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Bastardy

Contents.

Early attitudes to illegitimacy.

Bastardy and the Poor

The examination

The warrant

The affiliation order

Failure to comply

The Poor Law Amendment Act

The subject of bastardy may seem an odd one to include in a site about the work of a land surveyor but it was a matter of huge importance throughout John Martin’s time and he became directly involved with the subject in his roles as churchwarden, overseer of the poor and later, Guardian of the Poor. His detailed work in this area is covered elsewhere, in this section I look at the broader history of bastardy.

Although bastardy exacted a huge cost in human terms it was the monetary cost to the parish that was the Overseers prime concern and vast amounts of money, time and energy were given over to ensuring that the putative father of the child paid his share of the costs of maintaining the child. It was in so many ways all completely unnecessary as a brief outline of the history of bastardy shows.

Early attitudes to illegitimacy.

At some time in the 11th century a new word appeared in French;‘Batard’. The exact origin of the word is obscure but the ‘Etymology on Line’ website suggests two origins. The first derives from ‘fils de bast’, a child conceived on an improvised bed, or less convincingly from a Proto-Germanic word meaning ‘barn’. Either way the origins of the word show that it was used to indicate someone born in low, or base, circumstances rather than indicating the legitimacy or otherwise of marriage.

When William the Bastard [or as we know him William the Conqueror] was taunted for being a bastard at the siege of Alencon in 1050, it was not because his parents were unmarried but that his mother was the daughter of a tanner. As it happened William’s father, Robert , was not married to his mother but this did not influence Robert’s decision, as Duke of Normandy,

to leave his lands to William. Why would it? Land or property could be disposed of where ever an individual desired. “Being born to the right parents regardless of whether they were married according to the strictures of the church made a child seem more worthy of inheriting parents lands properties and titles”. [1] In this case Herleva might not have been out of the top drawer but William was the most worthy of Robert’s children to inherit.

By the 12th century a series of important cultural and legal changes occurred throughout Europe which led to the word bastard changing it’s meaning. The story begins with an important English legal case. In 1158 following the death of his uncle, William de Sackville, a man named Richard of Anstey brought a case against Mabel, William’s daughter, to claim lands that Richard thought to be his. William had previously agreed to marry Albereda de Tresgoz, in a ceremony that had consisted of a verbal contract to marry. Carried out in front of witnesses this was as valid a form of contract, marital or otherwise, as any other. In the eyes of the law Albereda was a wife from the moment when by her promise freely given she consented to be his wife”. Although it was a legally binding betrothal the ‘marriage’ appears to have proceeded no further, William returning her dowry to her and went on to marry a woman called Adelicia, choosing to do so with all the rites of the church.

The story goes that Albereda attended the wedding of William and Adelicia and tried to object to it but could not make herself heard over the noise of the crowd. The wedding went ahead but afterwards Albereda turned to the Bishop of Winchester obtaining a decree from him ordering William to leave Adelicia and return to Albereda; in effect he had annulled William’s marriage to Adelicia. Nevertheless William remained with Adelicia and eventually Mabel was born. On William’s death the lands were left to Mabel . Richard de Anstey who was William’s nephew argued that Mabel should not inherit the lands as she was illegitimate.

As the case involved the church it went as high as it could go, being heard before Pope Alexander III. In a judgement that would change attitudes to bastardy for ever he ruled that Mabel should be disinherited. From now on only children born within marriage could inherit. Other factors were to influence the way that illegitimacy was regarded. There was a move to primogeniture, where only the first born male child could inherit [if he survived], whilst the church tightened it’s grip on the sexual behaviour of it’s congregation. Sex within marriage was strictly regulated, whilst that outside of it became a sin. Children born to parents who were not married were progressively stigmatised notably in the language that was used. Blackstone [2] writing in the 18th century noted [in Latin] that “the offspring of an illicit connection are not reckoned as children” for they were “the sons of nobody”. [[3] In the story that will unfold the children that were born were never simply children but were constantly referred to ‘the male or female bastard child of ‘ the woman concerned.

Bastardy and the Poor.

It is ironic that the first hesitant steps down the road to what would eventually be our modern welfare state were to lead to misery for countless generations. The Tudors embarked on this road almost certainly reluctantly, the problems they sought to resolve were often a consequence of the behaviour of the monarchs and their great magnates. The crisis of the poor under the Tudors has often been blamed on the dissolution of the monasteries and no doubt their destruction played it’s part. But even at their peak, when there were nearly 800 or so monastic institution of one sort or another, they were so far distant from the remote villages and hamlets of the countries that the relief they could provide was always going to be limited. It is likely that Tudor inclosures, often carried out illegally, had a far greater effect in creating a new group of poor.

As soon as the Tudor state began to acknowledge the duty that society had to the poor it opened a can of worms which later generations have continued to struggle with. To put it simply if I, a richer person, am to be required to give up a portion of my wealth to you, a poorer person, there had better be a jolly good reason for me to do so.

The great fear was fraud. In a society where hard manual work resulted in little material benefit compared to begging there was there was little incentive to work. The problem of the professional beggar exercised their minds greatly and there were a number of statutes enacted to control it. Nevertheless it was acknowledged that for many poverty was ‘real’ and in 1553 a committee of twenty four ‘leading citizens’ set to work and devised a classification of the poor.

There were, in their world, three degrees of the poor. First there were those who were poor by what was called ‘impotency’; this group included the old, the frail, and the ill . Few people could object to supporting them.

In the second group were the ‘poor by casualty’ such as the wounded soldier or those injured through work and again few people could really object to helping them either.

Finally there were the ‘thriftless poor’ those that were capable of work but wouldn’t, ‘the rioter, the vagabond, the idle person or the strumpet’. These people were to be punished.

