no case number); The Times (2 December 1909), p. 4; (10 December 1909), p. 4; for a previous conviction, see Manchester Guardian (3 January 1907), p. 8. 46 Wilson, ‘Mad, Sad, or Bad?’, 237–84; HO 144/280/A61654/33–34; POBO, 12 February 1900, Case #185; Reynolds’s Newspaper (18 February 1900), p. 8; Northern Echo (7 March 1900), p. 3; D. Grey, ‘ “More ignorant and stupid than wilfully cruel”: Homicide trials and “baby-farming” in England and Wales in the wake of the Children Act 1908’, Crimes and Misdemeanours 3:2 (2009), 74–5; Ballinger, Dead Woman Walking, pp. 66–81. 47 The Times (20 September 1919), p. 7; (22 September 1919), p. 7 (for quotes); Manchester Guardian (31 July 1919), p. 9; (7 August 1919), p. 10; (20 September 1919), p. 12; (22 September 1919), p. 10. Grey, ‘More ignorant’, 74–6. 48 HO 144/924/A2946; The Times (30 September 1879), p. 9; (1 October 1879), p.  5; (2 October 1879), p.  5; (16 October 1879), p.  10; (29 October 1879), p. 12; (30 October 1879), pp. 9–10; Western Mail (1 October 1879), p. 3; (30 October 1879), p. 3; Wilson, ‘Mad, Sad, or Bad?’, 278–82. 49 The Times (30 October 1879), p. 9. 50 The Times (7 August 1880), p.  11; (9 August 1880), p.  4; POBO, 3 August 1880, Case #461. 51 Manchester Guardian (24 April 1911), p.  7; (25 April 1911), p.  16; (26 April 1911), p.  14; (1 May 1911), p.  4; (2 May 1911), p.  5, 8; Worcester Daily Times (17 April 1911), p.  3; (22 April 1911), p.  3; (24 April 1911), p. 3; (26 April 1911), 3; (29 April 1911), p. 3; (1 May 1911), p. 3; (23 May 1911), p. 2. 52 Worcester Daily Times (29 April 1911), p. 3.

4

Courts of last resort: affiliation and the poor law The two legal processes illegitimate children were most likely to inspire were often entwined – affiliation proceedings and the poor law. Both offered ways to get provision for ‘fatherless’ children. Affiliation suits did not garner large awards, but ones that supplemented mothers’ wages. Summoning the father also named a second parent of the child and gave him responsibilities he otherwise might shun. At the least, the public nature of the proceedings allowed a child to know paternal relatives, and, in rare instances, a father’s kin became involved in the child’s life. Nevertheless, most men summoned by women made every effort to defeat the suits by belittling the mothers and disowning the children. Thus, the process both identified a father and also highlighted his reluctance to acknowledge the connection. Adding to the complications was the role of the poor law. The guardians took the place of fathers if necessary, but also helped women find individual providers. Moreover, they expanded the family to include grandparents, aunts, uncles, and fictive/adoptive kin. Issues of family, money, and sexuality all intersected in these hearings and when children fell under the guardians’ care. Affiliation cases The law of affiliation suits in the Victorian period was notorious, as it was associated with the bastardy clause of the 1834 New Poor Law. That act largely removed a woman’s right to sue for maintenance from the father of her illegitimate child. Unsurprisingly, this clause was both expensive and unpopular, and in 1844 Parliament passed a limited reform to it. Women could now summon men to the magistrates’ courts to get bastardy orders, but the poor-law guardians

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could not help. A  woman had to sue within a year of the child’s birth unless she could prove that the man had supported the child in the intervening time. In addition, she had to have ‘corroborative evidence’ of the child’s paternity, bore the confinement expenses alone, and paid the court costs up front. Men could also appeal orders to the Quarter Sessions within a month; women, in contrast, had no right to appeal, though they could re-summon men if they found ‘fresh’ evidence.1 Few women took advantage of the 1844 reforms, but Parliament did not confront the problem again until after the infanticide and ‘baby-farming’ scares of the 1860s and 1870s. The 1872 Poor Law Amendment Act allowed the guardians to assist a woman in bringing a summons; they could also sue on their own if the woman received relief. The guardians’ order remained good as long as the woman was in the workhouse and acted as corroborative evidence if she left. The law also raised the maximum allowance to five shillings a week. Clearly, this change did not solve the problems with the 1844 act. Women still paid the expenses of the confinement and the summons, had to supply corroborative evidence, and could not appeal. Men who fled Britain could not be served with summonses at all. Women could re-summon men who fell into arrears, but once men served gaol time, their debts disappeared. Although women could summon men in the armed services after 1873, this applied only to those serving in Britain. Predictably, then, only a small percentage of women sued for affiliation. The number of illegitimate births per year hovered between 38,000 and 42,000, but bastardy orders rarely topped 5,000. Some women were in cohabiting relationships, and others came to private agreements. The high mortality of illegitimate infants also meant that many summonses were unnecessary. Still, women who successfully sued remained a minority, as many historians and contemporaries found.2 The few women who did sue, however, had a good chance of getting an order; around 80 per cent succeeded. Unfortunately, this did not mean the woman got the money. The man could refuse to pay, join the army or navy, or go abroad.3 My sample of affiliation summonses shows a lower rate of success than the average estimated by historians. I have 368 affiliation proceedings, most of which came from the Western Mail, one of the few newspapers to report on affiliation cases systematically.

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Of the 353 with a verdict, 253 cases (70.6 per cent) resulted in the magistrates making the order, while seventy-three summonses were dismissed and fourteen overturned on appeal (24.6 per cent). (The remaining cases were compromises.) These numbers are lower probably because the cases that made the newspapers involved men who could afford effective legal representation. The appeals succeeded 39 per cent of the time (fourteen of thirty-six), so a man had a two in five chance of having the order dismissed at the higher level. Getting the money was also difficult. Thirty-five trials were attempts to collect arrears and another ten cases mentioned specifically that the man had absconded. In short, only a few unwed mothers won their suits and received the money.4 Women bringing these cases were invariably poor, as were the majority of the men they summoned. Of the ninety-eight women with some profession listed, sixty were domestic servants and another fourteen were farm servants. A  mere four were in lower-middle or middle-class professions (two school mistresses, a typist, and a governess). The men were not as poor, but most were not wealthy. Because of the predominance of Welsh cases, most were farmers or colliers. Not all of the cases mention a profession of the defendant, but in 123, the man was working class. Still, sixty-one cases were brought against men who were lower-middle (twenty-eight), middle (twenty-nine), or upper class (four), a third of the defendants. They were over-represented in newspaper accounts, but women also were more likely to seek support from better-off men.5 In addition, the awards were small and unchangeable. If a man became unemployed, the magistrates could not lower the order; if he became wealthy, they could not raise it. The weekly maximum for most of the period under study was five shillings per week, but women did not often get that. Justices reasoned women got nothing if the fathers defaulted. In my cases, the most common award (30.5 per cent) was half of the maximum (2s 6d); the next most common was five shillings (23 per cent), followed by 3s 6d (16.5 per cent) and three shillings (13 per cent); in other words, two-thirds of the awards were less than the maximum. The amounts got larger after Parliament raised the maximum to ten shillings in 1918, but they rarely covered the costs of supporting a child. This was purposeful; an unwed mother should not escape her responsibilities altogether. A woman had to be single to bring an order, but ‘single’ women included widows, separated women, and married women who

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could prove their husbands did not have access. A bastardy order was a personal one, meaning that if the mother or the father died, the order ended. The mother had to give evidence herself; if she was incapacitated physically or mentally, the suit failed. The rules involving adulterous illegitimacy were particularly complex. If the mother married after having the child, but before she tried to get an order, the summons was dismissed, since she was not ‘single’. If the order were made before her marriage, but limited to the time she was single, she could not bring a fresh order when widowed. Only a married woman who married after an order, and whose order was not limited to her single status, could demand maintenance from the father until the order’s end. Also, parents could not ‘bastardise’ their own children, so married women had to testify to the access of the putative father rather than the non-access of their husbands.6 Overwhelmingly, the women in my cases were single; married women, widows, and cohabitees made up only 10 per cent of plaintiffs. Defendants, on the other hand, were married forty-two times (close to 20 per cent). An additional three were widowers, and seven were cohabitees. Married men were in difficult straits, not only because they needed discretion but because they already had families to support, another example of the ripple effect of illegitimacy. In addition, these cases showed how many different personal choices led to illegitimate births – cohabitation, failed courtships, adultery, divorce. Each circumstance had its own difficulties in getting provision. Women won most of the cases for a number of reasons. One was the magistrates’ desire to ‘find fathers’ for these children, but other reasons related to the courts’ view of sexuality and gender roles. These women had failed at a key tenet of femininity (sexual purity), but men had also often failed to be ‘manly’. For example, a man who defaulted on a promise of marriage garnered disapproval. In 1880, Rosina George summoned John Connors because he left her at the altar. At first the Swansea magistrate urged them to marry, but Rosina explained that he had jilted her twice. Mr Phillips then demanded of Connors, ‘Why did not you marry the girl like a man, instead of playing false and disappointing her[?]‌’ He assessed Connors with 3s 6d a week.7 Another problem for men was that their main line of defence, accusing a woman of sexual promiscuity, was double-edged. Such an accusation made a man an unchivalrous bully. Moreover, the only way he could

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be certain she was promiscuous was if he had taken advantage of her willingness, thus admitting to the sexual relationship. In 1869, Ann Jones brought a case against John Williams, and he called her a prostitute, saying, ‘he had had immoral intercourse with her more times than he could number’. Two other men then testified to using her services. Yet, the Cardiff magistrates made the order. If a man admitted to sex, he put his own head in the noose.8 Defendants sometimes pointed to the fact that a woman had had more than one illegitimate child, but this rarely succeeded. Only twenty women had more than one illegitimate child in my cases, and fifteen got the order, while another got a partial order. Nine of these successful applicants had more than one child with the same man, thus had been in stable relationships. This blunted most criticisms of the mothers, since the men were just as guilty; in fact, the magistrates might blame them for refusing to marry. But in six of the successful suits, the women’s children had different fathers, and they still won. Only four cases of women who had more than one illegitimate child resulted in losses, and in three of those, the women’s children had different fathers. Indeed, a man being the father of more than one illegitimate child meant that he, too, lost some credibility with the court. Thirteen of the defendants were fathers of more than one child, and eleven lost their cases. All the same, a vigorous defence led to victory at times. Most crucially, women had to provide evidence of the relationship beyond their testimony. Of the eighty-seven suits that failed, forty-two did so for lack of corroboration (48.2 per cent). Servants, in particular, had few witnesses to courtships. In 1873, Mary Ann Jones worked as a servant for the landlord of a pub, and she claimed his stepson, John Day, was the father of her child. She had no way to back up her claim, and the Llandaff magistrates dismissed the summons.9 For the same reason, the thirteen rape accusations had low levels of success; eight were dismissed for want of corroboration (a 38.4 per cent chance of success). In 1877, Ann Maria White summoned the vicar, Frederick Willett, saying he made improper suggestions for years and finally raped her. Willett ridiculed the story and painted her as a blackmailer. The Birmingham police court magistrates dismissed the summons, and her father’s seduction suit at the Assizes failed as well.10 Parliament had purposely included the demand for independent corroboration on the assumption that women lied in

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sexual cases, and it was effective in limiting the number of women who successfully used the suit. Private agreements The airing of embarrassing details of a sexual relationship was one of the worst aspects of affiliation cases. Women had to be willing to talk about their ‘falls’ in open court, branding them as ‘unwomanly’ twice over, while men came off as heartless seducers or dupes. Thus, both had incentives to settle the matter privately, though doing so had dangers. Women could not be sure the men would pay regularly, and the men basically admitted paternity by opening negotiations, since any financial support corroborated the plaintiffs’ claims. In these instances, the desire for secrecy was stronger for men, as women’s ‘falls’ were already known, due to their pregnancies. Men paid under private agreements in one of two ways  – a single lump sum or a weekly amount. Fathers preferred the lump sum because it was less expensive if the child survived infancy (the median offer from my cases was £15). Women agreed because they liked having the cash in hand. Both partners frequently discovered problems with these arrangements. The money disappeared quickly for the mothers, and fathers found that courts did not hold women to the agreements not to summon them once the money was gone.11 Additionally, agreements that involved weekly sums were complicated to enforce. Many men paid only until they married or had some financial disaster. Women then had to sue, often with the help of magistrates or poor-law guardians. In 1862, Johanna Lane sued Dr Panton for arrears on their agreement that he pay twelve shillings a week for their child. His barrister pointed out that the agreement stated that she would not annoy him further, yet she had unsuccessfully sworn him as the father of her second child. Thus, Panton argued she had breached the agreement. The magistrates urged a compromise; Panton resumed paying twelve shillings a week, and Lane dropped her claim for arrears.12 Women also had to be careful because of the time limits on affiliation suits. In Rendall v. Cole (1882), the mother of three illegitimate children agreed to take £2 a month for the first child; she never asked for more, though she had two more children with the father. When her eldest son reached fourteen, Cole stopped

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paying. Rendall’s two younger children, then, lost their support, and her attempt to affiliate them foundered because she had to have done so within twelve months of their births.13 This case, like so many others, highlighted men’s narrow definition of their responsibilities. A father’s provision was contingent and limited. Affiliation proceedings, despite tarnishing men’s reputations, reinforced men’s views that they had only partial responsibility to provide. Men’s desire to avoid the responsibility was also shown in the high default rates in bastardy cases. Men fell into arrears because they refused to admit paternity, could not afford the payments, or simply did not wish to pay. Women could sue for arrears, but this entailed more costs, and men cleared their debts by serving the gaol time. The sentences when found guilty of defaulting were not long either, between one and three months. A man could be arrested over and over, but this did not get the woman any help. The amounts that women allowed to accrue before going back to court varied widely, from a low of sixteen shillings to a high of £100 (the median was £7). Most were not fabulous sums, but they were crucial in a working-class budget. Two cases illustrate the problem of collecting the money. In 1892, Margaret Arbourne summoned Thomas Page as the father of her child. The Shropham magistrates made the order, since the ‘evidence disclosed a heartless case of seduction of a most respectable maidservant’. Page absconded, so the magistrates issued an order for his arrest, served in Scotland in January 1893. In April, Page went to prison in default of paying the £6 owed. When he came out of prison, he again accrued arrears, and then absconded a second time, and more warrants were issued in June 1893 and January 1895. The authorities finally found him in February 1895, once more in Scotland. He now owed £18 12s, so went back to prison. The magistrates, exasperated, asked the HO if they could attach his army pension, but the HO said no. Thus, Page succeeded in his refusal to ‘pay a penny’.14 The second example was in 1909, where the man was ordered to pay ten shillings per week on his salary of £2. He soon owed £2 in arrears, and the woman had him arrested. The magistrates gave him another week to pay, after which he gave the mother ten shillings. Another month went by, and he had paid nothing more. This time he got thirty days in gaol, a small sentence that wiped out his debt. The woman, then, had gone to court twice

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for the grand total of ten shillings.15 Some men may have reasoned that periodic gaol sentences were preferable to fourteen years of weekly payments. Of the twenty-four men in my sample who explained why they defaulted, almost half (ten) did so because they did not believe themselves to be the fathers. In 1874, Samuel Williams, a lay preacher, was called into court because he had refused to pay five shillings a week for the child of Elizabeth Wilson. The arrears amounted to £6 13s 6d. The bench believed he had refused because Wilson was in the asylum, but Williams insisted that he did not pay because he was not the father. The Newport bench gave him a few days to reconsider, but Williams defiantly stated, ‘I will never pay it.’16 If a man did not deny paternity, his most common reason was that someone else, he believed, had taken over support of the child. Edward Brind was arrested in 1883 because he was twenty-two weeks in arrears in his payments for his child with Mary Ann Davies. He pointed out that Davies had married and her mother kept the child for her, but this made no difference to the magistrates. Edward went to gaol for a month.17 These cases were another example of men’s belief that their responsibility was contingent, a conviction that the bastardy laws supported. Typically, unwed motherhood was permanent, while unwed fatherhood was (if anything) temporary. Cases of arrears also highlighted the number of men who absconded. Affiliation summonses had to be served at a man’s last known address, so one way to avoid them was to leave. A woman could serve the man when he returned, though she had to do so within twelve months of his reappearance. Men left for months or years, hoping circumstances would change. A  case in 1921 led to a flurry of correspondence between the police and the HO over putative fathers who fled the country. Eva Dossett got an order against Edward/Edwin Ossin (aka Abraham Ossinosky) in 1918. In 1921, he was in arrears, so she summoned him again, and the police went to arrest him in August. However, the police had the wrong address and missed him. When they returned a month later, he had fled to Paris. Eva wrote for an explanation in October, her disappointment plain: ‘Will you tell me how it is that he could leave England … Please help me to find out something as the child is only three years old and the order was till he was fifteen years of age. Besides him being Russian and myself

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English ought to have made the Police a little bit more reliable.’ The Met explained that Ossin was a naturalised citizen, so they did not keep tabs on him. Some civil servants suggested getting better information to the Passport Authorities, but the majority argued that this was too much of a burden on that office. Eventually, the HO revoked his citizenship, presumably because he did not return (in 1930).18 At any rate, Dossett bore the financial and social burdens for the foreseeable future. As these cases indicated, getting the affiliation order was only the beginning of the process. At times, hearings were pyrrhic victories that resulted in men leaving the area or even the country. Though women’s groups argued that the government needed to find a way to enforce affiliation orders abroad, Parliament declined to pass the necessary legislation or discuss the issue with the dominions. Since Parliament did make agreements about maintenance orders for separated women, one must conclude that suspicion of unwed mothers was part of their reluctance; the State did the bare minimum in helping unmarried women find provision for their children. The fear of women swearing falsely, which had animated the reforms of 1834, had still not disappeared, and single mothers were responsible for their plights in a way that separated women often were not. An abused, deserted wife was a clear victim; a single mother was only partially so.19 Most mothers of illegitimate children were poor enough that a few shillings a week made the difference between independence and the workhouse. Furthermore, women knew that whatever the law said, their children had two parents, and one was in a better position to maintain dependants than the other. In 1890, Lucy Saunders smashed the windows of William Williams after she lost her affiliation case. At the Wandsworth Police Court, she insisted that ‘She had been driven into poverty owing to the birth of the child, and the complainant knew full well that he was the father.’20 Men, for their part, resented the financial burden of a child who was not legally theirs. Women’s life chances were stunted by the births of the children, but men’s later marriages were also put in difficulties. Most working-class men could not afford two families. Thus, couples fought doggedly over a few shillings a week for years, until one or the other yielded. Women were desperate in part because they knew that should they fail to get support, their last resort was the poor-law guardians.

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Without income from their fathers, illegitimate children, like orphans, ended up in institutional care, the most dreaded of which was the workhouse. Children’s memories of life in the workhouse depict violence, hunger, and misery, especially in the 1830s and 1840s. In later periods, when conditions improved, autobiographers admitted they had adequate food and clean clothing, but still resented the lack of individualism and autonomy. The workhouse was a grim place to grow up, born in wedlock or not, but illegitimacy added to feelings of inferiority. Dorothy Hatcher’s take on her experience could stand for many others: ‘An unsettled early life, the stigma of being illegitimate and not realising why I  was despised because of it, all combined to make me grow up with the feeling that everyone was against me.’21 The dual brands of illegitimacy and pauperism were difficult to overcome. Nevertheless, workhouse children were not entirely deserted. For reasons of expense alone, poor-law guardians had a strong incentive to find families for them. This process was slow during the early Victorian years because of the 1834 Poor Law, but guardians become more involved in pulling in familial support as the laws changed. For the legitimate, provision followed nuclear lines – parents had to support children, husbands had to support their wives, and sons and sometimes unmarried daughters had to support their ageing parents. In the 1870s and 1880s, the guardians and the Local Government Board (LGB) increasingly tried to get help from wider kin by cutting out-relief, though with limited success. In contrast, illegitimate children had only their mothers.22 Historians have understandably stressed the unfairness of this provision for both the mothers and children; unmarried women’s limited earning power doomed them to poverty.23 Still, this designation contradicted the doctrine of filius nullius, since it gave children mothers, if no other family. (Admittedly, this relationship was not mutual; illegitimate children did not have to support their mothers if the latter became paupers.) In addition, the 1834 law added stepfathers as possible family. A husband had to support his wife’s offspring as long as she lived. More crucially, legal reforms over the next few decades added partial and tentative ‘family’ for the child, as with the poor-law reforms of 1872. Extended kin  – grandparents, aunts/uncles, cousins  – remained glaringly absent, though.

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Why this widening of the family circle for supposedly family-less children? Poor-law boards throughout England and Wales found that reconstituting or inventing families for illegitimate children was a financial and social necessity. By 1900, children made up a large number of inmates of workhouses. Though most left the workhouse quickly, others stayed for years. By the guidelines of the national poor-law administration (the LGB for most of this period), women with illegitimate children were ineligible for out-relief. They could not leave the workhouse without taking their children. The reason for this was, as one Manchester guardian put it in 1869, ‘if the Guardians were to relieve her from the care of her children … they would almost be giving a premium to vice’.24 But a woman who remained in the workhouse could not earn her keep nor could she marry. Poor-law unions, then, had to forge family bonds for children or accept financial responsibility for them. Given these factors, poor-law records sometimes show contradictory impulses towards illegitimate children. Guardians wanted to retrieve the cost of rearing the children and searched out the most vulnerable candidates to pressure to provide – mothers first, then fathers, followed by stepfathers, maternal relatives, and finally fictive or extended kin. As this prioritising shows, the guardians’ main strategy was to ‘find fathers’ for the children in their care. They thus accepted the idea prevalent across all classes that male providers were the best solution for ‘chance’ children. To a lesser degree, some also urged wider kin, especially maternal grandparents, to support the children, and found creative ways to involve them. Guardians also accepted wider definitions of marriage and family through unofficial recognition of cohabitation and fictive families. In these ways, the poor law expanded the family and frequently went beyond the national regulations to do so. If the Victorian period was one of creating families for children, the twentieth century, especially after the First World War, demonstrated an opposing tendency. Over time, unions adopted more ‘at-risk’ children and came into conflict with families over custody. The guardians saw themselves as more desirable parents than the blood kin in those cases, and took over the parental roles, especially provision, schooling, and finding employment. Thus, their relationship with pauper families was one of push/pull – at times, the union pushed families to take responsibility, while at others, they pulled children away from ‘undesirable’ relatives. The families pursued

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both policies as well, using the poor law for young children, but unwilling to lose all contact as their offspring aged and became less of a financial liability. Both forces often gave illegitimate children vertical and horizontal family. In this way, local pressures undermined the civil designation of an illegitimate boy or girl as ‘no one’s child’. This discussion of the poor law uses the records of two different unions to explore these issues, one English and one Welsh. The English union was Cambridge, a relatively small institution. Cambridge had a population of only 38,400 in 1901, and the total number of inmates in the union was under 1,100 in 1903. Despite the presence of the university, Cambridge parish itself did not have a high illegitimacy rate, perhaps because much of the vulnerable population lived in other parishes, like Chesterton and Ely, but they did have a steady trickle of child inmates. The Welsh union was Cardiff, whose population was 60,000 in 1871 and 160,000 in 1900. The Cardiff Union was extremely wide, encompassing seventy-one parishes, mostly agricultural or coal-mining communities. Thus, the union had particular problems during economic downturns. Due to the higher numbers, Cardiff preferred to keep most of the children in the Ely School, a workhouse industrial school. Despite these differences, both unions eventually flouted poor-law union rules to find or create families for illegitimate children. Finding fathers Boards of guardians could not help mothers with affiliation summonses until the 1872 reform of the poor law. Before that time, the records show few attempts to locate fathers, since the 1844 reforms forbade unions to assist with affiliation suits. After 1872, in contrast, the guardians could sue for affiliation if the children were chargeable to the parish. Thus, cases against fathers increased noticeably; both Cambridge and Cardiff authorities questioned every unmarried mother inmate in the hopes of bringing a summons. Simultaneously, the 1870s and 1880s saw a strong push from the central administration to lower the rates. Getting fathers involved in their children’s support was one obvious method to achieve this.25 In short, once the mother had proved unable to rear her child on her own, the poor-law authorities turned to the biological father as the next logical provider.

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Thus, by the early 1880s, Cambridge guardians regularly sent out letters to fathers, asking them to pay for the maintenance of their children and threatening them with affiliation proceedings if they did not. In July 1883, the clerk, C. Turner, wrote to a Mr Knightly about Sarah Ann Shaw and her two illegitimate children: ‘This pauper alleges you to be the putative father of her children. If they continue chargeable to the Funds of this Union I am instructed to institute proceedings against you for their maintenance.’26 Similarly in 1890, long-time clerk J. Congreve wrote to Harry Carter about Sylvia Lynne, who was pregnant a second time by Carter. Carter had written to Lynne with promises, but no money, so Congreve urged him to be more practical: ‘She ought not to be in the house and seeing that she has lived with you so long you ought to provide for her outside. Some steps will have to be taken in the matter if she keeps in the house, but I am writing this for her so that these may be avoided.’27 If the child did not stay long enough for the union to make an order, the guardians also asked fathers to repay the costs of the birth or funeral expenses. In 1882, the clerk wrote to John Crop, who worked in the kitchen of Trinity College, that ‘Lucy Garrett has recently been delivered of a child in this workhouse which has since died & she alleges you to be the Father of it: I am instructed by the Guardians to apply to you for repayment to them of the costs incurred £5.’28 Affiliation was a personal action and could not outlive either the mother or putative father, but guardians tried to pressure men into compliance anyway. In 1891, the Cambridge clerk wrote to a railway clerk named Fenn about his child, whose mother had died in the house: ‘It appears that you have been paying for some time to the child, and it is thought that you will not let the fact of its mother’s death lessen your sense of responsibility towards it.’29 In 1908, the grandmother of a child needed help, but the mother had gone insane and could not testify. The Cambridge Union wrote accusing the father of ‘taking advantage’ of the mother’s illness to renege on his promises, adding ‘I think you will consider it wise … to comply with our request’.30 Guardians also made private agreements with fathers. In 1881, the Cambridge guardians negotiated with Edward Rossiter over his child with Agnes Parker, born in 1878. In 1879, Rossiter had agreed to pay her two shillings a week; in return, she agreed not to affiliate him. For unexplained reasons, the mother became chargeable in

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Cambridge in 1881. The guardians immediately wrote to Rossiter to urge him to maintain the child. Interestingly, Rossiter’s solicitor did not deny the responsibility, but instead argued that the father should pay only 2s 6d, since the mother should also have to contribute. The guardians stood their ground, demanding the full 3s 6d or an affiliation suit. Under this pressure, Rossiter finally agreed to contribute 3s 6d a week, though he insisted on a clause that Parker could not ‘in any way molest annoy or interfere’ with him again.31 Guardians sometimes found, as women did, that men did not fulfil their obligations. Rossiter, a jockey, went abroad and stopped paying. In 1893, the guardians asked him to fund his daughter’s £10 apprenticeship with a dressmaker: ‘considering that you have not for some years past contributed anything in accordance with the terms of your Agreement’.32 Rossiter, then living in Austria, ignored the letter, but the guardians had nevertheless tried. Cardiff pursued support from putative fathers with equal determination. The minute books record a steady stream of contributions, with or without affiliation orders, though the latter certainly helped. In 1876 alone, the Relieving Officer (RO) pursued affiliation hearings for the children of Margaret Neale, Margaret Cronin, and Elvira John.33 In October 1883, the guardians sued the father of Hannah Davies’s children for affiliation; as in Cambridge, the authorities especially targeted fathers of multiple children.34 Aggressive tactics worked. In December 1883, the guardians received £4 and a promise of four shillings a week from Thomas Meed for his child with Harriet Lewis.35 In April 1884, the guardians accepted 1s 6d a week from John Stephens for his child with Elizabeth Dunn, while in December 1884, they got 3s 6d a week from W.  J. Garvey. If the men fell behind on payments, the guardians prosecuted them.36 By 1900, this process was a major part of their work, delegated to the Maintenance and Settlement Committee. Still, during the economically troubled 1920s, the guardians dismissed arrears and also suspended payment schedules when necessary. Mostly they gave a man two to six months grace, but occasionally, as in the case of A.  Hughes in 1922, the union excused them from support altogether.37 The LGB was in hearty approval of parish guardians helping mothers sue for affiliation. Authorities did not regard such children as belonging to ‘no one’ when rate payers might have to pick up the bill. But the guardians went further in their efforts to help extract

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money from fathers, and in these techniques, they came into conflict with regulations. Guardians knew the problems of local people better than national bodies; in addition, out-relief was less expensive than indoor care. They thus often sought LGB sanction for actions that contravened the rules.38 A common tactic was to allow mothers to leave without taking their children with them as long as they paid small weekly amounts. Sometimes, the mothers left to take employment, and these women frequently defaulted because they earned so little. Unions soon discovered that the process was more likely to work if fathers provided the funds. In 1898, in Cardiff, Sarah Moss asked to leave her three illegitimate children behind ‘with a view to obtaining a situation’. She offered to pay six shillings a week to the guardians; she could only afford this because the father of two of the children paid her that amount weekly. The guardians turned her down, but only by a vote of nine to eight.39 Soon after, the guardians accepted such proposals regularly; Alice Dean left her child in the workhouse so she could ‘return to her former place of service’, and the father of the child contributed 3s 6d a week.40 In 1901, the Cardiff guardians asked for three exceptions from the LGB on out-relief; the subjects of two of these, Ellen Talbox and Lily Martell, got out-relief for twelve months, again on the assumption that the union would get the money back from the fathers.41 Though not within the regulations, the practice allowed fathers to take more responsibility. Another change to the regulations was limited to the Cardiff Union, but it, too, meant gaining more support from fathers. Cardiff guardians were ahead of their time in acting as collecting officers (COs) for women in their union. The fact that women had to collect the money themselves from their ‘seducers’ was a much-criticised part of the bastardy laws, though Parliament did not pass legislation appointing COs until 1914. The Cardiff Union created its own version of this system, again in the 1890s. As with out-relief expansion, the LGB initially resisted, but when the guardians stood firm, the LGB acquiesced. In 1897, the guardians asked for permission to board out Annie Heaven’s child to a Mrs Price while the former was in St Margaret’s House of Mercy. The putative father paid the guardians, who then sent Price three shillings a week. The LGB, puzzled, asked if Heaven had deserted the child and if the child had been adopted by the union. The guardians explained that Heaven had not deserted her child, but had left her with a nurse

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on the understanding that the putative father would pay her. They did not want to move the child, who ‘looks clean and healthy’, and the arrangement cost the union nothing. The LGB sanctioned the arrangement, most likely because it resembled normal boarding-out procedure.42 The LGB was less enthusiastic about the case of Emma Jane Sanger in 1898. The Cardiff board gave her ‘out-relief’ of 1s 6d, but this money came from the father; he paid the guardians, who then distributed the money to Sanger. The Cardiff clerk explained that Sanger had gone to work in a good place, and that the father had married someone else: ‘the Guardians think it would be undesirable if he were to continue to make the payments to the girl direct, she being desirous of having no more to do with him’. The LGB replied that affiliation orders were private matters unsuited to union interference. At the end of the letter, the LGB clerk added, ‘If however the Guardians still adhere to their opinion the Board will be prepared to give … further consideration of the proposal.’ Given this opening, the Cardiff guardians detailed their reasons: This is the second illegitimate child the woman has had by the same father … and as the man has now married, the union with her is out of the question … The proposed arrangement obviates the necessity of the woman coming into contact with the man, and gives her the chance of redeeming her character, while it will involve no cost to the ratepayers, and will also have the advantage of keeping the child under the Guardians [sic] supervision.

Thus bombarded with reasonable arguments, the LGB finally sanctioned the arrangement.43 From that point, the Cardiff Union kept up a trickle of cases in which they acted as intermediaries for affiliation orders, thus technically giving the mothers ‘out-relief’, though that relief was reimbursed by the fathers. They wasted no time; in March 1899, they arranged for Florence Addis, eighteen, to get ‘relief’ from her former lover, presumably to keep her away from a bad influence.44 In 1901, similarly, the guardians asked permission in two more cases; in one, they hoped the parties would eventually marry if they could ‘exercise a wholesome influence’. The other, the case of Catherine Bowyer, involved the father’s payments to Catherine’s sister, who cared for the child, thus involving another

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member of the family. The guardians explained that at the hearing, ‘the father attempted to traduce the girls [sic] character … and the Guardians do not wish the girl to be brought into contact with him again’.45 As these examples show, the desire to keep the woman away from a bad influence was the justification in most cases, but the result was that the poor law regulated the financial relationship between father and child. And the guardians had a better chance of enforcing orders than the women alone, given the women’s often weak position vis-à-vis their lovers. In April 1901, the guardians got permission to take three shillings a week from the father of Lily Martell’s child and redistribute it to her as out-relief, because ‘the putative father is 66 years of age and made untrue charges against the girl, who was in service where he was living’.46 Most importantly, these arrangements became routine enough to be permanent. In 1901, when one of the fathers involved in these arrangements absconded, the board asked permission to continue to pay five shillings a week to the maternal grandmother, who was keeping the child. As with many requests, the LGB agreed.47 Unsurprisingly, the Cardiff Union supported the Affiliation Orders Bill of 1914, which allowed the appointment of COs, having anticipated its use by more than fifteen years.48 Thus, in a variety of ways, poor-law unions established connections between illegitimate children and their fathers. The second major way to find fathers for children also involved legal leverage. The poor law required stepfathers to support their wives’ previously-born children as long as the wife lived, and unions rarely ignored that fact. Both Cambridge and Cardiff pursued stepfathers as supports for these children. In 1912, J. J. Delderfield wrote to the Cambridge Union that his mother-in-law was unable to keep his wife’s pre-marital child and asked for help. Congreve replied, ‘as you have married the mother of Frederick C. Baker you are legally liable to maintain him and if … the Grandmother of the child, cannot keep him longer you should either find another home for him or take him into your own home’.49 By the early twentieth century, many of these children boarded out; if stepfathers fell in arrears in paying foster parents, they received a letter like that to Mr Russell in 1901, which warned him that if he did not pay his arrears, the child would have to go to the workhouse, and the guardians would bill him for the costs.50

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Cardiff guardians also pursued money when the mothers of children they supported got married. In 1874, they discovered that Caroline John, the mother of two children in the Ely School, had married John Tucker, and they resolved to get the new stepfather to support the children.51 Criticism of a mother who left her child in the workhouse after she had married made the Western Mail in June 1882; the board agreed to ask the stepfather to pay 2s 6d a week or take the child home.52 Putative and stepfathers were next in line after mothers for support; they, thus, came under the poor-law definition of ‘family’. In both these efforts, the guardians had legal leverage to extract funds from reluctant fathers. Extending the family Poor-law guardians in the 1870s expanded the number of those responsible for supporting their charges. Both Cambridge and Cardiff reflected the argument made by the LGB that extended families should help support paupers. The guardians ordered their clerks to persuade any relatives who might be able or willing to send money for illegitimate babies, legally obligated or not, a tactic also used in getting support for the elderly.53 For the most part, unions succeeded only if they had bargaining chips. In March 1867, Mary Ann Garwood’s father asked the Cambridge guardians to allow her to leave the workhouse; in return, he had to repay the amount of her and her child’s maintenance ‘thus far’.54 In 1909, Cardiff guardians allowed Miss Taylor to leave the workhouse, but only because her father agreed to pay his grandchild’s maintenance.55 Though atypical, these cases showed that maternal grandparents were a source for additional money, especially if they wanted to get their daughters out of the union. Guardians could only follow this route if they had leverage with maternal kin, as grandparents had no legal obligations. Since getting maintenance from relatives was difficult, both unions explored other ways to save money. One major consideration was to expand out-relief. As with other creative solutions, local and national governments came into conflict on this issue. The LGB regulations forbade out-relief to any woman with an illegitimate child,56 but ROs wanted more flexibility in interpreting these rules. Both Cambridge and Cardiff guardians asked the LGB for sanctions to disregard that regulation, though Cambridge did

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not do so before the 1920s and then only in limited cases. Cardiff, in contrast, was highly active and began earlier. By the 1890s, the guardians asked the LGB to sanction out-relief in an increasing number of ‘special’ cases. Though the LGB was not always enthusiastic, it eventually bowed to local pressure. Cardiff guardians first used out-relief to help extended or fictive kin care for illegitimate relatives. An audit of their books in June 1890 revealed that the union had granted outdoor relief to Eliza Morgan’s parents, who kept her two illegitimate children. The LGB demanded an explanation and a report on the people involved; they were apparently satisfied with the response, since the out-relief continued.57 The issue reappeared in 1891; the auditor disallowed £3 2s 6d to the nurse of two illegitimate children because ‘relief to the child was relief to the mother of the child, and it was contrary to the orders’. The Cardiff guardians pointed out that the mother was a deserted woman, not single, so her children were not illegitimate until non-access of her husband had been proved. They added that the case was unusual; the mother’s sister had paid the foster mother for years until she had money troubles. The guardians then took the children into the house, but when the nurse asked to have the children back, they agreed to do so, granting her 2s 6d a week in return. The LGB accepted the explanation.58 In these cases, maternal or fictive relatives needed help in rearing the children, and the unions assisted them. These cases also showed the pattern that prevailed in the future as regards the national authorities. The LGB protested or advised against out-relief, but if the local union insisted, the LGB granted exceptions, a practice that became routine by the 1920s.59 Help to extended kin or nurses was limited, but the second reason for allowing out-relief was not. In both unions, the majority of out-relief exceptions for illegitimate children concerned mothers and children in cohabiting families. Technically, the children were illegitimate, but both unions ignored this fact. In this way, they could aid the families without overwhelming the workhouses. In Cambridge, in 1924, the clerk asked the Ministry to sanction a ‘grant to Edith Maud Jarvis … a Widow, with three illegitimate children born after the commencement of her widowhood, relief amounting to 25/ a week’. The RO thought this was a special case, because he was ‘satisfied as to the way in which Mrs Jarvis has conducted herself during that period’, meaning she had not been promiscuous.60 Fanny Day was fifty-seven in 1928 when Rule asked for

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her to be another exception. She had six illegitimate children with Charles Smith, with whom she lived for many years. When he died, she was destitute, and the guardians considered her a widow to all intents and purposes.61 The Ministry of Health (successor to the LGB) allowed the exceptions as long as the guardians made their case well, a practice Neville Chamberlain, the secretary, confirmed to the House of Commons in March 1929.62 In comparison, Cardiff Union was earlier in breaking the regulations and did so more frequently, probably because it was a larger and poorer union. The guardians soon become adept at sending all the necessary information about the women, along with the RO’s case files. In 1908, A. J. Harris, the long-time clerk, wrote a detailed letter to the LGB for sanction to give non-resident relief, to be distributed by the Pontypridd Union:  ‘Mrs Berryman cohabited for several years with John Robotham, now deceased, by whom she had four illegitimate children … she is now living a most respectable life and has a very clean home, and apart from her cohabitation with Robotham, there is nothing against her.’63 This letter got approval, and the inclusion of Pontypridd showed that Cardiff was not alone in this practice, nor was it the only union to succeed in doing so. Cardiff guardians particularly argued that victims of bigamous spouses should count as exceptions. In 1911, Harris wrote to the LGB explaining why the union still gave out-relief to Rhoda Arthur, mother of two illegitimate children. Rhoda’s ‘husband’ had deserted his legal wife: ‘he is now serving a month’s imprisonment [for desertion], at the expiration of which the Guardians are informed proceedings will be taken against him for bigamy’. Under the circumstances, Arthur, who had ‘a good character’, should not have to go to the workhouse.64 Similarly, in 1916, Maria Gibbon and James Martin married and later had two children together. James believed his wife was dead, but she reappeared in 1922 after an absence of seventeen years. Though acquitted of bigamy, he was later arrested for ‘deserting’ his wife when she went to the Sunderland workhouse, and he got three months in gaol. The clerk insisted to the LGB that both Maria and James were ‘very respectable persons’.65 Men frequently got little punishment in bigamy trials, but their arrests were financial disasters that inevitably involved the poor law.66 Out-relief was one way to lessen these families’ distress.

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By the 1920s, when hard times hit South Wales, Cardiff guardians asked for sanction for out-relief for numerous families, primarily relief in kind. Usually, the RO gave the cohabiting family an order for the house, the parents refused, and he then gave them food and fuel rather than see the children suffer. Some cases, like Mrs Gibbon, involved victims of bigamists; in these cases, the guardians had little difficulty in asserting that they were worthy recipients. Others were long-time cohabitees. In November 1922, the clerk sent a list of eight separate families receiving out-relief despite the presence of illegitimate children; the number of illegitimate children relieved this way totalled twenty-three (along with three legitimate ones).67 Most of these women were not deserted, but instead the fathers of the children were unemployed but refused to go to the house. Alternatively, the breadwinner had died, leaving an unmarried widow with children. In the first nine months of 1926, the guardians asked for permission to give out-relief to twenty-five separate families with fifty-three illegitimate children, including one couple with ten.68 The LGB sanctioned all of these requests. Many were for food only and for limited periods, but they did not conform to regulations. Cardiff and Cambridge were not alone in their requests for exceptions. In the 1840s, illegitimate children were 50 per cent of the 14,639 illegitimate paupers receiving out-relief. This number went down drastically in the 1860s; by 1870, less than 3,000 of the 11,179 were still getting it, but this was 25 per cent of the possible recipients. Until the ‘crusade against out-relief’ of the 1880s and 1890s, many boards gave small amounts to women with illegitimate children.69 In 1870, the St Pancras Board of Guardians protested when the Poor Law Board (precursor to the LGB) criticised their choice to give out-relief to women with illegitimate children, among others. Joseph Salter stoutly maintained that ‘this application of the workhouse test in every instance rigidly … was a most cruel as well as a most suicidal policy’.70 Though many boards had to comply in the following years, the economic downturn of the 1920s led to more defiance of the rules. In 1927, the Shoreditch Board of Guardians faced criticism for the ‘number of women with illegitimate children who were receiving outdoor relief in this parish’. They had sixty-eight such cases which included 147 illegitimate children.71 From the 1880s to beyond the Second World War, the national authorities received numerous protests and requests

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for a change in policy from unions.72 Of all the restrictions of the poor laws, the banning of out-relief to unwed mothers was the one that had the most exceptions. Because of this, illegitimate children gained fathers and maternal relatives in the eyes of poor-law authorities. Fostering, adoption, and extended kin Though unions did their best to get support for children, most remained the responsibility of the ratepayers. Over time, child advocates protested the presence of children in workhouses; institutions did a poor job preparing children for adult life.73 Thus, English unions began to build ‘cottage homes’ for children with a ‘mother’ or ‘father’ figure as matron or master. This was an improvement, but still did not replicate family life, nor did the ‘scattered’ homes, smaller and more integrated into the local communities, that some guardians tried at the turn of the century. In 1870, poor-law regulations allowed the use of foster parents in urban parishes; couples accepted a weekly fee to care for children between the ages of two and fourteen. Illegitimate children whose mothers were in the workhouse were not eligible for boarding out, but those whose mothers had deserted them were. In England and Wales, in contrast to Scotland, only a minority of children were fostered, though more children found foster parents after the rules expanded in 1889 to include rural parishes and children whose parents were insane or in prison.74 Fostering made for temporary homes, as children moved frequently. The relationship was ultimately based on money, usually four to ten shillings a week (plus clothing). Unsurprisingly, this family form often led to emotionally fragile children, leading some unions to mix blood and fictive kin in creative ways. The Cambridge Union fostered out the majority of its child inmates by the early twentieth century. A  list of undertakings of foster parents, dated between 1891 and 1922, included ninety-two separate children. Though the agreements did not give the status of the child, correspondence indicated that some were illegitimate. Cambridge kept a close eye on them, getting quarterly reports from the Boarding-Out Committee, school inspectors, and doctors. Rose Gedders, born in 1892 to a single mother, was boarded out to four different foster mothers from the age of five. Rose’s recorded childhood showed the temporary nature of these families but also their

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advantages. Despite her frequent moves, Rose’s reports were cheerful; a good example was from January 1900: ‘Rose is a bright merry child, tho’ small & delicate in appearance … [she] seems quite well’. Still, Rose showed difficulties in the transition to work. She quit her first position in 1909, and a charity home found her a new one. The secretary thanked Mrs Mellish Clark for her help, adding, ‘It is to be hoped that the fresh start given to Rose will be successful.’75 The rules of fostering also disrupted sibling relationships. One family of four ‘orphan illegitimate’ children came into the workhouse in June 1914; the eldest, Constance, was eleven, and the youngest, Eveline, was two. Boys of seven and four completed the family. The siblings were boarded out immediately to four different foster mothers. Within six months, though, Constance had gone to the same foster mother as her five-year-old brother, so at least two of them had companionship.76 Many children did not react well to the changes, emotionally or physically. As historians have found, foster children felt displaced and alienated.77 Harry Drury was boarded out when barely a year old, his unwed mother having been declared an ‘imbecile’ and institutionalised. He was ‘delicate’ in 1918 at the age of seven, due to an attack of pneumonia, but he was ‘much improved’ in 1923, so that ‘His Foster Mother is very pleased with him.’ Still, once he went to work, at fourteen, he caused ‘a good deal of anxiety & expense–for now he is at work he is more difficult to control & he is spoiling his clothes & loosing [sic] things … he will not concentrate on his work’. Fired by yet another employer, Harry went to a Salvation Army Colony in Berkshire in 1926; the authorities there found him a job as a kitchen boy, where, the Cambridge clerk hoped, he ‘will give satisfaction’. Sadly, these hopes were disappointed; Harry had to apply to the workhouse in 1929, because yet another employer fired him. The clerk somewhat wearily wrote to Mrs Ellis that ‘I hardly know what to advise you to do with Harry Drury’, but promised to do his ‘best to persuade him to go to the Institution’, presumably back to the Salvation Army. Harry, now eighteen, had not yet been able to settle down to work.78 Similarly, Constance Todd, an illegitimate child born in 1897, boarded out until she was fourteen with the same woman, Mrs Jessops, yet she did not benefit from this stability. She was unable to keep a situation as a servant. She then seesawed between the workhouse and her maternal aunt’s house before being convicted

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of theft and sent to Borstal. After her release in 1921, she returned to the workhouse yet again, where the authorities tried, unsuccessfully, to have her declared mentally incompetent. She, too, went to a Salvation Army home.79 The Cambridge Union had some ‘adoptions’ as well, though these were not legally binding, thus did not overcome some of the disadvantages of fostering. Henry Garmon, born 1909, was the son of a single mother, and he was adopted in 1916. Unfortunately, in 1924, his adopted mother died, and his adopted father ran away a few months later. Henry returned to the workhouse while the police searched for his erstwhile guardian. Indeed, some adoptive parents may never have intended to offer a permanent home. George Behlmer has speculated that a child (especially a girl) ‘adopted’ temporarily ‘may have been exploited as a short-term servant’. For whatever reason, shuttling between various homes and the workhouse was not a recipe for success for these children.80 Perhaps because of these problems, both unions experimented with mixing fictive and blood kin into fostering and adoptions. Cambridge occasionally boarded out children with their relatives, usually grandparents. Fostering allowed maternal kin to keep a child who otherwise might cost too much. In 1924, the Cambridge guardians allowed two children, Henry (five years) and Elsie (ten months), to remain with their grandmother, ‘with whom they are now living’, making her their foster mother and granting the usual fees. Their mother having died, the authorities thought the children were best off with their grandmother.81 Similarly, in April 1926, Rhoda Edwards requested financial help from the guardians with caring for her granddaughter, eleven. The Ladies Boarding-Out Committee had the ultimate say, but the clerk wrote to Lady Hardy that ‘if the home conditions are satisfactory, the usual payments can commence forthwith’. In this case, too, the mother of the child had died.82 Nor were grandmothers the only relatives to take illegitimates. In 1926, the guardians allowed Ruth Chamberlain, twelve, to board with her uncle and aunt. The guardians had adopted her, so they retained control, but they were willing to allow her aunt to take her home in November.83 The Cardiff Union faced the same issues, though the majority of their much higher population of young inmates remained in the Ely School. When they did board out children, however, most went to their relatives or relatives’ friends. Usually, relatives acted as foster

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parents, overseen by the Boarding-Out Committee; others ‘adopted’ the children, though these new families continued to be inspected by the Children’s Home Visiting Committee (CHVC). ‘Adopted’ children were usually orphans, or, in the case of illegitimate children, had lost their mothers. The CHVC reported in October 1908 that both Emily Battestini, nine, and Olive John, ten, illegitimate orphans, were ‘adopted’ by new families. Emily went to James Okey, while Olive stayed with a family friend ‘with whom her mother formerly placed her for some time’.84 Fostering sometimes turned into adoption if the carer could afford it. For years, Ivy Morgan lived with Miss Gardiner for six shillings a week; when Ivy neared her thirteenth birthday, Gardiner asked to keep her, and the Committee agreed, since she ‘does not want to part with her’.85 Indeed, after the Adoption Act of 1926, one couple legally adopted its foster child in 1927, and others likely followed.86 Still, in Cardiff, the stablest fostering relationships reinforced already-existing blood ties. In 1910, forty children boarded out and thirty-three of these were with relatives.87 By 1911, the Boarding-Out Committee had thirty-four children on its lists, and all were with relatives, largely grandparents and aunts.88 Not much had changed twenty years later; in March 1930, thirty-six children between two and fifteen were fostered out, and twenty-nine were with relatives.89 In boarding out, as well as in out-relief, the Cardiff Union did not always follow regulations. One illegitimate child in 1921 was boarding with her own mother, though this was obviously just a way to give a mother out-relief. The mother was ill, and the committee gave her eighteen shillings a week for four weeks and some clothing.90 In addition to fostering, kin appeared regularly as adopters, mostly maternal aunts. In 1892, the Cardiff clerk wrote to the RO of Newport Union to help a Mrs Davies adopt her dead sister’s child. As long as her living conditions were acceptable, both unions agreed she could keep the baby.91 In 1910, Miss Darling adopted her nephew after having fostered him for years.92 Blood relatives did not automatically get acceptance. In 1920, R. H. John, twenty, asked to adopt his half-sister, Hetty, who was only two, but the CHVC turned him down, since she had been adopted already (little girls also rarely went to single young men, even their brothers).93 Despite the exceptions, Cardiff generally left children with family or kept them at the Ely School; fostering/adoption with strangers

