A history of child maintenance

I am once again delighted to welcome back Melanie Barnes, who is bringing her legal brain to bear on the history of child maintenance.

Throughout history, the payment of child support has been a recurring issue, though the policies applied by either the church or government have been remarkably similar.

Early records reveal that even if the father of a child was not known, the parish would still support the mother by payment of ‘Poore Reliefe’.  This payment (typically very low) was raised from a tax upon the parish residents, and the church would then seek a contribution from the father or family member to mitigate the cost.  In medieval England, canon law placed all parents under a duty to support their legitimate children, but later, the duty to provide for ‘bastard’ children was introduced through various ‘Old Poor Laws’ which aimed to provide better relief to the mother of the child or those in need.

Throughout the 16th and 17th century, legislation was introduced to meet the costs of illegitimate children on the parish.  For example, in 1576, the Acte for Setting of the Poore on Work, and for the Avoiding of Ydleness punished both parents for having a bastard child and allowed the mother’s name and fact of pregnancy to be publicly announced, thus making her known to her neighbours who would be taxed for the support of her child.  The mere fact of publicity encouraged neighbours to pressure the mother into marriage or to filiate their children on men who could maintain them – an act that was a lot easier before DNA samples could determine paternity.

After 1609, a mother could be sent to a ‘House of Correction’ for a year unless she gave security for her bastard child.  So unpopular were women who became dependent on the parish that child infanticide became common so that mothers could avoid the shame and punishment of giving birth to an illegitimate child.  In response to this widespread issue, the 1624 Act to Prevent the Destroying and Murthering of Bastard Children was introduced to provide that a woman would face the punishment of death if she gave birth and thereafter concealed the dead body; introducing a presumption that any child buried or concealed after birth had been illegally killed.

Later Poor Acts rather harshly made provision for what became known as ‘badging up’ where a person would have to wear a badge with the first letter of their parish followed by a ‘P’ showing that they were poor.   Any ‘able-bodied’ pauper who refused to work was liable to be placed in prison, thus distinguishing between those who were unable to work, and those who were simply seen as idle, a distinction that appears to be accepted in modern politics where policy has once again reverted to the belief system that the unemployed are somehow irresponsible.

Bastardy Bonds

Legislation was also introduced to try and discourage the birth of illegitimate children.  In the Bastard Child Act of 1732, the law provided that any person charged with being the father of a bastard child should be imprisoned until he gave security to indemnify the parish from expense.  It also became the responsibility of the woman to name the father in order to deter both parties.

Published by W. Darling. The Young Repentent Brought to a Bed of Justice. 1772. Lewis Walpole Library, 772.12.15.1. © Lewis Walpole Library, Yale University.
Published by W. Darling. The Young Repentent Brought to a Bed of Justice. 1772. Lewis Walpole Library, 772.12.15.1. © Lewis Walpole Library, Yale University.

The indemnities that a father had to provide by law were known as ‘bastardy bonds’ and were registered in parish records.  Typically, the father was required to agree to pay the parish a lump sum if he failed to maintain the costs of bringing up a bastard child.  The following is an indemnification from parish records in the year of 1747:

 “I Abraham Atkinson of Cambridge, Cambridge apothecary am held and firmly bound unto the Churchwardens of the parish of Littlebury in Essex and the Overseers of the Poor of the said parish in the sum of 50 pounds of good and lawful money.  If this man and his heirs promise to support the child and all manner of costs, charges and expenses which shall or may in any wise hereafter means of the birth maintenance or bringing up of the said Bastard Child – then his obligation to be void

In the 16th and 17th centuries, the birth of an illegitimate child was not common.  However, as the church lost their moral hold over marital affairs, prenuptial sex became more accepted to the point where approximately half of all conceptions in the 18th century were out of wedlock.  Following pregnancy, it is estimated that around one in five actual births were recorded as illegitimate, which suggests that many prenuptial pregnancies were followed by a rather hasty marriage which under church law would legitimise the children – though not for the purposes of inheritance under Common Law.

