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Bastardy - Nassau William Senior, Poor Law Commissioners’ Report of 1834 [1834]

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Poor Law Commissioners’ Report of 1834. Copy of the Report made in 1834 by the Commissioners for Inquiring into the Administration and Practical Operation of the Poor Laws. Presented to both Houses of Parliament by Command of His Majesty (London: Printed for H.M. Stationery Off. by Darling and Son, 1905).

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Bastardy

With respect to the BASTARDY laws, the evidence shows, that, as a general rule, they increase the expense which they were intended to compensate, and offer temptations to the crime which they were intended to punish, and that their working is frequently accompanied by perjury and extortion, disgrace to the innocent, and reward to the shameless and unprincipled, and all the domestic misery and vice which are the necessary consequence of premature and ill-assorted marriage. We advise, therefore, their entire abolition.

What we propose in their room is intended to restore things, as far as it is possible, to the state in which they would have been if no such laws had ever existed; to trust to those checks, and to those checks only, which Providence has imposed on licentiousness, under the conviction that all attempts of the Legislature to increase their force, or to substitute for them artificial sanctions, have tended only to weaken or pervert them.

FIRST, with respect to the Child.—In the natural state of things, a child, until emancipated, depends on its parents. Their legal domicile, or, as it is technically called, place of settlement, is also the settlement of their offspring. And such is the existing law with respect to legitimate children. Only one of the parents of an illegitimate child can be ascertained. WE RECOMMEND THAT THE GENERAL RULE SHALL BE FOLLOWED, AS FAR AS IT IS POSSIBLE, AND THAT EVERY ILLEGITIMATE CHILD BORN AFTER THE PASSING OF THE ACT, SHALL, UNTIL IT ATTAIN THE AGE OF SIXTEEN, FOLLOW ITS MOTHER'S SETTLEMENT. The immediate effect will be to prevent a great amount of waste, suffering, and demoralization. At present an unmarried pregnant female, though asking for no relief, is hunted from parish to parish, her feelings deadened by exposure, and her means of supporting herself and her child destroyed, and all this evil is incurred merely to save expense to the parish in which she is resident, at the much greater expense of the parish to which she is removed. We feel confident that if the woman were allowed to remain unmolested until she asked relief, she would, in many cases, by her own exertions, and the assistance of her friends, succeed in maintaining herself and her infant; but, as the law now stands, she has not power and inducement to do this. If she is settled in the parish in which her pregnancy took place, she has no inducement. The parish offers her a pension, generally equaling often exceeding, her incumbrance, to be obtain without any additional disgrace. If she is unsettled, she has no power. However willing or anxious she may be to toil for her own and her child's subsistence, rather than to be dragged in shame to the scene of her youth, she is not allowed the choice. The officers know, that if the child is born in their parish, they are responsible for its support throughout life, and for the support of its posterity. The consequences which her removal will produce to the child, to the mother, and to her parish, are no concern of theirs. They remove her as a matter of course.

SECONDLY, with respect to the Mother.—AS A FURTHER STEP TOWARDS THE NATURAL STATE OF THINGS, WE RECOMMEND THAT THE MOTHER OF AN ILLEGITIMATE CHILD BORN AFTER THE PASSING OF THE ACT, BE REQUIRED TO SUPPORT IT, AND THAT ANY RELIEF OCCASIONED BY THE WANTS OF THE CHILD BE CONSIDERED RELIEF AFFORDED TO THE PARENT. This is now the law with respect to a widow; and an unmarried mother has voluntarily put herself into the situation of a widow: she has voluntarily become a mother, without procuring to herself and her child the assistance of a husband and a father. There can be no reason for giving to vice privileges which we deny to misfortune.

This course, or a course as nearly resembling it as the existing law will allow, has been tried, and with uniform success. "In Swallowfield, Berks," says Mr. Russell, "a few years ago we adopted the practice of paying to the mother as much only of the allowance from the father as was absolutely necessary for the immediate support of the child. The effect upon the mother was precisely what we expected and desired it to be; and, if we could have persevered in the practice, I have no doubt it would have been productive of very salutary consequences; but a question having arisen as to its legality, we were compelled reluctantly to abandon it. At present a bastard child, instead of being an incumbrance, is a source of profit to the mother96 ."