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was not as successful as with kin. By favouring blood ties, guardians expanded an illegitimate child’s family to include grandparents, aunts/uncles, and fictive kin. Relatives could not afford to keep them without help, but were happy to do so for small weekly sums, and the stability of the home offset some of the problems of foster children. Guardians v. family Using blood or step-families to get support or to board children in stable homes was common by the early twentieth century, but unions did not always prefer natal families. Both unions took their duty to their charges seriously and began to see the children’s welfare as more important than saving funds. The 1889 Children Act gave guardians powers to adopt children, and these powers were expanded in 1899. As a result, both Cambridge and Cardiff guardians increasingly ‘rescued’ children they determined were in physical or moral danger. Another important piece of legislation was the Mental Deficiency Act of 1913, which gave guardians a strong legal basis for confining the mothers of illegitimate children and adopting their children. In both cases, relatives challenged the workhouse for control, especially as older children were more attractive to poor kin. Families also protested permanent stigmas, like pauperism or mental deficiency, seeing the poor law as a temporary help, but not a substitute for family. Both Cambridge and Cardiff guardians used the power to ‘rescue’ children of mothers who were deceased, mentally incompetent, or ‘morally unfit’. Obviously, mothers of illegitimate children easily fit into the last two categories; a ‘fallen’ woman was vulnerable to the diagnosis of mental or moral insanity. Cambridge guardians adopted Emily Larkins in 1909 when she was two; Emily’s mother, Jessica, had not deserted her, but the board decided she was unfit to keep custody.94 Cardiff guardians adopted more of their inmates and for a wider variety of reasons. In a few months in 1901, the guardians adopted the two children of Agnes Kennedy because she ‘constantly takes them in and out of the Workhouse’. Soon after, Ellen Adams was sentenced to a month in prison for ‘selling beer without a license’. Her daughters Catherine, eight, and Ellen, five, became wards of the union. Six weeks later, the guardians adopted Isabella Lloyd, because her mother, Maud, ‘has deserted her’.95

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Other women lost their children because they were declared insane or ‘unfit’ by their ‘mode of life’, a catch-all phrase that gave guardians much latitude.96 Some cases involved more than one generation of State adoptions. Clara Hooker was adopted when she was sixteen in 1924; she had just given birth to an illegitimate child herself, so the guardians adopted them both (Clara’s mother was dead).97 Overall, Cardiff mostly adopted deserted or orphaned children, getting the legal rights of parents until the children turned eighteen. In July 1922, the Board adopted eleven children, five illegitimate, all boys. In three cases, the mother had deserted her child, in one she was deceased, and in the fifth, she was a prostitute.98 Adoptions gave the unions power, but many families stayed in touch with their relatives. Frances Danby was adopted by the Cambridge guardians in 1909. Like most workhouse girls, she went into service when she left in 1925, but soon left her position and went to her brother’s house; she knew her sibling well enough, then, to live with him. Sadly, in her second position, in 1928, she gave birth to an illegitimate child, landing back in the workhouse.99 At times, wider kin struggled with the union over the custody of their relatives; several of these appear in the Cardiff records. In September 1909, Mary Chambers, fifteen, ran away from her ‘adopted’ mother, Mrs Jenkins, and the authorities found her at her sister’s home. The CHVC ordered their workers to ‘bring her back to Headquarters … until a situation is found for her’.100 Fathers were suspect as well; like all relatives, they had to meet character tests to have their children live with or visit them. In November 1912, the CHVC directed ‘the employer of Minnie Rogers to forbid the visitation of the girl by her father (affiliated)’.101 Wider sources showed a similar dynamic in other unions. In court battles with kin over custody, poor-law unions had a high winning percentage; they won five of seven and compromised in two. They did not lose any, not even against mothers. Ada Furniss had two illegitimate children, a daughter, Daisy, and a younger son. Furniss had to go to the infirmary in May 1904, and the Sheffield guardians adopted her children, assuming she would be a permanent invalid. When she recovered, the guardians did not release the children. In July 1905, twelve-year-old Daisy ran away. The guardians pursued her to her mother’s house, but Ada denied seeing her. Unfortunately, the police soon discovered that Daisy was living with her mother, and they arrested Ada for ‘illegally harbouring her own child’. The

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magistrates lectured Ada that she should ‘apply to the magistrates as a court of appeal, to annul the resolution of adoption’. They then fined Ada £5 or a month in prison for her refusal to turn away her own daughter.102 Fathers had little luck either. In In re Hodges, St Mary’s Abbot’s applied for a writ of habeas corpus for the twelve-year-old son of Frederick Hodges. Hodges had refused to support any of his three children with his cohabitee when they entered the union in 1882. In 1887, he asked for the custody of his oldest son, also named Frederick. Since he was not ‘leading a satisfactory life’, they refused. Hodges then kidnapped the boy, because, he explained, Frederick had begged him to do so. Justice Stephen found for the guardians; Hodges had no right to his children, since he had never supported them. However, Stephen added that ‘if it appeared that the father had natural parental feelings prompting him … to do his duty by him … it might be proper for the guardians to give up the child to him’. The guardians suspected Hodges wanted the boy because he could soon go to work rather than from ‘parental feelings’, but their barrister assured the judge they would consider his recommendation.103 At any rate, the guardians retained the initiative on this issue. Poor-law unions regarded maternal kin as resources for help with illegitimate children, but the unions kept ultimate control. Thomas Dunhill was the great-uncle of a seven-year-old girl, the child of his niece. The union boarded the girl out to her relatives, a system that worked smoothly for some years. The conflict occurred when the girl reached thirteen. Then the union wanted to put her out to service, and the uncle refused. At the Queen’s Bench Division, the union insisted they had the right to determine the fate of a child they had maintained. The great-uncle explained that he simply did not want her to go into service as a pauper, since this would prejudice people against her. Justices Grantham and Kennedy urged a compromise, and the matter disappeared from the records. Dunhill’s concern for his great-niece was reasonable, but the union had paid for her upkeep and had the last word.104 By the end of the century, the one custodial ‘parent’ who could override any blood relation was the local government. All the same, as this last example indicated, unions were not unreasonable. Rose Griffiths, a widow, had lived separately from her husband in Cardiff for many years because of his violence. She

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later cohabited with a man and had two daughters, Phyllis in 1911 and Matilda in 1914. The father had disappeared by 1921, and two years later Griffiths became paralysed and had to go to the workhouse. She left in December and took her daughters with her, and the Cardiff guardians gave her out-relief. In 1924, the guardians became concerned at the state of the children and cut off relief to force Griffiths to return to the house, but she refused. The guardians then offered to put the girls in a charity. Griffiths agreed, and the Ministry of Health sanctioned the expense. But she soon missed her children and so went back to live with her father in September, after which she appealed to the union to have them back. At first, the CHVC opposed her request to the point that they recommended the union adopt the children. In response, Rose made a personal plea to the Board. After the interview, the Board ordered the CHVC to reconsider. The CHVC’s investigation showed the grandfather’s home to be suitable, so, ‘reluctantly’, they released the girls to their mother and grandfather.105 Though the Board had ultimate power, it recognised the value of family and sometimes compromised with poor parents and grandparents. Even under the extensive powers of the Mental Deficiency Act, families fought back. As Mathew Thomson has argued, relatives had a large role in caring for mentally deficient members, though their influence was stronger with children than adults. Still, a woman’s kin could appeal to the board to have her discharged into their care.106 In May 1919, Sarah Norden, thirty-six, was ordered for examination by the Cambridge Union. Before the guardians made the arrangements, her mother applied for Sarah’s discharge. The clerk requested the City Council to expedite matters, since the mother would go before the guardians on 11 June. The city did so, and the union got a temporary order to detain Norden. Nevertheless, the family won in the end, since the doctor refused to certify Sarah as mentally deficient. The guardians thus had no right to keep her after the order expired, and mother and baby returned home.107 Sometimes, the conflict became heated. In 1926, a detained unwed mother’s mother and sister both protested her treatment. The mother came in person to speak to the Cambridge Union clerk, J. W. E. Rule, a meeting that did not go well, since her sister wrote a letter of protest a few days later. Rule replied by explaining that they could not remove their relative before the examination, adding, ‘Your Mother must have misunderstood me. I told her that

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what is being done is to protect your sister from getting into trouble again and not that “she would most probably fall again.” ’108 As this correspondence indicates, guardians had an advantage in dealing with all paupers, but families stayed involved and protested permanent incarceration. The majority of these cases involved maternal relatives, especially grandparents and aunts, the same ones who offered fostering opportunities. Under the poor law, illegitimate children had not just mothers, but grandparents, aunts/ uncles, and fathers. Conclusion The poor law’s complex relationship with working-class families had added wrinkles when concerning illegitimate children. During the period under review, poor-law boards insisted on as many contributions as possible from kin in an effort to reduce expenses. These tactics had a positive side, since the authorities stretched the rules to help families keep children and pioneered new ways of offering out-relief to unwed mothers and cohabitees. By the 1920s, both unions routinely received permission to ignore regulations if this was in the best interests of the children. The guardians’ motives were not pure; they wanted to save money. But the desire to keep family involved helped the children, since the latter could board out with grandparents and aunts/uncles and be part of their families. Unions increasingly found that adoption and fostering worked best combined with blood kin or close friends. Guardians also took their responsibilities seriously; after 1899, both unions adopted children and took the role of parents to them. Cambridge Union especially hovered over its child residents by the early twentieth century, insisting on quarterly reports from doctors and school inspectors. A child like Harry Drury, whose mother was in an institution, had close oversight through his school years, several positions, and two stays in charity homes; he was still relying on the guardians when he was eighteen and had been working for four years. The care could be over-solicitous to families caught in its web. Indeed, both paternal and (more often) maternal kin came in conflict with the union when the guardians tried to keep their children. In short, guardians faced the choice of involving wider families – and thus getting money from them – or rejecting them and bearing the costs alone. Over time, they became more likely to take

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the latter choice, but they were not able to remove families from their charges’ lives entirely. On the reverse side of that coin, families had to choose between caring for a ‘fatherless’ child on their own or getting both help and interference from the local government. The complications of family life in intersections with illegitimacy and the poor laws were many – the difficulties of providing for single women, the wider definition of ‘marriage’ in the working class, the role of maternal kin, and the tension between saving money while also insisting on a high level of care. Like affiliation suits, the poor laws were an ineffective means to deal with child poverty. Nonetheless, the local guardians’ willingness to experiment with out-relief and fostering showed both the limitations of the old system and its flexibility. Ironically, the much-maligned poor law recognised family relations of poor illegitimates well before the national government – mothers and stepfathers in 1834, putative fathers after 1872, wider kin in the 1880s and 1890s, and fostering relationships in the twentieth century. Parliament acknowledged the family relationships of illegitimate children only after the First World War, under pressure from many different lobbying groups. Indeed, the 1920s saw a sustained movement to ameliorate the position of illegitimate children, one with limited, but still admirable, success. Notes 1 U. R. W. Henriques, ‘Bastardy and the new poor law’, Past and Present 37 (1967), 103–29. 2 A. R. Higginbotham, ‘The Unmarried Mother and Her Child in Victorian London, 1834–1914’ (PhD Dissertation, Indiana University, 1985), 171–4; B.  Reay, ‘Sexuality in nineteenth-century England:  The social context of illegitimacy in rural Kent’, Rural History 1:2 (1990), 234; Manchester Guardian (21 July 1911), p. 4. 3 Higginbotham, ‘Unmarried Mother’, 173; J. Steinberg, ‘The Development of a Social Policy Towards Illegitimacy in England, 1870–1918’ (PhD Dissertation, University of Cincinnati, 1980), 161–2. 4 G. Frost, ‘Claiming justice:  Paternity affiliation in South Wales, 1870–1900’, Rural History 24:2 (2013), 177–98. 5 Reay, ‘Sexuality’, 234. 6 Justice of the Peace 65 (19 January 1901), 39–41; The Times (4 April 1883), p.  6; Manchester Guardian (28 May 1881), p. 12; W.  Hooper, ‘Can parents give evidence to bastardize their issue?’, Law Quarterly Review 26 (1910), 51.

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7 Western Mail (1 December 1880), p. 4. 8 Western Mail (18 November 1869), p. 4. 9 Western Mail (25 March 1873), p. 4. 10 Western Mail (27 September 1877), p.  3; Reynolds’s Newspaper (30 September 1877), p. 6; Lloyd’s Weekly Newspaper (7 October 1877), p.  4; Derby Mercury (21 November 1877), p.  8; Birmingham Daily Post (27 March 1878), p. 7; (29 March 1878), p. 7; Bristol Mercury (17 July 1878), p. 6. 11 The Times (19 January 1860), p. 11; (26 April 1860), p. 11; 121 English Reports 274–8 (1860). 12 The Times (26 June 1862), p. 13. 13 The Times (13 February 1882), p.  4; (20 February 1882), p.  4; (27 February 1882), p. 4. 14 NA, HO 144/502/X53423, Thomas Page, 7–21 June 1895. 15 NA, HO 144/844/147516/2, Henry Froud, December 1906. 16 Western Mail (24 February 1874), p. 5. 17 Western Mail (21 February 1883), p. 4. 18 NA, Records of the Metropolitan Police, MEPO 2/2005, Abraham Ossinosky Case, 23 August 1921–1 February 1922; HO 334/87/5743, Naturalisation of Edwin Ossin, 24 February 1920, revoked August 1930. 19 M. Levine-Clark, ‘From “relief” to “justice and protection”: The maintenance of deserted wives, British masculinity and imperial citizenship, 1870–1920’, Gender and History 22:2 (2010), 312–13. 20 The Times (12 August 1890), p. 10. 21 D. Hatcher, The Workhouse and the Weald (Rainham: Meresborough Books, 1988), p.  27; G.  Frost, ‘  “The black lamb of the black sheep”: Illegitimacy in the English working class, 1860–1939’, Journal of Social History 37:2 (2003), 293–322; D. Derrick, ed., Illegitimate: The Experience of People Born Outside Marriage (London:  National Council for One Parent Families, 1986). 22 Henriques, ‘Bastardy’, 103–27; 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), 131–56; D. Thomson, ‘ “I am not my father’s keeper”: Families and the elderly in nineteenth-century England’, Law and History Review 2:2 (1984), 265–86; A. Brundage, The English Poor Laws, 1700–1930 (Basingstoke: Palgrave, 2002), 68–9; W. Hooper, The Law of Illegitimacy (London:  Sweet & Maxwell, 1911); and G.  Lushington, The Law of Affiliation and Bastardy (London: Butterworth & Co., 1904). 23 Henriques, ‘Bastardy’, 120–9; P.  Thane, ‘Women and the poor law in Victorian and Edwardian England’, History Workshop Journal 6 (1978), 29–51; Higginbotham, ‘Unmarried Mother’, 23–9. 24 Manchester Guardian (2 April 1869), p. 4.

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25 M. MacKinnon, ‘English poor law policy and the crusade against outrelief’, Journal of Economic History 47:3 (1987), 603–25; Thomson, ‘I am not’; Thane, ‘Women’, 40; R. Humphreys, Sin, Organized Charity and the Poor Law in Victorian England (London:  St. Martin’s Press, 1995), p. 34. 26 Cambridge Record Office (hereafter CRO) Letter Book (hereafter LB), 29 December 1881–11 March 1885, f. 467 (2 July 1883). 27 CRO, LB, April 1890–November 1891, f. 59 (17 June 1890). 28 CRO, LB, 29 December 1881–11 March 1885, f. 49 (4 February 1882). 29 CRO, LB, April 1890–November 1891, f. 213 (5 February 1891). 30 CRO, LB, July 1906–January 1910, f. 529 (9 September 1908). 31 CRO, G/C/AZ14, Correspondence and Agreement over Child of Agnes Parker and Edward Rossiter, September 1881–October 1881. 32 CRO, LB, July 1892–June 1894, f. 274 (23 February 1893). 33 Glamorganshire Record Office (hereafter GRO), Minute Books (hereafter MB), 1875–6, 4 November 1876, f. 520. 34 GRO, MB, September 1882–January 1885, 20 October 1883, f. 37. 35 GRO, MB, September 1882–January 1885, 1 December 1883, f. 110. 36 GRO, MB, September 1882–January 1885, 26 April 1884, f. 243; 27 December 1884, f. 510. 37 See, e.g., GRO, MB, April 1922–April 1923, 8 November 1922, f. 287; 25 November 1922, f. 309; 9 December 1922, f. 337. 38 Thane, ‘Women’, 35. 39 GRO, MB, July 1897–May 1898, UC/2/32, fos 269–70 (8 January 1898). 40 GRO, MB, June 1898–May 1899, UC/2/33, f. 31 (11 June 1898). 41 GRO, MB, April 1901–March 1902, UC/2/36, fos 22, 58, 90 (20 April 1901, 11 May 1901, 25 May 1901). 42 GRO, Local Government Board Correspondence (hereafter LGBC), UC/40/19, September 1897–February 1898, Letters dated 2 September 1897 and 5 October 1897. 43 GRO, LGBC, UC/40/20, March 1898–August 1898, Letters dated 2 July 1898, 22 July 1898, 2 August 1898. See also MB, UC 2/33, June 1898–May 1899, f. 47. 44 GRO, MB, UC 2/33, June 1898–May 1899, f. 460. 45 GRO, LGBC, UC/40/42, October 1900–September 1901, 19 February 1901 and 21 February 1901. 46 GRO, LGBC, UC/40/42, October 1900–September 1901, 23 April 1901. 47 GRO, LGBC, UC/40/42, October 1900–September 1901, 23 April 1901. 48 GRO, MB, UC/2/49, 1914–15, Report on the Poor Law Unions’ Association Annual Meeting, f. 522. 49 CRO, LB, January 1910–March 1913, G/C/AC17a, f.  856 (11 September 1912).

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50 CRO, LB, March 1897–February 1899, f. 597 (14 September 1901). 51 GRO, MB, February 1873–January 1875, UC 2/14, f. 389 (4 July 1874). 52 Western Mail (12 June 1882), p. 4. 53 Thomson, ‘I am not’, 277–85. 54 CRO, LB, October 1866–February 1870, f. 109 (19 March 1867). 55 GRO, MB, UC/2/43, April 1908–April 1909, f.  280 (25 July 1908). A.  Blaikie, Illegitimacy, Sex, and Society:  Northeast Scotland, 1750–1900 (Oxford: Clarendon Press, 1993), pp. 167–70. 56 Thane, ‘Women’, 46; Blaikie, Illegitimacy, pp.  180–2; S.  Cretney, Family Law in the Twentieth Century (Oxford:  Oxford University Press, 2003), pp. 636–7. 57 GRO, LGBC, UC/40/9, May 1890–May 1892, 25 June 1890, no folio. 58 GRO, LGBC, UC/40/9, May 1890–May 1892, 9 December 1891–23 April 1892, no fos. 59 Justice of the Peace 87 (14 April 1923), 292. 60 CRO, LB, February 1924–February 1925, G/C/AC20, f.  446 (29 August 1924); January 1927–February 1928, G/C/AC23, f.  587 (24 September 1927). 61 CRO, LB, February 1928–April 1929, G/C/AC24, f. 191 (7 May 1928). 62 Justice of the Peace, 93 (16 March 1929), 173. 63 GRO, LGBC, UC/40/31, 8 April 1908–March 1909, 24 August 1908. 64 GRO, LGBC, UC/40/33, 2 May 1911, A. J. Harris to LGB. 65 GRO, LGBC, UC/40/41, January 1922–January 1923, 4 September 1922, Robert Stephenson to LGB. 66 G. Frost, Living in Sin:  Cohabiting as Husband and Wife in Nineteenth-Century England (Manchester:  Manchester University Press, 2008), pp. 72–95. 67 GRO, LGBC, UC/40/41, January 1922–January 1923, 1 November 1922. 68 GRO, LGBC, UC/40/45, October 1925–September 1926, 11 January 1926–30 September 1926. 69 L. Rose, Massacre of the Innocents: Infanticide in Britain, 1800–1939 (London: Routledge and Kegan Paul, 1986), p. 33. 70 The Times (5 August 1870), p. 7. 71 The Times (2 December 1927), p. 9. 72 See, e.g., Western Mail (8 September 1871), p. 4. 73 G. Behlmer, Child Abuse and Moral Reform in England, 1870–1908 (Stanford: Stanford University Press, 1982), pp. 202–4; Rose, Massacre, pp. 32–3. 74 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), 40; G. Behlmer, ‘What’s love got to do with it? Adoption in Victorian and Edwardian England’, in E.  Wayne Carp, ed., Adoption in America:  Historical Perspectives (Ann Arbor:  University of Michigan

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Press, 2002), 86–9; Friends of the Family: The English Home and its Guardians (Stanford: Stanford University Press, 1998), pp. 285–9. 75 CRO, Undertakings of Foster Parents, 1903, G/C/AW11; Boarding Out Reports, G/C/AW7, 1900; LB, G/C/AC 17c, December 1915–March 1919, f.  802, J.  Congreve to Mrs Lawson, 26 April 1918; f.  458, 5 June 1926, J. W. E. Rule to Lady A. M. Hardy; G/C/AC 16, LB, July 1906–January 1910, Congreve to Mrs E. Mellish Clark, 6 May 1909, f. 791; Congreve to E. Mellish Clark, 8 May 1909, f. 792. 76 CRO, LB, G/C/AC17b, March 1913–December 1914, f. 412 (17 June 1914); Undertakings of Foster Parents, G/C/AW11, 1914–15. 77 A. Levene, ‘Family breakdown and the “welfare child” in 19th and 20th century Britain’, History of the Family 11:2 (2006), 72; L.  Abrams, ‘Lost childhoods:  Recovering children’s experiences of welfare in modern Scotland’, in A.  Fletcher and S.  Hussey, eds, Childhood in Question:  Children, Parents and the State (Manchester:  Manchester University Press, 1999), 162–8; and ‘  “Blood is thicker than water”: Family, fantasy and identity in the lives of Scottish foster children’, in J.  Lawrence and P.  Starkey, eds, Child Welfare and Social Action (Liverpool: Liverpool University Press, 2001), 201–10. 78 CRO, Undertakings of Foster Parents, 1921, G/C/AW11; Boarding Out Reports, G/C/AW8, 1918; G/C/AW9, 1923, 1924, and 1926; LB, G/C/ AC21, February 1925–January 1926, f. 437 (1 June 1926); G/C/AC25, April 1929–April 1930, f. 118 (14 May 1929); f. 152 (23 May 1929). 79 CRO, LB, G/C/AC18, March 1919–August 1922, f.  523 (30 March 1921); f. 563 (14 May 1921); f. 582 (11 June 1921). P. Cox, ‘Girls, deficiency, and delinquency’, in D. Wright and A. Digby, eds, From Idiocy to Mental Deficiency: Historical Perspectives on People with Learning Disabilities (London: Routledge, 1996), 198; K. Holden, The Shadow of Marriage: Singleness in England, 1914–60 (Manchester: Manchester University Press, 2007), pp. 115–16. 80 CRO, LB, G/C/AC 20, February 1924–February 1925, f.  621 (15 November 1924); Behlmer, ‘What’s love’, 86. 81 CRO, LB, G/C/AC19, August 1922–February 1914, f.  349 (17 July 1924). 82 CRO, LB, G/C/AC22, 7 January 1926–12 January 1927, f.  316 (24 April 1926). 83 CRO, LB, G/C/AC22, 7 January 1926–12 January 1927, f.  829 (5 November 1927) and f. 850 (16 November 1926). 84 GRO, MB, UC/2/43, April 1908–April 1909, Report of the Children’s Home Visiting Committee (hereafter CHVC), fos 419, 480 (10 October 1908, 31 October 1908). 85 GRO, Boarding-Out Committee Minutes (hereafter BOCM), 1915–21, UC/4/2, 24 April 1918.

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86 GRO, BOCM, 1926–30, UC/4/4, 20 April 1927. 87 GRO, MB, UC/2/44, April 1909–April 1910, f.  771 (19 February 1910) and f. 778. 88 GRO, MB, UC/2/45, April 1910–April 1911, f. 987 (11 March 1911). 89 GRO, BOCM, 1926–30, UC 4/4, 18 March 1930. 90 GRO, BOCM, 1915–21, UC/4/2, 30 April 1920–25 March 1921. 91 GRO, Draft Correspondence, UC 44/1, July 1892–93, Clerk to Thomas Williams, Relieving Officer, Newport Union, 8 August 1892. 92 GRO, MB, UC/2/44, April 1909–April 1910, f. 771 (19 February 1910). 93 GRO, MB, UC/2/55, April 1920–April 1921, Report of the CHVC, f. 362 (30 October 1920). See also J. Keating, A Child for Keeps: The History of Adoption in England, 1918–1945 (Basingstoke: Palgrave Macmillan, 2009), pp.  11–38, 117–43; P.  J. Walker, ‘Adoption and Victorian culture’, History of the Family 11:4 (2006), 211–21. 94 CRO, LB, G/C/AC16, July 1909–January 1910, f. 814 (26 May 1909); G/C/AW11, Undertaking of Foster Parents, 18 June 1909. 95 GRO, MB, UC/2/36, April 1901–March 1902, f.  65 (11 May 1901); April 1901–March 1902, f.  292 (21 September 1901); April 1901–March 1902, f. 397 (3 November 1901). 96 GRO, MB, UC/2/45, April 1910–April 1911, f.  430 (17 September 1910) and fos 430–431; UC/2/52, March 1917–March 1918, f. 80 (9 June 1917); UC/2/56, 1921–22, Report of the Ladies’ Indoor Relief Revision Committee, f. 473 (25 March 1922). 97 GRO, MB, UC/2/59, 1924–25, f.  90, Report of the Ladies’ Indoor Relief Revision Committee, f. 90 (24 May 1924). 98 GRO, MB, UC 2/57, April 1922–April 1923, f. 159 (22 July 1922). 99 CRO, LB, G/C/A25, April 1929–March 1930, f. 504, 611, 652, 703 (12 October 1929, 15 November 1929, 28 November 1929, 17 December 1929). 100 GRO, MB, UC/2/44, CHVC Minutes, 11 September 1909, f. 329. 101 GRO, MB, April 1911–April 1912, UC 2/46, 30 November 1912, f. 503. 102 Manchester Guardian (8 November 1905), p. 11. 103 The Times (8 November 1887), p. 3; (15 November 1887), p. 3; Daily News (15 November 1887), p. 3. 104 The Times (24 April 1899), p. 15; Manchester Guardian (15 March 1899), p. 11. 105 GRO, LGBC, January 1924–September 1924, UC 40/43, Stephenson to Ministry of Health, 17 April 1924; MB, April 1920–April 1921, UC 2/55, f. 16; April 1924–April 1925, UC 2/59, fos 322, 395, 453. 106 M. Thomson, ‘Family, community, and the state:  The micro-politics of mental deficiency’, in Wright and Digby, From Idiocy to Mental Deficiency, 221–6; The Problem of Mental Deficiency:  Eugenics,

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Democracy, and Social Policy in Britain c.  1870–1959 (Oxford: Clarendon Press, 1998), pp. 264–8; P. Cox, Bad Girls: Gender, Justice, and Welfare, 1900–1950 (Basingstoke: Palgrave, 2013), pp. 100–4. 107 CRO, LB G/C/AC18, March 1919–August 1922, f. 33 (May 1919); f. 50 (7 June 1919); f. 52 (11 June 1919); f. 62 (24 June 1919). 108 CRO LB G/C/AC22, 7 January 1926–12 January 1927, f.  508 (19 June 1926).

5

Simple acts of justice: illegitimacy and law reform The English prided themselves on their low illegitimacy rate, the result, many believed, of the fact that England did not allow legitimation upon the marriage of the parents (in contrast to Scotland) and also restricted women’s ability to get support. Those who sought to change the law, then, faced a contingent of conservative opinion mixed with nationalist self-congratulation. The House of Lords was a particular barrier to change; peers refused to risk any property going to illegitimate heirs, and the bishops were reluctant to put a ‘premium on vice’ by lessening the stigma. As a result, in the nineteenth century, Parliament treated the problem of illegitimacy as one of criminal law, as with baby farming, or in the poor law. The death rate among illegitimates was almost twice the level of their legitimate peers, but reducing it required mothers to keep, and thus nurse, their babies. This was only possible with higher wages, day care, or more support from fathers. None of these options appealed to Victorian Parliaments, for fear of giving illegitimate children a better start than legitimate ones. By the turn of the century, however, rescue groups, purity campaigners, the Labour Party, and women’s rights advocates agitated for better treatment for these children. They argued that whatever the errors of their parents, the children should not suffer. The groups lobbying for changes were divided among those who primarily focused on helping the unwed mother (feminist groups most prominently) and those whose focus was the children.1 Thus, the movement fractured whenever the needs of mothers and their babies diverged. Women’s and workers’ groups centred on bastardy laws, but child savers and MPs argued for more legal rights for the children. Neither side got all they wanted, nor did they get the changes quickly, but both had successes by the twentieth century.

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Bastardy laws Though problems with the bastardy laws abounded, legislative successes were few in the nineteenth century. Poor-law unions petitioned for many changes, as they bore the brunt of the law’s inadequacies. Parliament finally appointed a Select Committee on Bastardy Orders in 1909. The resulting report recommended numerous changes, including that affiliation orders be transferrable between the guardians and mothers, that magistrates be able to vary orders, and that fathers have to pay antenatal expenses. Others asked that the mother’s evidence not be essential in cases where they had died or gone insane. More controversial suggestions proposed that guardians be able to ‘attach’ the wages of a man in arrears of payments, or that affiliation hearings be held in camera. The committee suggested Parliament pass a consolidating bill to address the most pressing problems.2 Despite this recommendation, the bills that passed tackled only those issues with the broadest support. An example was the affiliation bill proposed by Captain Jessel in 1913. The draft had clauses that allowed the appointment of police constables as COs and permitted the authorities to attach the wages of a man who fell into arrears. The HO, to whom Jessel sent the draft, had reservations about both clauses. The officials argued that the court should have the discretion to allow direct payments, and they also thought that officers of the court, rather than policemen, needed to be COs. More ominously, they warned Jessel that Parliament was unlikely to allow the garnishing of the father’s wages. In the same year, a similar bill was also mooted in the Lords, sponsored by Earl Bathurst, with the same objections from the HO. Bathurst’s bill got all the way through the Lords but died in the Commons.3 The 1914 version of the bill, also introduced by Jessel and Bathurst, incorporated the government’s suggestions. It now centred on the appointment of COs (officers of the court, not police constables) and had nothing about ‘attaching’ wages. As a result, the bill was noncontroversial and sailed through both houses.4 The government agreed that consolidating bills were more useful, but bills with large numbers of clauses increased the likelihood of opposition. Thus, bills generally had to be stripped down to the issues upon which large numbers could agree, keeping comprehensive reform at bay. The next attempt at changing bastardy laws, in

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1918, had a similar trajectory. The rise in prices and wages during the First World War made the maximum award of five shillings a week laughably small. Mr Brace and Sir George Cave introduced a bill that had only two clauses: first, it raised the maximum award to ten shillings a week, and second, it allowed variation of the order.5 In committee, some of the MPs suggested other changes, such as a clause to allow women to use a different jurisdiction to get a variation if she had moved since the first order. The HO accepted that change, but not more controversial ones. Notably, the act was retroactive, which meant that many low awards given before the war could be increased.6 With government support (Cave was Home Secretary), the bill passed easily through Parliament. Undoubtedly, it helped many women, but it was also quite limited.7 Legislation passed before women had the vote, then, chipped away at the worst problems, but did not address the overall position of illegitimate children. The ending of the First World War and the coming of women’s suffrage in 1918 could have led to more comprehensive changes. Indeed, in 1918, the National Council for the Unmarried Mother and her Child (NC) formed specifically to help illegitimate children and their mothers. In addition, the Six Points Group (SPG) and the National Union of Societies for Equal Citizenship (NUSEC) lobbied for better laws on bastardy and illegitimacy. In the 1920s, women’s groups concentrated on helping unwed mothers get more income, though they were also supportive of bills to raise the children’s status. The process was difficult because without governmental support, bills had little chance to pass. In addition, after the most glaring problems had been addressed, the different priorities of reformers splintered their efforts. The NC made a deputation to the HO in May 1919 and requested numerous changes, such as allowing hearings even if the mother had died. Many of their requests were radical for the time, such as their position that enforcing bastardy orders should be the responsibility of the State and that the State should support any child of unproven paternity. The HO warned the NC that bills that covered too many issues rarely passed.8 The warning was proved true when the NC drafted a bill in 1919 that formed the basis for Neville Chamberlain’s first attempt at changing the law in 1920. The 1920 bill had thirty clauses. The bill called for fathers’ names to be registered at the births of illegitimate children, made COs

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responsible for getting arrears, and raised the maximum award to forty shillings a week. It also had a clause that made all illegitimate children wards of the court. Clause 27 allowed the legitimation of a child upon the marriage of its parents.9 In introducing the bill, Chamberlain made an impassioned speech, insisting that English laws were ‘revolting to humanity’. He had much support in the Commons on the second reading, and spent hours in frustrating negotiations with ultra-conservatives. Eventually, the standing committee cut out the majority of the clauses, but Chamberlain told his sisters he did not hesitate to omit these smaller points in order to get the two he most valued: legitimation upon subsequent marriage and better maintenance. Unfortunately, the bill never got a third reading.10 After this defeat, many advocates for illegitimate children accepted that reformers needed to divide their efforts. Those who worked to improve bastardy orders created separate bills from those who wanted to change the children’s status. Often the same sponsors appeared on both, but having two sets of bills bettered the odds of winning a ballot for one of them. Thus, in 1921, MPs offered four separate bills, none of which got any traction. Most had been cut down to deal with legitimation only, and this remained the pattern for the 1920s. The failure rate was partly because of the political instability of the decade. The National Government fell in 1922, Bonar Law’s Conservative government was brief (1922–23), and it was followed by a short-lived Labour government in 1924. Thus, the only bill to get a sustained debate was a Bastardy Bill in 1923, which had only four clauses, the most notable of which was allowing the transfer of an affiliation order from poor-law guardians to the mothers and increasing the maximum award to twenty shillings. As an uncontroversial measure, the bill passed with little difficulty.11 Both the NC and NUSEC expressed frustration with the limited changes.12 They had helped draft Chamberlain’s unsuccessful bill in 1920 and met in a conference in 1921 to confer with Captain Bowyer and Chamberlain about future attempts. The NC invited several groups to the meeting, including the NUSEC, the National Council for Women, and the SPG. Women’s and Labour advocates wanted a broader approach, but Bowyer argued that ‘it would be a mistake to attempt to bring forward contentious measures … possibly gaining for the promoters a reputation for bringing forward

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failures’. Many women also insisted that legitimation was not as crucial as monetary support. Chamberlain replied bluntly that neither he nor Bowyer would support a bill that did not include legitimation, because ‘it would create enthusiasm and it would appeal to the sense of fairness and justice of the whole country’. In the face of this determination, both the NUSEC and SPG reluctantly agreed to support Bowyer’s small bill.13 However, when the 1923 bill came up for consideration, both the NUSEC and NC tried to get supporters to add clauses. In addition, the NUSEC, NC, and Labour Party representatives later passed a resolution expressing their dissatisfaction with the bill’s limitations.14 Their frustrations were understandable. Lady Astor, the only woman MP in the early 1920s, received letters from women all over the country, and these women were more concerned with bastardy laws than legitimation. The mother of an illegitimate child wrote in July 1923, explaining that the father of her child had absconded to the United States. She asked that Parliament force men to pay the mothers a lump sum before allowing them to leave the country. Florence Taylor, a rescue worker in York, complained in 1925 about a man who joined the army and got stationed miles away when his lover summoned him for affiliation. The cost of bringing him back was £4, and the army would not send him without the fare. Astor also got a letter from a pair of Welsh solicitors in 1928 that asked her to try to get some help for women whose babies were stillborn.15 The government’s slowness was maddening to women hearing these stories. Susan Musson, secretary of the NC, opined, ‘it is a bitter disappointment to me personally that the Bill [of 1922] does not touch on our other points–collecting officers, affiliation orders, etc., which I think are really more important than the other matters’.16 Despite their frustrations, the NC persevered into the late 1920s. It sponsored bills that gave women antenatal help, provided payments for funerals of stillborn children, and required (rather than allowed) the appointment of COs. Sadly, none of these bills advanced.17 Lord Astor’s bastardy bill in 1927 was a case in point. The Lords disputed clause two, which allowed antenatal care for mothers, despite its safeguards to protect men. Another clause allowed the woman or guardians to get payment of funeral expenses to a stillborn child, and a third allowed the mother’s relatives to affiliate the father if she had died or gone insane. All were standard

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suggestions in bastardy bills since 1909, yet the HO opposed the bill, and the Lords voted against a second reading. The government cited fears of blackmail; Time and Tide disgustedly noted, ‘expert blackmailers do not become pregnant in order to pursue their victims’, to no effect.18 Part of the problem was disagreements between those sponsoring later bills, since the problems they tackled were often no longer the unanimous ones from the 1909 report. In 1928, the NC, SPG, National Council of Women, Young Men’s Christian Association, Alliance of Honour, Association of Nurses, and Liberal Women’s Association joined together to promote another bill. The conspicuous absence was the NUSEC, whose representatives disagreed with a clause that allowed the courts to award the money to someone other than the mothers. Others declined to support William Clark Hall’s bill in 1929–30 because they did not agree with him that all illegitimate children should be under State control. When all groups did agree, the government refused its support. For example, in the late 1920s, these groups urged governments to get reciprocal agreements with other countries and dominions to enforce bastardy orders, without success. As if to emphasise its futility, the Joint Parliamentary Committee dissolved in March 1930.19 Except for a bastardy reform law for Scotland in 1930, only a small bill in 1929 that corrected an error in earlier legislation passed after 1923. Agreement on goals had declined once reformers had dealt with the most glaring problems, and women’s priorities were different from many MPs. The NUSEC, SPG, and NC primarily concerned themselves with the well-being of the mothers, while MPs were more interested in the children. As a result, after passing the two most important bastardy acts, Parliament lost interest. Furthermore, women’s groups wanted to deal with several problems at once, while MPs, aware of parliamentary realities, scaled down bills. Time and Tide, a publication whose editors overlapped with the SPG, was particularly scathing about the bastardy bills on that score.20 These arguments resurfaced in bills over legitimation, the other major strand of legislation in the 1920s. Legitimation bills The legal position of illegitimate children had troubled advocates for some time, but only one bill, in 1893, attempted to change the

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law in the Victorian period, and it did not get a second reading.21 Again, the war acted as a catalyst in raising interest, if not action, as MPs asked questions about reforms on illegitimacy in 1915 and 1916.22 Unsurprisingly, the issue resurfaced in the aftermath of the conflict. Chamberlain’s 1920 bill was an attempt to bring English law in line with the rest of Europe and allow the legitimation of a child upon the marriage of its parents, if the parents could have been married at the date of its birth. After it failed, every year until 1926 saw a new attempt. In 1921, Wignall and Bowyer both got ballots for similar bills, and Wignall did again in 1922. In 1923, a bill passed a third reading in the Commons, but was delayed in the Lords and then lost with the dissolution of Parliament. The last private member’s bill was in 1924, during the brief Labour government, and passed both the Commons and Lords. However, the Lords had changed the bill significantly, and another dissolution occurred before MPs could debate the amendments. The Conservative government sponsored the bill in 1925, begun in the Lords. Unfortunately, the government delayed sending the bill to the Commons until the autumn, and the bill was again lost due to lack of time. Finally, in 1926, a government-sponsored bill began in the Lords, overcame attempts at reform in the Commons, and ended with the acceptance by the Commons of the Lords’ version of the bill. It received the Royal Assent on 15 December 1926.23 As this recital shows, contentious debates over the bill occurred. On its face, the law was quite simple – it included the legitimation of children upon the marriage of the parents and the rights of intestacy between mothers and children. So why the hard struggle? Before 1924, the attempts were all by private members that had little chance to become law, but this did not explain the failure of the 1925 bill. The real problem was that the only truly non-controversial part of the bill was the intestacy clause. Lord Buckmaster, the major sponsor in the Lords, expressed the general opinion in 1924:  ‘if there is one relation that no law can touch or change, it is the relationship of mother and child.’24 But this clause was the exception; the rest of the bill caused sharp disagreement. The first major stumbling block was the issue of re-registration. The bill’s drafters preferred that all children gain legitimation automatically after the marriage of their parents or when the bill came

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into force, whichever was later. Some MPs, though, argued that any person desiring to be legitimated should have to re-register, or, alternatively, that their parents had to acknowledge them before legitimation. The demand for this requirement stemmed from the Lords, primarily Lord Midleton. He argued that all kinds of frauds would result without these safeguards. Buckmaster protested that such an amendment hurt poor people the most, but he agreed to add it to the bill.25 The Commons had not included this clause in their version, but when the bill was lost late in the session, the issue rested until 1925. The 1925 bill, a government measure, began in the Lords, and Midleton brought forth his amendment again, but most government offices objected to the change. The HO favoured the simplest approach to legitimation, as did the Registrar-General’s Office (RGO).26 The Lord Chancellor’s Office (LCO) also disapproved: ‘A child ought not to suffer because its parents have neglected their duty to re-register him.’ The LCO added that many people’s parents had died, so the requirement cut out those most anxious to regularise their positions. As a result, Cave, now Lord Chancellor, argued against the amendment. He pointed out that re-registration was not required in Scotland, and Scottish families had not suffered fraudulent claims. In the debates on the Committee report in March 1925, the amendment failed 65 to 29.27 Midleton did not give up, and the Chancellor later compromised in order not to lose the bill. The HO notes on the 1925 bill showed the civil servants believed that registration was irrelevant: ‘legitimation under the Bill is to depend on birth and marriage. It is not to depend on registration. If two unmarried persons have a child and afterwards marry, that child is by the marriage itself legitimated.’ The registration, then, was simply to keep the records correct.28 This was not the interpretation of the Lords. Since the Commons did not get a chance to debate, one cannot know if they would have accepted the compromise, but many observers of the legislation disapproved of the clause. The NC protested it when Midleton first mooted it, but they, too, agreed to accept it if the only other alternative was to lose the bill. They did ask the Home Secretary to delete it in their deputation in 1925, though.29 The NUSEC opposed the amendment in 1924 and refused to support the bill if it remained. Once the amendment got in, an editorial in The Woman’s Leader urged the Commons to omit it.30

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As the government worked on the 1926 version of the bill, Midleton continued to insist that the onus of proof fall on the legitimated person. This time the LCO stood firm, backed up by the RGO. Demanding registration or avowal before legitimation required re-writing the bill, which the government declined to do. In part due to the General Strike, which occurred just as these discussions were ongoing (May 1926), the Lords did not want to challenge the government. Thus, the Lord Chancellor had the strongest say, and he insisted on the simplest process.31 As a result, Midleton withdrew the amendment, and the bill, in effect, became retroactive. Anyone who met the criteria and who was living at the time it became operable (1 January 1927) was legitimated without further action. The government’s position on re-registration was the decisive factor in resolving that issue, but the second problem over legitimation was less easily finessed. Chamberlain’s bill in 1920 had contained a clause that barred children from legitimation if their parents could not have been married when they were born. In other words, ‘the proviso’ (as it came to be called) excluded children of adulterous unions. Chamberlain included it to maximise support, but he admitted that ‘I can see no logical reason for retaining the provision, and I am prepared to leave it out.’32 The proviso, alas, was not so easily dismissed. The problem was that those who wanted to limit the bill concentrated in the Lords; peers and bishops repeatedly combined to defeat wider bills. Their determination forced the Commons to accept a less comprehensive measure. Legitimation itself was not controversial; bringing English law into line with the rest of Europe and the dominions got broad support. The difference lay in how many children could be helped without damaging ‘morality’. The many debates over the proviso showed the anxieties about marriage, divorce, and sexuality that illegitimacy brought to the fore. Some MPs argued that the whole point of the bill was lost by covering so few children; others were willing to add the proviso to secure its passage. When the government considered how to respond to private members’ bills, the Cabinet too faced the issue. Edward Shortt, the Home Secretary between 1919 and 1922, was unhappy with the limitation, since ‘The effect of the proviso is to cut out from the Bill a large number of the very cases which the Bill is designed to benefit.’ Attorney-General Ernest Pollock, on the other hand, argued that the government should only

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get England in line with Scottish law. The Cabinet eventually went with Shortt’ s view, though they agreed not to object to the proviso should MPs insist on it.33 The dilemma of the Cabinet was soon mirrored in the arguments in and out of Parliament. The two sides in the debate did not follow party lines. Members from all parties supported the wider and narrower bills, just as members of all parties sponsored bills to change bastardy and legitimation laws. The crucial divide was between the houses. In 1923, the bill was introduced with the limiting proviso, but the Commons standing committee deleted it. When the bill came up for debate, Major Birchall urged the Commons to re-introduce it. A  long debate followed, with a large majority in favour of omitting the limiting clause (180 to 12).34 In contrast, the Lords refused to pass the bill without the proviso; the government did not give facilities for the Commons to debate the Lords’ amendments, so the bill failed again. In 1924, both houses debated the issue of the proviso; the bill began in the Commons with the proviso intact, but the MPs voted to remove it in committee. When the bill came up for a third reading in June 1924, the Commons again voted to leave out the clause (136 to 65). Still, the Lords refused to accept this version, voting to retain the clause by 77 to 38. When Parliament dissolved, the two houses had not reconciled their differences.35 When the government took over the bill in 1925, they introduced it first in the Lords with the proviso; the Commons got too little time to debate the bill.36 Finally, both houses again debated the proviso in 1926. The Lords passed the bill with the limiting clause, which the Commons tolerated until the third reading of the bill, when again members protested its inclusion. Given the years of frustration, supporters of the bill urged the Commons to accept the attenuated version, which they reluctantly voted to do.37 Those who wanted the limited bill argued that a wider law threatened marriage by aiding adultery and divorce. Such debaters drew a difference between fornication  – which could be remedied by a marriage between the parties – and an adulterous affair.38 Adultery was particularly dangerous since the 1923 Divorce Act equalised grounds between men and women; women could now sue for a single act of adultery. The Archbishop of Canterbury thus insisted an innocent wife might be ‘persuaded’ into divorcing her husband against her will.39 A wife who was childless was especially vulnerable. The Duchess of Atholl, herself a childless wife of a philandering

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husband, insisted in 1924, ‘Short of a declaration by Parliament in favour of polygamy, I can imagine no Measure more calculated to degrade the status of women.’40 Indeed, at times the debates reached apocalyptic heights. Charles Oman argued that the law would ‘lead ultimately to cases of murder to get rid of a childless wife … where the wicked husband wants to marry his mistress and have his children legitimated’. Others insisted that the wider bill promoted ‘free love’ and ‘polygamy’.41 To this argument, those who wanted to delete the proviso replied that however badly the parents had behaved, the child should not suffer. True immorality was putting a lifelong stigma on children who had done nothing wrong. Captain Bowyer insisted that ‘you cannot stop adultery by Act of Parliament. What we are doing is to legislate for the innocent result of the act of adultery.’42 After all, adulterous parents could regularise their positions after a divorce or the death of a spouse, but the child could never escape the stigma.43 Others pointed out that several of the dominions had passed legitimation without limitation, to no ill effect. Why could not England join them?44 In short, supporters of the wider bill complained that the proviso divided illegitimate children, consigning those left out of the benefits to a lower status than before. Bowyer told the House, ‘What we are seeking to do is to pass an Act which will help all illegitimate children and will not divide them into classes.’45 The supporters of the wider bill were scathing of the wilder predictions of their opponents, as few people committed adultery on the cold calculation that any children they produced might one day be legitimated. Indeed, the vast majority of adulterous cases were long-standing cohabiting unions, not affairs.46 Buckmaster’s reaction to the debate in the Lords in 1924 summed up the position: I have introduced a measure which I believe … is based upon a simple act of justice to a large class of innocent … people, and I have been told that my measure encourages free love and polygamy, induces murder and suicide, destroys the purity of I do not know how many thousands of English homes … and will, in one short compass, really effect more devastating consequences than any measure I have ever known brought before your Lordships’ House.47

The argument about the ‘best interests of children’ was one that more conservative MPs countered in three ways. First, they insisted