Review of the Poor Laws

In the 1833 Poor Law Commission Report on Bastardy reported that the Poor Laws encouraged illegitimacy because parish relief was so readily accessible for bastards and their mothers.  It was thought that more relief was issued to maintain illegitimate children than to support legitimate children, and costs were rising because mothers were able to avoid responsibility by moving to their home parish.  This problem arose as at that time if a child was born legitimately then he would ‘inherit’ the parish of his parents.  If he was not legitimate, then a mother could move home to her own parish and leave responsibility of the child to the parish into which he was born.  In other words, the child would be considered a ‘no-one’ with no home and the parish into which he was born would have to maintain him.  Children and those who were vulnerable were generally cared for in what was known as an ‘alms house’ which still exist today and were similar to sheltered housing though no doubt very bleak.

Courtesy of Kindred Past website
Courtesy of Kindred Past website

The recommendations of the Poor Law Commission formed the basis of the Bastardy Clause in the New Poor Law of 1834 which provided that all illegitimate children were to be the sole responsibility of their mothers until they were 16 years old.   Shifting blame to the mother appears to be a direct result of the findings of the 1833 Poor Law Report which was led by Nassau Senior, an economist who was against the allowance system.

Instead of relief being readily available, it was recommended that those in need would first have to enter workhouses that were introduced nationally.  Through the Act, mothers of bastard children were expected to support themselves and their offspring and would have to enter the workhouse if they were unable to do so which ultimately was proposed in order to reduce the costs of children on the parish.  There would no longer be any penal sanctions against either the mother or the father for non-support of their illegitimate children and for the first time, the putative father was absolved of any responsibility for his illegitimate children.

The pass room, Bridewell
The passroom, Bridewell

It was hoped that the morality of women would be effected by such draconian laws, but the reality was that it led to many more men avoiding responsibility altogether and placed even greater financial pressure on a mother who already had the burden of an illegitimate child.  It is also thought that this Act may have led to the flourish of baby-farming in the Victorian age where discrete adverts were placed in journals or newspapers for ‘care’ of children which amounted to a sort of black-market trade in children.

The injustice caused by the Bastardy Clause, led to the 1844 Poor Law Amendment Act which provided that bastardy proceedings were to be a civil matter between parents.  Under this act, a mother could apply under oath for an ‘affiliation order’ which required the putative father to pay a weekly sum to the parish, although she still received maintenance from the church if this was not received.  It is thought that this law has probably come to reflect what has always been a de facto division of parental labour: mother as parent with care, and father as financial provider.

This of course, relates mostly to those children who are maintained by unmarried parents, although families who were poor would also receive relief from the parish.  Marriage was a clear advantage when it came to finance as a spouse had full property rights and legitimate children and widow could inherit or receive a pension through the rules of legislation, common and ecclesiastical law.  Given the importance of marriage, it was therefore crucial that any ceremony or union was seen as valid and legal.

 Sources

Lawrence Stone “Uncertain Unions”

Marriage, Fertility, and Population Growth in Eighteenth-Century England (Marriage and Society 156-7, 162; E. A. Wrigley)

Gertrude Himmelfarb, The Idea of Poverty (New York: Random House, 1983),

Bastardy and baby-farming in Victorian England, Haller, DL

The Child Support Agency and the Old Poor Law (2006), Nutt, T

Gertrude Himmelfarb, The Idea of Poverty (New York: Random House, 1983)

Featured Image

Thomas Rowlandson, The Passroom at Bridewell

 

A very public and messy divorce – Beaufort v Beaufort

Today’s post is a little unusual, as I welcome back legal eagle, Mel Barnes who has worked with me in a joint article, to tell the story of a very messy divorce (quite literally), as you’ll discover later.

As most of us know from experience, the golden rule when talking to someone about their divorce is that almost always, ‘the other spouse is always to blame’, a principle enshrined in natural law when Adam pointed his apple-scented finger at Eve and told God it was all her fault.  But that’s all about to change with the introduction of the Divorce, Dissolution and Separation Act 2020 on 6 April 2022 with a no-fact, no-fault, quickie online divorce.  While the country perhaps celebrates this long-awaited change, in this post we will instead commiserate with a divorcing couple from the eighteenth century.

Historically, the Ecclesiastical Court could only pronounce a divorce mensa et thoro, separation from bed and board, now known in law as judicial separation for couples who do not want to divorce for religious reasons.

