Illegitimate Law: What Were Our Ancestors Afraid Of?

The rules our ancestors lived by mystify us, at times. They horrify us, on occasion. In a hysteria, citizens executed neighbors accused of witchcraft. One human could own another. A woman’s children could be placed under a guardian’s control upon her husband’s death. And children born to unwed parents were shamed and impeded in life. We ask of our ancestors, “How could they?” and “Why would they?” In most cases, you find the beginnings of the answer by asking a more fundamental question: “What were they afraid of?”

Beneath a law or rule or social moré often lie layers of motivation. Most often and most powerfully, fear lies at the foundation.

Let’s look at the situation of what our ancestors called an “illegitimate” or “bastard” child. Three people faced the wrath of society, when a baby was born to unmarried parents: the father, the mother, and the baby. The parents faced a financial penalty and might go to prison. But they had it comparatively easy. Laws and traditions formally labeled and limited their children for life. They were sealed in public infamy as bastards.

Mystifying, horrifying? So let’s ask the question. What were they afraid of?

Bastardy laws in the U.S. borrowed heavily from old English laws, to the extent I can tell by reading them. (I am not a lawyer.) And they appear to have been very slow to change. They reveal at least two levels of fear—financial and moral.

If your female ancestor found herself expecting a “child out of wedlock” in mid-nineteenth-century Georgia, she could expect a knock on the door from the local justice of the peace (J.P.), serving a warrant. The law required J.P.s to do so, if they knew of or had a witness swear, on oath, that a local woman was in this condition or had delivered an illegitimate child.

The court then required the woman to put up security for £150 to cover the anticipated expense that might hit the county to maintain and educate the child. OR, she must name the father, who must put up the bond to support the child, if required, and to support the woman financially through her “lying-in” period. If she refused or he refused the legal requirements, they faced up to three months in prison.

So one level of fear is basic and rather practical. A county feared that so-called “bastards” would have to be supported by public funds.

However, the law also forbad unwed parents from living together “in adultery or fornication,” even if that would have meant the child was provided for financially. Why? Because, according to this law, living together in such a way is “highly injurious to civilized society.” Here, the fear that spawned the law moved beyond practicality to something less easy to measure: the fear of becoming an uncivilized society.[1]

Interestingly, though, this society, so intent on being civilized, supported practices that seem barbaric to a twenty-first-century researcher. They publicly labeled the child a “bastard,” dashing his or her chances for an equal chance in life with other children. In some eras, the law required the child to sign his or her legal name with the suffix “Illegit” or some equivalent. For life.

What fear would inspire such a practice? Undoubtedly it shamed the parents and discouraged immorality, as defined then. But why would the child be damned and ruined in the process?

I would love to find a real discussion of this by the people living it—and perhaps I will, in time. For now, I only have a suspicion.

Bastardy laws inherited from England and existing for many decades in the U.S. also ensured that an illegitimate child could not lay claim to an inheritance from his father. This child, born with no legitimate surname, had to earn whatever he had, according to this tradition.[2] In some places and times, a child might have inherited from his mother’s side of the family. And this sets me thinking. Lawmakers—men most likely to have a fortune to be drained by sexual indiscretions—would benefit by society labeling the product of those indiscretions “bastards” to prevent them from claiming a right to an inheritance.

As you can see, many layers unfold when you ask the question, “What were they afraid of?” I am confident that, on the question of bastardy alone, we could peel back many more layers. The question illuminates much about our ancestors and why they lived as they did. It also reminds us that we should ask the same questions now, as we try to shape our world in one direction or another—or prevent another from reshaping it—by law and politics. What are we afraid of? And is it a legitimate fear?

Call to Action

Find the laws that were active when your ancestor lived in a particular time and place. In many cases, you will find them already digitized and ready to add to your digital collection. As an example of things to look for, here are several law books I’ve drawn from for my specific family research:

• Alabama, A Digest of the Laws of the State of Alabama: Containing All the Statutes of a Public and General Nature, in Force at the Close of the Session of the General Assembly, in February, 1843; to Which Are Prefixed, the Declaration of Independence, the Constitution of the United States, the Act to Enable the People of Alabama to Form a Constitution and State Government, &c., and the Constitution of the State of Alabama, with an Appendix, and a Copious Index (M. J. Slade, 1843), https://books.google.com/books?id=q4Y0AQAAMAAJ.

• Georgia and Howell Cobb, A Compilation of the General and Public Statutes of the State of Georgia: With the Forms and Precedents Necessary to Their Practical Use, and an Appendix Containing the Naturalization Laws, the Constitution of the United States and of Georgia, and the Rules of Practice (Edward O. Jenkins, 1859), https://books.google.com/books?id=u8lJAQAAIAAJ.

• Theron Metcalf et al., United States Digest: Digest of the Decisions of the Courts of Common Law and Admiralty in the United States (Little, Brown & Company, 1851), https://books.google.com/books?id=SapLAAAAYAAJ.

See if you can find something similar for your own research. If you use Zotero, add your findings to your collection of sources for future use.

And, as always, I encourage you to comment on your own experiences or insights. Share this with friends, if you have any that would find it interesting. And sign up for my mailing list (bottom of this page), to be notified of future posts.

Using the Zutilo Extension

I discovered a very useful extension to Zotero after I wrote Zotero for Genealogy, and will write about it for a future book. Zutilo, a program by Will Shanks, adds menu items that enhance Zotero’s usefulness. You have control over which functions you want to add to your context (right-click) menus—and whether you want them directly on your Zotero menu or on a Zutilo submenu. Here are a few of the things it can do:

• Copy or move child items in a batch
• Create links inside a Zotero topic to other Zotero topics or to a collection (my favorite feature)
• Copy a set of creators for quick reuse in another source
• Copy or remove tags
• Quickly relate items

It is free! Here’s how to install it:

• Go to Zutilo.
• Download the .xpi file to your computer.
• Go to Zotero’s Tools menu, and select Add-Ons.
• Click on the gear icon and choose “Install Add-On from File.”
• Find the .xpi file and choose Open. It will be added to your Extensions.
• Your Tools menu should now have an item called “Zutilo Preferences.” Choose the items you want to display on your context (right-click) menus.
• Experiment with right-clicking on things in your Zotero collections and choosing the Zutilo features.

I have not used all of the features, so let us know if you find some winners. Enjoy!

[1] Georgia and Howell Cobb, A Compilation of the General and Public Statutes of the State of Georgia: With the Forms and Precedents Necessary to Their Practical Use, and an Appendix Containing the Naturalization Laws, the Constitution of the United States and of Georgia, and the Rules of Practice (Edward O. Jenkins, 1859), 537-542, https://books.google.com/books?id=u8lJAQAAIAAJ. These bastardy laws, published in 1859, drew largely from “An Act respecting Bastardy and other Immoralities,” which had been approved Dec. 16, 1793. It is interesting to note that the pound had been replaced with U.S. dollars in 1792, but the law had not even been revised to reflect that, nearly sixty years later.

[2] The Encyclopaedia Britannica, Or, Dictionary of Arts, Sciences, and General Literature, vol. IV (Adam and Charles Black, 1842), 435, https://books.google.com/books?id=eU80AQAAMAAJ.

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