The Illegitimacy of Illegitimacy:  Bastards, a Group Most Subject to Civil Disabilities

Canada – either the Government or the Parliament of the day – has issued public apologies for its treatment of various groups, primarily ethnic communities for the mistreatment they endured in the hands of previous Governments: Japanese Canadians during WWII; Italian and Ukrainian Canadians during WWI.

Certainly the most dramatic apology was the one offered to the Aboriginal peoples of Canada for the mistreatment of their children over many decades through the residential schools run by various churches under contract with the federal government. Some other time I would like to argue that Parliament needs also to apologize for the long list of civil disabilities imposed on “Indians” by a succession of statutes passed between 1876 and 1927, many of which remained in force until much later. Today, however, I want to argue another point, albeit one that came to my attention through an historical study of the Indian Act.

What I mean by a “civil disability”1 is a provision in a statute or a statutory instrument (order-in-council or a ministerial order) that denies to a particular human community a right properly enjoyed by all the citizens or subjects of the country.

What I particularly want to argue today is that there is a group who particularly deserve of an apology for the discriminatory treatment that they suffered over numerous decades but who are most unlikely to receive such an apology because they are not, to my knowledge, organized and have not yet begun to press their case.

The group I have in mind are all those persons whose births occurred while their parents were not married, or, at least not to one another, the people commonly and historically referred to by the term “bastards.” Given the lack of public discussion on the discrimination against this human community, it is not surprising that many people may not be familiar with their plight. More important, many historians and numerous legal scholars may be unaware of just how recently these disabilities were repealed. The campaign for reinstatement onto band lists may have created some awareness of the discrimination against unmarried mothers and their children but I do not think that there has yet been an effort to understand the significance of the disabilities imposed on bastards, in Britain and in Canada, as regards Canadian immigration policy.

Until passage of the Ontario Legitimacy Act, 1961-612 (and similar legislation adopted about the same time as a product of the Uniform Law Conference of Canada3) the disabilities imposed by law on supposedly illegitimate children4 included being unable to inherit from his parents or anyone else; he could have no heirs except those of his body so that if he died intestate without children his property was considered 

bona vacantia and would escheat to the Crown.5 Those disabilities persisted into the 20th century. However, until a statute in 1576, the natural parents of an allegedly illegitimate child owed him no legal duty of support.6

It is not my purpose here to discuss the failure of the 1960-61 legislation to remove all remaining disabilities. Winter and Green do that admirably in their short, succinct and highly readable article. What I do want to examine here is the identifiable groups most affected (or most likely greatly affected) by the disabilities against “illegitimate children.” Granted that the population of all ostensibly illegitimate children is a nominal rather than a real group or community, I want to suggest that there are two or three identifiable groups, identifiable at least in part by their ethnicity that were most grievously affected. The groups I have in mind are: (1) British home children; and, (2) “natural children” of First Nations.

British home children were children found to be living either on the streets or in the poor houses of Britain in the 19th century. By and large, according to the literature on home children, these were children whose mothers had no visible means of support (a term that might include those whose means of support was not to be discussed). The solution by which Britain sought to rid itself of the “problem of illegitimate children” was to export them to one or another of the “white dominions” within the British Empire, as it then was. Canada, which was then searching for farmers to immigrate here, accepted them as a cheap form of farm labour and allowed local authorities both to place them with farm families and to maintain contact and supervise them.

One home boy who was sent to a Maritime province wrote a book about the experience of a variety of others sent from the same home and placed with farm families in the Maritimes, often in very remote areas in the late 19th century. Only a few reported sexual abuse but a much larger number reported, in their late years, being beaten and not being paid the small pittance that had been promised.

The one other group that was exported from Britain in such a wholesale fashion were convicts. For whatever reason convicts were sent to the colonies that rebelled in 1776 and later to Australia and New Zealand though not to Canada. Canada, on the other hand, had more than its shares of “home children.”6 I had known of these people since my adolescence through an older friend who had known several of them from her school days. In Ontario they were often called “Bernardo children”, taking their name from the organization that arranged their deportation from Britain and their settlement here.

The author of the work on children settled in the Maritimes introduced me to the term “home children.” The use of “home” to describe these children is a very English (or British) usage, and, in that sense identifies them as British descended people. Hence, my first group of illegitimate children on whom great disabilities were imposed until very recently and who form quite a real community.

