by E. J. Graff
So were your parents acceptably coupled or illegally fornicating? Once again, the answer depended on who you asked.
And so who can be surprised that Robert’s semi-bastard status was shared by a great many people? In late sixteenth-century England, for instance, one out of three first babies were conceived before—not after—the wedding. That dropped to one out of six in the late seventeenth century, when Puritans were strictly enforcing marriage’s boundaries, but bounced back up to one in three at the nineteenth century’s end. In postcolonial North America, the number of women whose first children were born soon after marriage was one in three in 1800; this percentage dipped slightly in the Victorian era and spiked back up to one in four by 1910.
What can such numbers mean? In large part, it means that “marriage” was a less formal concept in the past than today. Scandinavians especially disliked the idea that any institution, church or state, had to authorize or bless a pairing, and so often didn’t hold the wedding until after the child was born—making the wedding a celebration not just of the pairing but of their fruitfulness. (In other words, Scandinavians’ current unmarried birthrates—roughly one out of two, the highest in the developed world—are the result not of recent social policies but of stubbornly private traditions). Meanwhile, in most communities the gap between first pledge and final vows—between betrothal and wedding—was a kind of marriage twilight in which the couple was neither exactly married nor exactly single. The engaged pair might well live together under one roof: in early medieval Jewish families, for instance, the prospective groom moved in with his promised bride’s family while he got his financial footing, while in many Italian city-states, the bride-to-be was sent to grow up in her future husband’s household—at age five, or eight, or ten. Even the northern medieval peasants, the young people who, after saving up a marriage “portion,” were finally ready to pick themselves a spouse, often did so via some hanky-panky; they might even wait to see if they were fertile before they got formal. In other words, today’s apparently startling habit of getting married only after you’re pregnant, or even with your children gathered round, is actually quite traditional. What’s more, all these “bridal pregnancies” (as social historians delicately phrase it), trothplight babies, and mantle children reveal that marriage has never been a simple either/or question. Rather, marriage’s boundaries are blurry. And exactly what counts as marriage, when, changes according to whose interests are at stake.
So how many children were born entirely outside wedlock—or to put it differently, how many were real bastards? To figure that out from the demographic records, historians have to figure out how to define a marriage—which they wrestle with for pages upon pages. One key social historian, Peter Laslett, throws up his hands and concludes that whatever the local community counted as a “regular union” was—although by that measure, you’d have to include my heterosexual friends who’ve lived together for sixteen years and are treated as coupled by employers, banks, hospitals, friends, and family (although not insurers or tax law). Across the ocean, Americans hated to bastardize a child (partly for democratic reasons, rejecting the aristocratic British insistence on primogeniture and lineage), and so colonial judges and state legislators temporarily invented “common law marriage”—a form that was widely accepted during the nineteenth century and then outlawed by most states in the twentieth; it exists today in only thirteen states. “If two parties, living together, speak of each other as husband and wife, this public acknowledgment is all that is requisite to constitute their relation in the eyes of the law a perfectly valid marriage,” one nineteenth-century legal commentator explained to his audience, “yet children born from such a union and legitimate in New York, are counted as bastards by every nation of Europe.” Bastardy—in other words, marriage—lies in the eyes (or nation, or class) of the beholder.
For the same reason that most European communities and authorities were willing to legitimate a child post hoc—because once the mother married there was a husband helping to feed and house that child—most early modern European law codes made it almost impossible for a husband to bastardize his wife’s child. Even if you gave birth three years after your husband had left on a long sea voyage, even if when he finally got back your village held a charivari (parading you both on donkeys while jeering and flinging mudballs and maybe covering you with honey to attract stinging insects) to shame you for being a whore and him for being a cuckold—even then, in local law, your husband was your child’s father. Period. Somebody had to support that baby, and that somebody was your Mr.—unless he exercised his traditional veto by disappearing.
So what? Why should societies care about children born outside marriage at all? Why not just let women have babies whenever they want? Why pressure men into marriage?
Every historian, anthropologist, or sociologist who writes about bastards mentions anthropologist Bronislaw Malinowski’s “principle of legitimacy”: the idea that each child must have a “sociological father”—not necessarily the genetic dad—willing to be “guardian and protector, the male link between the child and the rest of the community.” In some societies that man is the maternal uncle. In some, it can be a dead man, as when early Hebrew societies charged men with marrying a brother’s childless widow and begetting and rearing a child who carries the brother’s name. (Onan’s famous sin came when he pulled back from this obligatory duty.) In one well-known New Testament family, that man was Joseph, through whom Mary’s miraculously conceived son claims descent from King David (or has it claimed for him by his followers). In most modern law codes, it’s still the mother’s husband, even if (as in one famous U.S. case, Michael H v. Gerald D) everyone knows the child was conceived during an adulterous affair, or even if the child was made with the help of a doctor and an anonymous stranger’s sperm. According to Malinowski, by punishing anyone who doesn’t follow the rule of il/legitimacy, a society ensures it won’t have too many mouths to feed.