A divorce à vinculo matrimonii, one that dissolved the marriage, was only possible with a private member’s bill and were very rare, with only sixty divorce acts were passed between 1715 and 1775.

Holland House, Kensington. Yale Center for British Art
Holland House, Kensington. Yale Center for British Art

This brings us to our unhappy couple who wed on 14 June 1729 at Holland House in Kensington: Henry Somerset, the 3rd Duke of Beaufort (aged 22), and Frances Scudamore (aged 18); otherwise, Lord and Lady Beaumont.

Henry Somerset, the 3rd Duke of Beaufort
Henry Somerset, the 3rd Duke of Beaufort

Sadly, for the young couple, their respective fathers both died young, but fortunately at a time when they were fantastically rich.  This was the marriage of two extremely affluent families, bringing to it both money and land and a union of wealth and assets, though Henry gifted jewellery with a value of £500 to Frances (about £60,000 today), which shows he was committed to the union.

Part of the marriage agreement included the requirement for Henry to also take Frances’ surname:

Obliging the duke and Duchess of Beaufort and her children to take the additional surname and bear the arms of Scudamore, pursuant to a settlement made by James, late Lord Scudamore and vesting in the duke in fee the manors of Wickhall and Ditton Camois and lands in Cambridgeshire, late the testate of Lord Scudamore, in lieu of the portion provided by him for his daughter, the said Duchess and other provisions.

As the years went by, the couple’s separate lives and absence of the pattering of small feet began to attract attention.  The lack of an heir and a spare would have been seen as a major problem for these two dynasties, and it was highly likely that medical advice would have been sought about why Fanny couldn’t conceive (obviously, this was automatically assumed to be her fault).

Married life wasn’t great for Frances and Henry  and it became a whole lot worse when, in 1736 Frances it would appear, contracted small pox and returned to the family home, Holme Lacy in Herefordshire to rest and be treated by the Scudamore physician, but she did recover from this.

Holme Lacy
Holme Lacy

In 1740, Frances met William, Lord Talbot (1710-1782), at that time a lawyer and politician referred to by Horace Walpole as having

some wit, and a little tincture of a disordered understanding; but was better known as a boxer and man of pleasure than in the light of a statesman.

William had also married for money, his wife being Mary de Cardonnel, but after two children (a daughter, Cecil (1735-1793) and a son, William who only survived until 1742), she was advised that she was unlikely to survive another pregnancy, so with that, he declared that he was ‘deprived of her sexual services’ and sought solace elsewhere.

Ramsay, Allan; Mary de Cardonnel (c.1719-1787), Countess Talbot; National Trust, Newton House, Dinefwr Park and Castle

With Frances looking for love and William for pleasure, the couple made a perfect match.  They began an indiscrete relationship, which soon led to tongues wagging and an open secret that they were having an affair.

Initially, Henry was pragmatic about the affair and he and Frances executed a Deed of Separation under which each agreed not to make a claim against the other’s estate.  This amicable relationship would not last long, as just few months later, Frances discovered that she was pregnant to William – this was not good!

As far as high society was concerned, indiscretion was forgivable, but public adultery was not.  On 13 September 1741, Frances gave birth to a daughter who she named Fanny Matthews to hide her real identity.  With Henry being in poor health, Frances hoped that he would soon die, so she could pass off her daughter as his, but alas, he recovered!

Meanwhile, William had grown bored with Frances, and he ended their relationship, but it’s not clear at that stage what became of their daughter, was she raised by Frances or perhaps William who had returned to his wife, something which was not unusual at that time.

Henry, continued with his mission and by June 1742, had obtained all the damning statements and evidence he could against Frances, and issued divorce proceedings against her for adultery.

What he hadn’t bargained on though, was that Frances would make a counter-application on the basis of his impotency, a claim that she knew would involve humiliating Henry with a very intimate examination.

In his Reply, Henry claimed that they had slept together in one bed for ten years and produced witness statements from servants swearing that they had ‘actually seen the stains’ on the bedding, proving their intimacy.

None of the evidence was given much weight, and a judge eventually held that Henry needed to prove once and for all that ‘duke-junior’ could ‘rise to the occasion‘.