In Cookham, Berks, the same plan was adopted and persevered in by Mr. Whately. The result has been, that in a population of 3337 persons, but one bastard has been christened during each of the last five years. In 1822 there were twenty-six bastards; now ten years after, notwithstanding the increase of population, there are but five97 .

It appears, from Mr. Cowell's Report, that at Bingham, in Nottinghamshire, as soon as the parish adopted measures which prevented the mothers from recurring to the parish, bastardy, which had been previously prevalent, almost ceased. For the first three years there was not one illegitimate birth in the parish, except in the case of a woman who was an idiot, and for the last twelve there appears to have been only one woman who has had a second98 . The same principle has been acted on, and for a longer period, with equal success, in the United States. An instructive article on the Poor Laws, in the twenty-seventh number of the American Quarterly Review, the part of which relating to America we have inserted in Appendix (F.) states, that—

"In Boston, Baltimore, and Salem, the principle has long been acted upon, that the public will not undertake to bring up illegitimate children, without expense to the mother. The consequence is, that in 1826, but ten cases came under the notice of the public officers at Boston, and but two at Salem; while in Baltimore the public was put to no expense whatever in regard to them. In the same year, in Philadelphia, the number of bastards under the care of the guardians of the poor was two hundred and seventy-two99 ."

Further evidence in favour of this plan is afforded by the conduct of those whom it would principally affect, the labouring classes themselves. Mr. Tidd Pratt, to whose evidence we have so often referred, was asked,—

"What is the course adopted by the labouring classes in their friendly societies, with regard to illegitimate children?—He answered, In female societies, which are numerous and increasing, they utterly deprive the parties of relief, and expel them. In male societies they allow no benefit on the birth of a child, unless such child is born in wedlock. In those societies which allow an annuity or other payment to a widow on the death of a member, such benefit is forfeited by her having lived apart from her husband during his lifetime, or having had an illegitimate child after his death. Their Rules are usually of the tenor of the following:

"We do also agree to and with each other, that if any widow pensioner of this society, who shall be proved to be with child, or be delivered of a child, either alive or still-born, at any time after she has been a widow eleven months, that then and from thenceforth every such widow shall forfeit all her right and title to the pension of ten pounds per annum, and to be for ever debarred from every part thereof100 ."

"No benefit will be allowed for the birth or death of a child that is not born in wedlock."101

"Then in all cases they utterly disallow relief to a woman who has a bastard child?—Yes, both male and female societies."

In those classes of society which are above the labouring classes, the burthen of supporting an illegitimate child, in the first instance, falls of course on the mother. The labouring classes throw it upon her when they frame regulations for themselves. It appears, therefore, that the plan of exempting her has been rejected wherever there has been the power of rejecting it, and has been adopted only where one class has legislated for another.

One great advantage which will follow from giving an unmarried mother no advantage over a widow with a legitimate child, will be, that her parents will be forced, if it is necessary, to contribute to her support and to that of her infant. In a natural state of things they must do so, whether the child be legitimate or not; and when we consider that, in the vast majority of cases, the neglect or ill example, and in many cases the actual furtherance of those parents has occasioned their daughter's misconduct, it appears not only just, but most useful, that they should be answerable for it.

WE RECOMMEND THAT THE SAME LIABILITY BE EXTENDED TO HER HUSBAND. The general law of the country throws on the husband all his wife's liabilities; he is bound to pay her debts, he is answerable for her engagements, even though he may not have been aware of them, though they may have been carefully concealed from him; and there seems no reason why this peculiar liability, a liability which must almost always be notorious to him, should be excepted. We certainly consider it no objection that this will make it more difficult for a woman who has misconducted herself to obtain a husband: and we must add, that if this plan be not adopted, it will be difficult to follow out the system of giving no relief to the child independently of the mother, and of giving that relief in the workhouse.