From this point of view, what is marriage for? Discouraging overbreeding—first, by insisting that each child be assigned to a working wallet, and second, by punishing children not so assigned via abandonment, disdain, and poverty.
This makes sense when your income and status—whether a landed barony or guild membership or tenant plot—must be inherited from some man, because men, and only men, control all resources, financial, social, and political. Or to put it in terms that Samuel Johnson and William Blackstone would understand: if children matter to men because men want and need heirs, then fathers matter to children because children need property and status. Legitimacy is less urgent when each person forges his or her own future from his or her own efforts—whether that’s in our frontier past or our capitalist present.
So what happens when a woman can make her own living, passing on property, skills, and status? Shouldn’t, then, a mother be able to assign another woman as her child’s sociological “father”? To put it simply: if a dead man, or an uncle, or an absent cuckold, or a holy ghost, or a sperm-bank-supplemented husband can be a sociological “father,” why can’t I?
Will the “Real” Parent Please Stand Up: Mother, Father, Other?
Who’s the real parent? Today, some commentators insist that children wither unless they have their biomoms and biodads right there under the same roof; a divorced fathers’ lobby bemoans a prejudice toward mother-custody; and many opponents of same-sex marriage recoil from the thought that two moms or two dads might be entrusted with a child. Given their ever-fluctuating family structures, how did our forebears assign a child when there was a divorce, death, or some other dispute? What is it—biology or responsibility, nature or nurture—that makes a person into a parent?
Not surprisingly, Western public and legal philosophies over who rightly had charge of a child are as foreign as everything else about our ancestors’ families. Among the Romans, for instance, a child always belonged to his father. The Romans had almost a cult of motherlessness: their founding myth of Romulus and Remus
includes abandoned twin boys suckled by a she-wolf instead of a human mother. In fact, if not rejected and left out to die, a son of the aristocracy was suckled not by wolves but by wetnurses—to ensure he wouldn’t be emotionally weakened by his attachment to his mother. Even when his parents stayed married, they didn’t necessarily share a room or even a living area, and so a son might well be quickly moved out of his mother’s pavilion to guard against effeminacy. Both boys and girls were assigned a wet and a dry nurse, and then a paedagogue or tutor, who together with their father oversaw their upbringing; the tutor, according to one historian, had a tighter bond with and more influence over the child than did the mother. A girl was married off between ages twelve and twenty, but could always come home to Dad. Divorced mothers could still have some relationship with their children—some even left them property in their wills—but could never be guardians. Women weren’t full moral beings: only a man could be a legal parent.
Europe and its Western colonies followed the Romans’ lead, taking for granted that a child’s guardian was his or her father. In the Italian city-states, for instance, it was a father’s responsibility to choose a wetnurse and direct a child’s education. When Luther, Calvin, and other Protestants launched their campaigns, they aimed their childrearing advice at the male patriarch—whether fathers or masters. Enlightenment writers worried about a child’s rearing also talked to fathers, as when John Locke’s 1693 treatise advised, “Be sure then to establish the authority of a father, as soon as [your son] is capable of submission, and can understand in whose power he is.” Women—being oversexed and undermoral—were scarcely responsible enough to oversee a child’s upbringing.
That a child “naturally” belonged to its father was so obvious as to need no gloss in English law. Lord William Blackstone, who in the eighteenth century consolidated and passed on British common law, noted simply that the father had a natural right to his children, while a mother “was entitled to no power but only to reverence and respect.” (Ouch.) But of course: a woman couldn’t own property, and a child was, above all, productive property. “An orphan in colonial America was defined as a child whose father had died, even if the child had a surviving mother,” writes legal historian Mary Ann Mason. Which is not to say that a child was thought to require the presence of his or her bio-father: Dad naturally had the right to assign out his child’s labor, including, of course, those of his slave “children.” (Since a black slave, according to white law, had no father, his owner was considered his sociological “father.”)
And that’s how things stood for centuries, until in the nineteenth century remunerative work was vacuumed out of the house and middle- and upper-class children were confined inside it. As men of those top-tier classes marched out to pursue their professions, money, and status all on their own, leaving behind the women who’d once been their economic partners, how were those children—no longer useful as labor, not in the brave new worlds of commerce and corporations—to be reared? And what were those women to do?
The answer: turn women into Mothers, a word that soon had a halo over it—at least, for women in the race and classes deemed worthy of heaven. In the late eighteenth century, all those childrearing manuals that had been aimed at fathers or “parents” started talking only to moms, with titles like “The Mother’s Book: to American Mothers, on whose intelligence and discretion the safety and prosperity of our republic so much depend.” As one women’s magazine wrote in 1842, “Well may we exclaim THE MOTHER! Oh the significance of the word!” Bereft of all her other duties, Mom was newly exalted as the only right moral guide and “natural” nurturer.