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that centring on illegitimates was ‘muddled sentimentality’. The people who wanted the wider bill meant well, but they ignored larger issues.48 Second, they asserted that they were not the only ones making distinctions between illegitimate children. Even with the widest possible bill, most such children received no help, since only a minority of mothers and fathers later married. To take the point to its logical conclusion – no child should suffer for the sins of its parents – would be to eradicate the difference between legitimacy and illegitimacy, and no one was suggesting that.49 Third, those who argued for a narrow bill insisted that they were considering the interests of children; they just concentrated on legitimate ones. Oman, never one to stint on dire scenarios, sympathised with legitimate children ‘who find their name smirched, and themselves loaded with brothers and sisters from the gutter’.50 Although every version of the bill exempted titles and entails from the inheritance rights, this still did not alleviate concerns about the potential wrongs done to legitimate heirs. Moreover, women did not speak with one voice on the issue. Some women MPs, like the Duchess of Atholl and Lady Astor (Conservatives), argued for the limited bill, while others, like Susan Lawrence of the Labour Party, advocated for the wider one.51 Women’s groups also split. The Mothers’ Union, unsurprisingly, opposed the wider bill, as did the Women’s Joint Advisory Council, but the SPG wanted the widest coverage. Other groups found the issue polarising. The National Council of Women’s board debated the proviso in 1924 and voted 30–16 for the wider bill. This was followed by a general meeting six months later in which the larger membership voted to restore the proviso ‘by an overwhelming majority’.52 The NUSEC especially struggled to find consensus. In discussing bills with Betterton and Bowyer, the NUSEC consistently asked for the wider version, but agreed that it may have to accept the narrow one to get the bill through the Lords.53 The editors of The Woman’s Leader reflected this ambiguity. In 1923, an editorial insisted that the narrow bill ‘discriminates in what is to our mind an unnecessary manner’. In other pieces, NC officers argued for the wider version. But the editors also invited pieces by those who thought the wide bill was a mistake.54 They exercised the same balance in letters to the editor. Helena Normanton, one of England’s first women barristers, wrote in 1924, echoing many of the wilder claims of the opponents of the wider bill. Yet she was

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immediately refuted by M.  Dale, who insisted that the proviso was ‘devilish’.55 Ultimately, though the NUSEC urged a wider bill in both 1924 and 1925, it accepted the 1926 bill as better than nothing.56 The NC also fluctuated in its attitude towards the proviso. In November 1923, the managing committee debated the issue, and then finally decided to vote on a resolution. At the 18th Quarterly Meeting in 1923, the majority of members voted that ‘the Council shall support the introduction of a Legitimacy Bill with the controversial proviso omitted’.57 Lettice Fisher, the president, wrote to the Lord Chancellor in 1924 about the NC’s decision, and Musson wrote articles pressing for a more generous bill.58 The NC kept this policy publicly, but accepted the truncated bills of 1924 and 1925 in private discussions. The organisation admitted defeat in November 1926, when the Council passed a resolution to agree to whatever bill would pass. Fisher then wrote to The Times to ask those opposed to the proviso ‘to desist from suggesting further changes’.59 After the limited bill succeeded, the council dropped plans to support a bill to widen the provisions to avoid further divisive debate.60 The pragmatic side of the women’s movement won the day partly because more radical feminists argued that the entire bill was a side issue. The editors of Time and Tide, the journal most representative of the SPG, insisted that the only helpful bill was one that recognised that illegitimate children had two parents. As C. Nina Boyle wrote in 1923: no bill has yet demanded that the male parent of an illegitimate child should be held responsible for its welfare as is the female parent … if … there had been steady concentration on a measure to sweep away uncompromisingly the restrictions on the citizenship of women, the time and the effort would have been better spent. We might have got less reform but more justice.61

For these feminists, the main issue was mothers’ economic vulnerability. Katherine Raleigh, in 1920, pointed out, ‘The one thing which will relieve the sad condition of the unmarried mother is – Equal Pay for Equal Work … Champions of the illegitimate child … seem to have overlooked this’.62 These were not typical views; many women insisted that small changes were better than none. But the

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divisions kept women’s groups from unanimously supporting one or other version of the bill. How women and men across the country felt was harder to know, but the NC gave many talks around the country and claimed support for the wider version. S. Neville-Rolph insisted in 1924 that the ‘majority of women in the country … have been very conscious of the great injustice that would be done if the Bill were passed with such a proviso added’.63 The Divorce Law Reform Union was particularly scathing of the proviso. It put out a pamphlet in 1922 that urged every voter to lobby MPs to pass the wide bill, warning that ‘once a Bill is passed and becomes law, years may elapse before you can get the question again before Parliament’.64 Astor received letters from parents, urging her to reject the proviso. In March 1924, E. A. Phillips asked plaintively, ‘Why is it that the parents who are all free to marry at any time … can give their children the right of legitimacy, whilst others who desire but are unhappily prevented from marrying … cannot claim this right for their children?’65 The government also received letters from people who were unable to divorce and unhappy that their children were excluded.66 Yet only the limited bill got through the Lords, who, after all, did not have to worry about public opinion. The fervent debate over such a modest bill was an indication of the fundamental issues upon which it touched. Illegitimacy intersected with divorce, adultery, and cohabitation, subjects that aroused powerful emotions. The fact that the bill passed in the wake of a world war, and with the strong support of many women and Labour MPs, also demonstrated the role of new voters to its success, as did the adoption law of the same year. Indeed, the two laws were entwined; the fact that mothers could (in theory) adopt their own illegitimate children gave added impetus to legitimation by subsequent marriage of the parents.67 But the Lords would go so far and no farther, supported by a bloc of moralists who feared opening the doors of change too wide. As this discussion has shown, the major difference in these debates was between the houses – the Commons repeatedly supported wider and more inclusive legislation than the Lords. Significantly, MPs from all parties participated; Conservatives were prominent on both sides of the debates because they dominated most governments in the 1920s, but Liberals and Labour MPs also introduced bills. The most striking absence was not any

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particular party, but the lack of participation from illegitimate persons in these efforts, even ones in the Labour Party. Ernest Bevin, born in 1881 after his mother’s husband had deserted the family, was not in Parliament in the 1920s; he was the general secretary of the Transport and General Workers Union (TGWU). Like many labour groups, the TGWU took no stand on the issue, so he had no need to comment (and in the era of the General Strike, he had other concerns). More notable was the absence of Ramsay MacDonald, born to a single mother in Scotland in 1866. MacDonald was in Parliament from 1922 and prime minister in 1924, but he did not spend any political capital on the bill. He voted in the debates on bastardy or legitimation bills at least twice, and was one of the minority of MPs in the Commons who voted against the Lords’ narrow version of the bill in 1926. But he did not speak in the debates. Clearly, only those with pristine sexual records and legitimate births felt secure enough to work on the legislation, thus also explaining the dominance of Conservatives. These sponsors could promote it as a purely humane measure. As stated in Chapter  1, Keir Hardie was an exception. He was the only illegitimate MP to fight for benefits for children of unwed parents, by proposing an amendment to the 1906 Workman’s Compensation Act to include illegitimate children. All the same, Hardie told few people about his status and used his stepfather’s last name.68 Except for Hardie, illegitimate people let others lead the debates. These absences were another indication how sensitive people were about their status and the delicate issues it raised. These factors again came to the fore as the 1926 act went into effect; the aftermath of the law showed a number of limitations to its reach. Aftermath of the Legitimacy Act Undoubtedly, the Legitimacy Act of 1926 was a welcome change. In 1927 alone, 5,495 children went through the process of re-registration. Fewer people applied in future years, but in the 1930s, around 1,000 people each year re-registered, and many others simply accepted themselves as legitimate.69 However, some difficulties in the practical application of the law emerged in the next decade. First, re-registration was public, expensive, and difficult. Second, the bill had not changed nationality laws. Third, the divorce courts refused to recognise legitimation unless the child

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had used the Legitimacy Declaration Act. All of these issues caused problems for individuals who wanted to take advantage of the law. The RGO set up the process for re-registration when the Act seemed likely to reach the statute books. The LCO, the HO, and the RGO debated the best procedure in a conference in April of 1925. The Registrar, Sylvanus Vivian, warned against a costly or public procedure. He proposed that after any legitimated child requested re-registration, his office would create a new entry in the records that cross-referenced with the old. When necessary, the RGO would then process birth certificates for legitimated persons with the date of the new entry. This date was that of re-registration rather than the date of birth, though Vivian insisted no one could know such an entry meant the child was illegitimate. In the end, the bill passed with this limited provision for implementation in place.70 The 1926 Act, then, left several registration issues unresolved. First, re-registration required a public hearing, as openness was necessary to avoid fraud. This was a long-standing assumption of English law, one also enshrined in the Adoption Act of the same year, to the dismay of some parents who had adopted children irregularly. Parliament did make occasional exceptions; in 1926, for instance, the government banned press coverage of divorces.71 But the government did not do the same for adopted or legitimated children, so applicants had to expose their secrets. The children of Sir Henry Percivale de Bathe and Charlotte Clare, born before their parents’ marriage in 1870, applied for legitimation in 1928, assuming the case ‘would be heard in camera’. Instead, a notice appeared in The Times on 21 February 1927. In the wake of the hearing, Lady Burnham and Lady Smerleyton, in particular, faced social difficulties; Lady Burnham, ‘widely known as an almost saintly character … suffered agonies of shame’.72 The de Bathe children were not alone. One man hired a barrister to argue to the Bradford County Court that his case should be heard in camera; the barrister insisted that no one ‘would come into this court if he thought the newspapers would report his case’.73 Similarly, a solicitor wrote to the Daily Mail on 24 February 1928, ‘At the present moment I am acting for an extremely sensitive gentleman occupying a prominent position … He wishes to take advantage of the Act, but can only do so at the risk of having the details made public property.’74 Despite this and similar complaints, the Attorney-General in 1927,

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Sir Douglas Hogg, insisted that justice could only be served by public forums. Undoubtedly, many legitimated people chose not to proceed in these circumstances. Eventually, some newspapers agreed not to print names, but no applicants were guaranteed discretion.75 The second difficulty occurred because the process developed by the RGO was complicated and relatively expensive. The application required birth and marriage certificates of parents and children, death certificates or divorce papers for either parent, and the address(es) of both. If the mother had made out an affiliation order, a copy had to be attached. In addition, the form asked for ‘independent evidence’ of the parents’ marriage and the father’s paternity. If the father and mother were willing to do so, they could sign the declaration, but some parents were dead, so those applicants had to find other proofs. Applicants also had to re-register their births at the local registration office; if they had not already registered, they had to register as illegitimate first and then re-register as legitimated.76 Richard and William E., born in 1885 and 1889, applied for re-registration in October 1927. Their parents, Richard G.  and Harriet E., had married in 1896. The brothers had to send the application twice, as they had originally failed to include their birth certificates and their father’s declarations of paternity. Attaining these forms cost extra money, and the correspondence took two months.77 Moreover, William and Richard were not satisfied with this single change. In January 1928, they asked how to change their children’s birth certificates and their marriage lines as well. The Registrar charged them ten shillings to change all the certificates, and another two months went by before the parish registrars reflected the new names. In all, changing the documents had taken over four months and cost each man fifteen shillings (plus postage). Since William was a labourer and Richard a barge captain, the expense was not negligible. Indeed, the economic strain of the inter-war period meant that many legitimated children could not have afforded it.78 In addition to the expense, other factors complicated people’s attempts to follow the directions. Mrs G.  wrote to the RGO in 1933 about registering her son after her marriage to the father (in 1926). She was not able to go to the Registrar because she was confined to bed. The RGO refused the request of Mr G.  to substitute, saying, ‘the putative father is not qualified as such to act

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as sole informant for registration’, though G.  could claim to do so as the occupier of the household. Before Mr G. could act, Mrs G. died, so he had to register his own son as the occupier and not the father. Confusing matters more, Mrs G.  had been a deserted woman, not single, when her son was born. Because she could not prove non-access of her husband, the Registrar told the local office to register the boy as legitimate, but as the son of his stepfather, not his biological father.79 The historian cannot know how many children sent in applications; this information is either destroyed or closed. But the embarrassment of the public hearings and the expense of the proceedings probably limited the number. Furthermore, part of the re-registration entry, by order of the RGO, said ‘Previously registered on x date’; the birth register also reflected the change, because it had to say that the notice was a re-registration under the Legitimacy Act. In the G.s’ case, the note read ‘as per Declaration dated 15th December 1927’, a note that made the reason for the change obvious. The birth certificate did not have these notes, and the children had their fathers’ surnames at last, but given the limitations, many legitimated children did not bother with re-registration.80 Civil servants were not unreasonable in asking for proof of parentage and marriage before changing records. Nevertheless, the requirement for ‘independent’ evidence of marriages and paternity, the charges for services, and the insistence that the new registration reflect the previous entry rather than replacing it were their decisions. Vivian argued that the key document was the birth certificate, and since it came from the corrected entry, it did not reflect illegitimacy. This was true for those born after 1927, but for early applicants, the difference of several years between entries was a sure giveaway. And, of course, for older applicants, several other documents also had to be changed.81 As a result, the number of people who received the full benefits of the bill was smaller than intended. The second major difficulty of implementation involved nationality. Until 1870, English nationality came automatically from birth on British soil. The Naturalization Act of 1870 changed this, allowing adult males to renounce British nationality if they chose, but defining a single woman’s nationality by birth and a married woman’s by her husband’s. In part because of conflicts with the laws of dominions and colonies, the British passed the British Nationality and Status of Aliens Act in 1914. This law defined a British subject

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as anyone born in the British Isles or in British dominions or anyone whose legal father was British. Children, then, either gained nationality from birth or followed the nationality of their fathers if legitimate and mothers if illegitimate.82 Illegitimacy interacted with nationality in complicated ways. The Victorian approach to illegitimacy and nationality followed Shedden v. Patrick  – an illegitimate child’s nationality came from its mother and legitimation did not change this. Nationality was determined at birth. Thus, the British were only open to claims of illegitimate children born abroad if their mothers were British, and the State frequently found ways to avoid responsibility there, too. A series of letters in 1859 ensued over the child of Lucy Richards, who bore an illegitimate child in Constantinople in 1857. Lucy, a servant, died when her son was twenty months old. The father of the child was a surgical student in London. The British Consul paid a pound a month for a nurse, but this could not continue indefinitely. The discussion by the HO and Foreign Office (FO) came down to this issue: ‘the Child, being illegitimate & born out of H. Majesty’s dominions is not a British Subject.’83 The ultimate decision is not in the file, but any provision for the child was through charity, not the child’s rights as a citizen. In two other cases involving British mothers, the government was equally unwilling to get involved. In December 1858, the government received a letter from French authorities about Harriet Knight, a thirty-year-old woman from Birmingham. Knight had given birth to an illegitimate child on 6 December 1856. The father, a Swiss subject, left her, and Knight returned to England, leaving her child behind. The French asked that the English support the baby, but the FO refused: ‘scandalous as the conduct of her mother may be, I do not conceive that we are bound to take any steps in the matter’. Unless the French transported the infant back to Britain, the British felt safe from any claims. Similarly, Edward Riddick was born on 26 July 1889 in Strasbourg to a Scottish woman, Mary Riddick, and a German officer. Riddick left the child with foster parents, a couple named Raub. The Raubs eventually appealed to the British government for help, since the mother had disappeared. Again, the government attempted to wash its hands of the child on the assumption that it had no legal relations, though in this case the Germans persisted. In the end, the Scottish Office found Mary in Edinburgh and prevailed upon

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her to make arrangements for the child, but the British government never admitted responsibility.84 The government was even more determined to refuse to accept children with British fathers and foreign mothers; these children had no claim on British nationality whatever. Charles Prest was born in Paris in 1871 to a Swiss mother and an English father, and his parents had married by the time he asked for naturalisation in 1892. Because Prest was domiciled in France and his parents had married, he was legitimated under French law, but the English government, relying on Shedden, refused the passport.85 Scotland had legitimation upon the marriage of the parents before 1926, so Scottish subjects should have had less difficulty, but this was not always true. Andrew Allen had six children with his cohabitee in Russia before he married her. When he wrote to the British Embassy for their passports, he was refused. Allen was born in Scotland, so he appealed a second time, arguing that in the land of his domicile, his children were legitimated. He nevertheless could not get anyone to grant the papers, since the FO, HO, and Scottish Office all kept referring him to each other. Allen, exasperated, wrote to Lord Harcourt in 1881 that their attitude ‘seems simply to express a decree of outlawry against a British subject’ who had committed no crimes.86 The record stops without any recorded resolution. Various government offices stymied attempts of illegitimate children to claim British citizenship throughout the Victorian era. In contrast, those born within the British Empire had better claims. The issue came up in the FO in 1898 regarding Anglo-Chinese children born in British territories. C.  MacDonald wrote to Lord Salisbury, the Foreign Secretary, asking what to do about two cases, one in Shanghai and one in Ichang. MacDonald understood that to be born on British soil was to be British, but the Chinese law stated both parents had to be British. All of the officials who minuted on the case insisted that birth on British soil was all that was necessary; ‘the fact that they are filii nullius does not affect this point’. Unless the Chinese chose to claim them, there was no reason to deny subjecthood. MacDonald was not impressed with this argument; he thought British law should never depend on Chinese law, and the FO set up a meeting to discuss the matter in November 1918. The meeting concluded that the British should claim them, but added, ‘the registration is not authorized on the ground that the person is

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the putative child of a British father, but solely because he (or she) has been born on British soil’.87 The restrictions of this ruling meant that illegitimates born in any colony that gained independence lost this protection. The passage of the Legitimacy Act offered an opportunity to reform the laws of nationality for legitimated persons; indeed, some of the private bills extended nationality to them. But the Law Officers protested these provisions, and later bills dropped them. The early discussions centred around the clients of H. C. Blackmore, a solicitor, who wrote to the HO in April 1922. His clients had a child in Australia and had subsequently married there. Blackmore pointed out that unless the law addressed the issue of nationality, the child in question, though legitimated in both countries, would not gain British nationality. This letter led to a discussion in the HO. Sir Frederick Liddell, first Parliamentary Counsel, insisted that ‘It is a general principle of international law that legislation affecting status should only apply to persons domiciled in the jurisdiction of the Government passing the legislation.’ Similarly, in the debates of March 1923, Hogg asserted that ‘the legitimacy of every child depends upon the law of domicile of its parents’. In short, legitimacy and nationality needed to remain separate.88 Though unsurprising, the decision was not inevitable. The British Consul in Trieste wrote to the FO in June 1926 about a resident of Malta who wanted to register his three-year-old son with an Italian woman he had later married. Italian law, like most of Europe, legitimated the child upon the marriage of the parents, and the English were about to pass a law to allow this. The consul thus asked if the Legitimacy Act addressed the issue? The Law Officers admitted it did not, and one of them suggested bringing the matter up at the next Imperial Conference (October 1926) and getting a general agreement for children in ‘those parts of the Empire whose laws make provision for legitimation’. But the HO expressed no interest, dropping the matter in August 1926. Thus, the legitimation bill passed without any reform in the law of citizenship.89 As a result, a number of children in former colonies (or foreign countries) remained in legal limbo. They were legitimated after 1926 if their parents subsequently married, but they did not gain nationality. This was not clear immediately, though, so a number of such children and/or their parents applied to the FO for passports or for registration as British subjects in the 1920s and 1930s. This

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was particularly tricky in the case of colonies or dominions that gained independence in the midst of the legal changes. Unless the child could prove he or she was born on British soil, the FO refused to re-register the births and declined to grant passports. Thus, these children’s fathers were British, their mothers had become British upon marrying British men, but the children of the union were not. Even worse, because some local laws denied them nationality, the children became stateless. As M. Page Baldwin has pointed out, one of the justifications for the 1914 Act was to regularise the law of nationality across the Empire. In the case of legitimated children, the act failed.90 A few examples demonstrated the problems. Alexander English was an engineer, working in Egypt since 1897. He had a son with Elsa Werner in March 1910, but the two did not marry until 26 January 1917. After the 1926 Legitimacy Act, the British passed Orders in Council in several territories, including Egypt in 1930, to extend it to them. As a result, in 1931, Alexander sent an affidavit to the FO, requesting that his son be registered by the British Consulate. On 31 March, the FO replied that the boy was not a British subject, as legitimation did not give nationality. Thus, Alexander was British due to his birth, Elsa was British due to her marriage, but their son was Egyptian. He could not claim the right by jus solis because Egypt was independent (since 1922). Yet, the Egyptians argued that nationality came from the mother, and since the mother was British, the boy was, too. In short, as Wyndham Grech, a solicitor, complained in a similar case, the problem was one of statelessness.91 Another well-known case was that of Alexander Mitrovich’s grandsons. Mitrovich was a British subject, born in Malta. He had two children with Albina Bach, George and Luigi, in 1878 and 1880. He married Albina in 1901, and George grew up, moved to Egypt, married, and had two sons, Roberto and Mario. Though not British subjects, these boys were under ‘British protection’ in the 1920s, while Egypt constructed its nationality law. Yet, when Roberto applied for a British passport in 1929, he was told the protection had lapsed. The Mitroviches’ solicitor argued that as their grandfather was a British subject, so were his sons after the 1926 Legitimacy Act (and its extension to Egypt in 1930). The FO argued, as usual, that legitimacy and nationality were separate. Roberto was denied a passport in December 1930.92 In another

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instance, Grech argued that Malta was a special case, since it had a law similar to Scotland’s. His client was born in 1920 and his parents married in 1927, thus making him legitimate in Maltese law; and, since Malta was in British hands, he should be eligible for a passport. Nevertheless, the government again refused, despite the fact that the law officials acknowledged that these children were not British or Egyptian and thus had no nationality at all.93 Many of these problems related to the British insistence that married women’s nationality came solely from their husbands. This not only frustrated women abroad, but also some born and living in Great Britain. In 1927, two sisters, Sarah Ann Harrison and Emma Bertha Pym, applied for a declaration of legitimacy and naturalisation as British subjects. They were the daughters of Octavian Baxter Harrison and Ann Cole Harrison, and had been born in 1861 and 1862, respectively; their parents married in 1864. The court granted their petitions, but the HO raised objections, pointing out that the courts could not grant citizenship to married women unless they could prove their spouses were British. The government then instructed judges that in the future they must have proof of husbands’ nationalities before making such decrees. Unsurprisingly, subsequent decisions by the courts showed new strictness. Beatrice Gunther, a widow, petitioned for legitimation and nationality in November 1927. She had been born in 1890 to British subjects who married in 1902, and she married William Gunther in 1920 (he died in 1925). The government objected because she did not have her husband’s birth certificate, and her nationality depended on his. Beatrice withdrew her petition on 18 December 1929.94 Married and widowed women and their children, then, faced extra hurdles, but they were not alone in their difficulties. Others born in Britain also failed to gain passports or nationality. In 1928, G.  R. Warner wrote to the FO for advice about whether or not to grant passports to two brothers who were born in England to an Austrian father and mother. Their parents married in London in 1908, so the younger brother was legitimate, but the older brother was only legitimated after 1 January 1927. Having been born on British soil, they could claim British nationality by birth. Nevertheless, Warner did not want to give them passports, and several FO officials agreed.95 After much debate, the officials reluctantly acknowledged that the brothers had dual nationality; the only question was how much protection the British government would

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give them. In the end, the Foreign Secretary, Austen Chamberlain, gave them passports for only a single journey. His reason was ‘their connexion with this country appears to be the technical one that they possess British nationality by virtue of their birth here’. Since this had been the main way British subjects gained nationality for centuries, Chamberlain was straining the definition of ‘technical’. Nevertheless, the decision stood.96 The FO turned down similar requests from legitimated children in France, Italy, Germany, and Shanghai in the 1930s. Some officials suggested that the HO give such children special consideration, but Sir John Gilmour, Secretary of State for Scotland, rejected even this small advance, since ‘Certificates of naturalization are granted … only in very exceptional circumstances and in cases where the child is either being educated in an English school or brought up in English surroundings.’ Clearly, the government feared being overrun with ‘native’ children who resembled their mothers more than their British fathers.97 Thus, parents who wanted their children to be British had to apply for naturalisation for them, something that took legal knowledge and means. Ernest Turner’s children with Miyasaki Tama, born in Japan, both petitioned in 1924 when Harry was sixteen and Lucy fifteen. Miyasaki gained British nationality when she married Ernest, but their children did not. The fees for naturalisation were £10 a piece, so only well-off families could apply; in this case, both children gained British nationality in January 1925.98 Since legitimate children automatically took the nationality of their fathers, this was a remaining cruel distinction between legitimate and legitimated children. Many historians have explored the differences that the British State made over nationality, as with married women or resident aliens.99 Illegitimacy also limited citizenship rights, leaving some children in legal limbo. The HO and FO argued that Shedden v. Patrick tied their hands. However, civil servants during 1922 and 1923 took out clauses granting nationality in the bills. In addition, the FO could issue certificates of naturalisation at its discretion, so how much it used this power determined the law’s scope. The mostly Conservative foreign secretaries of the 1920s and 1930s did so rarely. One could also argue that these men were being consistent in supporting the idea of nationality at birth, but in that case, they should have argued the same for married women. Instead, after 1870, British women lost their citizenship if they married non-citizens, on the argument that

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this was necessary to defend the unity of the family. Those same lawyers had no such qualms about dividing parents and legitimated children. In 1923, S. Samuel wrote to his MP about just this issue. One of his sons had been born in France before Samuel, a British subject, married the French mother. Samuel could not get a certificate of nationality for him, and ‘the hardship of this case is rendered all the greater by the fact that his three brothers, all of whom were born subsequent to my marriage, are British subjects … the family is, in this way, divided’.100 One must conclude that civil servants and ministers upheld the ideal of family unity when convenient for them and discarded it when not. The third major issue that occurred in the aftermath of the bill involved custody in divorce suits. In cases in the late 1920s, divorcing parents fought over custody of children born before the marriage and legitimated in 1927. In these cases, the courts refused to grant custody at all, claiming they had no jurisdiction. The important case was Bednall v. Bednall in 1927. Justice Hill refused to grant custody to the petitioner for a child he had with his wife before their marriage. The husband’s barrister argued that the ‘child had become legitimate under the Act’ so the court should make the order, but Hill said he could not because the child was not a party to the divorce action. Children had to be represented in any case involving their legitimacy, so the parents had to use the 1858 Legitimacy Declaration Act first.101 Later decisions followed precedent; in Green v. Green in 1928, Justice Charles also refused to grant custody, despite strenuous arguments by the Attorney-General.102 In Jones v. Jones, in 1929, the child had been re-registered, with the father making a statutory declaration at a police court. Hill nevertheless insisted he could not give custody; the declaration was evidence of ‘parentage’, not legitimation.103 Lord Midleton must have been delighted; his insistence on the necessity of parental declarations had become law, at least in divorce actions. As these problems showed, rather than erasing the difference between legitimate and some illegitimate children, the Legitimacy Act created a third category  – the legitimated. Legitimated children had more rights than illegitimates, but were still distinct from legitimates. Their birth registers showed the change in name; if born abroad, their nationality was insecure; and if their parents divorced, no one got custody. Justice of the Peace pointed out that ‘the intention of the Legitimacy Act is to put a legitimated child in exactly

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the same legal position as a legitimate child’.104 This it failed to do, either from the lawmakers’ intent, obstruction by officials, or judges’ decisions. Differences remained until the abolition of the distinction between legitimate and illegitimate in 1987. Conclusion The achievements of those who worked to improve the position of illegitimate children in the early twentieth century were considerable. Reformers got higher awards for women in bastardy summonses and cleared away some of the obstacles for women trying to support ‘fatherless’ children. The Legitimacy Act of 1926 brought English law in line with other countries, so it was no longer a national embarrassment. Still, in both glaring and subtle ways, the reforms had omissions. An adopted child had all the rights of a legitimate child, including a pristine birth certificate, but legitimated ones were less legally secure. In addition, they faced public proceedings, a tedious application process, and costs in money and time. The issue of procedure proved to be influential in the bill’s reach. In short, even fairly modest reforms could be watered down still further by the actions of the bureaucrats and ministers meant to enforce their provisions. The FO and LO officials, especially, split legal hairs to narrow these acts. Without a doubt, the Legitimacy Act of 1926 was an achievement for many reformers, but the officials who oversaw its implementation limited its effects as much as possible. As a result, much remained to be done for the illegitimate child in the late twentieth century. The legal struggle to pass even minor reforms also showed a disconnect between public opinion and the House of Lords, in particular. Still, attitudes towards illegitimacy remained immensely complex in the twentieth century. Many conservative and religious people, men and women, insisted that the stigma was necessary to support morality and marriage as late as the 1960s, while others saw the stigma itself as immoral, stressing the harm done to children. Which type of morality society should follow and whether legal reforms should lead or follow popular opinion were the major dilemmas. Such debates also influenced the social lives of children of unwed parents. In the family, the workplace, and the larger society, discrimination depended only partly on legal restrictions; it also

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reflected attitudes to privacy, poverty, and the meaning of family, as the next chapters will show. Notes 1 J. Fink, ‘Condemned or Condoned? Investigating the Problem of Unmarried Motherhood in England, 1945–60’ (DPhil Thesis, University of Essex, 1997), 18. 2 Report from the Select Committee on Bastardy Orders (London: His Majesty’s Stationery Office, 1909), pp. iv–v; NA, HO 45/10574/ 177263/11, Bastardy Bills, 1909–14, Report of the Select Committee on Bastardy Orders. 3 Parliamentary Debates (hereafter PD), House of Lords (hereafter HL), Vol. 14 (5th series), 26 June 1913, 678; 3 July 1913, 751–64; 16 July 1913, 1037–54; 29 July 1913, 1466–72; 30 July 1913, 1540. 4 PD, House of Commons (hereafter HC), Vol. 59 (5th Series), 4 March 1914, 448–50; 13 March 1914, 1629; Vol. 62, 20 May 1914, 1965; Vol. 63, 26 June 1914, 2135; PD, HL, Vol. 16, 30 June 1914, 465; 14 July 1914, 1117–20; Vol. 17, 22 July 1914, 55; 22 July 1914, 93; 31 July 1914, 308; ‘Affiliation Orders Act, 1914’, Justice of the Peace 79 (1915), 51–2. 5 PD, HC, Vol. 110 (5th Series), 28 October 1918, 1119; 4 November 1918, 1884–96. 6 HO 45/11181/351629/5–27, Amendment of the Bastardy Law, August 1918–February 1919; PD, HC, Vol. 110 (5th Series), 28 October 1918, 1887–8. 7 PD, HC, Vol. 110 (5th Series), 4 November 1918, 1883–96; 15 November 1918, 3152–6; 21 November 1918, 3477; PD, HL, Vol. 32, 15 November 1918, 139; 18 November 1918, 196; 21 November 1918, 371. 8 Women’s Library (hereafter WL), National Council for the Unmarried Mother and Her Child (later named the National Council for One Parent Families [hereafter NCOPF]), Management Minutes, Box 006, 1918–30, 5/OPF/02/01/1/1a-c, Report of the NC to HO, 16 May 1919, 48. 9 House of Commons Parliamentary Papers Online, Bastardy Bill, 1920, 209–20. 10 PD, HC, Vol. 128 (5th Series), 7 May 1920, 2395–2451; quote from 2396; University of Birmingham, Neville Chamberlain Papers, Correspondence; NC 1/26/262, Neville Chamberlain to Anne Chamberlain, 16 August 1921; NC 18/1/255, Neville Chamberlain to Ida Chamberlain, 15 May 1921. 11 HO 45/12259/405558, Legitimacy Bills, 1920; PD, HC, Vol. 160 (5th Series), 28 February 1923, 1975–6; Vol. 162, 18 April 1923, 2073; Vol.

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165, 15 June 1923, 905–29; Vol. 166, 19 July 1923, 2461–2; Vol. 167, 31 July 1923, 1322; PD, HL, Vol. 54 (5th Series), 19 June 1923, 531; 3 July 1923, 776–9; 10 July 1923, 918–22; 12 July 1923, 1017; 16 July 1920, 1066; 31 July 1923, 1497. 12 WL, NC Legal Subcommittee Papers (hereafter LSP), 1917–71, 5/ OPF/02/12, Box O62, 11 December 1917, ‘Report of the Legal Subcommittee: The Bastardy Law and its Alternative’. 13 WL, NC, LSP, 5/OPF/02/12, Box 062, Conference of Legal Subcommittee, Captain Bowyer and Neville Chamberlain, 6 April 1921. 14 WL, NC, LSP, 5/OPF/02/12, Box 062, LS Minutes, 31 January 1923. 15 University of Reading, Special Collections, Lady Astor Papers, Correspondence and other Papers, MS 1416/1/334, Anonymous to Lady Astor, 26 July 1923; MS 1416/1/335, Florence Taylor to Lady Astor, 11 February 1925; MS 1416/1/336, Morgan and Hugh Dutton to Lady Astor, 21 November 1928; 6 February 1929. 16 MS 1416/1/343, Susan Musson to Miss H. Matheson, 31 July 1922. 17 WL, NC, Management Committee Minutes, 1920–30, 5/ OPF/02/01/1/1b, 17 March 1927, 5 May 1927; LSP, 5/OPF/02/12, Box 062, Minutes of the Joint Legislative Committee, 22 January 1925. 18 PD, HL, Vol. 66 (15 February 1927), 77; 17 March 1927, 567–76; Time and Tide 8:2 (25 March 1927), 279. 19 WL, NC, Management Committee Minutes, 1920–30, 5/OPF/02/01/1/1b, 4 April 1929, 6 June 1929, 5 September 1929, 13 March 1930, 10 April 1930, 15 May 1930. 20 Time and Tide 3:14 (7 April 1922), 323. 21 PD, HC, Vol. 8 (4th Series), 6 February 1893, 504; House of Commons Parliamentary Papers Online, 1893–4, Legitimation of Children’s Bill. See also J. G. Fisher, Illegitimate Children: An Inquiry into their Native Rights and a Plea for the Abolition of Illegitimacy (London: W. Reeves, 1893). 22 PD, HC, Vol. 71, 29 April 1915, 833–4; Vol. 71, 4 May 1915, 963–4; Vol. 87, 9 November 1916, 399–400. 23 S. Cretney, Family Law in the Twentieth Century (Oxford:  Oxford University Press, 2003), pp. 545–51. 24 PD, HL, Vol. 56 (6 March 1924), 616. 25 PD, HL, Vol. 58 (17 July 1924), 677–83. 26 NA, Lord Chancellor’s Office, LCO 2/752, Legitimacy Bills, 1924–5; 20 December, Home Secretary to Lord Cave; 9 February 1925, Lord Chancellor’s draft bill; 18 March 1925, Vivian to C.  Schuster, 18 March 1925. 27 PD, HL, Vol. 60 (26 March 1925), 749–52, 758. 28 PD, HL, Vol. 61 (5 May 1925), 5–12; HO 45/12259/405558/154, Legitimacy Bill of 1925, Notes on the Bill.

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29 WL, NC, Committee of Management Minutes, 1918–30, 5/0PF/02/ 01/1/1b, 14 August 1924; HO 45/19015/5156117/3, Legitimacy Bills, 1924–7, Report on the Deputation of the NC, 13 February 1925. 30 WL, Records of the National Union of Societies for Equal Citizenship, Executive Committee Minutes, 24 January 1924–27 November 1924, 2/NSE/A/1/4, Box #FL341, 24 July 1924, 3; Woman’s Leader 16:26 (25 July 1924), 205. 31 LCO 2/753, Legitimacy Act of 1926, Midleton to Lord Chancellor, 27 March 1926; Phillimore to Midleton, 8 April 1926; Midleton to Schuster, 16 April 1926; DeVeale to Schuster, 27 April 1926; Midleton to Lord Chancellor, 10 May 1926; PD, HL, Vol. 63, 27 April 1926, 938–50. 32 PD, HC, Vol. 128, 7 May 1920, 2404. 33 HO 45/12259/405558, Legitimacy Bills, 1920–4, Items 5b-13a. Edward Shortt to Sir Earnest Pollock, 25 April 1922; Pollock to Shortt, 8 May 1922; Memorandum of the Home Secretary to the Cabinet (no date); Cabinet decision 20 July 1922. 34 PD, HC, Vol. 160, 2 March 1923, 2413–31; Vol. 165, 15 June 1923, 871–922. 35 PD, HC, Vol. 175, 27 June 1924, 823–86; PD, HL, Vol. 58, 17 July 1924, 662–88. 36 PD, HL, Vol. 60, 12 March 1925, 516–25; HO 45/12259/405558/154–6, Legitimacy Bill of 1925. 37 PD, HC, Vol. 197, 22 June 1926, 318–27; 13 December 1926, 2616–37. 38 PD, HC, Vol. 165, 15 June 1923, 872, 883. 39 PD, HL, Vol. 56, 6 March 1924, 587, 589. 40 PD, HC, Vol. 175, 27 June 1924, 837; see also Duchess of Atholl, Women and Politics (London: Phillip Allen, 1931), pp. 117–18. 41 PD, HC, Vol. 165, 15 June 1923, 876 (Oman); PD, HL, Vol. 56, 6 March 1924, 591–2. 42 PD, HC, Vol. 165, 15 June 1923, 878. 43 PD, HC, Vol. 175, 27 June 1924, 853. See also J. D. White, ‘Legitimation by subsequent marriage’, Law Quarterly Review 36 (1920), 262. 44 PD, HC, Vol. 175, 27 June 1924, 856–7. 45 PD, HC, Vol. 165, 15 June 1923, 878. 46 PD, HC, Vol. 175, 27 June 1924, 831, 854; HL, Vol. 56, 6 March 1924, 602. 47 PD, HL, Vol. 56, 6 March 1924, 607. 48 PD, HC, Vol. 165, 15 June 1923, 889 (for quote); see also PD, HC, Vol. 175; 27 June 1924, 864. 49 PD, HC, Vol. 175, 27 June 1924, 850, 870. 50 PD, HC, Vol. 165, 15 June 1923, 877.

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51 PD, HC, Vol. 175, 27 June 1924, 866. 52 PD, HC, Vol. 175, 27 June 1924, 870–1; Lady Astor Papers, MS 1416/1/344, Memo of Discussions by the National Council of Women, 15 February 1924; 21 March 1924; ‘Women in conference’, The Times (8 October 1924), p. 9. 53 WL, NC, LS Minutes, 1917–71, 5/OPF/01/12, Box 062, Meeting of the Joint Legal Committee, 11 November 1921 and 8 March 1923. 54 Woman’s Leader 15:21 (22 June 1923), 161; 16:7 (14 March 1924), 51. 55 Woman’s Leader 16:8 (21 March 1924), 63; 16:9 (28 March 1924), 75; 16:10 (4 April 1924), 83. 56 Woman’s Leader 17:4 (20 February 1925), 26; 18:47 (17 December 1926), 357; WL, NC, Committee of Management Minutes, 1918–30, 5/OPF/02/01/1/1b, Box 006, 2 October 1924. S.  Pedersen, Eleanor Rathbone and the Politics of Conscience (New Haven: Yale University Press, 2004), pp. 176–98. 57 WL, NC, Agendas and General Meetings, 5/OPF/01/4, Box 002, 18th Quarterly Meeting, 11 December 1923, 105; Committee of Management Minutes, 1918–30, 5/OPF/02/01/1/1b, Box 006, 15 November 1923. 58 LCO 2/751, Legitimacy Bill of 1924, Lettice Fisher to Lord Chancellor, 26 February 1924; S. Musson, ‘The Legitimacy Bill’, Woman’s Leader 16:6 (7 March 1924), 45. 59 WL, NC, Committee of Management Minutes, 1918–30, 5/ OPF/02/01/1/1b, Box 006, 13 March 1924, 14 May 1925. Agendas and General Meetings, 5/OPF/01/4, Box 002, 8th Annual Meeting, 7 July 1925, 130–1; The Times (8 December 1926), p. 12. 60 WL, NC, Committee of Management Minutes, 1918–30, 5/ OPF/02/01/1/1b, Box 006, 20 January 1927. 61 C. N.  Boyle, ‘Correspondence’, Time and Tide 4:38 (21 September 1923), 957. 62 K. Raleigh, ‘The unmarried mother,’ Women’s Leader 12:17 (28 May 1920), 397. 63 LCO 2/751, Legitimacy Bill of 1924, S.  Neville-Rolph to Lord Chancellor, 28 February 1924. 64 WL, Divorce Law Reform Union (1922), 346.0166 SCA, ‘Scandalous Illegitimacy Bills:  Proposed Legislation, Justice for Children?’ (Leicester: Blackfriars Press, 1922). 65 Lady Astor Papers, MS 1416/1/344, E. A. Phillips to Lady Astor, n.d. [19–20 March 1924?]. 66 PD, HC, Vol. 128, 7 May 1920, 2437; LCO 2/752, Legitimacy Bills, 1924–5, Arthur G. Lister to LCO, 7 February 1925. 67 J. Keating, A Child for Keeps:  The History of Adoption in England, 1918–1945 (Basingstoke:  Palgrave Macmillan, 2009), p.  140;

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S. Cretney, Law, Law Reform and the Family (Oxford: Clarendon Press, 1998), pp. 184–202; Family Law, pp. 598–606. A similar coalition got the 1922 Infanticide Act passed; see D. Grey, ‘Women’s policy networks and the Infanticide Act 1922’, Twentieth Century British History 21:4 (2010), 441–63. 68 A. Bullock, Ernest Bevin:  A  Biography (London:  Politico, 2002), pp.  1–4; M.  Stephens, Ernest Bevin  – Unskilled Labourer and World Statesman, 1881–1951 (Stevenage: SPA Books, 1985), pp. 13–15, 48–61; D.  Marquand, Ramsay MacDonald (London:  Jonathan  Cape, 1977), pp.  4–7, 272–389; A.  Morgan, J. Ramsay MacDonald (Manchester: Manchester University Press, 1987), pp. 12–15, 86–134; for MacDonald in the debates, see PD, HC, Vol. 165, 3 June 1923, 920; PD, HC, Vol. 197, 13 December 1926, 2636; K. Morgan, Keir Hardie: Radical and Socialist (London: Weidenfeld & Nicolson, 1975), pp. 4–5. 69 Woman’s Leader 19:35 (7 October 1927), 277; Keating, A Child for Keeps, p. 38. 70 LCO 2/753, 7 April 1925, Sylvanus Vivian to Claude Schuster; 27 April 1926, DeVeale to Schuster, forwarding Vivian’s response; 28 April 1926, Vivian to Schuster; HO 45/405558/171/128, History of the Legitimacy Bill since 1920. 71 G. Savage, ‘Erotic stories and public decency: Newspaper reporting of divorce in England’, Historical Journal 41:2 (1998), 511–28; D. Cohen, Family Secrets: Shame and Privacy in Modern Britain (Oxford: Oxford University Press, 2014), pp. 142–6. 72 D. Petre, The Secret Orchard of Roger Ackerley (New  York:  George Braziller, 1975), p. 63; The Times (22 February 1828), p. 5; J. B. Taylor, ‘Bastardy and nationality:  The curious case of William Shedden and the 1858 Legitimacy Declaration Act’, Cultural and Social History 4:2 (2007), 171–92. See also The Times (11 May 1929), p. 4; (2 May 1929), p. 5. 73 Manchester Guardian (6 October 1927), p. 5. 74 HO 45/17970/50365518, clipping from the Daily Mail (22 February 1928). 75 HO 45/17970/503655/18. For examples of discretion, see The Times (21 July 1927), p. 5; and (5 August 1927), p. 12; for the Daily Herald, see HO 45/17970/503655/19, 9 March 1928. 76 NA, Registrar-General Papers, RG 48/54, Application Form and Memorandum, 3 January 1927. 77 RG 48/54, 15 October 1927, Application #5611. 78 RG 48/54, Correspondence from 3 January 1928 to 24 February 1928. 79 RG 48/772, Case of Mrs G., 9 March 1933–2 April 1936. 80 RG 48/54, Memorandum on Legitimation Act, 3 January 1927; RG 48/330, Richard E. application.

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81 LCO 2/752. 28 April 1926, Vivian to Schuster. 82 Taylor, ‘Bastardy’, 176–7; M. P. Baldwin, ‘Subject to empire: Married women and the British Nationality and Status of Aliens Act’, Journal of British Studies 40:4 (2001), 525–6; ‘An Act to Consolidate and Amend the Enactments Relating to British Nationality and the Status of Aliens’, American Journal of International Law 9:4 (1915), 413–23. 83 HO 45/6855, FO to HO, 12 May 1859–16 June 1859. 84 HO 144/324/B9752. 85 HO 144/346/B13581 (1893). 86 HO 45/9599/97632. 87 NA, Foreign Office Papers, FO 881/8152, Correspondence Respecting Illegitimate Anglo-Chinese Children Born in British Dominions, 1898. 88 HO 45/405558/16, Letter from H. C. Blackmore to Home Secretary, 12 April 1922; HO 45/405558/26, Comments on the Draft of the Legitimacy Bill, July 1922; PD, HC, Vol. 160 (1923), 2430; HO 45/405558/82, W.  C. Bridgeman to D.  White, 11 May 1923; HO 45/15127/5156117/496343/1–3; Letters and Memorandum from 7 June 1926 to 23 March 1927; Taylor, ‘Bastardy’. 89 HO 45/15127/496343/1 FO to HO, 7 June 1926–19 August 1926. 90 Baldwin, ‘Subject to empire’, 526–8. 91 FO 141/692/4, File #548, Affidavit of Alexander Frederick English, 3 March 1931; FO to Heathcote Smith, 31 March 1931; FO 141/563/3; File #462 (1934); Secretary to Arthur Yencken, Residency, Cairo, 5 April 1934; FO 496343/16; Wyndham Grech to High Commissioner, 27 November 1930. 92 FO 496343/12, Reports from 17 October 1930, 6 November 1930, 25 November 1930. 93 FO 14/560/38, Legitimacy Act, 1926, October 1930–8 December 1930. 94 HO 45/15127/5156117/496343/6–7, Correspondence, November– December 1927; see especially R. M. Greenwood to Gwyer, 6 December 1927. HO 45/15127/543651, Petition of Beatrice Minnie Gunther, 14 November 1929. 95 FO 493643/11, G. R. Warner to FO, 8 February 1928; G. R. Warner to Leeper, 20 February 1928. 96 HO 45/15127/5156117/496343/11, Chilston to Warner, 21 March 1928; Warner to Chilston, 10 April 1928; F.  E. F.  Adam to J.  D. C. Wilton, 10 April 1928. 97 See HO 45/15127/5156117/496343/1, 3, 13, 19 for more examples; quote from FO 141/692/4, Memorandum from Secretary of State for Scotland to FO, 26 July 1914. L. Putnam, ‘Citizenship from the margins:  Vernacular theories of rights and the State from the interwar Caribbean’, Journal of British Studies 53:1 (2014), 162–91.

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98 HO 334/120/143–144; Petition of naturalisation of Harry and Lucy Turner, 2 January 1925. 99 L. Tibili, ‘Outsiders in the land of their birth:  Exogamy, citizenship, and identity in war and peace’, Journal of British Studies 44:4 (2005), 796–815; and ‘ “Having lived close beside them all the time”:  Negotiating national identities through personal networks’, Journal of Social History 39:2 (2005), 369–87; N. Gullace, ‘Friends, aliens and enemies:  Fictive communities and the Lusitania riots of 1915’, Journal of Social History 39:2 (2005), 345–67; S. Auerbach, ‘Negotiating nationalism:  Jewish conscription and Russian repatriation in London’s east end, 1916–1918’, Journal of British Studies 46:3 (2007), 594–620. 100 HO 45/405558/82, S. Samuel to Col. Dalrymple White, M.P., no date (ca. April 1923). 101 The Times (28 May 1927), p. 4. 102 The Times (31 July 1928), p. 5; (16 October 1928), p. 5. 103 The Times (20 October 1928), p.  4; (8 February 1929), p.  5; (26 February 1929), p. 5; (28 February 1929), p. 5. 104 ‘Legitimacy Act doubts’, Justice of the Peace 93 (1929), 137.

6

Love and loss: family and illegitimacy The birth of an illegitimate child was a family crisis, at least for the parents of the child’s mother. A daughter’s pregnancy forced her family to cope with unforeseen challenges and to decide on a course of action. As a result, an unwed mother’s future was determined, in large part, by the attitude of her natal family. Most parents were angry and disappointed, but generally they supported their daughters rather than see them and their grandchildren go to the workhouse. Illegitimate births accounted for 4–6 per cent of recorded births between 1860 and 1930 (40,000–65,000 a year). At most, only 15 to 20 per cent of these were in the workhouses at any time.1 Some women went to charities, and others hired foster mothers, but most were in relatives’ homes. In fact, a wide variety of families housed out-of-wedlock children, including cohabiting couples, maternal relatives, or stepfamilies. As with legal cases, provision was the central factor. A  single woman rarely supported a child on her own, and if she worked full time, her child needed daily care. Families were the first line of defence in both cases. This was also true of orphans and half-orphans, but maternal kin bore the burden disproportionately with illegitimates, and families hid the truth about their relationships from youngsters in a way not common for orphans. For many such children, the roles of ‘mother’ and ‘father’ were filled by non-biological parents. This hid illegitimacy, but required discretion. How the lives of illegitimate children progressed depended on class, secrecy, and the success or failure of relationships. In short, family support was the best solution to the crisis, but it had its own instabilities.