This would involve either: masturbating and ejaculating, or having sex with a woman before court-appointed witnesses.  Soul-crushing shame aside, what we want to know is whether the woman was also to have been appointed by the court.  What sort of terrible employment would she have agreed to? However, a very embarrassed Henry eventually decided on the former and was successful.  Thereby, winning his case, which gave him damages and costs of £80,000 (about £1 million in today’s money).

After a protracted bill through Parliament, the parties were finally divorced in March 1744, when the Act took effect.  Any happiness with the freedom to marry would be short lived for our unhappy couple, as Henry died less than a year later, in February 1745.

As for Frances, well, she married again, not to Lord William Talbot, but to Colonel Charles Fitzroy, the illegitimate son of the 2nd Duke of Grafton. The couple married on 4 July 1748, at Holme Lacy, Herefordshire.

Francs died just seven months later, and was buried on 27 February 1749 at Holme Lacy, aged just 38. This was just six days after giving birth to another daughter, Frances, who was presented for baptism at St George’s, Hanover Square on 14 February 1749.

Derby Mercury 16 February 1749
Derby Mercury 16 February 1749

For anyone recently separated, know that everything will now be a lot easier in terms of the process, and be thankful for a divorce that no longer has anything to do with ‘private members!’.

As for Frances’s illegitimate daughter, Fanny, little is known about her life, but in his Will of 1782, William referred to his daughter Cecil, but, also, more curiously, ‘my very dear daughter, Miss Fanny Talbot, now living with me’.

So, it looks as if his illegitimate daughter ended up being cared for in a loving home, which means we can end on a happy note.

Sources

Hansard debates 3 June 1830 

Brides and Bigamy

I am delighted to welcome back, ‘legal eagle’ Melanie Barnes, who, with today being Valentine’s Day, is taking a look at brides and bigamy.

Ramsay, Allan; Lord Chancellor Hardwicke (1690-1764); Dover Collections

When the government introduced Lord Hardwicke’s Bill for the Better Preventing of Clandestine Marriage in 1753, the whole country literally was livid.  Modern commentators have now acknowledged that in reality the Acts made little difference, but at the time the mere idea of marriages only in public led to widespread protests, a gazillion angry pamphlets and much debate.

Essentially, the Marriage Act introduced the structure for a valid marriage as we know it today with public banns and licence, but previously it was also possible to have a ‘clandestine marriage’ in secret.  You’ve probably already imagined a dashing young Master sneaking into the stables with a pretty young maid, and you’d be right, as the Bill was partly designed to prevent rich heirs from being seduced into clandestine marriages with their social and economic inferiors.

One of the problems is that a valid marriage attracted all sorts of financial goodies such as rights to maintenance, inheritance or property.  For example, a spouse could sue for ‘reinstatement of conjugal rights’ or bring a claim of ‘failure to maintain’ in order to receive regular support.  Or, a husband could sue for damages if the promised ‘portion’ or dowry was not paid.  Any valid marriage, for example, one that might quickly follow the tête-à-tête between the young heir and his maid, could also annul any future union which automatically made the children of the second marriage illegitimate.  Oh the shame!

Lewis Walpole Library
Lewis Walpole Library

In terms of punishment, the Act provided that any clergymen who performed clandestine marriages were to be transported to America for 14 years.  I like to think that this explains why there are so many Chapels of Love in Las Vegas.

It was also hoped that the Bill would prevent the problem of bigamy as marriage was a well-known remedy for women against debt.  Essentially, upon marriage in the 18th century, a man and woman became one legal entity under the doctrine of coverture and the husband would subsume his wife’s rights and obligations.  This prevented, for example, women from owning property in her own name without permission from her husband (though she could protect her money through a trust), but also made him solely responsible for their joint actions in crime, for example if they both committed murder.  Coverture is one of the reasons that gave men the right to physically chastise his wife – if there was a risk that the wife could break the law then she needs to be controlled!  It’s very hard for us now to get our heads around this doctrine, but at the time it was simply accepted.