When it came to illegitimacy people were torn. Against their best moral judgement, they might be persuaded that the child was innocent and fall into the impotent poor group butfew thought that the parents were and they were consigned to the last category. We cannot know how individual children were treated but officially the child seems not to have been stigmatised. Indeed the maintenance orders that were made against the fathers of illegitimate children make it clear that, from a financial perspective, at least the child was not to be in any sense disadvantaged. When in 1804 the Reverend John Warton of Blandford entered into sureties to support his illegitimate daughter born to Sarah Curtis he was required to indemnify the parish against,

all manner of Costs, Taxes, Rates, Assessments and Charges whatsoever for or by reason of the birth, education and maintenance of the said Child and of and from all Troubles and other charges and Demands whatsoever touching or concerning the same..”

It is evident from such statements like this that although the education and maintenance of an illegitimate child might not be any better than any other poor persons child, there was equally no excuse for it to be worse. There was to be no pressure on the Overseers of the Poor to put her at a disadvantage by not educating or maintaining her, for fear of the expense to the rate payer. This is an unusual case as the father was a Cleric and may be presumed to be better off than most, indeed he had to find surety of £100 as opposed to the more normal £50 or so for a ‘gentleman’ but the terms of almost all such bonds include similar terms regardless of the father’s particular status.

In some respects the illegitimate child was slightly better off than many pauper children. The Poor Law Commissioners report from 1834 found that the fathers of illegitimate children,

“varies from 7s. or 8s. a week to ls. The average is about 3s. or 2s. 6d. in towns, and 2s. in the country; but generally higher if he is in good circumstances. In most cases the sum is as great, in many it is greater, than that for which a child can be put out to nurse, or than that which would be allowed by the parish if it were legitimate and its father dead.”

They then went on to highlight a peril that had been identified centuries before,

“To the woman, therefore, a single illegitimate child is seldom any expense, and two or three are a source of positive profit.”

If the child was not to suffer what of the parents? In 1576 another statute, the ‘Act for the setting of the Poor on Work and for the avoiding of idleness’ empowered Justices of the Peace to make ‘orders for the punishment of the reputed parents of illegitimate children, and for the maintenance of the children by the parents’. The purpose of this act was, according to the 1834 Poor Law Report, to force the parents to support the child – a duty that had hitherto fallen on the parish. In the words of the original statute illegitimacy produced children who were,

left to be kepte at the Charges of the parishe where yt was borned to the great burden of the same parishe and in defraudinge of the Releese of the impotent and aged true poore of the same parishe and to the evil example and Incouradgement of lewde lyffe.”

There were three good reasons here to punish the parents. Illegitimacy was an affront to a moral society and punishment for that might be expected, as might the cost to the rate payer but the ‘defrauding of the impotent and aged true poore’ is a surprisingly sophisticated answer.

How widely the act was enforced is shown by the fact that 33 years later another had to be passed to correct the seeming ineffectiveness of the first act. 4 In 1609 a statute of James 1st introduced a more draconian regime;

“because great charge ariseth upon many places within this realm by reason of bastardy, besides the great dishonour of Almighty God, enacts that every lewd woman which shall have any bastard which may be chargeable to the parish shall be committed to the house of correction, there to be punished and set on work, during the term of one whole year; and if she shall eftsoons offend again shall be committed to the said house of correction as aforesaid, and there remain until she can put in good sureties for her good behaviour, not to offend so again;”

Leaving aside the desirability of incarcerating a woman and her baby for a year the act was immediately discriminatory. There is no mention of men being incarcerated and although the Revd. Warton may have found the backers for his indemnity of £100, nearly £4.5k in today’s terms a poor woman would have found it almost impossible to obtain the financial sureties required if they couldn’t ,as the Poor Law report of 1834 noted ,this amounted to a form of perpetual imprisonment.

Under the terms of the statute no discretion was allowed, the woman had to be incarcerated and that was that. The reality was different and there is good reason to suppose that neither act was effective, except perhaps in defined circumstances. As so often the interests of morality were subordinate to those of Mammon. Illegitimacy may have been to the ‘great dishonour of Almighty God’ and to the encouragement of the ‘lewde lyffe’ but punishing it was expensive.

The records of the gaol at Dorchester begin in 1782 and although the quarter sessions records back to the beginning of the century have a ‘calenders’ or lists of prisoners for the house of correction they do not always give the indictment. As a result I cannot say what the practice of punishment in Dorset was in the 17th or early 18th century. Analysis by Walter King of the punishment of bastardy in Lancashire in the 17th century found that it could be a very expensive affair and was often resisted by the parishes themselves. Initially there appears to be an insufficiency of prison space within the county and the preferred method of punishment was for both parties to be whipped or placed in the stocks. This at least had the virtue of brevity and was more or less equal in it’s application to both men and women. Ironically as more space in the house of correction became available [5] a distinct gender bias developed. Across Lancashire, Somerset, Warwickshire and Hertfordshire he found that women were committed to prison more frequently than men, typically four or five times more likely. King concluded that the punishment of women was a judgement on their morality whereas the punishment of men was an economic issue.

The reasons for this are, one suspects, simple misogyny. The argument that illegitimacy created a “great charge,..upon many places” was only true if the child became chargeable i.e. had to be supported by the parish, yet King found little difference in the incarceration rates of women whose children became chargeable compared to those that were not. The desire to punish moral transgression was the primary purpose of punishing women; when men were incarcerated it was usually because they failed to pay for the child’s support. Their punishment was for economic not moral reasons.

Even so many women and men, indeed probably the majority, escaped punishment of any sort and paradoxically this may have increased as more houses of correction were built. The 1609 act allowed no discretion in sentencing and although in theory the expenses of punishment fell on the woman, the father of the child or their extended families this did not always happen and the parishes found themselves having to pay.

At Widnes in 1627 one woman Margaret Leigh cost the parish nearly £500 [in modern terms] for the attendance of the midwife, her lying in period and eventual transportation to the house of correction. Then they had to pay for a years maintenance. The costs to the Parish of Tong of keeping Sarah Halliwell in a house of correction led them to petition the Justices of the Peace in order to have her released.