ON THE OTHER HAND, WE RECOMMEND THE REPEAL OF THAT PART OF THE 35 GEO. III., C. 101, s. 6, WHICH MAKES AN UNMARRIED PREGNANT WOMAN REMOVABLE, AND THE 50 GEO. III. c. 51, s. 2, WHICH AUTHORIZES THE COMMITTAL OF THE MOTHER OF A CHARGEABLE BASTARD TO THE HOUSE OF CORRECTION. The first of these enactments will cease to be applicable as soon as the child follows the mother's settlement. The second appears, by the evidence, to produce on the whole much more harm than good, and we object to them both as unnecessary interferences. If our previous recommendations are adopted, a bastard will be, what Providence appears to have ordained that it should be, a burthen on its mother, and, where she cannot maintain it, on her parents. The shame of the offence will not be destroyed by its being the means of income and marriage, and we trust that as soon as it has become both burthensome and disgraceful, it will become as rare as it is among those classes in this country who are above parish relief, or as it is among all classes in Ireland. If we are right in believing the penalties inflicted by nature to be sufficient, it is needless to urge further objections to any legal punishment. We may add, however, that the effect of any such punishment would probably be mischievous, not only by imposing unnecessary suffering on the offender, but by making her an object of sympathy.

THIRDLY, as to the Father.—In affirming the inefficiency of human legislation to enforce the restraints placed on licentiousness by Providence, we have implied our belief, that all punishment of the supposed father is useless. We believe that it is worse than useless. Without considering the numerous cases in which that punishment falls upon the innocent, without dwelling upon the perjury by which that injustice is accomplished, we will confine ourselves to the effect produced on the woman's mind by her power of calling for that punishment. That power is the security to which the woman looks at present; she expects that the parish will right her. If she is ill disposed, this adds to the force of her temptation; if she is well disposed, this removes the prop which should support her self-control. Marriage will always be preferred by the woman if she can attain it, and she ought not to be placed in circumstances in which marriage shall be most easily attainable by previous concession.

"One day," says a witness examined by Mr. Chadwick, "I went into the house of one of the people who work at the chalk quarries at North-fleet, to buy fossils, and a young woman came in for a few minutes whose appearance clearly showed approach to maternity. When she went out, I said to the woman of the house, 'Poor girl, she has been unfortunate.' She replied, 'Indeed she has, poor girl, and a virtuous, good girl she is too. The fellow has betrayed her, and gone to sea.' I said, 'She should not have trusted him till she had been at church.' To this observation the woman replied, and let me observe her own children were all about her, 'What could she do, poor girl? if she did not do as other girls do, she would never get a husband. Girls are often deceived, and how can they help it102 ?'"

WE RECOMMEND THEREFORE THAT THE SECOND SECTION OF THE 18 ELIZ. CAP. 3, AND ALL OTHER ACTS WHICH PUNISH OR CHARGE THE PUTATIVE FATHER OF A BASTARD, SHALL, AS TO ALL BASTARDS BORN AFTER THE PASSING OF THE INTENDED ACT, BE REPEALED

Cases will no doubt occur of much hardship and cruelty, and it will often be regretted that these are not punishable, at least by fine upon the offender. But the object of law is not to punish, but to prevent: and if the existing law does not prevent, as is too clear, it must not be maintained against its proper design, with a view to punishment, still less must it be maintained if it acts as an incentive. It must be remembered, too, that we do not propose to deprive either the woman or her parents of their direct means of redress: she may still bring her action for breach of promise of marriage, and her parents may still bring theirs for the loss of their daughter's service.

One objection, however, may be made to our plan, which deserves an answer in deference, not to its force, but to the religious and moral feelings in which it originates. It may be said, that throwing on the woman the expense of maintaining the child, will promote infanticide. It appears, from Mr. Walcott's Report, that infanticide, and in one of its worst forms, is promoted by the existing law; but we do not, in fact, believe that we have to choose between the two dangers: we do not believe that infanticide arises from any calculation as to expense. We believe that in no civilized country, and scarcely in any barbarous country, has such a thing ever been heard of as a mother's killing her child in order to save the expense of feeding it.

[96.][96] App. (A.) Mr. Chadwick's Report.

[97.][97] App. (A.) Part II.

[98.][98] App. (A.) Part I. p. 649.

[99.][99] App. (F).

[100.][100] 21st Article of Agreement for regulating the Friendly Society formed at Eltham, Kent.

[101.][101] 8th Article for regulating the TRIPLE FRIENDSHIP SOCIETY, Blackfriars, London.

[102.][102] App. (A.) Part II.