Kaaryn Gustafson on the History and Impact of Bastardy Laws

Prof. Glater and Prof. Gustafson in recording booth

Kaaryn Gustafson elaborates on her groundbreaking research into the history of bastardy laws in America which have shaped U.S. law and policy in many surprising ways.

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  • Kaaryn Gustafson

    Professor of Law and Co-Director, Center on Law, Equality and Race
    Expertise: Welfare and economic policy; criminal law and procedure; interdisciplinary research on race, ethnicity, gender and socioeconomic inequality
  • Jonathan Glater (Host)

    Assistant Professor of Law
    Expertise: Higher education law, criminal law, corporate law, white collar crime and securities fraud

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks.

[Jonathan Glater] Welcome to UCI Law Talks. Today I'm talking to Kaaryn Gustafson, Professor of Law and Co-Director of the Center on Law, Equality and Race here at UCI. She studies welfare and economic policy, criminal law and procedure and conducts interdisciplinary research on race, ethnicity, gender and social economic inequality. She's one of those people who has a gift for presenting a multifaceted perspective on an issue, and today we're going to talk about laws on legitimacy. I'm going to start by asking you to explain a little bit about that. But first, welcome thank you for joining us.

[Kaaryn Gustafson] Thank you for inviting me.

[JG] So this project that you're working on focuses on the law of bastardy.

[KG] Yes.

[JG] What is bastardy? 

[KG] Well bastardy laws were on the book from the colonial period until late 19th early 20th Century, and they were laws that regulated both orphan children and the children of unwed parents.

[JG] So these had to do with disposition of property or with personal rights or both?

[KG] They did all sorts of things and they did different things in different places. In the North, bastardy laws were basically the precursor to child and forcemeat laws we have today. A lot of people don't know this but there's always been some provision for the poor and before we had a welfare system, usually counties or parishes would provide for destitute children. And where there wasn't a father, children often ended up destitute. So in the North, what the bastardy laws did was they would seek compensation from the father if they could track him down, and often they had trouble doing that, but they would go after his property or seek support of the child and also for the mother for the first few years. In the South, bastardy laws were much different. They weren't civil statute as they were in the North, they were treated as criminal statutes. In the South, bastardry laws were used basically to indenture both parents and children, especially free people of color.

[JG] In the book proposal that you shared with me before we met today, you make clear that the laws on bastardy function at once, both as an instrument of oppression of subordination, but in particular of groups that are already relatively powerless. But, they also serve as a means of resistance to federal encroachment and at the same time, their means of resistance by the relatively powerless with funny alliances. Right? There are people that are relatively empowered in society who work with these marginalized groups and can kind of take advantage of these legal regimes. Can you explain how these laws, which I know I never learned in property class in law school, how did how do they have such far reaching effects?

[KG] Well they were very flexible legal instruments. So the bastardy laws in the South rendered parents -The bastardy laws in the South said that children of unwed parents were Filius Nullius, basically the child of no one. So parents didn't have rights to their own children. Now this meant that the state - that the counties rather, had a lot of control over parents and children. But there were moments in - my research is focusing on North Carolina - and there were moments there when families use the bastardy laws to their own advantage. As an example, there were free blacks in North Carolina in the early 19th Century like 1807, 1805 who couldn’t get married. Marriage was very expensive and there were lots of restrictions: racial restrictions on marriage and restrictions between free blacks and slaves. So, most children born to free blacks were considered bastards and were therefore Filius Nullius but the way that these parents could have their children recognized as their own was to have the courts apprentice the children to their own parents, which sometimes happened. So in those instances, the bastardy laws were ways of recognizing legitimate families in fact, legitimizing black families in the South.

[JG] What's the purpose of the apprenticeship? I mean, is this the idea that child will be put to productive use because of this apprentice relationship that you said they wouldn't otherwise serve? Because of the idea of an apprentice as broader application than just here.

[KG] Right well you know in the 19th Century and earlier, the idea was children need a father. They couldn't really be legitimate without a father; they needed a father to build their morals to offer them guidance. And so, there needed to be some man overseeing their upbringing whether it was their father or a master in an apprenticeship-relationship. But the apprenticeship laws that were attached to bastardy laws were also a way of controlling labor pools. If you have families both poor white families and free black families who have small plots of land and you pluck their often teenage children, sometimes younger, off those plots of land and assign them to white property landowners, you’re really shifting labor resources away from subordinated communities to wealthier privileged landowners.

[JG] You talk about this in the context of debt peonage. How do these do these work together? How do these relate?

[KG] Well people usually think of slavery as the only form of involuntary servitude in the South. But there were other forms of involuntary servitude as well. There was indenture for people who owed money sometimes on criminal charges, there were apprenticeships for orphan and bastard children and then the apprenticeships continued after emancipation. They were actually the way that the government controlled young black men after emancipation. There were a lot of anxieties about unsupervised young black men, which you know is a anxiety that carries over today. And then, the sort of mode of social control after emancipation became debt peonage where people fell into debt and local courts would say to pay off your debts you need to work for somebody to pay this off. Whether you want to or not and that then moved into slave labor through prison labor. 

[JG] So one of the more provocative ideas in what I read and in what you just said is that the laws on bastardy function to discipline particular populations.

[KG] Exactly.

[JG] The undesirable populations as well as I guess undesirable conduct at least in theory and you suggest that those mechanisms persist right, that we still have those with us today. Can you say a little bit about how and why? Because again, we don't learn it in law school but you suggest it's still with us.

[KG] Well the bastardy laws were foundational to the child support system, right, which we think of as supporting children but it's also a way that men get entangled in government, right? They can't support their children; often the men who are in arrears are the men on the margins. The men who have weak ties to the labor force, little education and so the child support enforcement system isn't particularly great for them and it's not always great for their relationships to their children. And sometimes, they decide to work off the books, sometimes in the underground labor economy, sometimes in illicit labor economies to make ends meet whether for themselves or for their families.

