Historically, illegitimacy – being born outwith marriage – often carried a great social stigma. It was considered something to be ashamed of – as if somehow the child was responsible for the actions of his or her parents. In my own family, my paternal grandmother was born before her parents were married, a fact that she kept hidden from my dad. She’d even gone to the length of consistently lying about her age to cover her tracks. It wasn't until about ten years after she died that I discovered the truth – much to the amusement of my dad, who had endured years of his mum putting his dad down because his father was illegitimate!
This social stigma was incorporated in law: the Registration (Scotland) Act 1854 [Link] required that all illegitimate births be marked as such in the original register (a requirement which wasn’t removed until 1919). Section 35 of the Registration (Scotland) Act stated:
In the Case of an illegitimate Child it shall not be lawful for the Registrar to enter the Name of any Person as the Father of such Child, unless at the joint Request of the Mother and of the Person acknowledging himself to be the Father of such Child, and who shall in such Case sign the Register as Informant along with the Mother
Consequently, unless the father acknowledged paternity and agreed in person to be registered as the father, it was illegal to record his name in the birth register, with one proviso:
Provided always, that when the Paternity of any illegitimate Child has been found by Decree of any competent Court, the Clerk of Court shall, within Ten Days after the Date of such Decree, send by Post to the Registrar of the Parish in which the Father is or was last domiciled, or in which the Birth shall have been registered, Notice of the Import of such Decree in the Form of the Schedule (F.) to this Act annexed, or to the like Effect, under a Penalty not exceeding Forty Shillings in case of Failure; and on Receipt of such Notice the Registrar shall add to the Entry of the Birth of such Child in the Register the Name of the Father and the Word "Illegitimate," and shall make upon the Margin of the Register opposite to such Entry a Note of such Decree and of the Import thereof
In other words, the father’s name could be added to a birth record after initial registration if paternity was proven subject to a court order, although the stigma of the word illegitimate would remain.
Section 36 of the Registration (Scotland) Act also illustrates an unusual feature of Scots law which distinguishes it from English law:
In the event of any Child, registered as illegitimate, being legitimated per subsequens matrimonium, the Registrar of the Parish in which the Birth of such illegitimate Child was registered shall, upon Production of an Extract of the Entry of such Marriage in the Register of Marriages, note on the Margin of the Register opposite to the Entry of the Birth the Legitimation of such Child per subsequens matrimonium, and the Date of the Registration of such Marriage
Under Scots law, a child born outwith marriage could be legitimated after birth per subsequens matrimonium – literally “by subsequent marriage” – if the parents later married, provided that they were free to marry at the time of the child’s birth.
From a genealogy perspective, the main import of illegitimacy is that it can prove a significant obstacle to tracing the child’s paternal ancestry. However, it need not always prove to be a brick wall.
Take the case of George Kerr Waterston, an illegitimate child born on October 9 1863 in Dunnichen, Angus. His statutory birth record does not name his father, instead just giving his mother’s name as Elspeth Waterston. As mentioned earlier, the law stated that in cases of illegitimate children, the father’s name could only be included if the father signed the register in person. The following entries from the records of Dunnichen parish demonstrate that the strict rules in force for civil registration did not apply to the Church, and thus how Kirk Session records can often be used to identify fathers of illegitimate children.
At Dunnichen the 18th day of October 1863 years
A couple of weeks later, in the Baptismal Register for Dunnichen, we find the following entry:
Kerr, George Kerr Waterston (illegitimate), S[on]. [Father] John Kerr Junior, Greenhillock Tulloes; [Mother] Elspeth Waterston, Letham. Birth 9th October 1863, Baptism 9th December 1863
This entry provides another useful lesson - it's always worth checking baptismal registers, even after the introduction of civil registration.
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