Lewis Walpole Library
Lewis Walpole Library

In terms of liabilities, any debt accrued by a woman was the responsibility of her husband so, yep, you guessed it; all she needed to do in order to avoid liability was to marry.  This also wasn’t a problem for the new husband (who might have been paid for his services), as law suits were crazy-expensive and took years in court.  I am aware of one woman who went on to marry five times without a single divorce and in her memoir describes how she arranged the first simply to avoid prison.  In fact, her first husband was already married so when her second husband tried to argue that their marriage was void, the woman argued that this was impossible as her first union was already void so their marriage was valid and … yeah, it’s complicated.

Lord Hardwicke was aware of this particular case and referred to it in parliamentary debates.  Of course, he couldn’t say that the real reason the Act was needed was to stop rich people from marrying the poor, so much was made about bigamy, when in reality, fake marriages were probably not that widespread a problem, although they did happen.

But, it wasn’t all bad for those who opposed the Act as they had the final glorious protest.  On the day before the Marriage Act was introduced in 1754, in defiance of the new rules, hundreds of couples entered into a clandestine marriage.  I like to think that all of them ended up drinking and dancing in Covent Garden.  Thousands of people all coming together in a democratic demonstration of nuptial love and freedom.  I wonder how many of us were born of those unions.  It’s a lovely thought.

Featured Image

Hogarth’s Marriage a la Mode. Tate Gallery

Blood Brothers – 18th century martial punishment

I am thrilled to welcome to All Things Georgian a new guest, Melanie Barnes. Mel is is a lawyer and recent NFTS Screenwriting MA graduate, who has more than a passing interest in 18th century marriage law, military history and like myself, she loves all things Georgian.

Mel’s post today takes a look at punishment and so I should warn you that it includes images of violence, which many people may find upsetting.

The British Army, an elite unit of around 1000 “gentlemen volunteers” from Scottish, English, Irish and Welsh regiments, came into being with the restoration of Charles II.  According to those in power, by 1689 the army had expanded to a force of 74,000 unruly and untrained “common men” who we now know probably weren’t volunteers at all.  Perhaps suspecting that catchy ballads, inspirational drumming and the promise of non-existent bounty was unlikely to sustain the new recruits for long, in the same year Parliament introduced the Mutiny Act and made desertion punishable by death.

Discipline and obedience is the foundation of an army.  Otherwise, the theory goes, your large majority of murderous soldiers, all traumatised by war, will not easily be managed by the minority of posh blokes with authority.  Prior to 1689, regulations were in place to discourage insubordination and mutiny but during peace-time could only be dealt with under civil law.  The Mutiny Act introduced a much clearer distinction between military and civilian law, although there were occasions when civilians travelling with the army were also sentenced under Martial Law.

Death was the most extreme penalty of all, with beheading apparently reserved only for the most aristocratic.  This is surprising, as I’d always assumed that those who made it onto ThePeerage.com would prefer to be poisoned by sumptuous grapes or drowned in a pond of lilacs and flowers.  For those of us who only make it onto Facebook.com, I’m afraid punishment of death was the less honourable death by shooting or rope.

For anyone who has watched Handmaidens, you will already have a good idea of 18th century military punishments, and only have to reimagine most of the scenes with men wearing red coats instead of capes – the ceremony is very similar.  Troops would surround the prisoner in a semi-circle who would then be tied to a stake and blindfolded.  After (hopefully) being told by the Chaplain that that all would be forgiven and they were definitely going to heaven, the execution party would fire, followed by a reserve party if the target was missed.  In one case, a soldier was shot simply for grumbling about having to go on sentry duty –  I wouldn’t have lasted long!

Very occasionally, punishment would be by fire. The records show that on one occasion in Flanders, during the Nine Years War, a French spy was apprehended after throwing a fire bomb into a wagon of explosives.  In retaliation, he was burned slowly on a stake; a hideous and painful death.

Decimation (John Beaver, Roman Military Punishments, 1725) MetMuseum
Decimation (John Beaver, Roman Military Punishments, 1725) Metmuseum

The most terrifying punishment builds on the Roman punishment of decimation; death of a minority by chance.  This was usually ordered when a large group were considered culpable but it wasn’t feasible for them all to be killed.  For example, permission was sought in 1668 for several soldiers to “throw dice for their lives”, with the lowest score resulting in death.  There were several other instances of dice being used for this purpose.