[JG] So sort of the extent to which it's an unenlightened policy response, it has its roots in this earlier, it’s fair to call it a form of social control.

[KG] Yes

[JG] That's what we're what we're talking about. How do these laws on legitimacy which clearly implicate racial oppression relate to the oppression of women, right, who's social and legal status changes over time?

[KG] Well, early in their use, bastardy laws were used to control women who were seen as immoral in all sorts of ways. So it was often hard to identify women who were prostitutes in a community but if they turned up pregnant you could haul them into court on bastardy charges. And it wasn't just that they were hauled into court sometimes they were imprisoned on bastardy charges.

[JG] Because this is what could be proved?

[KG] Yeah

[JG] You had evidence.

[KG] Right, right. So if a woman was seen heavy with child or she had given birth in the community members knew that she wasn't married, the local magistrate would issue a warrant for her arrest under the bastardy laws.

[JG] And what happened to the child?

[KG] The child was still usually raised by the mother but the courts maintain control of the child and when the child was old enough to work, so usually about age 12 or 14 for black children… sorry, 12 or 14 for white children and age 7 for black children. They went into the service of another family.

[JG] I'm beginning to see why you didn't learn this in law school. How did you get interested in this subject?

[KG] I fell into this project. A friend came over to my house for Thanksgiving and he said you know I've been doing some research on my family and all of the documents I can find are these things called bastardy bonds. Do you know anything about bastardy bonds? And I’d never heard of them before and I said well, I’ll Google it. And I couldn't find much there. But it piqued my interest and I kept doing more and more research and then decided to visit the archives in North Carolina and actually take a look at the bastardy bonds. But I'd never heard of them before. I'd never heard of bastardy laws before that. And you know, what I've come to learn is that tens of thousands of free blacks in the South fell into periods of involuntary servitude often twice in life as a child and then upon having children under these laws.

[JG] So what is a bastardy bond?

[KG] Well there are actually different documents called bastardy bonds. One of the bastardy bond had to do with the bond the parents had to pay, the pregnant woman or the woman who had a child and the putative father. And these were bonds, they were basically agreement saying that they would be held responsible if the child became destitute. So they were security bonds and often other people in the community would sign on to these bonds saying we will provide for the child if the child becomes destitute. Bastardy bonds were also the indenture agreements when parents couldn't post those security bonds. So men especially were sometimes indentured for three years if it was discovered they had fathered a child out of wedlock. And then the third kind of bastardy bond was actually the written agreement between a master and the court where the master agrees to provide the basics for the orphan or bastard child during the period of apprenticeship.

[JG] So are these the kinds of documents that you are unearthing?

[KG] Yeah, yeah. I've been looking at these documents and I've been looking through court records, minutes of court proceedings in North Carolina. It's been incredibly interesting.

[JG] Why North Carolina?

[KG] North Carolina has actually done a better job of preserving county level records than other states. So in a lot of state archives you will find state documents, but to get ahold of county level documents you have to go to the counties and sometimes they're there and sometimes they're not. But North Carolina has a wonderful archive where they've preserved all sorts of rich information.

[JG] But this is not something that people have really focused on in the past?

[KG] Not many. So John Hope Franklin actually wrote a book years ago called The Free Negro in North Carolina, where a lot of his records relied on these bastardy bonds and apprenticeship bonds. And there have been some feminist historians who have written about bastardy and how it regulated women's sexuality and women's lives. But I think the scholars who’ve written on bastardy in apprenticeship so far have really not given the necessary attention to how bastardly laws were used to police racial boundaries and used to manage labor pools.

[JG] Why is that? That was the next question I wanted to ask. Why is someone not kind of trace these through? Because it's really kind of striking.

[KG] Well I think we tend to focus on one law and bastardy laws really require an analysis of several different kinds of laws. So it's not just bastardy laws, but you have to look at marriage laws, right? There were children who were legal bastards because their parents couldn't get married. Why I couldn't their parents get married? Often because it was very expensive to get married or because states created restrictions on who could marry and who couldn't.

[JG] With this research, what are you hoping to get us to think? How are you trying to get us to think differently? It's very provocative, so I'm curious where you're trying to push us, the readers, to go.

[KG] Well I think a lot of people think of the state and the family as separate entities, right? That the state plays a neutral role in the regulation of families. But, I think this research shows that going as far back to the founding of the country, state laws have governed families quite heavily, especially families on the margins – single parent families and black families.

[JG] That's incredible because that just seems so salient today as we see the battles over same sex marriage playing out.

[KG] Yes.

[JG] In wrapping up these conversations, I like to always ask one general question. Is there something else I should be asking or something else that you would like to mention?

[KG] Well I mean I'm not a historian and so the trip to the archives was a new thing for me. But in going through the records there, I was just stunned by the fact that slavery was everywhere. I mean I would come across probate records, and what was the property that siblings were fighting about? They were fighting about the division of slaves. I'd come across mortgage documents where people were seeking second mortgages and what were they using as the collateral for their mortgages to buy a cow? They were using their slaves. I came across a sale of defective goods and you know, what was the defective good that was sold? It was a slave with a hernia. I mean I hadn't spent that much time thinking about how central slavery was to every part of economic and social life in the South, but I really couldn't ignore it in going through these court documents.

[JG] It was woven into the into the fabric.

[KG] It was everywhere.

[JG] Thank you so much for joining us today.

[KG] Thanks for having me.

[Narrator] Thank you for joining us for UCI Law Talks produced by the University of California Irvine, School of Law.