Parishes were remarkably inventive at avoiding the costs of illegitimacy. In the late 17th century they began to invoke the settlement acts to prevent pregnant women boarding or taking up residence in the parish. One court leet ordered that one woman should not to be allowed to return to her home parish until “shee bee broughte in bedde , that is given birth in somebody else’s. Note that there was no prohibition on the woman moving to the parish after the baby was born just not before it. The reason for this was simple enough for the settlement of the child and thus the parishes liability to be charged with it’s maintenance, depended on where it was born. The aim was to ensure it was in another parish. Numerous other examples were found the prohibition being purely financial. As King commented “Had Morality been the rationale for these orders and presentments all unwed mothers would have been banned, the nursing of any bastard found intolerable, and the presence in town of any unwed mother objectionable.”

On occasions a degree of humanity would creep in. Elizabeth Peake, pregnant with an illegitimate child and a parishioner of Melcombe Horsey, Dorset, wanted to have the baby at the house of her mother Mary in the parish of Hilton. Had she done so the child would have become chargeable to Hilton – not something the Overseers at Hilton would normally have agreed to. However an undated bond for £40 [£1750] was agreed whereby by the Overseers at Melcombe Horsey guaranteed to assume the responsibility for her should she become chargeable in Hilton. As a result Elizabeth was allowed to have the baby in her mother’s house.

What punishment was used in Dorset? Until the 1780’s we are dependent on the Calendars of Prisoners recorded in the quarter sessions records. They are however sporadic and the indictments are only occasionally mentioned which together reduces their value. Whipping was certainly an option. It was used on Robert Mabor in 1704 and John Dyer in 1705 but in neither case was the reason for the punishment given. In 1727 Jane Notley was ordered to be whipped in the House of Correction and then detained but again her crime is not recorded.

For a whole series of reasons it was widely believed that illegitimate children were at risk of being murdered and in 1623 another act of James 1st made the crime punishable by death. It was inevitable in a period of high perinatal and neonatal mortality that some children would die by chance but the fear that illegitimate children were at particular risk of murder is reflected in the records. In 1707 Ann butt was indicted for murdering a bastard child although the verdict is not recorded. After 1780 we have the records of Dorchester Gaol and thus we find Jane Old, a 20 year old servant, committed in 1804 for the ‘wilful murder of her bastard child’. In 1807 Mary Read of Pentridge, aged 26, was committed on suspicion of murdering her female bastard child’ and in 1809 Sarah Sinnick, aged 19, of West Lulworth was committed for ‘the murder of her male bastard child’. None of these women were found guilty but all had to spend many months in the county gaol before acquittal.

Magistrate: Oh It’s a clear Case..

Overseer: Caught in the act your worship …

Pregnant Woman: I positively swear the Child to Squire Doodle of Doodle Hall

Squire: Indeed your Worship – I never set eyes on her but once – and that was when she came a clear starching [sic] to Mrs Doodle Oh she is a wicked Woman pray your Worship don’t believe her- for what will poor dear Mrs Doodle say.”

The Examination.

There was a well established process when an illegitimate child, likely to be chargeable to the parish, was born or about to be born. The aim was to ensure that the parents undertook to maintain the illegitimate child and the mechanism of doing this was to obtain what was known as an affiliation order. It proceeded through a number of stages.

The first stage was to examine the mother with a view to determining who the father of the child was. Before 1834 such examinations could take place before or after the woman had given birth. There was an automatic assumption that an illegitimate child would become chargeable and contentiously the whole process was frequently carried out before the child had become an actual charge to the parish.

The responsibility for organising these examinations was vested in the Churchwardens and Overseers of the Poor of the parish concerned but the examination itself, a verbal questioning of the woman had to be conducted in front of a Justice of the Peace. John Martin was the Overseer in 1821, he started in March and one of the first jobs that he undertook was to accompany Elizabeth Frampton to Dorchester to the quarter sessions.

21st April

1821

Fees examining Elizabeth Frampton on bastardy

horse hire & expenses attendg with her

2s

7s 6d

This would have been a whole day’s outing from Evershot so was not only expensive, 7s 6d was roughly a weeks wages for an agricultural labourer, but time consuming.

Stories from the Dorset records.

Unfortunately we do not have the bastardy records from Evershot so we do not have the outcome of this particular examination but by this date they were usually recorded on a proforma and would have read something like this example from an examination at Blandford Forum in 1810.

“Dorsetshire

To Wit

The voluntary examination of Elizabeth Butler of Blandford in the said County, Single Woman taken on oath before me, one of his Majesty’s Justices of the Peace in and for the said County this Twenty fifth day of September in the Year of our Lord One Thousand Eight Hundred and Ten who saith, That she is now with Child and that the said Child is likely to be born a Bastard, and that the said Child is likely to be chargeable to the Parish of Blandford Forum in the said County; and that Henry Ward of Blandford Forum in the said County is the father of the said Child…”

There is very little of interest here but in the previous century the examinations were written out on paper and these are far more interesting. Hannah Guppy of Mosterton was examined in 1725,

The examination of Hannah Guppy of Mosterton Singlewoman taken upon oath before me 21st Day Anno Domi 1725 [sic] who saith she is with child….that Christopher Burbridge of Misterton in the County of Somerset is the father of the Same and this Exam[inant] saith that Sd Christopher Burbridge [after many Solicitations and promises of marriage] had Carnal Knowledge of her body several times Viz about four days before 6th January day past [and] he had Carnal knowledge of her body in an outhouse of Joan Dally’s within the parish of Mosterton at which time she was begotten with Child and said Exam[inant] saith that Christopher Burbridge hath had ye [the] Carnal Knowledge of her Body Several other times at her own house in the Parish of Mosterton but the particular days she Cannot Remember and further saith not

This is fairly typical of these early examinations, the father is named and is said to have made promises of marriage to her. This was important. It may seem like some plot in a book whereby a dastardly villein seduces the woman before abandoning her but promises of marriage were a serious business up until the 1970’s and Hannah might well have believed his blandishments. Although such promises were not an actual marriage they did constitute a contract to marry. Without a witness or the wherewithal to pursue a breach of promise case it is unlikely that she could have proceeded, nevertheless this seems to have had a long standing relationship and she may have had reasonable grounds for believing he would marry her. Note also the very specific nature about the dates and places where intercourse took place. This is quite common and was presumably designed to make more believable the charge against the man. In another century W S Gilbert might have said that it was “Merely corroborative detail, intended to give artistic verisimilitude to an otherwise bald and unconvincing narrative.”