The second such group are First Nations children, children whose mothers had “Indian status” under the Indian Act before 1985 but who could not (or would not) demonstrate that the father had Indian status. During the various campaigns to force assimilation on First Nations people the government (and later Parliament) elected to deny Indian status to newborn children unless the mother were willing to identify the father.7 (It is worth noting that the right of the mother to identify the father and, indeed, to advise the father of his paternity remains an issue today. It was, however, pioneered, as it were by the work of the Indian Affairs Branch and its agents in First Nations communities.)

The deputy superintendent general (the equivalent of a deputy minister) in 1920 declared that he would work toward the time when there was not a single Indian left in Canada. I have long understood this statement to refer to eliminating eligibility for Indian status and eliminating First Nations communities. The decision to oblige the mother to disclose the name of the father as a condition of registration of the child served this nefarious purpose while imposing yet one more disability on the mother, i.e., her child could not be registered as a member of her band and, therefore, could not live in that community upon reaching his or her majority.

This also had the “benefit” of disrupting First Nations customary law in many communities. In the Haudenosaunee (Five Nations or Iroquois) inheritance is normally through the mother’s line and the first inheritance is membership in the mother’s clan. The prohibition against marrying one’s near relatives then includes one’s whole clan, but not the other clan’s of one’s nation. A conflicting set of rules cuts such a tradition off at the knees. There are also other lines of inheritance, such as inheriting from the mother’s brother that is common to the tradition of the Secwepemec (Shuswap) and perhaps other Salish peoples that would be similarly disrupted. Given that English law prohibited an “illegitimate child” from inheriting one might consider that this could be extended to include inheriting membership in the mother’s community, were it not that English children were not barred from being English persons and British subjects.

Such disruption was, of course, a great boon to assimilationist policies but at least as highly destructive of traditional communities as the residential schools.

I began this essay by saying that I would look at communities which were owed an apology for the policies and laws under which Canada — in its federal form or provinces or Britain while it continued to administer some fields of jurisdiction – by reason of harsh treatment and sharp dealings or in a destructive manner and without demonstrable justification. I consider that British home children and First Nations children barred from their home communities through the legal classification of illegitimate are certainly deserving of both an apology and compensation.

One might, of course, argue that the whole idea of such apologies is an ill-conceived for of historical revisionism. As an historian I do not think it to be an example of historical revisionism: it is not denying the event, it is saying that Canada’s conduct was highly inappropriate and dreadfully harmful. Whether such apologies serve a useful policy purpose in the period in which they are made is a topic for another time.


1 “Civil Disabilities” is the term used by Thomas B. Macaulay in a series of speeches in the British House of Commons regarding the statutory provisions that denied a franchise to Jews and to Catholics. See, for example, “Jewish Disabilities: A Speech Delivered in a Committee of the Whole House of Commons on the 17th of April 1833,” available online. I have not yet found a term that better describes the outcome when Parliament (or the courts) deny to one ethnic or religious community a right that properly belongs to every citizen. This is a brilliant oration that I recommend to everyone with even a remote interest in civil, human or Charter rights. Insert URL.

2 I have adopted the summary of the disabilities imposed on persons of “illegitimate” birth set out here from a 1965 article by Bernard Green and R.I. Winter in the University of Toronto Law Journal, Vol. 16, No. 1 pp. 181-184, entitled “The Ontario Legitimacy Act, 1961-62. Green and Winter also discuss the shortcomings of the 1960-61 legislation from the perspective of repealing all disabilities.

3 A report of the Uniform Law Conference of Canada from 2006 includes a list of jurisdictions showing the uniform acts adopted before 2000 at least in part through the influence of the Uniform Law Conference can be found on the web.

4 I put “illegitimate” whenever I do not used a qualifier such as “supposedly” in quotation marks to show that it is a term used historically from which I wish to be otherwise disassociated.

5 Supra. at 181.

6 Ibid.

7 I have, over the years, written a number of memoranda for clients on this issue. I am, however, writing this note in “a cabin in the north woods” while I have left my files in the city. Anyone who feels the need for specific sources is welcome to write to me.


Comments are closed.