As judges began to absorb these ideals of the Holy Mother and—slowly and agonizingly—started to hand children over to women, they had to strain mightily to justify their radical new doctrines. In 1774, the first time a British court overrode Blackstone and gave custody to a mother rather than a father, it went through logical gymnastics to explain how it could do so “notwithstanding the father’s natural right.” As American judges began to do the same, they dragged in the Holy Motherhood rhetoric, as when one 1840s Pennsylvania court wrote that its “denial of the father’s right” was because a mother’s attention “is prompted by deeper and holier feelings than the most liberal allowance of a nurse’s wages could possibly stimulate.”
Deeper? Holier? Feelings? These shockingly new sentiments—since when had feelings been a reason to assign custody?—sounded a battle cry for an ideological war that was being waged across the century. Traditionalists were appalled as the Holy Motherhood ideal was announced in one court after another, appalled that judges were brazenly changing an ancient law in ways that, today, would be called “legislating from the bench.” One Mississippi traditionalist judge harrumphed sternly, “We are informed by the first elementary books that we read, that the authority of the father is superior to that of the mother. It is the doctrine of all civilized nations. It is according to the revealed law, and the law of nature.” An anonymous Massachusetts writer accused the groundbreaking judges of “nothing less than an assumption of power . . . to determine the domestic arrangements of a man’s family.” Clearly, those nasty old courts have long been out to destroy the family, in the nineteenth century as well as in our own time.
At stake in both battles was the idea of equality of the sexes: could a woman, like a man, have charge of that valuable property, her children? Not as far as legislators were concerned, no matter what those brazen judges might say. When women proposed laws allowing mother-custody, legislators objected that such a move would “weaken the ties of marriage by forcing both sexes into an unnatural antagonism; teaching them to be independent of one another, and to earn their own living apart; whereas God’s law points to the family and the mutual intercourse of man and woman as among the strongest safeguards of human happiness.” One 1910 feminist scathingly characterized the California legislature’s response this way: “If women had the guardianship of their children, would anything prevent them from taking the children and leaving home? What would become of the sanctity of the home, with its lawful head shorn of his paternal legitimacy?” Would a man be a man if he didn’t own his kids? If women had rights over their children, mightn’t they pack up the kids and hop on the next train?
But with the shift in the West from a farm economy to an industrial economy—soon limned by child labor laws—children were no longer seen as productive labor, especially for the classes who wrote and administered the laws. It’s no coincidence, legal scholar Mary Ann Glendon comments, that just as children became an economic burden rather than a profitable asset, mother-love beat father-right for custody of the child.
And so mother-custody got written into laws and legal textbooks in language that made mother-custody sound not like a radical innovation but an eternal verity: “The love of the mother for her child, regardless of conditions and environments, has been proven by the history of the ages . . . [while] the tie between father and child is a different matter, and requires the strong arm of the law to regulate it with some degree of humanity and tenderness for the child’s good.” But the key phrase in that sentence is not “mother”—it’s “the strong arm of the law.” Not Mom, not Dad, but the State won the battle for control of child custody. Mothers got their children only if male judges decided they were good chaste women who’d been unjustly abandoned by deserting or adulterous or dead men. If judges decided you were a willful hussy brazenly escaping lawful husbandly authority, Dad got the kids. And so the State began making its Solomonic decisions with a newly invented idea: the best interests of the child.
After 150 years of hearing that phrase “the best interests of the child,” it’s hard to grasp what an original idea it was. Families were coming, in many minds, to be based not on property but on personality, not on lineage but on love. Yes, of course, the relations of spouses, parents, children, and siblings had always been charged with love and hatred, affection and anger, competition and kindness. But love had not been the mai
n axis on which the family rotated; love was consequence, not cause, of family life. By the nineteenth century’s end, the family had been reinvented as the cradle of personality, that new and precious commodity on the postindustrial market. Can it be any surprise that—as emotions newly moved to the family’s center—the nineteenth century was when adoption as we know it was invented?
Yes, invented. Which is not to say that children weren’t transferred from hand to hand in various ways over the millennia, whether abandoned and taken in in ancient times or indentured and fostered out throughout much of European history. But taking in a child who could be an heir or putting a child to productive use are hardly the purposes we think of for modern adoption. Adoption as we know it has far more to do with family affections—and so was an innovation as feelings took center stage.
Greek and Roman adoption didn’t sever biological ties: your mother was still your mother and you stayed in touch with your bio-father—who “gave” you in adoption the way he “gave” a daughter in marriage. Ancient adoption’s purpose was to ensure that an older man could pass on his family name and to offer a young man a chance at a brilliant career under the tutelage of a new father/patron. The Christians disliked adoption’s goals of transferring power, property, and pagan family worship; besides, adoption might accidentally drag a child away from the bosom of the Church—so it’s no wonder Christianity tossed out adoption law. In premodern British common law, formal adoption was an equally abhorrent concept, although for different reasons. As you’d expect from its attitude toward “mantle children,” and from Jane Austen’s books in which daughters must move out of the estate to make way for the entailed male heir, British law sneered at the idea that inheritance could be voluntarily transferred. The famous thirteenth-century statement by Glanville rang down for centuries: “Only God can make an heres [heir], not man”—and not man’s law. Affections did not transfer property, and property was the point of parentage.