The examination is unusual though as to avoid any doubt that the man charged was indeed the father there is almost always a disclaimer that she had any other intercourse. In 1743 Mary Trim upon her oath sayeth that John Brine of Beer Sollicited her to lie with her and made her fair promises of marriage and accordingly lay with her about Whitsontide [sic] last and that she is with Child by him and that no other man had ever carnal knowledge of her body besides said John Brine”.

Sometimes the examination can be read in several ways. In 1739 Sarah Gibbons named William Masters as the father of her illegitimate child he having had carnal knowledge of her several times but she having had nobody in the last 7 months’ implying that there were other men before. One can also imagine the reactions of George Legg a fisherman who found his wife pregnant in 1791. Elizabeth his wife named Robert White as the father stating ‘that her husband was at Newfoundland and had no access to her and she did not see him from the month of March 1790 to the month of December 1791’. [She delivered in February 1792].

The venues that were chosen for these liaison were varied. In 1728 Mordecai Douch after promises of Marriage and Solicitations” of Mary Fowler of Corscombe had Carnal Knowledge of her this examinants body and begotten her with child….and the first time he so knew the examinant and had copulation with her was about eleven months since in the open field in Corscomb aforesaid and divers times since”.

There are no records of inclosure at Corscombe but we can be certain that it was still an open field parish in 1728. Sometimes the references are even more specific as when in Ann Brinson and James Mintern met at Mrs Agnes Tobey’s house in Misterton or when Susan dilly met James Wails in 1760 at her masters house in Blandford.

As well as place the date was important and some dates are mentioned so often that they may have had some significance. Dating the conception to some time after Christmas is not uncommon but Whitsun is more frequently mentioned; Mary Trim we have already mentioned but there are several others. An unusual reference relates to Elizabeth Forest and Henry Morris who, “had several times carnal knowledge of her body and particularly on Whit Monday’. The date is given as 172 ½. The historical year began in January but the legal year at the end of March. To distinguish the two it was common to give the year in the form shown. Intercourse took place in the historical year of 1722 but in the legal year of 1721.

The examination records most often reveal lives ruined. On the 18th October 1764 Sarah Aplin was walking out one evening, going from Broadwindsor to a place called Blagon in the same parish. At about eight o’clock one John Burn came across her and prevailed upon her to go with him into ‘Polayon’ [sic] Coppice which she did where ‘she lay with him.’ Afterwards the examinant ‘cryed and said that she was ruined upon which the said John Burn said he would marry her. they stayed together about an hour in the coppice then she went home to her mother at Blagon…about a month after she found herself with child the said John Burn gave her half a crown and that he the said John Burn is the father of the said Child.”

The stories are sometimes hard to believe. In 1767 Mary Elliot “in the House occupied by Robert ### at Whitecliff Mill” was assaulted by an unknown man who wore a brown fustian frock coat Silver lined hat and his hair had #### and he told the deponent that he was a gentleman’s servant”. How she came to be there in the first case was not answered. Worse still was the case of Elizabeth Carter or Litton Cheney who ‘ sometime in the latter End of December last [1758].. went to Farmer Strouds Coppice in Litton Cheney to pick some ### wood where a man came to her and offered to lie with her and threatened to kill her father ### any wise and that he then and there begot her with Child of a female Bastard Child but who such man was the Examinant doth not know having never seen him before or since and further saith that such man was dressed with dark coloured Cloakes and had on a black wigg”

The next entry for Litton Cheney is from 4th February 1759 and is a ‘receipt for a female child’ from the, Hospital for the Maintenance and Education of exposed and deserted Young Children’.

The receipt says: “Let this paper be given to the person who sent this child; and it is desired that it may be carefully kept that it may be produced if the child should at any time be claimed.” It is to be hoped that the hospital kept good records since the receipt does not give the child’s name.

Whilst some children were abandoned there is nothing in the Dorset records to suggest that parents were forced to give their children up although this was a great fear. In 1756 James Warne of Woodstreet farm and Bovington in Dorset noted a series of entries in his diary. The abridged entries are shown below,

4th June Sunday “After Prayer had a vestry about Amy Hunt who ‘tis reported is with Child. She came hither in the Morning to convince my Wife [that she is not pregnant] But Nanny [his wife] and all her neighbours think she is with child.”

7th June “…. with George Pain went to Beer with Amy Hunt supposed to be with child. There was a vestry and the Officers gave us a note to own she belonged to them and would relieve her and her children but no mention is made of the Unborn child in case tis so. We did not get home till near 10.”

24th June “William White and George Pain had Amy Hunt to the Justices to Examine and remove her but coming home she was took in Travel [Travail] and had a son born soon after she got home.”

The baby was finally born in August and she had to attend the Justices at Wareham,

12th August “I rode to Wareham…There was Amy Hunt and she swore Joseph Alner was the Father of her Child. She was loathe to Sware and begged of me and of Father White for Christ’s sake to be excused a fortnight longer and wept bitterly but she could not prevail upon us. Her fear was that the child would be took from her and sent to the Foundling Hospital.”

13th August “Joseph Alner was at Church but we had no Vestry about his Bastard. Some say Amey Hunt is set out to Beg the Country with it rather than it should be sent to the foundling Hospital.”