A Sepoy Punishment. Robert Mahon. Yale Center for British Art
A Sepoy Punishment. Robert Mahon. Yale Center for British Art

In another case recorded at a Court Martial in Flanders in 1694, several men were caught deserting their post and one was ordered to be executed.  The remaining six had to draw lots, with two being executed, a scenario recorded several other times in the records.  In our day and age when an abusive tweet or harsh word is considered a crime, it is difficult to imagine the horror and dread experienced by the men who were killed for deserting out of fear, and later, bad luck.

A hangover from medieval torture was the punishment of disablement or mutilation.  The strappado is a form of torture in which the prisoner’s hands are tied behind their back and they are hoisted to the ceiling on a rope.  In medieval times, they would then be dropped, bottom-first, onto a large spike. OUCH!  In the army, the lucky devils were simply dropped to the ground, in a way that usually guaranteed a serious disability.

Courtesy of the National Review
Courtesy of the National Review

But it wasn’t just men who received corporal punishments.  Whipping was a common chastisement and records reveal that civilian women also received this treatment.   The amount of strokes, or stripes, depended on the crime, but often was based on the biblical “40 stripes save 1”, in other words, 39 strokes.  There were, however, instances where the sentence was for much more.  One story relates to a woman who was found guilty for inciting to mutiny.  Her sentence was that she should be gagged and receive 50 lashes on her bare back, 10 at 5 different spots, and then to be sent away from the garrison on the first available ship.   This wasn’t seen as enough, and she was also sentenced to being whipped all the way from the prison to the dock.  In Ireland, another woman was sentenced to death for inciting troops to desert their post, something I would be likely to do at the first sight of blood!

Courtesy of Wikimedia
Courtesy of Wikimedia

Most of us have heard the saying “running the gauntlet” but I never knew the ruthlessness of its origin.  The word Gatloup was used by the Roman Army, and is said to have derived from a Germanic word meaning “lane” and “run”.  Essentially, as seen in the picture, the regiment would line up and form a lane of men, all of whom would hold a cudgel or other weapon.  The prisoner would then have to run past them all, perhaps even a number of times, and be struck by each and every soldier.  It was an officer’s duty to make sure all of the soldiers adequately attacked the prisoner, so by the end the poor man would be very badly beaten.  By the Victorian times, the saying was already being used as a joke, perhaps signifying the lack of continued use as a punishment in the army.

Courtesy of the Revolutionary War Journal
Courtesy of the Revolutionary War Journal

Lesser sentences were also given for lesser crimes, for example, mutilation by branding, cutting off the ears or nose, or even temporary starvation.  Another sentence was time spent on the “wooden horse”, a punishment designed to humiliate the offender, usually with physical pain by tying guns or weights to his or her legs, or making them face the backside which might have been used for an officer.   All of these punishments were designed to deter others in a way that is less apparent in our sentencing system of “just deserts”,  Under this philosophy, the sentence should be commensurate with the offence, and cannot be ordered as a deterrent to the wider community.

Hanging by the Thumbs (Modern Military Punishments) William Hogarth MetMuseum
Hanging by the Thumbs (Modern Military Punishments) William Hogarth MetMuseum

The life of an 18th century soldier was harsh and unrelentingly brutal.  The wars of the Georgian period were less about freedom and more about power and wealth, so the hardships endured and the lives lost are difficult to justify.

When you next commemorate those who have fallen, take a moment to also remember the god-forsaken lives of the red-coated soldier in his thread-bare shirt:

Went to a tavern and I got drunk

That is where they found me

Back to barracks in chains I was sent

And there they did impound me.

Fifty (lashes) I got for selling me coat

Fifty I got for me blankets

If ever I ‘list for a soldier again

The devil will be my sergeant

 

Sources

The Oxford history of the British army (1996)

History of the British Standing Army (1894), Harrison & Sons, Walton, Clifford

Tried and Valiant (1972, Leo Cooper, Sutherland, Douglas

British Soldiers in the eighteenth century

British Army

Recruiting Citizens for Soldiers in Seventeenth-Century English Ballads

Featured image

Cat of Nine Tails, Wikimedia