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Cohabiting families offered potentially secure homes for illegitimate children. When couples ‘passed’ as married, no one knew the status of the children, and social consequences were minimal.2 Tom Mann’s second family, in his adulterous relationship with Elsie Harker, grew up in a regular home, and all reached adulthood before either parent died (Mann and Harker were together over forty years). Their illegitimacy had little effect on their lives.3 Legal records also indicate some cohabiting relationships in which the children did not realise they were born out of wedlock. In a libel case in 1894, a boarding-house keeper sued when the housekeeper of the local doctor accused her of having an affair with him. Milledge, the plaintiff, had nine illegitimate children, all fathered by the same man, now dead. She insisted that she simply needed a loan from the doctor, and she was furious that the defendant had exposed her history, as her children ‘were hitherto ignorant that they were illegitimate’. The jury gave Milledge £100.4 Illegitimate status, then, only mattered if the family faced a crisis  – as in the death or desertion of a father. In those instances, mothers resorted to the poor law, and the lack of ‘marriage lines’ affected their settlements as well as the availability of out-relief. Private charities also did not help a woman ‘living in sin’, so many families fell into dire poverty or even broke down altogether.5 Henrietta Barnett, who worked with her husband, Canon Barnett, to help ‘fallen’ women in the 1870s and 1880s, assisted a twenty-six-year-old woman named Emma. Emma had lived with a man on the continent for years, but when they returned to England, he deserted her. Barnett got her a job as a servant in the country, but this meant that she had to live apart from her son.6 The loss of the breadwinner was not only an economic crisis, but an emotional one as well. Mary Hamilton lived with Joseph Jacobs for ten years, and they had two children. She won a breach of promise suit against him, but when the award money was gone, she and the children came to the brink of starvation. Her suicide attempt in 1897 shamed Jacobs into offering to pay her £1 a week, which at least eased the financial crisis. One wonders, though, how the children coped with their father gone and their mother clinically depressed.7 The break-up of cohabiting families caused problems, but fathers might still offer monetary support, and the mothers continued their

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care. When both parents died, children faced great disruptions, something also true for legitimate orphans. P, born in 1880, lived with parents who thought they were legally married. After some years, they discovered that his father’s first wife had been alive when they went through their wedding, though she had since died. P’s father went to New Orleans to confirm his first wife’s death, caught yellow fever, and followed her to the grave. The bigamous family plunged into poverty, worsened by the fact that P’s mother was not a legal widow. She never recovered from her grief and died three years later. Thus, P and his brother went from living in a stable family to being illegitimate orphans within three years. Their maternal grandmother tried to support them with needlework, but failed. P went to a Church of England Waifs and Strays Society (CEWSS) home in 1888, only returning to his grandmother when he could support himself. The death of both the breadwinner and the caregiver had made all the difference for him and his brother.8 For most poor illegitimates, the main problem was not the family or neighbours, but the attitude of the State. A  couple could live together for decades, and the poor law still saw them as ‘living in sin’ and their children as ‘bastards’, showing the interaction between society and the law. The working class accepted irregular unions as long as they were for good reasons and stable, as with bigamous unions, but legally the family members were ‘strangers’ to each other, vertically and horizontally. Thus, families who fell into the clutches of the poor law were often separated, as guardians only granted relief to those who could claim settlement (through birth or residence) in their parishes. A case from 1920 concerned Abraham and Edith Potter, who lived in Braintree for nine years and then moved to Tendring where they gained a settlement. Edith left Abraham in 1911 and lived with Ernest Andrews in Chelmsford for two years. She gave birth to Abraham’s child soon after she left him and then had two others with Ernest. Her children were born in three different parishes over a four-year span. When Ernest joined the army in the First World War, Edith returned to Braintree and deserted the children there. The legitimate child went to its father’s parish, but the illegitimate children posed more of a challenge. Eventually, the courts decided each should go to his/her respective birth parishes, meaning that all three children went to different unions. Not only did the children lose their parents, then, but they also lost each other.9 As long as cohabitees passed as married, their

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children’s lives resembled others in the same class, but any death or desertion inevitably both exposed their status and affected their right to relief. They then had to endure the legal disadvantages of being ‘bastards’. Class and cohabitation Though far more children in cohabiting unions were working class, a minority involved cross-class or middle-class relationships. Cross-class cohabitation was a particularly vexed type of extra-marital relationship.10 The vast majority of these unions were between well-off men and poor women and ran the gamut from brief liaisons to (eventual) legal marriages. Overall, the children of such unions sat uneasily between classes and statuses. Born illegitimate, they remained so even if their parents later married. In addition, their mixed-class background affected their relationships with both parents. A major problem for all children of cross-class relationships was one of identity. To which class (and thus parent) did they belong? Most lived with their mothers, who received income from the fathers. These incomes were modest but raised the children above their mothers’ ranks. Thus, the children were well educated and had more opportunities, but their respectability was fragile. Wilkie Collins’s three children with Martha Rudd had a comfortable lifestyle, received good educations, and benefitted from his will. As William Clarke put it, Collins ‘helped them escape from Martha’s working class background into the atmosphere, and the assumptions, of a respectable middle class family. Yet, for all his efforts, they never lost the consciousness of who they were and why they were different.’ Collins went by the name of ‘Dawson’ with this family, and possible discovery lurked at every turn. His daughters avoided too close contact with schoolmates, while his son Charley believed that his illegitimacy denied him an army commission. Though loved by both parents, the ‘Dawsons’ lacked the security of other middle-class children.11 Collins at least acknowledged his children, if in a secretive way. Other fathers posed as ‘uncles’ or friends of the family. Roger Ackerley supported two different illegitimate families at the turn of the twentieth century. He eventually married Netta, his long-time cohabitee, and the mother of his literary son, Joe. His second lover

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was Murial Perry, with whom he had three daughters. Diana Petre, the youngest child, explained that they knew Roger as ‘Uncle Bodger’. One of her sisters confronted Roger, asking directly if he were her father, but he refused to acknowledge the truth. Murial only told her daughters their parentage on her deathbed, long after Roger had died. Petre realised that ‘We had never met as father and daughter. We had never looked into each other’s eyes knowing, and now we never would.’12 Though some children felt the loss of fathers the most, others instead moved away from their mothers. If a mother was of low birth, children preferred to highlight their father’s status. Marie Corelli, the novelist, was notoriously evasive about her childhood. Apparently, she was the daughter of a doctor and his mistress, but she claimed that the doctor simply adopted her. She likely discovered the truth after his death in 1889, as she wrote to George Bentley, ‘I may truly say I have been in ignorance of my own history up to lately.’ She then destroyed all the evidence and told contradictory stories about her past. Brian Masters argues that her father’s insistence that she call him ‘stepfather’ or ‘uncle’ also made her ‘painfully conscious that there was something which made her position odd and shameful’.13 As these examples showed, secrets and lies were a normal part of illegitimacy in the Victorian period, especially for those with social aspirations. Unmarried families learned lying as part of their legacy.14 In addition, many parents felt guilty and then overcompensated with rigid morality. T.  E. Lawrence’s mother, a family governess who had eloped with her employer, was extremely strict, probably due to her shame about living in adultery. Her sons, then, had to deal with a dominating mother who rarely spared the rod. Similarly, Rudd lived an ultra-respectable life. According to Clarke, ‘Both of her grandchildren remembered her with some awe, dressed invariably in black dress and cap … rapping their knuckles on the table, acting like any rigid Victorian grandparent. “She was the last person in the world one would have expected to have lived in sin,” they recalled.’15 This was, of course, the point. Middle-class cohabitees were rare; most of them married illegally (bigamously or marriages within the prohibited degrees) rather than not at all. The cases involving wills and estates, discussed in Chapter  1, were overwhelmingly from such unions. In these cases, ‘after-born’ children (those born after the making of the

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will) were the most likely to get cut out of the inheritance rather than all the children. Siblings did not fight each other except in rare cases; the sibling bond was strong enough to overcome legal differences. Indeed, William Clapp’s only legitimate daughter insisted on sharing his estate with her four illegitimate siblings in 1916, though her father left no will.16 The immediate generation of the illegal marriages accepted the situation, but the second generation was less tolerant. This indicates that the cousin relationship (or uncle-aunt/nephew-niece) was weaker than siblings. For the most part, middle-class cohabitees lived as married people, but in a few cases in the 1920s, middle-class mothers kept their children themselves, almost always disguised as ‘aunts’. Many well-off children suspected the truth, but, like Petre, could not penetrate the convenient fiction.17 In cases without any kind of marriage, most often the parents insisted that their daughters give the children up for adoption, to the point of taking the children away over the mothers’ protests. A woman in the respectable classes destroyed any prospects of marriage if she had an illegitimate child, so her parents determined to remove the impediment as soon as possible. Some of these mothers never recovered from the loss, even when they agreed it was the right choice, as Deborah Cohen has shown.18 Middle-class illegitimacy also emerged from divorce cases, with children’s paternity a major part of the disputes. These instances were fraught; men did not want property to go to ‘spurious issue’, and legal wives resented second families of their unfaithful husbands. The controversy over the Birchall estate, where the testator left his entire fortune to his mistress and her two children, was an example of the scandal such situations created. There, the mistress volunteered to share the estate more equitably with the widow, settling the matter.19 Adulterous relationships shocked legal wives and children. Widows were understandably reluctant to share inheritances, so men had to write careful wills. George Cruikshank kept a mistress for years, a maid named Adelaide Attree. The couple had ten children, despite the fact that Cruikshank had married for a second time in 1850. His wife and friends were appalled when he acknowledged the relationship in his will. Cruikshank’s children with Attree shared in the estate, but the scandal sullied his reputation.20 Cohabiting middle-class parents clustered in professions with laxer sexual codes – theatre, painting, literature – as well as those

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that offered women financial independence. As with stable cohabitation in the poorer classes, these relationships resembled marriage, the children exposed to difficulties only if something went wrong. The crises included the deaths of the breadwinner and disputes over inheritances. Harold Frederic’s three children with his mistress, Kate Lyon, lived with their parents until Frederic’s death in 1898. Then an ugly battle over Frederic’s copyrights with his legal wife left the Lyon offspring’s illegitimacy bruited freely in the press. Mary Elizabeth Braddon and John Maxwell lived together for thirteen years and had six children together before his insane wife died and they could marry (Maxwell also had five children with his wife). They had a happy family, but Maxwell’s brother-in-law, Richard Knowles, publicly contradicted Maxwell any time he claimed to be married to Braddon.21 In happy unions, the problems came from outside the home, as with the poor. In unhappy relationships, the couples’ problems were complicated by property considerations and scandals. In these cases, the children had similar experiences to children of divorce. Actress Ellen Terry’s cohabitation with Edward Godwin lasted from 1868 to 1875. They had two children, Edith (known as Edy) and Edward Gordon Craig (known as Ted), who were young when their mother and father separated. Ted was consumed by Godwin’s disappearance; he claimed his mother ‘killed’ the memory of his father, to the point that he refused to attend Terry’s jubilee celebrations in 1906.22 A similar situation occurred with Anthony West, child of Rebecca West and H. G. Wells, born in 1914. The two broke up in 1923, and West had custody of Anthony, adopting him in 1929, while Wells went in and out of Anthony’s life. Nevertheless, Anthony preferred his father and had an all-consuming rage against West, whom he blamed ‘for nearly everything that went wrong in his life’. The absence of the fathers and the fame of the mothers combined to make these sons resentful to a pathological degree.23 These examples indicated that in the middle and upper classes, sons had more difficulties accepting illegitimacy, in part because their relations to their fathers were fragile, and in part because of inheritance issues. Henry Sackville-West, mentioned in Chapter 1, was an example of a man who could not reconcile himself to his lost inheritance. Men wanted their fathers’ names and statuses, not an in-between state, and felt thwarted when the legal system denied them.

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Girls had a different dynamic, as they were unlikely to inherit properties or titles and usually changed their names upon marriage anyway. Although Edy rejected Terry’s attempts to turn her into an actress, she took care of her mother and did not idealise her father. And some girls took their mothers’ sides entirely. Stella Bowen’s daughter with Ford Madox Ford, Julie, was close to her mother and stayed with her when Ford and Bowen ended their cohabitation after nine years. Though Ford had doted on her when she was born, the two became estranged after the split. Julie wrote a loving tribute to her mother as ‘an intelligent friend and mentor as well as a mother to me’. In contrast, she ‘had many rows’ with her father, a difference she blamed on his absence. The resemblance to children of divorce was hard to miss. Julie eventually reconciled with her father, but she was never as close to him as she was to Bowen.24 All these examples show that children of cohabiting couples, whatever their class, suffered most when one or both parents were absent. Successful cohabiting relationships hid the illicit nature of the family, and the secret only came out if disaster struck. All the same, when these relationships failed, some sons could not accept their lack of a paternal name, legacy, or identity. These problems occurred in families of divorce as well, where children also had to deal with parental absences and humiliating scandals. However, children of unmarried parents had the additional stigma of illegitimacy. The parents could erase the disgrace by marrying each other or someone else, but the children were illegitimate for life. As the tax cases in Chapter  1 showed, illegitimates in this class knew exactly how much they lost due to their birth status. Living with maternal kin For those not in cohabiting relationships, the most common family pattern was for children to live with their maternal grandparents. At the least, maternal kin saw the mother and her child through the immediate crisis, and many women lived with parents for months or years after the births of their children. Hannah Moorhouse lived with her father in the 1870s until she became pregnant with her fourth illegitimate child in 1880. He then asked her to leave, but he supported her and his grandchildren for several years. Similarly, Ruth Driver, a weaver, lived with her father and two illegitimate children in the 1860s. Presumably, her ability to weave helped her

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father tolerate the situation.25 If the mother had full-time work, the grandparents did the caregiving. This made financial sense, as young women had greater earning potential and were more desirable as servants. In 1858, Elizabeth Ashby left her home to work as a maid and became pregnant with her employer’s child. She returned to her father’s cottage in Warwickshire to give birth to her son, Joseph, in 1859. She worked in the cornfields while the infant stayed with her father, a situation that lasted until she married two years later.26 Many unwed mothers who took jobs as domestic servants lived away from the home; they sent money to the parents, who reared the children. A result of this pattern was that the youngsters often did not know their mothers well. Percy Brown lived with his grandparents in Shrewsbury in the late Victorian period. His grandfather died when he was eight years old, at which point he finally got to know his mother who returned to help his grandmother. Previously, ‘my mother had been little more than a name to me. I remember a pretty lady paying flying visits during which she gave me pennies and buns’.27 Typically, the mother was a ‘sister’ to her own child while the grandparents acted as parents. Ada Haskins had her son in 1927, left him with her parents in Durham, and returned to her job in London. She sent her parents ten shillings a week, a good part of her pay, but her son knew her only as his sister.28 Maternal grandparents disapproved of their daughters’ mistakes, but over time, most treasured their grandchildren. One of Elizabeth Roberts’s subjects, Mrs W1B, had a sister named Edith who gave birth to an illegitimate daughter in the early twentieth century. W1B and her parents were furious with Edith, but they soon doted on her daughter, Nellie. Nellie believed her grandparents were her parents and called her mother Edith. Rather than a burden, she was the favourite of the family, spoiled by everyone. Similarly, J. E. Bowman and his mother lived with his maternal grandparents and his uncle in Lancashire after the First World War. As he put it, ‘There was never any question of turning us out; we were at home, part of the family.’29 Legal cases showed grandparents who nagged their daughters about the extra mouths to feed, but even in those cases, living with grandparents was superior to the alternatives. Thus, the daughters endured the criticisms rather than go to the workhouse.30 If the grandparents were not able or willing to step in, siblings were the next port of call. Leonore Davidoff has stressed the importance of sibling bonds, and they were crucial in negotiating care for

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illegitimates.31 One of the happier childhoods recorded in Roberts’s collection was Mrs C3P, who lived with her mother and aunt. The sisters both worked and, in C3P’s phrase, ‘brought [me] up in an atmosphere of love’. Indeed, C3P, like Nellie, was a bit spoiled by her aunt; she claimed, ‘I only had to ask for something and my auntie would get it for me.’32 Some siblings became so attached to their nieces or nephews that they did not wish to part with them, and this included brothers as well as sisters. Alice Benton lived with her brother and sister in Birmingham in 1888. When she heard that her old lover had married someone else, she fretted that no one would support the child. To this, her brother, Thomas, stoutly replied that ‘the child should be looked after as long as he had anything’.33 Indeed, in 1897, two criminal cases involved maternal uncles who did not want to give up their nieces/nephews. George Streeting, a labourer, fought with his sister Ada over her child to the point that he tried to break into her house. In the same way, William Kettle had kept his sister’s little girl, Margaret, until she was four years old. When his sister reclaimed the child, Kettle was distraught enough to kidnap her. Both men got nominal punishments in the trials that followed, as the judges understood their motivations.34 Maternal aunts and uncles also appear in numerous cases in the files of the CEWSS, most of which involved very poor families for whom an extra mouth to feed was a serious burden. W, born 1893, was brought up in Hertfordshire by her aunt, despite the fact that the aunt had ten children of her own. The aunt got little help from W’s mother, who was a prostitute, and finally appealed to the CEWSS when W was ten.35 S4, born in 1890, was the son of a servant and a railway porter. Until he was adopted by the CEWSS, he lived with his mother’s sister and her husband, as his mother was in the workhouse.36 The CEWSS was ambivalent about children remaining in touch with their relatives, as they regarded the latter as potentially corrupting, but some aunts and uncles insisted on doing so, unwilling to lose all contact with their relatives. A2 was accepted in 1898 at the age of twelve because the CEWSS thought she was in ‘moral danger’ from her surroundings. Her maternal aunt wrote to her and periodically asked her niece to live with her. Though the CEWSS discouraged this plan, A2 went to her aunt in 1903.37 If a woman’s parents or siblings failed her, she next appealed to her aunts and uncles; aunts, in particular, offered help. Indeed, though less common, these relationships were as affectionate as

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those with grandparents. George Hewins was born in 1879 to a servant, Emma, and her lover, Tom Farr. When she could no longer work, Emma went to her aunt, Cal Cook, who defended her niece fiercely, including helping her win an affiliation summons and then defeat Farr’s appeal. When his mother met a new man and married, George stayed with Cal. As he put it, ‘I looked on Cal as my real mother. I called her “Gran” and she called me her lad – “My Lad”. It was a marvel, folks said, how she loved me.’38 Hewins’s experience was not unique. Another of Roberts’s subjects, Mrs W2L, knew a woman who took in her niece’s child in the early twentieth century and claimed the aunt ‘was better to her than her own daughter’.39 Cousins were also a part of illegitimate children’s lives, but usually not in a custodial way. Instead, they were friends or neighbours. The cousins mentioned in Treasury cases in Chapter 1 were examples of this.40 Amelia Sparey’s main relationship was with her cousin, Frederick Montague, who was very close to her. Cousins also figured into the estate of Herbert Wilson; the son of his uncle got most of the residue of the estate.41 Because they were contemporaries, cousins did not act as parents, but were substitute siblings. Mrs C3P had no siblings as her mother never married, but this was mitigated by a female cousin living nearby, the child of her mother’s sister. She and her cousin frequently ‘went out together’.42 Because they mostly knew only maternal kin, these children had fewer cousins than many Victorian children, but they were closer to those who did exist. The lack of paternal kin was the norm, but very occasionally, the father’s family took in the child and reared him or her. As mentioned in Chapter  1, Frank Eastwood’s mother took him to his father’s home when he was six weeks old. Rather than repudiating him, his grandfather cared for him. He was also close to his Uncle James, who treated him like a brother.43 Paternal grandmothers also sometimes claimed their grandchildren, as with Ebeneezer Morgan’s child. In 1870, Morgan’s mother fought with the foster mother over custody. Morgan had accepted responsibility for his offspring after the child’s mother went to America, and he wanted his mother to rear the baby. The nurse did not want to part with the child, and the magistrates had to deal with an unpleasant scene at the hearing.44 In all these cases, fathers stepped in when mothers died or abandoned the children, so the issue of absence remained,

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this time of the mothers. Except in cohabiting unions, illegitimate children rarely had a full complement of blood relatives. Instabilities Living with relatives was the best solution for a child left without paternal support. Nevertheless, this living arrangement had a number of disadvantages. For one thing, grandparents and aunts/ uncles had limited custody rights. When the mother married, she often wanted the return of her child. The children not only had to readjust to different home lives, but also discovered that they were not who they thought they were. One woman born in 1908 recalled: I lived in a village with my grandparents until I  was ten years old when I was told that I must go and live with my aunt … My auntie had four children under five years old (twins). Then after a few days I was told I was never to visit my grandparents or to have anything to do with them in any way … when I was twelve years old my aunt told me that she was my mother. I couldn’t bring myself to call her anything but Auntie until a near tragedy when I was sixteen.45

Like Ann Caltman, mentioned in the Introduction, this woman’s mother regarded her as an unpaid servant; little wonder she did not want to call her ‘mother’. The grandparents, too, must have felt great pain at never being able to see their granddaughter again after ten years of care. Custody changes were also painful when different family members wanted the child from affectionate, not venal, motives. Mrs W1B’s niece, Nellie, was the favourite of her family, but when her mother married, she naturally wanted her daughter to come with her. Though understandable, her decision caused grief for the rest of the family. In W1B’s words, ‘The child wasn’t happy and m’ father was vexed. He said that it wasn’t right to take her with her … We all missed her because she was ruined between us.’46 In other words, all custody agreements were open to change; orphans, half-orphans, and illegitimate children moved as circumstances shifted. Though sometimes multiple relatives wanted to keep the child, in other cases, relatives refused to do so any longer. Both changes were disruptive and confusing. Since the children were illegitimate, they had no claim on anyone except their mothers, and the results could be extremely negative. John Rowlands was

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the son of a Welsh servant in the mid-nineteenth century. He lived with his maternal grandfather, Moses Parry, for the first five years of his life. Parry was fond of him, but after his death, Rowlands’s uncles, successful butchers, fostered him out rather than care for him themselves. In less than a year, they refused to continue even this and took him to the workhouse.47 Sadly, this experience was not unusual. One illegitimate (born ca. 1918) lived with his mother to the age of three, but she then took him to his father, ‘an English country gentleman’. Rather than care for his son, the father gave ‘the five shillings the courts had demanded to anyone willing to house me. In the 1920s there were many who were willing to take the money. Short passages in my past years would have made a good Hitchcock film with no exaggeration.’48 This boy knew both his parents, but he lived with strangers; his mother could not afford to keep him, and his father refused to do so. Thus, his life was one of instability and disruption. A second reason for the fragility of home life was that illegitimacy remained a powerful guilty secret. Children knew there were areas of the past about which they should not ask, but did not understand why. Through their discretion, the children became part of the conspiracy of silence. One woman told a survey in 1986 that she could not ask her mother about her past ‘as I  have colluded with her silence on the subject for too long’.49 The secrets stretched over generations. Brian Masters’s father, Geoffrey, was the son of Miriam Pink and an unknown man. His two half-siblings, Cecil and Ruth, at least knew their father was William Biggar. The children all later took their stepfather’s last name to hide their illegitimacy. When asked about his childhood by his son, Geoffrey would ‘mutter something about it being better I  should not know. What he meant was that it was better he should not tell, because the scars were still too painful.’50 The habit of secrecy barred communication and led to misunderstandings, particularly with later generations who believed in openness. The third type of instability came with the exposure of secrets, since many children found out the truth without having been prepared for it. Neighbours or other children blurted out the story, and the children were shocked. Catherine Cookson’s iconic story of how she discovered her origins was emblematic. When she got into an argument with a girl, she threatened to tell her ‘ma’ about the girl’s bad behaviour, only to get an unexpected response: ‘ “She’s

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not your ma. If ya want to know, she’s your grandma … your Kate’s your ma and she drinks, an’ … YOU haven’t GOT NO DA, me ma says so”.’51 Cookson called her horrified reaction ‘the feeling of aloneness’.52 Though Cookson was overly sensitive about her status, other autobiographies record similar emotions. Emma Smith (born in the 1890s) felt as if ‘the bottom dropped out of my world’ when her grandmother told her bluntly that she was not her mother, but her ‘sister’ Maud was. Emma wrote, ‘when I knew she really meant it I broke my heart’.53 These revelations often happened at the age of five or six, a pivotal age for retaining memories. A fourth problem was that resentment sometimes fell on the symbols of the families’ ‘disgrace’. Relatives regarded these children as ‘tainted’, and any charity shown to them was begrudging and minimal. Such assumptions fell in with common ideas that moral failings could be inherited, part of Social Darwinism’s stress on ‘genetic’ inferiorities. This attitude was more common with female relatives, perhaps because the disgrace hurt them more. One woman claimed that she was taken in by her great-uncle and aunt, but their home was unhappy. Her great-aunt disliked her mother and had no hopes for the daughter: ‘the black lamb of the black sheep. My adoptive mother said I was just like my natural mother and would be a no-good tramp too.’54 Emily Dimmer faced so much criticism from her mother and brother about her illegitimate child that she threw her baby in the river.55 In addition, many relatives deeply resented the expense. Children cost money and time; infants needed constant attendance and could not contribute to the home. Some families, then, regarded them as unwelcome burdens. Percy Brown went to live with his uncle and aunt-in-law when he was ten years old:  ‘My aunt soon put me in my place … I  was a poor relation taken out of charity.’ Brown explained his reaction to this change as having ‘all the joy [taken] out of my life’. Rather than soothing his fears, his uncle beat him one night after the aunt complained about his ‘sulking’. Fortunately, Percy could escape; the next day he ran away, and the police returned him to his grandmother, who was enraged when she saw his scars.56 Relatives who told children they were not wanted compounded their psychological strain. Most illegitimate children were rejected by their fathers at birth; if the maternal family did not want them, they felt doubly unlovable. The instabilities and fears of reconstituted families were partly the result of the expense the children represented. They also came

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from the shame of illegitimacy; secrets and lies followed in its wake. When combined with ideas of inherited ‘stains’, the resulting discrimination and hostility caused great unhappiness for the children. Still, on the whole, women were correct when they saw their kin as the first line of support in the crisis of unwed pregnancy. Their help might be temporary or grudging, but it did keep her and her child out of the workhouse. Usually, the maternal grandparents were the caregivers, but siblings and aunts/uncles also provided assistance. The role of wider kin was clear from these examples; when the breadwinner was absent, the woman’s family had to replace him. As Barry Reay has argued, extended family remained important in Britain in the late nineteenth and early twentieth centuries.57 Mothers and stepfathers Louie Stride lived a poverty-stricken life with her mother in Edwardian Bath; her mother was a part-time prostitute, and Louie was half-starved, living on scraps from the street. Louie’s life changed, though, when her mother married in 1916. As she put it, she had ‘a Dad at last! Now nobody could scoff and sneer at me any more.’ Her mother no longer went on the streets, and ‘also it meant food’. In these few words, Louie summed up the great value of stepfathers for illegitimate children. They offered legal last names, stronger incomes, ‘real’ homes. In other words, stepfathers offered the security of belonging to a typical family.58 Working-class women were not invariably ruined by having borne children out of wedlock; most of them later married and lived with their pre-marital children in blended families. Though occasionally a child had a stepmother and biological father, the most common combination was for the mother to bring her child to a marriage; the husband acted as a stepfather, and the couple added half-siblings over time. Presumably, in many of these cases, young children were unaware of any differences between them. As stated in Chapter  3, violence trials involving stepfathers were mostly over-discipline cases. Though tragic, these cases showed stepfathers giving day-to-day care; their violence was due to drunkenness or temper rather than discrimination. In addition, some custody cases reveal stepfathers who wanted to keep their wives’ children. In 1886, George Hall, a partially lame boy, came before the Marlborough Street police court for begging. The magistrates learned that he had once been in Barnardo’s

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Homes, but the institution had returned him to his parents. The magistrate criticised the home for expelling a disabled child. In response, Barnardo wrote to The Times, explaining that the boy’s stepfather was ‘sincerely attached to the child, and made repeated applications for his removal’. The man was a costermonger, and his wife, the boy’s mother, was a flower seller. They may have valued George for his begging ability, but after his arrest, he could not do so again. Apparently, they wanted their son with or without income.59 Stepfathers were at times ambivalent about non-biological children, especially if the children’s mothers died and their legal obligations ceased. Mr T1P married a woman with an illegitimate son. After her death, he put the boy in Barnardo’s Homes, because his long work hours made childcare problematic. T1P concluded, ‘I don’t know whether he held it against me. I could manage, but it was the neighbours who thought it would be better.’ Though he does not say so, T1P probably would not have handed over his own son to a charity. All the same, T1P re-claimed his stepson when he later remarried. He had given the boy up mainly because he did not have a woman in the house, not from a lack of affection.60 As with T1P, stepfathers who could or would not live with their stepchildren after their wives’ deaths still often supported them, though legally they were not bound to do so. These men accepted the responsibility of provision for their wives’ children, which often meant the difference between private charitable help or the workhouse.61 In contrast, some stepfathers did not want to support children they had not fathered. For the most part, this showed up most glaringly when a man differentiated between his own children and his wife’s previously-born child. In a few cases, the stepfather killed the stepchild he did not wish to support, but more often the abuse was non-lethal.62 Mothers, hemmed in by their economic weakness, had difficulty protecting their eldest children. S2 was born in 1876 when her mother was fifteen. When her mother married, S2’s stepfather began abusing her. According to one recommender, ‘When he attempts to beat the child she [the mother] interferes & very often gets struck sometimes he turns the child out into the street at night the neighbour take[s]‌it in.’ The CEWSS adopted S2 at her mother’s request.63 Money was the root of much of the trouble, because these stepfathers insisted that they should only have to support their own offspring, another example of the way some men defined their paternal responsibilities differently than the State (or,

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indeed, many women). Sexual differences also occurred; girls were often less desirable than boys, because girls’ potential earnings were small. When Emma Smith’s mother married, her stepfather agreed to keep her brother, but not Emma. During one of the brief periods Emma stayed with them, she had no place at the table, but sat ‘on an orange crate away from the table … quite accepting that I didn’t belong’. Her stepfather soon insisted she leave, and she went into a charity home.64 Despite these negative stories, most men accepted the responsibility of keeping their stepchildren. Violence trials overstate men’s reluctance, as men who quietly cared for their stepchildren did not leave many records. Due to the high mortality rates in England between 1860 and 1930, stepchildren and parents were a normal part of life in many families. Historians have done little work on this important relationship, but illegitimate children’s experiences in blended families were likely typical. Stepfathers were a mixed bag; they provided much-needed income, but might not be the same as biological fathers in terms of affection or reliability. For illegitimate children, though, the benefit of having legal names and providers probably outweighed any bad results. For Stride, a stepfather was a salvation, and she felt this way even though hers was an alcoholic. When her mother went to an asylum when she was eleven, her stepfather kept her; she lived with him for years despite his drunken binges, because, she said, ‘I had only him to cling to’.65 Living with illegitimacy Whatever the family form, illegitimate children were different than their legitimate counterparts. In the middle and upper classes, the differences were about inheritances and the need for secrecy. In the working class, the largest difference (except in cohabiting families) was that one or both of the natural parents were not part of the family. Most often, the missing member was the father, a fact that led to financial strain as well as emotional loss. Joseph Ashby noticed ‘the smallness of his family compared with others, and the lack of a father. There were friends enough outside, but he wanted a big warm family within.’66 Similarly, Mrs C3P, happy with her aunt and her mother, still missed knowing her father, whom she saw only twice in her life. Her tone about him was wistful: ‘Oh, he was a nice man. Nice to look at and he was lovely spoken.’67 Although mothers

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were central to domestic life, historians have begun to stress fathers’ roles as well. Their importance was underscored again in the case of illegitimates; most of their struggles were due to paternal absence, one they shared with all children whose fathers had died or left, legitimate or not. As Thomas Burke, the child of a widow, put it, ‘A Father, I felt, made all the difference between a cosy little place where you lived and a real Home.’68 Moreover, children’s natural desire to know their paternal relatives led to conflict with mothers, who often did not want to talk about the past. The children regretted the lost opportunity of knowing their fathers. One illegitimate, born in 1917, complained ‘I may have walked past him [my father] or even spoken to him not knowing who he was … I still shed tears knowing I never knew him.’ The respondent admitted that ‘there was a part of me that never forgave her [my mother] for not telling me’. The strain on the mother–child relationship was a common theme, as children blamed their mothers for not being open. Another contributor wrote, ‘I find it hard to forgive my mother for “lying” to me by her silence when I was young.’69 Few of these children expressed resentment of their fathers; paternal indifference was less offensive than the secretive care of their mothers. In fact, many children fantasised about their fathers coming to claim them. Cookson chose the local doctor as her ‘da’ and made up an elaborate story about him, which, fortunately for the doctor, no one believed.70 An additional strain on the mother–child relationship was that mothers both loved and resented their offspring. Their pregnancies had resulted in their disgrace and a lifelong burden; many remembered the time around the births of their children as the worst of their lives. Little wonder that they were ambivalent at best and hostile at worst. At times, mothers’ resentment flared into assaults or murders, but more frequently mothers simply made their distaste known verbally. One of the 1986 correspondents, born in 1908, claimed that her mother ‘told me once that I had been the curse of her life!’ This woman was traumatised to the point that she broke off three engagements before the age of forty. Yet she also said, ‘I later understood what she had been through because of me.’71 Similarly, Bowman saw his parents’ wartime union as romantic; his mother, ‘remorseful and embittered’, did not agree.72 Female relationships were especially strained, both between mothers and daughters and wider kin. The mother being the ‘black

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sheep’ of the family meant that her sisters shared in her disgrace. Cookson’s Aunt Mary, a respectable woman, never forgave Kate for her ‘fall’, a dislike compounded by Kate’s alcoholism.73 Mrs W1B resented her sister Edith in part because Edith’s pregnancy meant a stricter regime for her sisters. She complained, ‘poor Evelyn and me … always got terrible lectures of “Where have you been, who with.” “You must bring them home,” … It made life pretty hard for us.’74 Sisters were also more likely to throw the mother’s ‘fall’ in her face, as Phoebe Aldren’s suicide note in 1895 showed: ‘I will forgive my sister Mary for what she called me on Saturday, but it is through her that I have done this. I never was so good as her.’75 Similarly, daughters of unwed mothers felt tainted by their illegitimacy in a way most boys did not. Unlike in the middle classes, where boys had more difficulty with illegitimacy, in the working classes, girls found it harder to bear. They, after all, might carry on the tradition of illegitimacy into the next generation. The idea that unwed motherhood was somehow genetic was inherent in this dynamic, though no one worried that the boys would be unwed fathers. Even happy children felt somewhat distant from their mothers. C3P, who got along well with both her ‘parents’, preferred her aunt, in part because of her mother’s ambivalence towards her. Her mother ‘wouldn’t let me call her mother, I had to call her Hannah’.76 This could be true of sons as well, but boys who found substitute father figures had other role models. Girls needed to identify with their mothers, while rejecting part of their mothers’ behaviour, the part that, confusingly, had resulted in their existence. Cookson’s immensely complex relationship with her mother was an example. Cookson sympathised with Kate, yet she was also ashamed of having an alcoholic, unwed mother. When her mother died, Catherine felt like she was ‘free’, but she was also ‘lost … I wanted our Kate back’.77 Complications between mothers and daughters were not limited to those born out of wedlock; girls resented their mothers for many reasons. However, one problem resulted directly from daughters’ illegitimate status: the fear of ‘falling’ like their mothers. As ambivalent as mothers were about their illegitimate daughters, some of the daughters were equally so. The 1986 respondent who broke off three engagements (born 1908)  was one example, claiming, ‘I thought all those sexual feelings were a disease … and that I must never marry in case I passed this on to my children.’ Cookson was

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so determined not to be like her mother that she found sexuality anxiety-producing and did not marry until age thirty-four. Dorothy Hatcher, born 1904, whose mother had two illegitimate children, did not flirt with boys because ‘there was always that dreadful fear of going the same way as my mother’.78 Few male autobiographers worried about continuing the cycle of illegitimate parenthood. The ‘black lamb of the black sheep’ was female. Though girls faced more challenges, both men and women reacted badly to the lack of family love. If a mother and father had both deserted their child, the boy or girl had the experience of being truly unwanted. Rowlands, the boy whose uncles dumped him on the workhouse, was equally unwelcome when he turned fourteen and left the union. None of his family wanted him, and his mother was scathing about his lack of success. Yet he wanted her approval despite himself; part of his ambition stemmed from his determination to earn from the public the acceptance he never got from his relatives. John Bierman concluded that he had ‘a deeply wounded personality which never recovered from the savaging it received in childhood’. Tim Jeal argued that he was less tortured but could not deny that after Rowlands moved to the United States, he fabricated a relationship with the American Stanleys, renaming himself Henry Morton Stanley. Though he was a spectacularly successful journalist and explorer, this elaborate fantasy pointed to a troubled psyche.79 Clearly, the lack of family led to negative results across the board. Children needed security, to know their place in the world, to feel wanted. Illegitimates who did not have families lacked all these things. Conclusion At their best, families offered not just economic support, but belonging. Illegitimacy sometimes made relationships insecure, shifting, and/or unknown, but this was not inevitable. The extended family of an unwed mother could make a positive difference in the experience of her child. When wider kin or stepfathers stepped into the breach, the significance of illegitimacy faded. Grandparents, aunts and uncles, or great-aunts took over the roles of missing parents. In cohabiting relationships, the children might not even know they were the product of unwed parents; as long as the breadwinner remained, the family blended in with married families around

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them. Children in such situations grew up happy. C3P, surrounded by supportive kin, insisted, ‘It’s never weighed upon me that I am what you would call illegitimate at all. It’s what you are that counts.’80 The difficulties arose in crises – deaths, illnesses, desertion. Then illegitimate children were especially vulnerable, particularly when the poor law was involved. In addition, the more shame associated with illicit sexual activity, the more likely the child faced scorn, and the poorer the family, the more members resented the economic burden. Others regarded them as ‘tainted’ by ‘bad blood’ or genetic inferiority. Children came out of unhappy homes in many ways – some were all the more determined to succeed; others never felt they had a right to exist; and still others lived in fantasy worlds. Added to these problems was the secrecy that illegitimacy required – grandparents became parents, mothers became sisters, and fathers disappeared. Having to lie about the past burdened the entire family. The fragility of the family bonds was another concern, since illegitimates often moved around between family forms and in and out of State and charity homes. The implications of this instability are the subject of the next chapter. Notes 1 L. Rose, Massacre of the Innocents:  Infanticide in Great Britain, 1800–1939 (London: Routledge and Kegan Paul, 1986), pp. 23, 173–4; J. Gillis, For Better, For Worse: British Marriages, 1600 to the Present (Oxford: Oxford University Press, 1985), pp. 231–59. 2 G. Frost, Living in Sin:  Cohabiting as Husband and Wife in Nineteenth-Century England (Manchester: Manchester University Press, 2008), pp.  72–95, 123–39; see also H.  Mayhew, London Labour and the London Poor (New York: Dover, 1968 [originally published 1861]), III:391; II:226; C. Booth, Labour and Life of the People of London, First Series (London: Williams and Norgate, 1891), I:42–4. 3 C. Tsuzuki, Tom Mann, 1856–1941:  The Challenges of Labour (Oxford:  Clarendon Press, 1991), pp.  102–8, 124, 140, 212–13, 266; J. White, Tom Mann (Manchester: Manchester University Press, 1991), pp. 11, 105–10, 142. 4 The Times (2 August 1894), p. 14. 5 A. Davin, Growing Up Poor:  Home, School, and Street in London, 1870–1914 (London: Rivers Oram Press, 1996), p. 93. 6 H. Barnett, ‘The young women in our workhouses’, MacMillan’s Magazine 40 (1879), 136.

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7 Illustrated Police News (16 January 1897), p. 8. 8 Church of England Waifs and Strays Society (CEWSS) Case Records, www.hiddenlives.org, Case #1399; see also Children’s Society Archives (hereafter CSA), Bermondsey, CS043, 1888–94. 9 The Times (14 April 1920), p. 5. 10 Frost, Living in Sin, pp.  148–68; ‘Neither fish nor fowl:  Children and parents in cross-class cohabitation’, Victorian Review 39:2 (2013), 47–50. 11 W. Clarke, The Secret Life of Wilkie Collins (Stroud:  Alan Sutton Publishing, 1989), pp. 186–90, quote from p. 186. 12 D. Petre, The Secret Orchard of Roger Ackerley (New  York:  George Braziller, 1975), pp.  1–6, 48–56, 76–89, quote from p.  5; J.  R. Ackerley, My Father and Myself (New York: New York Review Books, 1968), pp.  201–14; P.  Parker, Ackerley:  The Life of J.  R. Ackerley (New York: Farrar, Straus, Giroux, 1989), pp. 142–3. 13 T. Ransom, The Mysterious Miss Marie Corelli: Queen of the Victorian Bestsellers (Stroud: Sutton Publishing, 1999), p. 56; B. Masters, Now Barabbas was a Rotter:  The Extraordinary Life of Marie Corelli (London: Hamish Hamilton, 1978), pp. 42–3. 14 L. Davidoff, et  al, The Family Story:  Blood, Contract, and Intimacy, 1830–1960 (New York: Longman, 1999), pp. 244–65. 15 J. Mack, Prince of Our Disorder:  The Life of T.  E. Lawrence (Boston: Little, Brown, and Co., 1976), pp. 30–4; Clarke, Secret Life, p. 203. 16 Manchester Guardian (22 July 1916), p. 4. 17 For examples, see K. Holden, The Shadow of Marriage: Singleness in England, 1914–60 (Manchester:  Manchester University Press, 2007), pp. 115–19. 18 D. Cohen, Family Secrets:  Shame and Privacy in Modern Britain (Oxford: Oxford University Press, 2014), pp. 138–40. 19 Manchester Guardian (15 June 1880), p. 5; (14 February 1881), p. 6; (15 February 1881), p.  8; (16 February 1881), p.  6; The Times (16 February 1881), p. 4. 20 R. L.  Patten, George Cruikshank’s Life, Times and Art, 2 vols (London:  The Lutterworth Press, 1996), II:286–8, 391, 491–6, 513–17. 21 R. M.  Myers, Reluctant Expatriate:  The Life of Harold Frederic (Westport:  Greenwood Press, 1995), pp.  157–60; R.  Woolf, Sensational Victorian: The Life and Fiction of Mary Elizabeth Braddon (New York: Garland, 1979), pp. 104, 249–51. 22 N. Auerbach, Ellen Terry: Player in Her Time (Philadelphia: University of Pennsylvania Press, 1987), pp. 303–64. 23 V. Glendenning, Rebecca West:  A  Life (New  York:  Alfred A.  Knopf, 1987), pp. 83–4, 129–33, 148, 154, 186–7, quote from p. 186.

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24 J. Loewes, ‘Introduction’, in S.  Bowen, Drawn from Life (London:  Virago, 1984 [first published  1941]), pp. viii–x; quotes from p. x. 25 The Times (8 December 1881), p.  6; (10 December 1881), p.  10; Western Mail (8 December 1881), p.  3; (10 December 1881), p.  3; Manchester Guardian (21 May 1864), p. 8; Leeds Mercury (13 August 1864), p. 7. 26 M. K. Ashby, Joseph Ashby of Tysoe, 1859–1919: A Study of English Village Life (London: The Merlin Press, Ltd, 1974), pp. 1–12. 27 P. Brown, Round the Corner (London: Faber & Faber, 1934), pp. 11–23; quote from p. 23. 28 S. Humphries, A Secret World of Sex–Forbidden Fruit:  The British Experience, 1900–1950 (London:  Sidgwick & Jackson, 1988), pp. 15–16. 29 Centre for Northwest Regional Study, Lancaster University, Elizabeth Roberts Collection (hereafter CNRS, ERC), Interview with Mrs W1B, pp. 52, 78–9; J. E. Bowman, When Every Day was Summer: Boyhood and Youth in a Rural Community, 1920–1939 (Wigan:  Owl Books, 1989), p. 25. 30 Yorkshire Gazette (16 May 1885), p.  9; (25 July 1885), p.  9; HO 144/155/A40322, 1–2, 14, 29. 31 L. Davidoff, Thicker than Water:  Siblings and their Relations, 1780–1920 (Oxford: Oxford University Press, 2012), pp. 133–94. 32 CNRS, ERC, Interview with Mrs C3P, 1–35, quotes from 33. 33 Birmingham Daily Post (7 September 1888), p. 5. See also POBO, 23 May 1887, Case #659; The Times (30 May 1887), p. 4. 34 Manchester Guardian (19 February 1897), p. 3; (29 June 1897), p. 12; (30 June 1897), p. 7. 35 CEWSS Records, www.hiddenlives.org/cases, Case #9603, 1903–9. 36 CSA, CS031, 1890–1912. 37 CEWSS Records, www.hiddenlives.org/cases, Case #6424. 38 G. Hewins, The Dillen:  Memories of a Man of Stratford Upon Avon (Oxford: Oxford University Press, 1982), pp. 2–9, 18, 30, 139; quote from p. 9. 39 CNRS, ERC, Interview with Mrs W2L, 15. 40 NA, T/162/428 E.18916, Brown to Treasury, 3 May 1928, memorandum, pp. 1–2. 41 T/162/428 E.18916, Correspondence, 22 May 1928–30 July 1931. 42 CNRS, ERC, Interview with Mrs C3P, p. 23. 43 T1/12060, Estate of Frank Eastwood (1917). 44 Western Mail (22 July 1870), p.  4. See also The Times (12 July 1893), p. 3. 45 D. Derrick, ed., Illegitimate:  The Experience of People Born Outside Marriage (London: National Council for One Parent Families, 1986), p. 19.

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46 CNRS, ERC, Interview with Mrs W1B, 52. 47 D. Stanley, ed., The Autobiography of Sir Henry Morton Stanley (New  York:  Houghton Mifflin, 1937), pp.  1–164; J.  Bierman, Dark Safari:  The Life Behind the Legend of Henry Morton Stanley (New York: Alfred A. Knopf, 1990), pp. 3–45; E. W. Jones, Sir Henry Morton Stanley: The Enigma (Denbigh: Gee & Sons, 1989), pp. 37–40; T.  Jeal, Stanley:  The Impossible Life of Africa’s Greatest Explorer (London: Faber & Faber, 2007), pp. 17–20. 48 Derrick, Illegitimate, p. 19. 49 Derrick, Illegitimate, p. 46. 50 B. Masters, Getting Personal:  A  Biographer’s Memoir (London: Constable, 2002), pp. 39–40. 51 C. Cookson, Our Kate (London:  Corgi Books, 1969), p.  42; see also T.  Sparks, ‘Lineage as destiny in Catherine Cookson’s Our Kate: Reprising the Victorian orphan tale’, in J. Taddeo, ed., Catherine Cookson Country: On the Borders of Legitimacy, Fiction, and History (Burlington: Ashgate, 2012), 39–41. 52 K. Jones, Catherine Cookson: The Biography (London: Warner Books, 1999), pp.  65–8; quote from p.  66; J.  Parnell, ‘Translating and conveying the damaging childhood in Our Kate’, in Taddeo, Catherine Cookson, 87–95. 53 E. Smith, A Cornish Waif’s Story: An Autobiography (London: Popular Books Club, 1956), p. 23. 54 Derrick, Illegitimate, p. 23. 55 The Times (18 July 1866), p. 12; HO 45/9371/38421. 56 Brown, Round the Corner, pp. 25–6. 57 B. Reay, ‘Kinship and neighborhood in nineteenth-century rural England:  The myth of the autonomous nuclear family’, Journal of Family History 21:1 (1996), 87–104. 58 L. Stride, Memoirs of a Street Urchin (Bath:  Bath University Press, 1984), pp. 15–17; quotes from p. 17. 59 The Times (21 October 1886), p.  6; Night and Day:  A  Monthly Record of Christian Missions and Practical Philanthropy Issue 113 (1 November 1886), 145–6. 60 CNRS, ERC, Interview with Mr T1P, 13. 61 CEWSS Records, www.hiddenlives.org, Case #9380, 1903–15. 62 See The Times (16 June 1911), p.  4; (21 June 1911), p.  7; HO 144/19781/5, 28–30. 63 CEWSS Records, www.hiddenlives.org, Case #326; quote from 20 June 1884. 64 Smith, Cornish, pp. 71–3, 79–85; quote from p. 72. 65 Stride, Memoirs, pp. 33–8; quote from p. 38. 66 Ashby, Joseph Ashby, p. 14.

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67 CNRS, ERC, Interview with Mrs C3P, 17. 68 L. Abrams, ‘ “There was nobody like my daddy”: Fathers, the family, and the marginalisation of men in modern Scotland’, Scottish Historical Review 78:2 (1995), 219–42; J. Strange, Fatherhood and the British Working Class, 1865–1914 (Cambridge:  Cambridge University Press, 2015); L.  King, Family Men:  Fatherhood and Masculinity in Britain, 1914–1960 (Oxford:  Oxford University Press, 2015); T. Burke, A Son of London (London: H. Jenkins, Ltd, 1946), p. 61. 69 Derrick, Illegitimate, p. 46. 70 Cookson, Our Kate, pp. 45–8. 71 Derrick, Illegitimate, p. 20. 72 Bowman, When Every Day, p. 26. 73 Cookson, Our Kate, p. 86. 74 CNRS, ERC, Interview with Mrs W1P, 52. 75 Lancaster Guardian Supplement (9 November 1895), p. 1. 76 CNRS, ERC, Interview with Mrs C3P, 17, 35; quote from 17. 77 Cookson, Our Kate, p. 311. 78 Derrick, Illegitimate, p.  20; Cookson, Our Kate, pp.  169–70, 192–4; Jones, Catherine Cookson, pp.  95–116; 149–54; D.  Hatcher, The Workhouse and the Weald (Rainham:  Meresborough Books, 1988), p. 69. 79 Stanley, Autobiography, pp.  1–164; Bierman, Dark Safari, pp.  3–37, quote from p. 3; Jeal, Stanley, pp. 136–8, 391–406. 80 CNRS, ERC, Interview with Mrs C3P, 4.