There are no other entries in his diary about her and there is no reason to suppose that she had to give up her child. Nevertheless the fact remains that some children were simply abandoned;

on the 9th July 1696 Bridget Gaffe of West Lidford was examined and

saith that she was a covenanted servant hired for a year by William Willet of West Lidford in the County of Somerset Yeoman and dwelt with him for above half a year and then upon some Difference she went away but hath not bine [sic] settled in any other Parish”. The circumstances of her departure may be guessed at but their relationship was not over yet as she “saith that about a month since she came into the Parish of Keinton Magna …..with the aforesaid William Willatt and that they Brought with them a Male Bastard Child born of the body of the Examinant which said Child they left [by] the Highway unseen by anybody and so went off which they did about one of the clock in the morning.”

There are darker stories still. The record has been damaged but in 1748 Frances Lawrence of Stoke Abbas was examined,

Who upon her oath saith that the said bastard child of which she was delivered the 7th day of March last past about the hour of eight o’clock in the forenoon was begotten by Thomas Lawrence her own Brother in her fathers house at Stoke Abbas aforesaid her Father at the time that he had carnal knowledge of her body being from home which was on or about the second of June 1747 he the said Thomas Lawrence coming home drunk forced the examinant whereby he did begott her with child of the said Female bastard since Christned by the name of Catherine and she further saith on her oath that no other person before she was begotten with Child had any Carnal Knowledge of her body….”

Concepts of bastardy and illegitimacy are entirely social constructs it’s just that different societies have different constructs. An interesting example of this is seen in the Isle of Portland which for most of it’s history was detached from the mainland [except via Chesil beach].The first edition of Hutchins says They have a peculiar cuftom, called Portland Cuftom, that the man never marries till his intended wife is pregnant, and it was hardly even broke in the memory of men, but when the woman falfely allures the man that she was breeding.”

Doubtless as a Vicar Hutchins was reluctant to explore matters further but his later editors were not so coy and did so in detail. They found that intermarriage between the island families was the normal way for matters to proceed and only rarely did they look to the mainland for potential spouses.

“The mode of courtship here is that a young woman never admits of the serious addresses of a young man but on supposition of a thorough probation”. In other words marriage was based on a ‘try before you buy’ principle, with the woman testing out the man. They noted that the only disgrace was not to have a child and, “If the women does not prove with child after a competent time of courtship they concluded that they are not destined by Providence for each other and they separate.”

There were strict social rules “it is an established maxim which the Portland women observe with great strictness never to admit a plurality of lovers at one time” and as a result their ‘honour’ was in no way tarnished for the next partner who accepted the woman, “as if she had been left a widow or that nothing had ever happened but that she had remained an immaculate virgin.”

When nature took it’s course and “she becomes with child she tells her mother; the mother tells her father; her father tells his father and he tells his son that it is then the proper time to be married”.

It appears that so strong was the convention that few man ever backed out but if there was any apprehension on the part of the man moral blackmail was used ; “his own mother [was] more earnest in compelling him to complete his engagement than any other and strengthen[s] her arguments by saying, “What would have become of you had your father served me so?””

Problems arose when men from London, under a Mr Roper, came to repair the lighthouse at the Bill and did not adhere to the conventions;

“our men were much struck and mightily pleased with the facility of the Portland ladies and it was not long before several of the women proved with child but the men being called upon to marry them this part of the lesson they were uninstructed in and on their refusal the Portland women arose to stone them out of the island” most of the men rapidly changed their mind but one poor woman was to be disappointed and her child was the sole bastard born in 150 years.

The formal arrangement at Portland was enforceable because of the isolated nature of the island and tight kinship networks but there is amble evidence from the Poor Law report of 1834 that many if not most marriages amongst the poor took place when the woman was already pregnant. In Bulkington in Warwickshire the vicar reported that in ‘not less than nineteen out of twenty’ marriages amongst the poor were the women pregnant. In Nuneaton the figure was seventeen out of twenty.

Although it cannot be proved one senses that sometimes women ‘played the system’. In 1752 Jane Lane of Poole charged William Hopkins, a riggers labourer working in the dockyard at Portsmouth dockyard, with being the father of her child. Jane was illiterate, she did not sign the examination but left her mark, the usual X, instead. Hopkins we may assume was in a job that took him away from the ‘County of Southampton’, as Hampshire was then known, quite frequently. Unable to write to him what quicker way to get in touch with him than by using the Justices to contact him? For Hopkins, in a secure job where a wife might well be an asset and, in any case going to have to pay for the child, marriage might well have seemed a reasonable option. Less than three weeks after the examination there is a note in the records of St James, Poole that the couple got married in Portsmouth.

It may not have been romantic or something out of the pages of Jane Austen but surely marriage as an outcome would have been seen as desirable – not so. The Poor Law report deprecates early marriage for it did not form the basis of a lasting union. Instead it was based on expediency for as soon as he finds that the evil of becoming the father of a bastard is otherwise inevitable, he avoids it by marrying the woman during her pregnancy – a marriage of which we may estimate the consequences, when we consider that it is founded, not on affection, not on esteem, not on the prospect of providing for a family, but on fear on one side, and vice on both.”[6]

But the report was talking in code language. Even if all of the claims had been true it is obvious that the reasons given were not genuine, or if they were, were applied with a double standard. There was after all no corresponding concern for the lack of affection, or esteem, or fear, in those marriages where women were married off as little more than pawns in the dynastic arrangements of the ‘great families’.

The vicar at Portland may have come to terms with his parishioners moral code but in the rest of the country Early marriage’ was simply code for a couple having had sex outside of marriage. The terms of the marriage ceremony were and are simple. Marriage was ordained for two distinct and separate purposes; for the procreation of children and for the avoidance of sin. Marriage after either event did not count. The problem was that the concerns of the rich were not those of the poor. “Where early marriages are complained of,” says Mr. Richardson [7], “that is every where, I have also been told that the women, as they feel no disgrace, either in their own eyes, or in those of others, at becoming the mothers of bastards”.

Not only were the women of guilty of sin but worse still they did not regard it as sin. The vicar and his parishioners on Portland may have come to terms with their almost unique moral code but it was a step to far for the rest of the country. Marriage in these circumstances, though it could hardly be denied to the couple by the church, was not the answer to the problem, paradoxically indeed, it aggravated the problem by appearing to condone the custom. The answer was abstention.

We can dwell no further on this aspect of the matter but those interested would do well to read the Poor Law report of 1834. It is a rich source of misogyny typical of which is the following statement made by a Mr Simeon before the House of Lords committee on the poor in 1831;

“Now I rather believe that we shall never he able to check the birth of bastard children by throwing the onus upon the man; and I feel strongly convinced, that until the law of this country is assimilated to the law of nature, and to the law of every other country, by throwing the onus more upon the females, the getting of bastard children will never be checked.”

It was to be the solution that the Poor Law Amendment Act of the same year adopted.

Very occasionally a woman would refuse to give evidence to the Justices in which case they were imprisoned. In 1805 Ann Frampton was sentenced to a years imprisonment at the house of correction for failing to name the father of her baby boy whilst in 1810 Pathenia Hobbs of Netherbury, a 36 year old oakum spinner, was given an unspecified sentence for refusing to be examined as to the father of her child. Her principles did not survive more than two weeks in gaol for she soon named the father and was duly released. Both women were nursing their babies at the time. It is not known what work these women were set to whilst in prison but after 1823 the standard punishment for such women was to be committed to work on the ‘engine’ or treadmill that had been newly installed in 1823.

There was one final examination to be made and that was the place of the women’s legal settlement. This issue of settlement is dealt with elsewhere but was crucially important if the parish were to avoid paying for the child’s upkeep. There are numerous examples in the Dorset archive where settlement was questioned and the woman physically removed from one parish to another. Mind you it did not always work; in 1791 Jane Sutton found herself in Blandford and pregnant. She had been born just outside Blandford in the parish of Langton Long. She ‘belonged’ to them as did any baby born. We can imagine her one day bundled into a cart and then being taken to Langton Long. But there was problem. It was a much smaller parish and ‘there being no cottage house or poor house in the said parish’ she was obliged to move back to Blandford and the Overseers of Langton Long had to enter sureties for her cost there.

The warrant.

Once the examination had been completed the Justices of the Peace issued a warrant to apprehend the man. The examination of the women was always done ‘ex parte’ which is to say the man was not present. Indeed there was no further investigation into the truth or otherwise of the accusation. This was an area that disturbed the Poor Law Commissioners who published a number of cases of many that had been in the event, wrongly accused. In the absence of even basic genetic testing it would, it is true, have been difficult to prove paternity but not only was there no attempt made to verify the claims there was no mechanism for the Justices, at this stage, even to hear the men’s side of the story. Very rarely an accused man was able to afford to take a civil case against the Overseer of the Poor and this was heard in the quarter sessions. As legal counsel had to be employed this was not an option open to most men and indeed very rarely were they successful. I have not examined every appeal but I doubt if one case in four succeeded.

A typical warrant was made against John Peters, the putative father of a child born to Susan Dally. The warrants called upon ‘The Constable and Tythingman of the Parish of Mapperton and ‘to all others his Majesty’s Peace Officers’ to apprehend Peters and to bring him before the Justice of the Peace ‘to find and Security to indemnify the said Parish of Broadwindsor [where Dally lived] or else to find sufficient surety for his appearance at the next general quarter sessions where an order for maintenance would be made.’

If the person was rich enough obtaining such sureties was not a problem. These Bastardy Bonds as they became known are available in the records at Dorset History Centre but they rarely add much to the individuals story and when they do it is not necessarily in a good way. In 1657 John Hoppe of Yeovil promised to pay the Overseers of Bradford Abbas £15 for the child of Phillipa Collins “she being dead ye child being named John James’.

These bonds reveal that bastardy crossed the social divide. In 1803 John Dansey of Blandford Forum, a surgeon, had to stand surety ‘in the penal sum of £50 [£2500 in modern terms] of good and lawful money of the United Kingdom of Great Britain and Ireland’ for the child of Elizabeth Brookman. Bear in mind that this was roughly twice the salary of an agricultural labourer at the time. The following year the Reverend John Warton of Blandford Forum stood surety for £100 for a female child of Sarah Curtis. In 1808 Charles White of Pitcombe in Somerset had to find £50 to indemnify Blandford Forum for Elizabeth Biggen of Pitcombe who had acquired residency in Blandford whilst. Finally at the lowest end of the scale of gentry James Sansom of Morden had to find fifty pounds for Elizabeth Horner.

These bonds kept the individual out of prison until such time as an ‘affiliation order’ was made; others were not so lucky. If sureties could not be provided the men could end up in prison. There was thus little incentive for them to appear before the magistrates and yet, judging by the number of illegitimate children and the relatively few who fathers who ended up in prison, we must assume that many of them did and some kind of accommodation was made with them. Possibly only those men likely to abscond were convicted; we cannot know for sure and some men were jailed. Before the end of the 18th century the majority of their sentences were open ended, they were usually released when sureties could be provided.

In 1785 William Smith a soldier accused of being the father of a bastard child was committed until sureties were arranged; he escaped [with several others] in 1786 with the sureties still unpaid. Another man, William Thorne spent seven months ‘removing ground’ in 1794 before he was discharged. Occasionally specific punishments were made. In 1795 Charles Hodder, a 19 yr old hair dresser was sentenced to a fortnight on the engine or wheel for want of sureties. The engine was a popular means of punishment, Thomas Hunt of Preston cum Crawford spent 3 months on it in 1809 , so did John Turner who must have regretted his move to Dorset from his home county of Norfolk. These early treadmills were probably like the one at Carisbrooke castle on the Isle of Wight [still powered by donkey’s] used to raise water or grind wheat. But in 1817 Sir William Cubitt invented the device shown below. This was designed to serve absolutely no purpose whatsoever other than to keep the convicts occupied and teach them the pointlessness of their crimes. [8]

In 1823 the quarter sessions began to pay for the erection of an ‘Additional Tread Wheel erected in the Female Bridewell and House of Correction’ at Dorchester. The phrasing is confusing but I think we may assume that a male wheel already existed and that this wheel was an additional wheel for the use of the women. There is no evidence that a female wheel already existed. These wheels were very expensive – by the time it was completed it had cost the county some £286 [£17k] together with a further £107 [£6k] paid to Sir William to come down from London to superintend the installation.