7

‘Passed from hand to hand’: child circulation As Nara Milanich has shown, illegitimate children were primary candidates to move between families, foster parents, charities, and institutions.1 Like orphans, illegitimate children had usually lost at least one parent; unlike orphans, illegitimates’ existence caused shame and embarrassment. When nuclear families failed, these children moved from relative to relative and in and out of care. Servants could not keep their children with them, and any women who worked long hours had to find caregivers during the day. Fostering or informal ‘adoption’, for money or from compassion, were the main options for women without family support. Another type of exchange was that between relatives and charities and state institutions, usually the workhouse. As historians have noted, families saw these organisations as ways to survive difficult times and did not always intend to leave children permanently.2 Workhouses and charities discouraged mothers from reclaiming their children, but the mothers’ rights to their illegitimate children could only be challenged by State adoption. If the children stayed in care, workhouses and charities in their turn sent the children to foster parents, leading to yet another home adjustment. Child exchange was not new; moving children into neighbours’ homes was ubiquitous in the early modern period. Shared child-rearing was also common in the poorer classes through much of Britain’s history. Furthermore, upper-class children had nannies and went to boarding schools at young ages, separating them from parents, and children with parents in imperial service lived apart for years. Orphans and half-orphans also led unsettled lives as families scrambled to find room for them. Parenting, especially mothering, was a social activity, not simply a biological one, in many cases.3 Illegitimate children were not alone in being moved from home to

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home, but their economic vulnerability and lack of paternal relatives increased their likelihood of facing at least one major disruption during their childhoods. Between 1860 and 1930, the fates of such children increasingly concerned reformers in the church, press, and Parliament. Agencies to rescue such children multiplied in the 1880s and 1890s. Though meant to help, many of these reformers set high standards for homes, leading to yet more separations. In the case of illegitimacy, the need to rehabilitate the mother as well as to save the child complicated child savers’ approaches.4 Most charity workers believed that separating unwed mothers and their children was best. Thus, these children were prime candidates for informal adoptions. Before the First World War, moral welfare societies argued that mothers and children were better served staying together, mostly due to the need for children to nurse. After 1919, the NC took over as the most persistent lobbyist for this view, but these were minority voices, especially after the passage of the Adoption Act in 1926. Moreover, the market for young mothers’ labour channelled most into domestic service, where they could not live with their children. Since one of the few jobs older women could do was to care for infants, the two sides of women’s working lives coincided to encourage fostering.5 Separations from parents at crucial ages had long-lasting impacts on children, who felt abandoned and unwanted. On the one hand, constant movement indicated to children how much of a burden they were to any poor family, something, at any rate, many relatives did not hesitate to say. While some children overcame the rejection, others became despondent. On the other hand, mothers and other kin did not always accept that they should remain out of the children’s lives forever; they reappeared when children were no longer financial burdens. Children, then, faced both the loss of family and its unexpected reappearance. These reclamations could offer happy endings, but in practice they often involved difficulties for both parents and children. Movement between kin Illegitimate children frequently moved between different branches of their families. Most often, children went from mothers to grandparents and aunts and uncles, or from the maternal relatives to a stepfather and mother. Elizabeth Coleman, a servant, gave birth to a child

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in 1872, and she first gave the infant to her mother, but the latter could not cope with the baby, whose legs both had atrophied muscles. When her daughter was a year old, Elizabeth moved her to the care of her married cousin, Eliza Pollain, paying four shillings a week. Unfortunately, the Pollains ended up in court on a charge of neglect, mainly because they left the child tied to a chair for hours at a time. Interestingly, both Elizabeth and her mother defended the Pollains, saying they had no choice if they were to earn enough to feed the baby. At any rate, the two-year-old girl had been with her mother, grandmother, and mother’s cousin in quick succession; her need for extra care made her especially likely to change homes rapidly.6 Some rare children also moved between their parents, mirroring the problems of children of divorce. Many custody cases between mothers and fathers involved those who had separated after a relationship or illegal marriage. Rudolf Rocker, an immigrant who became leader of the Jewish labour movement in London, had a child with his first lover, a woman in France. After their split, their son lived with his mother until he was six years old. When she married, she asked Rocker to take him. Rocker was then living with his long-time partner, Milly Witcop, in London. According to Rocker, the stepfather did not want the boy: ‘the child was in his way, and Milly and I took him in … She was a good mother to my son.’7 The boy was fortunate that his father and stepmother were not only happy to have him but stayed together for fifty-eight years. He did, though, face a difficult transition at a crucial age, leaving his mother and the country of his birth. Indeed, when unmarried parents parted, the resulting custody battles could be nasty. In 1893, Ann Lewis fought with her ‘husband’ over their two children (he was her deceased husband’s brother, so their marriage was invalid). While still living with Ann, Thomas secretly married one of their servants whom he had gotten pregnant. After Ann left him, he removed their children from school and took them back to his home without consulting her. Ann went to the Queen’s Bench to reclaim them; the disgusted judges gave the children back to their mother. The children, shuttled between parents, schools, and two different homes, must have been confused and frustrated. Since their father’s new wife was their old nanny, their loyalties were divided to the point that they told the judges they preferred to stay at their old home with their father. In this case, his behaviour had

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been too outrageous for the judges to comply with the children’s wishes.8 As this example showed, parents fought to keep their children, especially when they could both afford to maintain them. But the economic burden of childcare meant that some parents tried to avoid the responsibility altogether. These disputes led to even more disruptions as well as interventions by the State and private charities. The Chaplin ménage demonstrated how the difficulties of providing for illegitimate children encouraged child movement. Hannah Hill had one son, Sydney, before she married another actor, Charles Chaplin, and had a child, Charles Jr, with him. The relationship soon foundered, and both partners lived with other people. Hannah lived with Leo Dryden, and he was a stepfather to Charles and Sydney. Hannah had a third son with Leo, but Dryden took the baby and left when Hannah’s mental instability endangered his life. Again without a breadwinner, the family went to the workhouse twice. The guardians insisted that Charles Sr care for his stepson and son, so the boys lived with him and his cohabitee, Louise. Louise also had a son, adding another half-brother to the household. Charles Sr resented his son and stepson; things got so bad that the NSPCC intervened. In the aftermath, Charlie and Syd went back to their mother. By the time Charlie earned enough money to keep them, he and Syd had lived in the following households: their parents together; their mother and stepfather (with half-brother); their mother alone; the workhouse (twice); their father and stepmother (with different half-brother); and then their mother again. Syd had also lived with his mother alone before she married; he had experienced eight changes and five different family formations by his adolescence.9 As Chapter  6 made clear, children often moved from grandparents to their parents’ homes when the latter married. This was not always a positive change; step-parents might not want the pre-marital child, or the economic burden became too great as the family grew. When unwanted children were neglected or harmed, the NSPCC intervened. In 1896, Jessie Nibbs got a month in gaol for neglect of her six-year-old daughter. The girl had done well with her grandmother; the trouble began after her mother married and brought her daughter into the new home. The NSPCC inspector eventually found seventy bruises on the girl’s body.10 When fathers remarried, they too sometimes took their children into the

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new homes with similarly dire results. Alfred White had originally lived with the mother of his child, but after her death, he paid a foster mother to care for his daughter, Florence. When White married in 1899, he brought the girl into his home, where she soon went into a rapid decline. She died of consumption, but the NSPCC blamed the parents for her malnourishment, and both got gaol time for neglect.11 A seriously ill child needed consistent caregiving. Florence, instead, went from her parents to a foster mother and finally to her father and stepmother, all by the age of ten. Though the above cases were negative, many children, like Nellie in Chapter  7, were wanted by both their grandparents and their parents, and going into a settled home meant more, rather than less, provision. Even in these instances, though, children might be anxious about the change, unsure of their place in the household. Mrs W4P, born in 1900, told Elizabeth Roberts the story of a woman who had a son with a man who refused to marry her. The boy, Mark, lived with his grandmother until his mother got engaged. At that point, W4P saw that Mark was upset and urged her friend to bring him to see her. She told him, ‘ “You’ll have a proper dad Mark and your mother won’t leave you, even for Brian because she loves you too much.” After a time he got quiet and I  said, “when you go back tell your grandma you’re sorry.” After that the little boy was different altogether.’12 Despite having a mother, stepfather, and grandmother who wanted him, Mark feared desertion and acted out his frustrations. Children also went in and out of State and private institutions regularly; families gave up the children until the latter could support themselves, then wanted their children back. Though many child savers at the turn of the century preferred children to stay away from relatives, they could not always prevent a return. The CEWSS took F, born 1883, in 1896. Her mother was ‘living an evil life’ and disappeared, leaving F with her grandparents. When her grandfather, a miner, began to fail in health, her aunt and uncle then took her, but her uncle also suffered from rheumatism. Thus, her relatives appealed to the CEWSS, which accepted her and immediately apprenticed her to a dressmaker for seven years. The length of this contract distressed her relatives to the point that her grandfather demanded her return: ‘I want you to let her come home … I  think [the long apprenticeship was] very ronge [sic] … without letting the Grandfather and Grandmother [k]‌ now.’ Though the

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CEWSS told the grandfather to reapply in three years, he persisted, and F returned to her family only three months after her acceptance.13 She had, then, gone from her mother to her grandparents to her aunt and uncle, to the CEWSS, and then back to her grandparents in only a few years. Implicitly or explicitly, illegitimate children were ‘extras’, lifted out of the home when others needed the space – because of deaths and desertions, but also because of changed jobs, marriages, and other transitions. Emma Smith’s many movements began when her grandparents decided to relocate to Plymouth. Harry, her brother, went to their mother and stepfather, while Emma never again belonged to her natal family.14 Mabel Ingledew lived with her maternal aunt and uncle-in-law after her parents died. In order to make houseroom for her, her Aunt Lottie had to eject her illegitimate daughter, Bertha; this was the condition set by her husband. Lottie resented Mabel ‘usurping her own daughter’s place’, so the displacement of the illegitimate child did not benefit either girl.15 Adulterous illegitimates were particularly likely to move, as their stepfathers found their presence a reminder of their wives’ betrayals. Frederick Snow was the product of his mother’s affair with her grown stepson in 1909. She returned to her husband briefly, but then departed with her lover a second time, leaving Frederick in the care of his stepfather/grandfather. Though normally kind, the husband did not want the product of his wife’s incestuous adultery living with him. The CEWSS took the boy in 1913, and he began the first of many moves, eventually going to Canada in 1925.16 Illegitimate children were just one group of youngsters traded around between kin. Without a father’s support or (often) a mother’s care, they relied on extended kin to house them. Arguably, children would have been better off with only one wrenching transition, but most families made an effort not to send members to workhouses, so children changed homes three, four, or more times. Though any poor child was vulnerable, illegitimate children had special difficulties. First, the father’s kin rarely felt any responsibility, meaning half of the potential supporters were gone. Second, a mother with illegitimate children was suspect to religious and government authorities and therefore more likely to lose her child. Illegitimates, then, show the effects of unsettled home lives particularly poignantly.

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By the late nineteenth century, all kinds of organisations used fostering as a way to prolong infant life and socialise children, including workhouses and charities. In theory, foster parents took children for a weekly sum and knew the relationship was temporary. The rates averaged between four to eight shillings a week, so a woman could earn a decent supplemental income by taking in a series of foster children. In addition, mothers of illegitimate children gave their babies to nurses, paying them weekly sums and visiting their children infrequently. These arrangements were fragile, given the low incomes of single women, but they were the only daycare possible if kin refused (of course, some kin overlapped with foster mothers). Over all, the total number of children in foster homes must have been considerable at any given time. Foster parents occasionally shaded into adoptive parents; couples became attached to their charges and did not wish to lose them. However, until 1926, they could never be certain of keeping the children. Fostering encouraged child circulation because of its temporary nature. Dorothy Hatcher, born in 1904, went to the workhouse when her mother had a second illegitimate child, since her great-grandmother could no longer keep them. When she turned four, an older couple fostered her. ‘Auntie Bea’ and ‘Uncle Ambrose’ gave her loving care for six years. Unfortunately, Ambrose’s son then died, and the couple’s family had to decide what to do with their two grandchildren. One went to an aunt, while the other entered Ambrose’s house. A foster child had to have her own room, so Dorothy had to leave for a new home, where the couple could not deal with her subsequent behavioural problems. Within months, she went to a third home, with ‘Aunt Kate’. She had, then, lived in her natal family, three fostering families, and an institution by the age of eleven. She blamed the constant shuttling for her emotional problems, concluding that she ‘must have been a very bewildered little girl’.17 Janet Hichman, born in 1916, moved so many times between foster homes and institutions that her ‘only sensation’ on leaving ‘was one of curiosity about the future’. She got to know the signs of impending departure by heart, especially the packing of her old tin box.18 Charles Nalden, born in 1908, was brought up in the FH. Like all foundlings, he went to a foster home until he reached school age. He had great fondness for his foster parents, the Millses. After

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he left for the FH school, Mrs Mills visited him every quarter; she always brought her foster children gifts and corresponded with them. Nalden visited her on holidays and practically had to force her to take money for his care. His relationship with her was almost entirely positive, yet he did not get security from it. The main reason was the FH policy of removing children from their foster parents at the age of five or six. Mills warned him that he would leave her when he went to school, but the experience was traumatic. In fact, he argued that the FH should have kept all the children in the institution from the beginning rather than putting them through the parting. Like Hatcher, he was ‘long tortured with feelings of inferiority’. He later had a successful career as a musician in New Zealand, but the dislocations of his childhood left their mark.19 Because of their temporary nature, even positive fostering relationships had troubling consequences. Children’s confusion about moving between mothers, foster parents, and institutions was also clear from legal records. At times nurses were better to the children than their families, but they had no custody rights. In 1869, Blanche Davis was charged with neglect of her two illegitimate children, especially her six-year-old son Richard. Blanche lived with her parents and two sisters who had a number of illegitimate children between them. Richard had lived from the age of two to four with a foster mother, Mrs Coole, who took three shillings a week for him. Blanche stopped paying, but Coole did not give him back until Blanche owed her over £2. Coole finally returned him to his mother’s house, where he became ragged and half-starved. Periodically, Richard ran to his foster mother for food. She fed and cleaned him, but she could not afford to keep him on her own. In June 1869, Coole’s daughter went into their yard at 7:00 a.m. and found Richard ‘naked and famished … He complained that he was beaten … He always begged not to be sent home again’. This time, the Cooles contacted the authorities. Davis got six months at hard labour for neglect. Richard’s foster mother, though unable to keep him, was kinder to him than his mother, and when he was hungry or hurt, he returned to her. All the same, she was not his mother, and he likely went to the workhouse.20 Similarly, Beatrice Rendall was the illegitimate child of Annie Rendall, and Alice Thurlborn nursed her to the age of seven. Alice, too, kept the little girl when the mother fell into arrears, which mounted to almost £3. Thurlborn then appealed to the RO, who

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tracked down the mother. Annie had married Henry Russell, who was unaware his wife had a child before their marriage; the appearance of a school-aged stepdaughter was an unpleasant shock. He resented her, and the mother was unhappy to have her past exposed. As a result, Beatrice became thin and ragged within six months. Unlike Richard, she lived too far away from her foster mother to ask for help; neighbours had to call in the NSPCC. Their inspection revealed that Beatrice slept on the floor and ate away from the other children. Her stepbrothers were charged with bringing her food, which they sometimes ate rather than giving to her. Beatrice, too, went to the workhouse.21 Rejected by both mothers in quick succession, these children must have felt utterly deserted. Mothers forced to use foster parents also needed to be careful about whom they picked. Unkind or openly abusive foster parents made an already disadvantaged child’s situation intolerable. Smith’s mother handed her over to the Pratts, who kept her out of school, put her in rags, and made her beg. Her foster father sexually abused her, beginning when she was six years old. Emma lived with the couple for three years before they threw her out for wasting food. She agreed to go back when she was ten, mainly because she had nowhere else to go. She finally ran away for good when she was twelve.22 Emma’s experience with foster parents was unusually bad, but legal records exposed other abusive relationships, most due to poverty or alcoholism. The in-built instability of fostering became worse if the foster parents had emotional or physical limitations. In 1895, Julia Baxter, a servant, paid Mary Ann Davis eight shillings a week to care for two of her three small children, a four-year-old girl and a newborn boy. Within a month, the baby had died. According to neighbours, Davis left the infant in the care of her children and sometimes did not hear the baby crying because she was drunk. Though the child died of diarrhoea, Davis got six weeks for neglect.23 Working mothers had to find nurses for their children, but the amounts they could afford rarely got a high level of care. Thus, children who survived these rigours moved from foster parent to foster parent or in and out of the workhouse. Over time, fostering arrangements came under scrutiny by Parliament and organisations like the NSPCC. Though foster mothers could still slip through the cracks, especially those having only one foster child, escape from all supervision got rarer. In particular, workhouses and charities checked their nurses regularly to make

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sure their homes were acceptable. The rules for foster parents of workhouse children were strict; the home had to be large enough to accommodate the children, and no foster mother could have more than two children at a time.24 Some children remained with the same foster mothers until they went out to work; others changed homes frequently. Indeed, the workhouse regime was full of difficult, unexplained changes for children. Most unions kept nursing infants with their mothers but removed them from their mothers’ wards when they were weaned. After that, they might be boarded out or sent to a children’s home or, if their mothers were dead, to foster parents. One illegitimate child, only two years old, went to the workhouse with her mother; she was immediately separated from her parent. She concluded, ‘it is worse than it reads to have the experience’.25 When children moved to foster homes, usually as toddlers, they got little inkling of the change. Catherine B., born in 1890, grew up in the workhouse as a disabled child. When she was four, the officials took her to a strange house with no explanation. When the matron and master got up to leave her, she tried to go with them: ‘I said “I don’t want to stop here. I want to go back to my other home!” ’ Her protests were of no avail; she stayed with the foster parents until she went into service.26 Private charities faced similar dilemmas. As Nalden’s memoir indicated, fostering was universal for the FH. As soon as babies arrived, they went into private homes until they were old enough to go to school. Children usually assumed the couples they lived with were their parents; many had no idea they would have to leave. Memories of foster homes were warm; one man, born 1925, described his parents as ‘kindly … I  don’t recollect ever being slapped, or hit, or shouted at’. Harold Tarrant, born 1911, depicted his life with his foster parents as ‘absolutely carefree’. He did not realise that the Palmers were not his parents until he left for school. The major disruption for these children, then, came at a crucial age, five or six, when many people began to remember childhood incidents. The abrupt transition was burned into their memories.27 Foundlings’ biological mothers had given them up when they were between three and twelve months old, and the foster mothers when they were six, a double loss. As a result, children tried to stay in their foster parents’ lives, though they rarely got much help from the FH. Girls frequently requested situations near their foster mothers, and the few boys who did not go into the military

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also sometimes asked to live near their ‘mothers’, but the governors were uneasy about doing so. In 1925, the secretary explained to Mrs Long, a foster mother, that ‘where they have consented to children taking situations near their foster mothers it has been far from successful’.28 Any contact that interfered with the children’s education or job prospects was unwelcome. In February 1896, the secretary complained to one nurse of her unacceptable behaviour: ‘the Mistress of Lucy G[…] objects to constant communication being kept up with the Girl as it unsettles her … it [is] most inadvisable that any of the Girls should be allowed to call Mrs. Chittenden “Mother” or to take her surname.’29 Some children thought of foster parents as their parents, but the FH frowned on too much closeness, adding yet more instability for the children. Periodically, foster parents asked to adopt their charges. As the FH allowed mothers to reclaim their children, they almost always refused, but a few exceptions existed. (The records do not give the reasons these foster parents got more consideration, but the children may have had special needs or their mothers may have died.) In 1913, the Jupps asked for their foster daughter, Lucy S., to live with them. Lucy had some physical or mental difficulty, and the governors agreed ‘as the Jupps seem to be extremely fond of her’. She settled with them a month later. Lucy’s circulation, then, had a happy ending.30 In 1921, the Turners, who had emigrated to Canada, asked if their foster daughter, Louisa N., could join them. The governors asked for a full enquiry, and the Turners passed the test. Louisa travelled to Canada early in 1922. Louisa, like Lucy, had gone through several family changes, but unlike many of the children emigrated to the empire, she had ‘parents’ waiting for her at the end of the journey.31 All the same, most foster children did not hear from their foster parents again; those who did faced interference from the FH. In 1921, the Laceys requested two of their foster daughters, aged eighteen and nineteen, be allowed to emigrate to Massachusetts. Both wanted to go, but the FH refused, worried that the girls would work in the mills.32 Circulation was also a cause of friction, as foster parents competed with biological mothers over children. In May 1919, a Mrs H.  wrote to the FH to ask for the restoration of her daughter, called Laura S.  Laura was living with Mrs Barker. H.  wanted to place her daughter in a Catholic institution where she could visit (the FH did not allow mothers to visit their children).

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R. H. Nichols, the secretary, discouraged H., but the ability of the Catholic church to challenge charities over custody of children made the FH leery about refusing. After months of negotiation, the FH released Louisa to the home in March 1920. Barker had grown fond of the girl, so she asked if she could correspond with Laura. At first, H. agreed, but within a week, she changed her mind. Nichols replied to this unwelcome news by noting that Barker would be upset not to be able to correspond with ‘the child which she has mothered for many years. I  am very, very sorry that Mrs H[…] has gone back on what she said.’ Laura, thus, lived with her mother as an infant, then went to a foster mother, and then, abruptly, to a Catholic institution (with, one assumes, visits from her mother). How she coped is not recorded, but her transition to the charity could not have been easy.33 Her mother may well have been right that letters from a rival would not help her make the change, but Laura, like so many others, must have been baffled. The CEWSS also fostered out children, and here too the child might become the subject of a custody fight. The best example of this was E (born 1883). E’s mother led ‘an immoral life’. In 1889, she had a second son and could not support both boys. The CEWSS accepted E and sent him to Mr and Mrs P. in the countryside, paying them five shillings a week. E developed a close relationship with them; Mr P. told the CEWSS ‘he loves the boy as if he were his own, & would gladly keep him for nothing if he could afford it’. In 1892, E’s mother inherited £20 from an uncle, set up a nice house, and demanded her son’s return. The CEWSS workers had no recourse but to do so, and the P.s were indignant that they had no legal rights. Despite her supposedly selfish character, E’s mother returned him in 1893 when she ‘found him so happy at the P[.s]‌’. After a short break, then, he went back to his foster parents. When he got old enough to support himself (in 1897), his mother again asked for him to return; this time, he flatly refused. E’s file documents the emotional problems such insecurity bred. The local worker claimed that every month when she arrived with his support, E ‘is in terror lest he should be sent back & it has been piteous to see him cry for joy & cling to Mrs P each time I have brought him a month’s reprieve’. When he was re-instituted with the CEWSS in 1893, she explained, ‘one of E[’s] troubles has been to think that he was no longer “The Society’s Boy.” … poor E was greatly troubled about

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it.’ After years of uncertainty, E got the parents he wanted, but not without great anxiety.34 In general, fostering was an odd mixture of economic calculation and nurturing. Although paid, many foster parents were fond of their charges and received affection in return. They needed the money to afford the extra mouths to feed, but this did not preclude emotional bonds. Some foster parents were childless, or, like Mills, had only one child survive. Others were past child-bearing, and fostering allowed them to continue to parent youngsters. Foster parents, though, had no legal right to the children. Changes in household, the need to take in blood kin, and a mother’s demand for her child’s return all militated against permanence and security. Adoption In theory, adopting a child removed some of the problems; in reality, adoptions were not legally binding until the Adoption Act of 1926. In fact, many mothers never intended the exchange to last forever, but only until the child was no longer a burden, and an unregulated system was open to great abuse. Some mothers paid to be free from their children, while unscrupulous adopters hoped to move the child on at a profit. Institutional adoptions had more safeguards, but they were not entirely without difficulties either. Even with careful oversight, the results of this system were mixed. Informal adoptions had a long history in Britain; stories were legion of children taken in by neighbours or left on doorsteps. Margaret Penn (born 1896) was adopted by her parents after her father abandoned her single mother for Canada; her adoptive parents did not tell her she was not their biological child until a neighbour told her the truth when she was ten. She had never noticed any difference in the way her parents treated her.35 Though such happy stories were probably common, in the nineteenth century, adoptions only got into the newspapers when something went wrong. In those instances, the child’s illegitimacy was often a major factor, leading to great publicity and concern. In April 1890, Charles Nation, a coachman, answered an advertisement in the paper which asked for ‘some kind person to adopt a child’. Nation met with a ‘Miss Brown’, who handed over a two-year-old girl. Nation took no money for adopting Edith, but he and his wife kept her only thirteen months. They then advertised to have her re-adopted, and

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Nation claimed he got a hundred offers. The Broughtons eventually took her; they were an odd choice, as George Broughton was nineteen and Ann Broughton close to seventy. Though Ann had once had a legacy, the couple had spent it, and George returned to his mother, giving his wife a small weekly sum. Edith went back and forth between her ‘parents’ for a year. When she lived with her ‘father’, she got adequate food and clothing, but her ‘mother’ was too infirm to take care of her. When she stayed with Ann permanently, Edith went into a terminal decline. The Coroner, G. Danford Thomas, concluded: [The case] showed the facility with which illegitimate children could be passed from hand to hand without any registration or agreement … How extensive was this traffic in illegitimate children was evidenced by the fact that Nation, when he advertised … received 100 offers to take her, and yet no premium or payment was mentioned or granted.

Ann served six weeks for neglect, but George, the Nations, and Edith’s natal family all escaped punishment. No one made a profit from Edith’s short life, yet she starved to death at five. Like the children ‘sold’ to employers in Chapter 3, she was moved around without oversight.36 Why the Broughtons adopted is a mystery, but with others the reasons were clearer. Some couples were unable to have children or had lost them, and they wanted a child on which to lavish attention. As Deborah Cohen has noted, many of these adoptions were successful, the parents amazed at how much they could love a child not of their own blood, though her examples, based on the records of a private adoption society, largely involve middle-class adopters.37 Poorer adoptive parents could not always protect their charges; older ones, for example, sometimes died while the children were still young. M2, adopted by the CEWSS in 1896, showed the way adoption could be unstable. She was the daughter of a prostitute, and neighbours took her ‘as their own’, because they had no children. The working class often informally adopted neighbour children, a good solution to the childcare problem. In this case, though, the adoptive mother died before M2 was twelve, and her adoptive father, at sixty, lost his job. The family survived on the earnings of her adopted grandmother, a charwoman, a situation that soon

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became untenable. After the society took M2, she was adopted by Mrs S., but this adoption was not as successful (the records do not say why). M2 went to various institutional homes between 1900 and 1902. At fourteen, she went out to service, but serious knee problems sent her back to care. In short, M2 circulated through two adoptive homes, several institutions, and various employers by the age of twenty, and the society gave up on her in 1916. Adoption in this case had not led to stability.38 Though M2’s adopters had physical weaknesses, other problems were mental. In 1912, the Stantons went to a private agency to adopt a child. They took a three-year-old named Winifred Tombs, the illegitimate child of a servant. Though on the surface the Stantons were ideal, Mrs Stanton struggled to mother a child with Winifred’s insecurities. In particular, Winifred (now called Ena) failed at potty training. In October 1913, Emily Stanton found dirtied blankets yet again, became enraged, and strangled Ena to death. In the subsequent trial, her fondness for her adopted daughter was evident, but she did not have the patience to handle the difficulties of a traumatised girl. Fortunately for her, the defence barrister convinced the jury of her insanity; unfortunately for Winifred, the adoption agency had not seen signs of mental illness before handing her over to the Stantons.39 If those without monetary motives could be poor choices, those with such motives were even worse. For couples like the Barnses, discussed in Chapter  3, adoption was a business, and children moved easily from person to person. Illegitimates were vulnerable to these exchanges because their relatives did not want to admit being associated with them. As The Times put it during the trial of the Barnses, ‘Almost all the children … have been of illegitimate birth, and the parents have, naturally enough, shown the greatest disinclination to come forward.’40 As long as exchanging babies turned a profit – and revealing illegitimacy was shameful – people engaged in it. The Roadhouses, a couple who made an excellent living as baby farmers, escaped justice for years because many people brought them children without investigation. Annie Roadhouse supplied false references, but only one of the witnesses, a doctor’s wife trying to place a child whose mother had died, insisted on an address before handing over the baby and £20.41 Mercenary adopters moved children especially frequently. Herbert Smith and Lottie Roberts received £166 from various women for such adoptions.

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All the children went out to nurses, who received two or three payments before the couple disappeared. When the nurses ran out of money, the children went to the workhouse, where the guardians tried to trace their families. In the case that brought down Smith and Roberts, the police found the child alive, but with no thanks to them; the nurse had kept the child for no money for several weeks.42 ‘Baby farmers’ received great hatred from press, courts, and public alike, and many of these couples were unscrupulous and greedy. The association of adoption with such practices was one reason for the long delay in passing a formal adoption statute. However, the majority of adoptions were neither entirely disinterested nor entirely mercenary. The mixture of motives and the limitations of oversight meant that children could be economically and emotionally valuable or not valuable, depending on circumstances. The ILPA of 1872 and 1897 tightened regulation over those who cared for foster children, but they omitted those who took only one child, out of deference to poor-law unions and charities. Thus, if an adopter took only one child, he or she could avoid notice, but any more brought scrutiny. As long as this loophole remained, some babies slipped through the cracks.43 In addition, despite increasing regulation, the difference between ‘adoption’ and ‘baby farming’ was often unclear. In 1901, John and Edith Kerley were charged with the neglect of Mabel Basset. They had taken Mabel when her mother left the workhouse in September 1900. According to Elizabeth Basset, she gave the baby to the Kerleys permanently, paying them £5. The Kerleys insisted that Elizabeth also said she would pay them five shillings a week. Elizabeth denied this, and the Kerleys could not prove it, so the judge dismissed the case. The murkiness of the arrangement suited both parties, since they could both deny responsibility for the baby’s condition, but they hardly benefitted Mabel.44 Adoptions from charities and workhouses had more supervision; in these instances, the authorities encouraged it as a way to remove the expense of the child. Adopters gave up their right to weekly payments in order to keep the children, or better-off couples offered to adopt the child outright. For example, George Behlmer has analysed nineteen cases of adoption from the CEWSS between 1877 and 1909; the vast majority of these occurred when the foster parents gave up the fees to keep the child. Edith B., whose mother was a servant, boarded out with a Mrs Smith in Spitalfields; her mother

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contributed one shilling a week. Edith was in poor health when she arrived, but recovered under Smith’s care. The child’s sponsor, Mrs Billing, urged that the child remain where she was because [Mrs Smith] has given her a Mother’s love & care & the child is better & stronger now than I  ever supposed she could be. I  quite agree that Pelham Street is not an ideal boarding-out spot … but I think this is more than compensated for by the real love the child has enjoyed & under which she has thrived.

Edith remained with Smith, and her subsequent history vindicated Billing’s argument; after six years of fostering, Smith adopted her. Edith’s mother could not care for her, but circulating her through a charity meant that a woman who did want a daughter benefitted, as well as the girl.45 If the adoptions were not by foster parents, the children did not have the same advantages. Because boarding out was expensive, the CEWSS had a financial motive to place the children in adoptive homes. Children who did not have sponsors were vulnerable to being moved. John S. lived in a stable foster home, ‘happy and well cared for and loved’. Nevertheless, when his mother disappeared, taking her four shillings a week with her, the CEWSS accepted an offer of adoption for him, and he was abruptly uprooted. Such adoptions were problematic, as they happened after children were old enough to know what was happening. Older children had also developed personalities of their own, and adoptive parents might be less charmed by a sullen adolescent than by a toddler. These factors made for failed adoptions and yet more rejection for the children. Lilian W. was adopted by a Mrs Edwards when she was fourteen; two years later, Edwards backed out of the arrangement, complaining that Lilian was ‘a bit rude’. Lilian, moved from home to home, may well have tested her new mother to see if the latter would reject her, too. Unable to outlast the teenaged rebellion, Edwards did.46 Before legal adoption, natural parents might hope to reunite with their children, but well-off adopters could outspend them. As Cohen put it, ‘for women who bore children out of wedlock, the inalienability of parental rights was mostly a dead letter’.47 Alice Corthorn was fifty-four and a doctor when she decided to adopt a baby in 1913. The girl, named Olive, was an inmate of a mother and baby home where Corthorn served as a medical officer. Alice

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retired six years later, and the two lived on her small income. The natural mother tried to reclaim her daughter when Olive was eight, but Corthorn’s education meant that she was able to intimidate her through a solicitor’s letter. Olive, then, knew only her adopted mother. She insisted, ‘no natural mother-child relationship could be closer than that which subsisted between my adoptive mother and myself’.48 Corthorn’s limited income was less important than the continuity of care Olive received, but this security had been possible only because Corthorn knew how to use the law and came at a cost to the biological mother. Moreover, some better-off parents had problems forging successful relationships with adopted children. Constance Maynard was an unmarried headmistress when she adopted Effie Anthon, the illegitimate daughter of an Italian mother, in 1888. Effie was six years old when she separated from her mother; she spoke no English and had working-class habits. Maynard sent her to a respectable family for her education, but she did not do well. Maynard then tried various different situations for her, all in vain. Maynard despaired of Effie when she was ten (in 1892), and desired her mother to take her back, but Rosa Fasulo had rebuilt her life in South Africa and refused. Thus, Effie went to an orphanage, where she was dismissed for ‘filthy and disgusting tricks’. She worked as a servant, but was caught stealing and moved from place to place. At thirteen, she went to a Salvation Army Home for fallen women. She was dismissed there for pilfering and disobedience, and Maynard was horrified when the administrators of the home told her Effie had ‘fallen’ at the age of thirteen (Effie denied this). Eventually, Effie contracted tuberculosis and died in a workhouse infirmary. Effie was a difficult charge, but Maynard did not interpret her behaviour as a result of her disrupted life, instead blaming ‘bad blood’. Maynard wanted to disassociate herself so completely that she allowed Effie to go to a pauper’s grave.49 Problems with the irregular nature of many adoptions were serious enough that pro-adoption activists formed lobbying groups after the First World War (the National Children’s Adoption Association was founded in 1918). Their efforts bore fruit with the Adoption Act in 1926. In the immediate aftermath, many long-time caregivers applied to adopt. They made up between half and two-thirds of those applying; this was also reflected in the ages of the children adopted, the vast majority of whom were between two and fourteen

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years old. A minority also went to natural parents, adopting their own illegitimate children. In all these cases, legal adoption led to stability.50 Still, the process required publicity, and many adopters, having hidden the fact of adoption from their children, were unhappy to expose the secret. In addition, after the passage of this act, single mothers came under greater pressure to relinquish children to adoptive parents. In general, legal adoption helped children find more stability, but at the cost of losing touch with their natural parents. Fostering and adoption were preferable to life in institutions for most children. Workhouses, orphanages, and charity homes offered food and shelter, but lacked the personal touch. But this choice came with drawbacks. Fostering was inherently unstable, leading to children circulating through relatives, charities, and foster parents; multiple caregivers also sometimes led to custody disputes. Unregulated adoptions had much license for abuse; children became commodities, moved around until they reached a person willing to take them for small premiums. A  low-bidder approach to finding childcare seldom bodes well for the child. Fostering from institutions had more supervision, but the very rules to protect children meant that many went from home to home. And, in some cases, unions allowed adoptions too cavalierly; Behlmer points to Darlington, in northern England, which ‘felt no qualms about allowing respectable folk to tour the workhouse so that they might handpick promising youngsters’.51 Foster or adoptive parents could be the mainstays of illegitimate children; the happy examples above are a testament to the kindness of strangers. Yet even here, the disruptions were considerable and had a number of unintended consequences. Results Children passed from hand to hand had high mortality rates because their mothers did not nurse them. The physical toll on illegitimate children, in fact, was one of the major reasons the NC argued that unwed mothers should keep their children. Further, even those who survived infancy often suffered insecurity, hopelessness, and depression. To some extent, the evidence for the psychological costs comes from autobiographies and memoirs, but letters and institutional records also attest to children’s problems. Undoubtedly, caregivers also suffered when children they loved had to leave them; the fury

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of the P.s when their foster son was reclaimed by his mother and the grief of FH foster mothers both attest to this. But these were adults who chose, for whatever reason, to accept a temporary role in a child’s life. The children did not have a choice, and their sense of powerlessness and rage cast long shadows. Some children overcame the problems, but less robust children suffered serious trauma. Children without steady home lives engaged in difficult behaviour when they felt insecure or unwanted, due to anger and guilt. Hatcher attributed her aggressive behaviour in school to the constant movement in her life: ‘Auntie had quite a time placating angry mothers who complained I  had kicked their child … There was plenty for me to kick out about. I  was a misfit.’ Although Dorothy eventually put together a stable family life, she never entirely reconciled with her mother, who was ill at ease around her. Dorothy explained, ‘I did have a guilty feeling because I  could never feel for her in the same way as I  had for Auntie Bea.’ Hatcher additionally only overcame her strong sense of inferiority in old age.52 Rather than aggression, others escaped into fantasy. R was taken in by the CEWSS in 1893 at the age of eleven. Her father was dead, and her mother, aunt, and grandmother were all very poor. R was intelligent, but showed worrying signs of dishonesty, so the CEWSS took charge. They sent her out to service, and she went to two employers in quick succession, then to a Home for Girls out of Place in 1899, then to four more employers in the next two years. The main reason she lost jobs was her untruthfulness. The workers persisted in trying new places, but their hopes for her reclamation were not realised. In 1901, she ran away in the company of ‘a gentleman’, whom she attracted by telling yet more lies. The local CEWSS worker demanded, ‘Is it true that she has a cousin a leading physician out in Australia & that she has a sister living down here & a mother in London?’ R had invented a well-off family, the fantasy of almost all unwanted children. Although all girls in charities or workhouses had to go into domestic service, many were unsuited to its physical rigours and mental boredom. R compensated by inventing a glamorous past and then literally running away from the tedium.53 Aggression and fantasising were common, but a more frequent response was depression, especially for children rejected multiple times. Smith’s childhood, full of poverty and abuse, left her suicidal.

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She blamed her problems on having ‘no sense of security in my little world’ due to the constant movement. After she had married and had two children, she attempted suicide twice.54 Depression was common in men as well; like women, they became desperate after a series of rejections. Lionel Pearce grew up in Lancashire; he knew both his parents, and he and his mother lived with his maternal kin. Unfortunately, his mother died when he was young, and his aunts sent him to a charity, who then found a well-off couple to adopt him. Both adoptive parents were abusive, especially the mother. Thus, when he was twelve, they gave him to a society who sent him to Fairbridge School in Australia. Pearce had now been rejected by his maternal aunts and his adoptive parents, and most Australian employers did not want him either; as he put it, the ‘soul-destroying jobs dragged me lower and lower in self-esteem’. Love-starved, his major emotions were guilt and loneliness, and he swallowed a handful of pills in his twenties, fortunately not enough to kill him.55 The stain of illegitimacy also meant that adoptive parents worried the children had inherited mental or moral weaknesses. Those influenced by ideas of ‘bad blood’ or genetic abnormalities used this as an excuse to wash their hands of troublesome charges. If, after all, a child was congenitally ‘bad’, nothing could be done to help. Maynard never let Effie forget about her background. As Pamela Walker put it, ‘it became a burden she could never shed’. Effie’s desire for affection was obvious; she lost various jobs because she tried to treat her employers as parents. She also wanted to marry and have her own children, but Maynard feared she would pass on her ‘congenital’ stain and urged her to get emotional satisfaction from being a nursemaid. To this letter, Effie plaintively responded: I want … to be loved for what I am, not for what my parents have been … I cannot bring myself to face the fact of remaining a servant all my life with nothing but drudge, drudge, drudge, from morning til night and speaking of other people’s children, they are not like one’s own, are they? Have I been to you?

Given her past, Effie was unable to accept a life of servitude. Nor could she return to her biological mother, whose life would fall into ‘shame and disgrace’ if her existence were known. Little wonder that Effie wrote, ‘I don’t care now what happens to me.’56

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Although boys escaped the assumption that they would ‘fall’, like their mothers, they too had adverse reactions to rejection and insecurity, to the point of mental illness. Few institutions or adoptive parents could cope when the problems were severe. J was three and a half when the CEWSS adopted him in 1897. He was an orphan with one sister; neighbours had taken them in, but could no longer support the expense. J was separated from his sister and fostered to several different ‘parents’ between 1897 and 1906. He went to a series of children’s homes between 1906 and 1909, none of which wanted him either. After he reached adolescence, he bounced from employer to employer until 1915 when his record ended. J’s problems were both physical and mental. He was diagnosed with tuberculosis in 1900, but the main concern was over his mental state. A medical officer in 1907 described him as ‘decidedly below the normal standard … he is odd in his manner at times’. A case worker reported that he was ‘very peculiar in his manner. He refuses to join the other boys in their games preferring to stay in some corner and sing or talk to himself.’ The Society considered sending him to a home for ‘feeble-minded’ children, but J always did just well enough to avoid this fate. Indeed, his file has lucid letters from him, and he also apparently wrote to his sister weekly. J had lost both his parents, then his foster parents, then his sister, in quick succession. His ‘peculiar’ tendency to sing in corners by himself might well have been a way to disassociate himself from this painful reality. The CEWSS showed patience with him, but its workers could not diagnose him or see how their intervention contributed to his problems.57 As these examples showed, many negative emotions ultimately came from powerlessness and insecurity. Unsurprisingly, then, the most common emotion children expressed – even more common than depression – was a towering sense of outrage and anger, both with institutions and their ‘carers’. Bitter stories about the workhouse were common to children of wed and unwed parents alike, as were stories of abuse in charity homes.58 The fact that children believed (rightly or wrongly) that they were unwanted was the crucial factor. The profound unfairness of being rejected without cause led children who published autobiographies to retaliate in print. As Julie-Marie Strange put it, ‘Autobiography enabled a rebalancing of the scales.’ For instance, Rowlands/Stanley’s resentment of his stay in the workhouse led him to make accusations of beatings (plausible) and murders (implausible) during his stay;

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his autobiography was his revenge on both his family and workhouse officials. Hannah Brown’s fury at her upbringing was partly directed at the FH, which she regarded as inhumane, turning children into ‘nonentities’. Like many foundlings, she insisted that removing children from their foster mothers was unnecessary and cruel.59 Nevertheless, the main recipient of children’s rage was their mothers. Negative emotions about one’s mother  – for whom one should feel love and gratitude  – almost always mixed with guilt, no matter how badly the mother behaved. Smith’s anger at her mother lasted well into her adulthood, but she still sent her money. She recalled, ‘I could … feel no affection for her, yet I  did sometimes reply to her letters, reminding myself that after all she was my mother.’60 Brown raged against mothers who gave their children to the FH, calling women’s abandonment of their children ‘about the wickedest and cruellest wrong committed against helpless and innocent children’.61 Children directed their anger towards the parent they knew and who had failed them in obvious ways, perhaps because they associated nurturing with mothers, and that was what they missed most. In contrast, children rarely raged against their fathers, especially not women. Brown does not mention her father in her screeds, and she was typical. However, men were more willing to blame other men for their failures. Rowlands/Stanley did not discriminate by sex in his autobiography, painting an extremely negative portrait of his mother, uncles, and paternal grandfather.62 Men felt the loss of a male role model and a father’s practical help in getting apprenticeships and acquiring tools. As a result, they were also less censorious of their mothers. One man, taken into the FH before the First World War, only felt a sense of completion when he found his mother’s grave, saying, ‘it was the closest I’ve been to her  – well, since she passed me on that day in 1912’.63 Nalden, too, understood that his mother, a nursery maid deserted by her fiancé, had little choice. He ended the section in his memoir about her with the words, ‘May God have blessed and protected her.’64 Still, this forgiveness and understanding was not universal, as both Gordon Craig and Anthony West showed. These men were like children of divorce, angry at the custodial parent rather than the absent one. Those who sympathised with their mothers also tended to be only children, as favoured siblings made the discrimination harder

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to bear. Those singled out for mistreatment – male or female – were furious. Rowlands/Stanley was one of five illegitimate children of his mother, the only one she refused to rear. At the age of twenty-one, he visited her, and she was horrified, calling him ‘a disgrace to them in the eyes of the neighbours’. Elizabeth’s sexual history hardly gave her the right to express moral superiority, and her eldest son never forgot those words.65 As stated above, Smith’s mother took her brother Harry but left her daughter to child molesters; she also told Emma at one point, ‘Nobody will ever like you.’ Given this contrast, Emma’s bitterness was understandable.66 Such comparisons provoked powerful emotions that children negotiated with various levels of success. Many internalised the anger (turning it into guilt and depression), while others used it as fuel to succeed. But few children moved from place to place avoided all negative consequences; the pain of constant rejection was too powerful. Mothers and children: reclaiming the lost? Many unwanted children blamed themselves and wondered what they had done wrong to be given away. But what happened when children circulated back into the home? For the most part, societies have no records on children who return to their ‘friends’; their files stop at that point. The FH, though, granted mothers the right to apply to reclaim their children, and its letter books reveal the results in some cases. Only a small minority of mothers asked for their children’s return between 1860 and 1930; the percentage of children reclaimed averaged only 3.4 per cent a year.67 Still, the letter books disclose 247 different attempts by mothers in these years, and 153 left records of the full process. Of these, eighty-three mothers succeeded in having their children restored on the first try, while another four got the child after a second attempt (a total of 57 per cent). Fifty-five cases had refusals (36 per cent), while eleven others record no decision.68 Mothers who reclaimed their children, then, had to overcome a thorough investigation, and the challenges did not stop there. Children in institutions often dream about parents coming to claim them, but the reality was messier than the fantasy. Reclamations of children potentially included large disruptions in the children’s lives. Young children were probably unaware that their foster parents were not their biological parents, making the experience distressing. All the same, younger children adapted

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more readily. In April 1923, E. F. and her mother applied to get her daughter, who was under six years old, returned. E. F. wrote to the secretary in August with a positive enough report that he replied, ‘I am pleased … to hear that your little girl is going on so well, and is contented and happy.’69 Mrs W. G. B.’s application for her daughter, Bessie F., in 1924 had a similar result; she wrote in August ‘that the child is happy’. The secretary assured Mrs B. that ‘I felt sure she would be from the way she took to you at the first.’70 These children were under six when reclaimed; as they aged, they likely forgot their early childhoods away from their mothers. In contrast, some children had trying periods of adjustment. Mrs H. A. reclaimed her son in February 1925. He was school age, since he was living in the Hospital. In less than fifteen years, he had lived with his mother, then with a foster family, then the institution, and finally with his mother and stepfather. Unsurprisingly, his last transition did not go smoothly. H.  A.  apparently wrote for advice in July 1925; the secretary told her ‘it is not unusual for children who are restored to their mothers to be rather difficult at first’. He asked the headmaster of the school to write the boy to admonish him.71 Only a month earlier, he had to answer the letter of a grandmother, complaining about the behaviour of her granddaughter. He offered the only advice he could: ‘it does frequently occur that children are troublesome and very naughty … the only thing I can advise you to do is to persevere’.72 Children may well have tested their parents to see if they would be abandoned a second time; presumably, many calmed down when the parents ‘persevered’. In a few cases, more serious problems occurred. In February 1906, Mrs F.  asked to have her daughter restored to her. Jessie C. was older than usual, having already taken a situation, but she agreed to join her mother in March. Apparently, things did not go well; in August 1906, Mrs F. wrote to the hospital, asking if they had heard anything of her daughter. The FH could offer little help to her, since ‘when a girl is restored to her mother, all connection with the Hospital ceases’.73 Mrs T. had her daughter Janet restored after two tries, once in 1916 and then again in 1918. Unfortunately, after a year, Janet got into the same type of trouble her mother had faced many years before. In 1920, T. appealed for help for her illegitimate grandchild, but the governors decided only to give ‘a contribution’. The secretary added, ‘I am very sorry for all the trouble you have had, but you must realize that I  warned you of the

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danger of taking your daughter out of our charge.’74 Janet’s fate was precisely why the FH was uneasy about restoring girls. They worried that girls brought up in an institution were too ignorant to be free from restrictions and that inexperienced mothers could not control them. Introductions, by definition, occurred when the children were in their teens or older, so they had a higher likelihood of difficulties. In particular, the governors had good reason to fear that children would quit their positions in order to be near their families. In general, the Hospital was less concerned about boys. Young men knew that they had to support themselves; they, then, were less likely to abandon their jobs or training. In addition, many were in army bands, meaning they had to buy their ways out. Young women, in contrast, were servants who had only to give a month’s notice, and they were also more likely to hope that their relatives would keep them. Still, the problems with unrealistic expectations were universal; as the secretary wrote to Amelia S. in 1922: ‘it is not always wise for relatives of our boys to get into touch with them … for they know very little of each other and it is difficult for the boys to return the affection which the relatives often feel for them’.75 As with reclamations, some introductions went well. In January 1919, Mrs E. B. asked to meet her daughter. R. H. Nichols, the secretary during the 1920s, discovered that she had since married, and the two wrote to each other soon afterward. The daughter wrote a positive evaluation, and Nichols responded, ‘I am very pleased to hear that you have met your mother and that it is likely to prove a success.’76 In 1920, Nichols put Herbert O., who lived in Canada, in touch with both his grandmother and mother. Their correspondence was cordial enough that Nichols believed he needed to warn both Herbert and his relatives that the boy needed to stay abroad. Nichols assured the young man that ‘if you work hard for the next year or two perhaps things will improve and you can come over for a holiday’.77 Meeting relatives later in one’s adolescence was not always problematic, though one cannot know how these relationships developed. All the same, the records disclose more negative reactions than positive when meetings occurred after the child came of age. In 1869, James W. met his mother and grandfather after having taken a position. The meeting had been unpleasant, and James responded with a poor work performance. The secretary counselled the grandfather

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to be in less of a hurry, and pointed out that the boy’s mother had been ‘too harsh and impatient’. He also warned them both that the master’s ‘kindness must not be abused, neither must the boy be upset’.78 Such instances involving boys, though, were rare. In the late nineteenth and early twentieth centuries, the majority of boys went into the military, and relatives had limited contact with them. The FH also emigrated boys in higher numbers than girls. These boys, too, were miles away. The FH’s main fear, then, was that they might come back to Britain, and it did its best to discourage this.79 As a result, the major problems with introductions were with daughters, the vast majority of whom were in service in Britain. All three FH secretaries between 1860 and 1930 (John Brownlow, W. S. Wintle, and Nichols) coped with unwanted results when girls newly installed as servants began to know their relatives. Alice B.’s mother and stepfather, the B.s, got permission to write to her in 1873 when she was working for Mr and Mrs G. In the summer, Wintle had a series of letters from the G.s, complaining about Alice’s behaviour, which Wintle blamed on the influence of her half-sister, Anne. He wrote a stern letter to Anne, berating her for her ‘highly improper allusions to Mr and Mrs G[…]’ He warned that if more disruptions followed, the committee ‘no doubt will distinctly forbid Alice holding any communication with any one until her Apprenticeship has expired’.80 Indeed, girls meeting their relatives sometimes led to mini-dramas the secretaries struggled to resolve. In April 1919, Mrs S. M., whose sister’s child, Ruth N., was old enough to go into service, asked to meet her. S.  M.  had inquired about her niece earlier, but Nichols had advised her to wait. Ruth also queried the secretary about relatives in May 1919, and Nichols again counselled patience, because Mrs Sturgis, her employer, evaluated her work as ‘erratic’. The FH at last relented in July 1919, and the two met in August. Nichols warned Ruth that her aunt was ‘not in a position to keep you’, but the governors had agreed to the introduction in the hope that ‘the fact that you will now have a relation, whom you can visit occasionally, will be a pleasure to you’. Mrs M. wanted to take Ruth on a holiday in mid-August, but by late August she was worried about her niece, a concern that proved well-founded when Ruth was fired in September. After much waffling, Sturgis offered to let her stay, but this arrangement did not hold. In May 1920, M. wrote to Nichols that Ruth had again left her position; she had apparently

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also rebuffed any further help from her aunt. Nichols replied that he was sorry ‘that Ruth … has proved so ungrateful after all the kindness you have shown her. I am afraid, however, that she must go her own way.’81 No more letters about Ruth appear; in this case, the introduction had exacerbated Ruth’s unsteadiness rather than settled her. An equally vexed case began in 1922. In April, Mrs B. N. A. asked to meet her daughter, Olive L., who had just gone into service. The Committee agreed, and Nichols arranged a meeting at the FH offices in May. The two got along well at first, and Olive immediately asked to be moved to a situation nearer her mother. Nichols was wary, writing they should wait ‘until you are both quite sure to have made up your minds’, but he was too late. Olive had given notice, as she and her mother planned to go on holiday together. Nichols disapproved, but told B. N. A. that they would reassess the situation after the holiday. Events bore out Nichols’s concerns. In June 1922, he wrote to Olive: ‘I am very surprised indeed … to hear that you have gone to live with your Foster Mother … if I thought you would have behaved in this way I should not have introduced you to your mother.’ Whatever had gone wrong during the holiday, Olive’s choice to go to the mother who had nurtured her, rather than her biological one, was telling. Nichols arranged for Olive to get another job; in the meantime, he wrote soothingly to B. N. A., ‘I think you must make a little allowance for the girl having regard to the very exceptional circumstances and the excitement she has been going through.’ Not until December did B. N. A. tell Nichols that she and Olive were ‘on friendly terms again’. Nichols replied, ‘I hope that matters will go more pleasantly now. I feel sure that they will if you do not try to go too fast.’82 Both of these extended examples show the difficulties of meeting one’s relatives during mid-adolescence. Olive and Ruth were around sixteen when they met their mother and aunt, respectively, and both reacted by trying to become too close too quickly. They then both had negative reactions when the fantasy relatives in their heads turned out to be real, complicated people, and, worse, virtual strangers. Although both young women may have reached a rapprochement with their relatives, the process was bumpy and disillusioning. One can sympathise with B. N. A., anxious to know her daughter intimately, but also with Olive, who, when upset, turned to her foster mother. Child circulation meant that one could go

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home again – but the experience could lead to emotional upheaval for both mother and child. Conclusion Illegitimate poor children were not always friendless or without family, but their lives lacked even the tenuous stability of most working-class children. For some adults, unwanted babies offered business opportunities, and the infants went from place to place and from home to home in rapid succession. For others, adoption meant making the child one of the family without any financial reward. But most people who circulated children fell between these two extremes. Natal relatives may have resented the presence of illegitimate relatives, but they moved children around in an effort to avoid the workhouse. Foster parents felt affection for their wards, but could not keep them without assistance. Indeed, Margaret Penn’s happy adoption, mentioned earlier in the chapter, was the result of her father’s agreement to pay a weekly sum to defray the expenses. Thus, the circulation of children also usually meant the exchange of money; without payment, all these children would have been in institutions. A major influence was women’s low pay and the prominence of domestic service. Women’s labour markets meant both that young mothers had to foster out their children and that older women needed the money. Child circulation was women’s business by default, as the fathers were usually absent. Many of the memoir writers who experienced wrenching transitions complained of feeling inferior or unwanted. They reacted with aggression, fantasies, and ‘flightiness’, though in some cases, these were temporary phases. Still others had much more serious psychological conditions  – they became suicidal or ‘peculiar’. Though mothers may not have wanted to give their children away, children nevertheless resented their mothers’ choices. Children’s relationships with ‘unnatural’ mothers suffered from guilt or anger. Hatcher, who did not blame her mother, felt guilty about not loving her enough. Smith was furious with her mother and took years to forgive her. The absent fathers received less criticism, though a small amount of support from them might have made all the difference. Maternal relatives or stepfathers who refused to help also shared the blame, as did abusive foster or adoptive parents. On the whole, however, foster parents

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had a more positive, if temporary, influence on children’s lives than legal records often show. Like orphans, illegitimate children relied on the kindness of strangers. Would children have been better off left in one place? Were the transitions themselves more of a problem than the lack of parents? Without fostering, children remained in the workhouse or charity homes until they went to work. Mortality was high in institutions, since small infants suffered from the lack of nursing. The modern solution of having open adoptions was not an option in this period. Possibly, children became tougher and more self-reliant when forced to deal with undesirable changes, but these lessons came at a cost. More robust children made a virtue of necessity, but others never recovered. Still, parsing out the reasons for a child’s alienation or unhappiness is an impossible task. This was not just the result of family dynamics, but the wider social world of these children. Not only were many unwanted by their families, they also faced social discrimination at school, at work, and in dealing with the State. Notes 1 N. Milanich, Children of Fate: Childhood, Class, and the State in Chile, 1850–1930 (Durham: Duke University Press, 2009), pp. 161–70. 2 L. Murdoch, Imagined Orphans:  Poor Families, Child Welfare, and Contested Citizenship in London (New Brunswick: Rutgers University Press, 2006), pp. 92–141; G. Behlmer, Friends of the Family: The English Home and its Guardians, 1850–1940 (Stanford:  Stanford University Press, 1998), pp. 272–315; P. Cox, Bad Girls in Britain: Gender, Justice, and Welfare, 1900–1950 (Basingstoke: Palgrave, 2013), pp. 122–32. 3 Milanich, Children, pp.  168–70; Murdoch, Imagined Orphans, pp.  67–119; E.  Buettner, Empire Families:  Britons and Late Imperial India (Oxford: Oxford University Press, 2004), pp. 110–87. 4 G. Behlmer, Child Abuse and Moral Reform in England, 1870–1908 (Stanford: Stanford University Press, 1982); Friends, pp. 272–315; L. Jackson, Child Sexual Abuse in Victorian England (London: Routledge, 2000). 5 Behlmer, Friends, pp. 285–99; J. Keating, A Child for Keeps: The History of Adoption in England, 1918–1945 (London:  Palgrave Macmillan, 2009), pp. 197–205. 6 The Times (4 June 1874), p. 11; (12 June 1874), p. 11; Illustrated Police News (20 June 1874), p. 2; Proceedings of the Old Bailey Sessions Papers Online (hereafter POBO), 8 June 1874, Case #434.

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7 R. Rocker, The London Years (London:  Robert Anscombe and Company, 1956), p. 98. 8 The Times (13 January 1893), p. 5; (1 February 1893), p. 8; Standard (22 December 1892), p. 6; (13 January 1893), p. 6; (1 February 1893), p. 6; 9 Times Law Report (1892–3) 226–8. 9 C. Chaplin, My Autobiography (New  York:  Simon & Schuster, 1964), pp. 20, 35–40, 59, 87; D. Robinson, Chaplin: His Life and Art (London: Collins, 1985), pp. 10–36; K. S. Lynn, Chaplin and His Times (New York: Simon & Schuster, 1997), pp. 19–50. 10 The Times (7 January 1896), p. 3. 11 The Times (6 March 1901), p. 9; POBO, 25 March 1901, Case #278. 12 Centre for Northwest Regional Studies (hereafter CNRS), Elizabeth Roberts Collection (hereafter ERC), Interview with Mrs W4P, 44. 13 Children’s Society Archives, Bermondsey (hereafter CSA), CS074, 1896. For several other examples, see Cox, Bad Girls, pp. 109–34. 14 E. Smith, A Cornish Waif’s Story: An Autobiography (London: Popular Book Club, 1956), p. 79. 15 B. Masters, Getting Personal: A Biographer’s Memoir (London: Constable, 2002), pp. 46–9. 16 P. Snow, Neither Waif Nor Stray: The Search for a Stolen Identity (Boca Raton: Universal Publishers, 2000), pp. 130–51. 17 D. Hatcher, The Workhouse and the Weald (Rainham: Meresborough Books, 1988), pp. 7–29; quote from p. 27. 18 J. Hitchman, The King of the Barbareens (London:  Putnam, 1960), p. 117. 19 C. Nalden, Half and Half: The Memoirs of a Charity Brat, 1908–1989 (Tauranga: Moana Press, 1989), pp. 31–71, 215–21, quote from p. 219. 20 Western Mail (22 June 1869), p. 2. 21 The Times (15 March 1902), p. 5; POBO, 10 March 1902, Case #253. 22 Smith, Cornish Waif, pp. 30–71, 86–111. 23 The Times (13 September 1895), p.  9; (16 September 1895), p.  7; POBO, 9 September 1895, Case #672. 24 Behlmer, Child Abuse, pp.  150–7; N.  Middleton, When Family Failed: The Treatment of Children in the Care of the Community during the First Half of the Twentieth Century (London: Victor Gollancz, 1971), pp. 224–40. 25 D. Derrick, ed., Illegitimate:  The Experience of People Born Outside Marriage (London:  National Council for One Parent Families, 1986), p. 19. 26 Behlmer, Friends, pp. 288–9. 27 C. Oliver and P. Aggleton, Coram’s Children: Growing up in the Care of the Foundling Hospital, 1900–1955 (London: Coram Family, 2000), p. 18; G. Pugh, London’s Forgotten Children: Thomas Coram and the Foundling Hospital (Stroud: Tempus, 2007), pp. 119–21; S. Williams,

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‘ “A good character for virtue, sobriety, and honesty”: Unmarried mothers’ petitions to the London Foundling Hospital and the rhetoric of need in the early nineteenth century’, in A. Levene, T. Nutt, and S. Williams, eds, Illegitimacy in Britain, 1700–1920 (Basingstoke:  Palgrave Macmillan, 2005), 86–101; T.  MacKenzie, The Last Foundling:  The Memoir of an Underdog (London: Pan Macmillan, 2014), pp. 24–7. 28 London Metropolitan Archives, Foundling Hospital Letter Books (hereafter LMA, FHLB), A/FH/A/6/2/58, 1925, 15 June 1925, 421; and 13 July 1925, 548 (for quote). 29 LMA, FHLB, A/FH/A/6/2/32, 1895–6, 26 February 1896, 512. 30 LMA, FHLB, A/FH/A/6/2/42, 1912–13, 27 August 1913, 858 (for quote); and 10 September 1913, 887. 31 LMA, FHLB, A/FH/A/6/2/52, 1921–2, 18 November 1921, 728; 24 November 1921, 750; 28 November 1921, 778; 30 November 1921, 789; 30 November 1921, 790; 12 December 1921, 821; 6 January 1922, 932; 6 January 1922, 933; A/FH/A/6/2/53, 1922, 3 February 1922, 50; 6 February 1922, 56; 24 April 1922, 399; 2 August 1922, 872. 32 LMA, FHLB, A/FH/A/6/2/53, 1922, 6 April 1922, 342; 2 May 1922, 440; 31 May 1922, 578; 31 May 1922, 587; 31 May 1922, 589. 33 LMA, FHLB, A/FH/A/6/2/48, 1919, 26 May 1919, 507; 18 June 1919, 602; A/FH/A/6/2/49, 1919–20, 9 December 1919, 287; 9 March 1920, 769; 10 March 1920, 779; 10 March 1920, 781; 16 March 1920, 797; 18 March 1920, 818; 19 March 1920, 831; 23 March 1920, 859 (for quote). 34 CSA, CS700, 1889–1911. 35 M. Penn, Manchester, Fourteen Miles (Firle: Caliban Books, 1979), 5–9; Murdoch, Imagined Orphans, pp. 67–119; Keating, Child, pp. 6–18; E.  Walker, ‘Adoption, narrative, and nation, 1800–1850:  The case of William Austin’, Journal of British History 53:4 (2014), 960–91. See also Berrow’s Worcester Journal (8 January 1885), p. 3. 36 The Times (15 December 1892), p. 11; (19 December 1892), p. 12 (for quote); (28 December 1892), p. 11; (14 January 1893), p. 13; Western Mail (16 December 1892), p. 7; (20 December 1892), p. 5; POBO, 9 January 1893, Case #207. 37 D. Cohen, Family Secrets:  Shame and Privacy in Modern Britain (Oxford: Oxford University Press, 2014), pp. 130–6. 38 CSA, CS015, 1896–1936. 39 NA, MEPO 3/236A, Police Reports on case of Emily Stanton, October 1913; The Times (13 November 1913), p. 3. 40 The Times (30 September 1879), p. 9. 41 The Times (6 April 1891), p. 4; (9 March 1891), p. 3; (8 May 1891), p. 12; (9 May 1891), p. 14; POBO, 4 May 1891, Case #423. 42 Manchester Guardian (21 May 1907), p. 12; (23 May 1907), p. 6; (29 May 1907), p. 12; (16 July 1907), p. 9.

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43 See The Times (22 July 1930), p. 7. 44 Western Mail (20 November 1901), p. 6. 45 Behlmer, Friends, pp. 295–6. 46 Behlmer, Friends, pp. 294–7. 47 Cohen, Family Secrets, p. 137. 48 O. Renier, Before the Bonfire (Shipston-on-Stour: P. Drinkwater, 1984), p. 2; Keating, Child, p. 141. 49 P. Walker, ‘Adoption and Victorian culture’, History of the Family 11:4 (2006), 211–21. 50 Keating, Child, pp. 123–5. 51 G. Behlmer, ‘What’s love got to do with it:  “Adoption” in Victorian and Edwardian England’, in E.  Wayne Carp, ed., Adoption in America:  Historical Perspectives (Ann Arbor:  University of Michigan Press, 2002), 86. 52 Hatcher, Workhouse, pp. 17–18, 90–3. 53 CEWSS, Case Papers, www.hiddenlives.org.uk Case #3821, 1893–1901. 54 Smith, Cornish Waif, pp. 22 (for quote), 177, 180. 55 L. Pearce, Feathers of the Snow Angel: Memories of a Child in Exile (Freemantle:  Freemantle Arts Centre Press, 2002), pp.  115 (for quote), 191–2. 56 Walker, ‘Adoption’, 212 and 217–18. 57 CEWSS, Case Papers, www.hiddenlives.org.uk, Case #6001, 1897–1915. 58 Smith, Cornish Waif, p.  22. For examples from Barnardo’s, see J. Teichman, Illegitimacy: An Examination of Bastardy (Ithaca: Cornell University Press, 1982), pp. 112–16. 59 J. Strange, Fatherhood and the British Working Class, 1865–1914 (Cambridge:  Cambridge University Press, 2015), p.  150; D.  Stanley, ed., The Autobiography of Henry Morton Stanley (Boston: Houghton Mifflin, 1937), pp.  9–68; H.  Brown, The Child She Bare (London: Headley Bros Publishing Ltd, 1918), p. 49; Cox, Bad Girls, pp. 107–34. 60 Smith, Cornish Waif, pp. 168 (for quote), 177–9. 61 Brown, Child She Bare, p. 173. 62 Stanley, Autobiography, pp. 7–68. 63 Oliver and Aggleton, Coram’s Children, p. 46. 64 Nalden, Half and Half, p. 30. 65 Jeal, Stanley, pp. 22–5, 49–51, quote from p. 50. 66 Smith, Cornish Waif, p. 79. 67 J. Sheetz-Nguyen, Victorian Women, Unwed Mothers and the London Foundling Hospital (London:  Continuum International Publishing Group, 2012), pp. 183–7; Pugh, London’s Forgotten Children, pp. 85, 102–3; G.  Brunet, ‘Children abandoned and taken back:  Children, women, and families in dire straits in Lyon in the nineteenth century’, Journal of Family History 36:4 (2011), 431.

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68 Sheetz-Nguyen, Victorian Women, p. 183; and ‘Calculus of respectability: Defining the world of Foundling Hospital women and children in Victorian London’, Annales de Demographie Historique 2 (2007), 26; Pugh, London’s Forgotten Children, p. 84. 69 FHLB, A/FH/A/6/2/54, 1922–3, 1 May 1923, 905; A/FH/A/6/2/55, 1923–4, 2 August 1923, 314. 70 FHLB, A/FH/A/6/2/56, 1924, 24 June 1924, 712; 27 June 1924, 733; 5 August 1924, 907; 11 August 1924, 936. 71 FHLB, A/FH/A/6/2/57, 1924–5, 10 December 1924, 408; 9 February 1925, 782; 13 February 1925, 801; A/FH/A/6/2/58, 1925, 13 July 1925, 546. 72 FHLB, A/FH/A/6/2/58, 1925, 9 June 1925, 394. 73 FHLB, A/FH/A/6/2/38, 1905–6, 5 February 1906, 552; 17 March 1906, 629; 21 March 1906, 633; 23 March 1906, 640; 24 August 1906, 884. 74 FHLB, A/FH/A/6/2/45, 1916–17, 8 August 1916, 385; 27 September 1916, 477; 30 September 1916, 489; A/FH/A/6/2/48, 1919, 26 February 1919, 179; A/FH/A/6/2/50, 1920, 21 June 1920, 257. 75 FHLB, A/FH/A/6/2/52, 1921–2, 13 January 1922, 962; 13 January 1922, 964; 16 January 1922, 966; 17 January 1922, 973. J. Gledhill, ‘Coming of age in uniform: The Foundling Hospital and British army bands in the twentieth century’, Family and Community History 13:2 (2010), 114–27. 76 FHLB, A/FH/A/6/2/47, 1918–19, 7 January 1919, 951; 8 January 1919, 983; 1 July 1919, 664. 77 FHLB, A/FH/A/6/2/49, 1919–20, 16 March 1920, 807; A/FH/A/6/2/50, 1920, 27 April 1920, 21; 27 April 1920, 24. 78 FHLB, A/FH/A/6/2/16, 1868–70, 23 January 1869, 253. 79 P. Bean and J. Melville, Lost Children of the Empire (London: Unwin Hyman, 1989); and J.  Parr, Labouring Children:  British Immigrant Apprentices to Canada, 1869–1924 (London: Croom Helm, 1980). 80 FHLB, A/FH/A/6/2/19, 1873–5, 3 June 1873, 26; 2 July 1873, 43; 2 July 1873, 44. 81 FHLB, A/FH/A/6/2/48, 1919, 3 April 1919, 331; 7 April 1919, 342; 23 April 1919, 390; 26 May 1919, 506; 26 July 1919, 773; 28 July 1919, 778; 29 July 1919, 779; 1 August 1919, 792; 6 August 1919, 815; 6 August 1919, 815; 15 August 1919, 857; 27 August 1919, 892; 30 September 1919, 987; A/FH/A/6/2/49, 1919–20, 20 October 1919, 77; 22 October 1919, 97; A/FH/A/6/2/50, 1920, 11 May 1920, 89. 82 FHLB, A/FH/A/6/2/53, 1922, 21 April 1922, 391; 3 May 1922, 447; 3 May 1922, 448; 5 May 1922, 457; 9 May 1922, 463; 22 May 1922, 533; 23 May 1922, 539; 31 May 1922, 583; 7 June 1922, 611; 9 June 1922, 621; A/FH/A/6/2/54, 1922–3, 27 December 1922, 465; 2 January 1923, 497.

8

‘Bad blood’? Social discrimination The legal complications of illegitimacy were considerable, as were the difficulties of family life; the many times illegitimate children circulated between caregivers was only one indication of that. For poor children, the disadvantages of illegitimacy were material, even deadly. Nevertheless, most of these children survived into adulthood, married, and had families of their own. After all, the majority of Britons struggled against various ills – poverty, bad health, the deaths of loved ones – at some point in their lives. How much difference, then, did illegitimacy make in the larger picture? To some degree the answer varied by person, but at times the problem was subtle – and not so subtle – social discrimination. From the time illegitimate children came into the world, their difference was apparent. The registrar noted their illegitimacy when their families registered their births, and the baptisms usually lacked fathers or paternal relatives. The father’s name was left blank on the birth certificate, so many had confusion over their last names. Lack of provision often led to branding as a charity child or pauper, doubling the humiliation. All these things meant that children faced discrimination, but also that they assumed their illegitimacy was the reason for their problems. Thus, illegitimacy loomed larger in their lives than it otherwise should have done. The discrimination was real, but children’s reactions varied in how much they internalised the guilt and shame of their position. ‘Bastard’ children Though their birth certificates made their status clear, most children did not realise they were different until they heard the term ‘bastard’

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for the first time, often around school age. The word pointed to their mothers as unrespectable and themselves as tainted. Emma Smith realised she and her brother were stigmatised when she was five. She explained, ‘I did not know the meaning of the word “bastard”. I  only know that the angry tone in which the word was always used conveyed … that Harry and I were in some dreadful mysterious way different from other children.’1 Betty Stokes, born in 1912 in rural Scotland, reported, ‘I well remember the word “bastard” being shouted at me in the playground. It was a constant reminder of what I  was.’2 Children’s chances of being called a ‘bastard’ at some point was high unless they lived with parents who passed as married. Workhouses regularly categorised children living there as ‘bastard’ or ‘illegitimate’. Laws about children of unwed parents had the name ‘bastardy laws’, a major grievance. As one mother demanded, ‘What right has the law to term any child a “bastard”? It is a cursed disgrace to a Country whose people call themselves Christian.’3 Once a child knew he or she was a ‘bastard’, what did this mean? The answers varied widely. Some children were simply more resilient, or better able to live in denial, than others. Still, the historian can identify factors that predicted how children dealt with such epithets. Most important, children who shrugged off the designation were wanted by their families. George Hewins, secure in the love of his great-aunt Cal, barely mentioned his status; similarly, Mrs C3P, brought up by her beloved aunt and mother, had few concerns about it. Time was also important; illegitimate children from the twentieth century were born in a less censorious age. J. E. Bowman (born 1920), insisted that ‘I was born of love and I  am proud of it.’4 Children of radical parents were socialised not to care about respectability. Elsa Lanchester, born to purposely unwed parents in 1902, insisted she ‘found it rather glamorous to be a bastard’.5 Rather than avoiding the term, she embraced it, helped by the fact that her profession (acting) accepted unconventional relationships. In contrast, the term was debilitating to children who already felt unwanted. Cookson and Smith were horrified, partly because they had believed their grandparents were their parents and partly because they were dismayed at the actual identity of their mothers. Cookson was appalled that ‘our Kate’ was her mother. An unmarried mother was bad enough; an alcoholic one was ‘unbearable’.6 Smith was unhappy that Maud was her mother, rather than her

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aunts Susan and Ann, whom she knew:  ‘But Maud! We hardly knew her, having only seen her a few times in our lives.’7 A mother who was a virtual stranger was disorienting. The shock was compounded because the child was often the last to know. Cookson’s insecurity intensified as she realised her neighbours knew before she did. With each revelation, the foundations of her childhood shifted. ‘Such’, she concluded, ‘is illegitimacy’.8 Children of unwed parents felt inferior, and this was reinforced both by poverty or by adult concerns about ‘bad blood’, notions that grew in strength in the twentieth century. Anyone influenced by Social Darwinism potentially saw immorality as inherited, something indelible and unavoidable. Crucially, illegitimacy was both a genetic defect and a moral failing. Thus, the child was ‘doomed’ by heredity, but also to blame for any sins committed. One woman, born in 1912, had to deal with the prejudices of her school: ‘I was made a little scapegoat if anything went wrong in class, then I heard them say one day after I had slid down the rail leading to the tennis court, “Oh, it is her bad blood I expect, she should not be here really”.’9 The assumption that sexual immorality was hereditary also led to legal and financial losses. Gloria Cottesloe, born in 1927, was adopted when she was two years old, but never took the surname of her adopted parents: ‘They did eventually formally adopt me, but this bigoted old solicitor said to them, “Bad blood will out” and he probably persuaded them not to give me their name’, she surmised.10 ‘Bad blood’ was inherited and incurable; a similar situation was children with physical or mental disabilities. They, too, caused shame in their families and suffered unkind names like ‘feeble-minded’ or ‘morons’.11 Children were not at fault for either condition, yet they bore much of the derision and fear. One difference, however, was that the ‘bad blood’ of illegitimacy was a moral taint as much as a physical one. Many people feared those with disabilities passing on their ‘bad genes’, but they did not assume that a physically disabled girl was promiscuous – though a mentally deficient one might be. Similarly, fears of hereditary illegitimacy were not gender-neutral, as only girls were potential unwed parents. The Mental Deficiency Act of 1913 showed the overlap between these two conditions; a woman who gave birth to a single illegitimate child in the workhouse could be certified, while the unwed father walked free. As one woman who gave up

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her baby in the mid-twentieth century explained, ‘Had my [baby] been a boy I  would never have parted with him but it was so impressed upon me that a girl would carry the stigma of illegitimacy all her life that I  succumbed to pressure.’12 This gender distinction, of course, made any assumption of heredity absurd; surely inherited traits passed to all children, male or female. As was common, the reference to ‘bad blood’ was a way to give a scientific gloss to prejudices that pre-dated Social Darwinism. Unsurprisingly, then, believers in the power of genetics continued to ignore unwed fathers’ parts in the production of illegitimate children. Still, boys as well as girls suffered from many of the effects of illegitimacy, especially the sense of shame and guilt. Most accepted that something must be wrong with them, though they often did not understand what they had done. These feelings interacted with children’s confusion about the absence of half of their relatives. Cookson insisted that though her mother tried to comfort her, she could not, for she could not know ‘the shame of having no da’.13 The loss of any adopted or foster parents reinforced these feelings. One former foundling (born 1921)  explained his confusion about being taken from his foster parents to go back to the FH: ‘Nobody tells you why it happened … you’d think “what have I  done?” and begin to feel guilty that you’d done something to cause it.’14 Children migrated away from their families expressed the same emotions; they must have done something wrong to be sent away.15 As stated in Chapter 6, girls, especially, worried about inheriting their mothers’ weakness. June, born ca. 1916 and adopted by the FH, found sex terrifying. Dates with her future husband provoked anxiety: ‘I wouldn’t sit next to him. I’d sit here … if he kissed me, I was petrified … he was the only person I ever went out with. I was too frightened.’16 Boys, on the other hand, spoke less about sexual fears, though many felt guilt related to their mothers. John, a foundling in the 1930s, explained that ‘I can never remember anyone saying to me, “You were born out of wedlock.” But it was made very, very clear that our mothers had done something wrong, and that we were also to blame. We were guilty and we felt guilty.’17 No men expressed fears of continuing the line of illegitimacy into the next generation, but the taint of guilt by association lasted well into the adult lives of children of both sexes.

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Illegitimacy was hardest to bear when combined with pauperism, and many children were desperately poor. Lacking a male breadwinner was part of the problem, but an unwed mother was also not a desirable employee. She was unrespectable and thus not a first choice as a servant, nor was she appropriate as a teacher or nurse. As the NC put it, ‘There is little employment for [unmarried mothers] who have previously been in charge of young children.’ Those who did regain jobs at times found that ‘some employers … endeavour to save their pockets by penalising the employee on the grounds of her previous moral lapse’. Those few allowed to keep their children with them also had to take lower wages.18 Many mothers had to choose between workhouses, charities, or living on the edge of starvation. Unsurprisingly, poverty was a major topic of autobiographies by illegitimate children. Louie Stride’s mother earned a paltry sixpence an hour cleaning shops in Bath, and the two survived only because her mother stole some of the goods, and, eventually, became a prostitute ‘in a quiet sort of way’. Still, Louie ‘was in a perpetual state of hunger’.19 Numerous court cases also described the poverty of children of unwed mothers. Mary Sheenan, mother of an eleven-month-old infant in 1866, took her young child with her to sell matches in the street in February. She stayed out until 1:00 a.m. because she had not sold enough to pay for lodgings. When she saw the baby was ill, she went to the police station, but she was too late. Her child died from the exposure.20 Despite these structural economic disadvantages, authorities tended to be unsympathetic to mothers who ‘neglected’ children. Women’s determination not to go to ‘the house’ factored into these cases. The mother of Alice Orliff, who was almost two when she died, obtained the right to take her child to an infirmary, but ‘the officials would not take the child unless the witness went into the workhouse, and this she would not do’. The mother earned only eight shillings a week as a rag sorter, and her lodgings and board were six shillings, sixpence a week. Alice soon died from her diet of ‘tinned milk, cakes, bread, and sop’. Rather than condemning the workhouse rules, the coroner’s jury censured the mother.21 Nor, as Chapter  2 made clear, did authorities excuse desertion; mothers were not to escape the consequences of their ‘falls’. That this

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doomed some children to suffering did not change the policy. Upon leaving the St Matthews Workhouse in Bethnal Green in 1869, Hannah Sheppard left her two children in her lodgings and disappeared. When the landlady took the children to the workhouse, the RO tracked down Hannah. Her defence was that she was looking for work, but the magistrate sent her to gaol for a month. Numerous legal and social restrictions meant that single mothers could not earn a decent living, and their children suffered the consequences.22 Poverty was combined with difficulties for finding suitable lodgings because single mothers were not desirable tenants, both due to their moral reputations and their high default rates. Mary Lewis was twenty when she threw her fourteen-month-old child into the Severn in December 1917. She committed the crime after wandering around all night, having not been able to find any lodgings. The jury let her off the murder charge, but she got three years’ penal servitude for manslaughter.23 Stride wrote that her mother migrated constantly, and one move took them to a place near a sweet shop. The next day, the women neighbours ‘attacked my mother verbally and in person called her a “Scarlet Woman”, and they threw her goods out in the yard’. Their main complaint was her effrontery in ‘coming to live in amongst a lot of decent people with a Bastard’. Stride remembered it as ‘one of the most humiliating days of my life’.24 The poor had razor-thin margins for error; illness, alcoholism, or an economic downturn led to trouble. Illegitimacy added another burden to already struggling families. Generally, though, families with male breadwinners had both good and bad times, and could hope for improvement when the eldest children began to earn. A child without a male breadwinner rarely experienced those better times. Poverty was so pervasive in the misery of illegitimate childhoods that it is hard to disentangle from other ills. After all, children of widows or orphaned children also experienced dire need. As Jane Humphries argues, both illegitimate and orphan boys had less schooling, needed more parish help, and went to work earlier, due to lack of money and ‘running out of kin’.25 The only difference was the greater likelihood of widows receiving charitable help or out-relief. What was most different about illegitimate children, then, was the way they internalised the blame for their poverty. Because they were destitute, illegitimate children record periodic stays in the workhouse or charities in their autobiographies,

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and this entailed more humiliation. Smith’s happiness at leaving the workhouse ‘was clouded over at times by the ridicule of other children who, because of my cropped head, would call after me, “Old Union maid”.’26 Legitimate children who suffered from ragged clothing or workhouse stays recorded similar incidents. Anything that marked a child as different allowed other children to deride them. Such ‘moments of denial’, in Caroline Steedman’s phrase, were – and are – common.27 Red hair, glasses, being too tall or overweight could all lead to bullying. Still, children outgrew their physical problems, and poverty could also be temporary. In contrast, illegitimacy was permanent. When children aged, they could move away from those who knew them, but then they had to hide their pasts. Furthermore, discrimination against illegitimates was reinforced by adult prejudices and the laws, both local and national. Its ability to wound, then, was long-lived, and doubly so when combined with pauperism. Names and identities Unlike poverty, confusion over names was largely limited to illegitimate children. A  child with his/her mother’s maiden name was obviously born out of wedlock. Stride explained, ‘I just did not like being known by it, and thereby letting everyone know I was a Bastard child.’ When her mother married, she took her stepfather’s name.28 But a remarriage by the mother did not always solve the problem. Emma Smith’s stepfather refused to take her. During one of her brief stays with them, Emma noticed how the stepfather’s name overrode blood connections:  ‘Harry I  knew to be my own special brother in a way the others weren’t, but even he was separated from me in that he sat at table with the others and bore the surname O’Brien.’29 Problems over the correct last name lasted for years. A woman in 1888 went to the magistrate to ask if she was legally married. As she was born before her parents’ marriage, her legal name was her mother’s maiden name, but she had used her father’s name in the ceremony. The magistrate assured her that ‘Being illegitimate you had no name … Therefore, the marriage is perfectly good.’30 This answer was both reassuring and insulting at the same time. Names were multiple, confusing, and overlapping. Cookson grew up as Katie McMullen, the surname of her step-grandfather.

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Her mother’s name was Kate Fawcett, and she was baffled when she overheard her mother telling this to a schoolmistress. In addition, her mother married, which meant that her surname changed to McDermott. To confuse matters further, her mother had listed her biological father’s name on the birth certificate, and his last name was Davies. By the age of seventeen, Cookson had four possible surnames  – McMullen, Fawcett, Davies, and McDermott  – and the names of her parents were the two she almost never used. Her marriage to Tom Cookson finally ended the confusion.31 Dorothy Sayers gave her son John Anthony the name ‘White’ (his father’s surname) to hide his identity while he grew up with her cousin. She later told him she had adopted him; though she did not do this formally, he nevertheless took the name of his stepfather, Fleming. Neither of the two surnames he used in his life was his legal name.32 Both men and women could ‘make a name’ for themselves, though this was easier for men, given their wider choice of professions. When he went to the United States, John Rowlands changed his name to Henry Stanley, rejecting his family, past, and nationality. Similarly, T. E. Lawrence’s name changed over his lifetime; his parents lived under ‘Chapman’ as he was growing up. He later changed his name to Shaw and also used the pseudonym Ross. These men used their unhappy childhoods as spurs to achieve fame, overcoming their problems through active, public lives. Some women did this as well, as with Marie Corelli. But typically men reinvented themselves through their careers, while women did so through marriage. And neither was entirely successful; the past had a way of reappearing unexpectedly. The ‘blank space’ Illegitimacy meant several aspects of growing up and identity formation were complicated. Notably, the need to use a child’s birth certificate for an increasing number of reasons meant that the illegitimacy could not stay hidden. The earliest instance was school attendance, but many others followed. Having to look at the blank space was painful. Smith wrote, ‘The sight of my birth-certificate makes me wince when I see the dash where a father’s name should be.’33 Others complained about having to produce the certificate for myriad reasons. One woman wrote to the NC in 1986, ‘I have just sent my birth certificate off to renew my passport and there it is for

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all to see, no father’s name.’ Another complained, ‘My wedding day was spoilt by the decision as to whether my father’s name could be entered on the marriage certificate. They decided against it, and just as on my birth certificate there is just a blank space where his name should be.’34 Many sources show these problems, one of the main reasons England finally adopted a shortened form in 1947. At times, the Registrar-General received inquiries asking for a document that ‘would satisfy’ employers as to a person’s age, ‘but would hide the fact of his illegitimacy’. Until the shortened form at last went through, no easy solutions appeared.35 Children given to the FH had to write and ask for letters from the institution in order to establish their dates of birth. The secretaries wrote many letters to employers and officials, and they tried to come up with formulas to avoid embarrassment. W. S. Wintle told Marion P. in 1897 when she was about to be married, ‘I always recommend our people to fill up the Marriage Register thus – “Was brought up in an Orphan Asylum, and know nothing about my parents” – This does not show anyone to be illegitimate.’36 As the twentieth century advanced, demands for documentation increased. For example, secretaries also had to reassure foundlings that they were born in Britain, especially if the children wished to emigrate.37 The need for documents led to humiliations for the children. Bim Andrews had to change her name when her parents finally married, exposing her illegitimacy to her classmates and teachers.38 This was one reason children latched onto stepfathers. Stride took her stepfather’s name and changed schools as soon as her mother married. Though this gambit sometimes worked, Louie’s past returned in the form of the school board inspector, who promptly contradicted her: ‘He hauled me out in front of everybody and said why had I told such lies about my name … I never lived it down.’39 Others avoided the problem by falsifying documents. Betty Stokes explained, ‘when I  filled out the wedding certificate I  created a father for myself so they [her in-laws] wouldn’t know’.40 The historian has no way to know how many people did this, but the number of autobiographies that admit to the practice indicate that it was not uncommon. The risk of prosecution was small, so both mothers and children chose to avoid the discrimination that came from that blank space.

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School stories The beginning of school was when prolonged contact with other children began, and all children had to make adjustments. Similarly to poor or disabled children, illegitimates complained about cruelty from schoolmates. The prejudice they faced had several commonalities. First, the lack of the father was a tell-tale sign of illicit sexuality, a way for other deprived children to feel superior. One respondent told a 1986 survey that illegitimacy ‘affected me in a very drastic way as children are cruel and when I was very young children would say they wouldn’t let me play with them:  “Clear off, you haven’t got a father.” This had an adverse affect on me.’41 Cookson was refused admittance to a birthday party, and the child in question told her the reason: ‘ “Well, me ma says you haven’t got no da”.’42 Second, the cruelty sometimes took physical form. When Smith was young, local children threw her into a pile of hay and then jumped on top of her. She was saved from suffocating, she surmised, when her brother went for help.43 Because of feelings of insecurity and unresolved anger, some children acted out and initiated violence. Dorothy Hatcher kicked children when she was upset: ‘The other children were always making fun of me. The old naughty ways came back again and I was always in trouble.’ Cookson also became more aggressive after she found out about her birth, challenging other children to fights on a regular basis.44 Oddly, illegitimate boys record fewer of these kinds of incidents; violence amongst boys was common, but it was primarily about bullying, a frequent occurrence for boys at every level.45 A third commonality to these school stories was the difficulty of disentangling where contempt for poverty overlapped with derision for illegitimacy. Smith was so poverty-stricken that her feelings of inferiority were often about her shabby clothing and severe hunger. She was shunned at one of her schools not because of illegitimacy (unknown there), but because she lived on the streets.46 Stride, too, was deeply unpopular with her schoolmates because she was so hungry she took food from smaller children. Dirtiness, ragged clothes, and lice-ridden heads also led to humiliation, but those with the taint of the workhouse faced particular scorn. Hatcher was never allowed to forget her origins. One day, her teacher asked the students what they would like to do as adults. Each child answered

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in his or her turn, until the teacher got to Dorothy. Before she could respond, he interrupted: ‘ “You haven’t got a choice. All workhouse children will be put in domestic service”.’ Hatcher concluded, ‘Everybody seemed bent on rubbing it in that I was not like others and had no say in my future at all.’47 Fourth, as this last example indicated, a particularly harmful part of this process was the collusion of adults who not only failed to correct children for their cruelty, but sometimes initiated it. Stokes sat on the front row of her school with four other illegitimate children, as if they were quarantined. She said, ‘If the minister’s daughter or the doctor’s daughter was in class the teacher would not allow us to sit with them.’48 Hatcher made friends with a new girl at school, but after a single visit, the girl never invited her to her house again. When Dorothy asked why, the girl ‘said that she was not to play with me anymore as I was born in disgrace’. When Dorothy told her foster parents, they informed her, ‘I could not expect respectable people to treat me as themselves.’ Both girls’ guardians reinforced Dorothy’s feelings of inferiority. Presumably, parents thought they were protecting their children, but their actions taught the stigma of illegitimacy to the next generation.49 Finding employment Discrimination against illegitimacy unfortunately did not end at the schoolyard. Being illegitimate and poor meant a narrowing of opportunities, again more for girls than boys. Boys had a number of advantages on the employment front, as more businesses employed males than females. Boys also emigrated more often than girls. In other words, boys had more chances to sail away from their pasts, and men tended to be judged on their work and careers more than their personal lives anyway. This did not mean that men did not face discrimination, and not all emigrants had positive experiences, but at least they had choices. Of course, this was also true of girls who were middle or upper class. A wealthy woman like Barbara Leigh Smith could carve out her own career and marry as she chose. But if an illegitimate girl were poor, her options were drastically reduced, down to a single choice:  domestic service. And a poor, unwanted girl had little leverage to negotiate fair working conditions or pay. J, born in 1876, lived with her maternal relatives in Yarmouth. When she reached seventeen, her work outlook was bleak. As her

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grandfather explained to the CEWSS, ‘unless in the fish industry there is only domestic service open to girls’. She wanted to be a nursery maid, but, as the local worker pointed out, ‘Her illegitimacy is against her.’ The CEWSS took her in part to help her find employment.50 Hiding or ignoring the illegitimacy helped, though first jobs were almost never well paid or enjoyable. Stride’s first real job was as a servant for a family in a small religious denomination: ‘They were mean and make no mistake. I only did two hours every morning, again five shillings a week, and stayed there three and a half years!’51 Cookson, too, had only one choice when she reached her teens, and one of her first positions was as a ‘maid-companion’, which meant that she worked fifteen hours a day for almost no pay. She soon quit that job and went to work in a workhouse laundry. It was a labour-intensive and poorly paid profession, but one where she could at least hope to rise to manager.52 Crucially, both Stride and Cookson had families upon which they could call if their work became too overwhelming, and both hid their illegitimacy. In this way, they could work in private houses, and, especially, defy unreasonable employers, knowing they could go back home for short periods. In addition, decent jobs or apprenticeships came through relatives. Bim Andrews’s mother helped her get a job as a clerk in the Co-operative Office when she turned fourteen, at which she earned eight shillings a week (in 1924). She took classes in shorthand and typing at night and increased her wages to seventeen shillings, fairly good for a working-class girl. Due to her mother’s help and the respectability her parents’ marriage brought, her illegitimacy had no effect on her working life (and she was legitimated as of 1 January 1927).53 A supportive family also meant that one could work in jobs that offered the advantages of independence and advancement. C3P’s first job was in the Penny Bazaar at fourteen, where she proved to be a natural saleswoman.54 Similarly, Eva Slawson, born in 1882, lived with her maternal grandparents. Her grandfather was a master baker; during a relatively prosperous period, he helped her take classes in shorthand and typing. As a result, she escaped domestic service.55 Unfortunately, C3P and Eva were atypical; the vast majority of poor girls went to work in service at poor wages and long hours. Only a handful of non-domestic jobs existed for girls, and illegitimate girls also faced discrimination in the few open to them. Many employers believed no young woman ‘born in disgrace’ could be a

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teacher. Some hospitals also refused to hire illegitimates as nurses. Cookson, in fact, blamed her illegitimacy for the fact that her priest would not help her train as a nurse, though he was probably more concerned with her poor health. But her assumption was not unreasonable; other women lost the chance to nurse for precisely that reason. One woman (born ca. 1918) worked in offices, but wanted to be a nurse. Despite excellent references, she was unable to get a position; she was told bluntly that ‘ “we do not have nurses in this hospital with that stigma”.’56 A third reason few illegitimate girls escaped domestic service was that so many came from institutions, and institutions could not conceive of any other work for girls. A servant got room and board and had adult supervision. Additionally, she learned skills that aided her when she later married. As most people regarded girls as temporary labourers, they could see little reason to train them in anything else. Thus, as Pamela Cox has shown in the case of ‘delinquent’ girls, domestic service was the inevitable fate of any girl who went to the workhouse or charity. In this, the girls’ status was not as important as the fact that they came from institutions, though some employers purposely wanted children who had no friends or family to interfere.57 Workhouses and the FH gave girls domestic ‘training’ before sending them to their first positions. As Hatcher neared fourteen, ‘the person from the Board came and said I  was to be sent to a home to be trained in domestic service’. Hatcher did not even finish the school year; she left the morning of her birthday. Hatcher concluded, ‘None of the work we did could really be called training.’ She did not learn to cook or to manage her money.58 Foundlings suffered similar experiences. Bessie Picton described the training she had at Roselawn, where FH girls went to learn ‘domestic science’, as ‘hell’. Much of the work was drudgery: ‘We cleaned windows, and washed and washed, and scrubbed, and cooked and served.’ Picton also resented the assumption of her inferiority; she received a beating for staring out the window at well-off girls who were riding because she was not to look at those she was meant to serve.59 This was in the 1920s, when such notions were coming under strain, which made the experience all the more galling. Both workhouses and the FH required indentures and apprenticeships for the children, usually of five years. Though supposedly to protect the children, apprenticeships limited their rights.