The installation of the female wheel led to an appraisal of the circumstances in which it was to be used and it was ordered that the opinion of a ‘Physician be taken as to the effect if any likely to be produced to Children at the breast by the Mother being placed on the Tread Wheel’. Until the opinion was available no women with babies under the age of eight months were to be put to the wheel without the surgeon agreeing.’ The final outcome of the report was that ‘ the degree of health and Strength of each individual Shall Carefully be attended to by the Matron and Surgeon and their proportion of Labour shall be regulated by the latter’.

Men were of course not subject to such consideration and it was realised that men sentenced to the wheel in the winter were likely to be better off than men in the summer as the working day was shorter. There was it must be remembered no effective means of lighting the wheel during the winter. Man sentenced in the winter thus had less time on the wheel and to compensate they were required to spend a greater proportion of their time on it. In December and January 7/8 of each hour of labour was spent on the wheel and 1/8 off [52 minutes on and eight minutes off ] whilst in November and February 5/6 of the hour were on and 1/6 off [50 / 10] and during the rest of the year ¾ on and ¼ of the hour off. [45/15]

This was a gruelling existence ,the daily diet for healthy men and women was officially ‘One Pound and a half of good Bread, water and two quarts of good nourishing soup thickened with Pease Barley Rice or Vegetables daily’ doubtless small amounts of meat were allowed from time to time and any one who was sick had the surgeon decide his diet.

The female tread mill was seemingly little used and it was later moved to the male ‘ward’ of the prison ‘it appearing that the number of Females placed on the Tread Wheel has never exceeded four at any one [time] but that in Consequence of the great increase of the number of the Prisoners sentenced to the Tread Wheel for misdemeanours [amounting at present to not less than 37] it has become particularly desirable that the Female Tread Wheel should be applied to the Male misdemeanours.’

The Order.

Following the examination of the woman and the appearance before the Justices of the father at some stage or other an affiliation order was made. The order was always signed by two Justices of the Peace ‘both residing next unto the Limits of the Parish Church within the Parish’ concerned.

Most of the orders that survive are on pre-printed pro-forma [9] that required only the names and terms to be entered. The dates on these orders can be intriguing. The order made on the 25th of January 1803 against William Hamilton gives the date of the mother, Hannah Hayles’s, delivery as the 27th of January. Orders made before the delivery are less frequent than one’s made after and often there was a considerable delay. Betty Fox of Glanvilles Wootton delivered a little girl on or about the 20th of December 1767 but the order against William Ridout was not made until the 25th of April 1774. This appears to have been one of those instances where the order was made when the child actually became chargeable as against the more common practice of obtaining the order before it became chargeable.

The order starts with a reiteration of the findings of the woman’s examination and then a statement that “xxxx of the parish of xxxx did beget the said Bastard Child on the Body of her the said mother.” As the Poor Law Commissioners pointed out under the statute [10] the magistrate has no power to examine into the merits of the case, but is bound by the express terms of the statute to commit him to the common gaol or house of correction, unless he gives security, or enters into a recognizance with sufficient surety.”

Clearly this did not sit comfortably with the magistrates for in the majority of orders they insert, by hand, an additional paragraph. For example the order concerning the child of Betty Rutter at Bere Regis in 1784 names John Gould as the father and the magistrates note that “He the said John Gould hath appeared before us but hath not shown any sufficient cause why the said John Gould should not be deemed the reputed father of the said Bastard child.”

The order then goes on to give the terms of the order. In this case Gould had to “pay the sum of one shilling weekly and every week from the present time for and towards the keeping, Sustentation and Maintenance of the said Bastard Child for and during so long time as the said Bastard child shall be chargeable to the parish”.

It was expected that the mother would contribute to the maintenance as well and in this case Betty was expected to pay six pence. In practice “The sum charged on the woman is scarcely ever exacted, as she is supposed to earn it by nursing the child.” This was a remarkably enlightened view ; even today it is not universally accepted that the state should pay parents to raise their own children.

Many of these orders were made pre-emptively, when it was ‘likely’, but not yet the case, that the child would be chargeable. It is not clear in these circumstances whether the parents had to pay up immediately. One of the complaints to the Poor Law Commissioners was about these pre-emptive orders which incurred considerable costs which would normally have been recovered from the father. If the child was not yet chargeable however it is not known if the father or the parish paid such costs.

The money was paid to the parish in the first instance and then distributed to the mother by the Overseers. At Evershot the payments were received at the end of the financial year which happened to be the 25th March. In 1821 for example Joseph Dodge paid £1 16s for ‘ Perratt’s Bastardy’, John Jerrard paid £2 5s in ‘Bagg’s bastardy’ and William Belben £1 on account of ‘Chubbs bastardy’. It seems certain that the variable amounts paid showed that the father’s ability to pay was taken into account. Although John Martin never distinguished between illegitimate and legitimate children in his records later Overseers did and interestingly the amount of money paid out, 6s per four week period, was the same for all.

Failure to Comply

Failure to comply with an order had severe consequences but lest it be thought that the parents of illegitimate children were the only ones to be punished it must be said that the law was equally hard on married couples who failed to maintain their children. Punishment for long periods was not uncommon, as in the case of William Spinney, a 24 year old, sentenced in 1794 to removing ground for a year after ‘leaving his family a burden to the parish’. The futility of this type of punishment seems to have recognised for ten years later William Norris spent just two weeks of hard labour for the same offence. Against this though William Paul who in 1804 was sentenced to one week in prison and fined a shilling for bigamy but because at the same time he was found to be refusing to comply with a bastardy order he was imprisoned for a year ‘hatting’ which appears to mean lining hats.