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In addition, a workhouse child had only so many chances before becoming a permanent inmate. Hatcher’s first job was as a kitchen maid at a guest house. She worked from 6:00 a.m. until 10:00 p.m., having only one half-day off. When she went to visit her foster parents on her one free afternoon, the employers reported her as having ‘run away’ and the workhouse treated her like a prisoner: ‘I was to them a chattel to be disposed as they thought fit.’ After three months, the union found her another place on a farm, warning her, ‘If I ran away from that, I would be kept in the Union for the rest of my life.’60 Unfortunately, Hatcher was too inexperienced to do farm work, so she then went to the worst place of all. Her employers ‘were the meanest people I had ever known. Each week my food, such as jam and margarine, was doled out.’ Hatcher gave a month’s notice as soon as she turned eighteen, unaware that the union kept control until she was twenty-one; the employers then spitefully told the union that she had been unsuitable. Back to the union she went for a third time where she had to go before the board to prove that she was not ‘feeble-minded’. She did well enough that the guardians at last found her a good job. When she reached twenty-one, she chose for herself, but she had come dangerously close to a lifetime in the union.61 Hannah Brown had similar experiences in going out to work from the FH. Her first job was with a family that was kind enough, but the child’s nurse despised her, and her employers gave her the hardest chores. When she finally spoke angrily to the nurse, she was fired.62 Her second position was with a woman who, knowing her background, told her, ‘ “You’re bound to go the way of your Mother – there’s no help for you!” ’ This moralising woman worked Brown sixteen hours a day. She quit after two months and went to work as a parlour-maid for an old woman. Here was where her status as a charity child was especially burdensome: ‘This mistress loved to taunt me … and daily she talked in this strain:  “Don’t look so proud! … If you don’t stay here, you’re going to the Workhouse!” ’ Brown eventually defied this mistress and was fired yet again. Though her fourth job was better, Brown found a position where no one knew she was a foundling as soon as possible.63 Those without any real employment prospects had no other options; the threats to Hatcher and Brown were not idle ones. Girls did end in the workhouse when ‘unemployable’. E, adopted by the CEWSS in 1893 at the age of eight, was a ‘rescue’ case (her

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mother cohabited with a ‘dreadful man’). E developed abscesses on her feet and spent a good deal of time in the hospital or in a ‘cripples’ home. At fourteen, she was much improved, but she was not fit for service. In 1902, the matron described her as guilty of ‘grave insubordination’ and demanded her discharge. E then went to an apprenticeship, but Mrs L. reported her as ‘very Tiresome’. The case worker agreed with the negative views; she ‘seems to have periodical fits of naughtiness & is very feebleminded’. Another local worker evaluated her as having ‘an ungovernable temper at times, which she says she cannot control’. At this point, the CEWSS gave up, and E went to the Lambeth Workhouse at the age of twenty.64 Girls’ experiences as servants show commonalities. At fourteen, a charity girl got the lowest position at the poorest pay. A disturbing number of employers were ‘mean’, but authorities dismissed any complaints as ‘insolence’. The employers frequently wrote to the authorities about infractions, and no one listened to the girls’ side. The threat of the workhouse hung over any girl without family. Nothing points up the value of kin more than these girls’ difficulties in negotiating decent wages and hours; without a place to stay in between positions, they went back to the workhouse or charities, falling further into obligation to them. Interestingly, however, none of these women were completely submissive. All quit or ran away when too hard-pressed. Their senses of injustice led not just to anger, but to rebellion. Conversely, work stories showed that employers’ complaints were not always unreasonable. An angry, poorly trained girl was not an ideal servant. One girl, born in 1886, was twelve when the CEWSS adopted her. Due to ill health, she did not go to service until 1901, and her first employers complained that she was ‘very vain, & shallow, & low minded’ and ‘childish & cunning’. Given these reports, the CEWSS allowed her to go to live with her aunt.65 Other girls needed patience; those who employed girls in their first jobs had to deal with the growing pains. B was adopted by the CEWSS in 1890 at the age of eight. She went to work in 1896, when she was fourteen. Her first employer sent her back, and no one else volunteered because ‘No one will put up with her temper, & her impertinence’. Despite this bad beginning, B did much better at her second position, getting a positive report in 1900.66 Having more than one job gave a girl perspective and helped her assess what was reasonable and what was not. But the

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process of getting there could be difficult both for the girls and their employers. On occasion, an employer regarded taking in such children as a charitable act that behooved them to be understanding. A3, born in 1870, was adopted by the CEWSS in 1886 at the age of fifteen to get her away from her abusive stepfather. She got her first position in December 1888 with the B.s, who were wine sellers. After ten years, her employers gave her an excellent evaluation. The B.s’ kindness was evident from their care for A3 through her ill health, including a cancer scare. They explained to the CEWSS: ‘We make her duties as light for her as we can possibly do & give her plenty of good nourishing food, so that we hope she may eventually get quite well & strong.’ They may have overstated their bounty, but A3 was still working for Mrs B.’s daughter in 1927.67 Girls from the CEWSS also occasionally found sponsors who helped them go beyond domestic service. S, adopted at the age of seven in 1903, was originally a maid, but her sponsors encouraged her to go to nursing training, and in 1917 she ‘passed her 6 months probation with flying colours … She is very happy in her work as her desire from the time she was a child was to be a nurse.’ S was helped by the need for nurses in the First World War, but at least in this case her background did not bar her from her chosen career.68 Sadly, S was exceptional; in general, the employment experience of illegitimate pauper girls was bleak. They had no choice about their jobs, and they were often the only servant in the home. This was particularly difficult for those brought up surrounded by hundreds of other children and who had limited social skills. Ex-foundling June (born ca. 1917) explained that her first job was in a doctor’s office: ‘I nearly had a nervous breakdown. I never went out on my half days ’cos I didn’t know anybody.’ Women in particular wanted to hide their illegitimacy, which was possible for a workhouse or CEWSS child, but not for those from the FH, who were all illegitimate. Aggleton and Oliver found in their study of FH women that those who could leave service did so, while others escaped by marrying.69 Most young women had limited work opportunities, and those illegitimate women with families did not differ much from legitimate poor girls. In work, as in so many other parts of life, the support of a family was crucial. In contrast, poor illegitimate boys often considered going to work as a positive step away from bad surroundings or institutional

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life. As with girls, those with families had support in bad times. Joseph Ashby grew up in a family of farm labourers, one of the poorest of occupations. Yet his family helped him find work from the age of eleven (in 1870), and his uncle bequeathed him some farm implements.70 Percy Brown lived with his grandparents on their farm in the late Victorian period; though they had a low income, his grandmother saved ten shillings to pay for his apprenticeship to a carpenter. When Brown later had trouble finding work, he simply went back home.71 George Hewins’s first job was at a draper’s in Leamington; typically, he was an errand boy. He lost two jobs in quick succession, but he then went back to his aunt Cal in Stratford and worked with his great-uncle, a bricklayer. Later Cal got him apprenticed to a builder, and he eventually made a career of behind-the-scenes work in the theatre.72 Poor illegitimate boys lacked complete control over their work lives, but they did have the freedom to travel if necessary, and those with families had help paying for apprenticeships or finding jobs. Their work experiences were similar to those of legitimate boys in poor families. The main problem for them was a lack of skill and the difficulty of making a living as a journeyman; most suffered periods of unemployment after training. A  boy with a supportive family got through those periods successfully or, at the worst, emigrated. In addition, no one suggested that an illegitimate boy had a moral taint and so could not be a builder or gardener. Just in those three stories above, the boys tried being carpenters, bricklayers, drapers, and bakers. Relatives were willing to invest in apprenticeships; not only would boys always work, but they made higher wages, so the investment paid off more quickly. Still, pauper and charity boys shared some of the hardships of girls. Rowlands left the workhouse at fourteen, going to his cousin, Moses Owen, as an apprentice teacher. Unfortunately, Owen’s mother did not want her sister’s illegitimate son spoiling her own son’s prospects. His cousin later sent him on a ‘break’ to a farm and never invited him to return. Instead, his aunt supposedly got him a position in an insurance office in Liverpool with his uncle Tom, but this job did not pan out either. Given these poor prospects, Rowlands signed on as a sailor on a ship headed to America.73 Rowlands’s difficulties were mirrored in the problems with boys coming out of the workhouse in Cardiff and Cambridge, as with Harry Drury, who had five jobs by the age of eighteen. Though

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the guardians insisted he would go to the workhouse if he did not improve, they repeatedly found industrial schools and positions for him. Workhouse boys who did not have families had to go back to the workhouse in bad times, just like girls, but they were less likely to be incarcerated as ‘feeble-minded’ for work-related problems. Charity boys also had wider parameters than girls. The CEWSS sent boys for training in gardening, farm work, plate cleaning, tailoring, and carpentry. Even the FH, which encouraged almost all its male inmates to go into military bands, allowed boys whose health did not suit military life to learn a trade. In 1863, J.  Brownlow informed Mrs R. that her son was in an apprenticeship with ‘a highly respectable owner of trading Vessels’ as he had ‘expressed a wish to go to sea’.74 Upon enquiry in 1903, Mrs R2 learned that her son was ‘a traveller for Singer’s Sewing Machine Compy’.75 Boys could earn a decent living after their apprenticeships; in 1898, one young man ‘learned the business of chimney-clock maker & is now earning more than 30/ per week’.76 As with girls, though, masters had the upper hand and did not allow too much interference. Edward Evans was under the control of the Cardiff workhouse when his mother tried to remove him from his apprenticeship in 1876. His master told the board that Evans wished to stay, and the guardians accepted his assurances without asking the boy himself. The RO ordered the mother ‘to abstain from interfering with the boy’.77 The FH also expected masters to be in control; ‘disruptive’ families were ordered to desist from interference. In 1869, Brownlow scolded the relatives of James W. for such an infraction.78 Similarly, the assistant secretary in 1897 informed one boy’s friends that he did not ‘think the Governors would permit the boy in question to know his relatives until he has served his apprenticeship … his Master has taken him on the understanding that he had no friends’.79 A master who preferred a friendless apprentice raises concerns today, but the FH thought this reasonable. Some sources show boys satisfied with their training and help. H, who was in the workhouse when the CEWSS adopted him, was trained as a gardener. He wrote to the society in 1899, expressing his thanks for their help and his pleasure in his position: ‘I like it very much. The Colonel & Mrs P. are very kind to me, and … I am very comfortable.’80 Similarly, A5, born 1893 and adopted at ten, was grateful to the CEWSS for getting him a prosthetic leg and

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work as a tailor. In 1911, when he was twenty-eight, he expressed his thanks to those who had helped him.81 The key for boys was if they found a job congenial to them. Both these boys also had communities around them, of work and church, that made their situations no longer ‘friendless’. All the same, for the most part, charity and workhouse boys did not have complete freedom of movement. Authorities were as insistent that boys remain with employers as they were with girls. They found more jobs for them if necessary, but not indefinitely. W, admitted 1889, had great difficulty finding work after his apprenticeship ended in 1908. The CEWSS was not inclined to help further, as it had sent him back to his stepfather because he was ‘dissatisfied, discontented, and generally ungrateful’.82 In addition, many institutions pressured boys to go into the military, especially delinquents. F, admitted in 1898, came to the CEWSS after he had gone to the workhouse for stealing. Within two years, when F was fourteen, he went into training for the army.83 The FH, with its long tradition of music education, put boys into bands as soon as they were old enough, and most joined military bands when they left school. As Charles Nalden put it, ‘the majority of us were destined to join service bands, irrespective of whether or not we were suitable … Boys were allowed one band practice per week, which was the extent of their pre-army training.’84 Military life had advantages for boys brought up in institutions. They knew they had a position for the next decade; by the beginning of the twentieth century, boys had three years of ‘boys’ service’ and nine of ‘men’s service’ after joining. For those used to being told what to do, when to eat, and what to wear, the military was a continuation of this regimen. Others appreciated the chance to travel. Arthur, born ca. 1905, explained, ‘I went abroad when I  was 16. Palestine, Egypt, Hong Kong, Shanghai, Malaysia, India, Burma.’ Bill, born ca. 1920, enjoyed the comradery, insisting that ‘the best I’ve ever been was as a soldier’. Though not likely, a boy who committed to service could also rise in the ranks; at least one foundling became an officer and remained in the army until retirement.85 Those without much aptitude for or enjoyment of the military life, though, disliked being in yet another hierarchical institution, and their training for the life was even poorer than the girls’. One of Nalden’s friends described going directly into the military as ‘ “being thrown into the ‘Pool of Life’ from the deep end”.’ Boys

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with few physical or mental resources found the life ‘a living hell’. Nalden did not hate it, but he, too, felt trapped more than once in the twenty-six years he was in the military. He was fortunate in being able to build a career as an academic musician, but he had to go to New Zealand to do so.86 And the military also had obvious dangers as a career. Though many boys served during the long Victorian peace, the twentieth century was different. A number of foundlings died during the First World War, and some boys found their terms of service extended when wars broke out. Like Nalden, some reluctant soldiers eventually escaped. A study of more recent foundlings showed that when other opportunities beckoned, boys abandoned the military in droves.87 Boys also emigrated, though some employers in Canada demanded proof of paternity before agreeing to employ children. But most who wanted to go could do so for the period under review.88 Boys also took positions on merchant ships and worked their ways across the Atlantic, and others travelled within the British Isles. This wandering had a price; most lost touch with their families, especially those who went overseas. Their choices were better, but not without disadvantages. Illegitimacy was a social problem for men in the upper classes as well, but in a different way. Rather than facing poverty or the workhouse, upper- and middle-class men did less well relative to other men in their class. Illegitimate sons could not inherit titles, but they remained in the upper classes and went into the professions. T. E. Lawrence’s father lost the title from his branch of the family, but the boys all trained for professions, and Lawrence made a spectacular success in his military career. He was not alone; his brother Robert, a doctor, served in France in the First World War. As long as a family had enough money, education and contacts made a great deal of difference. John Anthony, Sayers’s son, had an excellent education and a handsome allowance from his mother; he was also her sole beneficiary.89 This is not to say that no prejudice existed, particularly in the middle classes. Those whose respectability was more fragile were more likely to be obsessed with secrecy. And some prejudices remained against illegitimacy in professions such as the clergy or in sensitive areas of civil or military work. As late as the 1940s, officials in the Colonial Office asked if they could hire an illegitimate man. The resulting memo concluded that the main problem was the issue of nationality, but if he could prove that satisfactorily, his illegitimacy should not bar him: ‘It would only have to be taken into

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account if we felt that the individual’s illegitimacy … would be likely to leak out … and … was likely to handicap him seriously.’90 The class of the boy made all the difference to his ability to overcome illegitimacy. Well-off boys, or children of mixed-class relationships, might not be as rich as legitimate heirs, but they had good educations and professions. Poor boys from settled families likely stayed at the same level as their kin, as families were willing to pay for apprenticeships, tools, or other training. Charity or workhouse boys, though, faced restrictions; only the most fortunate or determined escaped poverty and/or regimentation. They had more choices than girls, but most went into the military. Their advantage over girls was in their greater opportunities to emigrate, and the fact that no employers regarded them as ‘morally unfit’ to be carpenters, bakers, or clockmakers. However, unlike girls, boys expected to work their whole lives, so a mismatched profession was potentially a serious and long-term problem. Marriage and family The social effects of illegitimacy did not mean that such people remained single and childless; on the contrary, the vast majority married, reared families of their own, and lived to be grandparents. For women, marriage meant a new beginning, including a legal name, the end of dead-end labour, and motherhood. Marriage was the primary goal for most women in this period; many did so by their twenties. Interestingly, men were just as anxious to have families. For men, the establishment of their own homes was an important rite of passage, and they expressed satisfaction at becoming fathers and husbands. This was especially true for all those who grew up in institutions and had lacked family lives previously. For children from settled homes, illegitimacy was mostly irrelevant in courtship and marriage. Hewins courted his sweetheart, got her pregnant, and then married her four months before his son was born. Though Cal was unimpressed with his anticipation of the wedding day, she told him that as long as she lived, his children would never want. Hewins found work where he could to support the family, and he was delighted with his children.91 Joseph Ashby married his cousin, Hannah, when he was twenty-six and able to support her. She knew his background, and neither she nor

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her parents cared.92 Women from settled families married at the average age for marriage, and their marriages matched the norm for working-class life. C3P married after a traditional courtship; the failure of her marriage was due to her husband’s alcoholism, not her birth.93 For those children who did not come from settled homes, illegitimacy made courtship difficult. They had to decide whether or not to acquaint any lover with their pasts; when they become engaged, the same questions arose about in-laws. This was more of an issue for women; few men expressed fears of telling their spouses’ families about their pasts. Nalden met his supportive wife at a dance and married her in 1935. He records no difficulties with the wedding or from his in-laws.94 More women than men also expressed unhappiness with filling out the marriage certificate with no father’s name. How much this bothered women varied. Hatcher, who married her sweetheart in 1930, records no unhappiness on her wedding day. She was far more concerned about living on Syd’s wage than she was about the forms.95 In contrast, Ethel, a foundling born ca. 1914, lied to her husband-to-be and in-laws:  ‘Even on your marriage certificate you had to put your father. And I put farmer because my foster mother’s husband was a farmer.’96 As with employment, those who were institutionalised had more disadvantages. Though almost all married, they had more adjustments to make. Their difficulties were described well by a woman who married a foundling:  ‘They haven’t got the feeling. They haven’t got the caring, if you like … they are all closed up.’97 In addition to emotional limitations, those born in institutions did not have examples of parenthood upon which to draw or anyone to ask for advice. May, born in the late 1920s, claimed she was not a good mother to her daughter: ‘I hadn’t had that experience and I had no one really to go to … I never knew how to build up a relationship.’ Fathers, too, could be strict; one former foundling rarely played with his children and did not allow them to speak during meals.98 On the other hand, for some children from institutions, family life was a reward after years of yearning. Peter, a foundling born ca. 1918, had three children and two grandchildren when he was interviewed about his life. He regarded his family as his greatest achievement. When his children told him how happy their childhoods had been, he said, he ‘could have burst into bloody tears’.99 Dorothy and Syd Hatcher reared two girls and a boy through the

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Second World War, austerity, and beyond. Dorothy ‘was determined to give my children the best start we could’. Her older daughter, Judy, got office training, her younger went to cooking school, and her son became an electrician. The difference between mother and children’s experiences was partly because of changes in British society overall in the 1940s and 1950s, but it was also about family support. When Judy’s first supervisor was unkind to her, she refused to tolerate it, knowing she could go home to her parents until something better came along. The contrast with Hatcher’s working life could not have been greater. Indeed, Dorothy expressed great satisfaction that her children had experiences ‘very different from my own’.100 Though institutions usually lost touch with children over time, a few indications from these sources show that most of their former inmates married and built families. The FH received many queries about what to do about birth certificates when foundlings wed. The occasional child gave happy reports to the secretaries. In 1928, Mrs  J.  enquired about her daughter, and the governors agreed to allow the introduction. When asked if she wished to meet her mother, L was pleased to do so. Nichols assured Mrs J.:  ‘She is a very nice girl, has always done very well in her situations and I  believe she is very happily married.’ Foster children might also consider their foster parents as family and vice versa, and these ties replaced birth families.101 Healthy relationships with family healed the wounds of childhoods for many illegitimate children, but some never stopped wondering about their pasts. They did not feel whole until they knew who they were. Until the 1980s, they did not have the right to know, so many were not able to trace their relatives until their parents were long dead. Adopted children, too, did not find out about their families until it was too late to meet them.102 The desire for blood kin emerges in documents when children wrote to societies, asking about their families. M, adopted by a Mrs H. in 1900 under the auspices of the CEWSS, queried the Society in 1907. She remembered that she had relatives and longed to know them: ‘As you know I feel awful lonenly [sic] by myself it is nice to feel you have some one belonging to you for I  know I  have an aunt for as young as I  was I  remember her coming to see me … I  should know about someone belonging to me.’103 The CEWSS did not help M, telling her she should look to them for guidance. But a desire

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to meet blood kin was common, especially as people married and had children.104 Parenthood thus healed some wounds while opening others, as people sought to fill the blank spaces in their family stories. Conclusion Social discrimination against illegitimates occurred at all parts of the life cycle  – at birth, at school, at work, and at marriage and family. Yet the impact of discrimination differed by class and sex and, especially, whether or not a child lived in a family. Those with high incomes ignored conventions as they wished. Barbara Leigh Smith and Elsa Lanchester shrugged off their illegitimacy and made successful lives. A well-off illegitimate child did not have the same social standing as a legitimate relative but still had a good education and social contacts. In contrast, poor illegitimate children faced special difficulties. The collusion of adults in the discrimination made the stigma long-lasting to the point that children internalised the guilt. The allegedly ‘inherited’ stain was harsher on girls than boys, though both felt unwanted. The effects of social discrimination changed when children went to their jobs, dividing those with family from those without. Those with family, especially the boys, got tools, training, and apprenticeships. Girls got less monetary support, but they could turn to their families in bad times. In contrast, institutionalised children had no one to defend them. Particularly, the funnelling of all girls into service drastically narrowed their choices. Those willing to take servants from institutions tended to be employers with the worst conditions and pay; they were, in the children’s words, ‘mean’. Guardians and authorities in charities rarely listened to the girls’ side in disputes, and the latter constantly faced the threat of a lifetime in the workhouse. Boys had a wider range of options, though many groups, especially the FH, encouraged military service. Employers for boys were less concerned about moral contamination, so boys went into a large number of trades. Still, all children from institutions had good reasons to worry about the dual stigmas of pauperism and illegitimacy. The degree to which illegitimacy mattered in part depended on the individual. Those who felt unwanted internalised negative feelings. This was also influenced by class, as illegitimacy was more of a social bar in the middle and upper classes. But poor children

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also shied away from questions about their origins or lied on documents. How one responded to illegitimacy, then, depended on a number of factors. A child’s resiliency was individual, personal, and unpredictable. Whatever their reactions, employers and ‘child savers’ both supported a system of social discrimination that was slow to dissolve through the twentieth century. Notes 1 E. Smith, A Cornish Waif’s Story: An Autobiography (London: Popular Book Club, 1956), p. 24. 2 S. Humphries, A Secret World of Sex – Forbidden Fruit:  The British Experience, 1900–1950 (London: Sidgwick & Jackson, 1988), p. 86. 3 University of Reading, Special Collections, Lady Astor Papers, MS 1416/1/335, Dorothy Thain to Lady Astor, 11 November 1924. 4 J. E. Bowman, When Every Day Was Summer: Boyhood and Youth in a Rural Community, 1920–1939 (Wigan: Owl Books, 1989), pp. 25–6. 5 E. Lanchester, Elsa Lanchester Herself (New York: St. Martin’s Press, 1985), p. 14. 6 C. Cookson, Our Kate (London: Corgi Books, 1969), p. 45. 7 Smith, Cornish Waif, p. 23. 8 Cookson, Our Kate, p. 43. 9 D. Derrick, ed., Illegitimate:  The Experience of People Born Outside Marriage (London: National Council for One Parent Families, 1986), pp. 31–2. 10 K. Adie, Nobody’s Child: Who Are You When You Don’t Know Your Past? (London: Hodder & Stoughton, 2005), p. 35. 11 D. Cohen, Family Secrets:  Shame and Privacy in Modern Britain (Oxford: Oxford University Press, 2013), pp. 87–123. 12 Derrick, Illegitimate, p. 22. 13 Cookson, Our Kate, p. 154. 14 C. Oliver and P. Aggleton, Coram’s Children: Growing Up in the Care of the Foundling Hospital, 1900–1955 (London: Coram Foundation, 2000), p. 20. 15 R. Parker, Uprooted:  The Shipment of Poor Children to Canada, 1867–1917 (Bristol: The Policy Press, 2010), pp. 209–33. 16 Oliver and Aggleton, Coram’s Children, p. 42. 17 Adie, Nobody’s Child, p. 116. 18 S. Graham-Dixon, Never Darken My Door: Working for Single Parents and their Children, 1918–1978 (London:  National Council for the Unmarried Mother and Her Child, 1981), p. 14.

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19 L. Stride, Memoirs of a Street Urchin (Bath:  Bath University Press, 1984), pp. 6, 8, 11. 20 Manchester Guardian (13 February 1866), p. 6. 21 The Times (15 November 1909), p. 3. 22 The Times (13 October 1869), p. 9. 23 Manchester Guardian (11 March 1918), p.  6; P.  Thane and T.  Evans, Sinners? Scroungers? Saints? Unmarried Motherhood in Twentieth-Century England (Oxford: Oxford University Press, 2012), pp. 33, 111–12, 154–5. 24 Stride, Memoirs, pp. 7–8. 25 J. Humphries, Childhood and Child Labour in the British Industrial Revolution (Cambridge:  Cambridge University Press, 2010), pp. 196–202; quote from p. 196. 26 Smith, Cornish Waif, p. 22. See also P. Cox, Bad Girls in Britain: Gender, Justice, and Welfare, 1900–1950 (Basingstoke: Palgrave, 2013), p. 91. 27 C. Steedman, Landscape for a Good Woman:  A  Story of Two Lives (Rutgers: Rutgers University Press, 1986), p. 110. 28 Stride, Memoirs, p. 17. 29 Smith, Cornish Waif, pp. 85–6. 30 The Times (3 January 1888), p. 3. 31 Cookson, Our Kate, pp. 22–3, 68–9; K. Jones, Catherine Cookson: The Biography (London: Warner Books, 1999), pp. 23–31, 80–1, 149–52. 32 B. Reynolds, Dorothy L.  Sayers:  Her Life and Soul (New  York:  St. Martin’s Press, 1993), pp. 234–5, 267–9. 33 Smith, Cornish Waif, p. 22. 34 Derrick, Illegitimate, p. 40. 35 NA, Registrar-General’s Office, RG 48/1820 (1942); N.  Durbach, ‘Private lives, public records:  Illegitimacy and the birth certificate in twentieth-century Britain’, Twentieth Century British History 25:2 (2014), 305–26. 36 London Metropolitan Archives, Foundling Hospital Records, Letter Book (hereafter FHLB), A/FH/A/6/2/33, 1896–8, W.  S. Wintle to Marion P., 11 October 1897, 623. 37 See, e.g., FHLB, A/FH/A/6/2/36, 1901–3, W. S. Wintle to J., 2 December 1901, 199; A/FH/A/6/2/54, 1922, R.  H. Nichols to Phyllis O., 8 November 1922, 233. 38 J. Burnett, ed., Destiny Obscure:  Autobiographies of Childhood, Education, and Family from the 1820s to the 1920s (London: Routledge, 1994), pp. 122–3. 39 Stride, Memoirs, p. 17. 40 Humphries, Secret World, p. 86. 41 Derrick, Illegitimate, p. 31. 42 Cookson, Our Kate, p. 150.

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43 Smith, Cornish Waif, p. 24. 44 D. Hatcher, Workhouse and the Weald (Rainham:  Meresborough Books, 1988), pp. 19; Cookson, Our Kate, pp. 151–3. 45 See, e.g., T.  MacKenzie, The Last Foundling:  The Memoir of an Underdog (London: Pan Macmillan, 2014), pp. 28–37. 46 Smith, Cornish Waif, pp. 89–90. 47 Hatcher, Workhouse, pp. 24–5. 48 Humphries, Secret World, p. 86. 49 Hatcher, Workhouse, p. 24. 50 Children’s Society Archives (hereafter CSA), Bermondsey, CS061, 1876–92. 51 Stride, Memoirs, p. 35. 52 Cookson, Our Kate, pp. 176–94. 53 Burnett, Destiny Obscure, p. 125. 54 Lancaster University, Centre for Northwest Regional Studies, Elizabeth Roberts Collection, (hereafter CNRS, ERC), Interview with Mrs C3P (born 1897), 3, 11–12. 55 T. Thompson, ed., Dear Girl: The Diaries and Letters of Two Working Women, 1897–1917 (London: The Women’s Press, 1987), pp. 3–4. 56 Derrick, Illegitimate, p. 33. 57 Cox, Bad Girls, pp. 86–106. 58 Hatcher, Workhouse, pp. 37–41; quotes from pp. 37 and 41. 59 C. Nalden, Half and Half: The Memoirs of a Charity Brat, 1908–1989 (Tauranga: Moana Press, 1989), pp. 199–200. 60 Hatcher, Workhouse, pp. 44–51; quotes from p. 51. 61 Hatcher, Workhouse, pp. 52–63; quote from p. 55. 62 H. Brown, The Child She Bare (London:  Headley Bros. Publishing, 1918), pp. 109–52. 63 Brown, Child She Bare, pp. 153–75; quotes from pp. 153 and 158. 64 CSA, CS022, Case of E, 1893–1904. 65 CEWSS, Case papers, www.hiddenlives.org, Case 1898. 66 CSA, CS900, Case of B, 1890–1900. 67 CEWSS, Case papers, www.hiddenlives.org, Case 795, 1886–1927. 68 CEWSS, Case papers, www.hiddenlives.org, Case 9380, 1903–15. 69 Oliver and Aggleton, Coram’s Children, p. 40. 70 M. K. Ashby, Joseph Ashby of Tysoe, 1859–1919: A Study of English Village Life (London: Merlin Press, 1974), pp. 24–45, 66–87, 179–211. 71 P. Brown, Round the Corner (London: Faber & Faber, 1934), pp. 30–111. 72 G. Hewins, The Dillen:  Memories of a Man of Stratford Upon Avon (Oxford: Oxford University Press, 1982), pp. 33–45. 73 T. Jeal, Stanley:  The Impossible Life of Africa’s Greatest Explorer (London: Faber & Faber, 2007), pp. 23–30. 74 FHLB, A/FH/A/6/2/14, 1862–5, 12 October 1863, 162. 75 FHLB, A/FH/A/6/2/37, 1903–5, 12 August 1903, 181.

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76 FHLB, A/FH/A/6/2/34, 1898–9, 17 November 1898, 358. 77 Glamorganshire Record Office, Minute Books, UC 2/15, 1875–6, 5 August 1876. f. 436. 78 FHLB, A/FH/A/6/2/16, 1868–70, 23 January 1869, 253. 79 FHLB, A/FH/A/6/2/33, 1896–8, 4 October 1897, 613. 80 CEWSS, Case papers, www.hiddenlives.org, Case 485. 81 CSA, CS088, 1903–11. 82 CSA, CS075, 1899–1908. 83 CEWSSS, Case papers, www.hiddenlives.org, Case 6458, 1898–1900. 84 Nalden, Half and Half, p. 200. 85 Oliver and Aggleton, Coram’s Children, p. 38. 86 Nalden, Half and Half, pp. 200–5; quotes from pp. 201 and 202. 87 J. Gledhill, ‘Coming of age in uniform: The Foundling Hospital and British army bands in the twentieth century’, Family and Community History 13:2 (2010), 114–27. 88 J. Parr, Labouring Children:  British Immigrant Apprentices to Canada, 1869–1924 (London:  Croom Helm, 1980), pp.  33–4; 114; S. Swain and M. Hillel, Child, Nation, Race and Empire: Child Rescue Discourse, England, Canada, and Australia, 1850–1915 (Manchester: Manchester University Press, 2010), pp. 159–79; R. Parker, Uprooted: The Shipment of Poor Children to Canada, 1867–1917 (Bristol: The Policy Press, 2010), pp. 209–33. 89 John Mack, A Prince of Our Disorder:  The Life of T.  E. Lawrence (Boston:  Little, Brown, and Company, 1876), p.  137; Reynolds, Dorothy Sayers, pp. 234–5, 368–9, 341–6. 90 NA, Colonial Office, CO 850/194/18, 27 February 1941–4 March 1941. 91 Hewins, Dillen, pp. 55–68. 92 Ashby, Joseph Ashby, pp. 98–112. 93 CNRS, ERC, Mrs C3P, 31–2. 94 Nalden, Half and Half, pp. 344–6. 95 Hatcher, Workhouse, pp. 69–72. 96 Oliver and Aggleton, Coram’s Children, p. 44. 97 Oliver and Aggleton, Coram’s Children, p. 41. 98 Oliver and Aggleton, Coram’s Children, pp. 43–4. 99 Oliver and Aggleton, Coram’s Children, p. 43. 100 Hatcher, Workhouse, pp. 85–107; quotes from pp. 85 and 107. 101 FHLB, A/FH/A/6/2/63, 1928, 25 July 1928, 991; G. K. Nelson, Seen and Not Heard: Memories of Childhood in the Early 20th Century (Dover Alan Sutton Publishing, 1993), pp. 54–5. 102 Cohen, Family Secrets, p. 155. 103 CSA, CS053, Case of M, 1894–1952. 104 Cox, Bad Girls, pp. 122–32.

Conclusion

In 1930, anarchist Sylvia Pankhurst published Save the Mothers, in which she detailed the costs of illegitimacy to unwed mothers and their babies. The work stressed their high maternal and infant death rates, due to poverty and ‘disgrace’. Pankhurst was scathing about the forces of ‘morality’ that blocked any improvements. She noted with disgust the opposition that arose when a local medical officer recommended a midwife be offered to all women for free, regardless of marital status. Pankhurst explained, ‘unscrupulous misrepresentations were made about it. In such cases it is curiously common to find that the morality which is called truthfulness is sacrificed in what is considered to be the interests of other kinds of morality.’ Predictably, the furious outcry ended the programme. Pankhurst concluded that the majority of British citizens preferred to punish innocent children rather than to preserve their lives or those of their mothers.1 Pankhurst’s conclusion was largely accurate for the period 1860 to 1930, though she wrote towards the end of this regime. During the long nineteenth century, many church and State leaders believed that punishing children of unwed parents was necessary to protect marriage and ‘the home’. Illegitimacy went unreformed in common law, and for millions of children, being filius nullius was a reality. Such rules, though, proved problematic, as people’s messy lives rarely fit into the neat categories of the law. Calling a child a ‘stranger’ to maternal or paternal kin was so contradictory to most people’s views of family that judges and juries manoeuvred around this strictness. Moreover, local courts and institutions ‘found’ families for the children in affiliation suits or the actions of poor-law guardians. The need for provision especially meant that some legal

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families for the children existed, even if only their mothers. In short, the State demanded that family support such infants, while at the same time declaring that the children had no families. Little wonder legal difficulties abounded. Most notably, the positions of both parents of illegitimate children were atypical. Mothers had the responsibility to provide for these children, and thus had custody rights over fathers, maternal kin, and fictive families. Mothers’ privileges came not from sympathy, but because they must bear the consequences of their ‘falls’. Yet when these same women harmed their children, the State was lenient, remembering their poverty and shame. Rather than offer an alternative to the ‘workhouse or death’, the courts instead released violent women with little punishment. Fathers, for their part, lacked custody rights, as their duty to provide was contingent. Despite this, criminal courts were harsh if men responded with violence from their frustrations. In short, judges and juries were unsympathetic to fathers who refused to take responsibility, despite the fact that the law allowed them (or in the case of affiliation law, encouraged them) to do so. Even more ironically, the law sometimes punished a man who stood by his lover more than one who disappeared. Men’s decisions to abscond were understandable in this light. And as long as the State refused to acknowledge that all children had two parents, the children bore the brunt of the consequences. As historians have shown in studying legitimate families, fatherhood was vital to the health and well-being of the home.2 Illegitimacy complicated this relationship, but it also reinforced the importance of fathers, particularly in the working classes. A father, stepfather, or adoptive father brought better provision, an identity, and a name. Indeed, step-parenting was crucial to many children’s survival. Though legal records have abusive step-parents, oral histories and autobiographies show them as saviours for many children. Moreover, both blended and foster/adoptive families were substitutes for the ‘normal’ family; foster parents, especially, cared for youngsters when others could or would not do so. In the same way, the role of wider kin was notable, because grandparents, aunts, uncles, and cousins were the first line of defence in any crisis, well into the twentieth century. Most families tried to keep the children within the family, and expected to retrieve children at a later point when they could not. One reason the State struggled to adjudicate

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disputes over inheritance and taxation was that illegitimate children so often lived in complex households. In addition, these children moved frequently from relative to relative, in and out of foster care, and in and out of institutions. Illegitimate relatives were often left behind, to workhouses or charity homes. Since few people had legal responsibility to provide for them, they were the easiest to ‘lift out’. The experience of being unwanted, of having no place to belong, left life-long wounds. Still, illegitimacy was a contributing factor for children’s emotional problems, but not the only reason for them. Legitimate children who grew up in institutions or who were sent to Canada or Australia recorded similar feelings. The fact of being ‘unwanted’ was the key. In addition, poverty was so intertwined with these children’s lives that their misery came from a complex mixture of issues. Overall, illegitimacy mattered little to those who were well-off, had a loving family, or had at least one person who loved them unconditionally. For others, though, the status compounded feelings of inferiority, depression, and rage. Differences of class and gender also influenced the scope of illegitimacy’s reach. Those with adequate incomes mostly suffered from social isolation (often self-imposed), or, if born to cross-class liaisons, lived at an intermediate level between their parents’ statuses. In the middle and upper classes, men had more difficulty adjusting, as they lost property and titles, and they could not marry away from their names and pasts. In the working class, the problems were starker, matters of life and death; a poor illegitimate infant had a low life expectancy. In this class, girls had more difficulties, as they had fewer educational and job opportunities and found the stigma deeply debilitating. Still, even with all these distinctions, the main issue was the role of the family. With her family’s support, a poverty-stricken, unhealthy girl like Katie McMullen could overcome her background. Without relatives’ backing, even a strong boy like John Rowlands did not emerge unscathed. The role of the State and society in perpetuating this system was crucial. The State certainly did not require fathers to abandon their offspring or mothers to harm their newborns, but, at the least, it made such behaviours easier. The 1834 Poor Law, with its lax attitude towards ‘putative’ fathers, gave reluctant men a way to escape their responsibilities. And the criminal courts were willing to accept the deaths of illegitimate children as the price of lowering the rates.

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Though more and more reformers protested these conditions, little changed until the 1920s. In some ways, in fact, ‘child saving’ impulses had contradictory effects, especially when mixed with Social Darwinism. These efforts led to progressive legislation for children’s welfare, but also to beliefs in inherited moral stains, ideas that hardly aided those born out of wedlock. Protective societies ‘rescued’ children from terrible homes, but at the cost of more disruptions in the children’s lives. Poor-law unions ‘adopted’ children, severing their connections with their maternal kin. Each advance came with costs attached, costs that were paid by those already heavily burdened. Of course, legislators did not do this in a vacuum; they had the support of many citizens. Some adults not only allowed social discrimination but initiated it, teaching the prejudice to the next generation. But the role of the government was nevertheless crucial. Public opinion changed in the 1920s, reflected in the House of Commons, but the bishops and peers in the House of Lords blocked more comprehensive legislation on affiliation and legitimation, and bureaucrats limited the scope of the acts that did pass. As Pankhurst put it, one vision of ‘morality’, that of sexual continence, crowded out other visions, including support for poor children. Indeed, hypocrisy was a major theme of the treatment of illegitimates, in families, the press, the courts, and the legislature. Mothers who handed their children to strangers for £5 had to know they were dooming those children to early graves, as did the child’s grandparents (and absent fathers). Yet ‘baby-farming’ scandals centred on the strangers who harmed babies, a negligible percentage of perpetrators. Newspapers also fulminated against men who deserted unwed mothers, but the editors also rarely supported changes to prevent the mothers’ crimes, such as giving them out-relief. For their part, MPs tolerated thousands of preventable infant deaths in England at the same time they criticised places like India for their infanticide rates.3 Naturally, authorities assumed they were doing the best for the country by privileging marriage, and the policies certainly reduced the recorded number of illegitimate births after 1834. For this improvement, though, Victorian society was willing to pay the price of suffering and early deaths for thousands of children. Only after the losses of the First World War did the price seem too high. As a result, through the mid-twentieth century, illegitimacy remained a serious stigma. The passage of the Legitimacy Act

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of 1926 was a symbolic victory that did not change the lives of most of these children. Some mothers adopted their own children after 1927, but they were always a minority. Like Pankhurst, the NC lobbied for more help for unwed mothers, and some mothers benefitted from their services in finding employment and housing. However, until the Second World War, most children continued to live in families  – their maternal relatives, cohabiting families, or with stepfathers – and to keep secrets. Though some mothers were open about their single status, lies and evasions remained a part of children’s lives in the 1940s and 1950s.4 The coming of a second, six-year world war in 1939 led to a rise in concern about ‘loose’ women having ‘war babies’ with soldiers. The reality, as in the First World War, was that the absence of a large cohort of young men for several years resulted in a decline in the percentage of illegitimate births in the middle of the war, though the percentage rose to 9.3 per cent of all births in 1945. At first, unmarried mothers faced a great deal of difficulty, especially in housing, since they got low priority in a time of severe shortages. In 1943, the Ministry of Health began to address their specific problems, and under pressure by lobbying groups, local authorities became less likely to separate mothers and babies. Attitudes towards illegitimacy softened, and some mothers were more open about their situations; employers also were less likely to dismiss an unwed mother immediately, especially if she worked in essential war industries. Moreover, the number of adoptions reached a peak of 21,000 in 1946, and a third of these were by mothers.5 These gains, though, were largely temporary and had to be re-won in the following decades. The establishment of the welfare state in 1945 helped raise some single-mother families out of poverty, and the demise of the old workhouse system was a definite boon. After 1950, illegitimate children were more likely to live with their mothers than in institutions or foster homes; punitive mother-and-baby homes and orphanages scaled back their operations or closed altogether. Nevertheless, social snubs and identity confusion continued; as one survey respondent put it in 1986, ‘The tag “illegitimate” still haunts me.’6 In addition, as Janet Fink has pointed out, the welfare state assumed a male head of household and two parents for children, so single mothers did not get the same support as the ‘normal’ family. Fink asserts that this was deliberate; governments did not want

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to reward behaviour that resulted in illegitimate births. As always, provision from fathers was problematic. Improvements to affiliation procedures, long overdue by the 1950s, had limited impact. In 1959, 38,161 illegitimate children were born, but only 4,160 affiliation orders followed these births. In 1952, Parliament raised the maximum award to £1 10s and allowed payments to continue until the child was sixteen (or twenty-one if he or she were in special training). In addition, the Maintenance Orders Act of 1958 finally allowed the garnishing of a man’s wages to pay affiliation, thus enacting a suggestion made as early as 1909. Illegitimates also benefitted from several changes made necessary by the growing number of children living with single parents due to divorce. As the State acknowledged more variety in family forms, children of unwed parents became less of an oddity.7 Clearly, the late 1940s to early 1960s comprised a transitional period. Culturally, the emphasis on a two-parent family was strong, and the illegitimacy rate went back down in the 1950s after its peak in 1945. Conservatives worried that the disruptions of the Second World War threatened the disintegration of the family and so defended traditional morality; additionally, sociological views of unwed mothers as pathological were common. Those living in irregular situations continued to hide the fact. Still, an increasing number of unwed mothers kept their children with them, and several pieces of legislation eased these children’s position. In 1947, Parliament finally passed a bill to allow a shortened birth certificate that did not indicate a child’s birth status. Despite some fears that the forms were only used by illegitimate children, the certificates were much cheaper, and, thus, popular; in 1951, they made up half the certificates issued.8 Most important, in 1959, Parliament passed another Legitimacy Act, this time allowing children of adulterous unions to be legitimated upon the marriages of their parents. In the aftermath, in 1960, a third of births of children of unwed parents were registered by both parents. Again, this change was partly due to new attitudes towards divorce, since children with lone parents were more and more common. The transitional nature of the time was also highlighted in the debates over the 1959 bill, which showed three different, and sometimes conflicting, attitudes:  a concern for the children, an understanding of the ‘natural’ bond between a mother and child, but also a continued assumption of a two-parent, male-led household as the ideal.9

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Recent historians have questioned just how ‘permissive’ the 1960s actually were, and certainly the major changes of the decade were in its latter years. Thane and Evans highlighted the ‘rediscovery’ of child poverty, especially those living with single mothers, as the main impetus for change. Fortunately, despite continuing discrimination, unwed mothers were less likely to lose their jobs if they fell pregnant out of wedlock in the 1960s, and more positive depictions in the media appeared. In addition, sociologists and social workers, instead of seeing unmarried mothers as mentally ‘abnormal’, regarded them as ‘unfortunate’, ironically, a return to the self-depictions of so many eighteenth-century unwed mothers.10 Still, real change began only with the legalisation of abortion (1967) and the wide distribution of the birth control pill (1969), both of which reduced the number of unwanted children born each year. Women gained control over their own sexuality, no longer needing men’s cooperation to avoid conception. In addition, the passage of no-fault divorce in 1969 increased the number of lone mothers (and fathers) overall. As a result, commentators focused more on individual choices and the need for love as the basis for all relationships. Women, then, had more choices throughout the process of conception and pregnancy, and problematic unwed motherhood began to be associated more with teenagers (thus, the periodic moral panics over teen pregnancies).11 The 1970s and 1980s saw large-scale transformations, related both to women’s control of their bodies and to the rise of newly popular family forms. Mass cohabitation, in particular, changed the way couples related to each other and their children. The number of couples who lived together unmarried tripled between 1979 and 1993. In addition, more mothers and fathers parented together without necessarily living together, helped by women’s better economic opportunities. These changes made the division of children into ‘legitimate’ and ‘illegitimate’ obsolete. Consequently, Britain appeared to be legislating for the families of bygone eras, especially in comparison to many European countries. Unlike earlier concerns about the ‘break-up’ of the family or the psychological problems of unwed mothers, most commentators in the 1970s saw the problem as one of maintenance; the key goal for any government was to make sure that children of lone parents had sufficient income, health care, and housing.12

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Unsurprisingly, then, after a campaign by the National Council for One Parent Families (the new name of the NC), Parliament abolished the legal difference between ‘legitimate’ and ‘illegitimate’ in 1987, capping the campaign to erase legal disabilities that had begun in the Victorian era. Since its passage, children of unwed parents had the same rights to support as those with married mothers and fathers, and the problems with provision, so central to their difficulties in the nineteenth century, eased. In other words, most of the legal consequences of ‘irregular’ birth, happily, became relics of the past. All the same, some differences remained. Children born out of wedlock still did not have their fathers’ nationalities, and the 1987 legislation, like that of 1926, did not allow them to inherit titles. In addition, unwed fathers had to fight for custody rights; though the law has changed in this regard, too many commentators did not see them as full fathers (though the objectionable term ‘putative’ vanished, partly due to DNA testing that accurately determined paternity). Another problem was more traditional; though some fathers fought to see their children, others were reluctant to support them. As with many states, Britain struggled to enforce maintenance on men who did not want to accept the responsibility. As a result, despite numerous improvements, children of lone parents were still the most likely to live in poverty; maintenance was less of a problem than in the nineteenth century, but one that was not entirely solved.13 Moreover, the fact that ‘single unwed mothers’ still surfaced in political debates in the twenty-first century demonstrated the staying power of bad associations with this type of family. Indeed, the prevalence of such rhetoric may well have related to women’s confidence in their sexuality and their right to support. In some ways, again, the early twenty-first century resembled the late eighteenth century, when such negative terms abounded, due to resentments over the poor-law rates. Women’s sexual power worried many moralists, and their ‘right’ to public funding, especially regarding housing, was a bone of contention. Thus, those who critiqued these depictions may well have been right to call it a ‘neo-Victorian’ approach, though the ideals of the New Poor Law pre-dated Victoria. What changed was the reaction to the children themselves (in contrast to their parents); even the most conservative moralist hesitated to argue that the children should suffer for the actions of their parents. When Margaret Thatcher attacked public support

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for single parents, for example, she did so by blaming ‘deadbeat’ fathers rather than stigmatising the children.14 In all these areas, contemporary times are a vast improvement, but the legacy of illegitimacy has not entirely faded. Many people are now proud to claim kinship with Home Children in Canada or child convicts in Australia, but the descendants of illegitimate children do not have the same attitude. They are not necessarily ashamed, but they do not self-identify as products of illegitimacy or bind together as a group. To this day, archives close any file involving illegitimacy for seventy-five to one hundred years on the mere chance that someone named in the file might still be alive and not want their secrets exposed. I  was unable to access the Registrar-General’s file on legitimation from the 1920s, because the archivists kept extending the opening date from seventy-five, to eighty, to eighty-five years; my appeals to higher authorities were likewise denied. After all this time, illegitimacy embarrasses some of these mothers and children, an indication that the negative power of the term has not yet died. Placing the stigma on Victorian children was simple, a matter of continuing medieval precedents, but ridding the law of the term was painfully slow, and abolishing its power even slower. If nothing else, studying illegitimacy shows the dangers of declaring any group of people – much less children  – as illegal. That the repercussions were not worse is a testament to the resiliency of these children, the determination of their families, and the generosity of neighbours and friends. Notes 1 S. Pankhurst, Save the Mothers:  A  Plea for Measures to Prevent the Annual Loss of about 3000 Child-Bearing Mothers and 20,000 Infant Lives in England and Wales and a Similar Grievous Wastage in other Countries (London: Alfred A. Knopf, 1930), p. 117. 2 J. Strange, Fatherhood and the British Working Class, 1865–1914 (Cambridge: Cambridge University Press, 2015); L. King, Family Men: Fatherhood and Masculinity in Britain, 1914–1960 (Oxford: Oxford University Press, 2015); H. Rogers, ‘ “First in the house”: Daughters on working-class fathers and fatherhood’, in T. Broughton and H. Rogers, eds, Gender and Fatherhood in the Nineteenth Century (Basingstoke: Palgrave, 2007), 126–37; J.  Tosh, A Man’s Place:  Masculinity and the Middle-Class Home in Victorian England (New Haven: Yale University Press, 1999).

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3 D. Grey, ‘Gender, religion, and infanticide in colonial India, 1870–1906’, Victorian Review 37:2 (2011), 107–20. 4 P. Thane and T.  Evans, Sinners? Scroungers? Saints? Unmarried Motherhood in Twentieth-Century England (Oxford:  Oxford University Press, 2012), pp.  29–46; K.  Holden, The Shadow of Marriage:  Singleness in England, 1914–60 (Manchester:  Manchester University Press, 2007), pp. 119–24, 144–9; L. Davidoff, M. Doolittle, J. Fink, and K. Holden, The Family Story: Blood, Contract and Intimacy, 1830–1960 (New York: Longman, 1999), pp. 247–55. 5 Thane and Evans, Sinners?, pp. 54–81; Holden, Shadow, pp. 125–7. 6 D. Derrick, ed., Illegitimate:  The Experience of People Born Outside Marriage (London: National Council for One Parent Families, 1986), p. 56; J. Fink, ‘Condemned or Condoned? Investigating the Problem of Unmarried Motherhood in England, 1945–60’ (DPhil Thesis, University of Essex, 1997), 219–20. 7 Fink, ‘Condemned or Condoned?’, 134–5, 154–61; Thane and Evans, Sinners?, pp. 106–19. 8 C. Steedman, Landscape for a Good Woman:  A  Story of Two Lives (New Brunswick: Rutgers University Press, 1986), pp. 65–82; J. Fink, ‘Natural mothers, putative fathers, and innocent children:  The definition and regulation of parental relationships outside marriage in England, 1945–1959’, Journal of Family History 25:2 (2000), 186; N.  Durbach, ‘Private lives, public records:  Illegitimacy and the birth certificate in twentieth-century Britain’, Twentieth Century British History 25:2 (2014), 323–5; K. Kiernan, H. Land and J. Lewis, Lone Motherhood in Twentieth-Century Britain:  From Footnote to Front Page (Oxford: Clarendon Press, 1998), pp. 80–3, 103–10. 9 Fink, ‘Natural mothers’, 190–2; Kiernan, et. al., Lone Motherhood, p. 163. 10 Thane and Evans, Sinners?, pp.  120–39; Kiernan, et. al., Lone Motherhood, pp. 110–16. 11 H. Cook, The Long Sexual Revolution:  English Women, Sex, and Contraception, 1800–1975 (Oxford:  Oxford University Press, 2004), pp. 101–3; Kiernan, et. al., Lone Motherhood, pp. 89–91. 12 J. Haskey, ‘Cohabitation and births outside marriage after 1970: A rapidly evolving phenomenon’, in R.  Probert, ed., Cohabitation and Non-Marital Births in England and Wales, 1600–2012 (Basingstoke: Palgrave, 2014), 165–78; Kiernan, et. al., Lone Motherhood, pp.  90, 101, 116–22. 13 Thane and Evans, Sinners?, pp. 169–87; Cook, Long Sexual Revolution, pp.  272–337; J.  Lewis, The End of Marriage? Individualism and Intimate Relations (Cheltenham:  Edward Elgar, 2001), pp.  114–15; Keirnan, et. al., Lone Motherhood, pp. 94–5. 14 Thane and Evans, Sinners?, pp. 169–94.

Bibliography

primary sources

Manuscript collections

National Archives, Kew Gardens, London ASSI 21/70 Western Circuit, Crown Minutes Books ASSI 25/54 Indictment Files, Devon and Cornwall ASSI 26/18 Western Circuit, Depositions and Case Papers ASSI 36/14 Depositions and Coroner’s Report, Kent ASSI 45/73 Coroner’s Depositions, York ASSI 52/32 Northern Circuit, Criminal Depositions and Case Papers BT 15/12 Board of Trade Files CO 850 Colonial Office Files FO 14, 141, 881, Foreign Office Files   and 496343 HO 45,144, and 334 Home Office Files IR 62 Inland Revenue Files J 77 Divorce Petitions LCO 2/751–753 Lord Chancellor’s Office Files MEPO 2 and 20 Records of the Metropolitan Police PCOM 1/116 Old Bailey Sessions Papers PIN 15 and 84 Ministry of Pensions Files RG 48/54, 48/772 Registrar-General Office Files T 1, 161, and 162 Treasury Files TS 27/50 Treasury Solicitor’s Files

Other manuscript collections Birmingham, University of Birmingham Library, Neville Chamberlain Papers, Correspondence, 1920–21, NC 1/26/262 and NC 18/1/255. Cambridgeshire Record Office, Cambridge. Letter Books, Correspondence, Undertakings of Foster Parents, Medical and Boarding-Out Reports, 1860–1930.

Bibliography

277

Centre for Northwest Regional Studies, Lancaster University, Elizabeth Roberts Collection, 1890–1940. Children’s Society Archives, Bermondsey. Case Files, 1884–1930. Children’s Society On-Line Records, www.hiddenlives.org.uk. Firestone Library, University of Princeton, General Collection. Glamorganshire Record Office, Cardiff. Poor Law Minute Books, Local Government Board Correspondence, Children’s Home Visiting Committee Minutes, Boarding-Out Committee Minutes, Ladies’ Indoor Relief Revision Committee Reports, and Undertakings of Foster Parents, 1860–1930. Institute of Historical Research, London, Nineteenth-Century British Newspapers, Hansard’s Parliamentary Debates. London Metropolitan Archives, Foundling Hospital Records, A/ FH/A/6/2/13–70, Letter Books, 1858–1931. Proceedings of the Old Bailey On-Line (1860–1913). University of Reading, Lady Astor Papers, MS 1416/1/335–44 (1923–8), Correspondence and Other Papers. Women’s Library, London Metropolitan University (now at the London School of Economics and Political Science), Papers of the Divorce Law Reform Union, 346.0166 SCA (Pamphlets); Papers of the National Council for the Unmarried Mother and her Child, 5/OPF/02/01/1–12 and 5/OPF/02/03/1a (Management Minutes, Legal Subcommittee Papers, Minutes of the Joint Legislative Committee, Grants Committee Minutes); Papers of the National Union of Societies for Equal Citizenship, 2/NSE/A/1/4 (Executive Committee Minutes). Newspapers Aberdeen Weekly Annual Register Berrow’s Worcester Journal Birmingham Daily Mail Birmingham Daily Post Bristol Mercury Chester Observer Daily News Derby Mercury Englishwoman’s Review Exeter and Plymouth Gazette Daily Telegram Glasgow Herald Hull Packet and East Riding Times Illustrated Police News Ipswich Journal

278

Bibliography

Jackson’s Oxford Journal Lancaster Guardian Leeds Mercury Liverpool Daily Post Liverpool Mercury Lloyd’s Weekly Newspaper Maidstone and Kentish Journal Manchester Guardian Manchester Times Manchester Weekly Times Newcastle Courant Newcastle Weekly Courant Night and Day: A Monthly Record of Christian Missions and Practical Philanthropy North-Eastern Daily Gazette Northern Echo Observer Oxford Times Pall Mall Gazette Reynolds’s Newspaper Standard Supplement to the Norwich Chronicle and Norwich Gazette The Times (London) Time and Tide Warwick and Warwickshire Advertiser Western Mail (Cardiff) Women’s Leader Worcester Daily Times Yorkshire Gazette Legal case books English Reports Justice of the Peace Law Reports, Chancery Division Law Reports, House of Lords Law Reports, King’s Bench Division Law Reports, Queen’s Bench Division Law Students Journal Law Times Solicitor’s Journal and Reporter Times Law Reports

Bibliography

279

Government documents House of Commons Parliamentary Papers On Line, 1893–1931. House of Lords Parliamentary Papers On Line, 1913–31. Hansard’s Parliamentary Debates (1860–1930). Report from the Select Committee on Bastardy Orders. London:  His Majesty’s Stationery Office, 1909. Articles and books Ackerley, J. R. My Father and Myself. New  York:  New  York Review Books, 1968. ‘Affiliation Orders Act, 1914’. Justice of the Peace 79 (1915): 51–2. ‘An Act to Consolidate and Amend the Enactments Relating to British Nationality and the Status of Aliens’. American Journal of International Law 9:4 (1915): 413–23. Atholl, Duchess of. Women and Politics. London: Phillip Allen, 1931. ‘Baralong case’. Cape Law Journal 5 (1888): 182–9. Barnett, H. ‘The young women in our workhouses’. MacMillan’s Magazine 40 (1870): 133–9. ‘Bastards as legatees’. Justice of the Peace 38 (1874): 211–12. Booth, C. Labour and Life of the People of London, First Series. Vol. I. London: Williams and Norgate, 1891. Bowman, J. E. When Every Day was Summer:  Boyhood and Youth in a Rural Community, 1920–1939. Wigan: Owl Books, 1989. Boyle, C. N. ‘Correspondence’. Time and Tide 4 (1923): 957. Brown, H. The Child She Bare. London: Headley Bros, 1918. Brown, P. Round the Corner. London: Faber & Faber, 1934. Burke, T. A Son of London. London: H. Jenkins, 1946. Chaplin, C. My Autobiography. New York: Simon & Schuster, 1964. Collins, W. No Name. London: Penguin, 1994 [first published 1862]. Cookson, C. Our Kate. London: Corgi Books, 1969. Fisher, J. G. Illegitimate Children: An Inquiry into their Native Rights and a Plea for the Abolition of Illegitimacy. London: W. Reeves, 1893. Hatcher, D. The Workhouse and the Weald. Rainham:  Meresborough Books, 1988. Hewins, G. The Dillen:  Memories of a Man of Stratford Upon Avon. Oxford: Oxford University Press, 1982. Hitchman, J. The King of the Barbareens. London: Putnam, 1960. Hooper, W. ‘Can parents give evidence to bastardize their issue?’ Law Quarterly Review 26 (1910): 47–53. Hooper, W. The Law of Illegitimacy. London: Sweet & Maxwell, 1911. Lanchester, E. Elsa Lanchester Herself. New  York:  St. Martin’s Press, 1985. ‘Legitimacy Act doubts’. Justice of the Peace 93 (1929): 137.

280

Bibliography

Loewes, J. ‘Introduction’ to Stella Bowen, Drawn from Life. London: Virago, 1984 [first published 1941]. Lushington, G. The Law of Affiliation and Bastardy. London: Butterworth & Company, 1904. MacKenzie, T. The Last Foundling:  The Memoir of an Underdog. London: Pan Macmillan, 2014. Masters, B. Getting Personal: A Biographer’s Memoir. London: Constable, 2002. Mayhew, H. London Labour and the London Poor. Vols. I–IV. New York: Dover, 1968 [originally published 1861]. Musson, S. ‘The Legitimacy Bill’. Women’s Leader 16 (1924): 45. Nalden, C. Half and Half:  The Memoirs of a Charity Brat, 1908–1989. Tauranga: Moana Press, 1989. Pankhurst, S. Save the Mothers: A Plea for Measures to Prevent the Annual Loss of about 3000 Child-bearing Mothers and 20,000 Infant Lives in England and Wales and a Similar Grievous Wastage in other Countries. London: Alfred A. Knopf, 1930. Pearce, L. Feathers of the Snow Angel:  Memoirs of a Child in Exile. Freemantle: Freemantle Arts Centre Press, 2002. Penn, M. Manchester, Fourteen Miles. Firle: Caliban Books, 1979. Petre, D. The Secret Orchard of Roger Ackerley. New  York:  George Braziller, 1975. Phillimore, W. P. W. ‘Nullius filius “The stranger in blood”’. Law Magazine and Quarterly Review 30 (1904–5): 257–70. Raleigh, K. ‘The unmarried mother’. Woman’s Leader 12:17 (1920): 397. Renier, O. Before the Bonfire. Shipston-on-Stour: P. Drinkwater, 1984. Rocker, R. The London Years. London:  Robert Anscombe and Company, 1956. Rubinstein, J. S. ‘The law of inheritance and illegitimacy’. Solicitor’s Journal and Weekly Reporter 53 (1908–9): 826–7. Scandalous Illegitimacy Bills: Proposed Legislation, Justice for Children? Leicester: Blackfriars Press, 1922. Smith, E. A Cornish Waif’s Story:  An Autobiography. London:  Popular Books Club, 1956. Snow, P. Neither Waif Nor Stray:  The Search for a Stolen Identity. Boca Raton: Universal Publishers, 2000. Stanley, D., ed. The Autobiography of Henry Morton Stanley. New York: Houghton Mifflin, 1937. Steedman, C. Landscape for a Good Woman:  A  Story of Two Lives. Rutgers: Rutgers University Press, 1986. Stride, L. Memoirs of a Street Urchin. Bath: Bath University Press, 1984. Theobald, H. S. Concise Treatise on the Law of Wills. 5th edition. London: Stevens and Sons, 1900. White. J. D. ‘Legitimation by subsequent marriage’. Law Quarterly Review 36 (1920): 255–67.

Bibliography

281

secondary sources

Articles Abrams, L. ‘“Blood is thicker than water”:  Family, fantasy and identity in the lives of Scottish foster children’. In J. Lawrence and P. Starkey, eds, Child Welfare and Social Action, 195–215. Liverpool:  Liverpool University Press, 2001. Abrams, L. ‘Lost childhoods:  Recovering children’s experiences of welfare in modern Scotland’. In A. Fletcher and S. Hussey, eds, Childhood in Question:  Children, Parents and the State, 152–71. Manchester: Manchester University Press, 1999. Abrams, L. ‘“There was nobody like my daddy”: Fathers, the family and the marginalisation of men in modern Scotland’. Scottish Historical Review 78:2 (1995): 219–42. Ainsley, J. N. ‘“Some mysterious agency”: Women, violent crime, and the insanity acquittal in the Victorian courtroom’. Canadian Journal of History 33:1 (2000): 37–55. Anderson, N. F. ‘The “marriage with a deceased wife’s sister bill” controversy:  Incest anxiety and the defense of family purity in Victorian England’. Journal of British Studies 21:2 (1982): 67–86. Anderson, N. F. ‘“Not a fit and proper person”: Annie Besant’s struggle for child custody, 1878–79’. In C. Nelson and A. S. Holmes, eds, Maternal Instincts: Visions of Motherhood and Sexuality in Britain, 1875–1925, 13–36. New York: St. Martin’s, 1997. Andrews, J. ‘The boundaries of Her Majesty’s pleasure:  Discharging child murderers from Broadmoor and Perth Criminal Lunatic Department, c. 1860–1920’. In M. Jackson, ed., Infanticide: Historical Perspectives on Child Murder and Concealment, 1550–2000, 216–48. Aldershot: Ashgate, 2002. Arnot, M. ‘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. Arnot, M. ‘The murder of Thomas Sandles:  Meanings of mid-nineteenthcentury child murder in Victorian England’. In M. Jackson, ed., Infanticide: Historical Perspectives on Child Murder and Concealment, 1550–2000, 249–67. Aldershot: Ashgate, 2002. Arnot, M. ‘Understanding women committing newborn child murder in Victorian England’. In S. D’Cruze, ed., Everyday Violence in Britain, 1850–1950, 55–69. London: Longman, 2000. Auerbach, S. ‘Negotiating nationalism:  Jewish conscription and Russian repatriation in London’s east end, 1916–1918’. Journal of British Studies 46:3 (2007): 594–620. Bailey, J. ‘“Think wot a mother must feel”:  Parenting in English pauper letters, c.  1760–1834’. Family and Community History 13:1 (2010): 5–19.

282

Bibliography

Baldwin, M. P. ‘Subject to empire:  Married women and the British Nationality and the Status of Aliens Act’. Journal of British Studies 40:4 (2001): 522–56. Behlmer, G. ‘Deadly motherhood:  Infanticide and medical opinion in mid-Victorian Britain’. Journal of the History of Medicine 34:4 (1979): 403–27. Behlmer, G. ‘What’s love got to do with it? “Adoption” in Victorian and Edwardian England’. In E. W. Carp, ed., Adoption in America: Historical Perspectives, 82–100. Ann Arbor: University of Michigan Press, 2002. Blaikie, A. ‘Infant survival chances, unmarried motherhood, and domestic arrangements in rural Scotland, 1845–1945’. Local Population Studies 60 (1998): 34–46. Brunet, G. ‘Children abandoned and taken back:  Children, women, and families in dire straits in Lyon in the nineteenth century’. Journal of Family History 36:4 (2011): 424–39. Clark, E. ‘Adoption, narrative, and nation, 1800–1850: The case of William Austin’. Journal of British Studies 53:4 (2014): 960–91. Cody, L. F. ‘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): 131–56. Cox, P. ‘Girls, deficiency, and delinquency’. In D. Wright and A. Digby, eds, From Idiocy to Mental Deficiency:  Historical Perspectives on People with Learning Disabilities, 184–206. London: Routledge, 1996. Doolitte, M. ‘Fatherhood and family shame: Masculinity, welfare and the workhouse in late nineteenth-century England’. In L. Delap, B. Griffin, and A. Wills, eds, The Politics of Domestic Authority in Britain Since 1800, 84–108. Basingstoke: Palgrave, 2009. Durbach, N. ‘Private lives, public records:  Illegitimacy and the birth certificate in twentieth-century Britain’. Twentieth Century British History 25:2 (2014): 305–26. Emmerichs, M. B. ‘Trials of women for homicide in nineteenth-century England’. Women & Criminal Justice 5:1 (1993): 99–109. Evans, T. ‘The other woman and her child: Extra-marital affairs and illegitimacy in twentieth-century Britain’. Women’s History Review 20:1 (2011): 47–65. Evans, T. ‘“Unfortunate objects”:  London’s unmarried mothers in the eighteenth century’. Gender and History 17:1 (2005): 127–53. Finn, M. ‘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, 25–47. Basingstoke: Palgrave, 2010. Frost, G. ‘“The black lamb of the black sheep”:  Illegitimacy in the English working class, 1860–1939’. Journal of Social History 37:2 (2003): 293–322.

Bibliography

283

Frost, G. ‘Claiming justice:  Paternity affiliation in south Wales’. Rural History 24:2 (2013): 177–98. Frost, G. ‘Neither fish nor fowl: Children and parents in cross-class cohabitation’. Victorian Review 39:2 (2013): 47–50. Frost, G. ‘“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. Gledhill, J. ‘Coming of age in uniform: The Foundling Hospital and British army bands in the twentieth century’. Family and Community History 13:2 (2010): 114–27. Gorden, E. ‘Irregular marriage: Myth and reality’. Journal of Social History 47:2 (2013): 507–25. Graves, D. C. ‘“In a frenzy while raving mad”:  Physicians and Parliamentarians define infanticide in Victorian England’. In B. Bechtold and D. C. Graves, eds, Killing Infants:  Studies in the Worldwide Practice of Infanticide, 111–35. Lewiston: Edwin Mellon Press, 2006. Grey, D. ‘Gender, religion, and infanticide in colonial India, 1870–1906’. Victorian Review 37:2 (2011): 107–20. Grey, D. ‘“More ignorant and stupid than wilfully cruel”: Homicide trials and “baby-farming” in England and Wales in the wake of the Children Act 1908’. Crimes and Misdemeanours 3:2 (2009): 60–77. Grey, D. ‘Women’s policy networks and the Infanticide Act, 1922’. Twentieth Century British History 21:4 (2010): 441–63. Gruner, E. R. ‘Born and made:  Sisters, brothers, and the deceased wife’s sister bill’. Signs:  Journal of Women in Culture and Society 24:2 (1999): 423–47. Guarnieri, P. ‘Men committing female crime:  Infanticide, family and honor in Italy, 1890–1981’. Crime, History, and Societies 13:2 (2009): 41–54. Gullace, N. ‘Friends, aliens and enemies:  Fictive communities and the Lusitania Riots of 1915’. Journal of Social History 39:2 (2005): 354–67. Hager, T. ‘Compassion and indifference: The attitude of the English legal system toward Ellen Harper and Selina Wadge, who killed their offspring in the 1870s’. Journal of Family History 33:2 (2008): 173–94. Harvey, B. ‘The putative fathers of Swinton, England: Illegitimate behavior under the old poor laws, 1797–1835’. Journal of Family History 40:3 (2015): 373–98. Haskey, J. ‘Cohabitation and births outside marriage after 1970: A rapidly evolving phenomenon’. In R. Probert, ed., Cohabitation and Non-Marital Births in England and Wales, 1600–2012, 158–91. Basingstoke: Palgrave, 2014. Henriques, U. R. W. ‘Bastardy and the new poor law’. Past and Present 37 (1967): 103–29.

284

Bibliography

Higginbotham, A. ‘“Sin of the age”: Infanticide and illegitimacy in Victorian London’. Victorian Studies 32:3 (1989): 319–37. Holmes, A. S. ‘“Fallen mothers”: Maternal adultery and child custody in England, 1886–1925’. In C. Nelson and A. S. Holmes, eds, Maternal Instincts: Visions of Motherhood and Sexuality in Britain, 1875–1925, 37–57. New York: St. Martin’s, 1997. Homrighaus, R. ‘Wolves in women’s clothing:  Baby-farming and the British Medical Journal, 1860–1872’. Journal of Family History 26:3 (2001): 350–72. Hughes, A. and J. Meek. ‘State regulation, family breakdown, and lone motherhood:  The hidden cost of World War I  in Scotland’. Journal of Family History 39:4 (2014): 364–87. Ireland, R. W. ‘“Perhaps my mother murdered me”:  Child death and the law in Victorian Carmarthenshire’. In C. Brooks and M. Lobban, eds, Communities and Courts in Britain, 1150–1900, 229–44. London: Hambledon Press, 1997. Kilday, A. and K. D. Watson. ‘Infanticides, religion and community in the British isles, 1720–1920: Introduction’. Family and Community History 11:2 (2008), 84–99. King, S. ‘Friendship, kinship and belonging in the letters of urban paupers, 1800–1840’. Historical Social Research 33:3 (2008): 249–77. King, S. ‘“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. Krueger, C. L. ‘Literary defenses and medical prosecutions:  Representing infanticide in nineteenth-century Britain’. Victorian Studies 40:2 (1997): 271–94. Levene, A. ‘Family breakdown and the “welfare child” in 19th and 20th century Britain’. History of the Family 11:2 (2006): 67–79. Levene, A. ‘Poor families, removals and “nurture” in late old poor law London’. Continuity and Change 25:2 (2010): 233–62. Levine-Clark, M. ‘From “relief” to “justice and protection”:  The maintenance of deserted wives, British masculinity and Imperial citizenship, 1870–1920’. Gender and History 22:2 (2010): 302–21. Lomas, J. ‘“Delicate duties”:  Issues of class and respectability in government policy towards the wives and widows of British soldiers in the era of the Great War’. Women’s History Review 9:1 (2000): 123–47. MacKinnon, M. ‘English poor law policy and the crusade against outrelief’. Journal of Economic History 47:3 (1987): 603–25. Marland, H. ‘Getting away with murder? Puerperal insanity, infanticide, and the defence plea’. In M. Jackson, ed., Infanticide:  Historical Perspectives on Child Murder and Concealment, 1550–2000, 168–92. Aldershot: Ashgate, 2002.

Bibliography

285

Nutt, T. ‘Illegitimacy, paternal financial responsibility, and the 1834 Poor Law Commission Report: The myth of the old poor law and the making of the new’. Economic History Review 63:2 (2010): 335–61. Parnell, J. ‘Translating and conveying the damaging childhood in Our Kate’. In J. Taddeo, ed., Catherine Cookson Country:  On the Borders of Legitimacy, Fiction, and History, 85–102. Burlington: Ashgate, 2012. Pedersen, S. ‘Gender, welfare and citizenship in Britain during the Great War’. American Historical Review 95:4 (1990): 938–1006. Probert, R. ‘Cohabitation in twentieth-century England and Wales:  Law and policy’. Law and Policy 26:1 (2004): 13–32. Putnam, L. ‘Citizenship from the margins: Vernacular theories of rights and the state from the interwar Caribbean’. Journal of British Studies 53:1 (2014): 162–91. Quinn, C. ‘Images and impulses:  Representations of puerperal insanity and infanticide in late Victorian England’. In M. Jackson, ed., Infanticide: Historical Perspectives on Child Murder and Concealment, 1550–2000, 193–215. Aldershot: Ashgate, 2002. Reay, B. ‘Kinship and neighborhood in nineteenth-century rural England: The myth of the autonomous nuclear family’. Journal of Family History 21:1 (1996): 87–104. Reay, B. ‘Sexuality in nineteenth-century England:  The social context of illegitimacy in rural Kent’. Rural History 1:2 (1990): 219–47. Reid, A. ‘The influences on the health and mortality of illegitimate children in Derbyshire, 1917–1922’. In A. Levene, T. Nutt, and S. Williams, eds, Illegitimacy in Britain, 1700–1920, 168–89. Basingstoke: Palgrave Macmillan, 2005. Reid, A., R. Davies, E. Garrett, and A. Blaikie. ‘Vulnerability among illegitimate children in nineteenth century Scotland’. Annales de Demographie Historique 1 (2006): 89–113. Rogers, H. ‘“First in the house”: Daughters on working-class fathers and fatherhood’. In T. Broughton and H. Rogers, eds, Gender and Fatherhood in the Nineteenth Century, 126–37. Basingstoke: Palgrave, 2007. Savage, G. ‘Erotic stories and public decency:  Newspaper reporting of divorce in England’. Historical Journal 41:2 (1998): 511–28. Sheetz-Nguyen, J. ‘Calculus of respectability:  Defining the world of Foundling Hospital women and children in Victorian London’. Annales de Demographie Historique 2 (2007): 13–36. Sparks, T. ‘Lineage as destiny in Catherine Cookson’s Our Kate: Reprising the Victorian orphan tale’. In J. Taddeo, ed., Catherine Cookson Country:  On the Borders of Legitimacy, Fiction and History, 35–48. Burlington: Ashgate, 2012. Stewart, J. and S. King. ‘Death in Llantrisant: Henry Williams and the new poor law in Wales’. Rural History 15:1 (2004): 69–87.

286

Bibliography

Swain, S. ‘Toward a social geography of baby farming’. History of the Family 10:2 (2005): 151–9. Tabili, L. ‘“Having lived close beside them all the time”:  Negotiating national identities through personal networks’. Journal of Social History 39:2 (2005): 369–87. Tabili, L. ‘Outsiders in the land of their births:  Exogamy, citizenship, and identity in war and peace’. Journal of British Studies 44:4 (2005): 796–815. Taylor, J. B. ‘The curious case of William Shedden and the 1858 Legitimacy Declaration Act’. Cultural and Social History 4:2 (2007): 171–92. Thane, P. ‘Women and the poor law in Victorian and Edwardian London’. History Workshop Journal 6 (1978): 29–51. Thomson, D. ‘“I am not my father’s keeper”:  Families and the elderly in nineteenth-century England’. Law and History Review 2:2 (1984): 265–86. Thomson, M. ‘Family, community, and the state: The micro-politics of mental deficiency’. In D. Wright and A. Digby, eds, From Idiocy to Mental Deficiency: Historical Perspectives on People with Learning Disabilities, 207–30. London: Routledge, 1996. Walker, P. ‘Adoption and Victorian culture’. History of the Family 11:4 (2006): 211–21. Ward, T. ‘Legislating for human nature:  Legal responses to infanticide, 1860–1939’. In M. Jackson, ed., Infanticide:  Historical Perspectives on Child Murder and Concealment, 1550–2000, 249–69. Aldershot: Ashgate, 2002. Watson, K. ‘Religion, community, and the infanticidal mother:  Evidence from 1840s rural Wiltshire’. Family and Community History 11:2 (2008): 116–33. Williams, S. ‘“A good character for virtue, sobriety, and honesty”: Unmarried mothers’ petitions to the London Foundling Hospital and the rhetoric of need in the early nineteenth century’. In A. Levene, T. Nutt, and S. Williams, eds, Illegitimacy in Britain, 1700–1920, 86–101. Basingstoke: Palgrave Macmillan, 2005. Wright, D. ‘De Manneville v.  De Manneville:  Rethinking the birth of custody law under patriarchy’. Law and History Review 17:2 (1999): 247–307. Books Adie, K. Nobody’s Child: Who Are You When You Don’t Know Your Past? London: Hodder & Stoughton, 2005. Amussen, S. D. An Ordered Society:  Gender and Class in Early Modern England. New York: Columbia University Press, 1988.

Bibliography

287

Ashby, M. K. Joseph Ashby of Tysoe, 1839–1919:  A  Study of English Village Life. London: Merlin Press, 1974. Auerbach, N. Ellen Terry: Player in Her Time. Philadelphia: University of Pennsylvania Press, 1987. Ballinger, A. Dead Woman Walking:  Executed Women in England and Wales, 1900–1955. Aldershot: Ashgate, 2000. Bean, P. and J. Melville. Lost Children of the Empire. London:  Unwin Hyman, 1989. Behlmer, G. Child Abuse and Moral Reform in England, 1870–1908. Stanford: Stanford University Press, 1982. Behlmer, G. Friends of the Family: The English Home and its Guardians, 1850–1940. Stanford: Stanford University Press, 1998. Bierman, J. Dark Safari:  The Life Behind the Legend of Henry Morton Stanley. New York: Alfred A. Knopf, 1990. Blaikie, A. Illegitimacy, Sex, and Society: Northeast Scotland, 1750–1900. Oxford: Clarendon Press, 1993. Brundage, A. The English Poor Laws, 1700–1930. Basingstoke: Palgrave, 2002. Buettner, E. Empire Families:  Britons and Late Imperial India. Oxford: Oxford University Press, 2004. Bullock, A. Ernest Bevin:  A  Biography. Revised edition. London: Politico, 2002. Burnett, J., ed. Destiny Obscure: Autobiographies of Childhood, Education, and Family from the 1820s to the 1920s. London: Routledge, 1994. Burney, I. Poison, Detection and the Victorian Imagination. Manchester: Manchester University Press, 2006. Chadwick, R. Bureaucratic Mercy: The Home Office and the Treatment of Capital Cases in Victorian Britain. New York: Garland, 1992. Clarke, W. The Secret Life of Wilkie Collins. Stroud:  Alan Sutton Publishing, 1989. Cohen, D. Family Secrets:  Shame and Privacy in Modern Britain. Oxford: Oxford University Press, 2013. Conley, C. Certain Other Countries:  Homicide, Gender and National Identity in Late Nineteenth-Century England, Ireland, Scotland, and Wales. Columbus: Ohio State University Press, 2007. Conley, C. The Unwritten Law:  Criminal Justice in Victorian Kent. Oxford: Oxford University Press, 1991. Cook, H. The Long Sexual Revolution:  English Women, Sex, and Contraception, 1800–1975. Oxford: Oxford University Press, 2004. Cox, P. Bad Girls in Britain:  Gender, Justice and Welfare, 1900–1950. Basingstoke: Palgrave, 2013. Cretney, S. Family Law in the Twentieth Century. Oxford:  Oxford University Press, 2003.

288

Bibliography

Cretney, S. Law, Law Reform, and the Family. Oxford: Clarendon Press, 1998. Davidoff, L. and C. Hall. Family Fortunes: Men and Women of the English Middle Class, 1780–1850. Chicago: Chicago University Press, 1987. Davidoff, L. Thicker than Water: Siblings and their Relations, 1780–1920. Oxford: Oxford University Press, 2012. Davidoff, L., M. Doolittle, J. Fink, and K. Holden. The Family Story: Blood, Contract, and Intimacy, 1830–1960. New York: Longman, 1999. Davin, A. Growing Up Poor:  Home, School, and Street in London, 1870–1914. London: Rivers Oram Press, 1996. D’Cruze, S. Crimes of Outrage:  Sex, Violence and Victorian Working Women. DeKalb: Northern Illinois University Press, 1998. Derrick, D., ed. Illegitimate:  The Experience of People Born Outside Marriage. London: National Council for One Parent Families, 1986. Evans, T. ‘Unfortunate Objects’:  Lone Mothers in Eighteenth-Century London. Basingstoke: Palgrave, 2005. Frost, G. Living in Sin:  Cohabiting as Husband and Wife in Nineteenth-Century England. Manchester:  Manchester University Press, 2008. Gillis, J. For Better, For Worse:  British Marriages, 1600 to the Present. Oxford: Oxford University Press, 1985. Glendenning, V. Rebecca West: A Life. New York: Alfred A. Knopf, 1987. Goc, N. Women, Infanticide and the Press, 1822–1922: News Narratives in England and Australia. Farnham: Ashgate, 2013. Graham-Dixon, S. Never Darken My Door:  Working for Single Parents and their Children, 1918–1978. London:  National Council for One Parent Families, 1981. Holden, K. The Shadow of Marriage: Singleness in England, 1914–1960. Manchester: Manchester University Press, 2007. Humphreys, R. Sin, Organized Charity and the Poor Law in Victorian England. London: St. Martin’s Press, 1995. Humphries, J. Childhood and Child Labour in the British Industrial Revolution. Cambridge: Cambridge University Press, 2010. Humphries, S. A Secret World of Sex–Forbidden Fruit:  The British Experience, 1900–1950. London: Sidgwick & Jackson, 1988. Ingram, M. Church Courts, Sex and Marriage in England, 1570–1640. Cambridge: Cambridge University Press, 1987. Jackson, L. Child Sexual Abuse in Victorian England. London: Routledge, 2000. Jackson, M. New-Born Child Murder: Women, Illegitimacy and the Courts in Eighteenth-Century England. Manchester:  Manchester University Press, 1996. Jeal, T. Stanley:  The Impossible Life of Africa’s Greatest Explorer. London: Faber & Faber, 2007.

Bibliography

289

Jones, E. W. Sir Henry Morton Stanley:  The Enigma. Denbigh:  Gee & Sons, 1989. Jones, K. Catherine Cookson:  The Biography. London:  Warner Books, 1999. Keating, J. A Child for Keeps:  The History of Adoption in England, 1918–1945. Basingstoke: Palgrave, 2009. Kiernan, K., H. Land, and J. Lewis. Lone Motherhood in Twentieth-Century Britain: From Footnote to Front Page. Oxford: Clarendon Press, 1998. Kilday, A. A History of Infanticide in Britain, 1600 to the Present. Basingstoke: Palgrave, 2013. King, L. Family Men: Fatherhood and Masculinity in Britain, 1914–1960. Oxford: Oxford University Press, 2015. King, S. Poverty and Welfare in England, 1700–1850:  A  Regional Perspective. Manchester: Manchester University Press, 2000. Knelman, J. Twisting in the Wind: The Murderess and the English Press. Toronto: University of Toronto Press, 1998. Leneman, L. and R. Michison. Sexuality and Social Control:  Scotland, 1660–1780. Oxford: Blackwell, 1989. Lewis, J. The End of Marriage? Individualism and Intimate Relations. Cheltenham: Edward Elgar, 2001. Lynn, K. S. Chaplin and His Times. New York: Simon & Schuster, 1997. Mack, J. A Prince of Our Disorder: The Life of T. E. Lawrence. Boston: Little, Brown, and Co., 1976. Marland, H. Dangerous Motherhood: Insanity and Childbirth in Victorian Britain. Basingstoke: Palgrave, 2004. Marquand, D. Ramsay MacDonald. London: Jonathan Cape, 1977. Masters, B. Now Barabbas was a Rotter: The Extraordinary Life of Marie Corelli. London: Hamish Hamilton, 1978. Middleton, N. When Family Failed:  The Treatment of Children in the Care of the Community During the First Half of the Twentieth Century. London: Victor Gollancz, 1971. Milanich, N. Children of Fate:  Childhood, Class, and the State in Chile, 1850–1930. Durham: Duke University Press, 2009. Morgan, A. J. Ramsay MacDonald. Manchester:  Manchester University Press, 1987. Morgan, K. Keir Hardie:  Radical and Socialist. London:  Weidenfeld & Nicolson, 1975. Murdoch, L. Imagined Orphans:  Poor Families, Child Welfare, and Contested Citizenship in London. Rutgers:  Rutgers University Press, 2006. Myers, R. M. Reluctant Expatriate:  The Life of Harold Frederic. Westport: Greenwood Press, 1995. Nelson, G. K. Seen and Not Heard: Memories of Childhood in the Early 20th Century. Dover: Alan Sutton Publishing, 1993.

290

Bibliography

Oliver, C. and P. Aggleton. Coram’s Children: Growing up in the Care of the Foundling Hospital, 1900–1955. London: Coram Family, 2000. Parker, P. Ackerley: The Life of J. R. Ackerley. New York: Farrar, Straus, Giroux, 1989. Parker, R. Uprooted:  The Shipment of Poor Children to Canada, 1867–1917. Bristol: The Policy Press, 2010. Parr, J. Labouring Children:  British Immigrant Apprentices to Canada, 1869–1924. London: Croom Helm, 1980. Patten, R. George Cruikshank’s Life, Times and Art. 2  vols. London: Lutterworth Press, 1996. Pedersen, S. Eleanor Rathbone and the Politics of Conscience. New Haven: Yale University Press, 2004. Probert, R. Marriage Law and Practice in the Long Eighteenth Century: A Reassessment. Cambridge: Cambridge University Press, 2009. Pugh, G. London’s Forgotten Children: Thomas Coram and the Foundling Hospital. Stroud: Tempus, 2007. Ransom, T. The Mysterious Miss Marie Corelli:  Queen of the Victorian Bestsellers. Stroud: Sutton Publishing, 1999. Reynolds, B. Dorothy Sayers: Her Life and Soul. New York: St. Martin’s Press, 1993. Robinson, D. Chaplin: His Life and Art. London: Collins, 1985. Rose, L. Massacre of the Innocents:  Infanticide in Britain, 1800–1939. London: Routledge and Kegan Paul, 1986. Sackville-West, R. The Disinherited: A Story of Family, Love and Betrayal. London: Bloomsbury, 2014. Sheetz-Nguyen, J. Victorian Women, Unwed Mothers and the London Foundling Hospital. London:  Continuum International Publishing Group, 2012. Snell, K. D.  M. Parish and Belonging:  Community, Identity and Welfare in England and Wales, 1700–1950. Cambridge:  Cambridge University Press, 2006. Stephens, M. Ernest Bevin  – Unskilled Labourer and World Statesman, 1881–1951. Stevenage: SPA Books, 1985. Strange, J. Fatherhood and the British Working Class, 1865–1914. Cambridge: Cambridge University Press, 2015. Swain, S. and M. Hillel. Child, Nation, Race, and Empire:  Child Rescue Discourse, England, Canada, and Australia, 1850–1915. Manchester: Manchester University Press, 2010. Teichman, J. Illegitimacy:  An Examination of Bastardy. Ithaca:  Cornell University Press, 1982. Thane, P. and T. Evans. Sinners? Scroungers? Saints? Unmarried Motherhood in Twentieth-Century England. Oxford: Oxford University Press, 2012.

Bibliography

291

Thomson, M. The Problem of Mental Deficiency: Eugenics, Democracy, and Social Policy in Britain c. 1870–1959. Oxford: Clarendon Press, 1998. Thompson, T., ed. Dear Girl:  The Diaries and Letters of Two Working Women, 1897–1917. London: The Women’s Press, 1987. Tosh, J. A Man’s Place: Masculinity and the Middle-Class Home in Victorian England. New Haven: Yale University Press, 1999. Tsuzuki, C. Tom Mann, 1856–1941: The Challenges of Labour. Oxford: Clarendon Press, 1991. Watson, K. Poisoned Lives:  English Poisoners and Their Victims. London: Hambledon and London, 2004. White, J. Tom Mann. Manchester: Manchester University Press, 1991. Woolf, R. Sensational Victorian: The Life and Fiction of Mary Elizabeth Braddon. New York: Garland, 1979. Zunshine, L. Bastards and Foundlings: Illegitimacy in Eighteenth-Century England. Columbus: Ohio State University Press, 2005. Theses, dissertations, and unpublished papers Fink, J. ‘Condemned or Condoned? Investigating the Problem of Unmarried Motherhood in England, 1945–1960’. Unpublished DPhil Thesis, University of Essex, 1997. Grey, D. ‘Discourses of Infanticide in England, 1880–1922’. Unpublished DPhil Thesis, Roehampton University, 2008. Higginbotham, A. R. ‘The Unmarried Mother and Her Child in Victorian London, 1834–1914’. Unpublished PhD Dissertation, Indiana University, 1985. Homrighaus, R. ‘Baby Farming:  The Care of Illegitimate Children in England, 1860–1943’. Unpublished PhD Dissertation, University of North Carolina at Chapel Hill, 2003. Shepherd, J. ‘Victorian Madmen:  Broadmoor, Masculinity, and the Experiences of the Criminally Insane’. Unpublished DPhil Thesis, Lancaster University, 2014. Steinberg, J. B. ‘The Development of a Social Policy Towards Illegitimacy in England, 1870–1918’. Unpublished PhD Dissertation, University of Cincinnati, 1980. Wilson, C. ‘Mad, Sad, or Bad? Newspaper and Judicial Representations of Men Who Killed Children in Victorian England, 1860–1900’. Unpublished DPhil Thesis, University of Essex, 2012.

Index

abortion 72, 272 adoption 3, 6, 9, 15, 33–6, 38, 79, 86, 91–2, 95–101, 109, 159, 161, 171, 183–5, 192, 204–5, 210, 214, 216–22, 224–5, 232–3, 240–1, 245, 260, 267 by poor-law unions 119, 123–4, 132–8, 269 Adoption Act (1926) 5–6, 35, 101, 105, 133, 159, 161, 205, 216, 221–2 adultery 6–7, 15, 17–19, 21, 26, 28–9, 35, 42, 60, 81, 85–9, 112, 154–6, 159, 180, 183–4, 209, 271 see also divorce affiliation 5, 18, 41, 53, 66, 79, 81, 84, 86, 90, 109–17, 120–5, 135, 139, 147, 149–51, 162, 189, 266–7, 269, 271 see also bastardy; poor law; provision Affiliation Orders Bill (1914) 125 Ainsley, Jill Newton 67 Astor, Nancy, Lady 49, 150, 157, 159 baby farming 2, 50, 55, 92, 96–101, 103–5, 110, 146, 218–19, 269

see also adoption; fostering; neonaticide; nurses Baldwin, M. Page 167 Ballinger, Anette 64 bastardy clause see New Poor Law effect of word 181–2, 238–40, 243–4 laws 2–4, 6, 24, 33, 68, 71, 81, 84, 103, 116, 123, 239 orders 8, 40–1, 62, 82, 109–17, 171 reform of 146–51, 155, 160 see also Workman’s Compensation Act Behlmer, George 132, 219, 222 Bevin, Ernest 160 Bierman, John 198 bigamy 19, 26, 128–9, 181, 183 see also cohabitation birth certificate 18, 30, 161–3, 171, 238, 245–6, 260, 271 Blaikie, Andrew 4 Boer War 86, 89 Brown, Hannah 226, 251 Brown, Percy 187, 192, 254 Buckmaster, Stanley, Lord 152–3, 156 Cambridge Union 3, 120–38, 254 see also poor law

Index Cardiff Union 3, 120–38, 254–5 see also poor law CEWSS see Church of England Waifs and Strays Society Chamberlain, Neville 128, 148–50, 152, 154 Chaplin, Charles 207 child murder (children over a year) 52–3, 55, 63 death penalty and 63–4 see also baby farming; concealment of birth; infanticide; neonaticide Children Act (1889) 97, 134 Children Act (1908) 84, 97, 102, 105 Church of England Waifs and Strays Society (CEWSS) 3, 181, 188, 194, 208–9, 215–20, 223, 225, 249, 251–8, 260–1 Cody, Lisa Forman 8 cohabitation 6, 26, 30, 40–3, 82, 90–1, 93, 110, 112–13, 119, 156, 159, 165, 179–82, 190, 195, 198–9, 207, 251–2, 270, 272 cross-class 182–6, 257, 268 poor law and 127–30, 136–8 see also bigamy Cohen, Deborah 3, 184, 217, 220 Collins, Wilkie 14, 182 concealment of birth 51–7, 63, 67, 69, 81, 85, 92 see also child murder; infanticide; neonaticide Conley, Carolyn 50–1, 53–4 Cookson, Catherine (born Katie McMullen) 191–2, 196–8, 239–41, 244–5, 247, 249–50, 268 Cox, Pamela 250 Craig, Gordon 185, 226

293

cruelty cases 1, 52, 80–1, 84, 90–1, 94, 96, 101–3 custody 5, 15, 34–8, 79, 82, 84, 93, 119–20, 135–7, 170, 185, 189–90, 193–4, 206–7, 211, 215–16, 222, 267, 273 Davidoff, Leonore 187 Deane, Sir Henry Bargrave 33–4 desertion 3, 6, 14, 43, 61–3, 103, 123–4, 129, 130, 134–5, 180–2, 198–9, 208–9, 212, 242 divorce 6, 17–18, 28, 33, 112, 154–6, 159–62, 170–1, 184–6, 206, 226, 271–2 see also adultery; Matrimonial Causes Act Evans, Tanya 7, 272 family circulating children 205–9, 230–2 extended 31–3, 79, 94–5, 105, 162–4, 186–90, 208, 267–8, 271–2 illegitimacy and 6, 179–99, 249–50, 252–4, 268, 273 legal definition 15–27, 29–34, 38–43, 54, 266–7 marriage of illegitimates 258–61 nationality and 163–70 nuclear 31, 55–6, 59, 70–1, 73, 79, 103, 260 poor law and 118–39 taxation 27–9 see also adoption; cohabitation; custody; fathers; mothers; step-parents fathers 56–7, 62–3, 65–6, 70–1, 73, 79, 146–8, 189–91, 206–9, 267–8, 271–4

294

Index

fathers (cont.) absence 1, 49, 51, 59–61, 137, 150, 180–1, 192, 195–6, 198–9, 216, 223, 226, 232, 238, 241, 244–7, 258–60 affiliation suits and 5, 8, 109–17 nationality 165–70 poor law and 118–25, 135–6, 138–9 violence 55–7, 59–60, 80–94, 103–5 see also adoption; cohabitation; custody; fostering; provision; step-parents FH see London Foundling Hospital Fink, Janet 270–1 First World War 4–5, 31, 40–3, 83, 119, 139, 148, 152, 181, 187, 205, 221, 226, 253, 257, 269–70 see also Ministry of Pensions fostering 3, 6, 33, 80, 105, 125, 127, 164, 179, 191, 241, 248, 251, 259–60, 267–8, 270 circulation 204–5, 208, 210–16, 219–20, 222–3, 225–8, 231–3 custody 35–8, 189 poor law and 130–4, 138–9 violence 79–80, 95–101 see also adoption; baby farming; nurses Gillis, John 9 Goc, Nicola 70 Graves, Donna Cooper 71 Grey, Daniel 69 Guarniari, Patrizia 90 Hager, Tamar 64 Hall, W. Clark 103, 151 Hardie, Keir 39, 160 Hardwicke Marriage Act (1753) 16

Hatcher, Dorothy 118, 198, 210–11, 223, 232, 247–8, 250–1, 259–60 Higginbotham, Ann 53, 72 Homrighaus, Ruth 96–8 House of Commons see Parliament House of Lords see Parliament Humphries, Jane 243 incest 56, 63, 85–6, 209 infanticide 2, 50–5, 58–60, 67–71, 110, 269 Infanticide Act (1922) 5, 50, 69–70 Infant Life Protection Act (1872) 97, 219 insanity 26, 29, 53, 66–8, 80, 83, 88, 121, 130, 134–5, 147, 150, 185, 218 intestacy 20, 29–34, 38–9, 152 Jeal, Tim 198 Kilday, Anne-Marie 51 King, Steven 3 Labour Party 39, 69, 146, 149–50, 152, 157, 159–60 Lanchester, Elsa 239, 261 Legitimacy Act (1926) 4–6, 19, 32, 269–70 aftermath of 160–71 passage of 151–60 Legitimacy Act (1959) 271 Legitimacy Declaration Act (1857) 4, 15–19, 161, 170 Local Government Board (LGB), 53, 118–19, 122–9 predecessor (Poor Law Board) 129 successor (Ministry of Health) 128, 137, 270 London Foundling Hospital (FH) 3, 7–8, 210–11, 213–15, 223, 226, 241, 246, 250

Index foundlings’ work 251–8, 261 marriage and family 259–60 reclamations 227–32 Macdonald, Ramsay 160 Matrimonial Causes Act (1857) 17 see also adultery; divorce Mental Deficiency Act (1913) 134, 137–8, 240, 251 Midleton, St John Brodrick, Earl of 153–4, 170 migration 6, 93, 209, 214, 216, 224, 229–30, 241, 246, 248, 254, 257–8, 268, 274 Milanich, Nara 204 Ministry of Health see Local Government Board Ministry of Pensions 40–2 see also First World War mothers 7–8, 10, 117, 242, 270–4 circulation 6, 204–16, 219–32 class 87, 182–6, 224, 257 custody 34–8, 135–7, 188, 190, 214–16 family relationships 179–99, 232, 255 gender differences 197–8, 224–6, 229–32, 239–41 illegitimates as mothers 259–60 legal position 15, 28–9, 33–4, 111–12, 114, 118, 162–70, 221, 239, 267 mental deficiency 131, 137–8 neglect 91–2, 97, 99–101, 211–12, 242–3 poor law 120–30, 133–5 provision 8–9, 22–4, 118, 179, 270–3 reforms for 5, 39, 42, 146–52, 158–9, 260, 271 relationship of mother and child 191–2, 194–6, 223–7, 228–32, 249

295 violence 1–2, 5, 49–74, 80–1, 85, 103–4, 268–9 see also adoption; affiliation; fostering; nurses; step-parents

Nalden, Charles 210–11, 213, 226, 256–7, 259 National Council for the Unmarried Mother and her Child (NC) 148–51, 153, 158–9, 205, 222, 242, 245, 270, 273 National Society for the Prevention of Cruelty to Children (NSPCC) 84, 101–3, 207–8, 212 National Union of Societies for Equal Citizenship (NUSEC) 148–51, 153, 157–8 NC see National Council for the Unmarried Mother and her Child neglect 52–3, 60–1, 79–80, 83–4, 90–2, 94–7, 99–101, 104, 206–8, 211–12, 217, 219, 242 neonaticide 50–5, 63, 67–70, 85 see also baby farming; concealment of birth; infanticide New Poor Law (1834) 3–4, 8, 50, 81, 273 bastardy clause of 8–9, 109, 118, 268 NSPCC see National Society for the Prevention of Cruelty to Children nurses 34–5, 37, 59–63, 65–6, 73, 80, 95–9, 103–4, 123–4, 127, 189, 210–12, 214, 219 see also adoption; baby farming; fostering NUSEC see National Union of Societies for Equal Citizenship

296

Index

Pankhurst, Sylvia 266, 269 Parliament 4, 8, 15–16, 39, 50, 53, 84, 109–11, 113–14, 117, 123, 139, 146–8, 150–7, 159–61, 205, 212, 271, 273 House of Commons 68, 128, 147–9, 152–7, 160, 269 House of Lords 14, 16, 19–20, 23, 34, 39, 68, 146–7, 150–7, 159–60, 171, 269 Pedersen, Susan 42 poor law 2–5, 8–9, 28, 62–3, 84, 90, 103, 105, 109–10, 114, 117–39, 146–7, 149, 180–1, 199, 219, 266, 268–9, 273 see also Cambridge Union; Cardiff Union; provision; workhouse Poor Law Amendment Act (1872) 110 Poor Law Board see Local Government Board poverty 1–3, 5, 7, 9, 14, 28, 30, 42, 117–18, 139, 172, 180–1, 193, 212, 223, 238, 240, 242–4, 247–8, 257–8, 266–8, 270, 272–3 fathers’ violence and 81–4, 90, 104 mothers’ violence and 53–4, 57–63, 65–7, 70, 73 neglect and 91, 94–7 see also neglect; provision Probert, Rebecca 16, 40, 43 provision 2, 5, 8–9, 15, 39, 43, 49–50, 57–63, 109–12, 164, 179, 194, 208, 238, 266–7, 271, 273 private agreements for 114–15 see also affiliation; neglect; poor law; poverty; wills; Workman’s Compensation Reay, Barry 193

Sackville-West, Henry 18–19, 185 Sayers, Dorothy 245, 257 Scotland 4, 7, 43, 115, 130, 146, 151, 153, 155, 160, 164–5, 168–9, 239 Gretna Green 16–18 Perth 68 Second World War 129, 260, 270–1 secrecy 3, 5–6, 15, 18, 28, 32–3, 43, 51–2, 54–7, 85–8, 90, 114, 161–2, 179, 183, 186, 191–3, 195–6, 199, 222, 257–8, 270, 274 sexuality 2, 7, 10, 34, 49–50, 54, 82, 85–90, 109, 112–14, 154, 160, 184–5, 197–9, 212, 240–1, 247, 269, 272–3 Shedden v. Patrick 16–17, 164–5, 169 Shepherd, Jade 83 Six Points Group (SPG) 148–51, 157–8 Smith, Barbara Leigh 248, 261 Smith, Emma 192, 195, 209, 212, 223–4, 226–7, 232, 239–40, 244–5, 247 Snell, K. D. M. 3 Social Darwinism 192, 197–8, 220–1, 224–5, 240, 248, 269 and ‘bad blood’ 199, 221, 224, 238, 240–1 Stanley, Henry Morton (born John Rowlands) 190–1, 198, 225–7, 245, 254, 268 step-parenting 79, 91, 103–4, 232, 267 circulation 206–9, 228, 230 stepfathers 37, 160, 163, 191, 193–5, 198, 244–6, 256, 267, 270 poor law and 118–19, 125–6, 139

Index violence 79–81, 83–4, 88, 90–4, 104, 253 stepmothers 84, 92–4, 97, 104, 193, 206–8 Strange, Julie-Marie 225 Stride, Louie 193, 195, 242–4, 246–7, 249 Taylor, Jenny Bourne 17–18 Thomson, Michael 137 Vivian, Sylvanus 161, 163 Wales 4, 8, 56, 129–30 see also Cardiff Union West, Anthony 185, 226

297

wills 19–27, 33 Wilson, Cathryn 83, 99 workhouse 3, 6, 9, 28, 49–50, 58–62, 64–5, 72–3, 82, 110, 117–38, 179, 187–8, 191, 193–4, 198, 204, 207, 209–13, 219, 221–3, 225–6, 232–3, 239–40, 242–4, 247–58, 261, 267–8, 270 see also Cambridge Union; Cardiff Union; poor law Workman’s Compensation Act (1906) 39, 43, 160 Zunshine, Lisa 7