If a father failed to comply with a maintenance order a further warrant was issued and he was sent to gaol. The engine was still widely used and in 1805 Francis Hoskins received two weeks on the engine for refusing to obey an order of bastardy. Such sentences though have to be considered in context. The next prisoner in the register was Richard Cowland, 28, who was given three months hard labour for ‘Riding on his wagon and refusing to tell his name.’ Such sentences certainly had a salutary effect – at least on John Fooks a cabinet maker of Weymouth. At Easter 1810 he was committed to three months hard labour in for arrears of his payments of £3 12s. As he was released in early May we may assume he paid up promptly.

Women were not exempt from punishment. In 1806 Alice, the wife of John Banger was imprisoned, and later discharge, for refusing to obey an order towards the maintenance of her child. Such cases in relation to bastardy were rare; far commoner were women who abandoned their children to their fate. In 1805 a 58 year old widow, Ann Way was imprisoned for “threatening to run away in order to maker herself and family chargeable to the parish of Affpuddle.’ Given her age her children must have been quite old at the time. A year later Jane Flocks, 45, was sentenced to a year ‘lining hats’ for allowing her female child to be come chargeable to parish of Sherborne and in 1807 Ann Robins of Ibberton. a worsted spinner aged 30. was sentenced for a whole year hard labour for “suffering her two bastard children to become chargeable”.

The Poor Law Amendment Act 1834

This swept away all preceding statutes in one go and signalled a remarkable change in direction. Whereas before it was assumed that the father would be the main provider of the child’s material needs, that obligation now fell on the mother who was required to provide for boys until the age of 16 or the girls until they married [if under 21]. At first sight this may not seem much of a victory but it must have undermined the principle, widely applied to married couples who separated, that custody of the children should go to the man. A principle that was applied on the basis that the husband was best placed to support them. Now it could be reasonably asked; if an unmarried woman could support her children why not a married woman?

Henceforth there was to be no punishment for having an illegitimate child, there were no more whippings or stocks or imprisonment. No longer could parishes seek an affiliation order before the child became chargeable. This avoided expenses on all sides. The parish was spared the time and expense of arranging unnecessary examinations and the putative fathers no longer had to find sureties or bonds and so could no longer be imprisoned for failing to do so.

If the child did become chargeable there was now a more systematic approach to the mother’s examination. Indeed the new law seemed to discourage affiliation orders. Instead of the order being made locally the Overseers now had to apply to the quarter sessions for it. The Justices at the quarter sessions had in turn to be satisfied that the alleged father was really the father. The woman was no longer required to name the father and could no longer be imprisoned for failing to do so. On the other hand her word, given on oath, was no longer sufficient to convict him. Some form of corroboration was necessary and if it was not forthcoming an affiliation order would not be issued. In future the costs to be borne by the father were not determined on an arbitrary fashion but on the actual expenses incurred. Whereas the father’s obligation to provide for the child had been until the age of 14 it was now reduced until the age of 7.

A year after the act was passed these new arrangements appeared to be working. The first annual report of the Poor Law Commissioners after the passage of the act reported that there were in general fewer unmarried pregnant women than hitherto. There was little hard evidence of course for this was not an era of large scale data collection. The evidence was based on case reports from various parishes.

“The assistant-overseer of St. Giles”, Oxford, is sure that there are not so many unmarried women pregnant in the parish now, as was usual heretofore. He knows no other cause for this but the “fear of the new law,” which makes the girls cautious.”

Our history of bastardy has to end somewhere and we must leave it in 1835 with the following statement from the Poor Law Act of 1835

“Information is constantly brought to us, that in the more populous parishes the number of new cases of claims for relief on account of bastardy are greatly diminishing; whilst from the

rural districts we receive similar testimony, accompanied by statements showing that as incontinency is a less certain passport to marriage, and the virtuous females of the labouring classes are no longer placed at the same disadvantage as they were previously to the passing of the law, the improvement of morality amongst this class of females is daily becoming more perceptible.”

1 Collins Sarah The Strange History of the Bastard in Medieval Europe

2 Blackstone W Commentaries on the Laws of England 1750

3  Illegitimate children could inherit property in two circumstances. Firstly they could inherit from their mother, so long as she did not subsequently marry. The second was the case of the ‘bastard eigne’. The ecclesiastical law was more forgiving than the civil law. If the man and woman married after the child’s birth then in the eyes of the church the child was no longer a bastard. Not surprisingly this happened quite frequently but equally frequently a legitimate male child often followed the marriage. Now there were two brothers but who then was to inherit? If the first child, the bastard eigne, took possession of his fathers estates and succeeded in holding them until his own death the line of inheritance passed to his descendants and not the line of the legitimate son, known as the mulier puisne. Incredibly one of the reasons given by Blackstone for this arrangement is that it was “a punishment on the mulier for his negligence, in not entering [the estate] during the bastard’s life, and evicting him.” It seems that it was quite acceptable for brother to be set against brother in order to defend what was, when all is said and done, the arbitrariness of the law and some spurious moral code.

4 King Walter Punishment for Bastardy in early Seventeenth Century England published in Albion Vol 10 no2 1978

5 King dates this from about 1619 onwards.

6 Poor Law Commissioners Report 1834. The Poor Law Amendment Act 1834 was based on it’s recommendations.

7 I have no idea who Mr Richardson was but he is quoted in the Poor Law report.

8 Many were later converted to be used for grinding corn and so on.

9 Form No 21 Order for Payment in Bastardy sold by B C Collins Salisbury

10 Bastardy Act 49 George 3rd c 68

Categories: In Depth

Ned Elliott